Appeal of MALLIGA and BRIAN DELANEY, on behalf of their daughter MELISSA, from action of the Board of Education of the Sewanhaka Central High School District regarding transportation.

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

Decision No. 15,498

(December 8, 2006)

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) to deny their daughter, Melissa, transportation to a nonpublic school for the 2006-2007 school year.  The appeal must be dismissed.

By letter dated May 8, 2006, petitioners requested transportation for Melissa to St. Thomas the Apostle (“St. Thomas”), a parochial school, for the 2006-2007 school year.  On May 11, 2006, respondent’s supervisor of transportation advised petitioners that their request was denied on the grounds that it was untimely because it was not submitted before the April 1 deadline for transportation requests.  The supervisor of transportation further explained that the district would incur an additional expense if the request were granted.  This appeal ensued. 

Petitioners contend that Melissa is entitled to transportation to the nonpublic school because they have a reasonable excuse for missing the April 1 deadline.  In addition, petitioners allege that respondent is currently sending a school bus to the nonpublic school in question with empty seats.

Respondent contends that the appeal is untimely and that the determination to deny petitioners’ request for transportation was not arbitrary or capricious.  Respondent further alleges that it would incur additional costs to transport petitioners’ daughter to the nonpublic school. 

I will first address the timeliness issue.  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 any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Here, respondent’s final determination was made on May 11, 2006.  The record indicates that petitioners did not commence their appeal until July 28, 2006, more than two and one-half months after the date of respondent’s May decision.  As an explanation for the delay, petitioners allege that they were not aware of the appeals process.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  Accordingly, I find that the appeal must be dismissed as untimely. 

Even if the appeal were timely, I would be constrained to dismiss it on the merits.  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 or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373; Decision No. 14,884; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Davila, 41 id. 419, Decision No. 14,732).  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 (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744.)

Petitioners assert that they were unaware of the deadline.  A board of education need not accept ignorance of the April 1 deadline as a reasonable excuse for failure to file a timely transportation request (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744).  Accordingly, petitioners’ ignorance of the filing requirement does not excuse their failure to file a timely request.  Moreover, the record demonstrates that respondent undertook specific actions to notify the public of the deadline for transportation requests, such as publishing a notice in the local papers and posting it on their website. 

     However, 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 costs to the district (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  While petitioners allege that there are empty seats on the bus to St. Thomas, respondent alleges that it contracts for private school transportation on a per pupil basis and would incur an additional expense of $1,800 for the 2006-2007 school year.  Petitioners have failed to refute respondent’s contention.  Under these circumstances, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request (seeAppeal of Vasilakos, 46 Ed Dept Rep ___, Decision No. 15,463; Appeal of S.M., 44 id. 391, Decision No. 15,208; Appeal of Joanne M., 40 id. 686, Decision No. 14,584).

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

THE APPEAL IS DISMISSED.

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