Decision No. 13,548

(February 5, 1996)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's refusal to transport his daughter, Danielle, to a nonpublic school for the 1995-96 school year. The appeal must be dismissed.

On July 25, 1995, petitioner requested that respondent provide Danielle with transportation to the Academy of St. Joseph, a nonpublic school, during the 1995-96 school year. Respondent denied this request on July 25, 1995 because it was submitted after April 1, the deadline for the submission of transportation requests under Education Law '3635, and because transportation could not be provided without incurring significant additional costs. Petitioner commenced this appeal on August 29, 1995.

Before addressing the merits, I will address a procedural matter. An appeal to the Commissioner of Education must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). Requests for reconsideration of the challenged decision do not extend the 30 day time period (Appeal of Goodman, 35 Ed Dept Rep 93; Appeal of Regan, 34 id. 72; Appeal of Moore, 33 id. 703; Appeal of Hall and Cooper, 32 id. 377). The record in this case reflects that respondent's determination was made on July 25, 1995. Petitioner commenced this appeal on August 29, 1995, more than 30 days after the date of respondent's decision. Petitioner explains his failure to file an appeal sooner by stating that he thought respondent might be able to provide his daughter with transportation after all. This presumption at best can be characterized as a request for reconsideration and as such does not toll petitioner's time to file an appeal. Accordingly, I must dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. 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 necessary arrangements to provide transportation in a reasonable and economical manner (Appeal of Young, 34 Ed Dept Rep 350; 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). 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 Young, supra; Appeal of Somer, supra; Appeal of Nolan, supra). It is the responsibility of the board of education in the first instance 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 Somer, supra; Appeal of Block, 28 Ed Dept Rep 308; Matter of Wybinow, 22 id. 390).

Respondent contracts with the Board of Cooperative Educational Services ("BOCES") for the use of a minibus to transport resident students to the Academy of St. Joseph. Respondent explains that at the time that petitioner filed his transportation request, the minibus was already filled to capacity with 16 students. To transport any additional students to that school would thus require respondent to contract for an additional minibus at a cost of $20,240 or to substitute a larger bus for the minibus at a cost of $38,122 for the school year. In view of this additional expense to respondent, petitioner must provide a reasonable excuse to justify the untimeliness of his transportation request.

A belated decision to enroll a student in a nonpublic school does not constitute a reasonable excuse for failure to submit a timely transportation request (Appeal of Young, supra; Appeal of Somer, supra; Appeal of Stephens, 26 Ed Dept Rep 434; Matter of Bail, 25 id. 95). Accordingly, petitioner's decision to send Danielle to a nonpublic school does not require the district to grant the request.

Petitioner's assertion that respondent's refusal to transport his daughter amounts to a deprivation of his rights because a new student in the school district would be provided with transportation is without merit. Education Law '3635(1)(e) requires a school district to provide transportation to nonpublic schools to new residents requesting it if a written request is submitted to the school district within 30 days after the new residents have established residency in the district. There is, however, no corresponding statutory obligation for school districts to transport students who are not new residents in the district when the students' parents belatedly decide to send their children to a nonpublic school (Appeal of Young, supra). My review of the record indicates that respondent's actions comply with the requirements of Education Law '3635 and do not deprive petitioner of any right to the transportation services he desires.

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

THE APPEAL IS DISMISSED.

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