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Decision No. 16,941

Appeal of NADYA KRAVCHENKO, on behalf of her daughter LISA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,941

(August 4, 2016)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth C. DeGori, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination 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, Lisa (“the student”), attended third grade at P.S. 50 Frank Hankinson School (“P.S. 50” or “the school”) in Staten Island, New York during the 2015-2016 school year.  According to the record, the student received school bus service during the 2014-2015 school year.  However, she became ineligible for school bus service when she entered third grade in the 2015-2016 school year.

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.  Parents may seek a variance based on hazardous conditions along students’ walking route to school or to a bus stop.

For the 2015-2016 school year, respondent determined that petitioner’s daughter lives less than a mile from P.S. 50 and, consequently, was eligible for a half-fare Metro Card.  On or about June 1, 2015, petitioner applied for a hazard variance to obtain school bus transportation by submitting a Hazard Evaluation Request for the 2015-2016 school year to respondent’s Office of Pupil Transportation (“OPT”) on the basis that hazardous conditions exist along the walking route to her daughter’s school.  Specifically, petitioner requested that respondent continue to provide school bus service for her daughter, alleging that large portions of the sidewalk were missing on her route to school which made the walk dangerous. 

OPT completed a site visit and concluded that there were no hazards on the route.  By letter dated September 21, 2015, respondent denied petitioner’s hazard variance request and notified her of the option of receiving a half-fare Metro Card for her daughter.  This appeal ensued.

Petitioner alleges that her variance request should have been granted because the route from her house to the school is hazardous.  Petitioner also maintains that a school bus continues to pick up other children in her neighborhood and there would be no added expense for respondent to pick up her daughter.  Finally, petitioner contends that OPT’s distance calculation is erroneous. 

Respondent asserts that petitioner has not met her burden of proof and has not demonstrated that its determination regarding her hazard request and its distance calculation was arbitrary, capricious, or unreasonable.  Respondent maintains that its determinations are, in all respects, proper.

I must first address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed, in part, 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).

The issues raised in this appeal, in part, relate to petitioner’s request for a hazard variance to receive transportation for the 2015-2016 school year which has ended, rendering the matter academic.  Moreover, variance requests in respondent’s district are submitted annually (Appeal of Batov, 52 Ed Dept Rep, Decision No. 16,377; Appeal of Colletta, 51 id., Decision No. 16,363).  Consequently, that part of the appeal pertaining to the 2015-2016 variance request is moot.

Even if petitioner’s challenge regarding the hazard variance was 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 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).  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 this record, I am unable to conclude that respondent’s denial of petitioner’s request for a variance based on a hazard was arbitrary, capricious, unreasonable or an abuse of discretion.  The record indicates that OPT investigated the streets between petitioner’s home and the school, including Hyland Boulevard to Ithaca Street, and determined that there was a safe walking path from petitioner’s home to school and that there are no hazardous conditions along that route that would warrant the issuance of a hazard variance.  An affidavit of OPT’s chief of staff indicates that “we performed a site visit to verify that there were no hazards on the student’s route to school or public transportation.”  OPT’s chief of staff also avers that petitioner was provided with an alternate route for the student to use to travel to school which avoided the area petitioner complained about in her hazard variance request.  The alternate route includes crosswalks, traffic lights and speed reducers.  While petitioner disagrees with respondent’s position and is not satisfied with the optional route provided by respondent, she failed to provide sufficient evidence in her petition to refute respondent’s position in this regard.  The petition contains no allegations or evidence of hazard regarding the alternate route offered by respondent.[1]  Thus, petitioner’s claim regarding the denial of her request based on hazard must fail.

Petitioner also challenges, for the first time in this appeal[2], respondent’s distance calculation of both the original and alternate route between petitioner’s home and the school, asserting that respondent’s measurement points are erroneous and that she actually lives more than one mile from P.S. 50.  Specifically, she argues that the school has more than one front entrance, that respondent calculated the distance from an entrance that her daughter does not use and that, had respondent measured from a different entrance, the distance would have exceeded one mile, qualifying her daughter for school bus service. 

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607).

OPT’s chief of staff avers that it uses the Department of City Planning’s Linear Integrated Ordered Network (“LION”) street map to determine walking routes between a student’s home and school.  This street map uses the street centerline directly in front of the home address and the school’s front entrance location as start and end points.  LION established that the distance between the student’s home and school are less than one mile for both routes.  Respondent includes an explanation that uses school front entrance locations “at a point perpendicular to the street centerline.”  Thus, it appears that it uses the entrance nearest to the point where the measured route ends, regardless of the actual entrance a student chooses to use.  Petitioner argues that, if respondent measured the distance to the main entrance that her child uses, the distance would exceed one mile.  However, Commissioner’s decisions have upheld measurement points in other similar situations and I am unable to conclude that respondent’s use of the front entrance first arrived at on the route provided is improper or unreasonable (see e.g. Appeal of Yavno, 55 Ed Dept Rep, Decision No. 16,884). 

Petitioner also submits a Google map to challenge respondent’s calculations.  However, other than her challenge to the entrance used, she fails to explain or demonstrate why her map should be substituted for respondents LION calculation – DOE’s standard measurement tool – or why respondent’s use of the LION calculation is arbitrary, capricious or unreasonable (Appeal of Yavno, 55 Ed Dept Rep, Decision No, 16,884; Appeal of Zheng, 54 id. Decision No. 16,776).  On this record, I find that petitioner has not met her burden of proof with respect to this claim, which must be dismissed. 

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




[1] As noted above, I have not considered those portions of the reply relating to the alternate route as they contain new allegations and materials which should have been set forth in the petition.


[2] Although petitioner raises this issue for the first time in this appeal, respondent has had a full and fair opportunity to respond to it.