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Decision No. 17,939

Appeal of EVERGREEN CHARTER SCHOOL and GIL BERNADINO in his official capacity as President of the Board of Trustees of Evergreen Charter School, from action of the Board of Education of the Hempstead Union Free School District; David Gates, as President of the Board of Education; and Regina Armstrong, as Acting Superintendent, regarding transportation.

Decision No. 17,939

(November 18, 2020)

Harris Beach, PLLC, attorneys for petitioners, Jack M. Martins and Douglas E. Gerhardt, Esqs., of counsel

London Fischer LLP, attorneys for respondents, Thomas A. Leghorn and Sheryl T. Parker, Esqs., of counsel

ROSA., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Hempstead Union Free School District (“board” or “district,” as applicable), the board president, David Gates (“president”), and the district’s acting superintendent of schools, Regina Armstrong (“superintendent”) (collectively, “respondents”), denying petitioners’ transportation request for the 2019-2020 school year.  The appeal must be dismissed.

Petitioner Evergreen Charter School (“ECS” or “school”) is a charter school originally chartered by the Board of Regents (“Regents”) in January 2009.  ECS’s charter has since been renewed three times, most recently in March 2017.  On or about April 9, 2019, the Regents approved a revision to ECS’s charter, allowing for an enrollment increase from 600 to 750 students starting with the 2019-2020 school year.[1] 

According to petitioners, subsequent to the Regents’ approval of ECS’s enrollment increase, petitioners “realiz[ed] [that] the additional students could not be located at” ECS’s two current locations.  As a result, petitioners state that they engaged in a search for a new location for the school, ultimately agreeing to lease space in Franklin Square, New York.  ECS commenced the 2019-2020 school year by serving students in kindergarten through grade 3 at 605 Peninsula Boulevard, in Hempstead, New York (the “Hempstead location”), and students in grades 4 through 8 at 990 Holzheimer Street, in Franklin Square, New York (the “Franklin Square location”).

According to petitioners, by letter dated July 15, 2019, ECS notified respondents of the Franklin Square Location.[2]  Thereafter, by letter dated July 19, 2019, ECS requested that the district transport ECS students who were residents of the district and who would be attending school at the Franklin Square location.  By letter dated July 29, 2019, the superintendent acknowledged receipt of the transportation request but noted that ECS “has not provided any details to justify the extension of the April 1 transportation request deadline.”  Accordingly, the superintendent requested that ECS provide the district “with an explanation of the reason [ECS] was unable to comply with the April 1 deadline, including specific details with regard to the timing of any events and circumstances related to [the school’s] late request.” 

By letter dated July 30, 2019, ECS responded to the superintendent’s July 29, 2019 letter, indicating that ECS “was approved for an extension of additional classes by the New York State Education Department at the New York State Board of Regents Meeting on April 9, 2019 ... This is the reason [ECS] did not meet the April 1, 2019 deadline.”  The superintendent responded to ECS by letter dated August 2, 2019, stating that ECS’s response “did not ... provide any details with respect to the delay from April 9, 2019 until July 19, 2019 to notify the District that transportation may be required for the 2019-2020 school year.”  The superintendent again requested “specific details with regard to the timing of any relevant events and circumstances.”

By letter dated August 6, 2019, ECS responded and stated that “the main and very important reason that we were unable to inform you earlier is that we only recently reached an agreement [to lease the Franklin Square location].”  It stated that the delay in requesting transportation “was in no way due to any unmentioned reason other than the one indicated” in the August 6, 2019 letter.

In response to this letter, the superintendent sent ECS a letter dated August 14, 2019, which requested “the specific date or dates when the following took place”:

  • When ECS determined it would require additional space and/or an additional location;
  • Any and all efforts ECS undertook to identify additional space and/or an additional location;
  • When ECS determined that such additional space would be outside of the boundaries of the district;
  • When ECS reached out to the landlord of the Franklin Square location with regard to additional space and/or an additional location;
  • When ECS reached an agreement with the Franklin Square location’s landlord with regard to additional space and/or an additional location; and
  • When ECS notified the parents/guardians of its students of each of the above-referenced items.

