Appeal of STUDENTS WITH DISABILITIES, by their parent, from action of the Board of Education of the Barker Central School District regarding transportation.

Decision No. 17,823

(March 16, 2020)

Harris Beach, PLLC, attorneys for respondent, Sara E. Visingard, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner appeals a decision of the Board of Education of the Barker Central School District (“respondent”) denying her children (the “students”) transportation to and from a nonpublic school for the 2019-2020 school year.  The appeal must be dismissed.

During the 2018-2019 school year, petitioner’s two children attended school in respondent’s district.  By email dated July 25, 2019, petitioner requested transportation for the students to and from a nonpublic school for the 2019-2020 school year.  By letter dated August 15, 2019, respondent’s superintendent denied petitioner’s request, stating that:  (1) the request was untimely; (2) petitioner did not provide a reasonable explanation for the delay; and (3) fulfilling petitioner’s request would result in additional cost to the district.  This appeal ensued.

Petitioner admits that her request for transportation was untimely, but argues that she has provided several explanations that, individually or collectively, constitute a reasonable excuse for the delay.  Specifically, petitioner alleges that:  (1) respondent’s committee on special education (“CSE”) convened an annual review meeting for one of the students on May 7, 2019 after the April 1 deadline; (2) she did not receive notification of the “new bus structure and schedule” until May 23, 2019 after the April 1 deadline; and (3) the students have “dietary issues” and she did not discover that the students’ dietary needs were not being met until after the April 1 deadline.  Petitioner also raises pragmatic concerns regarding district transportation, including that she may not be able to get her youngest child, who is not the subject of this appeal, to the bus on time while driving her two older children to the nonpublic school.  For relief, petitioner requests that respondent provide transportation to the nonpublic school for the 2019-2020 school year.

Respondent contends that the appeal must be dismissed because the petition is not double-spaced as required by 8 NYCRR §275.3 and because petitioner has failed to meet her burden of proof.  Respondent argues that petitioner’s explanations for her late request, which were not raised at the district level, are not reasonable.  Respondent further asserts that granting petitioner’s late request would impose additional costs upon the district.

First, I must address the procedural issues.  Respondent contends that the appeal must be dismissed as it is not double-spaced.  A petition to the Commissioner is required to set forth the allegations in numbered paragraphs, be typewritten and double spaced (8 NYCRR §275.3[c]).  Although the petition is typed and numbered, it is not double-spaced.  However, I decline to dismiss the appeal on this basis.  Respondent was able to answer the petition, and the petition otherwise complies with the practice regulations governing appeals and other proceedings before the Commissioner.  Moreover, petitioner appears pro se, and a liberal interpretation of these rules is appropriate where a petitioner is pro se and there is no prejudice to respondent (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).  Thus, I will not dismiss the appeal on this basis (compare Appeal of Metze, 42 Ed Dept Rep 40, Decision No. 14,768 [pro se appeal not subject to dismissal where portions were handwritten but respondent was able to answer the allegations therein]).

Respondent also objects to “unsworn narratives and/or statements submitted by petitioner with and/or as exhibits to the [p]etition.”  These documents purport to be a chronology of “events surrounding the CSE review” and communication with district staff regarding “food issues.”  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 (Appeal of M.S., 58 Ed Dept Rep, Decision No. 17,430; Appeal of Doe, 57 id., Decision No. 17,295).

