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Decision No. 14,499

Appeal of ANN GIORDANO, on behalf of her sons MARC and CHRISTOPHER MANZO, from action of the Board of Education of the City School District of the City of New York, Citywide Committee on Pupil Transportation, regarding transportation.

Decision No. 14,499

(November 30, 2000)

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Barbara G. Lifton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the City School District of the City of New York, Citywide Committee on Pupil Transportation, ("respondent") denying a request for the transportation of her sons to school. The appeal must be dismissed.

Petitioner’s sons, Marc and Christopher, attend the fifth grade and third grade, respectively, at PS 174 in Community School District No. 28. Petitioner and her sons reside between " and 1 mile from PS 174.

According to respondent’s transportation policy, children in grades K through 2 who reside more than " mile from school are eligible for free transportation. Children in grades 3 through 6 who reside more than 1 mile from school are also eligible for free transportation. Respondent’s Pupil Transportation Manual also allows for a variance from these rules in special circumstances due to medical reasons, the existence of traffic safety hazards, or if public transportation is unavailable, inadequate, or inaccessible.

In 1998, petitioner applied for a transportation variance for Marc, then a third grader, for reasons of safety and financial hardship. On December 29, 1998, respondent granted Marc a temporary variance, expiring in June 1999, permitting Marc to ride the bus with his younger brother. Petitioner again attempted to secure a variance for the 1999-2000 school year, but was denied. By letter dated October 6, 1999, respondent’s chairman informed petitioner that, "[l]ast year we granted an approval to you only to find out we were not authorized to do so. The committee does not have the authority to issue transportation variances based on financial hardship."

By letter dated January 10, 2000, petitioner once again requested a variance for Marc. By letter dated January 21, 2000, respondent denied this request. In July 2000, petitioner commenced this appeal. She requests a variance for both children for the 2000-2001 school year, as well as reimbursement for half of her transportation costs incurred during the 1999-2000 school year. Petitioner’s request for interim relief was denied on August 11, 2000.

Petitioner contends that she should be granted a transportation variance for several reasons. First, she claims that public transportation routes do not traverse the streets and blocks enroute to PS 174. She also claims the walking route is unsafe for elementary school children. Finally, she alleges that it is a financial hardship for her as a single mother to pay for her sons’ transportation.

Respondent claims that the variance granted to petitioner in 1998 was a temporary one, based on compassion, and not consistent with its own policies. Respondent maintains that subsequent to the granting of the variance, members of the respondent committee visited the area in which petitioner lives, and reviewed the route her sons would have to walk to school. As a result of this investigation, the committee members concluded that the level of difficulty of the route did not exceed that experienced by other similar grade students in the city. Respondent also alleges that the highway safety officer in the local precinct of the New York City Police Department verified that the intersections on the route did not have excessive accidents. Respondent contends that pursuant to its policies, it had no basis to grant petitioner’s request for a variance during the 1998-99 school year and maintains it is not required to continue to provide transportation previously supplied in error. Additionally, respondent claims that the appeal is untimely.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be commenced within 30 days of the decision or act complained of unless excused by the Commissioner for good cause shown (8NYCRR "275.16). Respondent denied petitioner’s request for a variance by letter dated January 21, 2000. That letter clearly stated that petitioner had the right to appeal the decision to the Commissioner of Education. This appeal was commenced on July 26, 2000, more than 30 days after respondent’s January 21, 2000 letter. Therefore, this appeal is untimely.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits. A city school district is not required to provide transportation to students (Education Law "3635[1][c]). Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law "3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., New York City School District, 63 Misc 2d 276). Moreover, a board of education has broad discretion to determine how such transportation will be provided (Sands Point Academy, et al. v. Bd. of Educ., New York City School District, supra; Appeal of Del Vecchio, 39 Ed Dept Rep 258, Decision No. 14,230; Appeal of Broad, 35 id. 248, Decision No. 13,530). In making that determination, a board of education has both the responsibility and authority to implement a transportation policy that balances the safety and convenience of individual pupils with overall economy and efficiency (Appeal of Del Vecchio, supra; Appeal of Polifka, 31 Ed Dept Rep 61, Decision No. 12,569; Appeal of Cunningham, 28 id. 10, Decision No. 12,012). The Commissioner of Education will uphold a district's transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Del Vecchio, supra; Appeal of Polifka, supra; Appeal of Capozza, 25 Ed Dept Rep 15, Decision No. 11,482).

Respondent's decision to deny petitioner’s request for a variance is consistent with the Education Law and respondent’s policies and regulations. Based on the record, it appears respondent has adequately considered factors such as safety and efficiency. Although petitioner disagrees with respondent's decision, she offers no evidence that refutes any of its conclusions. Therefore, I find no basis on which to substitute my judgment for that of respondent.

In light of this disposition, I need not address the parties’ remaining contentions.