Appeal of CELESTE PAESANO-VITALE, on behalf of her daughter EMMA MAY, from action of the New York City Department of Education regarding transportation.

Decision No. 16,445

(January 7, 2013)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Serena Longley and Gloria M. Yi, Esqs., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny her daughter transportation to public school for the 2011-2012 school year.  The appeal must be dismissed.

Petitioner is a resident in respondent’s district and is the parent of a child who is a third grade student at P.S. 55 (“school”) in Staten Island, New York.   

In April 2011,[1] petitioner requested transportation for her daughter on the basis of hazardous conditions.  Specifically, petitioner stated that her daughter, “a 3 [sic] grader will have to walk 14 blocks, ¾ of a mile and cross 3 major intersections...where there is not a crossing present at any of these major intersections.”  By letter dated August 5, 2011, respondent denied petitioner’s variance request because of the student’s grade and distance and because no hazardous condition was found along the route.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 1, 2011. 

Petitioner alleges that her request for a variance should have been granted because her daughter resides eight tenths of a mile from her school and has to cross three major crossings where there are no crossing guards and no sidewalks.[2]

Respondent asserts that petitioner lives less than one mile away from the school, and pursuant to its policy, students in grades three through six who reside less than one mile from their school are only eligible for half-fare surface transportation.  Respondent has offered petitioner a half-fare Metro card.  Additionally, respondent asserts that it investigated petitioner’s daughter’s route to school and found that no hazardous conditions exist warranting a variance.  Thus, respondent argues that its determination was not arbitrary and capricious and should be upheld.   

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner seeks transportation for the 2011-2012 school year.  Since the 2011-2012 school year has ended, petitioner’s request for transportation is moot.

Even if the appeal were not dismissed on procedural grounds, 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]; SandsPoint 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).

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).

Here, respondent has a transportation policy of providing transportation to students in grades three through six who reside one mile or more away from the school they attend. Respondent claims, and petitioner does not dispute, that petitioner’s daughter lives less than one mile away from the school.  Accordingly, I am unable to find that petitioner’s daughter qualifies for transportation on distance alone (seeAppeal of Haggerty, 50 Ed Dept Rep, Decision No. 16,247). 

Nor am I able to find that respondent’s denial of petitioner’s request for a hazard variance was unreasonable.  The record indicates that respondent conducted a site visit and reviewed petitioner’s daughter’s walking route to school and the available public transportation.  As part of these reviews respondent “routinely examines the area for unsafe traffic conditions, traffic control measures, dangerous crossings and areas that are impassable to pedestrians.”  After conducting its site visit, respondent determined that no hazardous conditions existed along petitioner’s daughter’s route to school which would support a hazard variance.  While petitioner disagrees with respondent’s position, she offers no evidence to refute respondent’s conclusion.  Indeed, several of the pictures submitted by petitioner indicate that a crosswalk and crosswalk signal exist at some of the intersections about which she is concerned.  This is consistent with respondent’s review which found “various safety and traffic control measures, including school crosswalks and traffic signals, along the route.”

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).  As part of her appeal, petitioner submitted documentation evidencing that she has had a difficult time arranging alternate transportation for her daughter. While I sympathize with petitioner’s situation, on the record before me, I find that petitioner has failed to meet her burden of proof.

THE APPEAL IS DISMISSED.

END OF FILE.