Appeal of MATTHEW JORDAN, on behalf of his child, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 18,467

(August 13, 2024)

Frazer & Feldman, LLP, attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) denying his request for transportation for his child (the “student”) to a nonpublic school for the 2023-2024 school year.  The appeal must be dismissed.

Petitioner resides in respondent’s district and his child attends a nonpublic school.  In January 2023, respondent provided instructions regarding transportation requests for the upcoming school year.  The instructions strongly encouraged the submission of such requests by email and stated that individuals would receive a confirmation of receipt via email once an application was approved.  Petitioner indicates that he emailed a transportation request to respondent in February 2023.  When no bus arrived to transport the student at the beginning of the school year, petitioner emailed another request to respondent on September 6, 2023, which was denied because it was submitted after the April 1 deadline (Education Law § 3635 [2]).  Petitioner appealed to respondent, which denied his appeal on November 15, 2023.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 20, 2023. 

Petitioner contends that the student is entitled to transportation because, in accordance with respondent’s instructions, he emailed a request to respondent prior to the April 1 deadline.  Petitioner argues that any error in the transmission of this transportation request should be attributable to respondent.

Respondent argues that its decision was appropriate because it did not receive the email petitioner purports to have sent on February 13, 2023.  Having only received this request on September 6, 2023, respondent argues that it reasonably denied petitioner’s request as untimely.

Pursuant to Education Law § 3635 (2), a parent or guardian must submit a written request for transportation no later than the first day of April preceding the school year for which transportation is sought or, if the parent or guardian did not reside in the district as of April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable 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 request for transportation as late 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 or guardian 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).  On appeal, the Commissioner will not set aside the board’s determination 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 establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

As proof of transmission, petitioner submits a screenshot of the sent email folder from his personal email, which depicts an email requesting transportation dated February 13, 2023.  Petitioner utilized the same procedure to request transportation last year, which respondent received and granted.  In response, respondent’s director of technology explains that he conducted a search of all district emails to or from petitioner’s email address.  While the search retrieved the previous year’s transportation request and the September 2023 request, it did not retrieve the email petitioner sent, or attempted to send, in February 2023.  The director of technology also examined all the emails received by the transportation office on February 13, 2023 but did not locate any emails from petitioner.

While petitioner’s email created a presumption that he emailed the transportation request prior to the April 1 deadline (Appeal of Calabrese, 43 Ed Dept Rep, Decision No. 14,933, mod by Reopening of Appeal of Calabrese, 43 id. 237, Decision No. 14,982; compare Matter of Kahane, 9 id. 68, Decision No. 8,062), respondent rebutted this presumption with proof of nonreceipt (Appeal of Azhagiriswamy, 61 Ed Dept Rep, Decision No. 18,070, petition dismissed Guilderland Cent. Sch. Dist. v New York State Educ. Dept., Sup Ct, Albany County, Mar. 3, 2023, Kushner, J., index No. 903799-22).[1]  Petitioner did not submit any evidence in response, such as a confirmation email concerning the February 13, 2023 request.  Thus, the record supports a finding that respondent only received the September 2023 request, which it reasonably denied for lack of a reasonable explanation and additional cost (see Appeal of Wilson, 62 Ed Dept Rep, Decision No. 18,254).  Accordingly, petitioner has failed to meet his burden of proof and the appeal must be dismissed (Appeal of Giorno-Tocco, 55 Ed Dept Rep, Decision No. 16,877; Matter of Kahane, 9 id. 68, Decision No. 8,062).

THE APPEAL IS DISMISSED.

END OF FILE