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Decision No. 15,826

Appeal of LISA LEVENS-FREEMAN, on behalf of her son JAVIER, from action of the Board of Education of the Chittenango Central School District regarding transportation.

Decision No. 15,826

(August 22, 2008)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Chittenango Central School District (“respondent”) denying transportation to her son, Javier, for the 2008-2009 school year.  The appeal must be dismissed.

During the 2007-2008 school year, Javier attended second grade in respondent’s school district.  By letter dated April 25, 2008, the Syracuse Hebrew Day School (“SHDS”) notified petitioner that it had awarded Javier a full scholarship to attend its school during the 2008-2009 school year.  On April 28, 2008, petitioner called respondent’s transportation office and requested transportation for the upcoming school year.  A school district representative told petitioner that the request could not be approved.  By letter dated April 28, 2008, petitioner applied for transportation explaining that her request was untimely because Javier had just been awarded a scholarship; she also pointed out that the district bus travels past SHDS to provide transportation to other nonpublic schools. Respondent’s supervisor of transportation denied the request because petitioner had not met the April 1 deadline and because the district does not transport to that school.  Petitioner appealed to the superintendent, the facilities/transportation committee and respondent, all of whom denied her request.  This appeal ensued.

Petitioner argues that the excuse for her late transportation request is reasonable, that her family cannot afford to transport Javier to SHDS, that the district currently transports students to three nonpublic schools which are within one mile of SHDS, that the superintendent admitted that the district could not calculate the additional cost of transporting Javier and that it is in the best educational interest of Javier to start SHDS this year.  Petitioner requests that respondent approve her request to have Javier transported to SHDS for the 2008-2009 school year.

Respondent argues that its decision was rational and reasonable, that petitioner’s request for transportation was untimely without a reasonable excuse, and that it would incur approximately $4,000 in additional transportation costs should petitioner’s request be granted.

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.)

Petitioner argues that she did not submit a timely request because she did not receive notification that Javier would be receiving financial aid until after the April 1 deadline.  However, 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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884; Appeal of Davila, 41 id. 419, Decision No. 14,732).  Similarly, a belated notice of admission to a nonpublic school does not constitute a reasonable explanation for delay (Appeal of Gabay, 39 Ed Dept Rep 492, Decision No. 14,290).

Petitioner relies on Appeal of Lamba (32 Ed Dept Rep 473, Decision No. 12,890).  In that case, a student who had been admitted as a boarding student to a Connecticut school in March was notified in August that the school would be unable to admit him as a boarding student due to overenrollment.  The Commissioner distinguished these facts from a belated parental decision to enroll a student in a nonpublic school because the actions of the Connecticut school were beyond the parents’ control.

In this case, petitioner argues that since she was not notified of the scholarship determination until after April 1, her late application was similarly due to circumstances beyond her control.  However, while the school’s financial aid decision played a part in petitioner’s final decision to send her son to SHDS, it was ultimately a parental decision, which could have been made prior to April 1, or for which she could have requested transportation while she was making her final decision.  A different result here would require districts to provide transportation for every nonpublic school student where financial aid decisions are made after April 1.  It is interesting to note that according to SHDS’s letter to petitioner, its applications for financial aid are not due until April 15, so that income tax information is available.  Therefore, I do not find petitioner has provided a reasonable excuse for the purposes of approving an untimely transportation request.  None of the other cases cited by petitioner compel a different conclusion.

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).

Petitioner provides an article from the Chittenango-Bridgeport Times in which respondent’s superintendent allegedly admits that the district could not calculate the additional cost (if any) of transporting Javier to SHDS.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Application of Coleman, 45 Ed Dept Rep 282, Decision No. 15,324; Application of Gabryel, 44 id. 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050).  Therefore, I have not considered the newspaper article.

Respondent, however, provides an affidavit from its transportation supervisor who estimates that based on mileage and driver costs, an additional expense of approximately $3,998 would be incurred if petitioner’s request were approved.

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Smith, 44 Ed Dept Rep 201, Decision No. 15,148; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Bissar, 43 id. 74, Decision No. 14,923).  Based on the record herein, I do not find respondent’s denial of petitioner’s transportation request to be arbitrary, capricious, unreasonable or an abuse of discretion.