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Decision No. 12,832

Appeal of VANESSA M., on behalf of her son DARROW G. M., from action of the Board of Education of the Hastings-on-Hudson School District relating to transportation.

Decision No. 12,832

(November 5, 1992)

Plunkett & Jaffe, P.C., attorneys for respondent, Adele F. Waine, Esq., of counsel

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

Prior to April 1, 1991, petitioner filed a request for transportation for her son Darrow to a nonpublic school for the 1991-1992 school year. Respondent granted the request and petitioner's son was transported at respondent's expense to the Home School in White Plains. On December 2, 1991, petitioner filed a subsequent request for transportation to a different nonpublic school, the Alcott School in Scarsdale. Petitioner states that she requested the change because she realized after the start of the school year that the Home School did not provide an appropriate educational setting for her child. Petitioner indicates that her son had previously been classified as a child in need of special services, but prior to the start of the 1991-1992 school year, her son was declassified with a recommendation for continuing therapy.

The Transportation Supervisor of the Transportation Consortium, of which respondent is a member, denied petitioner's request on December 3, 1991, because he did not believe it was reasonable and because a change in the transportation route would create an additional expense for the district.

Education Law '3635(2) provides that a parent who desires transportation to a nonpublic school must file a request in writing not later than April 1 of the preceding school year. A late request for transportation may not be denied, however, 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 Anonymous, 31 Ed Dept Rep 227; Appeal of Muller, 29 id. 280). 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 Gordon, 29 Ed Dept Rep 175).

A board of education may decline to find a belated request reasonable even where the circumstances which gave rise to the request occurred after the statutory deadline (Appeal of Bartumioli, 26 Ed Dept Rep 144). In addition, although the basis of the parent's belated request may be the parent's concern about the child's educational environment, a school district may nevertheless deny the request (Appeal of Stephens, 26 Ed Dept Rep 434; Appeal of Spivack, 31 id. 121). Petitioner relies on Matter of Board of Education, Hauppauge UFSD v. Ambach, 93 AD2d 210, 462 NYS2d 294. In that case, however, the reasonableness of the parent's delay was established by "significant, objectively verifiable factors dictating a transfer of schools in the best interest of the child [which] arose after the statutory deadline." 93 AD2d at 213. Here, petitioner has failed to introduce any facts or expert opinion to support her claim that her son's welfare requires a transfer to another school. Accordingly, I find that, in the context of this record, respondent exercised its discretion reasonably.

Petitioner's additional arguments disputing the cost of the change of transportation are not persuasive. Respondent attests to the additional cost which would result by adding a route to the transportation schedule after the school year has commenced. Petitioner challenges respondent's statements, but provides no evidence to support her allegations. In addition, petitioner provides no authority to support her position that the board should be forced to contract for transportation on a month-by-month basis to accommodate rate changes.

In light of my determination on the merits, the procedural issues raised by respondent need not be addressed.