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Decision No. 13,337

Appeal of LYUDMILA and JONATHAN YOUNG, on behalf of their daughter, CLAIRE, from action of the Board of Education of the Port Jefferson Union Free School District relating to transportation.

Decision No. 13,337

(January 24, 1995)

Jonathan M. Young, Esq., attorney for petitioners

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

SOBOL, Commissioner.--Petitioners appeal respondent's refusal to transport their daughter, Claire, to a nonpublic school during the 1994-95 school year. The appeal must be dismissed.

In August 1994, petitioners asked respondent to move Claire out of her scheduled third grade class because another student also scheduled to be in that class had allegedly bullied Claire in summer camp. Respondent informed petitioners that a transfer at that point was unlikely, unless there were enrollment changes in one of three other third grade classes. An enrollment change did, in fact, occur and petitioners were notified prior to September 8, 1994, that Claire could transfer to a different class. On September 12, 1994, however, petitioners instead requested that Claire be transported to a nonpublic school. On October 12, 1994, respondent denied this request. This appeal followed.

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 deadline is to enable school districts to budget the funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Somer, 34 Ed Dept Rep 16; Appeal of McNair, 33 id. 418). 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 Somer, supra; Appeal of Nolan, 32 Ed Dept Rep 352; Appeal of Rugar, 28 id. 159). It is the responsibility of the board of education, in the first instance, to determine whether a parent has offered a reasonable explanation for 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 Somer, supra; Appeal of Block, 28 Ed Dept Rep 308; Matter of Wybinow, 22 id. 390).

In this case, petitioners contend that it was necessary to send their daughter to a nonpublic school because respondent refused to move her to a different third grade class. Contrary to petitioners' assertion, however, respondent notified petitioners that it would transfer Claire to a different class. Accordingly, petitioners' reason for sending Claire to a nonpublic school was nullified by respondent's decision to grant petitioners' request. Moreover, 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 Somer, supra; Appeal of Stephens, 26 Ed Dept Rep 434; Matter of Bail, 25 id. 95).

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 Somer, supra; Appeal of Nolan, supra). The record shows that respondent pays for transportation to nonpublic schools on a per pupil basis and would incur an additional expense of $2,545.10 to transport Claire to the nonpublic school in question. Accordingly, respondent is not obligated to grant petitioners' request.

Moreover, petitioners' assertion that respondent's refusal to provide transportation to their daughter is discriminatory because respondent may later be statutorily required to provide transportation to a new student in the school district is meritless. Education Law '3635 requires a school district to provide transportation to new residents requesting transportation to nonpublic schools. There is, however, no corresponding statutory obligation to transport a student who is not a new resident in the school district when the student's parents belatedly decide to send the child to a nonpublic school. I thus find no evidence that respondent's actions were discriminatory.

I also find baseless petitioners' assertion that they had no opportunity to present their case to the board of education. There are no statutory procedures to be followed by a school board when making determinations regarding the provision of transportation of students to nonpublic schools. In this case, the record reflects that Mr. Young submitted a letter of explanation to the board of education and that he was present at a board meeting during which the board discussed this matter. The submission of a letter and a discussion by the board regarding petitioners' transportation request appears to be a reasonable accommodation to petitioners' concerns. Therefore, I find respondent afforded petitioners all necessary opportunities to present their case.

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