Decision No. 14,327

(March 17, 2000)

MILLS, Commissioner.--Petitioner New Covenant Charter School challenges the refusal of the Board of Education of the City School District of the City of Albany ("respondent") to pay the costs incurred for the transportation of its students. The appeal must be sustained.

On December 18, 1998, the New York Charter Schools Act of 1998 (Article 56 of the Education Law) became effective. This Act authorized, for the first time, the creation of charter schools in New York State by public school districts, the New York State Board of Regents (Regents) and the Board of Trustees of the State University of New York (SUNY). In April 1999, SUNY and the Regents developed an application packet for prospective charter school applicants.

On or about May 14, 1999, petitioner submitted an application to SUNY to open a charter school in the City of Albany in the Fall of 1999. On or about June 15, 1999, SUNY approved petitioner's application. Thereafter, on July 13, 1999, SUNY approved the proposed charter agreement between the school and SUNY's Charter Schools Institute. Pursuant to Article 56, SUNY forwarded the proposed charter agreement and application to the Regents for final approval. On August 9, 1999, the Regents voted to return the proposed charter to SUNY for reconsideration. SUNY resubmitted the proposed charter to the Regents, without modification, on August 17, 1999. On September 17, 1999, thirty days later and by operation of law, a charter and certificate of incorporation issued pursuant to Education Law "2852(5-b).

In the Spring of 1999, respondent extended to June 1, 1999 the request deadline for transportation to nonpublic schools. By letter dated July 1, 1999, prior to its incorporation and issuance of a charter, a representative of petitioner requested that respondent further extend its deadline to July 16, 1999 for petitioner's students. By letter dated July 9, 1999, the district denied this request. On August 5, 1999, respondent's assistant superintendent for business advised petitioner's representative that the district would contract with petitioner to provide transportation for a fee based on projected enrollment figures.

On August 20, 1999, representatives of the State Education Department met with representatives of the district and petitioner to discuss unresolved issues concerning the opening of the charter school, including transportation. At that meeting, petitioner's representatives requested transportation on behalf of parents of students attending New Covenant. As a result of the meeting, the district agreed to transport petitioner's students, with the understanding that the provision of such transportation would not jeopardize its rights in an appeal to the Commissioner. Pursuant to the statutory scheme for financing charter schools, on or about August 23, 1999, petitioner sent the district an invoice of $1,266,713.33 for the July and September payments. On October 8, 1999, the district paid the August 23 invoice, but deducted $124,000.00 to cover transportation costs. This appeal ensued.

Petitioner contends that pursuant to Education Law "2856, respondent is obligated to pay to it funds for each student enrolled in the charter school who resides in the district, including transportation costs. Petitioner alleges that respondent has no legal right to deduct the transportation costs.

Respondent denies that the deduction was inappropriate. Respondent maintains that petitioner is a nonpublic school for transportation purposes and thus must comply with all requirements of Education Law "3635 pertaining to timely transportation requests. Respondent alleges that it did not receive any parental requests for transportation prior to the district's June 1 deadline. Respondent further contends that the requested transportation cannot be furnished without additional cost to the district.

Pursuant to Article 56, a charter school is deemed to be a nonpublic school for purposes of transportation (Education Law "2853[4][b]). Thus, the nonpublic transportation provisions of Education Law "3635, including the provisions governing transportation requests, apply to a charter school.

Education Law "3635(2) requires that a request for transportation to a nonpublic school be submitted no later than the first day of April preceding the school year for which transportation is requested (Appeal of Shevlin, 38 Ed Dept Rep 365, Decision No. 14,056; Appeal of Mogilski, 37 id. 446, Decision No. 13,901; Appeal of Amoroso, 37 id. 359, Decision No. 13,879). In this case, the operative deadline is June 1, reflecting the extension granted by the district. The purpose of the deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Shevlin, supra; Appeal of Mogilski, supra; Appeal of McNair, 33 Ed Dept Rep 418, Decision No. 13,098). 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 Shevlin, supra; Appeal of Amoroso, supra). In the first instance, it is the responsibility of the board of education to determine whether a reasonable explanation has been offered for submitting a late request (Appeal of Amoroso, supra; Appeal of Matero, 36 Ed Dept Rep 242, Decision No. 13,713). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Shevlin, supra; Appeal of Amoroso, supra; Appeal of Matero, supra).

