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Decision No. 14,884

Appeal of J.D., on behalf of J.D. and D.D., from action of the Board of Education of the Malverne Union Free School District regarding transportation. 

Decision No. 14,884 

(June 3, 2003)  

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Malverne Union Free School District ("respondent") to transport her son and daughter to a nonpublic school for the 2002-2003 school year.   The appeal must be dismissed.

In June 2002, petitioner"s son was suspended through January 2003.   Consequently, petitioner decided to enroll her son and daughter in a nonpublic high school for the 2002-2003 school year.  On July 2, 2002, she asked the district to transport her children to the nonpublic school.  By letter dated July 2, 2002 respondent"s Supervisor for Facilities and Support Services denied the request on the ground that it was submitted after the April 1, 2002 deadline.  Petitioner appealed to respondent.  By letter dated July 11, 2002 respondent also denied petitioner"s request.  This appeal ensued.  Petitioner"s request for interim relief was denied on August 21, 2002. 

Petitioner contends that her son"s suspension prompted her to seek a nonpublic school for her children.  She maintains that, because she decided to enroll her children in private school after the April 1, 2002 deadline, she had a reasonable explanation for the late transportation request.  Petitioner also alleges that respondent denied the transportation request to further punish her son.

Respondent claims that its decision was not arbitrary or capricious.  It asserts that a belated decision to enroll a student in a nonpublic school is not a reasonable excuse for a late transportation request.  Additionally, respondent argues that the district would incur additional costs were the transportation request to be granted, as the district pays for transportation to the nonpublic school on a per pupil basis.

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.  This deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Joanne M., 40 Ed Dept Rep 686, Decision No. 14,584; Appeal of Attubato, 38 id. 511, Decision No. 14,082; 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 Joanne M, supra; Appeal of Attubato, supra; Appeal of Mogilski, supra).  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 did not apply for transportation prior to April 1, 2002 because she had no intention of changing her children"s school until after that date.  However, it has long been recognized 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 consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (Appeal of Joanne M., supra; Appeal of Matero, supra; Appeal of Young, 34 Ed Dept Rep 350, Decision No. 13,337).  Respondent"s contention that it pays for transportation to nonpublic schools on a per pupil basis has not been refuted by petitioner.

After reviewing the record in this appeal, I conclude that respondent has not abused its discretion in denying petitioner's late transportation request.