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Decision No. 14,864

Appeal of LORETTA CUSUMANO, on behalf of her son JOHN, from action of the Board of Education of the Wantagh Union Free School District regarding transportation.



(April 25, 2003)


Levy & Stopol, LLP, attorneys for petitioner, Dianne M. Camelo, Esq., of counsel 

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel 

MILLS, Commissioner--Petitioner appeals the denial by the Board of Education of the Wantagh Union Free School District ("respondent") of her request that the district transport her son to the nonpublic school he attends for the 2002-2003 school year.  The appeal must be dismissed.

On April 5, 2002, petitioner mailed a transportation application to respondent for her son for the 2002-2003 school year.  By letter dated April 12, 2002, respondent"s assistant superintendent for business notified petitioner that respondent denied her request because it was submitted after the April 1 deadline established in Education Law "3635(2), with no compelling reason for the delay, and because it would result in additional costs to the district.  Petitioner wrote to the assistant superintendent on April 17, 2002, stating that the delay was caused by miscommunication with her husband, from whom she had separated.  Evidently, respondent did not change its determination.  This appeal ensued.

Petitioner contends that she submitted the application late because respondent"s schools were closed from April 1 through April 5, 2002 and that her application was received on April 8, 2002, the first business day the schools were again open.  Petitioner argues that this constitutes a reasonable explanation for her late application pursuant to Education Law "3635(2) and that respondent"s decision to deny transportation to her son should be reversed.

Respondent contends that its business office was open during the week of April 1, 2002.  Respondent also points out that the school calendar petitioner submitted in an effort to establish that spring recess was held that week clearly states that transportation requests are due on April 1. Respondent asserts that its decision was reasonable and that granting petitioner"s late request would cost the district an additional $3,005.03.

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.  This deadline enables school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of a Student with a Disability and his Sister, 42 Ed Dept Rep __, Decision No.  14,821; Appeal of Davila, 41 id. __, Decision No. 14,732; Appeal of R.O., 40 id. 137, Decision No. 14,441). 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 a Student with a Disability and his Sister, supra; Appeal of R.O., 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 a Student with a Disability and his Sister, supra; Appeal of Davila, supra; Appeal of R.O., supra).

In this case, the record indicates that petitioner knew transportation requests were due on or before April 1, 2002.  Respondent previously denied one late request by petitioner and approved other timely requests. There is nothing in the district calendar to indicate that district offices were closed during spring recess or that delays in transportation requests would be excused.  Additionally, petitioner does not explain why she could not mail the request before spring recess began.  Furthermore, petitioner"s current explanation for the delay is not consistent with her letter dated April 17, 2002.  Thus, I find respondent"s refusal to excuse the delay in petitioner"s application to be justified.

                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 Gal, 42 Ed Dept Rep __, Decision No. 14,809; Appeal of R.O., supra).  Respondent states that transporting petitioner's son to the private school would cost the district an additional $3,005.03.  Under these circumstances, I find that respondent did not abuse its discretion by refusing petitioner's transportation request.