Decision No. 17,163
Appeal of J.L.I., on behalf of her children D.I. and F.I., from action of the Board of Education of the East Meadow Union Free School District regarding transportation.
Decision No. 17,163
(August 24, 2017)
Jaspan Schlesinger, LLP., attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Meadow Union Fee School District (“respondent”) denying her children, D.I. and F.I. (“the students”), transportation to a non-public school during the 2017-2018 school year. The appeal must be dismissed.
Petitioner is a resident of respondent’s school district. Her children have been utilizing the district’s school bus transportation for eleven years. Sometime after April 1, 2017, an application was submitted to the district requesting bus transportation for petitioner’s children to nonpublic schools - St. Joseph School and Chaminade High School - for the 2017-2018 school year. By email dated April 19, 2017, respondent’s assistant business administrator (“assistant business administrator”) denied petitioner’s request because it was not submitted by the April 1 deadline for transportation requests. By letter dated April 20, 2017, the assistant business administrator again wrote to petitioner and stated that she and respondent’s superintendent of schools (“superintendent”) considered petitioner’s “appeal of the denial of transportation” of the students. The letter advised petitioner that her request for transportation of D.I. to St. Joseph School for the 2017-2018 school was denied because “the district would incur additional cost to provide transportation.” The letter further informed petitioner that “the district may be able to provide transportation, providing there is no additional cost and an available seat on the route” for F.I. to Chaminade High School, but that “this will not be determined until the 2017-18 school year begins.”
By letter dated April 24, 2017, petitioner appealed the denial to respondent. By letter dated May 5, 2017, respondent upheld the determination of the assistant business administrator. This appeal ensued. Petitioner’s request for interim relief was denied on June 1, 2017.
Petitioner apologizes for missing the April 1 deadline and explains that she is a single, full-time working mother of two children; that she and the children have been grieving the sudden loss of her father; that she is coping with a divorce and that she is the sole caretaker of her elderly mother. She argues that the children are young and that it is unsafe for them to take mass transit public transportation. She alleges that the district already provides transportation to St. Joseph School and Chaminade High School for other students in the district. Finally, petitioner states that she is “willing to consider an additional late processing fee.”
Respondent contends that the appeal should be dismissed for failure to state a claim upon which relief can be granted. Respondent further contends that the petition is premature with respect to F.I. because the district has not denied F.I. transportation as it has “not yet learned from the transportation vendor whether an additional cost will be imposed.” Respondent avers that it was within its discretion to deny the late transportation request and that it would incur additional costs if it were required to provide transportation to D.I. Finally, respondent objects to petitioner’s “amendment to the petition” dated June 4, 15, 24 and 30, 2017, in which she “attempts to annex additional exhibits to her [p]etition.”
I will first address the procedural matters. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 shall submit an application to my Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]).
By letter dated June 4, 2017, petitioner requests that I consider an email dated May 31, 2017 from petitioner to several individuals including the assistant business administrator, superintendent, superintendent for business and finance, respondent’s board president and respondent’s attorney. Respondent contends that the document is an additional pleading and that it should be disregarded because petitioner has not demonstrated good cause for its submission and because it was not submitted with the Commissioner’s prior permission in accordance with “8 NYCRR §275.” Petitioner’s submission is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of Lim, 55 Ed Dept Rep, Decision No. 16,868; Appeal of Gordiner, 52 id., Decision No. 16,433). However, petitioner’s submission appears to be in response to respondent’s affidavit and affirmation with exhibits in opposition to her request for interim relief (“opposition papers”). In this regard, I note that respondent’s opposition papers are referenced in its answer (see e.g. Appeal of Lim, 55 Ed Dept Rep, Decision No. 16,868). Consequently, I will permit petitioner’s submission as in the nature of a reply to respondent’s answer (see e.g. Appeal of Lim, 55 Ed Dept Rep, Decision No. 16,868). A liberal interpretation of the rules is appropriate when petitioner is, as here, proceeding without the representation of counsel and there is no prejudice to respondent (Appeal of Lim, 55 Ed Dept Rep, Decision No. 16,868; Appeal of K.M., 55 id., Decision No. 16,796; Appeal of Gordiner, 52 id., Decision No. 16,433).
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 petitioner’s June 4, 2017 submission in the nature of a 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.
By letter dated June 15, 2017, petitioner requests that “this verified document” be considered for review. Although served on respondent by mail, petitioner gives no explanation why the information could not have been provided with the petition. A review of the correspondence indicates that petitioner is attempting to add new claims or factual assertions that could have been asserted in her petition. Accordingly, I have not considered petitioner’s correspondence dated June 15, 2017.
By letter dated June 30, 2017, petitioner requests that “these verified documents” be considered for review. Attached to the letter are an email from the principal of St. Joseph School to the assistant business administrator and superintendent dated June 21, 2017 and a letter from the principal of Chaminade High School to the superintendent, requesting reconsideration of the denial of transportation for the 2017-2018 school year. The letter from the principal of St. Joseph School and the letter from petitioner raise safety concerns about the route D.I. would have to travel to school without school bus transportation. Although served on respondent by email, petitioner provides no explanation as to why she could not have provided such information with the petition. A review of the correspondence indicates that petitioner is attempting to add new claims or factual assertions that could have been asserted in her petition. Accordingly, I have not considered petitioner’s letter dated June 30, 2017 or the attached email and letter described above.
