Appeal of O.E., on behalf of her daughter, P.O., from action of the New York City Department of Education regarding transportation.

Decision No. 16,577

(November 25, 2013)

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

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

Petitioner’s daughter, P.O., attended third grade at the Explorer Excel Charter School in Queens, New York during the 2012-2013 school year. According to the record,

P.O. was receiving school bus service during the 2011-2012school year, however she became ineligible for DOE bus service when she entered third grade. Respondent’s transportation policy (“Chancellor’s regulation A-801”)provides free transportation, either by school bus or public transit, to students in kindergarten through grade two who live one-half mile or more from the school they attend. Chancellor’s regulation A-801 also provides free transportation for students in grades three through six if they reside one mile or more from school. Students in grades three through six residing one-half mile or more but less than one mile from school are eligible for a half-fare Metro Card for public transportation.

According to respondent, in determining whether a student is eligible for free transportation based on grade level and distance, respondent’s Office of Pupil Transportation (“OPT”) uses software that calculates the distance from the school to the edge of the city block on which the child lives. Parents who disagree with OPT’s distance determination may request a variance which authorizes transportation for a student who would not normally be eligible. Upon receipt of such a variance request, OPT will calculate the shortest door-to-door walking route which measures the distance from the front door of the student’s home or building and ends at the front door of the school.

On or about September 28, 2012, petitioner applied for a variance by submitting a Distance Evaluation Request for the 2012-2013 school year to OPT. Respondent indicates that, in making a determination on this request, OPT measured the distance from petitioner’s home to the school and found that P.O.’s walking route to school was 0.76 miles; less than the one mile or more required to qualify

P.O. for free transportation under Chancellor’s regulation A-801. By letter dated October 4, 2012, respondent denied petitioner’s request for a variance, stating that P.O. was ineligible for any full-fare transportation based on grade and distance but that P.O. may request that the school provide a half-fare Metro Card. This appeal ensued. Petitioner’s request for interim relief was denied on December 20, 2012.

Petitioner seeks school bus service for P.O. based on her assertions that P.O. requires two buses to travel from her home to school and cannot ride the bus by herself. Petitioner also contends that it is extremely difficult for her to accompany P.O. to school because she must transport her other two children to daycare and then commute to work herself. Petitioner asserts that the lack of transportation for P.O. will have an adverse effect on petitioner’s job and will result in P.O. being late to school each day and missing out on her academic work. Petitioner also alleges that she has medical issues and must attend to her baby who needs a good deal of attention to stay healthy.

Respondent contends that the appeal is time-barred and has not been properly served. Respondent also states that its actions were neither arbitrary nor capricious. Respondent notes that petitioner did not submit a medical variance request, the purpose of which would be to determine whether the student, rather than the parent, has an incapacitating medical condition. Respondent indicates that medical variances are not available for the medical condition of a parent. Respondent also includes a statement in its answer that petitioner based her request to OPT for a variance on allegedly hazardous conditions along P.O.’s walking route.

I will first address several procedural issues. Respondent contends that the petition should be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 2

NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457,Decision No. 15,914; Appeal of Williams, 48 id. 343,Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451,Decision No. 15,912; Appeal of Bruning and Coburn-Bruning,48 id. 325, Decision No. 15,872). Respondent’s denial of petitioner’s request for a variance was dated October 4,2012. As the record does not indicate when petitioner actually received the determination, five days are afforded for mailing, excluding Sundays and holidays, making the date of receipt by petitioner October 11, 2012. Petitioner was therefore required to commence this appeal by November10, 2012. Respondent states that it was served with the petition on November 21, 2012. The petition was filed withmy Office of Counsel on November 30, 2012. Petitioner claims that her appeal was delayed due to Hurricane Sandy, which she states caused electrical power to shut down, made her use of the computer impossible and also affected the transportation system. Respondent indicates in its answer that the landfall of Hurricane Sandy occurred on October29, 2012, and acknowledges that power outages and public transportation stoppages were caused by the hurricane. I also note that, due to the hurricane, the Governor issued an Executive Order declaring a disaster emergency in all counties of the State. In addition, applicable Executive Orders of the Governor temporarily suspended relevant statutes and regulations establishing limitations of time for the filing or service of “any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion” where the limitation of time ended between October 26, 2012 and December 25, 2012. Under these circumstances, I will not dismiss the appeal as untimely.

However, 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 3

No. 15,937; Appeal of Embro, 48 id. 204, Decision No.15,836). Petitioner sought a transportation variance for

P.O. for the 2012-2013 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 for improper service. 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 (8NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530,Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). Petitioner’s affidavit of service indicates that the petition was served by mail. Respondent confirms that the petition was served upon respondent by mail. Consequently, in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed for improper service.

Even if the appeal were not dismissed on procedural grounds, it 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]; Sands Point 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 aren ot 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 Rep380, 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, 48id. 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 4

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).

As noted above, in accordance with Chancellor’s regulation A-801, respondent provides free transportation by school bus or public transit to students in grades three through six who reside one mile or more from the school they attend. Respondent determined that P.O. resides 0.76miles from the Explorer Excel Charter School and therefore is not entitled to school bus transportation, as petitioner requests, but is only entitled to a half-fare Metro Card. Petitioner does not present any evidence that the distance between her home and the school is other than 0.76 miles. Accordingly, respondent properly determined that, based on grade and distance, P.O. did not qualify for school bus transportation. Thus, I cannot conclude that respondent’s denial of petitioner’s variance request based on grade and distance was unreasonable or an abuse of discretion.

In addition to respondent’s consideration of petitioner’s variance request based on distance disagreement, the record includes an affidavit from the chief of staff of OPT which states that “[p]etitioner based her request for a variance on allegedly hazardous conditions along the walking route between [p]etitioner’s home and Explorer Excel Charter School ...” However, the record does not otherwise indicate that petitioner alleged a hazard in her variance request nor does it indicate that petitioner offered any evidence to support such an allegation or that OPT investigated or made a hazard variance determination. While not entirely clear, petitioner now appears to allege safety concerns, particularly that P.O. “needs two buses from [petitioner’s]house before she can get to school” and that P.O. “cannot be in the bus by herself.” Respondent denies the allegation that P.O. cannot ride the bus alone and denies the statement of a medical doctor, which petitioner submitted with her petition, that P.O. “is too young to walk independently to school.” In an appeal to the 5

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 Rep523, 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). To the extent that petitioner attempts to allege that she is entitled to a variance based on the existence of a hazard along P.O.’s walking route to school, she must clearly allege and prove that a hazard exists, such as offering evidence which would demonstrate, for example, “unsafe traffic conditions, traffic control measures, dangerous crossings and areas that are impassable to pedestrians” (see e.g., Appeal of Paesano-Vitale, 52 Ed Dept Rep, Decision No. 16,445). In any case, on the record before me, there is no evidence that petitioner ever submitted a variance request to respondent based on hazard or that respondent considered and denied any such request. Accordingly, I find that petitioner has failed to carry her burden of proof on this issue.

Finally, as part of her appeal, petitioner submitted documentation describing her difficulties in accompanying

P.O. to school while also transporting her other two children to daycare and commuting to work. Petitioner also submitted evidence of her own medical issues. While I sympathize with petitioner’s situation, on the record before me, I find that petitioner has failed to meet her burden of proof.

THE APPEAL IS DISMISSED. END OF FILE