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Decision No. 17,037

Appeal of NATALIYA GAVLIN, on behalf of her daughter KAILIYA, from action of the New York City Department of Education regarding transportation.

Decision No. 17,037

(January 30, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Lauren Almquist Lively, Esq. of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her daughter transportation for the 2013-2014 school year.  The appeal must be dismissed. 

 Petitioner is a resident in respondent’s district and is the parent of Kailiya Gavlin (“the student”), who attended third grade during the 2013-2014 school year in P.S. 186 (“the school”), a public school in respondent’s district.  In accordance with Chancellor’s Regulation A-801, respondent provides full-fare transportation, including yellow bus service, to students in kindergarten through second grade who live more than one-half mile from the school they attend.  Students in grades three through six are only eligible for full-fare transportation, either by yellow bus service or public transportation, if they live more than one mile from the school they attend.

In January 2014, petitioner was notified by respondent’s Office of Pupil Transportation (“OPT”) that her daughter was no longer eligible for yellow bus service, since she was in the third grade and lived less than one mile from her school.  OPT further notified petitioner that the student had become ineligible for yellow bus service once she completed second grade at the end of the 2012-2013 school year; however, OPT had inadvertently permitted the student to continue using yellow bus service through January 2014.

Petitioner applied for a hazard variance on behalf of the student for the 2013-2014 school year, alleging that hazardous conditions exist along the student’s walking route to school and requested that respondent continue to provide yellow bus service to the student.  By letter dated March 3, 2014, OPT denied petitioner’s variance request for the 2013-2014 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 17, 2014.

Petitioner alleges that her request for a variance should have been granted because of the hazardous conditions that exist.  Petitioner also requests that respondent continue to provide yellow bus service for the student for the remainder of the 2013-2014 school year and make “a determination that the student is eligible for yellow bus service transportation to school for as long as she attends P.S. 186.”  

Respondent contends that petitioner failed to meet her burden of proof and that its determination was rational, not arbitrary or capricious, and in all respects proper.

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).  Since the 2013-2014 school year has ended, petitioner’s request for transportation during that school year is academic.  While petitioner requests an order directing that respondent grant a hazard variance that continues in effect as long as her daughter attends P.S. 186, variance requests in respondent’s district must be submitted annually (Appeal of Abeido, 55 Ed Dept Rep, Decision No. 16,859; Appeal of Hernandez, 52 id., Decision No. 16,374).  The appeal must therefore be dismissed as moot.

However, 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 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 yellow school bus service to students attending grades three through six who reside less than one mile from the school they attend. Respondent asserts that petitioner resides less than one mile away from P.S. 186.  Petitioner does not allege that OPT’s measurement of the distance between her home and the school was in error, but rather challenges respondent’s denial of her request for a hazard variance.

On this record, petitioner has not met her burden of proving that respondent’s denial of her request for a hazard variance was unreasonable. Petitioner alleges that inherent dangers exist on the roads and passageways along the student’s walking route to school such as heavy traffic, unsafe traffic speed, occurrence of traffic accidents, narrow passages overgrown with vegetation, and inadequate clearing of passageways during the winter months.  It appears from the record that OPT recommended a different walking route than the one initially suggested by petitioner.  OPT then conducted a site visit along the recommended walking route to the school and found no hazardous conditions present.  After a meeting with petitioner at which she raised a specific concern about two lamp posts that allegedly blocked the sidewalk, OPT’s Chief of Staff directed that a second site visit be conducted to investigate the two locations at issue.  The field investigator determined that the two locations were not hazardous.  While petitioner disagrees with respondent’s position, petitioner offers nothing but conclusory allegations to the contrary

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).  While I appreciate petitioner’s concern for her daughter’s safety, I find that petitioner has failed to meet her burden.

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