Appeal of MICHAEL and AMY FONTAINE, on behalf of their children, from action of the Board of Education of the Attica Central School District regarding transportation. 

Decision No. 16,993

(November 4, 2016)

Osborn, Reed & Burke, LLP, attorneys for respondent, Jennifer M. Schwartzott, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal a determination of the Board of Education of the Attica Central School District (“respondent”) denying their five children transportation for the 2016-2017 school year.  The appeal must be dismissed.

Petitioners are residents of respondent’s district.  Since the 2011-2012 school year, petitioners have homeschooled their five children. On April 18, 2016, petitioners requested that respondent provide transportation for their children to attend a nonpublic school for the 2016-2017 school year.  By letter dated May 18, 2016, respondent’s district clerk informed petitioners that respondent denied their request at a board meeting held on May 12, 2016.  The letter explained that petitioners’ request was denied because it was submitted after the April 1 deadline and would result in additional cost to the district.

On May 18, 2016, petitioners requested that respondent reconsider its determination.  Petitioners argued that their request was reasonable because they decided to enroll their children in the nonpublic school after returning from Easter break on April 2, 2016, and that, after contacting respondent’s superintendent’s office, were advised to get their “paper work in as soon as possible.”  By letter dated May 31, 2016, respondent denied petitioners’ request, indicating that it did not find that petitioners’ excuse for submitting a late request was reasonable.  This appeal ensued.

Petitioners admit that they submitted their request for transportation for the 2016-2017 school year after the April 1 deadline; however, they assert various grounds which, they contend, support their request for transportation.  Petitioners allege that there is a designated bus route which goes, and has gone for the past nine years, to the nonpublic school.  Petitioners further contend that while they were originally informed that this bus was full, in late June 2016 they learned that there were two open seats on the bus.[1]  They also assert that the bus route was originally subcontracted to a private company which had the “foresight to purchase a new bus with 30 seats ....”[2]  Petitioners further allege that they obtained “quotes” regarding transportation costs for the students, and that it will cost petitioners between $12,250.00 and $17,500.00 to transport their children to school.

As relief, petitioners ask that I overturn respondent’s decision or that I “put [the transportation services] out to bid to see what [the] actual cost would be.”  Additionally, in the event that a “compromise to this situation is not made,” petitioners request that I forgive a charitable pledge made by petitioners to Genesee Community College Foundation “in an effort to pay for [their] children’s’ [sic] transportation.”

Respondent contends that the appeal should be dismissed for failure to state a claim upon which relief can be granted.  It argues that its decision to deny petitioners’ transportation request was reasonable because petitioners submitted their transportation request after the April 1 deadline; petitioners did not provide a reasonable excuse for their late request; and that respondent would incur additional costs to provide transportation to their children given their late request.

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).

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).

 Here, petitioners’ request for transportation was submitted after the April 1 deadline.  In their appeal to respondent, petitioners argued that their late request was reasonable because they did not decide to send the students to the nonpublic school until they returned from Easter break, and that they submitted the request “as soon as possible,” which was “two weeks late.”  However, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Flores, 47 id. 484, Decision No. 15,761).

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).

Respondent submits an affidavit from its superintendent who avers that, for the 2016-2017 school year, the district received transportation requests for 20 students for the bus route in question.  Therefore, respondent contracted with a bus company to utilize a bus with the capacity to transport 22 students.  The superintendent further avers that the projected cost to the district to accommodate petitioners’ belated transportation request would be $30,000.00 because it would necessitate a longer route and a bigger bus.

Petitioners have submitted no evidence to refute these contentions.  While not entirely clear, petitioners appear to argue that the bus company which previously contracted to do the bus route at issue was “willing” to bid on the job for the 2016-2017 school year and could have accommodated the students.  However, this allegation, even if proven, does not refute the superintendent’s contention that accommodating petitioners’ request would result in additional cost to the district.  Therefore, I do not find respondent’s denial of petitioners’ transportation request to be arbitrary, capricious, unreasonable, or an abuse of discretion. 

Finally, to the extent petitioners ask that I “forgive” their pledge to the Genesee Community College Foundation, which is not a party to this appeal, I lack jurisdiction to address this claim.  Education Law §310 generally limits jurisdiction on appeal to matters involving the public elementary and secondary school system of the State (see Matter of Bowen, et al. v. Allen, 17 AD2d 12, affd 13 NY2d 663; Appeal of Tylicki, 46 Ed Dept Rep 414, Decision No. 15,549).  It does not provide jurisdiction over a postsecondary institution (see e.g. Appeal of Tylicki, 46 id. 414, Decision No. 15,549; Appeal of Interfaith Medical Center, 27 id. 405, Decision No. 11,991) or a foundation related to thereto.  Moreover, petitioners fail to demonstrate a legal right to the relief requested or any authority for me to grant such relief in an appeal commenced pursuant to Education Law §310.

THE APPEAL IS DISMISSED.

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