Appeal of S.M., on behalf of her son M.M., from action of the Board of Education of the Lakeland Central School District regarding transportation.

Decision No. 15,208

(April 19, 2005)

Levy, Santoro & Santoro, Esqs., attorneys for petitioner, Stephen M. Santoro, Sr., Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Lakeland Central School District ("respondent") to transport her son to a nonpublic school. The appeal must be dismissed.

In May 2004, petitioner's son was suspended from attending respondent's schools through June 30, 2005. Pursuant to a hearing waiver agreement, petitioner's son "...is prohibited from being on school property during the period of the suspension and is prohibited from attending any school related programs or activities during this period." Subsequently, petitioner enrolled her son in a nonpublic school for the 2004-2005 school year.

In August 2004, petitioner requested transportation for her son to the nonpublic school during the 2004-2005 school year. By letter dated September 2, 2004, respondent's superintendent denied petitioner's request on the grounds that school district buses are "school property" within the meaning of the hearing waiver agreement and, pursuant to such agreement, petitioner is prohibited from such property through June 30, 2005. In a letter dated September 23, 2004, petitioner's attorney disputed respondent's reliance on the waiver agreement to deny transportation and requested that respondent reconsider its determination. Petitioner commenced this appeal on October 4, 2004.

Petitioner contends that respondent is required to provide transportation to her son pursuant to Education Law ��1709 and 3635. Petitioner states that she did not request that respondent use its own buses to transport her son and alleges that respondent has alternative means to provide the requested transportation. Petitioner requests that I find respondent in violation of Education Law ��1709 and 3635 and direct respondent to provide transportation for her son during the 2004-2005 school year and to compensate petitioner for the cost of transportation not provided to date. Petitioner also requests that I hold a hearing.

Respondent denies that it is required to transport petitioner's son and alleges that its determination to deny transportation based upon the hearing waiver agreement was proper. Respondent also contends that the appeal must be dismissed because petitioner failed to submit a timely request for transportation pursuant to Education Law �3635(2).

With respect to petitioner's request for a hearing, the jurisdiction of the Commissioner in an appeal brought pursuant to Education Law �310 is appellate in nature and does not provide for evidentiary hearings or investigations (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915). Accordingly, I decline to grant petitioner's request.

Education Law �3635(2) requires that an application 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. The purpose of the deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of J.D., 42 Ed Dept Rep 373, Decision No. 14,884; Appeal of Joanne M., 40 id. 686, Decision No. 14,584; Appeal of Attubato, 38 id. 511, Decision No. 14,082). 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 J.D., supra; Appeal of Joanne M., supra; Appeal of Attubato, supra). A belated decision to enroll a student in a private school is not a reasonable explanation for a late submission of a transportation request (Appeal of J.D., supra; Appeal of Attubato, supra; Appeal of Matero, 36 Ed Dept Rep 242, Decision No. 13,713).

The record indicates that petitioner failed to submit a timely request for transportation pursuant to Education Law �3635(2) as a result of petitioner's belated decision to enroll her son in the nonpublic school after his suspension. Accordingly, petitioner has failed to provide a reasonable explanation for the delay in submitting her request (Appeal of J.D., supra).

However, 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., 40 Ed Dept Rep 137, Decision No. 14,441; Appeal of Tarricone, 38 id. 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056). It appears from the record that respondent provides transportation to students attending nonpublic schools from designated centralized pick-up points located at respondent's two high schools. Respondent contends that since the waiver agreement prohibits petitioner's son from being on school property, he cannot be transported from any of the high school pick-up points. Consequently, should petitioner's transportation request be granted, respondent would incur additional costs to arrange for alternative transportation of petitioner's son. The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (Appeal of J.D., supra; Appeal of Joanne M., supra; Appeal of Matero, supra).

In an appeal to the Commissioner pursuant to Education Law �310, the petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Ritters, 44 Ed Dept Rep 117, Decision No. 15,117; Appeal of Nelson, 44 id. 20, Decision No. 15,082; Appeal of Green, 40 id. 278, Decision No. 14,479).

On the record before me, I do not find respondent's interpretation of the waiver agreement to be unreasonable, and petitioner has otherwise failed to rebut respondent's contention that it would incur additional costs to arrange alternative transportation should petitioner's transportation request be granted.

 

THE APPEAL IS DISMISSED.

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