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Decision No. 17,818

Appeal of H.G.H., on behalf of her daughter C.H., from action of the Board of Education of the Sewanhaka Central High School District regarding transportation.

Decision No. 17,818

(February 24, 2020)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

Tahoe., Interim Commissioner.--Petitioner appeals a decision of the Board of Education of the Sewanhaka Central High School District (“respondent”) denying her daughter transportation to a nonpublic school.  The appeal must be dismissed.

Petitioner’s daughter attends St. Thomas the Apostle School (“St. Thomas”), a nonpublic school located within respondent’s district.  On September 6, 2019, respondent received a late application from petitioner on behalf of her daughter for bus transportation to St. Thomas.  Petitioner’s request was denied in a letter from the district’s transportation supervisor dated September 10, 2019.  By email dated September 18, 2019, petitioner appealed the denial to respondent.  By letter dated September 25, 2019, respondent upheld the transportation supervisor’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 4, 2019.

Petitioner acknowledges that her transportation request was submitted after the April 1 deadline but contends that she has a reasonable explanation for her delay; namely, a death in her family.  Petitioner also asserts that the student received transportation to and from St. Thomas during the 2018-2019 school year but did not receive a “renewal form” from respondent in the mail.  Petitioner requests that I overturn respondent’s decision to deny C.H. transportation and order that she be provided bus transportation for the 2019-2020 school year.

Respondent contends that its determination was reasonable, and that petitioner has failed to provide a reasonable excuse as to why she did not file her application prior to the April 1 deadline.  Respondent further alleges that providing transportation to petitioner’s daughter would result in additional expenditures which the district is not obligated to provide.

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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

As indicated above, petitioner admits that she submitted her application for transportation after the April 1 deadline.  Petitioner alleges, however, that she submitted the application late because a twelve-year old cousin, to whom petitioner and the student were close, passed away in March 2019.  Petitioner’s deadline to submit her application for transportation was April 1, 2019.  However, petitioner’s request was submitted over five months past the April 1 deadline, on September 6, 2019, after the school year had already begun.  While I am sympathetic to petitioner’s family situation, emotional hardship associated with grieving is not a basis for excusing the responsibility to make a timely transportation request (Appeal of J.L.I., 57 Ed Dept Rep, Decision No. 17,163; Appeal of S.W. and D.W., 49 id. 67, Decision No. 15,960; see also Appeal of Parks, 31 id. 249, Decision No. 12,633).  It was ultimately petitioner’s responsibility to submit a timely request for transportation to respondent (see Appeal of Vigliotta, 40 Ed Dept Rep 344, Decision No. 14,493).

Petitioner further argues that her delay should be excused because her daughter received transportation to and from St. Thomas during the prior school year and did not receive a “renewal application” in the mail.  However, as the Commissioner has held, there is no legal requirement for a board of education to remind parents of children already receiving transportation of the filing requirements set forth in Education Law §3635(2) (Appeal of Beer, 33 Ed Dept Rep 620, Decision No. 13,168; Appeal of Higler, 27 Ed Dept Rep 153, Decision No. 11,903; Matter of Browne, 17 id. 406, Decision No. 9,671).  In any event, while not legally required to do so, I note that respondent took numerous steps to inform district residents of the April 1 deadline.  Respondent’s supervisor of transportation and purchasing explains in an affidavit that, beginning in January of a given year, the district: (1) “mails a Transportation Application to the families of all students currently being transported”; (2) sends such packets “to St. Thomas ... for distribution to their families”; and (3) publishes information concerning the April 1 deadline, together with a downloadable form to request transportation, on the district’s website.  Additionally, the district arranged for publication of a “District Transportation 2019 News Release” on its website and in four local newspapers that notified parents of the April 1 deadline.  Finally, respondent notes that St. Thomas, in a February 25, 2019 newsletter, reminded parents to submit transportation applications by April 1, 2019.

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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Meyerson, 46 id. 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Respondent’s transportation supervisor states that in order to provide transportation to petitioner’s daughter, the district would be required to bid for a bus and would incur a cost of approximately $30,000 for the 2019-2020 school year.  Petitioner did not submit a reply or otherwise respond to this contention.  Therefore, I find that petitioner’s requested transportation would impose additional costs upon the school district and, consequently, that respondent did not act arbitrarily by denying such request.

For all of the above reasons, I conclude that respondent did not abuse its discretion in denying petitioner’s late transportation request.