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Decision No. 15,621

Appeal of FARHAD HAIIMPOUR, on behalf of his sons JOSHUA and OREL, from action of the Board of Education of the Herricks Union Free School District regarding transportation.

Decision No. 15,621

(August 6, 2007)

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Herricks Union Free School District (“respondent”) denying his sons, Joshua and Orel, transportation to and from a nonpublic school.  The appeal must be dismissed.

By letter dated April 10, 2006, petitioner requested transportation for his sons to and from the Long Island Hebrew Academy, a nonpublic school in Great Neck, New York, for the 2006-2007 school year.  Petitioner acknowledged that his request was late, but indicated that due to family difficulties, specifically his wife’s serious illness, he was not able to attend to all of his family’s paperwork, including applying for transportation.

By letter dated May 8, 2006, respondent’s transportation director advised petitioner that his transportation request had been considered and denied by respondent.  The letter explained that petitioner’s excuse for his delay was not “legally sufficient” and that providing transportation for petitioner’s children would result in additional expense to the district.  By letter dated May 9, 2006, petitioner appealed to respondent, which denied his request.  By letter dated May 24, 2006, petitioner requested that his request be reconsidered; however, it does not appear from the record that the district responded.  This appeal ensued.

Petitioner requests a determination that his sons are entitled to transportation.  Respondent asserts that its decision to deny petitioner’s late transportation request was not unreasonable, arbitrary or capricious and that its actions were proper.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Respondent’s determination affected transportation for the 2006-2007 school year. Since that year has ended, the appeal is moot.

Even if petitioner’s appeal were not dismissed as moot, it would be dismissed 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.)

Here, petitioner admits that he did not submit a timely request for transportation.  The excuse that he provides is that his wife’s illness caused him to fall behind in the family’s paperwork.  While I am sympathetic to petitioner and his family, it was ultimately petitioner’s responsibility to submit a timely request for transportation to respondent (seee.g. Appeal of Vigliotta, 40 Ed Dept Rep 344, Decision No. 14,493).  His oversight in missing the transportation deadline, therefore, is not a basis for excusing his failure to make a timely transportation request (Appeal of Vigliotta, 40 Ed Dept Rep 344, Decision No. 14,493; Appeal of Terricone, 38 id. 623, Decision No. 14,105).  This is especially true in this case where petitioner became aware of his wife’s condition months before the deadline passed (seee.g. Appeal of Shevlin, 38 Ed Dept Rep 365, Decision No. 14,056; Appeal of Parks, 31 id. 249, Decision No. 12,633).  On the facts before me, therefore, I cannot find that respondent abused its discretion in denying petitioner’s late request.

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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Cusumano, 42 id. 309, Decision No. 14,864; Appeal of Gal, 42 id. 170, Decision No. 14,809).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (seeAppeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208;Appeal of J.D., 42 id. 373, Decision No. 14,884).

Respondent contends that it contracts for transportation to nonpublic schools on a “per-seat” basis, that petitioner’s sons are the only students attending the Long Island Hebrew Academy and that providing transportation for petitioner’s sons in the 2006-2007 school year would have resulted in an additional cost of over $1700.00 each month.  Petitioner has not refuted this contention.  Accordingly, based on the record before me, I cannot find that respondent abused its discretion in denying petitioner’s transportation request.