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Decision No. 17,222

Appeal of REUBEN FEBUS and MARIA OLIVERAS, on behalf of GRACE FEBUS, from action of the New York City Department of Education regarding transportation.

Decision No. 17,222

(October 18, 2017)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Jeffrey S. Dantowitz, Esq., of counsel

ELIA, Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“respondent” or “NYCDOE”) denying petitioner Febus’s transportation request for his daughter.  The appeal must be dismissed.

Petitioners reside in respondent’s district within Community School District 8 and requested a full-fare MetroCard for petitioner Febus’s daughter who attended seventh grade in the district.  Respondent’s transportation policy (“Chancellor’s Regulation A-801”) provides that students in grades seven through twelve who live one and one-half miles or more from their school are eligible for free transportation via a full-fare MetroCard.  Students in those grades who live more than one mile but less than one and one-half miles from their school are eligible for a half-fare MetroCard.  Respondent’s Office of Pupil Transportation Services (“OPT”) determined that petitioner Febus’s daughter lived more than one mile but less than one and one-half miles from her school and, thus, was only eligible for a half-fare MetroCard, unless entitled to a variance under the Chancellor’s Regulations.

Nevertheless, petitioner Febus requested a full-fare MetroCard for his daughter based on grade and distance and, alternatively, sought a variance because he claimed that hazardous conditions existed along respondent’s proposed route.  Respondent denied his request and offered a half-fare MetroCard for public transportation.  This appeal ensued.  Petitioners’ request for interim relief was denied.

Petitioners assert that they live more than one mile from the student’s school, based upon distance measurements derived from an internet-based map.  Alternatively, petitioners allege that the student’s walking route is dangerous due to hazards associated with crime and traffic.  Petitioners also assert that a half-fare MetroCard is unreasonable because of the financial burden it places on the family.

Respondent denies petitioners’ allegations and asserts that, when determining whether a student is eligible for transportation, its Office of Pupil Transportation (“OPT”) uses the official New York City Department of City Planning (“Department of City Planning”) map to make distance determinations and does not rely on internet-based software applications such as MapQuest or Google.  Respondent asserts that the distance in this instance measured 1.44 miles, thus entitling the student to a half-fare MetroCard.  Respondent also asserts that it investigated the student’s school route and, after conducting a site visit, found that no hazardous conditions warranting a variance exist.  Also, respondent details that its policy and practice is not to grant transportation variances for a parent’s general concerns about crime and that, while petitioners, like many other families, are under financial stress, this does not require the issuance of a full-fare MetroCard.  Thus, respondent argues that its determination is not arbitrary and capricious and should be upheld. 

The appeal must be dismissed.  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). 

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). 

Moreover, establishing transportation routes and measuring distances are within the discretion of the board of education, and the Commissioner will not set aside such actions unless it appears that the board’s action was arbitrary, capricious or unreasonable (Appeal of M.L., 50 Ed Dept Rep, Decision No. 16,213; Appeal of a Student with a Disability, 48 id. 223, Decision No. 15,844; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028). 

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).

Respondent applied Chancellor’s Regulation A-801 and used a standard method for calculating distance, using maps from the Department of City Planning, which showed petitioners’ residence to be 0.06 miles less than the 1.5 mile minimum for providing a full-fare MetroCard.  Upon review of the record, petitioners have not established that respondent’s methodology for measuring distance is inaccurate or unreasonable. 

With respect to petitioners’ claim that the student is entitled to transportation based on hazard, the appeal is moot.  Petitioners’ request for interim relief was denied and the school year ended.  In respondent’s district, variance requests are submitted annually (Appeal of Allen, 56 Ed Dept Rep, Decision No. 16,970; Appeal of Kravchenko, 56 id., Decision No. 16,941; Appeal of Abeido, 55 id., Decision No. 16,859).  Therefore, petitioners’ challenge to respondent’s denial of the hazard variance request is moot.

In light of the above determination, I need not address the parties’ remaining contentions.