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Decision No. 13,218

Appeal of LLOYD SOMER, on behalf of his son, JARED SOMER, from action of the Board of Education of the Bellmore-Merrick Central High School District relating to transportation.

Decision No. 13,218

(July 14, 1994)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

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

Prior to April 1, 1993, petitioner's spouse submitted a request, pursuant to Education Law '3635(2), to respondent for transportation for Jared to a nonpublic school for the 1993-94 school year. In August 1993, petitioner enrolled Jared in Merrick Avenue Junior High School instead of the nonpublic school. On December 13, 1993, petitioner transferred Jared to the nonpublic school to which his wife had originally requested transportation. By letter dated December 16, 1993, petitioner asked respondent to provide transportation to that nonpublic school. By letter dated March 8, 1994, respondent denied that request. This appeal ensued.

Pursuant to Education Law '3635(2), 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. The purpose of this deadline is to enable school districts to budget the funds and make the arrangements necessary to provide transportation in a reasonable and economical manner (Appeal of McNair, 33 Ed Dept Rep 419). However, a district may not reject a late request for transportation 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). 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).

In this case, petitioner provides no excuse for his late decision to enroll Jared in the nonpublic school, but maintains that Jared is entitled to the requested transportation because it can be provided without additional costs to respondent. Petitioner also asserts that respondent had set aside the requisite funds to transport Jared based on his initial request and that such funds are available to honor his second request for transportation. However, the record indicates that pursuant to a contract between respondent and a transportation contractor, respondent pays $131.64 per month for each student transported to the nonpublic school. Moreover, respondent has demonstrated that upon petitioner's decision in August 1993 not to send Jared to the nonpublic school, the funds previously budgeted for that purpose were used for other transportation expenses and ceased to be available.

Petitioner's second request for transportation to the nonpublic school constitutes a new transportation request (See, Appeal of Stephens, 26 Ed Dept Rep 434; Appeal of Grimaldi, 26 id. 261; Matter of Monreal, 25 id. 225). His new written request for transportation was not submitted until December 16, 1993 -- well after the April 1 deadline. The Commissioner has repeatedly held that 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).

I have reviewed petitioner's remaining contentions and find them without merit.

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