Appeal of M.V., on behalf of her child L.V., from action of the Board of Education of the City School District of the City of New York regarding transportation.

Decision No. 17,677

(July 1, 2019)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Copatrick Thomas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her child (“the student”) a hazard variance request or a change in transportation for the 2018-2019 school year. The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student resided within respondent’s district.  During the 2017-2018 school year, the student attended eighth grade at one of respondent’s schools, the New York City Lab Middle School for Collaborative Studies (“the school”). 

Respondent’s transportation policy, set forth in Chancellor’s regulation A-801,^[1] provides access to free public transportation via a MetroCard[2] to students in grades seven through twelve if they reside one and one-half miles or more from the school they attend.[3]  The record indicates that the student lives more than one and one-half miles from the school and, therefore, is eligible for a full-fare MetroCard.    

Students in grades seven through twelve are not generally eligible for school bus transportation; however, in respondent’s district, 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, bus stop or public transit stop.

According to the record, the student received school bus transportation during the 2017-2018 school year pursuant to a hazard variance.[4]  In June 2018, petitioner emailed the chief of staff for respondent’s Office of Pupil Transportation (“OPT”) concerning transportation for the upcoming 2018-2019 school year, asking “if any paperwork needs to be filled out.”  The chief of staff replied that “no additional information [was] needed,” and that an inspector would go to that area “to check out the circumstances.”

By letter dated September 18, 2018, OPT denied petitioner’s hazard variance request, stating 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’s request for interim relief was denied on October 11, 2018.

Petitioner alleges that, since the 2017-2018 school year, “the hazardous conditions” on the student’s pedestrian path to school have “become worse ....”  Petitioner specifically asserts that there were “[two] accidents (one where a pedestrian was struck by a vehicle and one where a bus was hit where a[n] individual needed to be taken by ambulance to a hospital).”  Petitioner also alleges that “this route is also where the recent terrorist attack on October 31st of 2017 took place.”  Petitioner further contends that there is a bus stop “in front of [her] door” for multiple sixth grade students and that the full-size school bus transporting those students is “near empty.”  Petitioner also argues that respondent delayed making its determination despite her multiple efforts to “follow[]-up.”  Finally, petitioner states that the student “has already missed school this year and has been late multiple times” because work and family commitments preclude her and her spouse from transporting the student to school on time.  For relief, petitioner requests an order permitting the student to ride the school bus due to hazardous conditions.

Respondent contends that the appeal must be dismissed because its determination was not arbitrary, capricious, unreasonable, or an abuse of discretion. 

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). Petitioner challenges respondent’s denial of her request for a hazard variance for the 2018-2019 school year.  The 2018-2019 school year has ended, and in respondent’s district, variance requests must be submitted annually (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Harris, 57 id., Decision No. 17,177; Appeal of Allen, 56 id., Decision No. 16,970).  Therefore, petitioner’s challenge to respondent’s denial of her 2018-2019 variance request is moot.

Even if the appeal were not moot, 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, petitioner has not established that respondent’s denial of petitioner’s request for a variance based on hazard was arbitrary, capricious, unreasonable, or an abuse of discretion.  Although petitioner asserts that numerous accidents have occurred along the student’s walking path to school, the only proof she submits is a picture of what appears to be a screenshot of a mobile phone application and a map.  This screen shot identifies three events at three locations in respondent’s district which petitioner claims are on the student’s pedestrian route to school:  “school bus involved in collision ... No injuries have been reported in the collision”; “report of man with knife making threats ... This is unconfirmed”; and “pedestrian struck by vehicle.”  However, other than this screen-shot, the source of which is not identified, petitioner provides no evidence to support her claim. 

In response, respondent submits an affidavit from OPT’s chief of staff in which the chief of staff avers that, in response to petitioner’s request for a variance, an OPT field inspector conducted a site visit along the student’s route to and from public transit stops and determined that there were no hazardous conditions along the route.  The chief of staff further avers that OPT reviewed traffic accident data comprising a six year period for all intersections along the student’s route and concluded that there was no significant history of pedestrian-related accidents at the intersections along the student’s route.  Therefore, although petitioner makes broad, conclusory statements concerning the danger of the student’s walking path, I find the sworn allegations of OPT’s chief of staff more persuasive on this issue.  Accordingly, I cannot find that petitioner carried her burden of establishing that respondent acted in an arbitrary or capricious manner in denying petitioner’s hazard variance request for the 2018-2019 school year.

Petitioner also alleges that “[t]here is currently a stop that already exists in front of [her] door” and that this bus has empty seats available.  As stated above, where a city school 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  Petitioner provides no evidence to prove that the students who use the bus stop in front of her door are in “like circumstances” to the student.  In fact, petitioner admits that “there are multiple 6^th graders that get on at that stop.”  Therefore, petitioner has failed to meet her burden of proof. 

Additionally, to the extent petitioner suggests that respondent was obligated to provide transportation for the 2018-2019 school year because it provided such transportation during the prior school year, such claim is without merit.  It is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  The fact that a district transported a student in prior years does not estop the district from declining to provide such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Rohde, 45 id. 255, Decision No. 15,313; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).

While I am sympathetic to petitioner’s claims about her husband traveling for work and having a younger child who attends a different school, on the record before me, petitioner has not met her burden of proving that respondent’s determination was arbitrary and capricious. 

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

THE APPEAL IS DISMISSED.

END OF FILE