| Matter of Ignizio v City of New York |
| 2011 NY Slip Op 05708 [85 AD3d 1171] |
| June 28, 2011 |
| Appellate Division, Second Department |
| In the Matter of Vincent M. Ignizio et al., Petitioners, and TheresaBarba et al., Respondents, v City of New York, Respondent, and New York CityDepartment of Education et al., Appellants. |
—[*1] Ronald Castorina, Jr., Staten Island, N.Y. (Robert A. Mulhall of counsel), forpetitioners-respondents.
In a consolidated proceeding pursuant to CPLR article 78 to review a determination of theNew York City Department of Education dated May 13, 2010, which eliminated funding forcertain variances providing yellow-bus transportation to certain 7th and 8th grade students, theNew York City Department of Education and Joel I. Klein appeal, as limited by their brief, fromso much of a judgment of the Supreme Court, Richmond County (Fusco, J.), entered December7, 2010, as granted the petition, annulled the determination, and reinstated the variances.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, thedetermination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.
Pursuant to Education Law § 3635 (1) (c), city school districts are not required toprovide transportation to students; however, if they choose to do so, they must provide equaltransportation to all students in "like circumstances." Pursuant to Regulations of the Chancellorof the New York City Board of Education A-801, § 2, and subject to certain distanceeligibility criteria, the New York City Department of Education provides yellow-bustransportation to children in kindergarten through 6th grade, and MetroCards to children ingrades 7-12. For many years, however, the New York City Department of Education hasimplemented "variances" from these regulations by providing yellow-bus transportation to,among others, 7th and 8th grade students in all of Staten Island and the Breezy Pointneighborhood on the Rockaway peninsula in Queens.
In early 2010 the New York City Department of Education and the Office of the Chancellor(hereinafter together the DOE), due to city-wide budget cuts, were faced with the need to cut theDOE budget. The DOE's various administrative units were each charged with submitting"Proposals to Eliminate the [Budget] Gap," or "PEGs." Among the PEGs which were eventually[*2]adopted was one discontinuing the Staten Island and BreezyPoint busing variances, among others, and instead offering affected students free MetroCards ifthey were otherwise eligible to receive them. In addition to addressing the budget gap, DOEofficials believed that the elimination of these variances was an appropriate way to ensureequality in busing, as required under Education Law § 3635 (1) (c). The petitionerschallenged that determination in the instant CPLR article 78 proceeding. After a hearing pursuantto CPLR 7804 (h), the Supreme Court, inter alia, granted the petition and directed the DOE toreinstate the subject variances. We reverse the judgment insofar as appealed from.
In general, "how school . . . revenues are to be expended is a discretionarymatter committed by law to the judgment of the local Board of Education" and, absent an ultravires act or the failure to perform a required act, a decision about the allocation of scarceresources is a judgment entrusted to school officials and is "inappropriate for resolution in thejudicial arena" (Matter of Bennett v City School Dist. of New Rochelle, 114 AD2d 58, 65[1985]; see James v Board of Educ. of City of N.Y., 42 NY2d 357, 365 [1977]; Price v New York City Bd. of Educ.,51 AD3d 277, 286 [2008]; Matter of Parent Teacher Assn. of P.S. 124M v Board ofEduc. of City School Dist. of City of N.Y., 138 AD2d 108, 113 [1988]; Matter ofWagschal v Board of Examiners of Bd. of Educ. of City of N.Y., 117 AD2d 470, 471 [1986],affd 69 NY2d 672 [1986]). However, while the courts have "a duty 'to defer to theLegislature in matters of policymaking, particularly in a matter so vital as education financing,' "including the Legislature's delegation, to local boards of education, of the manner in whichcertain education funds are to be allocated, it is also " 'the province of the Judicial branch todefine, and safeguard, rights provided by the New York State Constitution, and order redress forviolation of them' " (Campaign forFiscal Equity, Inc. v State of New York, 8 NY3d 14, 28 [2006], quoting Campaignfor Fiscal Equity v State of New York, 100 NY2d 893, 925 [2003]).
Here, although the decisions facing the DOE involved "the ordering of priorities and theallocation of finite resources" (Jiggetts v Grinker, 75 NY2d 411, 415 [1990]) in an areaentrusted to its oversight (see Education Law § 2554 [19]; § 2590-h [1] [d]),Education Law § 3635 indicates that judicial oversight of decisions affecting studenttransportation was contemplated by the Legislature. Specifically, Education Law § 3635(1) (c) provides that a city school district is not required to provide transportation to its students,"but if provided by such district . . . , such transportation shall be offered equally toall such children in like circumstances."
