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Decision No. 15,545

Appeal of MARY CAPELING, on behalf of her daughter MEGHAN, from action of the Board of Education of the Chittenango Central School District regarding transportation.

Decision No. 15,545

(March 16, 2007)

Ferrara, Fiorenzo, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc Reitz, Esq. of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Chittenango Central School District (“respondent”) denying her daughter, Meghan, transportation to a nonpublic school during the 2006-2007 school year.  The appeal must be dismissed.

On March 30, 2006, petitioner visited respondent’s transportation office and asked to fill out a transportation request form so that Meghan could be transported to a nonpublic school during the 2006-2007 school year.  Upon noticing that two nonpublic schools were listed on the form, St. Matthew’s School and Blessed Sacrament School, the transportation secretary told petitioner to confirm as soon as possible which school her daughter would actually attend.  On May 8, 2006, petitioner telephoned to request transportation to St. Margaret’s School and was informed by the transportation secretary that St. Margaret’s was not identified by petitioner on the form she submitted on March 30, 2006 and it was not a school to which transportation was already being provided for any student residing in the district.  Later that day, petitioner telephoned the transportation supervisor who confirmed that St. Margaret’s School was not requested in writing prior to the April 1, 2006 deadline. 

Respondent denied petitioner’s request on June 12, 2006, after its business administrator determined that it would not be feasible to change the existing bus routes to include St. Margaret’s School.  He concluded that another morning bus and driver would be needed at a cost of approximately $10,000 and that the afternoon bus would have to travel an additional 12.6 miles per day, incurring further expense.  This appeal ensued.

     On September 6, 2006, the first day of school, respondent began transporting Meghan to St. Matthew’s School, which she attended during the 2006-2007 school year. 

Petitioner contends that respondent is obligated to transport Meghan to St. Margaret’s School because the same bus provided for students attending St. Matthew’s School could also be routed to St. Margaret’s School at no additional expense.  Petitioner concedes that St. Matthew’s school day is different than St. Margaret’s, starting at 7:40 a.m. and ending at 2:00 p.m., but argues that her daughter could be dropped off early, before the 8:15 a.m. start time for St. Margaret’s, and dismissed at 2:15 p.m., rather than 2:30 p.m.  Petitioner alleges that the transportation secretary told her that it was not necessary to list on the form all the nonpublic schools being considered.  Petitioner also alleges that the delay in contacting respondent with her final decision of St. Margaret’s School was caused by the extenuating circumstances of her mother’s out-of-town hospitalization. 

     Respondent denies that its transportation secretary excused petitioner from the obligation to submit a written request for transportation to St. Margaret’s School by April 1, 2006.  Respondent contends that petitioner never made a written request for transportation to St. Margaret’s School for the 2006-2007 school year and made her verbal request well beyond the April 1, 2006 deadline.  Respondent argues that petitioner’s decision after April 1 to send Meghan to St. Margaret’s is not a reasonable excuse for missing the deadline.  Respondent also alleges that transporting Meghan to St. Margaret’s cannot be accomplished by existing bus routes and would cost in excess of $10,000.  Respondent further argues that the appeal is moot because Meghan is attending St. Matthew’s School during the 2006-2007 school year and respondent is providing her transportation.

     The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Petitioner submitted a written request on March 30, 2006 for transportation for her daughter to attend a nonpublic school, either St. Matthew’s or Blessed Sacrament, during the 2006-2007 school year.  Respondent granted that request and has been providing transportation since September 6, 2006 to St. Matthew’s School, where Meghan has been in attendance during the 2006-2007 school year.  Since petitioner has obtained transportation for her daughter to attend a nonpublic school during 2006-2007, the matter is moot and the appeal must be dismissed.

     The appeal must also be dismissed on the merits.  Education Law §3635(2) requires that an application for transportation to a nonpublic school be submitted in writing no later than April 1 preceeding the school year for which transportation is requested or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of these deadlines is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Thomas, 45 Ed Dept Rep 528, Decision No. 15,405; Appeal of Goldman, 39 id. 630, Decision No. 14,334; Appeal of Mogilski, 37 id. 446, Decision No. 13,901).  Districts, however, may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635(2); Appeal of Thomas, 45 Ed Dept Rep 528, Decision No. 15,405; Appeal of J.D., 42 id. 373, Decision No. 14,884).  In the first instance, it is a board of education’s responsibility to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744; Appeal of Tarricone, 38 id 623, Decision No. 14,105).  A board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809).

     Here, petitioner admits that she did not submit a written request for transportation to St. Margaret’s School by April 1, 2006.  The excuse petitioner gave for the delay was that she did not make her final decision until May 8, 2006, due in part to caring for her mother out of town for two and a half weeks during April 2006.

     It is well established that a board of education need not accept a decision made after April 1 to send a child to a nonpublic school as a reasonable excuse for failure to file a timely transportation request (Appeal of Aguanno, 41 Ed Dept Rep 326, Decision No. 14,700; Appeal of Attubuto, 38 id. 511, Decision 14,028; Appeal of J.D., 42 id. 373, Decision No. 14,884).  The excuse provided by petitioner for her absence during April would not account for her failure to make a decision before April 1 and, therefore, is not a sufficient reason to require a board of education to waive the filing requirement. 

Even absent a reasonable excuse for delay, however, a late request for transportation must be granted if the transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Thomas, 45 Ed Dept Rep 528, Decision No. 15,405; Appeal of Goldman, 39 id. 630, Decision No. 14,334).  Here, respondent contends that providing transportation to St. Margaret’s School cannot be accomplished by the district’s existing routes and would result in the district incurring an additional expense of $10,000.  Petitioner has not refuted this contention.  Accordingly, I am unable to find that the transportation petitioner seeks to St. Margaret’s School can be provided to her daughter without additional expenses being incurred by the district. 

Therefore, on the record before me, I cannot find that respondent abused its discretion in not providing petitioner’s daughter with transportation to St. Margaret’s School.

THE APPEAL IS DISMISSED.

END OF FILE