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Decision No. 17,218

Appeal of MIRIAM GASSEL and AARON MENDELSOHN, on behalf their daughter CLAIRE MENDELSOHN, from action of the New York City Department of Education regarding transportation.

Decision No. 17,218

(October 13, 2017)

Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the New York City Department of Education (“respondent”) to deny their request for transportation on behalf of their daughter (“the student”).  The appeal must be dismissed.

Petitioners are the parents of the student, who attended first grade at the Herschel School, a nonpublic school (“Herschel”), during the 2015-2016 school year.  Petitioners are divorced and both reside within the City School District of the City of New York.  On February 1, 2016, petitioners submitted a variance request to respondent for transportation to Herschel for the 2016-2017 school year.  In this request, petitioners indicated that they were divorced with joint legal and physical custody of the student and requested yellow bus transportation for the student at both petitioner Mendelsohn’s residence and petitioner Gassel’s residence.  By letter dated February 2, 2016, respondent’s Office of Pupil Transportation (“OPT”) denied petitioners’ request because their divorce decree indicated that the student only lived with one parent, petitioner Gassel.  This appeal ensued.  Petitioners’ request for interim relief was denied on March 21, 2016. 

Petitioners contend that they share joint legal and physical custody of the student pursuant to a divorce decree and, therefore, respondent is required to provide yellow bus transportation to both petitioner Gassel and petitioner Mendelsohn’s residences.  Petitioners seek an order reversing respondent’s decision and granting petitioners’ variance request for the provision of yellow bus transportation to both petitioners’ residences.[1]

Respondent contends that, subsequent to the filing of this appeal, it determined that petitioners shared joint custody of the student and that the student had two primary residences.  Respondent further determined that the student was ineligible for yellow bus transportation to and from petitioner Gassel’s residence and instead offered to provide the student with full-fare MetroCard service to and from this residence.[2]

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).  Petitioners challenge respondent’s denial of their request for a variance for transportation for the 2016-2017 school year.  The 2016-2017 school year has ended; therefore, the issue of transportation for that year is moot (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

Even if the appeal were not dismissed as moot, it would also 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).

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).

At this juncture, the record indicates that respondent has agreed to provide the student with transportation to and from petitioner Gassel’s home and Herschel.  The only issue the parties disagree over is whether the student is entitled to yellow bus transportation or public transportation via a MetroCard.  The record demonstrates that respondent was not obligated to provide yellow bus transportation to and from petitioner Gassel’s residence and Herschel pursuant to Chancellor's regulation A-801. 

Chancellor’s regulation A-801 provides, in pertinent part, that “[w]here contract school bus service is provided, no bus route shall exceed a total one way route length of 5 miles through all stop points.”[3]  According to the regulation, this distance is calculated by examining the distance travelled by a school bus on an existing route between the school and the student’s home.  After examining all potential routes, respondent’s OPT chief of staff determined that there was no existing one-way bus route from petitioner Gassel’s residence to Herschel which was shorter than five miles.  OPT conducted a second distance analysis which determined that no existing bus route could be extended to create a new stop near petitioner Gassel’s residence which would not exceed five miles in length.  Therefore, respondent concluded that the student was not eligible for yellow bus transportation but was instead eligible for a full-fare MetroCard which would provide the student with free public transportation between petitioner Gassel’s home and Herschel.

On this record, petitioners have not met their burden to establish that respondent’s decision to deny the student yellow bus transportation between petitioner Gassel’s residence and Herschel was arbitrary or capricious.  While petitioners allege that the distance between both of their residences and Herschel is approximately two miles, they submit no proof in support of this claim.[4]  Petitioners also failed to submit any evidence that similarly situated district residents were treated differently.  Accordingly, on this record, I am unable to find that petitioners’ daughter qualifies for yellow bus transportation (see Appeal of Kates, Goodman and Martinez, 49 Ed Dept Rep 138, Decision No. 15,980).




[1] The parties agree that the student is entitled to yellow bus transportation to and from petitioner Mendelsohn’s residence.


[2] As explained in Chancellor’s regulation A-801, a MetroCard is a card which allows students to utilize various means of public transportation within the City of New York.


[3] Petitioners do not seek an order setting aside Chancellor's regulation A-801, so the only issue before me is respondent's application of that regulation in this case (see Appeal of Haggerty, 50 Ed Dept Rep, Decision No. 16,247). 


[4] According to the answer, petitioners also posed an alternative request to respondent whereby the student would be allowed to use an existing school bus stop near petitioner Gassel’s residence.  According to OPT’s safety policy, students in kindergarten through second grade are not permitted, for safety reasons, to use an existing bus stop which is more than 0.5 miles from their residence.  After two distance assessments, OPT concluded that the closest bus stop was more than one mile from petitioner Gassel’s residence.  Petitioners have not submitted any evidence to refute OPT’s conclusions.