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Decision No. 14,441

Appeal of R.O., on behalf of J.O., from action of the Board of Education of the Lynbrook Union Free School District regarding transportation.

Decision No. 14,441

(August 18,2000)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman and Christine M. LaPlace, Esqs., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Lynbrook Union Free School District ("respondent") denying her request to transport her son to a non-public school. The appeal must be dismissed.

J.O., a school-age minor, resides with petitioner within respondent’s district. J.O. attended a non-public school, Our Lady of Peace, within the district from 1992-1999. On June 23, 1999, administrators from Our Lady of Peace informed petitioner that the school planned to take disciplinary action against J.O. because of an alleged act of verbal sexual harassment committed by J.O. against another student. Immediately following a meeting with Our Lady of Peace administrators, petitioner submitted an application for her son to attend another non-public school, Kellenberg Memorial High School, outside the district.

On July 12, 1999, petitioner was notified that her son had been accepted at Kellenberg. The next day, July 13, J.O.’s father went to the office of respondent’s superintendent and orally requested that the district provide J.O. with transportation services to Kellenberg for the upcoming year. The District Clerk and Director of Transportation, Linda Moy, and the Assistant Superintendent for Business, Alan Phillips, told J.O.’s father that transportation would not be provided to J.O. because the application was untimely. On July 15, 1999, petitioner met with Mr. Phillips and William Metkiff, respondent’s Superintendent of Schools, to again request transportation. At that meeting, petitioner explained the circumstances surrounding her late request. Metkiff informed petitioner that transportation would not be provided to J.O. because the application was untimely and because the district would incur additional expense if the request were granted.

On July 22, 1999, petitioner submitted a formal application to respondent seeking transportation services for her son. By letter dated July 23, 1999, Ms. Moy informed petitioner that her transportation request had been denied because she failed to meet the April 1 filing deadline. This appeal was commenced on August 20, 1999.

Petitioner claims that her failure to apply for transportation in a timely fashion should be excused. She asserts that the allegation of sexual harassment made against her son –- which prompted her to select another school for him –- arose after the April 1 filing deadline, making it impossible for her to have filed on time. Petitioner also claims that she and her husband work full time and are thus unable to provide transportation themselves. She seeks an order requiring respondent to provide transportation services for J.O. Petitioner's request for interim relief was denied on September 1, 1999.

Respondent claims that petitioner’s appeal is untimely and that it acted within its lawful authority and discretion in denying petitioner’s late request for transportation. Accordingly, respondent seeks to have the appeal dismissed in its entirety.

Initially, I note that respondent requests that I reject several new arguments and one exhibit (i.e., a letter from J.O.’s psychologist attesting to the fact that a change of schools is necessary for J.O.’s psychological well-being) submitted by petitioner in her reply. Pursuant to 8 NYCRR "275.14, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (Appeal of Pappas, 39 Ed Dept Rep 310, Decision No. 14,246; Appeal of John W. and Lorraine W., 37 id. 713, Decision No. 13,965). A reply is not meant to buttress allegations contained in the petition or to add assertions or exhibits that should have been part of the petition (Appeal of Pappas, supra; Appeal of John W. and Lorraine W., supra). Accordingly, while I have examined petitioner’s submissions, I have not considered those portions of the reply that constitute new evidence or arguments which are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also requests that I dismiss the appeal as untimely. 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 unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The date from which the 30-day period runs is the date of respondent's final determination (Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Matero, 36 id. 242, Decision No. 13,713). The record in this case indicates that the district's transportation director notified petitioner of respondent’s determination by letter dated July 23, 1999. This challenge to respondent's decision was filed less than 30 days after the issuance of that letter. Accordingly, I decline to dismiss this appeal as untimely (Appeal of Attubato, supra; Appeal of Matero, supra).

The appeal must, however, be dismissed on the merits. Pursuant to Education Law "3635(2), a request for transportation to a non-public school must be submitted no later than the first day of April preceding the school year for which transportation is requested (Appeal of Gabay, 39 Ed Dept Rep ____, Decision No. 14,290; Appeal of Tarricone, 38 Ed Dept Rep 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056). The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Gabay, supra; Appeal of Tarricone, supra; Appeal of Shevlin, supra). 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 Gabay, supra; Appeal of Tarricone, supra). In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Gabay, supra; Appeal of Tarricone, supra; Appeal of Amoroso, 37 Ed Dept Rep 359, Decision No. 13,879). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gabay, supra; Appeal of Tarricone, supra; Appeal of Amoroso, supra).

Petitioner claims that she has offered a reasonable excuse for her late transportation request. She asserts that she had no intention of switching her son’s school placement until harassment allegations were leveled against him. Because those allegations did not arise until after the April 1 deadline, petitioner contends that timely application was not possible. However, numerous Commissioner's decisions have held that a belated decision to enroll a student in a non-public school does not constitute a reasonable excuse for failure to submit a timely transportation request (Appeal of Gabay, supra; Appeal of Tarricone, supra;Appeal of Amoroso, supra). Furthermore, petitioner’s claim that she and her husband work full time and are unable to provide transportation themselves is also unavailing. Inconvenience is not a basis for granting transportation to someone who is otherwise ineligible (Appeal of Mogilski, 37 Ed Dept Rep 446, Decision No. 13,901; Appeal of McNair, 33 id. 418, Decision No. 13,098).

Even absent a reasonable explanation for the 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 Tarricone, supra; Appeal of Shevlin, supra; Appeal of Mogilski, supra). Respondent contracts with the Metropolitan Suburban Bus Authority (MSBA) for transportation passes to Kellenberg on a "per pupil" basis, and under that arrangement it would incur an additional expense of approximately $756 to transport petitioner’s son. Under these circumstances, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.

THE APPEAL IS DISMISSED.

END OF FILE