Decision No. 12,890

(February 25, 1993)

SOBOL, Commissioner.--Petitioner appeals from the determination of respondent board of education denying his request that respondent transport his son between their home and a nonpublic school during the 1992-1993 school year. The appeal must be sustained.

On March 10, 1992, petitioner's son was admitted as a boarding student to a private school in Windsor, Connecticut. In late April 1992, the school informed petitioner that unless the expected attrition of students occurred, it might be unable to provide board for his son because the school was overenrolled for boarding admissions. In August 1992, the school advised petitioner that it was unable to admit his son as a boarder because of the overenrollment. Petitioner then enrolled his son in another private school, The Portledge School, located in Locust Valley, New York.

Petitioner contacted respondent's transportation office and requested that respondent provide transportation for his son. Respondent declined, pursuant to Education Law '3635(2), on the ground that petitioner had provided a late request for such transportation. Petitioner then commenced this appeal. On November 6, 1992, I denied petitioner's request that I issue a stay.

Petitioner contends that he is entitled to transportation for his son to the private school because he has a valid reason for not applying by the April 1 deadline set forth in Education Law '3635(2) and, furthermore, that he is entitled to such transportation because respondent can provide such transportation at no additional cost. Petitioner also alleges that, in the past, his children were transported to a day school in a cooperative arrangement between respondent and another school district, and that respondent has not been responsive to a request for similar help in the present situation.

Respondent contends that it properly denied petitioner's request for transportation and further alleges that it would incur additional expense to transport petitioner's son to the private school. Respondent also contends that the appeal is untimely.

With regard to the timeliness issue, Commissioner's regulation '275.16 provides that an appeal must be instituted within thirty days from the making of the decision or the performance of the act complained of, but that the Commissioner may excuse the late filing of a petition for good cause. Respondent denied petitioner's request for transportation on September 4, 1992. On September 4, 1992, petitioner sent by "fax" a letter requesting my review of respondent's determination pursuant to Education Law '310. By letter dated September 15, 1992, petitioner was provided with instructions for bringing an appeal. Petitioner served a petition on September 30, 1992, but my Office of Counsel returned the petition to petitioner on October 7, 1992 for failure to provide proof of service. Petitioner then served a new petition on respondent on October 13, 1992. I will excuse petitioner's late filing in view of his expeditious actions to correct the defective service.

Education Law '3635(2) provides that a request 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, provided that a late request for transportation may not be rejected if the parent offers a reasonable explanation for the delay. Initial discretion to determine the reasonableness of a particular explanation for a delay is vested in the board of education, and such determination will not be set aside unless it constitutes an abuse of discretion (Appeal of McCarty, et al., 31 Ed Dept Rep 267).

Petitioner contends that he was unable to meet the April 1st deadline because of circumstances beyond his control, as demonstrated by the fact that petitioner was not notified by the Connecticut school until early August that his son could not be admitted as a boarding student. Respondent contends that peititioner's explanation merely amounts to a belated decision by petitioner to enroll his son in a particular nonpublic school.

It has repeatedly been held that a belated decision by a parent to enroll a student in a nonpublic school does not constitute a reasonable excuse for the failure to submit a timely transportation request (e.g. Appeal of McCarty, 31 Ed Dept Rep 267; Appeal of McCormack, 27 id. 152; Appeal of Bartumioli, 26 id. 144; Matter of Mayr, 22 id. 477). However, I find petitioner's situation to be distinguishable because the delay is not attributable to a belated parental decision to enroll the student in a nonpublic school, but rather to actions of the Connecticut school, which were beyond petitioner's control.

Petitioner actually made a timely decision to enroll his son in the Connecticut boarding school and had received an acceptance letter from the school in March 1992. The March 10, 1992 letter from the school indicates that the student was "admitted as a freshman boarding student" and contains no conditions on admission other than that the student complete the current school year in good standing. While petitioner was subsequently notified by the school that it might be unable to provide board for his son because of overenrollment, such notification occurred in late April, after the statutory deadline had passed, and merely indicated the possibility that the school might not have space for another boarding student unless the expected attrition of students occurred.

It was not until August 1992, that the school definitively notified petitioner that it was unable to admit his son as a boarder because of overenrollment. Petitioner then promptly enrolled his son in The Portledge School and requested transportation from respondent. Upon the record before me, I find that petitioner has offered a reasonable explanation for his late request for transportation, since the factors dictating a transfer of schools arose after the statutory deadline, and were otherwise the result of circumstances beyond petitioner's control (Matter of Bd. of Ed., Hauppauge UFSD v. Ambach, 93 AD2d 210; Appeal of Edelstein, 30 Ed Dept Rep 319; Appeal of Cornerstone Christian School, et al., 30 id. 452). Consequently, petitioner's son is entitled to transportation by respondent to The Portledge School.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide petitioner's son with transportation to and from The Portledge School for the remainder of the 1992-93 school year.

END OF FILE

---