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Decision No. 13,002

Appeal of MARI WILLIAMS, on behalf of TRISTAN BANKS, from action of the Board of Education of the Amityville Union Free School District regarding transportation.

Decision No. 13,002

(September 8, 1993)

Van Nostrand & Martin, Esq., attorneys for respondent, LeRoy Van Nostrand, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to transport her son to a nonpublic school for the 1993-94 school year. The appeal must be dismissed.

Petitioner's son attended parochial school for three years, with transportation provided by respondent. Although it is unclear from the record whether petitioner submitted his present request for transportation on April 2, 1993 or April 12, 1993, it is undisputed that it was submitted after April 1. Respondent consequently denied petitioner's request as untimely. This appeal followed.

Respondent contends that petitioner had notice of the date by which to file the request, that the request was untimely and that there would be an additional cost to the district of $119.34 per month to supply this transportation. Petitioner asserts that family concerns prevented her from timely filing.

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 Nolan, 32 Ed Dept Rep 352; Appeal of Rugar, 28 id. 159). 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 Nolan, supra; Matter of Wybinow, 22 Ed Dept Rep 390). The Commissioner of Education will not set aside the board of education's determination in such a matter unless it is so unreasonable that it constitutes an abuse of discretion (Appeal of Block, 28 Ed Dept Rep 308).

The Commissioner has held that where a petitioner has a child previously enrolled in a nonpublic school, petitioner is presumed to know of the April 1 deadline. Asserting family complications just prior to the deadline does not excuse compliance, because a request for transportation can easily be made much earlier than April 1 (Appeal of Skinner, 29 Ed Dept Rep 200). Petitioner has failed to establish why she could not have filed the application prior to April 1, 1993 and has failed to set forth sufficient detail concerning the family situation and circumstances to support an inability to meet the April 1st deadline or justify the late filing.

Even a late transportation request must be granted in the absence of a reasonable explanation for delay, however, if the request for transportation can be provided to all similarly situated students under existing transportation arrangements at no additional expense to the school district (Appeal of Nolan, supra; Appeal of McCormack, 27 Ed Dept Rep 152). In this case, however, the record indicates that the district contracts for transportation to the school in question on a per pupil basis. Therefore, providing the requested transportation would be an additional expense to the school district.

Under these circumstances, I find that the board did not abuse its discretion in refusing to continue to transport the student to a nonpublic school.