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Decision No. 12,852

Appeal of JANET and THOMAS NOLAN from action of the Board of Education of the Merrick Union Free School District regarding transportation.

Decision No. 12,852

(December 21, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner--Petitioners appeal from respondent's refusal to transport their daughter to a nonpublic school for the 1992-93 school year. The appeal must be dismissed.

The facts of this case are undisputed. For a variety of reasons, petitioners wished to send their daughter, a first grader, to a nonpublic school for the 1992-93 school year. Although they knew of the April 1 deadline for transportation requests set forth in Education Law '3635, petitioners did not submit a timely request. Petitioners explain that they did not request transportation initially because they were unable to pay tuition at the nonpublic school. According to petitioners, however, in June 1992 their daughter's grandfather learned that he would be receiving an inheritance in August or September. He offered to pay his granddaughter's tuition from this sum. Consequently, in August 1992 petitioners requested transportation for the 1992-93 school year. They asked respondent to excuse the untimely request based on their unanticipated change in financial circumstances. Petitioners also submitted a recommendation from their daughter's psychologist stating that the nonpublic school would be in the student's best interest, although they do not contend that the psychologist's recommendation excuses their belated request. On August 6, 1992, respondent denied petitioners' request for transportation. Petitioners commenced this appeal on August 21, 1992.

A request 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, provided that a late request for transportation may not be rejected if there is a reasonable explanation for the delay (Education Law '3635[2]; Appeal of Rugar, 28 Ed Dept Rep 159, 160). The board of education must determine in the first instance whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Rugar, supra; Matter of Wybinow, 22 Ed Dept Rep 390, 391). The Commissioner of Education will not set aside the board of education's determination in such a matter unless its determination is so unreasonable that it constitutes an abuse of discretion (Appeal of Block, 28 Ed Dept Rep 308, 309; Matter of Wybinow, 22 Ed Dept Rep 390, supra).

The Commissioner of Education held in a prior decision that it was not an abuse of discretion to deny a late transportation request where the delay was caused, in part, by the fact that the parents previously did not have the funds to pay tuition at a nonpublic school (Matter of Wybinow, 22 Ed Dept Rep 390, supra). The Commissioner has also found it reasonable to deny late requests where parents have made belated decisions, after the April 1 deadline, to enroll their children in nonpublic schools (see, Matter of Mayr, 22 Ed Dept Rep 477; Matter of Pokorny, 21 Ed Dept Rep 181).

It would be an abuse of discretion to reject a late request if transportation could be provided under existing arrangements at no additional cost to the district (Appeal of Rugar, 28 Ed Dept Rep 159, 160, supra). In this case, however, the record indicates that the district contracts for transportation to the school in question on a per pupil basis. Contrary to petitioners' suggestion, therefore, the fact that the bus to this school stops in their neighborhood, and that it has room for their daughter, is not determinative (Matter of Mayr, 22 Ed Dept Rep 477, 478, supra).

In light of the foregoing, I cannot find that respondent has abused its discretion in rejecting petitioners' untimely request for transportation.