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Decision No. 16,449

Appeal of WALTER RIVERA and MARIA ISABEL FIGUEROA, on behalf of their son, from action of the Board of Education of the Pocantico Hills Central School District regarding transportation.

Decision No. 16,449

(January 25, 2013)

Rivera & Colón, LLP, attorneys for petitioners, Walter Rivera, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw and Beth L. Sims, Esqs., of counsel

KING, JR., Commissioner.--Petitioners appeal a determination of the Board of Education of the Pocantico Hills Central School District (“respondent”) denying their son transportation for the 2011-2012 school year.  The appeal must be dismissed.

Petitioners are residents of respondent’s district, and their son attends a nonpublic school.  Pursuant to a request made by petitioners on or before April 1, 2010, respondent provided their son with transportation to the nonpublic school for the 2010-2011 school year.  For the 2011-2012 school year, however, petitioners submitted their request for transportation on August 30, 2011, beyond the April 1 deadline for such requests.

On September 7, 2011, respondent considered petitioners’ request for transportation, despite their untimely application.  By letter dated September 9, 2011, the assistant superintendent advised petitioners that respondent had considered their late transportation request and explanation, but had denied the request.  This appeal ensued.

Although petitioners admit that they submitted their application for transportation for the 2011-2012 school year after the April 1 deadline, they claim their delay was reasonable because they did not know that a transportation request must be submitted annually for each upcoming school year, and that respondent failed to provide adequate notice of this requirement.

Respondent contends that its decision to deny petitioners’ transportation request was reasonable in that petitioners submitted their transportation request well beyond the deadline date of April 1; that ignorance of the requirement to submit a transportation request by April 1 of each preceding school year is not a reasonable excuse for such delay; and that respondent would incur additional costs to provide transportation to petitioners’ son, given their late request.  Respondent also challenges the scope of petitioners’ reply.   

With respect to the propriety of petitioners’ 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Petitioners’ appeal must be dismissed as moot, as it pertains only to the 2011-2012 school year.  However, even if the appeal were not moot, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).  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 a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837). 

Petitioners assert that respondent did not adequately consider the reasonableness of their explanation for their delay in submitting the transportation request, and ask that I do so in this appeal.  In determining whether a parent has offered a reasonable explanation for a late transportation request, a board of education need not accept ignorance of the April 1 deadline as a reasonable excuse to file a timely transportation request (Appeal of Mendiolaza, 48 Ed Dept Rep 346, Decision No. 15,881, Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).  Education Law §3635(2) clearly requires that requests for transportation to a nonpublic school must be submitted by April 1 of the school year preceding the school year for which transportation is requested. 

Although petitioners claim that respondent failed to provide adequate notice of the requirement to annually submit a request for transportation to a nonpublic school, school districts have no legal obligation to publish any notice regarding the April 1 deadline (Appeal of Gordon, 29 Ed Dept Rep 175, Decision No. 12,258; Appeal of Ward, 29 id. 153, Decision No. 12,250).  Nor does a board of education have any obligation to remind parents of that deadline (Appeal of Halsdorf and McClenahan, 30 Ed Dept Rep 268, Decision No. 12,460).  Nevertheless, in the present case, respondent did publish information regarding the April 1 deadline.  While petitioners challenge the clarity of the published information, respondent had no duty to provide notice in the first instance.    

Moreover, where a parent has a child previously enrolled in a nonpublic school, as here, the parent is presumed to know of the April 1 deadline (Appeal of Williams, 33 Ed Dept Rep 137, Decision No. 13,002).  Therefore, petitioners have failed to establish a reasonable excuse for the delay in submitting their transportation request.

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 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881).  Here, respondent asserts, and petitioners do not refute, that granting the transportation request would impose additional costs on respondent. Therefore, the appeal must be dismissed.