Appeal of LEAH DONN, on behalf of her son AVROHOM, from action of the New York City Department of Education regarding transportation.

Decision No. 15,994

(October 21, 2009)

Goetz Fitzpatrick, LLP, attorneys for petitioner, Ronald D. Coleman, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Steven D. Weber, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) denying her transportation request for her son, Avrohom.  The appeal must be dismissed.

Avrohom attends Mirrer Yeshiva Ketena (“MYK”), a nonpublic school, whose school day runs until 5:00 p.m.  By letter dated December 8, 2008, petitioner requested that respondent provide after-school transportation from MYK, citing safety concerns and hardship.  Petitioner did not receive a response to her request and wrote to respondent again on January 27, 2009.  Petitioner’s request was verbally denied by an employee of respondent’s office of pupil transportation.  This appeal ensued.

Petitioner states that respondent has failed to offer transportation equally to all children in like circumstances.  Specifically, petitioner argues that the half-hour difference from respondent’s last pick-up to MYK’s dismissal time constitutes a “like circumstance” and mandates Avrohom’s transportation.  Petitioner requests that respondent provide the requested transportation or reimburse petitioner.

Respondent contends that its transportation contracts provide for afternoon transportation pick-ups until 4:30 p.m. and that to pick-up Avrohom at 5:00 p.m. would result in substantial expense.

To the extent petitioner requests transportation for the 2008-2009 school year, 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Since the 2008-2009 school year has ended, petitioner’s request for afternoon transportation for that school year is moot.  The appeal, however, is not moot to the extent petitioner seeks transportation for the 2009-2010 school year.

The Education Law does not require a board of education to transport children attending nonpublic school in all circumstances (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  Authorities at public and nonpublic schools are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  Public school authorities may not dictate the opening or closing hours for a nonpublic school, but the adoption of unreasonable or erratic schedules relieves public school authorities of the responsibility for arranging to meet those schedules (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Berger, 22 id. 443, Decision No. 11,028).  Even if students may be required to remain for academic courses, public school authorities are not required to provide transportation arrangements beyond what is reasonable (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Berger, 22 id. 443, Decision No. 11,028).

Petitioner argues that the Commissioner’s decision in Appeal of Frasier, (35 Ed Dept Rep 499, Decision No. 13,612) requires respondent to provide transportation to her son because, similar to the facts in Frasier, MYK’s dismissal time is only a half-hour after respondent’s last bus service.  The present case, however, differs from Frasier.  In that case, the school district was providing transportation from the nonpublic school, with some students dropped off at home and other students, including the petitioner’s daughter, left at drop-off points –- either at the public schools or the bus garage.  The petitioner sought to have her daughter dropped off at home.  In the decision, the Commissioner stated that there was no indication that the 3:25 p.m. dismissal time was unreasonable or that it varied substantially from the middle school dismissal time of 2:50 p.m.  The Commissioner also observed that the nonpublic school’s dismissal time was consistent with the dismissal time of at least one other school district which was transporting students to the nonpublic school.  Thus, the Commissioner found that petitioner’s daughter could be accommodated by a slight modification of the existing schedule, which the district had tested, by having a bus wait at the middle school for a half hour for the nonpublic school students.

The Frasier decision, however, is limited to the unique facts and issues presented in that case.  Frasier does not stand for the proposition that a nonpublic school dismissal time a half hour later than the public school dismissal time or the last scheduled late bus is perse reasonable.  Rather, in determining reasonableness, there are several factors to be considered -- the dismissal time, the reason for the dismissal time, the cost, and the additional arrangements that must be made (seeAppeal of Salvia, 36 Ed Dept Rep 365, Decision No. 13,750 [Half hour difference in dismissal time between public and nonpublic schools not a basis to invalidate a district’s transportation policy]).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Del Prete, 40 id. 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Del Prete, 40 id. 148, Decision No. 14,444).  Although a board of education may not be influenced by economic considerations to the point of failing to provide transportation which is reasonable (Appeal of Frasier, 35 Ed Dept Rep 499, Decision No. 13,612), considerations of economy cannot be ignored (Appeal of Post, 33 Ed Dept Rep 151, Decision No. 13,006; Appeal of Stickley, 27 id. 328. Decision No. 11,963).

In this case, respondent’s transportation contracts provide for transportation pick-ups until 4:30 p.m.  The contracts also provide that for any pick-up after 4:30 p.m. the district would incur a fee to establish a new route, overtime, and an additional service charge.  Respondent estimates that it would incur a minimum additional cost of $5,500 per year to accommodate petitioner’s request.  In this situation, petitioner’s son is not similarly situated to those being dismissed at or before 4:30 p.m.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  On the record before me, I cannot find respondent’s determination to be improper, unreasonable or in violation of law.

As to petitioner’s request for reimbursement for transportation costs, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

THE APPEAL IS DISMISSED.

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