Decision No. 12,590

(September 30, 1991)

Coral Ortenberg Mayer Zeck & Prier, P.C., attorneys for respondent, Reuben Ortenberg, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals from respondent's rejection of her request for transportation of her daughter to a nonpublic school. The appeal must be dismissed.

It appears that petitioner moved to respondent's school district either in mid-August or the first weekend in September, 1990. Petitioner's daughter attended respondent's elementary school until early October, 1990 when petitioner decided to enroll her daughter in a private school. Petitioner filed a request for transportation on October 11, 1990. While there is a dispute as to the date of her actual residence in the district, petitioner admits that she failed to file her request for transportation within 30 days of establishing residency in the district as required by Education Law '3635(2).

On October 17, 1990, respondent's superintendent wrote to the petitioner and indicated that her request for transportation was late, but that the board of education, pursuant to Education Law '3635(2) could approve a late request if a reasonable explanation for the late request is provided. On October 20, 1990, petitioner wrote to respondent and explained that her daughter was having difficulty adjusting to respondent's elementary school. She indicated that she chose to enroll her in a private school, a setting that more closely reflected the one she had prior to her move to respondent's school district. Petitioner appeared at respondent's board meetings on November 13, 1990 and November 27, 1990 to participate in discussions pertaining to the "reasonableness" of her delay. Petitioner's request for transportation was denied on November 27, 1990.

The power to decide the reasonableness of the late request rests with the board of education, and in the absence of a showing that it abused its discretion, its decision will not be disturbed (Appeal of McCormack, 27 Ed Dept Rep 152). I have previously held that boards of education may reasonably conclude that a belated decision by a parent to enroll a student in a nonpublic school does not constitute a reasonable explanation for the failure to submit a timely transportation request (Appeal of McCormack, supra; Matter of Mayr, 22 Ed Dept Rep 477; and Matter of Ciemielewski, 19 id. 70). Petitioner contends that her delay in requesting the transportation was reasonable because she did not know that her daughter would have difficulty adjusting to the respondent's schools. Matter of Porkorny, 21 Ed Dept Rep 181, 183 is directly on point. There, in determining that a board's decision to deny a late transportation request was not an abuse of discretion, it was stated that, "[i]n virtually every instance in which an enrollment is changed after April 1, it can be argued that the change has been made in the best educational interests of the pupil" (Id.; and seealsoAppeal of Bartumioli, 26 Ed Dept Rep 144). I do not find that respondent abused its discretion in refusing to accept petitioner's explanation for the delayed transportation request as reasonable.

Even if there is no reasonable explanation for the delay, it nonetheless would be an abuse of discretion for a board of education to deny a transportation request if the requested transportation could be provided to all similarly situated students under existing transportation arrangements at no additional expense to the school district (Appeal McCormack, supra; Appeal of Brown, 29 Ed Dept Rep 274; Appeal of Stein, 25 id. 181; Appeal of Rugar, 28 id. 159; Matter of Kurts, 14 id. 301; and Matter of Kroll, 12 id. 167). Petitioner does not rebut respondent's contention that the transportation could not be provided without additional cost to the district. Accordingly, the appeal is dismissed.

THE APPEAL IS DISMISSED.

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