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Decision No. 13,173

Appeal of VINCENT S. MINERVA, on behalf of his son, NICHOLAS M. MINERVA, from action of the Board of Education of the Smithtown Central School District relating to transportation.

Decision No. 13,173

(May 6, 1994)

Nicholas A. Gabriele, Esq., attorney for petitioner

William H. Englander, P.C., attorney for respondent, Peter G. Albert, Esq., of counsel

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

In January 1991, petitioner enrolled Nicholas as a boarding student in the LaSalle Military Academy, a nonpublic school. At some unspecified point in time, the LaSalle Military Academy announced plans to open a Learning Center and gradually close the Military Academy. After classes started in September 1993, petitioner decided to transfer Nicholas to the Learning Center. On September 27, 1993, petitioner's wife requested that respondent provide transportation for Nicholas to the Learning Center for the 1993-94 school year. Respondent denied the transportation request and this appeal ensued.

Prior to addressing the merits of this appeal, I will address a procedural issue raised by respondent. Respondent contends that petitioner's appeal should be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of. Moreover, the Commissioner, in his discretion, may for good cause shown excuse a late appeal (8 NYCRR 275.16).

The instant appeal was not commenced until November 29, 1993, more than two months after respondent denied petitioner's request for transportation. Petitioner argues that this delay should be excused, however, because he did not learn of the appeal process until some time after October 20, 1993 when he received a handbook explaining the procedure for appealing to the Commissioner of Education. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Saeger, 31 id. 528; Appeal of Pitney Bowes, Inc., 31 id. 290). On the record before me, I find no unusual circumstances. Moreover, even after petitioner learned about the appeal process, he further delayed bringing this appeal as he attempted to obtain the assistance of an attorney. I do not find this explanation sufficient to excuse petitioner's delay. Accordingly, the appeal is dismissed as untimely.

The appeal is also 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. However, 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 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 a decision was not made to transfer Nicholas to the LaSalle Learning Center until September 1993. Petitioner contends that the courses Nicholas wanted to pursue at the LaSalle Military Academy would no longer be offered due to insufficient enrollment. However, there is no evidence in the record which demonstrates that the Military Academy's curriculum change actually occurred after the April 1 deadline. Moreover, when petitioner's wife requested that respondent provide transportation in September 1993, she stated that "my son was boarding for one and a half years and now has decided to just attend the day prep school. He is homesick." A board of education may reasonably conclude that a parent's 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 McCormack, 27 Ed Dept Rep 152; Appeal of Stephens, 26 id. 434). 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 Spivack, 31 Ed Dept Rep 121; Appeal of Stephens, supra).

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 it contracts for nonpublic school transportation on a per pupil cost basis and alleges that it would cost an additional $3,400.00 to provide the requested transportation for the school year. Although he disputes the exact amount, petitioner does not contest respondent's claim that transportation cannot be provided without additional cost. Accordingly, I find that respondent has not abused its discretion in denying petitioner's late transportation request.