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Decision No. 16,880

Appeal of MARTHA FAKHOURY, on behalf of her daughter MILANI PASCUAL, from action of the Board of Education of the City School District of the City of Yonkers regarding transportation.

Decision No. 16,880

(February 24, 2016)

Legal Services of the Hudson Valley, attorneys for petitioner, Emily S. Wall, Esq., of counsel

Michael V. Curti, Corporation Counsel, attorney for respondent, Michelle H. Klemperer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Yonkers (“respondent” or “board”) denying her daughter, Milani, transportation to a nonpublic school.  The appeal must be dismissed.

On or about October 28, 2014, petitioner, a resident of respondent’s district, submitted an application on behalf of her daughter to the district for bus transportation to St. Peter’s Catholic School (“St. Peter’s”), a nonpublic school, which is located approximately 3.5 miles from their home, according to petitioner.  Petitioner states that the “request was approved and Milani began receiving bus transportation approximately one week later.”  Respondent states that as a late applicant, petitioner was “placed on a waitlist for transportation in the event transportation became available” like all other late applicants.  Milani received bus transportation for the remainder of the 2014-2015 school year and was picked up at a bus stop at the corner of Odell and Warburton Avenues (“2014-2015 bus stop”).  According to petitioner, this bus stop was located 0.1 miles from her home. 

On or about April 14, 2015, petitioner submitted an application for bus transportation for Milani to St. Peter’s for the 2015-2016 school year.  Petitioner states that, at some point in early April 2015, she “learned that she was supposed to apply for Milani to receive school transportation each year by April 1.”  Respondent states that, “like last year, [p]etitioner’s application for transportation was late” and that Milani was again placed on a waitlist.  Respondent further states that its transportation department “on more than one occasion advised [p]etitioner that transportation was available, to and from the student’s school, from an existing bus stop located at Warburton Avenue and Arthur Street,” which was “located approximately 0.9 miles from [petitioner’s] home” but that petitioner “refused to accept this transportation since the proposed bus stop is not the same as the one she was given last year.”[1]   

Petitioner states that, on August 24, 2015, she called the transportation department to inquire about transportation for her daughter, and that was when she was first told that she had applied too late and that her daughter would not be provided with transportation.  Respondent states that it has in fact offered transportation to petitioner but that petitioner is “dissatisfied” with the transportation that has been offered and “demands” transportation from Milani’s 2014-2015 bus stop.  Respondent states that, contrary to petitioner’s allegations, the 2014-2015 bus stop no longer exists and that the location was not designated as a bus stop for the 2015-2016 school year because “there were no timely applications warranting transportation for this location.”  Petitioner states that she spoke with the transportation department on September 11, 2015, after the start of St. Peter’s 2015-2016 school year on September 9, 2015, and again was informed that the district could not provide transportation for Milani, but would place her on a waitlist.  This appeal ensued.  Petitioner’s request for interim relief was addressed by letter on October 1, 2015 and was not granted.[2]

Petitioner contends that she has a reasonable explanation for her delay in submitting the application for transportation for her daughter as she had reason to believe her 2015-2016 application would be accepted after the deadline because her transportation request for the 2014-2015 school year had been submitted in October (after the deadline) and was accepted. Petitioner also contends that she was not informed when she submitted her application that it would not be accepted because it was late.  Petitioner argues that the district will not incur additional expense to add Milani to the 2014-2015 bus route because the route still exists and there is room on the bus for Milani.  Petitioner requests that I overturn respondent’s decision to deny Milani transportation and order that she be provided bus transportation from the 2014-2015 bus stop.

Respondent contends that petitioner has been offered transportation in compliance with applicable law and its actions were neither arbitrary nor capricious.  Respondent also alleges that petitioner has failed to provide a reasonable excuse as to why she did not file her application by the required April 1, 2015 deadline.  Respondent further contends that petitioner is not entitled to the 2014-2015 bus stop, and that the district would incur additional costs if it reinstituted the 2014-2015 bus stop.  Respondent seeks a judgment dismissing the petition in its entirety. 