The superintendent’s August 14, 2019 letter also requested that ECS “provide the District with any documents in support of the above-referenced items.”[3]

By letter dated September 1, 2019, ECS responded to the superintendent’s August 14, 2019 letter.  In its response, ECS reiterated that it did not receive the Regents’ approval for its expansion until after the April 1, 2019 deadline.  It then stated that, subsequent to the Regents’ approval, “ECS needed to secure new space,” which it was able to do “in principle in July 2019.”  ECS remarked that the lease for the Franklin Square location was not fully executed until August 2019.  ECS asserted that the details requested by the superintendent were previously “provided to you when requested,” and that it understood “such specific reasons are not mandated by law or by the Commissioner when a late transportation request is made.”  ECS acknowledged that its transportation request was late but asserted that it had provided a reasonable explanation for its delay.

By letter dated September 3, 2019, the superintendent denied ECS’s transportation request.  In the denial letter, the superintendent asserted that “ECS has not provided the information requested by letter dated August 14, 2019.”  The superintendent opined that, because a public hearing on the proposed expansion of ECS was held in February 2019, ECS knew or should have known that it would need transportation for any additional students at that time.  The superintendent further asserted that if “ECS’ private facilities were unable to accommodate the additional students, ECS should have advised the District and the public at the ... hearing that the additional students would not be housed at ECS’ private facilities and transportation to a different facility would be required.”  The superintendent further opined that ECS should have informed the district when it became aware of the fact that ECS would be placing students in the Franklin Square location, which was outside of the district.  This appeal ensued.

Petitioners argue that respondents’ denial of their transportation request was arbitrary and capricious because petitioners offered a reasonable explanation for the delay in its submission.  Petitioners further assert that, even if they did not offer a reasonable explanation for the untimely request, it should have been granted because respondents have not shown that they will incur additional expense as a result.  Petitioners also allege that respondents’ denial of the request was invalid, as it was issued by the superintendent instead of the board.  For relief, petitioners request that respondents immediately transport all district students enrolled in ECS for the 2019-2020 school year; that respondents remit payment to ECS for the costs associated with transporting students “for which Respondents were responsible during the 2019-20 school year but which they did not transport”; and that respondents adhere to their legal obligations.

Respondents argue that the appeal must be dismissed for lack of standing.  Respondents further assert that their actions were not arbitrary, capricious, or an abuse of discretion.  In this respect, respondents contend that they properly denied petitioners’ request as untimely, that petitioners’ explanation for the delay was not reasonable, and that the requested transportation would result in additional cost to the district.

The appeal must be dismissed, in part, 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).  As indicated above, petitioner requests that respondent provide transportation to “all students enrolled in ECS for the 2019-20 school year.”  The 2019-2020 school year has ended; therefore, ECS’s transportation request for that school year is moot.[4]

Additionally, to the extent that petitioners seek reimbursement for transportation costs, the Commissioner has no authority to award monetary damages, costs, or reimbursements in an appeal pursuant to Education Law §310 (Appeal of Daly, 58 Ed Dept Rep, Decision No. 17,454; Appeal of D.B., 57 id., Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  A claim for damages must be presented to a court of competent jurisdiction (see e.g. Appeal of Gersch Academy, Inc., 58 Ed Dept Rep, Decision No. 17,609; Appeal of a Student with a Disability, 33 id. 1, Decision No. 12,955).

While the appeal must be dismissed as moot and for lack of jurisdiction, I am compelled to comment on respondents’ contention that they may refuse to accept a reasonable explanation for a late transportation request if it would result in additional costs.  As the Commissioner has long held, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; see Appeal of a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837).[5]  While the Commissioner has also held that 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, this is a separate exception that is not dependent upon a finding of reasonableness (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).

In light of this disposition, I need not address the parties’ remaining contentions.




[1] Pursuant to §276.6 of the Commissioner’s regulations, I have taken administrative notice of records on file with the New York State Education Department regarding ECS.


[2] Petitioners reference this letter as Exhibit A to their petition, but the petition does not contain a copy of this letter.


[3] ECS also sent the district a letter dated August 15, 2019, which stated that ECS had “not received your answer to our letter of August 6, 2019 responding to your last request for more information....”  It appears that this letter was sent by ECS prior to its receipt of the superintendent’s letter dated August 14, 2019.


[4] Petitioners did not request interim relief in this matter.


[5] A charter school is deemed a nonpublic school for purposes of transportation requests (Education Law §2853[4][b]; Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,676; Appeal of New Covenant Charter School, 41 id. 358, Decision No. 14,713; Appeal of New Covenant Charter School, 39 id. 610, Decision No. 14,327).