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Decision No. 17,295

Appeal of JANE DOE, on behalf of her daughter, from action of the Board of Education of the Port Washington Union Free School District regarding transportation.

Decision No. 17,295

(December 21, 2017)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Port Washington Union Free School District (“respondent”) denying her daughter (“the student”) transportation for the 2014-2015 school year.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student resided within respondent’s district.  According to the record, the student experienced a mental health crisis during the 2013-2014 school year.

On March 18, 2014, a psychologist at respondent’s high school emailed petitioner and indicated that, after speaking to the student’s physician, “we all feel [the student] is not ready to return to the high school.”  This letter referenced “full-time home instruction through the end of the school year,” which petitioner had previously requested.  The psychologist further stated that she had “learned that [petitioner] may be seeking an alternate placement for the student,” and advised petitioner that she would “need to refer” the student to the district’s committee on special education if she sought to do so.

On March 26, 2014, petitioner mailed a letter to respondent requesting transportation to a nonpublic school.  The letter indicated that petitioner was “working with school staff to determine [the student’s] academic plans for next year,” and that these plans “may include attending [a] non-public school out of the district.”

Sometime after petitioner sent the March 26 letter, petitioner alleges that an account clerk in respondent’s transportation office contacted her by telephone and told her that she must complete a district form to request transportation to a nonpublic school.  According to petitioner, after discussing the fact that petitioner did not know what school the student would be attending, the account clerk instructed petitioner to write “Unknown” in response to an area of the form requesting the “School Attending in 2014/15.”  Petitioner subsequently wrote “Unknown” in the corresponding section of the form.

According to the record, petitioner enrolled the student in a nonpublic school in or about June 2014. 

On August 29 and September 9, 2014, petitioner emailed the account clerk to inquire as to the status of her transportation request. 

On September 9, 2014, the account clerk responded to petitioner, indicating that she “was certain we had discussed this in late August when you contacted our office.”  The account clerk indicated that petitioner’s request was denied because the district had finalized its budget by April 1, and the nonpublic school selected by petitioner was one “for which the district pays a per pupil cost rather than a bus cost.”  Petitioner replied to this email, stating that the account clerk did not “respond to [her] written request for a status [update]” and “omitted” various discussions and details.  Petitioner further alleged that the account clerk “personally and explicitly” directed her to write “‘Unknown’ in the school name section” and indicated that petitioner should contact her “once a decision was made so that [she] could include [the student] in bus scheduling.”

On September 15, 2014, the assistant superintendent for business (“assistant superintendent”) emailed petitioner and further explained the basis for respondent’s determination.  With respect to petitioner’s alleged conversation with the account clerk in March 2014, the assistant superintendent stated that the account clerk and another employee within the transportation office “have a very specific process they follow and take copious notes....”  The assistant superintendent further stated that petitioner’s enrollment of the student in a school after April 1 was not an “acceptable exception” to the April 1 deadline.  Moreover, the assistant superintendent indicated that it would incur approximately $437 per month in additional costs to provide transportation to the student.  This appeal ensued.

Petitioner contends that respondent acted arbitrarily and capriciously when it denied her transportation request.  Specifically, petitioner argues that a “staff member” within the transportation office, whom she has identified as the account clerk elsewhere in the record, directed her to write “Unknown” on her transportation request form.  Petitioner further asserts that the account clerk told her that it “would not be a problem” if she identified the nonpublic school for which she sought transportation at a later date so long as it “was within 15 miles.”  Petitioner further argues that she “did not have sufficient time” to enroll the student at a nonpublic school between March 18 and April 1, 2014.  For relief, petitioner seeks a determination that the student was entitled to transportation to the nonpublic school at no cost for the 2014-2015 school year “even if there is additional cost to the district.”  Petitioner further requests “[a]n independent, confidential review of past transportation requests that were rejected/considered ‘late.’”

