Appeal of JEFFREY LITTON, on behalf of his daughters SARA and JENNA, from action of the Board of Education of the Guilderland Central School District regarding transportation.

Decision No. 15,695

(December 14, 2007)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Guilderland Central School District (“respondent”) denying his daughters, Sara and Jenna, transportation services to a nonpublic school for the 2007-2008 school year.  The appeal must be dismissed.

On March 28, 2007, respondent received a written transportation request from petitioner for his two daughters to attend the Doane Stuart School (“DSS”), a nonpublic school, for the 2007-2008 school year.  On July 26, 2007, petitioner submitted a second transportation request, seeking transportation for his daughters to attend the Robert C. Parker School (“RPS”), another nonpublic school for the 2007-2008 school.  By letter dated August 30, 2007, the district notified petitioner that his transportation request was denied because his request was received after the April 1 deadline and petitioner’s residence was outside the mileage limits for transportation.  This appeal ensued.

Petitioner contends that respondent is obligated to transport his daughters to RPS because his residence is located less than 15 miles from the nonpublic school.  Petitioner further alleges that his transportation request should be considered timely because he submitted his request within 30 days of enrolling his daughters in RPS.  Petitioner also avers that respondent’s denial of his transportation request because it would create an additional expense is arbitrary and capricious.

Respondent contends that its decision to deny petitioner’s transportation request to RPS was proper because petitioner’s residence is located more than 15 miles from RPS and petitioner’s transportation request was received after the April 1 deadline.  Respondent also maintains that service of the petition was improper and that petitioner’s reply contains inappropriate material that must not be considered.  Respondent further alleges that transporting petitioner’s daughters to RPS cannot be accomplished by existing bus routes and would cost the district approximately $35,782.10.

Initially, I will address the procedural issues raised by respondent.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also maintains that the appeal is procedurally defective because of improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).  The record reveals that the petition was served upon a keyboard specialist employed by the district.  Since she does not hold one of the positions designated in the regulation and has not been designated by the board to accept service, the appeal must be dismissed for lack of proper service (seeAppeal of Ameri, 37 Ed Dept Rep 652, Decision No. 13,949).

The appeal must also be dismissed on the merits.  Education Law §3635(2) requires that an application 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 or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically  (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373; Decision No. 14,884; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Davila, 41 id. 419, Decision No. 14,732).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744.).

Here, petitioner admits that he did not submit a written request for transportation to RPS by the April 1 deadline.  However, petitioner relies on language in this Department’s “Handbook on Services to Pupils Attending Non-Public Schools” published on the Department’s website (http://www.emsc.nysed.gov/nonpub/HANDBOOKonServicestoPupilsAttendingNonpublicSchools/Handbookpage) for the proposition that his transportation request was timely.  In the Questions and Answers section of the handbook, however, it states:

7. How must a board of education accommodate the request for transportation when the parent has requested transportation to one nonpublic school prior to April 1 and then decides to transfer the pupil to another nonpublic school?

This should be addressed in the same way as a late request; that is, the transportation should be provided if it will entail no extra expense to the district or if the board finds the reason for the transfer to be reasonable.

Moreover, the Commissioner has consistently held that a change in designation of a nonpublic school, different than the nonpublic school originally specified, after the April 1 deadline constitutes a separate request (Appeal of Capeling, 46 Ed Dept Rep __, Decision No. 15,545; Appeal of Galvani, 34 id. 370, Decision No. 13,346; Appeal of McNair, 33 id. 418, Decision No. 13,098).  Since petitioner’s second request for transportation to RPS was not submitted by the April 1 deadline, his request must be treated as a late request.

However, even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Cusumano, 42 id. 309, Decision No. 14,864; Appeal of Gal, 42 id. 170, Decision No. 14,809).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (seeAppeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884). 

Here, respondent’s transportation supervisor noted in his affidavit, that the district did not have an established route to RPS and that the dismissal times were not comparable to nearby schools and, therefore, providing transportation to RPS would result in the district incurring an additional expense of approximately $35,782.10.  Petitioner has not refuted this contention.  Accordingly, I am unable to find that the transportation petitioner seeks to RPS can be provided to his daughters without additional expenses being incurred by the district.  Therefore, upon the record before me, I cannot find that respondent abused its discretion in not providing petitioner’s daughters with transportation to RPS.

     In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE