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Decision No. 12,633

Appeal of BARBARA PARKS, on behalf of Julian Parks, from action of the Board of Education of the Roosevelt Union Free School District relating to transportation.

Decision No. 12,633

(January 13, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of transportation for her son for the 1991-92 school year. The appeal must be dismissed.

On August 27, 1991, petitioner sent a letter to the president of the Roosevelt Union Free School District school board ("the respondent") requesting transportation for her son to the St. Andrew's School for the 1991-92 school year. Petitioner's request for transportation was denied at a meeting of respondent board of education on September 4, 1991, and respondent's superintendent notified petitioner of that decision by letter dated September 5, 1991. Although the letter did not state the reason for the denial, in a separate letter dated September 20, 1991, respondent indicated that the request was denied due to petitioner's failure to adhere to the April 1st deadline. This appeal ensued.

Petitioner contends that her failure to submit a timely request for transportation should be excused because her son's father (her former husband) was murdered on December 27, 1990 and that thereafter she was occupied in applying for social security, retirement benefits and dealing with insurance matters. Petitioner also cites the death of four other non-immediate family members in 1991 as reasons for the delay. Petitioner admits that her failure to file a timely transportation request was an oversight on her part but claims that mitigating factors should be taken into account.

Respondent alleges that it did not abuse its discretion in denying petitioner's late transportation request. Respondent notes that petitioner's request was submitted almost five months past the April 1st deadline and only one week before the start of school. Respondent also alleges that providing transportation to petitioner's son would result in additional expenditures which the district is not obligated to provide.

Education Law '3635(2) provides that a request for transportation to a nonpublic school must be submitted, in writing, not later than April 1st preceding the commencement of the school year for which the transportation is requested, except that a late request for transportation may not be denied if a reasonable explanation is provided for the delay. A determination of the reasonableness of a particular explanation for the delay is vested in the board of education. Such determination will not be set aside unless it constitutes an abuse of discretion (Appeal of McCormack, 27 Ed Dept Rep 152).

I do not find that respondent abused its discretion in denying petitioner's transportation request. Although petitioner's preoccupation was understandable, there was, nonetheless, sufficient time between January 1 and April 1 to make a timely request. As previously held, there is no legal requirement for a board of education to remind parents of children already receiving transportation of the filing requirements set forth in Education Law '3635(2) (Appeal of Higler, 27 id. 153; Matter of Browne, 17 id. 406). Nonetheless, in this case, the secretary to the administrator in charge of transportation for the district telephoned petitioner on March 28, 1991, to remind her of the April 1st deadline. Although a message was left with petitioner's son, which petitioner claims she never received, this does not constitute a reasonable excuse for her delay, particularly in light of the fact that respondent was under no obligation to remind petitioner of the deadline.

A late request for transportation must be granted even absent a reasonable explanation for the delay, provided that the transportation can be provided under existing transportation arrangements, at no additional expense to the district (Appeal of Perez, 30 Ed Dept Rep 213; Appeal of Gordon, 29 Ed Dept Rep 175). Respondent contends that since it owns no buses, it would cost respondent an additional $299.69 per month or $2,397.52 for the rest of the school year, to provide the requested transportation. Petitioner argues that since respondent transports another Roosevelt student to the St. Andrew's School, the additional costs to transport her son would only be $146.52 per month or $1,098.90, and submits the transportation contract to support her figures. Whether the correct amount of the cost of transportation is $1,098.,90 as the petitioner contends or $2,397.52 as the respondent contends is irrelevant. The law is clear -- a district is not required to incur any additional expenditure of funds to transport petitioner's son (see Appeal of Brown, 29 Ed Dept Rep 274 [1990]; Appeal of Rugar, 28 Ed Dept Rep 159 [1988]; Matter of Grimaldi, 26 Ed Dept Rep 261 [1986]; Matter of Cronkrite, 24 Ed Dept Rep 331 [1985]).

Under the circumstances, I am constrained to find that respondent's denial of the request for transportation was a reasonable exercise of its discretion under '3635 of the Education Law. Although I am sympathetic to petitioner's circumstances, I do not find that respondent's decision constitutes an abuse of discretion.

THE APPEAL IS DISMISSED.

END OF FILE