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Decision No. 14,821

Application of a STUDENT WITH A DISABILITY AND HIS SISTER, by their parent, from action of the Board of Education of the West Islip Union Free School District regarding transportation.

Decision No. 14,821

(November 19, 2002)

Guercio & Guercio, Esqs., attorneys for respondent, Thomas M. Volz, Esq., of counsel

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

On or about July 3, 2001, petitioner requested transportation for her children to Our Lady of Perpetual Help, a nonpublic school, for the 2001-02 school year. On July 5, 2001, respondent's transportation supervisor orally denied the request. By letter dated September 25, 2001, petitioner requested a written explanation for the denial. By letter dated October 2, 2001, the transportation supervisor advised petitioner that her request was denied because it was submitted after the April 1, 2001 deadline and transportation could not be provided without an additional cost to the district. By letter dated December 21, 2001, petitioner asked respondent's superintendent to review this decision. By letter dated January 14, 2002, the superintendent advised petitioner that on January 10, 2002, respondent voted to uphold the original decision to deny transportation. Petitioner commenced this appeal on February 15, 2002. In June 2002, petitioner made a request for interim relief that was denied.

Petitioner asserts that there should not be a transportation request deadline because unforeseen events may require transfer to a nonpublic school. Petitioner further contends that her decision to enroll her children in a nonpublic school was delayed by the district's failure to make a timely referral of her son to respondent's committee on special education ("CSE"). Respondent asserts that petitioner failed to submit a transportation request before the statutory deadline and that it would incur additional cost if it granted petitioner's request. Respondent further asserts that the appeal is untimely because a reconsideration request does not extend the time within which an appeal must be commenced and that petitioner has failed to demonstrate a right to the relief requested.

As a threshold matter, petitioner"s reply contains allegations not set forth in the petition. Further, petitioner made an August 30, 2002 request that I accept additional exhibits containing allegations that were not included in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth 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 in the petition (Appeal of Huber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. 459, Decision No. 14,527; Appeal of Taylor, 39 id. 712, Decision No. 14,357). Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. I have not considered petitioner's submission of August 30, 2002 for the same reason.

An appeal to the Commissioner 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). Although respondent is correct that a reconsideration request does not extend the time within which an appeal must be commenced, it appears that respondent made its final determination on January 10, 2002 when it reviewed petitioner's appeal and voted to uphold its transportation supervisor's decision. The record contains a copy of the certified mailing envelope indicating that petitioner received first notice of the superintendent's letter on January 16, 2002. Therefore, I will not dismiss this appeal which was commenced February 15, 2002 on timeliness grounds.

However, the appeal is moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Schrader, 42 Ed Dept Rep ___, Decision No. 14,771; Appeal of E.F., 42 id. ___, Decision No. 14,762). Since the 2001-02 school year has already ended, petitioner's transportation request is moot.

Even if the appeal were not moot, 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 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 Davila, 41 Ed Dept Rep ___, Decision No. 14,732; Appeal of R.O., 40 id. 137, Decision No. 14,441; Appeal of Gabay, 39 id. 492, Decision No. 14,290). 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 Davila, supra; Appeal of R.O., supra; Appeal of Gabay, supra).

In her initial transportation application, petitioner stated that she was submitting a late request because her children needed to change schools for religious reasons. Petitioner contends in this appeal that her request for transportation was delayed because the district failed to convene a CSE for her son. Assuming, arguendo, that petitioner could not make a decision concerning her son's educational placement until after the CSE met, the petition still does not explain why the transportation request was not made within 30 days of the CSE's May 16, 2001 meeting. Moreover, 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 Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,655; Appeal of Gabay, supra; Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082).

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 cost to the district (Appeal of R.O., supra; Appeal of Tarricone, 38 Ed Dept Rep 623, Decision No. 14,105). Here, the affidavit of respondent's transportation supervisor indicates that the district did not transport any other students to the nonpublic school in question, and that an additional bus for that purpose would have cost approximately $34,000. Consequently, I conclude that respondent has not abused its discretion in denying petitioner's late transportation request.

In light of this disposition, I need not address the parties remaining contentions.