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Decision No. 15,552

Appeal of ELIZABETH MEYERSON from action of the Board of Education of the Lawrence Union Free School District regarding transportation.

Decision No. 15,552

(March 30, 2007)

Erlich, Frazier & Feldman, Esqs., attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Lawrence Union Free School District (“respondent”) to grant certain nonpublic school transportation requests.  The appeal must be dismissed.

Petitioner is a district resident and taxpayer whose children attend respondent’s public schools.  After residents voted to reject the district’s proposed 2005-2006 budget, the district adopted a contingency budget.

As of August 2005, respondent received approximately 40 late requests for transportation for students who planned to enroll at the Hebrew Academy for Excellence (“Hebrew Academy”), a new nonpublic school scheduled to open in September 2005.  The transportation requests were discussed at respondent’s August 9 and August 16, 2005 meetings.  A vote on the matter at the August 16, 2005 meeting resulted in a tie and respondent agreed to investigate the matter further.

The minutes of respondent’s September 6, 2005 meeting indicate that respondent decided that the late requests could be accommodated without additional cost to the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 18, 2005.

Petitioner claims that the decision to grant the late transportation requests was arbitrary, capricious and an abuse of discretion.  Petitioner bases these assertions on her claim that transporting the students to Hebrew Academy imposed additional costs on the district for fuel, insurance and bus driver compensation.  According to petitioner, such costs are not permissible “ordinary contingent expenses” under Education Law §2023.

Respondent claims that the appeal must be dismissed for lack of standing, failure to join necessary parties and failure to state a claim upon which relief could be granted.  Respondent maintains that because transportation could be provided to the students without imposing any costs on the district, it was legally obligated to do so.

Initially, I must address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).  Since this appeal pertains to alleged transportation expenditures for the 2005-2006 school year, which has ended, the appeal is moot.

Petitioner’s claim must also be dismissed on the merits.  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 this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Delaney, 46 Ed Dept Rep ___, Decision No. 15,498; Appeal of S.M., 44 id. 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).  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 Delaney, 46 Ed Dept Rep ___, Decision No. 15,498; Appeal of S.M., 44 id. 391, Decision No. 15,208).  In the first instance, it is the responsibility of the board of education to determine whether a reasonable explanation has been offered for submitting a late request (Appeal of Delaney, 46 Ed Dept Rep ___, Decision No. 15,498; Appeal of S.M., 44 id. 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Delaney, 46 Ed Dept Rep ___, Decision No. 15,498; Appeal of S.M., 44 id. 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).

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 Delaney, 46 Ed Dept Rep ___, Decision No. 15,498; Appeal of S.M., 44 id. 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).

Respondent states that it owns no buses and contracts with eight private bus companies to supply transportation for district students.  Under the particular contract at issue in this appeal, respondent paid a fee for each bus required.  Respondent explains that it had room on two of its school buses for the students at issue and that there was no additional cost to transport them to Hebrew Academy.  Respondent therefore maintains that it was legally obligated to grant the late transportation requests.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

To support her claim, petitioner submitted minutes from three of respondent’s 2005 meetings, two newspaper articles, four bus route sheets, and respondent’s September 2005 newsletter.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Application of Coleman, 45 Ed Dept Rep 282, Decision No. 15,324; Application of Gabryel, 44 id. 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050).  Therefore, I have not considered the newspaper articles.

The route sheets indicate that the routes to and from Hebrew Academy either begin and/or end at “KGN, PK, 01-12.”  Rather than serving as evidence that these were new or additional bus routes, the route sheets suggest that the Hebrew Academy students were transported on the existing buses and routes that were used to transport the district’s public school students from pre-kindergarten through grade 12.  In fact, respondent explains that two buses transported Hebrew Academy students before bringing public school students to school in the morning, and after transporting students from another nonpublic school in the afternoon, and that Hebrew Academy was able to adjust its school start time in order to accommodate this arrangement.

On the record before me, I cannot conclude that respondent incurred any costs as a result of its decision to transport the students to Hebrew Academy.  Because petitioner has not met her burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.