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Decision No. 18,025

Appeal of SCOTT MULLIGAN, on behalf of his daughter, from action of the New York City Department of Education regarding transportation.

Decision No. 18,025

(August 3, 2021)

James E. Johnson, Corporation Counsel, attorneys for respondent, Mark G. Toews, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“NYCDOE” or “respondent”) to deny his child (“the student”) a hazard variance request for the 2019-2020 school year.  The appeal must be dismissed.

Petitioner and the student reside within respondent’s district; the student attends a nonpublic school located therein.  Respondent indicates that the student is eligible for transportation in accordance with NYCDOE regulations given her grade and the distance between her home and the school she attends (see Chancellor’s regulation A-801 [“Pupils in grades 3-6 are eligible for free transportation if they reside one mile or more from their school”]).

For the 2019-2020 school year, respondent offered the student bus transportation to and from the nonpublic school from a designated bus stop located approximately .25 miles from petitioner’s residence.

On or about September 10, 2019, petitioner applied to respondent’s Office of Pupil Transportation (“OPT”) for a hazard variance to allow the student to obtain school bus transportation to and from a different location.  Petitioner alleged, among other hazards, that there were no sidewalks or shoulders along the walking route from the house to the bus stop.

On or about October 2, 2019, in response to petitioner’s variance request, OPT conducted a hazard evaluation along the student’s route to and from school.  OPT determined that there were no conditions along the route sufficient to justify an exception under respondent’s policy.

By letter dated October 7, 2019, OPT denied petitioner’s hazard variance request.  In the letter, which was sent to both petitioner and the school, OPT recommended that the school “assign the student to existing AM and PM bus routes and stops or ... create a new bus stop.”[1]  The letter further indicated that “if no stop [could] be assigned or created,” the student would be “eligible for and may be issued a full-fare MetroCard.”[2]  This appeal ensued.[3]

Petitioner contends that respondent failed to adequately investigate safety conditions at the bus stop.  Petitioner further contends that “… a site visit was not conducted due to the high hazardous conditions on the OPT provided route ....”  Petitioner requests “[a] new bus stop via new bus that already has a current driving route that passes through the safest areas” along a particular street.

Respondent denies petitioner’s contentions, arguing that it investigated the student’s walking path to the bus stop in accordance with OPT policy and rationally determined that the observed conditions did not justify the granting of a hazard exception.    

A city school district may, but is not required to, provide transportation (Education Law § 3635 [1] [c]).  If a city school district so elects, it must do so equally for all children in like circumstances (Education Law § 3635 [1] [c]; Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  NYCDOE offers transportation to district residents in accordance with Chancellor’s Regulation A-801, which determines eligibility based on students’ grade levels and the distance between their homes and the schools they attend.  The Commissioner has held that children in different grades are not in “like circumstances” and that city school districts may establish transportation policies that distinguish among grade levels (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

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

Petitioner has not met his burden of proving that respondent acted in an arbitrary or capricious manner.  In an affidavit submitted with this appeal, OPT’s chief of staff describes the procedure that respondent follows in response to such requests and asserts that it followed this procedure in this instance.  The chief of staff indicates that OPT responded to petitioner’s variance request by sending an OPT field inspector to conduct a hazard evaluation along the student’s route to and from school.  The record contains the school bus stop review forms that were completed in connection with petitioner’s request.  These forms are essentially checklists that evaluate certain conditions such as the number of road lanes, speed limit, visibility, and traffic.  According to the chief of staff, to evaluate requests for hazard exceptions objectively, OPT utilizes a point system established by the New York State Department of Transportation.[4]  Under that numeric system, different road conditions, such as areas lacking sidewalks, traffic volume and speed, and traffic signals are assigned point values; the values are then tallied to determine whether any sections of the route qualify as hazardous.

The Hazard Area Evaluation forms in the record indicate that, in this case, at least twelve points are required for a particular address, intersection, or location between two streets to qualify for a hazard exemption.  The record indicates that respondent evaluated three separate areas, and that each area received a score of three points.  Therefore, respondent determined that the conditions at each location were insufficient to justify a hazard exemption.

While petitioner asserts that the intersections in question are unsafe, he has not submitted evidence to corroborate those assertions (see Appeal of Halpern, 58 Ed Dept Rep, Decision 17,480).  For example, while petitioner articulates concerns regarding the lack of continuous sidewalks; “a blind spot due to a hill”; the lack of crosswalks at certain sections; and narrow sections of road, he produces no proof, such as photographs, in support of these assertions.  Therefore, petitioner has not met his burden of proving that respondent’s determination was arbitrary or capricious.

I have reviewed petitioner’s remaining contentions and find them to be without merit.




[1] Petitioner asserts on appeal that the nonpublic school subsequently requested a new stop, which was denied.  Respondent denies these assertions in its answer.


[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] Following commencement of this appeal, OPT discovered that transportation services at the recommended bus stop were only offered during the afternoon.  On November 19, 2019, OPT added a morning route to this location and informed petitioner and the school of the update.


[4] Respondent explains that, upon request for a hazard exception, it uses the regulatory procedure applicable to the establishment of child safety zones (see Education Law §3635-b [requiring boards of education, upon receipt of a petition with sufficient signatures, to conduct “investigation[s] to determine whether a hazardous zone exists requiring the establishment of a child safety zone”]; 19 NYCRR part 191 [Department of Transportation regulations, developed in consultation with the State Education Department and Division of State Police, used to determine whether a child safety zone must be established]).