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Decision No. 14,082

Appeal of LESLIE ATTUBATO, on behalf of her son, ERIC DIAS, from action of the Board of Education of the Blind Brook-

Rye Union Free School District regarding transportation.

Decision No. 14,082

(March 2, 1999)

Keane & Beane, P.C., attorneys for respondent, Frances M. Pantaleo, Esq., of counsel.

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Blind Brook-Rye Union Free School District ("respondent") to provide transportation for her son, Eric Dias, to a nonpublic school for the 1998-99 school year. The appeal must be dismissed.

In June 1998, petitioner applied for Eric's admission to Iona Preparatory School ("Iona Prep"), a nonpublic school, due to concerns about his lack of academic progress. Upon receiving a letter of acceptance, petitioner applied to respondent for transportation to Iona Prep for the 1998-99 school year. The district received petitioner's request on June 18, 1998. By letter dated August 6, 1998, respondent's business administrator denied petitioner's transportation request as untimely. On August 10, 1998 petitioner sent a letter to the district's superintendent requesting reconsideration. Respondent denied petitioner's request by letter dated August 25, 1998. This appeal ensued. A request for interim relief was denied on September 29, 1998.

Petitioner contends that she was unable to evaluate Eric's need for a nonpublic school prior to June 1998, because she only received his final 1997-98 grades and progress report in June 1998. She further states that, upon consultation with religious professionals, there is a need to include religious education in Eric's daily curriculum. She asserts that the daily trip to Iona Prep constitutes an undue hardship because she already drives her three other children to school. Petitioner seeks an order requiring respondent to provide transportation for the 1998-99 school year.

Respondent contends that the request for transportation was untimely, and that petitioner has not presented a reasonable explanation for her delay. Respondent asserts it would cost the district an additional $200 per month to transport Eric to Iona Prep. Respondent also maintains that this appeal is untimely because it was filed thirty-nine days after the August 6, 1998 denial of petitioner's transportation request.

Initially, I find that the instant appeal is timely. 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 date from which the 30-day period runs is the date of respondent's final determination (Appeal of Matero, 36 Ed Dept Rep 242). The record in this case indicates that the district's superintendent notified petitioner of respondent board's determination by letter dated August 25, 1998. This challenge to respondent's decision was filed less than 30 days after the issuance of that letter. Accordingly, I decline to dismiss this appeal as untimely.

The appeal must, however, be dismissed on the merits. Education Law "3635(2) requires that an application 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 funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Mogilski, 37 Ed Dept Rep 446; Appeal of Haque, 34 id. 496; Appeal of Somer, 34 id. 16). 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 Mogilski, supra; Appeal of Somer, supra; Appeal of Nolan, 32 Ed Dept Rep 352).

Petitioner alleges that she was unable to apply for transportation prior to April 1, 1998 because she could not fully evaluate Eric's need for a nonpublic school setting until she received his academic progress reports in June 1998. It has long been recognized, however, that a belated decision to enroll a student in a private school is not a reasonable explanation for the late submission of a transportation request (Appeal of Amoroso, 37 Ed Dept Rep 359; Appeal of Matero, 36 id. 242; Appeal of Hauser, 34 id. 374; Appeal of Young, 34 id. 350). The Commissioner has also long upheld denials of untimely applications for transportation, where the transportation requested would impose additional financial costs upon the school district (Appeal of Matero, supra; Appeal of Young, supra; Appeal of McCormack, 27 id. 152). Respondent asserts that the transportation requested by petitioner would cost an additional $200 per month, or $2000 for the school year, and these costs are not refuted by petitioner.

A board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Mogilski, supra; Appeal of Somer, supra). Consequently, I conclude that respondent has not abused its discretion in denying petitioner's late transportation request.