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Decision No. 17,844

Appeal of THERESA CAPOLONGO, on behalf of her daughter VICTORIA, from action of the New York City Department of Education regarding transportation.

Decision No. 17,844

(June 1, 2020)

James E. Johnson, Corporation Counsel, attorney for respondent, Christopher Ferreira, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her daughter (“the student”) a hazard variance request or a change in transportation for the 2019-2020 school year.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student resided within respondent’s district.  For the 2019-2020 school year, the student attends third grade at one of respondent’s schools, Public School 36 (“P.S. 36”).

Respondent’s transportation policy (“Chancellor's regulation A-801”) provides for free transportation, either by school bus or public transit via a MetroCard, to students in grades three through six who live 1.0 mile or more from the school they attend.  Additionally, students in grades three through six who reside 0.5 to 1.0 miles from school are eligible for a half-fare MetroCard for public transportation.  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 or to a bus stop.

According to the record, the student resides less than one mile from P.S. 36 and, therefore, is ineligible for yellow school bus transportation by virtue of distance for the 2019-2020 school year.[1]  On September 8, 2019, petitioner completed a request for a hazard variance, on behalf of the student, and submitted it to respondent’s Office of Pupil Transportation (“OPT”).  By letter dated October 15, 2019, 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.”  Attached to OPT’s letter was a map portraying the shortest walking path between the student’s home and P.S. 36.  This appeal ensued.

Petitioner contends that OPT’s determination was arbitrary and capricious because there are “several hazards along the route to school which includes areas with no sidewalks, an overpass to a parkway and major intersections with a lot of traffic.”  Petitioner also alleges that major intersections on this route have “no crossing guard available.”[2]  Petitioner further asserts that the student “is only 8 years old and cannot travel to and from school by herself.”  Petitioner further indicates that the needs of her son, who is not the subject of this appeal, inhibit her ability to transport the student to P.S. 36.  For relief, petitioner seeks a determination that the student “will have her busing to and from PS 36 and home be reinstated as well as continue for the remainder of her school years at PS  36, 2019/2020 school year to 2021/2022 school year.”

Respondent contends that the appeal must be dismissed because its determination was neither arbitrary nor capricious.

First, I must address a preliminary matter.  To the extent that petitioner is requesting a variance for the 2020-2021 and/or 2021-2022 school years, the appeal must be dismissed as premature.  Variance requests in respondent’s district must be submitted annually, and the facts and circumstances underlying such a request may change with respect to future school years.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No 17,306; Appeal of Allen, 56 id. Decision No. 16,970; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  If petitioner wishes to seek relief concerning the 2020-2021 and/or 2021-2022 school years, she must file a new petition in accordance with Education Law §310.

Turning to the merits of petitioner’s request for the 2019-2020 school year, 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).

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 hazard variance was arbitrary or capricious.  In her written hazard variance request, petitioner identified six potential hazards:  (1) a narrow bridge or overpass; (2) three streets without a sidewalk or shoulder along the route; and (3) two hazardous intersections.  OPT conducted an evaluation of the student’s route on or about October 4, 2019.  In an affidavit, OPT’s chief of staff avers that the specific hazards identified in petitioner’s variance request were not located along the walking path approved by OPT.  OPT further determined that the allegedly hazardous overpass does not exist at the location identified in petitioner’s request.  Therefore, OPT recommended the walking route outlined in its October 15, 2019 letter, which is the shortest route by distance.  In a reply, petitioner indicates that she “disagree[s]” with respondent’s conclusion and makes the following assertion:

There are two ways to get to school[:]  one presents an overpass and no sidewalk at points on the route and the other ... also lacks sidewalks at points on the route [and has] ... major intersections with no crossing guard available.

Petitioner, however, has produced no evidence in support of this assertion.  By contrast, respondent has submitted an affidavit from OPT’s Chief of Staff that explains respondent’s investigation and its conclusions.  Therefore, petitioner has not met her burden of proving the existence of the hazards of which she complains, let alone that respondent’s determination was arbitrary or capricious.

While I am sympathetic to petitioner’s personal circumstances, including concerns for her daughter’s safety and difficulty transporting her son, she has not met her burden of proving that respondent’s determination was arbitrary and capricious.




[1] The record reflects that the student was previously eligible for transportation as students in grades kindergarten through second grade are eligible for free transportation if they reside more than 0.5 miles from the school they attend.


[2] Petitioner also indicates that she has a son who is physically disabled making it difficult for her to drive the student who is the subject of this appeal to school.