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Decision No. 14,655

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Middle Country Central School District regarding transportation.

Decision No. 14,655

(November 19, 2001)

Guercio & Guercio, attorneys for respondent, Michael D. Jones, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Middle Country Central School District ("respondent") denying her request to transport her son to a nonpublic school. The appeal must be dismissed.

On or about July 10, 2001, petitioner requested transportation for her son to the Torah Academy of Suffolk, a nonpublic school, for the 2001-02 school year. Respondent"s transportation supervisor denied petitioner"s request by letter dated July 11, 2001. This appeal ensued. Petitioner"s request for interim relief was denied on August 20, 2001.

Petitioner asserts that respondent"s refusal to transport her son violates Education Law "3635 and federal constitutional law. Respondent asserts that petitioner failed to submit a transportation request before the statutory deadline and that it would incur additional cost if it granted the request.

Before addressing the merits of this appeal, I note that petitioner, who is acting without the assistance of counsel, submitted a reply as soon as she received respondent"s affirmation in opposition to her stay request instead of waiting until she had been served with respondent"s answer. Respondent asserts that a reply to its affirmation should not be considered because it is not permitted by the regulations.

The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Lucente, 40 Ed Dept Rep ___, Decision No. 14,526; Appeal of Breud, 38 id. 748, Decision No. 14,133). Therefore, I have considered petitioner"s reply only to the extent that it relates to new material or affirmative defenses set forth in the answer.

Turning to the merits of the appeal, Education Law "3635(2) requires that an application for transportation to a nonpublic school 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 R.O., 40 Ed Dept Rep ____, Decision No. 14,441; Appeal of Gabay, 39 id. 492, Decision No. 14,290; Appeal of Mogilski, 37 id. 446, Decision No. 13,901). 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 R.O., supra; Appeal of Gabay, 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. The board"s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of R.O., supra; Appeal of Gabay, supra).

In February 2001, petitioner"s son was referred to respondent"s Committee on Special Education ("CSE") because there were concerns related to his attendance, motivation and conduct. On June 11, 2001, the CSE found no evidence of an educational disability and referred him back to the middle school for intervention with regard to his attendance, motivation and homework. Dissatisfied with this result, petitioner decided to enroll her son at the Torah Academy for the 2001-02 school year. However, 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 Gabay, supra; Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Amoroso, 37 id. 359, Decision No. 13,879).

Moreover, a school district is not required to provide transportation where the transportation requested would impose additional financial costs upon the school district (Appeal of Attubato, supra; Appeal of Matero, 36 Ed Dept Rep 242, Decision No. 13,713). Here, respondent submitted the affidavit of its transportation supervisor stating that the district does not transport any other students to Torah Academy and that respondent would incur a minimum of $4,000 in additional transportation costs if the request was granted. Although petitioner alleges that it would cost respondent less than $4,000 to provide the requested transportation, she provides no evidence that the district could provide the transportation without any additional financial cost. Consequently, I conclude that respondent has not abused its discretion in denying petitioner's late transportation request.

Finally, petitioner claims respondent"s denial of transportation for her son also violates the federal Constitution regarding discrimination and equal protection of the laws. I decline to address these claims since an appeal to the Commissioner pursuant to Education Law "310 is not the proper forum to adjudicate novel issues of constitutional law (Appeal of Finkel, 41 Ed Dept Rep ___, Decision No. 14,619; Appeal of Carlson, et al., 37 id. 351, Decision No. 13,877; Appeal of O'Shea, 32 id. 514, Decision No. 12,904).



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