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Decision No. 14,334

Appeal of PATRICIA GOLDMAN, on behalf of LAUREN GOLDMAN, from action of the Board of Education of the Merrick Union Free School District regarding transportation.

Decision No. 14,334

(April 12, 2000)

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

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Merrick Union Free School District ("respondent") denying her request to transport her daughter to a nonpublic school. The appeal must be dismissed.

Petitioner and her family have resided within respondent’s school district for a number of years. Petitioner’s daughter, Lauren, commenced kindergarten at the district’s Chatterton Elementary School ("Chatterton") at the beginning of the 1998-99 school year. In December 1998, petitioner’s husband was assigned to a consulting project in Texas and the family temporarily moved to Texas. Because the family planned to return to the district, it continued to maintain the family residence during its absence.

Petitioner and Lauren returned to the district on or about June 1, 1999. At that time, Lauren resumed attending the same class she had left in December 1998.

In late August 1999, the district notified parents of their children’s teacher assignments for the 1999-00 school year. On September 2, 1999, petitioner called Ms. Syd Freifelder, the district official responsible for transportation issues, to request transportation for her daughter to a nonpublic school. Petitioner explained that she wanted to send her daughter to a nonpublic school because she was not satisfied with Lauren’s assigned teacher. Ms. Freifelder informed petitioner that her transportation request would not be granted because it was late. At Ms. Freifelder’s suggestion, petitioner met the following day with David Sills, Chatterton’s principal, to request a change in Lauren’s teacher assignment. After receiving no satisfaction from the principal, petitioner contacted Dr. Ronald Smith, the district’s superintendent of schools, to discuss her transportation request. Petitioner told Dr. Smith that she had not made a timely request because, until recently, her family had planned to return to Texas.

On September 7, 1999, Dr. Smith discussed petitioner’s request with respondent. Shortly thereafter, Dr. Smith informed petitioner by telephone that respondent had denied her request. Dr. Smith formally notified petitioner of respondent’s decision in a letter dated September 21, 1999. By letter dated September 24, 1999, petitioner sought reconsideration of respondent’s determination, and included documentation to support her contention that she had only learned recently that her family would not be returning to Texas. After reconsidering petitioner’s request at its September 28, 1999 board meeting, respondent adhered to its original decision denying Lauren transportation. Petitioner commenced this appeal on October 21, 1999.

Petitioner contends that her late transportation request should be granted because she did not know that the Education Law requires new residents to apply for transportation to a nonpublic school within 30 days of establishing residency, and that the district school calendar does not alert parents to this fact. Petitioner also contends that she has established good cause for the delay, explaining that she initially planned to return to Texas with her daughter in September, but changed her plans in August 1999 after learning that her husband’s work obligation in Texas would end in October 1999. Petitioner’s request for interim relief was denied on November 12, 1999.

Respondent contends that the appeal is untimely because respondent initially denied petitioner’s request on September 7, 1999 and the appeal was not instituted until October 21, 1999. As to the merits, respondent contends that, contrary to petitioner’s assertions, the true explanation for the untimely transportation request is that petitioner belatedly decided to send Lauren to the nonpublic school after receiving Lauren’s teacher assignment in late August. Respondent submits an affidavit from Syd Freifelder, respondent’s director of business and technology, and David Sills, principal of the Chatterton Elementary School, each of whom affirm that in early September 1999, petitioner informed them that she wanted to send her daughter to a nonpublic school because she was unhappy with her daughter’s assigned teacher.

An appeal to the Commissioner must be instituted 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). Although Dr. Smith informed petitioner by telephone of respondent’s determination shortly after its September 7, 1999 meeting, petitioner was formally notified of respondent’s decision by letter dated September 21, 1999. Petitioner commenced this proceeding on October 21, 1999. Because the appeal was commenced within 30 days of petitioner’s formal notification of respondent’s decision, I will not dismiss the appeal as untimely.

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 Ed Dept Rep 365, Decision No. 14,056). Where a parent or guardian is not residing in the district on April 1, the request for transportation must be submitted within 30 days after residence in the district is established (Education Law "3635[2]). 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). 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 Shevlin, supra). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Id.).

In this case, petitioner did not file her request prior to the April 1 deadline or within 30 days of returning to the district in June 1999. Accordingly, petitioner’s September 1999 transportation request was untimely.

Likewise, petitioner has failed to establish good cause for the delay. Although petitioner alleges that the delay was caused by her husband’s uncertain work situation, respondent has established that, in fact, the late request resulted from petitioner’s belated decision to send her daughter to a nonpublic school. 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 Tarricone, supra; Appeal of Amoroso, 37 Ed Dept Rep 359, Decision No. 13,879).

Moreover, a board of education need not accept ignorance of the filing requirement as a reasonable excuse for failure to file a timely transportation request (Appeal of Mogilski, 37 Ed Dept Rep 446, Decision No. 13,901; Appeal of Haque, 34 id. 496, Decision No. 13,393; Appeal of DeWitt, 31 id. 60, Decision No. 12,568). The record reflects that the district notified district residents of the transportation request deadline in both the district news bulletin and the local newspaper. Under these circumstances, I find that respondent’s refusal to excuse the delay was justified.

Petitioner also contends that because of certain personal difficulties, it is a hardship for her to transport Lauren to the nonpublic school. While I am sympathetic to petitioner’s situation, personal hardship is not a basis for granting a late transportation request (Appeal of Korzyk, 33 Ed Dept Rep 460, Decision No. 13,113).

Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional costs to the district (Appeal of Tarricone, supra; Appeal of Shevlin, supra). Respondent submitted an affidavit from Dr. Smith alleging that the district does not transport any of its residents to the nonpublic school in question, and that it would cost the district $192.98 per month to provide such transportation to petitioner’s daughter. Under these circumstances, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.