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Decision No. 14,584

Appeal of JOANNE M., on behalf of DIANE M., from action of the Board of Education of the East Rockaway Union Free School District regarding transportation.

Decision No. 14,584

(June 19, 2001)

Janis Weissman, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorneys for respondent, Stacy L. Gordon, Esq., of counsel

Petitioner appeals the refusal of the Board of Education of the East Rockaway Union Free School District ("respondent") to transport her daughter to a nonpublic school for the 2000-01 school year. The appeal must be dismissed.

During the 1999-2000 school year, petitioner"s daughter, Diane, was a ninth grade student enrolled in respondent"s high school. In late October 1999, an incident occurred in which Diane was taunted and harassed by other students. As a result of the steadily deteriorating social situation between Diane and other students, petitioner alleges that she considered sending her daughter to a private school. In April 2000, petitioner spoke with her daughter"s guidance counselor and with respondent"s superintendent about the situation, and was told that the April 1 deadline for requesting transportation to a nonpublic school was strictly enforced by the district.

In early June 2000, another incident took place at school directed at Diane. Petitioner"s daughter was so upset by this incident that she refused to return to school. The district arranged for home tutoring to prepare Diane to take finals and Regents exams. Petitioner registered her daughter at a nonpublic school on June 13, 2000 and by letter dated June 21, 2000, requested that respondent transport her to that school during the 2000-01 school year. Petitioner also attended respondent board"s July 5, 2000 meeting to personally reiterate her transportation request for her daughter. In a letter dated July 7, 2000 respondent denied petitioner"s request.

On August 5, 2000, petitioner sent a letter to the State Education Department stating her intention to appeal respondent"s decision denying transportation. She received instructions on how to commence an appeal from the Department on or about August 15. This appeal ensued.

Petitioner contends that she had not made a final decision to send her daughter to a nonpublic school by April 2000. She maintains that she explored the possibility of nonpublic school in April, however, she simultaneously made an effort to have her daughter remain in public school. To this end, petitioner asserts that she consulted with the school psychologist and her daughter"s guidance counselor. Petitioner also alleges that she did not realize how severely the social situation impacted on her daughter until she received her third quarter grades in mid-April. Petitioner claims that the lower grades, in conjunction with the effect of the June incident on her daughter, forced her to make the decision to send Diane to a nonpublic school.

Petitioner maintains that her daughter"s circumstances constitute a reasonable explanation for submitting a late transportation request, and should thus be granted. Petitioner also contends that other students from respondent"s district are bused to the nonpublic school her daughter attends.

Respondent contends that petitioner had decided to send her daughter to a nonpublic school in early April. It claims that she discussed the busing situation with Diane"s guidance counselor and superintendent, both of whom told her the April 1st deadline for transportation requests was strictly enforced. Respondent also maintains that the explanations petitioner offers for her late transportation request are not reasonable in light of the continuing social problems her daughter experienced throughout the school year. Furthermore, respondent alleges that it would incur additional expense in transporting petitioner"s daughter as the district pays for bus service on a per pupil basis. Finally, respondent claims that the appeal is untimely.

I will first address the issue of timeliness. An appeal to the Commissioner of Education must be commenced within thirty days from the making of the decision appealed from or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Here, respondent"s final determination was made on July 7, 2000. The record indicates that petitioner did not serve her petition in this appeal until January 3, 2001, more than five-and-one-half months after the date of respondent"s July decision. As an explanation for this delay, petitioner indicates that she had written to the Commissioner on August 5, 2000 requesting instructions on how to appeal respondent's decision. The record indicates that petitioner received this information on or about August 15, 2000 yet she waited almost five months from that date before commencing an appeal. Moreover, her letter to the Commissioner was not a substitute for a properly filed appeal of respondent"s determination, (Appeal of Diane L., 37 Ed Dept Rep 443, Decision No. 13,900). Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Diane L., supra; Appeal of A.B., 36 Ed Dept Rep 155, Decision No. 13,687; Appeal of a Child with a Disability, 33 id. 672, Decision No. 13,191). I find no evidence of unusual circumstances in this case. Accordingly, the appeal is dismissed as untimely.

Even if the appeal were timely, I would still be constrained to dismiss it 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 Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Mogilski, 37 id. 446, Decision No. 13,901; Appeal of Haque, 34 id. 496, Decision No. 13,393). 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 Attubato, supra; Appeal of Mogilski, supra; Appeal of Somer, 34 Ed Dept Rep 16, Decision No. 13,218). 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, 38 Ed Dept Rep 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056; Appeal of Amoroso, 37 id. 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 Shevlin, supra; Appeal of Amoroso, supra).

Petitioner alleges that she was unable to apply for transportation prior to April 1, 2000 because she could not fully evaluate Diane"s need for a nonpublic school setting until she received her third quarter grades in April 2000, and observed the detrimental effect the June incident had on her daughter. 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 Attubato, supra; Appeal of Amoroso, supra; Appeal of Matero, 36 Ed Dept Rep 242, Decision No. 13,713). Furthermore, the Commissioner has 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, 34 Ed Dept Rep 350, Decision No. 13,337; Appeal of McCormack, 27 id. 152, Decision No. 11,902). Respondent"s contention that it pays for transportation to nonpublic schools on a per pupil basis has not been refuted by petitioner.

A board"s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Attubato, supra; Appeal of Mogilski, supra; Appeal of Somer, supra). After reviewing the facts in the record of this appeal, I conclude that respondent has not abused its discretion in

denying petitioner's late transportation request.