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Decision No. 16,276

Appeal of PAULA COUNTRYMAN, on behalf of her son HENRY, from action of the New York City Department of Education regarding transportation.

Decision No. 16,276

(August 8, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Mark Galen Toews, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) denying her son school bus transportation.  The appeal must be dismissed.

Petitioner and her son are residents of respondent’s school district.  Petitioner’s son is a seventh grader at respondent’s Scholars’ Academy (Q323) which is approximately 5.1 miles from petitioner’s residence.  Pursuant to regulations of the New York City Chancellor (“Chancellor’s regulations”), petitioner’s son is ineligible for school bus service, unless entitled to a variance in accordance with the regulations.

On May 24, 2010, petitioner requested a variance from respondent’s Office of Pupil Transportation (“OPT”) to permit her son to receive school bus service for the 2010-2011 school year, asserting insufficient access to public transportation.  OPT denied the request by letter dated August 26, 2010,  stating that pupils in grades seven and above are eligible for MetroCards only and that adequate public transportation was available to her son on two public bus lines.   This appeal ensued.  Petitioner’s request for interim relief was denied on October 1, 2010. 

Petitioner contends that her son is entitled to a variance and school bus transportation based upon insufficient access to public transportation because he must walk 1.7 miles from home to access public transportation to school.

Respondent contends that adequate public transportation is available and also that, as part of its variance review process, OPT determined that no bus route could be created to provide transportation for the student without violating Chancellor’s regulations.  Respondent asserts that OPT applied the proper standard in denying petitioner’s request for a variance.

The appeal must be dismissed.  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). 

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).  A board of education may provide passes for transportation on public transit facilities where transportation between home and school can be provided in that manner (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859, Appeal of Lavin, 32 id. 249, Decision No. 12,821; Appeal of Kelley, 18 id. 507, Decision No. 9,943).  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).

Pursuant to Chancellor’s regulation A-801, students in grades 7-12 who reside 1.5 miles or more from school are not eligible for school bus service but, instead, are eligible for full-fare student MetroCards for use on public transportation to school.  Petitioner does not dispute that she resides over 1.5 miles from her son’s school.  The Chancellor’s regulations also provide for a variance to permit the use of existing school bus service where public transportation is inadequate or unavailable.  However, Chancellor’s regulation A-801, Section 1 (4.1) also prescribes that no contract school bus route may exceed a total one-way route of five miles through all stop points.

Petitioner claims that requiring her son to walk 1.7 miles to access public transportation constitutes an “undue hardship” and, thus, renders the public transportation inadequate and unavailable, entitling her son to school bus service.  Respondent claims that the available public transportation is adequate.  Moreover, respondent asserts that no school bus route could be created to serve petitioner’s son which would not exceed five miles one-way, inclusive of all stops, in violation of the Chancellor’s regulations.  Petitioner submits no reply denying that assertion.

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).  Respondent’s determination to provide petitioner’s son with a full-fare MetroCard comports with the Chancellor’s regulations, which are not challenged in this appeal.  Based on the foregoing, I find petitioner has failed to establish a clear and legal right to school bus transportation for her son and there is no basis on which to substitute my judgment for that of respondent.