Appeal of YINGDI XIANG, on behalf of her son ALVIN FENG, from action of the New York City Department of Education regarding transportation.

Decision No. 16,925

(July 19, 2016)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Agnetha E. Jacob, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her request for full-fare transportation for her son during the 2015-2016 school year.  The appeal must be dismissed. 

Petitioner’s son, Alvin Feng (“the student”), attended third grade during the 2015-2016 school year at P.S. 22 (“the school”), in respondent’s district. In accordance with Chancellor’s Regulation A-801, respondent provides full-fare transportation, including yellow bus service, to students in grades three through six who live more than one mile from the school they attend.  Prior to the 2015-1016 school year, respondent’s Office of Pupil Transportation (“OPT”) determined that the student was ineligible for full-fare transportation based on the student’s grade and the distance between his home and the school.  On or about September 17, 2015, OPT received a “Distance Evaluation Request” from petitioner in which she sought full-fare transportation (such as yellow bus service) for the student, asserting that respondent’s distance calculations were incorrect.  By letter dated November 12, 2015, OPT determined that the student was ineligible for full-fare transportation due to his grade level and failure to meet the distance requirement for that grade.  OPT determined that the shortest path to school from petitioner’s home was 0.995 miles, which is less than the one mile required by Chancellor’s Regulation A-801 to entitle him to full-fare transportation.  This appeal ensued.  

Petitioner contends that OPT’s distance calculation is erroneous and asks that I overturn respondent’s determination.

Respondent contends that its determination is neither arbitrary, capricious nor an abuse of discretion.  Respondent asserts that its measurement of distance between the student’s school and home is correct, based on the district’s standard measurement tool.  Respondent maintains that petitioner has not established a clear legal right to the relief sought.

The appeal must be dismissed.  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 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).

Furthermore, 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).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

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).

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).

Respondent’s transportation policy does not provide for full-fare or yellow school bus service to students attending grades three through six, who reside more than one mile from the school they attend.  Respondent determined that the student resides 0.995 miles from P.S. 22 using its LION software which measures the shortest walking path between a student’s home and school, and, therefore, the student is not entitled to school bus transportation, as petitioner requests, but is only entitled to a half-fare MetroCard.  Petitioner submits a Google map to support her claim that the distance between her home and P.S. 22 is less than one mile.  Petitioner alleges that although respondent’s LION software algorithm measures distance through the street’s centerline, it does not account for the width of the streets and intersections. However, she fails to demonstrate that respondent’s use of the LION calculation – DOE’s standard measurement tool - or the route used is arbitrary, capricious or unreasonable (Appeal of Zheng, 54 Ed Dept Rep, Decision No. 16,776). Accordingly, there is no basis on which to substitute my judgement for that of respondent and, thus, I am unable to find that the student qualifies for school bus transportation based on distance alone (see Appeals of Kates, Goodman and Martinez, 49 Ed Dept Rep 138, Decision No. 15,980).

Although petitioner did not allege safety concerns or a hazard in her Distance Evaluation Request, in her petition she now appears to claim that “each walking is about 19-20min per Map, but for young kids, it will take about 30 mins or more. It’s really a long walk for Alvin Feng, especially during the winter time and the inclement weather condition.”  To the extent that petitioner is attempting to allege that she is entitled to a variance based on the existence of a hazard along the student’s walking route to school or based upon safety concerns for the student, she must clearly allege and prove that a hazard exists, such as offering evidence which would demonstrate, for example, “unsafe traffic conditions, traffic control measures, dangerous crossings and areas that are impassable to pedestrians” (see e.g., Appeal of O.E., 53 Ed Dept Rep, Decision No. 16,577; Appeal of Paesano-Vitale, 52 id., Decision No. 16,445).  Other than her conclusory statement, she provides no evidence to support a claim of hazard.  In any event, on the record before me, there is no evidence that petitioner has submitted a variance request to respondent based on hazard or that respondent considered and denied any such request. Accordingly, having failed to establish a clear legal right to the relief sought, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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