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Decision No. 15,980

Appeal of MICHELLE KATES, on behalf of her son JOSEPH, from action of the New York City Department of Education regarding transportation.

Appeal of LAURA GOODMAN, on behalf of her son JAMES, from action of the New York City Department of Education regarding transportation.

Appeal of ISRAEL MARTINEZ, on behalf of his children DANIEL and JESSICA, from action of the New York City Department of Education regarding transportation.

Decision No. 15,980

(September 3, 2009)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Chevon Andre Brooks, Esq., of counsel

HUXLEY, Commissioner.--Petitioners challenge the decision of the New York City Department of Education (“respondent”) to deny their requests for transportation.  Because the appeals raise similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioners live in the same building and are parents of children who are enrolled in grades three through six at P.S. 229 (the “school”) in Queens, New York.  According to petitioners, they were advised that transportation would no longer be provided for children in grades three through six.  As a result, petitioners applied for hazard variances, which were denied on January 8, 2009.  This appeal ensued.  Petitioners’ requests for interim relief were denied on February 25, 2009.

Petitioners argue that their requests for variances should have been granted because the path that their children must take to school presents “great hazards.”  In particular, petitioners allege that their children must cross a dangerous intersection that would require them to cross 10 lanes of traffic.  In addition, petitioners contend that respondent’s third grade cut off is “pointless” since it could simply transport their children with the K-2 students who receive transportation to the school.

Respondent denies petitioners’ allegations and asserts that they and their children live .801 miles away from the school and do not qualify for transportation under its policy.  Respondent also asserts that it investigated petitioners’ variance requests and determined that the route that petitioners’ children would take from home to school was safe.  In addition, respondent contends that it had insufficient space on active school buses to provide transportation to petitioners’ children without additional vehicles.  Respondent, therefore, argues that its determination was not an abuse of discretion and should be upheld.  Respondent also claims that the appeals of petitioners Kates and Goodman should be dismissed for improper service.

In a March 10, 2009 letter, respondent’s attorney advised my Office of Counsel that the affidavit from respondent’s director of general education transportation contained a clerical error in a street address, and that he was submitting a corrected amended affidavit.  Since this submission merely corrects a clerical error, I have accepted it pursuant to §276.5 of the Commissioner’s regulations.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).

According to the affidavit of the process server for petitioners Kates and Goodman, their petitions were served on the Board of Education of District 24 at 98-50 50th Avenue in Corona (Queens), New York.  Respondent, however, asserts that it designated the Office of the Corporation Counsel as the proper address for service of process and that any papers not served at 100 Church Street (the Corporation Counsel’s office) have not properly been served.  Since there is nothing in the record to refute this claim, the appeals of petitioners Kates and Goodman must be dismissed for improper service.

Further, all three appeals must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioners seek transportation for the 2008-2009 school year.  Since the 2008-2009 school year has ended, petitioners’ requests for transportation for that year are moot.

Even if the appeals were not dismissed on procedural grounds, they would be dismissed on the merits.  A city school district may, but 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]; SandsPoint Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of Zeller, 45 Ed Dept Rep 337, Decision No. 15,340).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of Cassin, et al., 32 Ed Dept Rep 373, Decision No. 12,859).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455).

Here, respondent has a transportation policy of providing transportation to students in grades three through six who reside one mile or more away from the school that they attend.  Respondent claims, and petitioners do not dispute, that petitioners’ children all reside less than one mile away from P.S. 229.  Accordingly, I am unable to find that petitioners’ children qualify for transportation based on distance alone.

Nor am I able to find that respondent’s denial of petitioners’ requests for hazard variances was unreasonable.  Based on the record, it appears respondent considered factors such as safety and efficiency.  Though petitioners disagree with respondent’s decision, they offer nothing other than pictures of an intersection to refute respondent’s conclusions and evidence that respondent initially relied, in part, on accident data from the wrong police precinct.  However, respondent’s determination was primarily based upon an inspection of the contested intersection by a field inspector who concluded that there were sufficient traffic and pedestrian control devices to ensure pedestrian safety.  In addition, respondent subsequently verified with the correct police precinct that it was not an accident-prone intersection.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  On the record before me, I find that petitioners have failed to meet this burden.

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