Appeal of ELKA SAINT HILAIRE, on behalf of her daughter ISABELLA CARDACE, from action of the New York City Department of Education regarding transportation.

Decision No. 17,370

(April 6, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Evan Schnittman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny her request for transportation on behalf of her daughter (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended third grade in a charter school located in Bronx, New York.  Petitioner alleges that, on September 7, 2017, the charter school notified her “for the 1st time” that the student was not eligible for transportation to the charter school for the 2017-2018 school year due to “proximity to [the] school.”  Petitioner claims that, also on September 7, 2017, she contacted respondent’s Office of Pupil Transportation (“OPT”) and was informed that “the school was responsible for advising [her] of the change in transportation” and that she could request an exception.  Petitioner submitted a variance request to OPT on September 7, 2017 (“variance” or “hazard evaluation request”).  The reasons noted by petitioner on the form for the request included three dangerous intersections and an “outrageous ... amount of sex offenders” along the route.

Respondent’s transportation policy (“Chancellor’s regulation A-801”), provides for free transportation, either by school bus or public transit via a MetroCard, to students in grades three through six who live one mile or more from the school they attend.  Students in grades three through six who reside one-half mile or more but less than one mile from school are eligible for a half-fare MetroCard for public transportation.  Students not otherwise entitled to school bus transportation may annually seek a variance to receive such transportation, based on hazardous conditions along the student’s walking route to school or to a bus stop. 

According to respondent, the student resides 0.61 miles from the charter school, which renders her ineligible for yellow bus transportation pursuant to Chancellor’s regulation A-801.  OPT also asserts that it has approved a walking route for the student from her residence to the charter school.

On September 28, 2017, as part of its review of petitioner’s variance request, an OPT field investigator examined two of the intersections to which petitioner objected.

By letter dated October 4, 2017, OPT denied petitioner’s hazard evaluation request, stating that a site visit was conducted and that no hazards were found on the student’s route to school.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 14, 2017.

Petitioner contends that respondent’s determination was arbitrary and capricious.  Petitioner requests that respondent provide yellow bus transportation to the student from her residence to the charter school.

Respondent contends that its decision was rational and that the student is not entitled to yellow bus service under the Education Law or respondent’s transportation policy.

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).

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).

On this record, petitioner has not clearly established that respondent’s denial of her request for a variance based on a hazard was arbitrary, capricious, unreasonable or an abuse of discretion.  The record indicates that OPT conducted a Hazard Area Evaluation on September 28, 2017, which consisted of a site visit where an investigator used a point system to determine whether hazards existed.  The investigator evaluated a number of criteria including, but not limited to, sidewalks, traffic volume and speed, and traffic signals to determine whether any sections of the route qualified as hazardous.  An affidavit from OPT’s chief of staff avers that OPT investigated two of the three intersections identified in petitioner’s hazard variance request and determined that no hazardous conditions existed that would warrant the issuance of a hazard variance.  OPT did not investigate the third intersection identified by petitioner because the student’s walking route did not traverse this intersection.  Petitioner submits no reply or other evidence to refute respondent’s contentions in this regard.

Petitioner also requested that the “outrageous ...  amount of sex offenders in my area ... be considered” in connection with her request.  Petitioner submits two newspaper articles dated June 24, 2014 and May 6, 2016 describing the presence of child predators in and around the student’s recommended walking route.[1]  However, as respondent notes in its answer, respondent’s transportation policy does not consider the presence of “[u]nsavory persons” on a route to be grounds for a hazard variance (see Appeal of Allen, 56 Ed Dept Rep, Decision No. 16,970).  Petitioner did not submit a reply or other evidence to refute respondent’s contentions in this regard.

Petitioner also submits data from New York City’s Police Department regarding vehicle and pedestrian collisions/fatalities on some of the streets on the student’s assigned route.  However, the information submitted by petitioner does not identify the data by intersection.  Thus, I am unable to determine whether the reported accidents occurred along the student’s recommended walking route.  Accordingly, on this record I cannot conclude from the data submitted by petitioner that the student’s route is hazardous (Appeal of Allen, 56 Ed Dept Rep, Decision No. 16,970).

As noted above, petitioner additionally complains that “[t]he school failed to inform [her] in a timely manner” that transportation would be provided for the 2017-2018 school year.  While it is unfortunate that petitioner learned that respondent would not provide transportation only a few days before the start of school, to the extent petitioner may intend to challenge any action or inaction on the part of respondent in this regard, which is not entirely clear from the petition, petitioner has not pointed to any law, policy or regulation which provides her with a right to notification by respondent on a specific timeline.  Therefore, petitioner’s claim must be dismissed.

Finally, petitioner alleges that a school bus “currently passes right by the bus stop we have used in the past 2 years” and that respondent’s failure to provide yellow bus transportation will require her to arrive late at work, causing “the loss of [her] current job.”  While I am sympathetic to petitioner’s situation, she has failed to show that respondent failed to treat students in like circumstances equally, or that respondent’s determination was otherwise arbitrary, capricious or an abuse of discretion.

THE APPEAL IS DISMISSED.

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