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Decision No. 12,626

Appeal of ANONYMOUS from action of the Board of Education of the Valley Central School District relating to transportation.

Decision No. 12,626

(December 30, 1991)

Allan Kuslansky, Esq., attorney for petitioner

Scott and Hoyt, Esqs., attorneys for respondent, Julius Larkin Hoyt, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of her request for transportation to a nonpublic school pursuant to '3635 of the Education Law. The appeal must be dismissed.

In the spring of 1990, undisclosed incidents occurred involving students attending school in respondent's district which resulted in a criminal investigation conducted by the local authorities. Petitioner's son cooperated with said investigation and subsequently was subjected to verbal and physical harassment from other students as retribution for his role in the matter. These incidents of harassment apparently began in the spring of 1990 and continued into the fall of the 1990-91 school year. Petitioner retained the services of a private clinical social worker to counsel her son for seventeen sessions between March and November 1990. In January 1991, dissatisfied with the inability of school officials in respondent district to curtail the harassment, petitioner enrolled her son in the Storm King School, a private school located in Cornwall, New York. Petitioner subsequently made a request to respondent for transportation to the nonpublic school.

Respondent denied the request because it was filed subsequent to the April 1 statutory deadline for filing such requests and because respondent did not find petitioner's explanation for late filing to be reasonable.

Education Law '3635(2) provides that a parent or guardian of a child who desires transportation to a nonpublic school must file a request, in writing, not later than April 1 of the preceding school year; provided that no late request for transportation may be denied if a reasonable explanation is provided for the delay. Initial discretion to determine the reasonableness of a particular explanation for a delay is vested in the board of education, and such a determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Muller, 29 Ed Dept Rep 280; Appeal of Stephens, 26 id. 434). Petitioner contends that her son had serious behavioral problems in respondent school district necessitating his removal from the school and enrollment in a nonpublic school. Petitioner submits a letter in support of her decision from the child's social worker. Petitioner further contends that her delay in filing a transportation request should be excused because the need to remove her son from respondent's school did not become apparent until after the April 1 filing deadline had passed.

A board of education may reasonably conclude that a belated decision by a parent to enroll their child in a nonpublic school does not constitute a reasonable explanation for failure to submit a timely transportation request (Appeal of McCormack, 27 Ed Dept Rep 152; Appeal of Bartumioli, 26 id. 144) A board of education may decline to find the explanation reasonable even in circumstances, such as described here, where the parent's decision is based on facts or a series of events which developed after the statutory deadline (Bartumioli, supra). Under the facts of this case, I find that respondent's rejection of petitioner's explanation does not constitute an abuse of discretion.

I also note that petitioner's reliance on In the Matter of Anonymous, 20 Ed Dept Rep 406, is misplaced. In that appeal the parents filed a person in need of supervision petition and the child was referred by the court to a clinical psychologist. The psychologist and the probation department of the Family Court recommended that the pupil be removed from the school she had attended. The reasonableness of the delay in that appeal was established by "significant, objectively verifiable factors dictating a transfer of schools in the best interest of the child arose after the statutory deadline" (Matter of Bd. of Ed., Hauppauge UFSD v. Ambach, 93 AD2d 210). In this appeal the record does not support petitioner's claim that the social worker recommended that petitioner's son be removed from the public school, but rather that the social worker supported the decision made by petitioner as a solution to the problems at respondent's school. Further, in In the Matter of Anonymous, supra, reference is made to the fact that despite the child's serious behavioral problems exhibited over the course of a school year, the school district did not offer the child placement in another public school or consider evaluating the child pursuant to Education Law Article 89. Petitioner has argued that likewise, in this instance, respondent failed to take appropriate corrective action to alleviate a concededly harmful situation. Respondent has countered that it did discipline the students involved in the harassment and met with the father of one student to caution him against his child's behavior toward petitioner's son. I find that petitioner has not provided sufficient evidence that respondent was responsible for petitioner's delay in filing the transportation request. Finally, I would note that the record in In the Matter of Anonymous, supra, evidenced that the parents made a request for transportation services in August preceding the commencement of the school year.

Even in the absence of a reasonable explanation for the delay, a late request must be granted if the transportation can be provided under existing transportation arrangements at no additional expense to the district (Appeal of Outlaw, 30 Ed Dept Rep 192; Appeal of Gordon, 29 Ed Dept Rep 175). As there is nothing in the record as to the cost to transport petitioner's son to the Storm King school, I cannot reach this issue.