Appeal of MEI RONG ZHENG on behalf of her daughter SAMANTHA FONG, from action of the New York City Department of Education regarding transportation.

Decision No. 16,776

(June 19, 2015)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth C. DeGori, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the decision of the New York City Department of Education (“respondent” or “DOE”) to deny her request for full-fare transportation.  The appeal must be dismissed.

Petitioner’s daughter attends P.S. 79 Francis Lewis School (“school”) in Queens, New York.  Respondent’s transportation policy (Chancellor’s Regulation A-801) provides full-fare (free) transportation, either by school bus or public transit, to students in grades three through six who live one mile or more from the school they attend.  Students in those grades residing one-half mile or more but less than one mile from school are eligible for a half-fare Metro Card for public transportation.

On or about October 20, 2014, while Samantha was in third grade, petitioner submitted a Distance Evaluation Request to DOE’s Office of Pupil Transportation (”OPT”).  The submission was returned to petitioner along with a letter, dated November 10, 2014, indicating that the material submitted was incomplete, and petitioner could submit another request.

On November 20, 2014, a second Distance Evaluation Request was received by the OPT.  In this request, petitioner claimed that she and Samantha lived more than one mile from school.  The request included a map calculated by petitioner through http://maps.nyc.gov, which shows that, if a particular route is followed from petitioner’s residence to school, the distance is 1.05 miles.

By letter dated November 28, 2014, OPT informed petitioner of its determination that Samantha resided 0.899 miles from school and was, therefore, ineligible for full-fare transportation by grade and distance and that she could request a half-fare Metro Card because she lives between one-half mile and one mile from school.  OPT explained that its calculation was the shortest walking distance between Samantha’s home and school, and that this distance was ascertained using a street map called “Linear Integrated Ordered Network” (“LION”) that is maintained by the New York City Department of City Planning.  OPT explained that LION is used by many New York City municipal departments and is used as DOE’s official map for distance determinations.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 8, 2015.

Petitioner contends that Samantha is entitled to full-fare bus transportation by grade and distance.  Petitioner appends to her petition a previously unsubmitted and untitled zoning map, purportedly from DOE, which indicates that her home is 1.4 miles from school.  Respondent asserts that the appeal is untimely.  Respondent also contends that petitioner has failed to establish a clear legal right to the relief requested.  Respondent maintains that, in accordance with LION, petitioner resides 0.899 miles from school and, therefore, does not qualify for full-fare bus transportation under Chancellor’s Regulation A-801. 

  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Respondent’s letter denying petitioner’s request was dated November 28, 2014.   As the record does not indicate when petitioner actually received the determination, affording five days for mailing, excluding Sundays and holidays, the date of receipt is December 4, 2014.  Petitioner was, therefore, required to commence this appeal no later than January 3, 2015.  Although the affidavit of service indicates that the petition was served on December 27, 2014 – a Saturday – respondent admits that it was, in fact, served on December 30, 2014, within the required time period.  Therefore, I decline to dismiss the appeal as untimely.

Turing to the merits, 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).

Establishing transportation routes and measuring distances are within the discretion of the board of education, and the Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).  A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028).

As noted above, in accordance with Chancellor’s Regulation A-801, respondent provides full-fare transportation by school bus or public transit to students in grades three through six who reside one mile or more from the school they attend.  Respondent determined that Samantha resides 0.899 miles from P.S. 79 using its LION software and, therefore, is not entitled to full-fare bus transportation, as petitioner requests, but is only entitled to a half-fare Metro Card.

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).  Petitioner submits a DOE zoning map and another New York City agency-based map to support her claim that the distance between her home and P.S. 79 is greater than one mile.  However, she offers no explanation as to why her maps should be substituted for respondent’s LION calculation – DOE’s standard measurement tool - or why respondent’s use of the LION calculation or the route used is arbitrary, capricious or unreasonable.  Having failed to establish a clear legal right to the relief sought, the appeal must be dismissed.

 THE APPEAL IS DISMISSED.

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