Appeal of NEW COVENANT CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Albany regarding transportation.

Decision No. 14,713

(April 5, 2002)

Whiteman Osterman & Hanna LLP, attorneys for petitioner,

Norma Meacham, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent,

Kathy Ann Wolverton, Esq., of counsel

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 transport some of petitioner"s students. The appeal must be dismissed.

On August 20, 2000, the Board of Trustees of the State University of New York ("SUNY") placed petitioner on probation for the purpose of implementing a remedial action plan under Education Law "2855(3). The remedial action plan prohibited petitioner, as of September 7, 2000, from maintaining an enrollment of greater than 400 students or from enrolling any new students until petitioner relocated from its temporary facility to a permanent facility.

On or about March 30, 2001, petitioner"s principal, on behalf of the parents of 156 students, submitted transportation requests for the 2001-2002 school year to respondent. The principal"s cover letter states, "[a]ttached you will find 156 transportation applications, there are a combination of existing students as well as families and students that have expressed an interest in attending New Covenant for the 2001-2002 school year." Respondent did not object to this request.

On August 16, 2001, petitioner received a certificate of occupancy for a permanent facility. On that day, SUNY lifted the enrollment cap and authorized petitioner to enroll up to 750 students during the 2001-2002 school year. Petitioner subsequently asked respondent to transport certain students whose parents failed to submit transportation requests by April 1, 2001. The parties dispute the number of parents upon whose behalf petitioner made such requests.

On August 31, 2001, respondent"s superintendent notified petitioner that respondent would not transport the students whose parents submitted transportation requests after April 1, 2001, unless space existed on available buses and routes. This appeal ensued.

Petitioner contends that the transportation requests were late because it could not enroll any new students for the 2001-2002 school year until after it received a certificate of occupancy for the permanent facility on August 16, 2001. Respondent contends that this explanation is not reasonable because the enrollment cap did not prevent the parents, or petitioner on behalf of those parents, from requesting transportation by April 1, 2001. Respondent further contends that providing the requested transportation would cause it to incur additional costs.

A charter school is deemed 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 (Appeal of New Covenant Charter School, 39 Ed Dept Rep 610, Decision No. 14,327).

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 a Student Suspected of Having a Disability, 41 Ed Dept Rep ____, Decision No. 14,655; Appeal of R.O., 40 id. 137, Decision No. 14,441; Appeal of Gabay, 39 id. 492, Decision No. 14,290). 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 a Student Suspected of Having a Disability, supra; Appeal of R.O., supra; Appeal of Gabay, supra). 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 a Student Suspected of Having a Disability, supra; Appeal of R.O., supra; Appeal of Gabay, 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 a Student Suspected of Having a Disability, supra; Appeal of R.O., supra; Appeal of Gabay, supra). The board"s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of a Student Suspected of Having a Disability, supra; Appeal of R.O., supra; Appeal of Gabay, supra).

Even in the absence of a reasonable explanation for delay, a late transportation request must be granted if the transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of R.O., supra; Appeal of Tarricone, 38 Ed Dept Rep 623, Decision No. 14,105; Appeal of Shevlin, 38 id. 365, Decision No. 14,056). Petitioner does not dispute that the requested transportation would result in respondent incurring additional costs. Therefore, the appeal must be dismissed unless a reasonable explanation for the late request has been offered.

I have upheld a school board"s exercise of its discretion to determine whether a parent offered a reasonable explanation for a late request in a variety of circumstances. For example, a belated decision to enroll a student in a nonpublic school ordinarily need not be accepted as a reasonable explanation (Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Amoroso, 37 id. 359, Decision No. 13,879; Appeal of Matero, 36 id. 242, Decision No. 13,713). Further, a school board need not accept as a reasonable explanation the fact that a nonpublic school did not exist as of the transportation request deadline (Matter of Pask, 24 Ed Dept Rep 320, Decision No. 11,408; Matter of Knapp, 21 id. 377, Decision No. 10,721). Nor must it accept ignorance of the deadline as a reasonable explanation (Appeal of Mogilski, 37 Ed Dept Rep 446, Decision No. 13,901). Moreover, the failure of nonpublic school authorities to timely submit a request on behalf of a parent need not be accepted as a reasonable explanation for a late filing (Matter of Hendricks, 21 Ed Dept Rep 302, Decision No. 10,692).

Petitioner contends that a reasonable explanation for the late transportation requests existed because petitioner could not enroll new students until after petitioner received a certificate of occupancy for the permanent facility on August 16, 2001. I find that respondent did not act arbitrarily and capriciously in not accepting this explanation as reasonable. Petitioner"s inability to enroll new students until after the April 1 deadline did not preclude a parent who desired to send their child to petitioner from submitting a transportation request to respondent prior to April 1. Nor did the enrollment cap preclude petitioner from submitting transportation requests on behalf of such parents. In fact, prior to April 1, 2001, petitioner submitted a transportation request on behalf of "...a combination of existing students as well as families and students that have expressed an interest in attending New Covenant for the 2001-2002 school year." Thus, petitioner"s representatives understood that petitioner could submit transportation requests prior to April 1 on behalf of parents of students not yet enrolled.

In support of its contention that a reasonable explanation has been offered, petitioner relies exclusively on my decision in Appeal of New Covenant Charter School, supra. In that appeal, I determined that late transportation requests were reasonable because the timing of the charter school legislation and the lack of an application process prior to the April 1 deadline precluded transportation requests from being made by April 1. I notified petitioner that "[t]he 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," and that "[a]s an established school, the parents of children who attend New Covenant must submit their future requests for transportation in a timely manner."

In contrast to Appeal of New Covenant Charter School, in the present case the parents of students interested in attending petitioner were not precluded from submitting transportation requests prior to the April 1 deadline. As noted above, the transportation requests submitted by petitioner on behalf of the parents of certain students prior to April 1, in fact, included requests on behalf of students who expressed an interest in attending petitioner, but were not yet enrolled. Under these circumstances, I conclude that respondent did not abuse its discretion in denying the late transportation requests.

THE APPEAL IS DISMISSED.

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