Respondent contends that petitioner’s appeal must be dismissed for failure to exhaust administrative remedies as petitioner did not appeal the assistant superintendent’s determination to the superintendent.  Respondent additionally argues that petitioner failed to identify the nonpublic school to which she intended to send the student until after the April 1 deadline, and that its decision to deny petitioner’s initial written request as incomplete was therefore within its discretion.  Respondent further argues that it would incur additional cost if it granted petitioner’s late request.  Respondent also objects to petitioner’s request for an “independent, confidential review” of district documents as outside the scope of an appeal pursuant to Education Law §310.

First, I must address the procedural issues.  Respondent objects to an exhibit to the petition, exhibit E, which is captioned “Summary, Background, and Timeline of Discussions with the Port Washington School District.”  This document purports to be a chronology of interactions between petitioner and employees of respondent’s district.  Respondent objects to this exhibit on the ground that it is not verified.  Although respondent is correct that this exhibit is unsworn, I will nevertheless accept it into the record and afford it the appropriate weight which it is due as an unsworn statement.

Petitioner submitted a reply, to which respondent objects.  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.

Respondent further objects to newly raised assertions in petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, I have not considered any newly raised assertions contained in petitioner’s memorandum of law.

Next, respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies.  As a prerequisite to an appeal pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (Appeal of Moultrie, 33 Ed Dept Rep 89, Decision No. 12,987; Appeal of a Child with a Handicapping Condition, 32 id. 83, Decision No. 12,766).  In her September 15, 2014 email, the assistant superintendent informed petitioner that “You have the right to appeal this decision in writing to the Superintendent of Schools as the Board of Education’s designee.”  However, the assistant superintendent did not assert, and the record does not show, that petitioner was required to appeal prior to commencing an appeal to the Commissioner pursuant to Education Law §310.  In this regard, respondent has not alleged or proven that it has adopted a policy mandating such appeals.  Therefore, I decline to dismiss the petition for failure to exhaust administrative remedies.

Nevertheless, 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 challenges respondent’s denial of her request for transportation for the 2014-2015 school year.  The 2014-2015 school year has ended; therefore, the issue of transportation for that year is moot (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

Even if the appeal were not dismissed as 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).  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, petitioner asserts that her request for transportation to the nonpublic school was not late because she was not able to select a nonpublic school based on the student’s situation until after the deadline, and that this constitutes a reasonable explanation for the delay.  The Commissioner has repeatedly held that neither a belated decision to enroll a student in a private school nor a belated notice of admission to a nonpublic school is a reasonable explanation for the late submission of a transportation request (see e.g. Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,975; Appeal of Lippolt, 48 id. 457, Decision No. 15,914; Appeal of Flores, 47 id. 484, Decision No. 15,761; Appeal of Goyal, 40 id. 40, Decision No. 14,415).  Therefore, I do not find that petitioner has established a reasonable explanation for her late request.

 Petitioner asserts that her timely transportation request sufficed under the circumstances because she was directed to write “Unknown” on the transportation request form by the account clerk and was further told that she could identify a school sometime after the April 1 deadline so as long as it “was within 15 miles.”  In an affidavit, however, the account clerk denies that she made such comments to petitioner and further asserts that, to her knowledge, no employee in the transportation office made such comments.  Based on this conflicting evidence, petitioner has not met her burden of proving that the alleged conversation occurred.  Moreover, as noted above, the purpose of the April 1 deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically; it would defeat this purpose if parents were merely required to indicate a general interest in attending an as-yet-to-be-identified nonpublic school.  Therefore, I do not find that petitioner has established a reasonable excuse for the delay in this instance.

Additionally, the record demonstrates that granting petitioner’s request would impose additional costs on the district.  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 petitioner does not refute, that granting the transportation request would cost the district $437 per month.  Therefore, I find that petitioner’s requested transportation would impose additional costs upon the school district and, consequently, that respondent did not act arbitrarily by denying such request.

Finally, petitioner’s request for an “independent, confidential review of past transportation requests” must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

THE APPEAL IS DISMISSED.

END OF FILE