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Decision No. 13,320

Appeal of CHRISTA MALLY, on behalf of JASON MALLY, from action of the Board of Education of the West Hempstead Union Free School District regarding transportation.

Decision No. 13,320

(December 23, 1994)

Lewis H. Lehrman, Esq., attorney for petitioner

Guercio & Guercio, Esqs., attorneys for respondent, Andrew S. Roberts, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the West Hempstead Union Free School District ("respondent") rejecting her request for transportation of her son to a nonpublic school. The appeal must be dismissed.

Petitioner's son, Jason, is ten years old and attended the fourth grade at respondent's George Washington School during the 1993-94 school year. Petitioner asserts that in late May 1994, she discovered that Jason was the target of taunts and abuse by other students. She further claims that this situation often resulted in Jason spending his recess periods in the principal's office. In early June 1994, petitioner determined that it would be in Jason's best psychological and developmental interest to change schools. Petitioner took Jason for treatment to a psychologist who diagnosed him as having an adjustment disorder with depressed mood. The psychologist further noted that Jason is withdrawn, vulnerable and depressed.

On August 2, 1994, the psychologist, at petitioner's request, corresponded with respondent requesting that transportation arrangements be made for Jason to attend a nonpublic school. Respondent denied that request and this appeal ensued.

Education Law '3635(2) requires the submission of requests for transportation to nonpublic schools by April 1 of the year prior to the school year for which transportation is sought. This enables school districts to budget the necessary funds for transportation and make necessary arrangements to provide transportation in a reasonable and economical manner. A board of education may be required to provide transportation in response to requests submitted after the April 1 deadline if a reasonable explanation is offered for the delay or the requested transportation can be provided under existing arrangements at no additional cost to the school district (Appeal of McNair, 33 Ed Dept Rep 418; Appeal of Monreal, 25 id. 225). School boards have broad discretion in determining the sufficiency of late transportation requests and such determinations will not be set aside absent a showing that a board abused its discretion (Appeal of McNair, supra; Appeal of Nolan, 32 Ed Dept Rep 352).

In this matter, petitioner does not dispute that providing transportation for Jason as requested will result in the incursion of additional costs by respondent. Therefore, petitioner's request for transportation must be denied unless a reasonable explanation for her late request has been offered. Petitioner asserts that she was unaware of Jason's psychological and behavioral diagnosis until after the April 1 deadline had passed. Nonetheless, a belated decision to enroll the student in a nonpublic school does not constitute a reasonable excuse for the failure to submit a timely transportation request (Appeal of McNair, supra; Appeal of Stephens, 26 Ed Dept Rep 434; Appeal of Bail, 25 id. 95). This is true even in the case where the particular abilities of a child have not been evaluated until after the April 1 deadline (Appeal of McNair, supra; Matter of Fendelman, 16 Ed Dept Rep 23). Based on the foregoing, I cannot conclude that respondent has abused its discretion in denying petitioner's late transportation request.

Petitioner also claims that respondent only grants transportation requests received after the April 1 deadline upon proof of either new residency or classification requiring special education. While the record is not clear on this issue, I must caution respondent that Education Law '3635(2) specifically directs that, "no late request of a parent or guardian for transportation shall be denied where a reasonable explanation is provided for the delay". Respondent is accordingly cautioned to consider reasonable explanations for delays in the submission of untimely transportation requests and to refrain from applying any blanket policy in refusing such requests.

I have considered petitioner's remaining contentions and find them without merit. Although Jason's circumstances are certainly sympathetic, I am nevertheless constrained under the law to dismiss this appeal.