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Decision No. 16,281

Appeal of MARY-ELLEN NARANJO, on behalf of her son JOSHUA AVILES, from action of New York City Department of Education regarding transportation.

Decision No. 16,281

(August 8, 2011)

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

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

Petitioner is the mother of two children who attended first grade and fourth grade, respectively, at P.S. 215 (the “school”) during the 2010-2011 school year.  According to petitioner, although her son in first grade received school bus service, her son Joshua, in fourth grade, was no longer eligible for such transportation.  As a result, petitioner applied for a transportation variance for Joshua on September 16, 2010, which respondent denied on October 26, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 30, 2010. 

Petitioner argues that respondent should have granted her variance request because the path that her son must walk to school is “unsafe” and “full of construction.”  Additionally, petitioner alleges that she does not feel safe allowing her son to go to school alone.  She also claims that, when her son was accepted into P.S. 215’s gifted and talented program, she was assured he would receive school bus transportation.  Finally, petitioner alleges that the half-fare MetroCard that her son is eligible for is “of no use” because it is only accepted on buses and Joshua would “have to take a train.”

Respondent asserts that petitioner lives .8 mile from P.S. 215 and that, based on grade and distance, Joshua does not qualify for transportation under its transportation policy.  Respondent also contends that petitioner sought a variance based only upon “emergency circumstances or parents having joint custody” and did not raise safety concerns, construction concerns or acceptance into the gifted and talented program.  Respondent maintains that its determination was in all respects proper and was neither arbitrary nor capricious.

The appeal 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner sought a transportation variance for Joshua for the 2010-2011 school year.  As noted, her request for interim relief was denied and the school year has concluded.  Consequently, the appeal is moot.

The appeal must also 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 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).

Respondent’s transportation policy does not provide for school bus service to students in grades three through six who reside less than one mile from the school that they attend.  Instead, those students may receive half-fare MetroCards for use on public bus transportation.  Respondent claims, and petitioner does not dispute, that petitioner resides less than one mile away from P.S. 215.  Accordingly, respondent properly determined that, based on grade and distance, Joshua did not qualify for school bus transportation.

Moreover, I cannot conclude that respondent’s denial of petitioner’s variance request was improper or unreasonable.  Pursuant to respondent’s transportation policy, petitioner applied for a variance to obtain school bus service for Joshua based upon “emergency circumstances or parents having joint custody.”  In support of her variance request, petitioner stated only that she had one child eligible for school bus service and one child not eligible and that “I have to take two kids to school [and] then work.”  Respondent indicated that, in deciding to deny the variance, its Office of Pupil Transportation determined that petitioner did not allege any condition rising to the requisite level of severity to warrant the applied for exception.  Petitioner does not challenge that determination. 

Instead, petitioner raises, for the first time, that a variance should be granted due to safety concerns.  Respondent contends that petitioner should not be permitted to challenge its determination based on grounds she did not raise in the variance request that it considered.  Respondent is correct.  Petitioner’s variance request was not based on hazard and her claim must be dismissed. 

In any case, petitioner has failed to prove that a variance is warranted on safety grounds.  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).  Petitioner asserts in conclusory fashion that Joshua has to walk in an area “full of construction.”  As respondent correctly maintains, petitioner’s claim is vague and lacks specificity sufficient to establish her allegation. 

Petitioner asserts generally that she believes it is unsafe for a nine year old to take public transportation.  This argument also is unpersuasive.  Use of existing public transportation instead of duplicating routes by school buses is one way of reducing the costs of pupil transportation and is neither illegal nor unreasonable (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).

Petitioner also states that it is “difficult” for her to put one child on the bus while the other child must arrive at school by alternate means.  However, students in different grades are not in “like circumstances” and city school districts may establish transportation policies that make distinctions by grade level (Appeal of W.H., 49 Ed Dept Rep 227, Decision No. 16,009).

On the record before me, I find that petitioner has failed to meet her burden.