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner, who is represented by counsel, alleges in the petition that her request for transportation was denied in August 2015.  As relief, petitioner requests that I “overturn [respondent’s] decision to deny Milani Pascual bus transportation... and order that she be provided bus transportation.”  Respondent’s director of transportation (“director”) avers in an affidavit that, after petitioner’s application was received in April 2015, Milani was placed on a waiting list for transportation for the 2015-2016 school year and that petitioner was informed in August 2015 that transportation was available for Milani from a bus stop located at Warburton Avenue and Arthur Street.  Petitioner admits in her reply that respondent made this offer, but claims that she was not so informed until after the instant appeal was commenced.  In any event, the record indicates that respondent has offered to provide transportation to Milani, and such action renders academic petitioner’s request that I overturn respondent’s denial of bus transportation (see e.g., Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611).  To the extent petitioner objected to the offered transportation, her remedy would have been to commence an appeal from that determination and explain the basis for her objections in the petition, which she has not done.  Accordingly, the appeal must be dismissed as moot.

Even if the 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 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).  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of a Student with a Disability, 48 id. 207, Decision No. 15,837).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881). 

Petitioner admits that she submitted her application for transportation, which should have been submitted no later than April 1, 2015, on or about April 14, 2015. Petitioner explains that she only learned of the April 1 deadline sometime in early April 2015 and that she believed her 2015-2016 application would be accepted after the deadline because her transportation request for the 2014-2015 school year was accepted in October 2014.  However, it is well-settled that a board of education need not accept ignorance of the April 1 deadline as a reasonable excuse for failure 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).

Petitioner also contends that, because of certain personal difficulties, it is a hardship for her to transport Milani to the nonpublic school or to the bus stop offered by respondent.  While I am sympathetic to petitioner’s family situation, personal hardship is not a basis for granting a late transportation request (Appeal of Goldman, 39 Ed Dept Rep 630, Decision No. 14,334; Appeal of Korzyk, 33 id. 460, Decision No. 13,113).

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).  The director’s affidavit explains that the district creates new bus routes and designated stops prior to the start of the school year using a software program into which all timely applications are entered, and which generates routes and stops to provide transportation in a “reasonable and economical manner.”  According to respondent, district transportation staff analyzes and adjusts the routes for hazards and the district’s transportation budget is based on this formula.  Respondent states that:

If the [d]istrict was compelled at this date to comply with [p]etitioner’s request for transportation at a bus stop at Warburton Avenue and Odell Avenue it would require the [d]istrict to re-route an existing bus route and create a new bus stop at an additional cost not previously budgeted.

I also note that a board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). 

In this case, the petition contains only conclusory allegations that Milani’s 2014-2015 bus stop still exists and that respondent would not incur additional costs by transporting her using that bus stop.  Petitioner submits no evidence to support her claims or to otherwise refute respondent’s assertion that the transportation requested would impose additional costs.[3]  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On this record, therefore, petitioner has failed to carry her burden of proof.

Under these circumstances, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.

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

THE APPEAL IS DISMISSED.

END OF FILE

 


[1] Respondent notes that, in an attempt to resolve the matter, transportation was offered from a bus stop located at North Broadway and Gateway Avenue, 0.52 miles from petitioner’s home; however, petitioner declined the offer.

 

[2] In the letter, my Office of Counsel advised petitioner that based on information submitted by respondent indicating that the district has offered to provide transportation for her daughter, “petitioner’s request for a stay is moot” and “[t]herefore, the Commissioner need not consider the stay request at this time.”

 

[3] Petitioner has also failed to demonstrate that her daughter has a right to transportation from the 2014-2015 bus stop or other specific pick-up point.  On this record, petitioner failed to submit a timely request for transportation and could have been denied transportation altogether unless it could be provided at no cost.