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Decision No. 16,603


 Appeal of LORI JATA, on behalf of her daughter KASSI, from action of the Board of Education of the Hauppauge Union Free School District regarding transportation.

Decision No. 16,603

(March 24, 2014)

Harris Beach PLLC, attorneys for respondent, Warren H. Richmond, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Hauppauge Union Free School District (“respondent” or “board”) denying her daughter, Kassi, transportation to a non-public school during the 2013-2014 school year. The appeal must be dismissed.

On July 12, 2013, petitioner requested transportation to Our Lady of Mercy Academy (“Academy”), a non-public school, for her daughter for the 2013-2014 school year. The school is located within 15 miles of petitioner’s home. By letter dated July 23, 2013, respondent’s assistant superintendent for business and operations (“assistant superintendent”) notified petitioner that her request was denied because, although the distance between petitioner’s home and the non-public school was within the district’s 15 mile limit, the deadline for such requests was April 1, 2013. On July 27, 2013, petitioner appealed the decision to the board by letter in which she requested that respondent take into consideration that Kassi was offered a scholarship to attend the Academy contingent upon her acceptance to the school and that this offer occurred after the district’s April 1, 2013 deadline for non-public school transportation requests. On August 8, 2013, petitioner was notified by the assistant superintendent that the board denied petitioner’s appeal at its August 6, 2013 meeting. This appeal ensued. Petitioner’s request for interim relief was denied on September 18, 2013.

In support of her appeal, petitioner submits a letter from the Georgia Hiden Charitable Foundation dated June 27, 2013 extending the offer of financial support for Kassi during her sophomore, junior and senior years subject to her acceptance at the Academy. Petitioner also submits an affidavit from the principal of the Academy stating that on June 26, 2013, Kassi was offered an opportunity to attend the Academy contingent upon a review of her academic record


and that Kassi was formally accepted into the Academy on July 9, 2013. Together with her verified petition, petitioner also submits a letter dated August 14, 2013 which, among other things, explains that she told respondent that she “knew of other students in the district that had missed the deadline before and still received transportation,” but was advised that “this has never happened” and that it would be “difficult to justify busing for only two girls in the entire district.”

In her appeal, petitioner cites Education Law §3635(2) as clearly stating that “[n]o late request of a parent or guardian for transportation shall be denied where a reasonable explanation is provided for the delay” and contends that she “did not forget to send in a request” but that Kassi was “only admitted to [the Academy] in July” which is past the April 1 transportation request deadline. Petitioner further asserts that “[c]learly [petitioner] could not apply for transportation to a school that [her] daughter had not been admitted into yet.” Petitioner also states that, upon her daughter’s admission to the Academy, she “did not delay in submitting [her] request, but instead it was [her] first course of action.” Petitioner seeks a determination that Kassi is entitled to transportation to the Academy for the 2013-2014 school year.

Respondent contends that petitioner fails to set forth a claim upon which relief can be granted and that respondent’s decision to deny her transportation request was in all respects reasonable and in accordance with the law. In support of its answer, respondent submits an affidavit from the assistant superintendent citing respondent’s Policy #8413 which provides that:

[t]ransportation requests for students attending nonpublic schools should be received by the district no later than the April 1st preceding the beginning of the next school year.

Respondent’s policy further provides that “[a]ll late requests, however, shall be considered by the Board of Education on the basis of each case’s merits” and that:

[c]riteria used by the Board in judging whether to accept a late request may include but not be limited to the following: 1. whether transportation will require an additional cost, and, if so, 2. the reasonableness of the excuse for the late request.

The assistant superintendent’s affidavit states that in accordance with the policy, it was determined that no other student residing in the district was to be transported to the Academy for the 2013-2014 school year and, as such,


transporting Kassi would require an additional cost to the district. The assistant superintendent further avers that while petitioner’s asserted excuse for the late application was that Kassi had not been admitted to the Academy until July 9, 2013, the district does not require that a student be admitted to a non-public school prior to making an application and that the district has granted transportation requests in the past pending acceptance of a student to a non-public school.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881). 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 a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837). 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of a Student with a Disability, 48 id. 207, Decision No. 15,837). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Here, petitioner admits that her July 12, 2013 request for non-public school transportation was not timely submitted by the April 1, 2013 deadline, but argues that Kassi’s July 9, 2013 acceptance to the Academy constitutes a reasonable excuse for the delay. However, previous Commissioner’s decisions have found 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Flores, 47 id. 484, Decision No. 15,761). That principle applies equally where there is a belated notice of admission to the nonpublic school (Appeal of Gabay, 39 Ed Dept Rep 492, Decision No. 14,290; Appeal of McCarty and Howe, 31 id. 267, Decision No. 12,638).

Petitioner’s claim that her belated decision to enroll Kassi in the Academy was predicated upon the July 2013 scholarship offer is similarly unavailing. In a similar case, Appeal of Levens-Freeman (48 Ed Dept Rep 163, Decision No. 15,826), petitioner argued that since she was not notified of a scholarship determination until after April 1, her late application for transportation was due to circumstances beyond her control. There, the Commissioner concluded that, while the school’s financial aid decision played a part in petitioner’s final decision to send her son to a non-public school, 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 would require districts to provide transportation for every non-public school student where financial aid decisions are made after April 1. Accordingly, based on the record in the instant appeal, I cannot conclude that petitioner has provided a reasonable excuse for her untimely transportation 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 Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524). 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 (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881).

As noted above, respondent provides an affidavit from the assistant superintendent which states that no other student in the district was to be transported to the Academy during the 2013-2014 school year and, as such, transporting Kassi would require an additional cost to the district. Other than her statement in an unsworn letter that respondent informed her that it would be “difficult to justify busing for only two girls in the entire district,”


petitioner has submitted no evidence to refute this contention. On this record, therefore, petitioner has not met her burden of establishing that the transportation sought can be provided to her daughter without additional expense incurred by the district (see Appeal of Vasilakos, 46 Ed Dept Rep 129, Decision No. 15,463).

Based on the record herein, I do not find respondent’s denial of petitioner’s transportation request for the 2013-2014 school year to be arbitrary, capricious, unreasonable or an abuse of discretion.