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Decision No. 14,700

Appeal of ROBERT and CYNTHIA AGUANNO, on behalf of their son NICHOLAS, from action of the Board of Education of the Herricks Union Free School District regarding transportation.

Decision No. 14,700

(March 21, 2002)

 

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

 

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Herricks Union Free School District ("respondent") denying their son Nicholas transportation to a non-public school. The appeal must be dismissed.

Prior to April 1, 2001, petitioners made a request for transportation to the Old Westbury School of the Holy Child ("Holy Child"), a non-public school, for three of their children. Respondent agreed to provide that transportation. Petitioners later decided to send Nicholas to Holy Child and requested transportation for him on August 3, 2001. Respondent's transportation director denied that request by letter dated September 6, 2001 on the grounds that the request was late and would result in additional cost to the district. Petitioners appealed to respondent, who upheld the transportation director's determination. This appeal ensued.

Petitioners contend that respondent is obligated by Education Law "3635 to transport Nicholas because respondent has allegedly budgeted money to pay for other late transportation contingencies such as students moving into the district after April 1. Petitioners also accuse respondent of religious discrimination and attempting to violate petitioners' right to due process.

Respondent asserts that it is not required to transport Nicholas because petitioners' belated decision to enroll Nicholas in Holy Child does not constitute a reasonable excuse pursuant to Education Law "3635. Respondent further contends that it contracts for transportation on a per-seat basis and that it would cost the district an additional $513.95 per month to provide the transportation requested. Respondent denies petitioners' remaining allegations.

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 (Appeal of Sarant, 41 Ed Dept Rep __, Decision No. 14,617; Appeal of Joanne M., 40 id. ___, Decision No. 14,584; Appeal of Goyal, 40 id. 40, Decision No. 14,415). 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 Sarant, supra; Appeal of Joanne M., supra; Appeal of Goyal, 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, 39 Ed Dept Rep 492, Decision No. 14,290). A belated decision to enroll a student in a private school is not a reasonable explanation for the late submission of a transportation request (Appeal of R.O., 40 Ed Dept Rep 137, Decision No. 14,441; Appeal of Gabay, supra). 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 R.O., supra; Appeal of Mogilski, 37 Ed Dept Rep 446, Decision No. 13,901).

Petitioners filed their transportation request for Nicholas after the April 1 deadline due to a belated decision to enroll Nicholas in Holy Child. Petitioners acknowledge that this does not constitute a reasonable excuse for the delay. Furthermore respondent asserts, and petitioners do not refute, that respondent contracts for transportation on a per-seat basis and that providing transportation for Nicholas to Holy Child would result in additional cost to the district. Therefore, I find that respondent has not abused its discretion in denying petitioners' late transportation request.

Finally, I find no merit to petitioners' discrimination and due process claims. Petitioners assert that respondent denied transportation for Nicholas because Holy Child is a Catholic school yet they fail to articulate any reasoning in support of this assertion. Moreover, respondent transports petitioners" three other children to Holy Child. Therefore, I find no merit to petitioners' allegation of discrimination.

Similarly, I find no merit to petitioners' due process claim. Petitioners allege that respondent deliberately mailed its final determination to an incorrect address to deprive petitioners of their right to appeal. However, petitioners failed to establish that respondent intentionally attempted to interfere with petitioners' rights and respondent has not asserted timeliness as a defense. Therefore, petitioners' due process claim is also dismissed.

 

THE APPEAL IS DISMISSED.

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