In this instance, petitioner’s transportation request was late. Petitioner did not seek an extension of the transportation request deadline until July 1, 1999, and did not make a request for transportation on behalf of the parents of its students until August 20, 1999. Although petitioner does not articulate the reason for the delay, it is clear that the request was late because an application process did not exist until April 1999, petitioner did not apply to become a charter school until May 14, 1999, did not receive preliminary approval from SUNY until June 15 and July 13, 1999, and did not become a legally incorporated entity with final approval to operate until September 17, 1999. Thus, the issue in this appeal is whether these circumstances constitute a reasonable excuse for petitioner's delay in filing its request.

I hold that they do. A belated decision to enroll a student in a private school is not ordinarily a reasonable explanation for the late submission of a transportation request (Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Amoroso, supra; Appeal of Matero, supra). Nor is the fact that a school was not in existence as of the date by which transportation requests must be filed (Matter of Pask, 24 Ed Dept Rep 320, Decision No. 11,408; Matter of Knapp, 21 Ed Dept Rep 377, Decision No. 10,721).

However, the facts of this case are unique. Petitioner did not simply make a belated decision to open after the April 1 deadline. Rather, it was impossible for petitioner to apply to become a charter school any earlier than May 1999, due to the timing of the legislation and the lack of an application process prior to April 1999. Thus, this case is distinguishable from Matter of Pask and Matter of Knapp, where the nonpublic schools were not prohibited from opening prior to April 1. Here, petitioner school was prevented, by circumstances beyond its control, from enrolling any children in the school and from requesting transportation prior to the deadline. Under these circumstances, I find that petitioner had a reasonable excuse for filing a late transportation request (see, Appeal of Lamba, 32 Ed Dept Rep 473, Decision No. 12,890; Appeal of Cornerstone Christian School, et al., 30 id. 452, Decision No. 12,532). To rule otherwise would undermine the Legislature’s clear intent to increase the viable public school education options available to parents and children.

However, my holding is limited. The fact that petitioner had a reasonable excuse for the 1999-2000 school year does not exempt petitioner's students from making timely requests in future years. As an established school, the parents of children who attend New Covenant must submit their future requests for transportation in a timely manner.

Given the novel issue presented in this case, and the likelihood that similar issues will again arise, it is critical to comment further on charter school transportation. I note that, in subsequent school years, additional new charter schools may also have a reasonable explanation for filing transportation requests after the April 1 deadline. A charter school is subject to multiple reviews by one or more State agencies and is subject to a timetable beyond its control. For example, if SUNY receives a charter school application prior to October first of a calendar year, SUNY must act on that application on or before January first of the succeeding calendar year, and a proposed charter between the applicant and SUNY must be executed on or before February first (Education Law "2852[1]). Thereafter, SUNY must submit the application and proposed charter to the Regents for review and final approval (Education Law "2852[5]). The Regents have a period of 60 days to act on the proposed charter and may decide, within that timeframe, to return the proposed charter to SUNY for reconsideration (Education Law "2852[5-a],[5-b]). If SUNY resubmits the proposed charter to the Regents, the Regents have an additional 30 days to act (Education Law "2852[5-b]). Under this timetable, an application submitted to SUNY prior to October first is likely to receive final approval after April first of the succeeding calendar year, due to circumstances beyond the control of the charter school.

I am mindful that the rationale for the April 1 deadline is to allow affected districts to plan and budget for the additional transportation that may be required. However, in the case of new charter schools, approval of a late request by a parent for transportation to a school that was not yet approved by the April 1 deadline will not necessarily undermine this rationale, if the notice requirements set forth in the statute are followed. Throughout the application process, SUNY and the Regents are required to provide appropriate notification to the public school district in which the charter school is located (Education Law "2857[1]). Thus, a public school district is arguably on notice of a pending application prior to the school's opening. Such application must include a statement of the number of students to be served by the charter school (Education Law ""2851[2][i]). This information should enable districts to engage in some advance planning prior to the charter school's final approval.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately pay to petitioner the sum of $124,000.00 in transportation costs which it previously withheld from petitioner.

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