Respondent also objects to the scope of petitioner’s reply.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Turning to 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Initially, petitioner argues that she justifiably submitted a late request because one of her children’s committee on special education (CSE) annual review meetings was held in May.  In support of this contention, petitioner cites Appeal of a Student with a Disability (48 Ed Dept Rep, 207 Decision No. 15,837).  In that appeal, the Commissioner excused an untimely request for transportation where a school district initiated a change in the student’s placement “without forewarning to petitioners and after the transportation deadline.”  Here, although the student’s CSE meeting was held in May, there is no evidence in the record that the CSE recommended a change in placement for the student.  In this respect, the record contains a prior written notice dated June 3, 2019 which indicates, under the heading “Description of Action Proposed or Refused,” that “[t]he district is proposing that [the student] continue to receive special education services as indicated on the enclosed IEP.”[1]  Additionally, the record reflects that petitioner did not contact the nonpublic school until over a month after the CSE meeting; by contrast, in Appeal of a Student with a Disability (48 Ed Dept Rep, Decision No. 15,837), the parents “promptly” submitted a transportation request nine days after a CSE meeting.  Petitioner has neither alleged nor proven that she was not apprised of the CSE’s recommendations at the May 2019 CSE meeting.  Therefore, I cannot find that respondent’s conducting of an annual review after the April 1 deadline, in this instance, constitutes a reasonable excuse for petitioner’s late transportation request.[2]

Petitioner also argues that she did not discover that the students’ “dietary needs were not being met at school” until after the April 1 transportation deadline.  However, the record indicates that petitioner expressed concerns about certain food items being used in classroom activities well before the April 1 deadline.  Additionally, petitioner alleges in her unsworn narrative that, on March 22, 2019, the student completed a classroom activity involving an Oreo cookie.  Petitioner states:

Why was I not asked about this beforehand especially when I told the teacher at the beginning of the school year that we stay away from gluten & dairy & I had asked on 09/10/2018 ... that she only get [] the snacks that I sent in?  I had thought this food issue was addressed at our March 14th meeting.

Thus, the record supports a finding that petitioner formed an opinion that respondent was not meeting her daughters’ dietary needs prior to the April 1 deadline.[3]  As such, I cannot find that the district’s alleged failure to meet these needs excused petitioner’s late transportation request.

Petitioner also asserts that her delay was reasonable because she did not receive notification of “the new bus structure and schedule” until May 23, 2019.  However, petitioner does not state that this change was the decisive or significant factor in her determination to enroll the students in the nonpublic school.  In this respect, petitioner asserts on appeal that, on or about June 14, 2019, she determined that:

since [the student] improved so much at school from the 2017-2018 school year ... where she was in a 12-1-1 self-contained special education class ... PETITIONER started questioning whether or not [E.C.] needed to stay [in respondent’s district] just so she could receive Special education services which PETITIONER believes could be provided just as well at [the nonpublic school]....

Respondent’s superintendent indicates that petitioner presented a similar explanation to him when he spoke with her on the telephone following denial of her transportation request, and that this was petitioner’s sole stated reason for the late request.  Additionally, petitioner does not identify the start time of the nonpublic school which, presumably, would be materially different from that of respondent’s district.  Therefore, on this record petitioner has not met her burden of proving that respondent’s changes to its start times and bus schedule caused her to enroll the students in a nonpublic school.

Petitioner additionally argues that the new bus schedule would present various hardships for her family.  Specifically, petitioner asserts, that:  (1) under the new bus schedule, the students would have to wait for the bus in the dark “in the winter months” (which is exacerbated by the students’ diagnoses of post-traumatic stress disorder); (2) she has had “issues” with the students on the bus “without them now being influenced by middle and high school students on the bus” (who apparently would board the bus under the new schedule); and (3) she may not be able to get her youngest child, who is not the subject of this appeal, to the bus on time while driving her two older children to the nonpublic school.  While these arguments might be relevant to the safety or reasonableness of public transportation, they do not explain why petitioner submitted a request for transportation to a nonpublic school after the April 1 deadline (see generally Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480).[4]  With specific respect to petitioner’s asserted difficulty in transporting her youngest child, while I am sympathetic to petitioner’s situation, personal hardship is not a basis for granting a late transportation request (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of Jerome, 56 id. Decision No. 17,005; Appeal of Goldman, 39 id. 630, Decision No. 14,334).

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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Meyerson, 46 id. 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Respondent’s superintendent asserts in an affidavit that providing the students with transportation for 2019-2020 would cost the district approximately $23,000.  Petitioner did not submit a reply or otherwise respond to this contention.  Accordingly, based on the record before me, I find that provision of the requested transportation would entail additional costs.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE