Appeal of IRIS ALLEN, on behalf of her daughter CASSIDY, from action of the New York City Department of Education regarding transportation.

Decision No. 16,970

(September 9, 2016)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Christopher Ferreira, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny her request for transportation for the 2015-2016 school year.  The appeal must be dismissed.

Petitioner’s daughter, Cassidy, attended seventh grade at P.S. 232Q (“school”), located in Queens, New York, during the 2015-2016 school year.  Prior to entering seventh grade, petitioner’s daughter received school bus transportation pursuant to respondent’s transportation policy (Chancellor’s regulation A-801) which provides for free transportation, either by school bus or public transit, to students in grades three through six who live one mile or more from the school they attend.  However, upon entering the seventh grade, the student was no longer eligible for school bus service, based on her grade and the distance to school from her home.  Instead, she received a full-fare MetroCard for transportation to school.

According to respondent’s transportation policy, students not otherwise entitled to school bus transportation may annually seek a variance to receive such transportation, based on hazardous conditions along the student’s walking route to school or to a bus stop.  Accordingly, petitioner submitted a 2015-2016 Hazard Evaluation Request dated June 26, 2015 to respondent’s Office of Pupil Transportation (“OPT”).  The reasons noted by petitioner on the form for the request included: no sidewalk or shoulder along the route at Point Breeze Place between Mott Avenue and Baywater Court and hazardous intersections at Point Breeze Place and Plunkett Avenue, as well as at Mott Avenue at the intersections of Dunbar Street, Egmont Place, Faber Terrace, Bay 28 Street, Dicken Street, Eggert Place, Gipson Street and McBride Street.  In a separate letter to OPT, dated June 25, 2015, petitioner asserted that her daughter’s route to school is unsafe because:

[Petitioner’s daughter’s] commute to her school along the A train line or Q22 bus would involve her crossing several known gang territorial lines that put her in danger.  . . .

In addition, due to several shelters, social programs, and transitional housing programs located in Far Rockaway, there is a high homeless and sexual offender population that I encounter daily along the A train line and along the streets of Far Rockaway and I fear for her safety.

Petitioner further asserts that her daughter would be required to walk past “several abandon [sic] and destitute structures to travel to and from school each day.”

By letter dated September 11, 2015, OPT denied petitioner’s hazard variance request, stating in part that “[a] site visit was completed and no hazards were found on the pupil’s route to school or public transportation.” This appeal ensued.

Petitioner contends that her daughter’s route to school is unsafe, that the duration of her trip is onerous, and that respondent’s hazard evaluation was insufficient and conducted in bad faith.  Petitioner asserts that respondent’s denial of her transportation request is unreasonable.  Petitioner sets forth several additional claimed hazards in her petition, including weather, road congestion and “human factors.”  Petitioner asserts that her younger daughter – who attends fourth grade at P.S. 232Q – receives school bus service and that, because there would be no additional cost if Cassidy took that bus, petitioner’s transportation request must be granted.  As relief, petitioner seeks an order setting aside respondent’s denial of her variance request and directing respondent to provide Cassidy with school bus service “in the 7^th and 8^th grades.”

Respondent contends that its determination is neither arbitrary, capricious nor an abuse of discretion.  Respondent maintains that petitioner has not established a clear legal right to the relief sought.

I will first address several procedural matters.  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 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 is challenging respondent’s denial of her request for school bus transportation, based on hazardous conditions, for the 2015-2016 school year.  The 2015-2016 school year has ended and in respondent’s district, variance request are submitted annually (Appeal of Kravchenko, 56 Ed Dept Rep, Decision No. 16,941; Appeal of Abeido, 55 id., Decision No. 16,859; Appeal of Batov, 52 id., Decision No. 16,377).  Therefore, petitioner’s challenge to respondent’s denial of her 2015-2016 hazard variance request is academic.

To the extent that petitioner seeks a transportation variance for her daughter Cassidy for the 2016-2017 school year, the appeal is premature.  Facts and circumstances underlying a transportation variance request based on alleged hazards may change with respect to the 2016-2017 school year and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Belafante, 53 Ed Dept Rep, Decision No. 16,524; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

Although the appeal is dismissed on procedural grounds, I note for the benefit of the parties that 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, petitioner has not clearly established 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 conducted a Hazard Area Evaluation on July 7, 2015 and July 8, 2015 which consisted of site visits where the investigator used a point system to determine whether hazards existed.  The investigator evaluated a number of criteria including, but not limited to, traffic conditions,[1] whether there are stop signs, traffic signals, or other traffic control devices at the site and whether there are dangerous railway crossings at the site.  An affidavit of OPT’s chief of staff avers that OPT investigated the streets between petitioner’s home and the school and the streets identified in petitioner’s hazard variance request and determined that no hazardous conditions exist that would warrant the issuance of a hazard variance. 

Petitioner also claimed that train and bus routes go through areas of gang activity, homeless individuals or sex offenders.  However, petitioner does not assert that that the student walks through such areas but claims only that the train or buses travel through those areas.  In any event, respondent’s transportation policy does not consider the presence of “unsavory persons” on a route to be grounds for a hazard variance.

Petitioner submits data from New York City’s Department of Transportation and Police Department regarding vehicle and pedestrian collisions/fatalities on some of the streets on Cassidy’s route.  However, petitioner does not provide such information relating to specific intersections that the student must cross or street blocks over which she walks.  Thus, I cannot conclude from the general data submitted by petitioner that the student’s route is hazardous.

Although the record supports respondent’s determination that no hazardous conditions existed at those streets that were observed by OPT, I note that the record does not contain evaluation information regarding two of the intersections identified by petitioner in her Hazard Evaluation Request.  Respondent does include an evaluation of several other intersections not identified by petitioner and it is unclear whether respondent was offering an alternate walking route along such intersections.  I also note that, in her petition, petitioner claims respondent did not evaluate the locations of the train or public bus stops that her daughter would use; yet those locations were not identified or included in petitioner’s Hazard Evaluation Request.  Given both parties’ lack of clarity in connection with the hazard evaluation request, I urge them to more clearly communicate with respect to any future requests – both at the time of the request submitted by petitioner and when respondent communicates the results of the evaluation.

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

THE APPEAL IS DISMISSED.

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