In Pratt v Robinson (39 NY2d 554 [1976]), the Court of Appeals construedEducation Law § 3635 (1) (c) and, in that context, entertained a challenge to, inter alia, theadequacy of a city school district's busing scheme. In so doing, the Court indicated that such achallenge is a proper subject for judicial oversight, notwithstanding the broad discretion entrustedto educational officials in making decisions regarding student transportation (see Pratt vRobinson, 39 NY2d at 559; see also Matter of Hatch v Board of Educ., Ithaca CitySchool Dist., 81 AD2d 717 [1981]; Finkel v New York City Bd. of Ed., 474 F Supp468, 471-742 [1979], affd 622 F2d 573 [1980]). As in Pratt v Robinson (39NY2d 554 [1976]), the gravamen of the petitioners' claim here is that, as a result of theelimination of the variances, the DOE's busing scheme was inadequate. Following the Court ofAppeals' assessment in Pratt v Robinson (39 NY2d 554 [1976]), therefore, the SupremeCourt correctly found that this controversy was justiciable.
"Generally, in a CPLR article 78 proceeding, [courts] examine whether the action taken bythe agency has a rational basis" and will overturn that action only "where it is 'taken withoutsound basis in reason' or 'regard to the facts' " (Matter of Wooley v New York State Dept. of Correctional Servs., 15NY3d 275, 280 [2010], quoting Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; seeMatter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d 222, 232 [1974]) or where it is "arbitrary andcapricious" (Matter of Deerpark Farms,LLC v Agricultural & Farmland Protection Bd. of Orange County, 70 AD3d 1037, 1038[2010]; Matter of Wagschal v Board of Examiners of Bd. of Educ. of City of N.Y., 117AD2d 470, 471 [1986]). "It is not the province of the courts to second-guess thoughtful agencydecisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary,capricious or unsupported by the evidence" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9NY3d 219, 232 [2007]). Thus, " ' [w]hile judicial review must be meaningful, the [*3]courts may not substitute their judgment for that of the agency for itis not their role to "weigh the desirability of any action or [to] choose among alternatives" ' "(id. at 232, quoting Akpan v Koch, 75 NY2d 561, 570 [1990]; see Matter of El Camino Trucking Corp. vMartinez, 21 AD3d 491 [2005]).
Here, the DOE articulated two bases for its decision to rescind the Staten Island and BreezyPoint variances: the need to cut the budget for transportation and the desire to achieve greaterequity in busing across the City. Both of these goals are consistent with statutory mandates(see Education Law § 2590-h [16-a]; § 3635 [1] [c]). Although one mightrationally question both the wisdom of the approach that the DOE took in meeting these goalsand whether the policies adopted reasonably achieved these goals, "[i]t is beyond the power ofthis court . . . to determine whether the State's funds appropriated to respondent foreducation . . . have been wisely directed or reasonably applied, or whether itsbudget was fairly divided in terms of priority of needs between competing educational interestsin the community" (Matter of Bennett v City School Dist. of New Rochelle, 114 AD2d at65; see James v Board of Educ. of City of N.Y., 42 NY2d at 365; Matter of NewYork City School Bds. Assn. v Board of Educ. of City School Dist. of City of N.Y., 39NY2d 111, 121 [1976]; Matter of Wagschal v Board of Examiners of Bd. of Educ. of City ofN.Y., 117 AD2d at 471).
Similarly, while the petitioners' appeal to safety is compelling, the Court of Appeals hasmade clear that a school district's obligation to provide transportation equally, if at all, "does notrefer to any obligation to consider the relative hazards in the paths of different children" (Prattv Robinson, 39 NY2d at 559). Education Law § 3635 (1) (c), therefore, "furnishes nobasis upon which to posit a duty on the part of the school district to bus [a child] closer to [his or]her home solely in order to avoid a hazard" (Pratt at 559).
The petitioners rely heavily on the Regulations of the Chancellor of the New York CityBoard of Education A-801, § 2.3, which provide, in relevant part, that "[i]n a small numberof cases where public transit facilities are inadequate or unavailable, exceptions may be grantedby the Office of Pupil Transportation to allow the use of existing contract bus service providedfor children in elementary grades by pupils in grades 7 and 8." However, while this regulationstates that variances "may" be granted, the term "may" is permissive (see Matter of General Elec. Capital Corp. vNew York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 255 n 1 [2004]);thus, the regulation does not require that variances be granted. Given the deference due to anagency's interpretation of its own regulations (see Matter of Peckham v Calogero, 12NY3d at 431; Matter of Deerpark Farms, LLC v Agricultural & Farmland Protection Bd. ofOrange County, 70 AD3d at 1038), this Court must assume that the DOE is permitted todiscontinue or deny variances and to determine under what circumstances, if any, variances willbe granted. Because the DOE's decision to interpret this regulation more strictly than it has in thepast is not "unreasonable," or "irrational, arbitrary, or capricious" (Matter of Cedar Manor Nursing Home vNovello, 63 AD3d 833, 834 [2009]) and does not " 'conflict[ ] with the plain meaning ofthe promulgated language' " (EastAcupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 209 [2009], quoting Matter of Visiting Nurse Serv. of N.Y.Home Care v New York State Dept. of Health, 5 NY3d 499, 506 [2005]), this Court willnot disturb the DOE's determination.
In light of our determination, we need not reach the parties' remaining contentions. Prudenti,P.J., Eng, Hall and Lott, JJ., concur.