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Decision No. 13,359

Appeal of RAUL MENDOZA, on behalf of MARTHA N. MENDOZA and CLAUDIA C. UMANA, from action of the Board of Education of the Hempstead Union Free School District regarding transportation.

Decision No. 13,359

(February 13, 1995)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Gilbert Henoch, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport his daughters to a nonpublic school. The appeal must be sustained.

On or about April 7, 1994, petitioner submitted a request to respondent for transportation of his daughters to a nonpublic school for the 1994-95 school year. Petitioner stated that the reason for the late request was that he did not know whether his daughters had been accepted at the nonpublic school. Respondent denied the request on August 26, 1994. This appeal followed.

Pursuant to Education Law '3635(2), a request for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested, provided that no late request may be denied if there is a reasonable explanation for the delay (Appeal of Lovascio, 31 Ed Dept Rep 75; Appeal of Rugar, 28 id. 159). The purpose of this deadline is to enable school districts to budget funds and make the arrangements necessary to provide transportation in a reasonable and economical manner (Appeal of Somer, 34 Ed Dept Rep 16; Appeal of McNair, 33 id. 418). Moreover, a late transportation request must be honored, even in the absence of a reasonable explanation, if the requested transportation arrangements can be made at no additional cost to the district (Appeal of Lovascio, supra; Matter of Cronkrite, 24 Ed Dept Rep 331; Matter of Van Egghen, 19 id. 392).

Respondent states that it owns no buses and contracts with a private bus company to supply transportation for district students. Under this contract, respondent pays a fee for each bus the district requires. Respondent admits that if there is room on a particular bus after it arranges for the transportation of all private school students who file transportation requests before April 1st, the district will incur no additional expense by allowing students who file late transportation requests to ride on that same bus. Respondent concedes that under its existing transportation contract it would incur an additional charge only if a new bus would have to be scheduled. Respondent admits that there is room on the school buses for petitioner's children and that there would be no additional cost to transport them to the nonpublic school.

Respondent erroneously relies on my decision in Appeal of McCormack, 27 Ed Dept Rep 152, to justify its denial of transportation to petitioner. In McCormack, supra, I determined that a school district need not provide transportation to similarly situated students filing late transportation requests if, under existing arrangements, such transportation would generate additional expenses for the district. Respondent contends that it cannot furnish transportation at no additional cost to the district to all "similarly situated" applicants who file late requests. Although not expressly stated, respondent seems to maintain that because it cannot guarantee transportation without incurring additional costs to all applicants who may, in the future, file late requests, it cannot grant transportation to any late applicants. Respondent is wrong. First, students who file late transportation requests on different dates are not "similarly situated." Moreover, respondent admits that it can transport petitioner's children without incurring additional expense. Accordingly, under the facts of this case, respondent is obligated to do so.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent accept petitioner's transportation request and provide transportation to petitioner's daughters for the balance of the current school year.

END OF FILE