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Decision No. 13,348

Appeal of PAMELA HAUSER, on behalf of KIELE HAUSER, from action of the Board of Education of the Freeport Union Free School District regarding transportation.

Decision No. 13,348

(January 30, 1995)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, John O. Fronce, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport her daughter Kiele to a nonpublic school for the 1994-95 school year. The appeal must be dismissed.

On or about June 8, 1994, petitioner submitted a written request to respondent to transport her daughter to a nonpublic school for the 1994-95 school year. At that time, petitioner also submitted a handwritten note, stating that she had not decided to enroll her daughter at the nonpublic school until June 8, 1994. By letter dated July 6, 1994, respondent informed petitioner that her request for transportation was denied because it was untimely. Subsequently, petitioner asserted that she had originally filed a transportation request prior to the April 1st statutory deadline, requesting transportation to a "destination unknown." Based on that assertion, she again requested transportation for her daughter. By letter dated September 19, 1994, respondent informed petitioner that it had found no evidence of an earlier transportation request and that its decision remained unchanged. This appeal ensued.

Education Law '3635(2) provides that a parent who desires transportation to a nonpublic school must file a request in writing not later than April 1 of the preceding school year. A late request for transportation may not be denied, however, if a reasonable explanation is provided for the delay. Initial discretion to determine the reasonableness of a particular explanation for delay is vested in the board of education, and such a determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Anonymous, 31 Ed Dept Rep 227; Appeal of Muller, 29 id. 280). Even in the absence of a reasonable explanation for the delay, a late request must be granted if the transportation can be provided under existing transportation arrangements at no additional expense to the district (Appeal of Gordon, 29 Ed Dept Rep 175).

Petitioner contends that she did not decide to enroll her daughter in the nonpublic school in question until June 8, 1994. However, 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 explanation for the failure to submit a timely transportation request (Appeal of Bail, 25 Ed Dept Rep 95; Matter of Mayr, 22 id. 477; Matter of Ciemielewski, 19 id. 70). Accordingly, respondent was not arbitrary or capricious in rejecting petitioner's June 8 request for transportation.

The record further reveals that respondent contracts for transportation to the school in question on a per pupil basis. Therefore, under the district's existing transportation arrangements, respondent cannot accommodate petitioner's request without generating additional cost.

Petitioner claims that she filed an earlier timely request for transportation. However, in an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Gloria C., 32 Ed Dept Rep 664; Appeal of Negrin, 29 id. 484). There is nothing in the record before me to support petitioner's claim that she filed a timely request for transportation, other than her bare assertion on that issue. In view of respondent's denial of that assertion, petitioner has failed to meet her burden of proof.

Moreover, assuming arguendo, that petitioner did submit a transportation request prior to the April 1 deadline, she acknowledges that her first request was for an unspecified location while her June 8th request designated a particular nonpublic school. This destination change constitutes a new transportation request (Appeal of McNair, 33 Ed Dept Rep 418; Appeal of Stevens, 26 id. 434; Appeal of Grimaldi, 26 id. 261; Appeal of Montreal, 25 id. 225). The alleged second request for transportation was not submitted until June 8. As noted above, that June 8 request was submitted well after the April 1 deadline, and respondent was not unreasonable in rejecting petitioner's excuse for that late request.