Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Nyack Union Free School District regarding transportation.

Decision No. 15,725

(February 5, 2008)

Ingerman Smith, L.L.P., attorneys for respondent, Leslie J. Morsillo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Nyack Union Free School District (“respondent”) denying her son transportation to a nonpublic school for the 2007-2008 school year.  The appeal must be sustained in part.

Petitioner and her son are residents of respondent’s school district.  During the 2006-2007 school year, petitioner’s son was identified as a student with a disability by respondent’s committee on preschool special education (“CPSE”).  Petitioner’s son was declassified by the CPSE on June 5, 2007. 

Petitioner claims that on July 27, 2007 she was informed by respondent’s director of special education that, for her son to be tested and continue receiving special education services, he would have to be enrolled in a “registered” kindergarten.

On July 30, 2007, petitioner requested transportation for her son to and from a “private school out of district.”  Respondent’s superintendent subsequently learned that petitioner sought transportation to the Rockland Country Day School (“Rockland Country”) and granted the late request.

By letter dated August 14, 2007, petitioner notified respondent that “due to financial reasons” her son would not attend Rockland Country during the 2007-2008 school year, but would attend a different nonpublic school, the Pre-School Playhouse (“Playhouse”), and requested transportation thereto.  By letter dated August 28, 2007, the superintendent denied this request, stating that petitioner had not provided a reasonable explanation for her delay and that transporting her son to Playhouse would result in additional cost to the district.  The superintendent also noted that petitioner’s July 30, 2007 transportation request had been granted because the district could transport her son to Rockland Country without cost and “because ...[y]ou offered a reasonable explanation for the late request, i.e., [your son’s] Annual Review occurred ... after the April 1, 2007 deadline.”  This appeal ensued.

Petitioner admits that her August 14, 2007 transportation request was untimely.  However, she argues that because respondent accepted the explanation for her July 30, 2007 late transportation request (i.e. that her son’s annual review occurred after the April 1 deadline), it must also accept the same explanation for her August 14, 2007 request.  Petitioner also seeks reimbursement for the cost of busing her son to Playhouse since September 2007.

Respondent argues that it granted petitioner’s July 30, 2007 request despite its lateness because petitioner sought transportation to Rockland Country, a  nonpublic school to which it could transport her son at no additional cost.  Respondent contends that petitioner’s August 14, 2007 request for transportation to Playhouse was untimely, and therefore, its decision to deny her request was not arbitrary or capricious.  Respondent further alleges that it would incur additional costs to transport petitioner’s son to Playhouse.

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.)

Respondent contends that petitioner made two separate requests for transportation to two different nonpublic schools and appears to argue that, although it accepted her explanation for the lateness of her July 30, 2007 transportation request, it was under no obligation to accept the same explanation for the lateness of her August 14, 2007 request.  However, there is no evidence that petitioner requested transportation to Rockland Country in her July 30, 2007 letter, nor is there any evidence that respondent granted such a request in writing.  Rather, the record indicates that on July 30, 2007, petitioner notified respondent that her son would require transportation to a “private school out of district.”  Petitioner explains that during July and August 2007 she “investigated” at least two schools, including Rockland Country and Playhouse, before notifying respondent of her final decision to enroll her son at Playhouse.

As stated above, 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 her August 28, 2007 letter, the superintendent accepted as reasonable petitioner’s excuse for the lateness of her July 30, 2007 transportation request (i.e. because her son’s annual review occurred after the April 1 deadline).  Petitioner did not make a final decision on the school in which she would enroll her son and to which he would need transportation until she submitted a written request to respondent on August 14, 2007.  Based on the record before me, I find that because respondent had already accepted as reasonable petitioner’s excuse for her delay, it therefore erred in not granting her August 14, 2007 request for transportation to Playhouse.

With respect to petitioner’s request for reimbursement for the cost of busing her son to Playhouse, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent provide petitioner’s son with transportation to his nonpublic school for the 2007-2008 school year.

END OF FILE