By letter dated July 25, 2017, petitioner requests that respondent’s 2017-2018 proposed budget, letters from various elected officials, and the email and letter described in her submission of June 30, 2017 be considered for review. Petitioner explains that “[t]he items were not included in [her] initial petition because [she] needed to meet the deadline to submit [her] appeal...” However, the proposed school budget submitted by petitioner is dated March 30, 2017. The appeal was commenced on May 23, 2017, after the publication of the proposed school budget. With respect to the proposed budget, petitioner is attempting to add new claims or factual assertions that could have been asserted in her petition. Accordingly, I decline to consider the proposed budget. I have reviewed petitioner’s other submissions and, to the extent that they raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal, I have disregarded them.
By letters dated July 29, 2017 and August 1, 2017, petitioner again requests that I consider respondent’s 2017-2018 proposed budget and the June 21, 2017 email from the principal of St. Joseph School to respondent’s assistant business administrator and superintendent. She also requests that I consider an email dated August 1, 2017 to respondent requesting resolution of F.I.’s transportation request, and the “Chaminade High School – Junior Parent Summer Letter.” Again, petitioner explains that “[t]he items were not included in [her] initial petition because [she] needed to meet the deadline to submit [her] appeal....” For the reasons stated above, I decline to consider the proposed budget. I have reviewed petitioner’s other submissions, and to the extent that they raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal, I have disregarded them.
With respect to petitioner’s son, F.I., the appeal must be dismissed as premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). The record does not indicate that F.I. has been denied transportation for the 2017-2018 school year. Therefore, petitioner’s claim relating to the provision of transportation to F.I. is not yet justiciable and must be dismissed.
Turning to the merits with respect to petitioner’s son, D.I., 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; 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).
I do not find that respondent abused its discretion in denying petitioner’s transportation request. Petitioner admits that her request was late; however, she argues that her “emotional hardship” caused her to miss the deadline. Petitioner explains that she and her children were grieving the sudden loss of her father, since which she has been the sole caretaker of her “elderly weak mother.” Petitioner also cites “other personal issues of having to cope with a [d]ivorce.” In support of her petition, petitioner submits her father’s death certificate which indicates that he died on January 9, 2017, and a custody and parenting time agreement dated February 23, 2017.
While I sympathize with petitioner’s situation, it was ultimately petitioner’s responsibility to submit a timely request for transportation to respondent (see Appeal of Vigliotta, 40 Ed Dept Rep 344, Decision No. 14,493). The family issues she describes, therefore, are not a basis for excusing her failure to make a timely transportation request (Appeal of Abrams, 50 Ed Dept Rep, Decision No. 16,120; Appeal of S.W and D.W., 49 id. 67, Decision No. 15,960; Appeal of Haiimpour, 47 id. 46, Decision No. 15,621). This is especially true in this case where the cause of petitioner’s family issues occurred months before the deadline passed (see e.g. Appeal of Abrams, 50 id., Decision No. 16,120; Appeal of S.W. and D.W., 49 Ed Dept Rep 67, Decision No. 15,960; Appeal of Haiimpour, 47 id. 46, Decision No. 15,621; Appeal of Parks, 31 id. 249, Decision No. 12,633). Therefore, on the record before me, I cannot find that respondent abused its discretion in denying petitioner’s late request.
As the Commissioner has previously held, a board of education does not have any obligation to remind parents of the deadline (Appeal of Rivera and Figueroa, 52 Ed Dept Rep, Decision No. 16,449; Appeal of Beer, 33 id. 620, Decision No. 13,168). Nonetheless, in this case, the record indicates that the district included a reminder of the April 1 deadline in all four of its 2016 newsletters. Additionally, in August 2016, January 2017 and February 2017, a separate reminder letter was sent to parents of private and parochial school students. In March 2017, the district sent a letter and automated telephone calls to parents who had not submitted a transportation request. Respondent avers that petitioner was on the mailing and phone lists for these reminders and petitioner does not deny receiving them.
Moreover, where a parent has a child who has previously been enrolled in a nonpublic school, as here, the parent is presumed to know of the April 1 deadline (Appeal of Rivera and Figueroa, 52 Ed Dept Rep, Decision No. 16,449).
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).
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).
Respondent’s superintendent asserts in an affidavit that providing D.I. with transportation for the 2017-2018 school year would result in an additional cost of $2,251.84. Petitioner claims that the district will not incur any additional expenses in transporting her children because the district already provides transportation for other students to both St. Joseph School and Chaminade High School. However, petitioner has submitted no evidence with her petition or reply to support this claim or to rebut respondent’s assertion that the district would incur additional costs for the requested transportation. Accordingly, based on the record before me, I find that petitioner has not met her burden of demonstrating a clear legal right to the relief requested.
THE APPEAL IS DISMISSED.
END OF FILE
 While the parties disagree about the date the requests for transportation were submitted, they do not dispute that it was after the April 1, 2017 deadline.
 The record does not include correspondence from petitioner dated June 25, 2017.
 It appears that petitioner is requesting that I accept her correspondence dated June 15, 2017, as there is no additional document attached to her request.
 The February 2017 letter included the 2017-2018 application for transportation to nonpublic schools.