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Decision No. 15,117


Appeal of FELICIA M. RITTERS, on behalf of her daughter ALYSE, from action of the Board of Education of the Hyde Park Central School District and Superintendent David Burpee regarding transportation.


Decision No. 15,117


(September 22, 2004)


Donoghue, Thomas, Auslander & Drohan, attorneys for respondents, Daniel Petigrow, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hyde Park Central School District (�respondent board�) and its Superintendent, David Burpee, (collectively referred to as �respondents�) to deny her daughter, Alyse, door-to-door transportation from their residence to a nonpublic school.  The appeal must be dismissed.

On October 6, 2003, petitioner enrolled Alyse in a nonpublic school and submitted a transportation request to respondent board�s Transportation Department.  Alyse  previously attended the district�s Haviland Middle School and was transported from her residence to that school.  Petitioner�s October 6 transportation request asked that Alyse be transported to and from their residence and also to and from a daycare provider on an �as needed� basis.  The transportation director offered to transport Alyse to and from the daycare provider, which is located on an existing route.  Petitioner refused this arrangement, and respondent board arranged for Alyse to be picked up at a point approximately one mile from petitioner�s residence.  This appeal ensued.  Petitioner�s request for interim relief was denied on December 11, 2003.

Petitioner contends that respondent board should transport Alyse door-to-door from her residence to the nonpublic school she attends.  Petitioner asserts that respondent board previously sent a separate bus to transport Alyse to the district�s middle school and that extending the existing nonpublic bus route to her residence would be less costly than the prior arrangement.  Petitioner contends that another nonpublic student in similar circumstances is receiving transportation and that the district�s administrators are discriminating against her and her daughter in retaliation for past complaints. 

Respondents argue that the petition should be dismissed as against the superintendent because he was not personally served with the petition.  Respondents assert that it was neither arbitrary nor capricious to deny petitioner�s request for door-to-door transportation.  Respondents also contend that the transportation supervisor offered to transport Alyse to and from the daycare provider named in petitioner�s transportation request, but that petitioner refused to accept that arrangement.

Initially, I will address the procedural issue of service.  Section 275.8(a) of the Commissioner�s regulations requires that the petition be personally served upon each named respondent. Petitioner�s affidavit of service does not indicate that she personally served the superintendent, nor has she submitted any response to this defense.  Accordingly, the appeal must be dismissed as against the superintendent for lack of service (Appeal of Lopez, 44 Ed Dept Rep ___, Decision No. 15,076; Appeal of Grant, 42 id. 184, Decision No. 14,816).

Pursuant to Education Law �3635(2), a request 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 Calabrese, 43 Ed Dept Rep __, Decision No. 14,982; Appeal of Sarant, 41 id. 70, Decision No. 14,617).  However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law �3635[2]). 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 J.D., 42 Ed Dept Rep 373, Decision No. 14,884; Appeal of Tarricone, 38 id. 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056).  The board�s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of J.D., supra; Appeal of Tarricone, supra).  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 J.D., supra; Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Matero, 36 id. 242, Decision No. 13,713). 

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 Aguanno, 41 Ed Dept Rep 326, Decision No. 14,700; Appeal of R.O., 40 id. 137, Decision No. 14,441; Appeal of Mogilski, 37 id. 446, Decision No. 13,901).  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 J.D., supra; Appeal of Joanne M., 40 Ed Dept Rep 686, Decision No. 14,584; Appeal of Matero, supra.

The parties agree that to accommodate petitioner�s request, the district would have to extend an existing bus route four miles.  According to respondent board, this extension would cost an additional $1096.87 in transportation-related labor and maintenance and would result in additional staff supervision costs.  Petitioner has not submitted any evidence to refute respondent board�s cost estimates.

After reviewing the record in this appeal, I conclude that respondent board did not abuse its discretion in denying petitioner�s late request for door-to-door transportation.

     As for petitioner�s remaining contentions, petitioner did not submit any evidence to support her conclusory allegations of disparate treatment or discrimination.  In an appeal to the Commissioner pursuant to Education Law �310, a petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Nelson, 44 Ed Dept Rep __, Decision No. 15,082; Appeal of Green, 40 id. 278, Decision No. 14,479; Appeal of a Student with a Disability, 40 id. 121, Decision No. 14,436).  Petitioner has failed to meet her burden of proof and those claims must be dismissed.


                THE APPEAL IS DISMISSED.