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Decision No. 14,744

Appeal of TRACI WHEELWRIGHT, on behalf of ELLIOTT FORTUNE, from action of the Board of Education of the Roosevelt Union Free School District regarding transportation.

 

Decision No. 14,744

(June 19, 2002)

 

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, D. James Gounelas, of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Roosevelt Union Free School District ("respondent") denying her son transportation to a nonpublic school. The appeal must be dismissed.

By letter dated October 26, 2001, petitioner requested transportation for her son to Transfiguration Parish Day School, a nonpublic school, for the 2001-2002 school year. On November 9, 2001, respondent's assistant superintendent for business informed petitioner that her request was denied due to budget constraints and because the request was submitted after the April 1st deadline for the filing of transportation requests.

At respondent's board meeting on November 28, 2001, petitioner reiterated her transportation request. After considering petitioner"s request, respondent determined that petitioner's son was not eligible for transportation during the 2001-2002 school year because he was not age eligible to attend kindergarten in the district. Respondent's superintendent informed petitioner of this determination on November 30, 2001. This appeal ensued. Petitioner's request for interim relief was denied on January 17, 2002.

Petitioner contends that her son is entitled to transportation to the nonpublic school because she has a valid reason for missing the April 1st deadline for filing the transportation request and because respondent is sending a school bus to the nonpublic school in question with empty seats.

Respondent contends that it properly denied petitioner's request for transportation and further alleges that it would incur additional cost to transport petitioner's son to the nonpublic school. In addition, respondent contends that petitioner has failed to properly serve the district with her petition in accordance with "275.8 of the Commissioner"s regulations, and that petitioner has failed to state a claim.

First, I will address respondent"s claim of defective service. Section 275.8 of the Commissioner's regulations provides, in pertinent part:

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Respondent states that it only became aware of the filing of the petition with the State Education Department upon receipt of a copy of a letter from my Office of Counsel advising respondent's counsel that a petition had been received and perfected. Respondent states that it requested and received a copy of the petition from my Office of Counsel.

Petitioner submits a sworn affidavit in which the affiant states that she served the petition on respondent by delivering it to and leaving it with Darren Connor, the president of respondent board, on December 7, 2001. There is no statement in the record from Darren Connor refuting this affidavit. On the basis of this record, I find that petitioner has adequately established that the petition was served on respondent in accordance with "275.8.

Respondent states that it denied petitioner's transportation request because her son was not age eligible to attend its kindergarten program. Respondent's superintendent informed petitioner of this reason in his letter to her dated November 30, 2001. Respondent's Policy No. 5140 provides that a child is eligible for entrance to the district's kindergarten program if he/she has attained the age of five years on or before December 31st of the school year in which he/she enters the program. Respondent states that at its November 28, 2001 board meeting petitioner admitted that her son would not reach the age of five years by December 31, 2001. In this appeal, petitioner does not address the issue of her son's age eligibility to attend respondent's kindergarten program, even though this was the reason respondent provided for denying her transportation request. Petitioner does not refute respondent's contention that her son would not reach the age of five by December 31, 2001, and that he would not be age eligible to attend respondent's kindergarten program in the 2001-2002 school year.

A public school may not transport a student to a nonpublic school who is too young to attend the public schools of the district (Appeal of Smith, 37 Ed Dept Rep 583, Decision No. 13,934). On the record before me, I find that respondent properly denied petitioner's transportation request because her son was too young to attend respondent's public schools.

In addition, I do not find that respondent abused its discretion in denying petitioner's transportation request on the basis of its late filing. 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 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 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 R.O., 40 Ed Dept Rep 137, Decision No. 14,441; Appeal of Gabay, 39 id. 492, Decision No. 14,290; 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. The board's determination will not be set aside unless it constitutes an abuse of discretion (Appeal of R.O., supra; Appeal of Gabay, supra; Appeal of Tarricone, supra).

In this case, petitioner did not file her transportation request until October 26, 2001, well after the April 1, 2001 deadline. Petitioner contends that the delay was caused by the fact that the nonpublic school that she originally intended her son to attend did not in fact open. However, petitioner provides no documentary evidence to support this reason. In my view, petitioner has not adequately supported with evidence this explanation for the delay. Petitioner also states that she missed the deadline because she was unaware of it. However, a board of education need not accept ignorance of the filing requirement as a reasonable excuse for failure to file a timely transportation request (Appeal of Mogilski, 37 Ed Dept Rep 446, Decision No. 13,901; Appeal of Haque, 34 id. 496, Decision No. 13,393). Petitioner has failed to establish in the record before me a reasonable excuse for failing to file a timely transportation request.

Finally, petitioner contends that respondent should transport her son to the nonpublic school because there are empty seats on the bus that respondent sends to the nonpublic school. 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 costs to the district (Appeal of R.O., supra; Appeal of Tarricone, supra; Appeal of Shevlin, supra). Respondent states that if petitioner's request were granted, it would incur an additional expense. Respondent states that it contracts on a per student basis for transportation to the nonpublic school at issue, at a monthly cost of $215.54 per student. Petitioner provides no evidence that respondent could provide the transportation without additional cost. Consequently, I conclude that respondent did not abuse its discretion in denying petitioner's late transportation request.

THE APPEAL IS DISMISSED.

END OF FILE