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Decision No. 14,290

Appeal of RICHARD and SHARI GABAY, on behalf of ALAN GABAY, from action of the Board of Education of the Rosyln Union Free School District regarding transportation.

Decision No. 14,290

(January 11, 2000)

McMillan Constabile LLP, attorneys for petititioner, Kevin J. Keelan, Esq., of counsel

Jaspan Schlesinger Silverman & Hoffman, LLP, attorneys for respondent, Jay S. Hellman, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Roslyn Union Free School District ("respondent") denying their request to transport their son Alan to a nonpublic school. The appeal must be dismissed.

Petitioners applied to enroll Alan in Friends Academy, a nonpublic school, for the 1999-2000 school year. By letter dated March 19, 1999, Friends Academy notified petitioners that Alan had not been accepted, but had been placed on a waiting list for admission. In a subsequent letter dated May 3, 1999, the school notified them that Alan had been accepted. On May 6, 1999, petitioners submitted a request to respondent for bus transportation to and from Friends Academy. By letter dated May 11, 1999, respondent's superintendent denied their request on the grounds that it was made after the April 1 deadline and that such transportation would result in additional cost to the district. Petitioners appealed to respondent who also denied their request. This appeal ensued.

Petitioners contend that they have a reasonable excuse for their late transportation request since they did not learn of Alan's acceptance into Friends Academy until after the deadline had passed. Respondent contends that petitioners' request was late, that petitioners did not provide a reasonable explanation for the delay and that the district would incur additional cost to provide the requested transportation.

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 (Appeal of Tarricone, 38 Ed Dept Rep 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056; Appeal of Mogilski, 37 id. 446, Decision No. 13,901). 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 Tarricone, supra; Appeal of Shevlin, supra; Appeal of Mogilski, supra). 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 Tarricone, supra). 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 Tarricone, supra; Appeal of Amoroso, 37 Ed Dept Rep 359, Decision No. 13,879). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Tarricone, supra; Appeal of Amoroso, supra).

In this case, petitioners filed their transportation request beyond the April 1st deadline. Because petitioners do not dispute that providing transportation to their son will require respondent to expend approximately $1,600 per year, their request must be denied unless a reasonable explanation for the late request has been offered. Petitioners argue that a belated notice of admission to a nonpublic school constitutes a reasonable explanation. However, numerous Commissioner's decisions have held that 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 Amoroso, supra; Appeal of McCarty and Howe, 31 Ed Dept Rep 267, Decision No. 12,638; Appeal of Anonymous, 31 id. 227, Decision No. 12,626). Therefore, I conclude that respondent has not abused its discretion in denying petitioners' late transportation request.