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Decision No. 13,393

Appeal of NUZHAT HAQUE, on behalf of her children, RAZIA and ERFANUL, from action of the Board of Education of the Amityville Union Free School District relating to transportation.

Decision No. 13,393

(April 6, 1995)

Van Nostrand & Martin, Esqs., attorneys for respondent, LeRoy Van Nostrand, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport her children, Razia and Erfanul, to a nonpublic school during the 1994-95 school year. The appeal must be dismissed.

On April 6, 1994, petitioner requested transportation for her children to a nonpublic school for the 1994-95 school year. Respondent denied petitioner's request as untimely on April 20, 1994. 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. This deadline enables school districts to budget funds and make necessary arrangements to provide transportation in a reasonable and economical manner (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 id. 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 Somer, supra; 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 id. 308; Matter of Wybinow, 22 id. 390).

Petitioner asserts she was unaware of the deadline. However, a board of education need not accept ignorance or forgetfulness of the filing requirement as a reasonable excuse for failure to file a timely transportation request (Appeal of DeWitt, 31 Ed Dept Rep 60; Appeal of Halsdorf and McClenahan, 30 id. 268; Appeal of McCormack, 27 id. 152). Accordingly, petitioner's ignorance of the filing requirement does not excuse her failure to file a timely request. Moreover, the record demonstrates that respondent undertook specific actions to notify the public of the deadline for transportation requests. On March 3, 1994, respondent published notice of the submission deadline for transportation requests for the 1994-95 school year in a weekly newspaper with general circulation in the district. Additionally, respondent highlighted the filing deadline on the March and April pages of the school calendar. To accommodate a school holiday, respondent extended the submission deadline for transportation requests for the 1994-95 school year until April 5, 1994. In view of the foregoing, I will not set aside the board's determination to reject submissions after that date absent a showing it was an abuse of discretion.

Petitioner claims her late filing should be excused because no one was in the transportation office when she attempted to submit her request on April 5, 1994. Respondent denies this assertion. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Application of Marshall, et al., 33 Ed Dept Rep 26; Appeal of Garnett, 32 Ed Dept Rep 91). In the absence of any evidence to support her claim, petitioner has failed to establish her inability to present her request to respondent on or before April 5, 1994.

As a further excuse for her late request, petitioner also maintains she does not know how to drive and had to rely on her husband to drive to the school district to file the request. Petitioner's inability to drive is not a valid excuse for failing to file a timely request. Aside from petitioner's general assertion of family problems, she failed to set forth sufficient detail concerning the family situation to establish an inability to meet the deadline or justify her late filing. Under these circumstances, I find respondent did not abuse its discretion in determining that petitioner failed to establish a reasonable excuse (Appeal of Skinner, 29 Ed Dept Rep 200; Appeal of Block, 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 Somer, supra; Appeal of Nolan, supra). The record reflects that respondent would incur an expense of $666 per month to transport petitioner's children, since transportation to private and parochial schools in respondent's district is done under contract with private carriers on a percapita basis. Under these facts, the district has no obligation to transport petitioner's children to nonpublic school.