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Decision No. 17,005

Appeal of FRANKLIN JEROME on behalf of his son LINCOLN, from action of the Board of Education of the West Hempstead Union Free School District regarding transportation.

Decision No. 17,005

(November 30, 2016)

Guercio and Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the West Hempstead Union Free School District (“respondent” or “board”) denying his son, Lincoln, transportation to a non-public school during the 2016-2017 school year.  The appeal must be dismissed.

Petitioner is a resident of respondent’s school district.  On or about April 11, 2016, an application was submitted to the district requesting bus transportation for petitioner’s son to Holy Cross High School (“Holy Cross”), a nonpublic school, for the 2016-2017 school year.  On or about April 13, 2016, respondent denied the application because it was not submitted by the April 1 deadline for transportation requests.  By letter dated April 17, 2016, to respondent’s superintendent, petitioner stated that he was “completely unaware” of the April 1 deadline and only learned of it on April 11, 2016 when his wife called the district regarding transportation.  In this letter, petitioner also states that the lack of transportation “will create a severe burden” for his family, particularly in terms of time and expense and requested “an exception” or “advice and guidance on how to appeal the decision with the Commissioner of Education.”  In response, respondent’s assistant superintendent for business and operations advised petitioner by email on April 21, 2016 that the “first step is to appeal to the [board which] will weigh your appeal on its merits, as well as its financial impact to the District.”

By letter dated May 15, 2016, petitioner appealed the denial to the board, explaining that he and his family had attended an interview with the director of admissions for Holy Cross on Friday evening, April 8, 2016, who “immediately expressed a sense of urgency” and informed petitioner to contact the district “right away” regarding transportation, which was done the following business day, Monday April 11, 2016.  Petitioner further stated in this letter that “Lincoln was approved for admission to Holy Cross HS on April 14th of the same week” and that “[m]issing the deadline creates severe consequences” as “Holy Cross is 13 miles from [their] home and a ½ hour drive on a good day.”  Petitioner’s appeal letter also stated that he “made an honest mistake as [he] should’ve reviewed the district’s transportation policies.”  As an alternative, petitioner stated that he is “willing to drive [Lincoln] to another local district if a bus has capacity and is scheduled to go to Holy Cross.”  By letter dated June 22, 2016, the superintendent notified petitioner that the board denied his appeal at its June 21, 2016 board meeting.  This appeal ensued.

Petitioner contends that he is entitled to relief and reversal of the board’s denial of transportation for Lincoln for the following reasons: (1) respondent’s June 22, 2016 letter notifying him of the denial did not provide an explanation, reason or rationale justifying the denial; (2) although petitioner’s request was received by the district after the April 1 deadline, the district had ample time to evaluate district needs and determine the costs associated with the transportation of one student; (3) there are other Holy Cross students in respondent’s district and neighboring districts (i.e., Malverne, Valley Stream) who are being transported and if there is an available seat and Lincoln is being denied transportation, buses are not being fully utilized; and (4) the denial imposes a severe burden on petitioner’s family and the additional personal transportation costs would cause harm and injury.  Petitioner requests an exception to the April 1 deadline and provision of transportation to Holy Cross for Lincoln for 2016-2017 from respondent’s district or in cooperation with a neighboring district (i.e., Malverne, Valley Stream) as this “better achieves the economical and efficient transportation of pupils.”

Respondent contends that petitioner failed to demonstrate a clear legal right to the relief requested. Respondent also contends that its action in denying petitioner’s transportation request was in all respects appropriate and was neither arbitrary, capricious, unreasonable, nor an abuse of discretion for the following reasons: (1) petitioner failed to submit a timely request for transportation for the 2016-2017 school year; (2) petitioner failed to offer a reasonable excuse for the late request; and (3) the requested transportation would result in additional expense to the district.  Respondent requests that the petition be dismissed in its entirety.

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 his application for transportation was submitted after the April 1, 2016 deadline - the record indicates that respondent received the request on April 11, 2016.  However, the record also indicates that petitioner contends that he was “completely unaware” of the April 1 deadline and only learned of it after he and his family met with the director of admissions at Holy Cross for an interview on April 8, 2016, and was encouraged to contact the district “right away” regarding transportation.  The record also indicates that petitioner states that Lincoln was approved for admission to Holy Cross on April 14, 2016.  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). Moreover, 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).

Regarding petitioner’s argument that he is entitled to reversal of the board’s denial of transportation for Lincoln because the board’s June 22, 2016 letter did not provide an explanation, reason or rationale justifying the denial, I note that petitioner cites no requirement that a rationale be provided in such letter.  Moreover, as noted above, the April 21, 2016 email from the assistant superintendent for business and operations informed petitioner that respondent would consider petitioner’s appeal on the merits and any fiscal impact on the district.  Indeed, respondent provides an affidavit from the assistant superintendent for curriculum and instruction (“assistant superintendent”) who states that he was present at the regularly scheduled meeting of the board on June 21, 2016 when the board reviewed and considered petitioner’s appeal of the denial of his request for transportation.  This affidavit states that the board “considered the reasonableness” of petitioner’s “excuse” for not having submitted a timely request, i.e., unawareness of the deadline and belated admission to Holy Cross, and “found those excuses to be unreasonable.”  As described below, the board also determined that the district would incur an additional cost if petitioner’s late request were granted. Petitioner has therefore not carried his burden with respect to this claim.

Petitioner contends that it is a “severe burden” to his family to transport Lincoln to the nonpublic school and that “[t]he additional personal transportation costs would cause harm and injury.”  While I am sympathetic to petitioner and his family regarding this 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).  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).  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

As also stated in the assistant superintendent’s affidavit, the board “determined that an additional cost would be incurred” by the district if it provided the requested transportation because the district “contracts for transportation to Holy Cross on a per-pupil, per-month basis.”  Respondent further provides an affidavit from the district’s transportation coordinator who states that the “transportation contract has an additional monthly cost of $287.10 per student” or “$2,871.00 for the 2016-2017 school year to transport [Lincoln] to Holy Cross.”  Other than various conclusory statements made in the petition – i.e., that although petitioner’s transportation request was submitted after the deadline, “the district had ample time to evaluate district needs and determine the costs associated with the transportation of one pupil,” there are other Holy Cross students in respondent’s district and neighboring districts (i.e., Malverne, Valley Stream) who are being transported, and “[i]f there is an available seat and [Lincoln] is denied transportation, that’s not full utilization of buses” - petitioner has submitted no evidence to refute respondent’s contention.  On this record, therefore, petitioner has not met his burden of establishing that the transportation sought can be provided to his son without additional expense incurred by the district (see Appeal of Jata, 53 Ed Dept Rep, Decision No. 16,603; Appeal of Vasilakos, 46 id. 129, Decision No. 15,463).

Further, regarding petitioner’s request that Lincoln be provided with transportation “in cooperation with a neighboring district,” Education Law §3635 does not impose such a requirement on the district and in the absence of any details concerning the transportation provided by neighboring districts, I will not comment on those arrangements (see Appeal of Skinner, 35 Ed Dept Rep 496, Decision No. 13,611).

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