Decision No. 13,713

(December 18, 1996)

Keane & Beane, P.C., attorneys for respondent, John Burkhardt, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Haldane Central School District ("respondent") to provide transportation for their daughter, Kristina, to a nonpublic school. The appeal must be dismissed.

Kristina is a junior high school student who previously attended school in respondent's district. On June 27, 1996, petitioners decided to send Kristina to a nonpublic school that is within the 15 mile statutory limit for transportation services. On July 1, 1996, petitioners submitted a request to respondent for their daughter's transportation to the nonpublic school. On August 9, 1996, respondent's superintendent denied petitioners' transportation request on the basis that it was untimely, and would result in additional costs to the district. On August 14, 1996, petitioners requested a meeting with respondent board to discuss the issue, but that request was denied. On August 20, 1996, respondent board upheld the superintendent's determination to deny transportation. This appeal ensued.

Petitioners request a reversal of respondent's resolution denying their daughter's transportation request, a determination that their transportation request was reasonable, and an order that respondent provide transportation services for their daughter for the 1996-97 school year. Respondent contends that the appeal is untimely, that the request for transportation was untimely and that the appeal should be dismissed.

Before reaching the merits, I will discuss the procedural issue of timeliness. An appeal to the Commissioner of Education pursuant to Education Law '310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The record in this case indicates that respondent board's determination to deny petitioners' transportation request was made on August 20, 1996. Petitioners commenced this appeal on September 9, 1996. Although respondent argues that the date of denial was August 9, 1996 and that the appeal was commenced 31 days from the date of denial, the date from which the 30 day limitation runs is the date of respondent's final determination. Since that final determination was made on August 20, 1996, the appeal is timely.

However, the appeal must be dismissed on the merits. Pursuant to Education Law '3635(2), a request for transportation to a nonpublic school must be submitted no later that the first day of April preceding the school year for which transportation is requested. The deadline is to enable school districts to budget the funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Somer, 34 Ed Dept Rep 16; Appeal of McNair, 33 id. 418). However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law '3635(2); Appeal of Somer, supra; Appeal of Nolan, 32 Ed Dept Rep 352; Appeal of Rugar, 28 id. 159). Even in the absence of a reasonable explanation for delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Young, 34 Ed Dept Rep 350; Appeal of Somer, supra; Appeal of Nolan, supra). It is the responsibility of the board of education in the first instance to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Rugar, supra). The board's determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Somer, supra; Appeal of Block, 28 Ed Dept Rep 308; Matter of Wybinow, 22 id. 390).

In this case, petitioners filed their transportation request well beyond the April 1st deadline. Respondent concluded that petitioners' explanation for the delay -- that they made a belated decision to enroll their daughter in a nonpublic school -- was not reasonable. A belated decision to enroll a student in a nonpublic school does not constitute a reasonable excuse for failure to submit a timely transportation request (Appeal of Young, supra; Appeal of Somer, supra; Appeal of Stephens, 26 Ed Dept Rep 434; Matter of Bail, 25 id. 95). Finally, the record indicates that the district does not transport any students to the nonpublic school that petitioners' daughter attends and thus respondent would incur significant costs to transport Kristina.

Petitioners allege that the inadequacy of the public school program and the suggestion of the elementary school principal to enroll their daughter in a nonpublic school if the district was unable to meet the academic and social needs of certain students is what led to their decision to enroll their daughter in a nonpublic school. Respondent's principal submits an affidavit refuting petitioners' claim that she encouraged them to consider alternatives to public education. The principal asserts that she advised petitioners that, given their level of dissatisfaction and lack of support for the district, they were not forced to keep their daughter enrolled if they were unhappy with respondent's programs. Furthermore, petitioners assert that the former transportation director told them that they could not request transportation until they were certain their daughter would be leaving the district, an allegation he specifically denies. Even if these allegations were proven, they are not a basis to grant a late transportation request. Based on the record before me, I conclude that respondent has not abused its discretion in denying petitioners' late request.

THE APPEAL MUST BE DISMISSED.

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