Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Lansingburgh Central School District regarding transportation.

Decision No. 17,676

(July 1, 2019)

Guercio & Guercio LLP, attorneys for respondent, Kathy A. Ahearn, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Lansingburgh Central School District (“respondent”) denying her daughter (“the student”) transportation for the 2018-2019 school year.  The appeal must be dismissed.

According to the record, petitioner resided within respondent’s district at all times relevant to this appeal.  During the 2017-2018 school year, petitioner made a timely request on behalf of the student for transportation to a nonpublic school (the “nonpublic school”).  Respondent granted this request and provided the requested transportation.

According to the record, on May 1, 2018, petitioner submitted a request for transportation to the nonpublic school for the 2018-2019 school year.  There is no indication in the record as to whether respondent granted or denied this request, which was clearly submitted after the April 1 deadline prescribed by Education Law §3635(2).

On August 30, 2018, petitioner submitted a request to transport the student to the Troy Preparatory Charter School (“Troy Prep”), asserting that the student was accepted into Troy Prep on August 28, 2018.  Respondent denied this request on the ground that it was untimely, that petitioner failed to provide a reasonable explanation for the delay, and that granting the late request would impose additional costs on the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 17, 2018.

Petitioner contends that respondent’s denial of her request for transportation was arbitrary and capricious.  Petitioner contends that the student has an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and that door-to-door transportation to and from Troy Prep is required by such accommodation plan.

Respondent contends that petitioner’s Section 504 claims are outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  Respondent further argues that its rejection of petitioner’s August 30, 2018 request for transportation to Troy Prep was rational because it was late, petitioner failed to provide a reasonable explanation for the delay and granting the request would impose additional costs upon the district.

Initially, to the extent petitioner alleges that the district failed to implement the student’s accommodation plan, the appeal must be dismissed for lack of jurisdiction.  Enforcement of Section 504 is within the exclusive jurisdiction of the federal courts, the United States Department of Justice and the United States Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).  Therefore, petitioner’s allegation that respondent failed to implement the student’s accommodation plan must be dismissed for lack of jurisdiction.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner challenges respondent’s denial of her request for transportation to a nonpublic school for the 2018-2019 school year.  The 2018-2019 school year has ended; therefore, the issue of transportation for that year is moot (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

Even if petitioner’s challenge to respondent’s denial of transportation was not subject to dismissal as moot, it would be dismissed on the merits.  A charter school is deemed to be a nonpublic school for purposes of transportation (Education Law §2853[4][b]). Thus, the nonpublic school transportation provisions of Education Law §3635, including the provisions governing transportation requests, apply to charter schools (Appeal of New Covenant Charter School, 41 Ed Dept Rep 358, Decision No. 14,713; Appeal of New Covenant Charter School, 39 id. 610, Decision No. 14,327).

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, the record reflects that petitioner did not submit a request for transportation to the nonpublic school prior to the April 1 deadline.  Although petitioner asserts that she “made a timely request for private school transportation for the 2018-2019 school year,” this contention is belied by the evidence in the record. Respondent has submitted a copy of petitioner’s written request for the nonpublic school which is signed by petitioner and dated May 1, 2018; i.e., one month after the April 1 deadline.  Petitioner has not submitted a reply or otherwise explained why she believed the May 1, 2018 request to be timely.

Moreover, even assuming, arguendo, that petitioner’s request for transportation to the nonpublic school was timely, this request was superseded by petitioner's August 30, 2018 request for transportation to and from Troy Prep.   The latter request was submitted more than four months after the April 1 deadline.  

Petitioner has failed to demonstrate a reasonable excuse for her late submission of the transportation request to and from Troy Prep.  In her August 30, 2018 request for transportation to and from Troy Prep, petitioner stated that the student “was accepted” into Troy Prep on August 28, 2018.  The Commissioner has repeatedly held that neither a belated decision to enroll a student in a nonpublic school nor a belated notice of admission to a nonpublic school is a reasonable explanation for the late submission of a transportation request (see e.g. Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,975; Appeal of Lippolt, 48 id. 457, Decision No. 15,914; Appeal of Flores, 47 id. 484, Decision No. 15,761; Appeal of Goyal, 40 id. 40, Decision No. 14,415).  Therefore, on this record I cannot find that petitioner has established a reasonable explanation for her late request.

The record also demonstrates that granting petitioner’s request would impose additional costs upon the district.  Respondent submits an affidavit from its director of budget and human resources (“director”) in which the director explains that respondent currently contracts for bus service to Troy Prep, but that the bus is at full capacity. Therefore, to accommodate petitioner’s daughter, respondent would have to contract for another bus.  The director indicates that this would cost respondent $329.81 per day – or, from January through June 2019, approximately $32,981.  Petitioner did not submit a reply or otherwise respond to the director’s contentions. Accordingly, the evidence in the record shows that granting petitioner’s request would impose additional costs upon the district.

Thus, petitioner has not met her burden of proving that respondent abused its discretion by denying her late transportation request and the appeal must be dismissed.[1]

THE APPEAL IS DISMISSED.

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