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Decision No. 13,879

Appeal of JOYCE L. AMOROSO, on behalf of CHRISTOPHER M.J.P. AMOROSO, from action of the Board of Education of the Island Trees Union Free School District regarding transportation.

Decision No. 13,879

(March 3, 1998)

David S. J. Rubin, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Island Trees Union Free School District ("respondent") to deny her application for transportation to a nonpublic school. The appeal must be dismissed.

Petitioner’s son, Christopher, was accepted into St. Mary’s School in Manhasset, New York, on July 17, 1997. Although the parties disagree as to the date of petitioner’s first inquiry about transportation, it is undisputed that petitioner did not file an application for transportation by the April 1 deadline. Respondent eventually received petitioner's application on May 28, 1997. Petitioner's application did not contain a request for a waiver of the deadline or any reasons for submitting a late application, despite having been advised in a May 19, 1997 letter from respondent that she should submit an application as soon as possible and include a letter requesting a waiver and stating the reasons for the late application. On May 29, 1997, respondent forwarded another copy of the May 19, 1997 letter to petitioner, highlighting the paragraph referring to the need to request a waiver and provide a reason for the delay. Petitioner did not submit anything further.

By letter dated July 28, 1997, the deputy superintendent advised petitioner that, because the district had not received a waiver request, her application for transportation was denied. On or about August 8, 1997, petitioner sent a letter to respondent, stating that she understood there was a deadline for application, but that she had not been informed of Christopher’s acceptance into St. Mary’s until July 17, 1997. She further stated that St. Mary's had advised her that, even though the deadline had passed, she should forward the necessary papers and arrangements would be made to include Christopher on the bus. On August 27, 1997, petitioner was advised that respondent had decided to stand by the earlier determination not to waive the untimely request for transportation. This appeal ensued.

Petitioner contends that it is unreasonable for respondent to deny her transportation request as untimely, because she did not know if Christopher would be accepted into St. Mary’s until July 17, 1997. She further claims that because a student from another town, who registered into St. Mary’s at the same time, is being transported to St. Mary’s on the same bus that Christopher would use, respondent’s refusal is improper.

Respondent asserts that the appeal is time-barred, because it was commenced more than thirty days after the written denial of July 28, 1997. Respondent also contends that the application for transportation was untimely under Education Law "3635, and that petitioner has not supplied a reasonable explanation for her delay. Respondent further states that the school district would incur additional costs and expenses if it were to transport Christopher to St. Mary’s. Specifically, respondent states that no other student in the school district attends that school, there are no buses transporting students from the school district to the area in which St. Mary’s is located, and providing transportation for Christopher would require a separate school bus for him alone.

Before reaching the merits, I will address the procedural issue of timeliness. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The record in this case indicates that the respondent board’s determination to deny petitioner’s transportation request was made on August 27, 1997. The date from which the 30 day limitation period runs is the date of respondent’s final determination, not the July 28, 1997 decision by the deputy superintendent (Appeal of Matero, 36 Ed Dept Rep 242). Since petitioner commenced this appeal on September 24, 1997, within 30 days after respondent’s final determination, the appeal is timely. The appeal must, however, 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 deadline is to enable school districts to budget the funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Matero, supra; 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 Matero, supra; Appeal of Young, 34 Ed Dept Rep 350; Appeal of Somer, 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 Matero, 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 Matero, supra).

In the instant case, petitioner offered no explanation for the delay in her May 28, 1997 request, despite specific instruction by the district to request a waiver and provide reasons for the late request. In any event, the excuse subsequently proffered by petitioner in her letter to respondent dated August 8, 1997 is insufficient. 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 Matero, supra; Appeal of Young, supra; Appeal of Somer, supra).

Respondent also established that providing transportation to Christopher would pose an expense not anticipated at the time the 1997/98 school year budget was prepared and passed, and that no existing arrangements were available to transport Christopher to St. Mary’s. Petitioner’s conclusory statements about a student from another town are insufficient to contradict the facts established by respondent.

It has long been recognized that a board’s refusal to grant a late transportation request is not an abuse of discretion where additional expense and new transportation arrangements would be necessary, even if the request is prompted by a change in school enrollment which occurs after April 1 (Appeal of Matero, supra; Appeal of Galvani, 34 Ed Dept Rep 370; Appeal of Lezny, 14 Ed Dept Rep 67). Based on the record before me, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.