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Decision No. 13,168

Appeal of RICHARD BEER, on behalf of his daughter, CONSTANCE HIGGINS-BEER, from action of the Board of Education of the Bethlehem Central School District relating to transportation.

Decision No. 13,168

(May 2, 1994)

DeAngelis, Kaplowitz, Murphy, Runion, Fritts & Whiting, Esqs., attorneys for respondent, Roger M. Fritts, Esq., of counsel

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

Prior to the 1993-94 school year, petitioner's daughter attended the Children's School at Emma Willard with transportation provided by respondent. Because the program in which she was enrolled at the Children's School concluded at the end of the 1992-93 school year, petitioner had to enroll his daughter in a different school for the 1993-94 school year. In June 1993, petitioner met with respondent's superintendent and requested that his daughter be allowed to attend a district elementary school other than her assigned school. The superintendent denied petitioner's request. Respondent board subsequently denied petitioner's request on July 8, 1993.

Thereafter, petitioner decided to enroll his daughter in another nonpublic school, the Robert C. Parker School. On August 4, 1993, petitioner requested that respondent provide transportation for his daughter to the Parker School for the 1993-94 school year. Respondent denied petitioner's late transportation request and this appeal ensued. I denied petitioner's request for interim relief on October 1, 1993.

Before reviewing the merits of this appeal, I must first address a procedural issue. Respondent contends that this appeal is untimely and should, therefore, be dismissed. Respondent is correct that an appeal to the Commissioner of Education pursuant to Education Law '310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR '275.16). However, as Commissioner of Education, I have the authority to excuse a failure to commence an appeal within the time specified for good cause shown (8 NYCRR '275.16; Appeal of Matteson, 28 Ed Dept Rep 514). The record shows that petitioner attempted to commence his appeal within 30 days of respondent's decision by filing a petition with my Office of Counsel. Upon being informed that he had to first serve respondent, petitioner properly commenced the appeal two days after the period specified by '275.16 expired. There has been no showing that respondent has been prejudiced by petitioner's minimal delay. Accordingly, the interests of justice would not be served by dismissing the appeal on timeliness grounds.

The appeal, however, must be dismissed on the merits. 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). In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Rugar, supra). The board's determination will not be set aside unless it is so unreasonable that it constitutes an abuse of discretion (Appeal of Block, 28 Ed Dept Rep 308; Matter of Wybinow, 22 id. 390).

Petitioner maintains that he should be excused from his failure to file a timely transportation request because he did not expect to send his daughter to a private school for the 1993-94 school year. Petitioner contends that he originally intended to enroll his daughter in respondent's schools but, in doing so, expected respondent would grant his request to allow his daughter to attend a particular school in the district due to alleged compelling personal reasons. There is no evidence in the record to support petitioner's assertion that any such compelling personal reasons existed. In any event, a board 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 excuse for the failure to submit a timely transportation request (Appeal of McCormack, 27 Ed Dept Rep 152; Appeal of Stephens, 26 id. 434). Although a late transportation request may reflect a parent's concern about their child's educational environment, a school district may nevertheless deny such a request (Appeal of Spivack, 31 Ed Dept Rep 121; Appeal of Stephens, supra).

Petitioner also contends that his late request must be excused because in two previous years petitioner enrolled his daughter in the Children's School after the start of the school year and respondent accepted petitioner's late transportation requests. However, petitioner has offered no evidence that respondent misled him as to the April 1 statutory filing deadline. A board of education need not accept ignorance of the statutory deadline as a reasonable excuse for the failure to file a timely transportation request (Appeal of McCormack, supra; Matter of Poniros, 21 Ed Dept Rep 159). In addition, there is no requirement that a board of education must notify parents of the filing requirement set forth in Education Law '3635 (Appeal of Higler, 27 Ed Dept Rep 153).

Even in the absence of a reasonable explanation for delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Nolan, supra; Appeal of Rugar, supra). Respondent maintains that no other district students attend the Parker School and that it would cost an additional $2,336.40 per year to provide the requested transportation. Although he disputes the exact amount, petitioner does not contest respondent's claim that the transportation cannot be provided without additional cost to the district. Accordingly, I find that respondent has not abused its discretion in denying petitioner's late transportation request.