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Decision No. 13,098

Appeal of KEITH McNAIR and MARCIA McNAIR, on behalf of their son BLAISE, from action of the Board of Education of the Westbury Union Free School District relating to transportation.

Decision No. 13,098

(February 10, 1994)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's denial of their request for transportation of their son, Blaise, between home and a nonpublic school. The appeal must be dismissed.

After making a timely request for transportation of Blaise to a nonpublic school during the 1993-94 school year, petitioners had their son evaluated on April 17, 1993. Based on the evaluation results, which indicated that their son may be gifted, petitioners elected to enroll him in another nonpublic school. On May 17, 1993, they requested transportation to the second nonpublic school. That request was denied and this appeal ensued.

Education Law '3635(2) requires that requests for transportation to nonpublic schools be submitted by April 1 of the school year prior to that for which transportation is sought. The purpose of this deadline is to enable school districts to budget the necessary funds for transportation and make the arrangements necessary to provide transportation in a reasonable and economical manner. A board of education may be required to honor a late transportation request, however, if a reasonable explanation has been offered for the delay or the requested transportation can be provided under existing arrangements at no additional cost to the school district (Matter of Monreal, 25 Ed Dept Rep 225; Matter of Cronkrite, 24 id. 331). The board of education has discretion to determine whether or not an explanation offered for a late transportation request is reasonable, and its determination will not be set aside absent an abuse of discretion (Appeal of Nolan, 32 Ed Dept Rep 352; Appeal of Block, 28 id. 308).

Petitioners' change of the designation constitutes a new transportation request (Appeal of Stephens, 26 Ed Dept Rep 434; Appeal of Grimaldi, 26 id. 261; Matter of Monreal, supra). Their new written request for transportation was not submitted until May 17, 1993 -- well after the April 1 deadline. As an excuse for their delay, petitioners contend that they were unaware of their son's abilities prior to the April 1 deadline. While petitioners' contention is true, I find that excuse unpersuasive. The record indicates that petitioners did not even begin evaluating their son's program until April 17, 1993. In any event, a belated decision to enroll a student in a nonpublic school does not constitute a reasonable excuse for the failure to submit a timely transportation request (Appeal of Stephens, supra; Matter of Bail, 25 id. 95; Matter of Mayr, 22 id. 477).

Petitioners also maintain that they are entitled to transportation because they are both employed and are consequently unavailable to transport their son to school. However, inconvenience is not a basis for granting transportation to someone who is otherwise ineligible (Appeal of Kluge, 31 Ed Dept Rep 107; Matter of Nevin, 25 id. 86, Nevin v. Ambach, et al., Supreme Court, Albany County, February 26, 1986, BRADLEY, J.; Matter of Eberhardt, 25 id. 263).

Respondent asserts that because it transports several students to the first nonpublic school at which petitioners enrolled their son, it could have provided such transportation without incurring additional costs. Because no other students in the district attend the second nonpublic school selected by petitioners, respondent maintains that providing transportation to that school would result in respondent incurring approximately $4,000 in additional costs. Petitioners do not appear to contest respondent's claim that the requested transportation cannot be provided without additional cost to the school district. Instead, they assert that their son is entitled to the late requested transportation regardless of the cost. This assertion has no foundation in law (Education Law '3635[2]; Appeal of Nolan, supra; Appeal of Rugar, 28 Ed Dept Rep 159).

Based on the foregoing, I conclude that respondent has not abused its discretion in denying petitioners' late transportation request.