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Decision No. 12,638

Appeal of MARK McCARTY and VICTORIA HOWE, on behalf of MATTHEW McCARTY, from action of the Board of Education of the Brunswick Central School District relating to transportation.

Decision No. 12,638

(January 27, 1992)

Hinman, Straub, Pigors & Manning, P.C., attorneys for petitioners, Bartley J. Costello, III, Esq., of counsel

Mary M. Roach, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal from respondent's rejection of their request for transportation of their son to a nonpublic school. The appeal must be dismissed.

Petitioners filed a request for transportation of their son to a nonpublic school for the 1991-92 school year on or about April 19, 1991. Upon receipt of the request, respondent measured the distance between petitioners' home and the nonpublic school to ascertain whether it was less than 15 miles. After trying 3 different routes, respondent determined that the shortest route was 15.2 miles and that petitioners' son was not entitled to transportation. Petitioners were so advised on April 30, 1991. On or about July 9, 1991, respondent was informed that there was a route between petitioners' home and the nonpublic school which was less than 15 miles. Respondent measured the distance and confirmed that it was 14.4 miles. Respondent nevertheless denied the request, on the grounds that it was late and that transportation could not be provided at no cost to the district. On September 11, 1991, petitioners filed this appeal and requested interim relief. I denied that request on September 13, 1991. I now consider the merits of this appeal.

Education Law '3635(2) provides that a request for transportation to a nonpublic school must be submitted, in writing, no later than the April 1st preceding the commencement of the school year for which the transportation is requested, 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 McCormack, 27 Ed Dept Rep 152).

It is undisputed that petitioners filed their request subsequent to the April 1 deadline. Petitioners' excuse for the late request was that they did not know whether their son was accepted by the nonpublic school until after April 1. I have previously held that boards of education may reasonably conclude that a belated decision by a parent to enroll a student in a nonpublic school does not constitute a reasonable explanation for the failure to submit a timely transportation request (Appeal of McCormack, supra; Matter of Mayr, 22 Ed Dept Rep 477; Matter of Ciemielewski, 19 id. 70). Accordingly, I do not find that respondent abused its discretion in refusing to accept petitioners' explanation for the delay.

Even if there were no reasonable explanation for the delay, it nonetheless would be an abuse of discretion for a board of education to deny a transportation request if the requested transportation could be provided to all similarly situated students under existing transportation arrangements at no additional expense to the school district (Appeal of McCormack, supra; Appeal of Brown, 29 Ed Dept Rep 274; Appeal of Rugar, 28 id. 159; Appeal of Stein, 25 id. 181; Matter of Kurts, 14 id. 301; and Matter of Kroll, 12 id. 167). Petitioners argue that transportation could be provided at no additional cost because they have offered to drop their son off at a pickup point used by some students who attend a nonpublic school across the street from their son's nonpublic school. Currently, no child is receiving transportation to their son's school. Although it is not entirely clear from the record, it appears that the pickup point referred to by petitioners is used only in the morning. In the afternoon, respondent contends that the students receive transportation to their homes. To provide transportation to petitioners' son, respondent maintains that the afternoon bus would have to be rerouted at an additional cost to the district of $851. Petitioners do not rebut respondent's contention that afternoon transportation cannot be provided without additional cost to the district. Accordingly, I do not find that respondent's denial of petitioners' transportation request was an abuse of discretion.