Appeal of L.E., on behalf of her son E.M., from action of the New York City Department of Education regarding transportation.

Decision No. 17,122

(July 12, 2017)

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

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

During the 2016-2017 school year, petitioner’s son, E.M. (the “student”), attended sixth grade at MS 447 in District 15 the (the “school”) located at 345 Dean Street on a block between Dean Street and Pacific Street in Brooklyn (the “Dean Street” address).  Respondent’s transportation policy (Chancellor’s regulation A-801[2][2.2]) provides 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. 

In June 2016, petitioner submitted a written request for transportation to respondent’s Office of Pupil Transportation (“OPT”).  In September 2016, OPT denied petitioner’s request.  Petitioner appealed the denial by completing a ‘Ðistance Evaluation Request.’  The request included an email from the school’s parent coordinator stating that “all students enter MS 447 through the 500 Pacific Street entrance.”  The request also included maps calculated by petitioner through Google Maps, Bing Maps, and Mapquest, using a route from petitioner’s residence to the school’s Pacific Street entrance, indicating a distance of 1.1 miles.

By letter dated October 18, 2016, OPT informed petitioner of its determination that the student resided 0.974 miles from school and was, therefore, ineligible for full-fare transportation by grade and distance. OPT explained that it measures the shortest walking distance between the home address and the school’s front entrance location, and that the distance was ascertained using a street map called “Linear Integrated Ordered Network” (“LION”) that is maintained by the New York City Department of City Planning.  OPT explained that LION is used by many New York City municipal departments and is respondent’s official map for distance determinations.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 7, 2016.

Petitioner contends that, because the middle school students enter the school at 500 Pacific Street, OPT should use that address to calculate the distance between the student’s house and the school.  She argues that respondent’s failure to consider the distance to the actual entrance used is arbitrary and capricious.  She requests a determination that the student lives more than one mile from the school.

Respondent argues that its distance determination was consistent with its transportation policy and, therefore, is not arbitrary and capricious.

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 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).  This appeal relates to the eligibility of petitioner’s son for transportation pursuant to Chancellor’s regulation A-801(2)(2.2), which provides free transportation for students in grades three through six who live one mile or more from school.[1]  It appears from the record that petitioner’s son was a sixth grade student in the 2016-2017 school year, and there is no evidence in the record that the student has been retained in grade.  The 2016-2017 school year has ended and, therefore, E.M.’s eligibility for transportation, based on Chancellor’s regulation A-801(2)(2.2) as a sixth grade student is moot. 

Even if the appeal was not dismissed on procedural grounds, it would be dismissed on the merits.  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).

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).

Petitioner’s challenge to respondent’s use of the school’s Dean Street address for distance measurement purposes is without merit.  Petitioner contends that the student does not use the Dean Street entrance and that, if distance was calculated from the student’s residence to the entrance that he uses on Pacific Street, it would exceed one mile and the student would be eligible for transportation.  However, as noted above, school districts have broad discretion in determining the measuring points for determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep, Decision No. 15,829; Appeal of Fleming, 43 id. 391, Decision No. 15,028; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Measurement points in similar situations have been upheld, such as in Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636, where petitioner alleged that it was unreasonable to measure distance from an entrance that her son could not use because the door was “locked or never used for entrance into the school.”  Similarly, Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345, held that:

[T]he fact that students may not use the library door to enter the school does not, by itself, preclude respondent from utilizing this door as a measurement point for transportation purposes....

An affidavit by OPT’s chief of staff states that respondent’s “policy is that location used in assessing transportation eligibility is the school’s front entrance location” (Dean Street).  Petitioner does not allege, and there is nothing in the record to establish, that respondent’s policy is being unfairly or inconsistently applied. Accordingly, I am unable to conclude that respondent’s transportation determination was arbitrary, capricious, unreasonable or an abuse of discretion.  

THE APPEAL IS DISMISSED.

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