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Decision No. 16,237

Appeal of MAUREEN MCGARVEY, on behalf of her son KEVIN, from action of the New York City Department of Education regarding transportation.

Decision No. 16,237

(June 3, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Marilyn Richter, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her son transportation to a nonpublic school for the 2010-2011 school year.  The appeal must be dismissed.

Petitioner is a resident in respondent’s district and is the parent of a child enrolled in grade three at Our Lady of Hope School (the “school”) in Middle Village, New York.  On July 30, 2010, petitioner requested transportation for her son on the basis of a hazardous condition along his route to school.  By letter dated August 31, 2010, respondent denied petitioner’s variance request due to ineligibility based upon grade and distance.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 4, 2010.

Petitioner alleges that her transportation request should have been granted because the path that her son must take to school “is a hazardous one”.  In particular, petitioner alleges that her son would have to cross two dangerous intersections without a crossing guard.  She also alleges that a number of accidents have occurred at these locations over the years.  Petitioner further asserts that respondent’s decision is arbitrary and capricious because a neighbor’s son was provided transportation to the school for the fifth and sixth grade in the 2008-2009 and 2009-2010 school years. 

Respondent asserts that petitioner lives .93 miles away from the school and, therefore, her son does not qualify for transportation under its policy.  However, respondent indicates that petitioner’s son is eligible for a half-fare Metro card.  Respondent also asserts that it investigated the intersections petitioner complains of and maintains that they have sufficient safety and traffic control measures.  Respondent, therefore, argues that its determination is not an abuse of discretion and should be upheld.

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 A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  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 A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Cassin, et al., 32 id. 373, Decision No. 12,859).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  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 A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

Here, respondent’s transportation policy provides for transportation to students in grades three through six who reside one mile or more from the school they attend.  Respondent claims, and petitioner does not dispute, that petitioner’s son lives less than one mile away from the school.  Accordingly, I am unable to find that petitioner’s son qualifies for transportation based on distance alone.

Nor am I able to conclude that respondent’s denial of petitioner’s request for a hazard variance is unreasonable.  The record indicates that respondent considered safety factors.  Respondent viewed satellite images of Google maps and a traffic safety map provided by the New York City Department of Transportation (“DOT”) and determined there were sufficient school crosswalks and traffic signals at the two intersections petitioner complained of.  Respondent also provided an alternative route to avoid those intersections.  While petitioner disagrees with respondent’s decision, she offers nothing to refute respondent’s conclusion.  On the contrary, with respect to her challenge to the intersection at 69th Street and Eliot Avenue, she submits a school traffic safety map issued by the DOT which shows, in fact, that there are crosswalks and a traffic signal at that 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On the record before me, I find that petitioner has failed to meet her burden.

Finally, petitioner claims her son is entitled to transportation because respondent provided transportation for her neighbor’s son to attend the same school during 2008-2009 and 2009-2010 school years.  Respondent acknowledges that such transportation was provided but explains that, since granting the transportation requests for petitioner’s neighbor based on distance, respondent’s Office of Pupil Transportation acquired responsibility for determining student distance eligibility and, by using more advanced mapping technology, concluded that the student’s walking route to the school is less than one mile.  Petitioner does not dispute this.  Petitioner’s reliance on respondent’s erroneous provision of transportation to another student in prior years is misplaced.  If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of Wells, 49 Ed Dept Rep 443, Decision No. 16,076). Petitioner, therefore, has failed to establish that respondent’s determination in this instance is unreasonable or an abuse of discretion.

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