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Decision No. 16,247

Appeal of THOMAS HAGGERTY, SR., on behalf of his son THOMAS, from action of the New York City Department of Education regarding transportation.

Decision No. 16,247

(June 8, 2011)

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

KING, Jr., Acting Commissioner.--Petitioner challenges the decision of the New York City Department of Education (“respondent”) to deny his request for transportation.  The appeal must be dismissed.

Petitioner is the parent of a child in grade three at P.S. 229 (the “school”) in Queens, New York.  Petitioner resides less than a mile from the school.  At some point, petitioner was advised that transportation would no longer be provided to his son.  As a result, petitioner applied for a hazard variance, which was denied by letter dated October 25, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 23, 2010.

Petitioner argues that the denial of transportation based on distance and grade is a technicality and arbitrary.  Petitioner maintains that the distance between his home and school was initially measured by respondent at over a mile.  In addition, petitioner contends his request for a hazard variance should have been granted because the route between his home and school is unsafe.  Petitioner alleges that he was granted a hazard variance in the past.  Finally, petitioner contends that medical studies show that children do not have the capacity to cross streets or take public transportation.

Respondent asserts that petitioner resides .8 miles from the school and, therefore, does not qualify for transportation under Chancellor’s regulation A-801.  Respondent maintains that, in investigating petitioner’s variance request, it properly determined that the route between petitioner’s home and school is not hazardous.  Respondent contends that Thomas received transportation in the past, not due to hazardous conditions, but because he attended grades kindergarten through two and was eligible based on the distance requirement for those grades.  Respondent maintains that, to the extent that the petition can be construed as challenging Chancellor’s regulation A-801, it is untimely.  Finally, respondent contends that it is constrained by budget limitations in granting hazard variances.

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 has a transportation policy (Chancellor’s regulation A-801) of providing transportation to students in grades three through six who reside one mile or more from the school they attend.  The petition does not seek an order setting aside Chancellor’s regulation A-801, so the only issue before me is respondent’s application of that regulation in this case.  Respondent determined that Thomas resides less than a mile from P.S. 229.  Although petitioner claims that respondent initially measured the distance between his home and school as greater than a mile, he presents no evidence to this effect, nor does he present any evidence that the distance between his home and school is other than .8 miles.  Accordingly, I am unable to find that petitioner’s son qualifies for transportation based on distance alone (seeAppeal of Kates, 49 Ed Dept Rep 138, Decision No. 15,980).

Nor am I able to find that respondent’s denial of petitioner’s request for a hazard variance was unreasonable.  Respondent maintains that it conducted a site visit along Thomas’s walking route to school and found no hazardous conditions present.  Petitioner offers nothing but unsubstantiated allegations to the contrary.  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).  I find that petitioner has failed to meet his burden.

Finally, petitioner contends that a variance should be granted because Thomas received school bus transportation in the past.  However, in prior years Thomas was attending grades kindergarten through two and met the shorter distance eligibility requirements for those earlier grades.  As discussed above, upon entering third grade, he no longer is eligible.

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