Appeal of LINDA LIPPOLT, on behalf of her daughters MORGEN and FAITH, from action of the Board of Education of the Copiague Union Free School District regarding transportation.

Decision No. 15,914

(May 8, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

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

The parties do not dispute that petitioner initially timely requested transportation for her daughters to a nonpublic school for the 2008-2009 school year.  Thereafter, by letter dated July 1, 2008, petitioner informed respondent’s superintendent that she intended to home school her daughters for the 2008-2009 school year.  The district considered this letter as a withdrawal of petitioner’s transportation request.

Subsequently, petitioner decided she could no longer home school her daughters because she was seeking full-time employment and enrolled them in a nonpublic school.  By letter dated November 10, 2008, petitioner made a new transportation request for the remainder of the 2008-2009 school year to respondent’s assistant superintendent for finance & operations (“assistant superintendent”).  By letter dated November 17, 2008, the assistant superintendent informed petitioner that her transportation request was being denied due to its lateness and the costs that the district would incur if it granted the request.  Thereafter, by an undated letter to respondent’s president, petitioner requested that her transportation request be reconsidered.  Respondent did not respond to this letter.  This appeal ensued.

Petitioner argues that her request for transportation for the 2008-2009 school year should be considered timely because her initial request was made prior to the transportation request deadline.  Petitioner seeks a determination that her daughters are entitled to the requested transportation.  Petitioner also seeks reimbursement for transportation she has provided since January 5, 2009.

Respondent contends that the appeal is untimely.  Respondent argues that its decision was rational and reasonable, that petitioner’s request was untimely without a reasonable excuse, and that it would incur approximately $4,146.00 per month in additional transportation costs should petitioner’s request be granted.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).    Petitioner received respondent’s determination on or about November 17, 2008, more than 30 days prior to the commencement of this appeal. Although petitioner characterizes her undated letter to respondent’s president as an “appeal,” it appears that the letter is indeed a reconsideration request.  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Business Systems of CNY, Inc., 46 Ed Dept Rep 464, Decision No. 15,564; Appeal E.B. and J.B., 46 id. 338, Decision No. 15,526).  Accordingly, this appeal, commenced on February 23, 2009, without any explanation for the delay, must be dismissed as untimely.

Even if this appeal were not dismissed on procedural grounds, it would 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 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 this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically  (Appeal of Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).  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 Capeling, 46 Ed Dept Rep 400, Decision No. 15,545).  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 (Appeal of Ghaffar, 46 Ed Dept Rep 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).

In this case, although petitioner initially timely requested transportation, she withdrew her request because she decided to home school her daughters for the 2008-2009 school year.  After both the deadline for requesting transportation had expired and the start of the school year, petitioner enrolled her daughters in a nonpublic school and made a new request for transportation because she decided to seek full-time employment.  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 Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of S.M., 44 id. 391, Decision No. 15,208).  Based on the record, I do not find that petitioner has provided a reasonable excuse to approve an untimely transportation request.

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 Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  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 Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524; Appeal of Vasilakos, 46 id. 129, Decision No. 15,463).  According to the record, respondent would incur approximately $4,146.00 per month in additional transportation costs if petitioner’s request were approved.

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455).  Based on the record herein, I do not find respondent’s denial of petitioner’s transportation request to be arbitrary, capricious, unreasonable or an abuse of discretion.

THE APPEAL IS DISMISSED.

END OF FILE