Appeal of S.W. and D.W., on behalf of their children D.W. and D.W., JR., from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 15,960

(August 12, 2009)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Malverne Union Free School District (“respondent”) to deny their children transportation to nonpublic schools for the 2009-2010 school year.  The appeal must be dismissed.

By letter dated April 8, 2009, petitioners requested transportation for the 2009-2010 school year for their son, D.W., Jr., to attend Holy Trinity High School (“Holy Trinity”) and for their daughter, D.W., to attend St. Thomas the Apostle (“St. Thomas”), both nonpublic schools.  In that letter, S.W. explained that she missed the April 1 transportation deadline for medical reasons. 

By letter dated April 24, 2009, respondent’s district supervisor of facilities and support personnel (“district supervisor”) denied the request as untimely.  On May 14, 2009, respondent affirmed the district supervisor’s determination and this appeal ensued.  By letter dated June 10, 2009, respondent notified petitioners that based upon the receipt of new information, the district would grant petitioners’ transportation request for D.W., Jr. to attend Holy Trinity at no additional expense.  However, the letter stated that respondent could not accommodate petitioners’ transportation request for D.W. because it would impose additional costs.  Petitioners’ request for interim relief was denied on June 12, 2009.

Petitioners argue that their transportation request was late for medical reasons.  Petitioners also allege that there are two other children approximately five blocks away from their house that are receiving transportation to a nonpublic school and, therefore, maintain that respondent should not incur any additional costs to transport their children.

Respondent contends that petitioners’ request for transportation was untimely and, therefore, maintains that its decision to deny petitioners’ request was not arbitrary or capricious.  Respondent also argues that petitioners failed to provide a reasonable excuse for their delay and that it would incur additional costs to transport D.W.  Respondent further contends that the appeal is moot with respect to petitioners’ son.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  By letter dated June 10, 2009, respondent notified petitioners that it would provide transportation for their son to Holy Trinity at no additional cost for the 2009-2010 school year.  Therefore, the appeal is moot with respect to him.

The appeal must also be dismissed with respect to petitioners’ daughter.  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 Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498). 

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 Capeling, 46 Ed Dept Rep 400, Decision No. 15,545).  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 Ghaffar, 46 Ed Dept Rep 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498).

Petitioners admit that they did not submit a timely request for transportation.  Petitioners argue that S.W. was diagnosed with cancer on February 25, 2009, which led to a series of tests and consultations from March 4 to April 1, 2009 and culminated in her hospitalization from April 2 to April 7, 2009.  While I am certainly sympathetic to petitioners, it was ultimately their responsibility to submit a timely request for transportation (seee.g.Appeal of Haiimpour, 47 Ed Dept Rep 46, Decision No. 15,621; Appeal of Vigliotta, 40 id. 344; Decision No. 14,493).  Missing the transportation deadline for the reasons stated is not a basis for excusing their failure to make a timely transportation request (Appeal of Haiimpour, 47 Ed Dept Rep 46, Decision No. 15,621; Appeal of Abbadessa, 47 id. 158, Decision No. 15,657).  Petitioners became aware of S.W.’s diagnosis over a month before the deadline passed and while their preoccupation with her illness is understandable, they could have filed a timely request prior to the deadline (seee.g.Appeal of Haiimpour, 47 Ed Dept Rep 46, Decision No. 15,621; Appeal of Shevlin, 38 id. 365, Decision No. 14,056; Appeal of Parks, 31 id. 249, Decision No. 12,633).  On the record before me, therefore, I cannot find that respondent abused its discretion in denying petitioners’ late request.

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 Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524).  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 (Appeal of Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524; Appeal of Vasilakos, 46 id. 129, Decision No. 15,463).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Respondent’s district supervisor asserts in an affidavit that providing petitioners’ daughter with transportation would result in an additional cost of $174.40 per month for the 2009-2010 school year because the school district contracts for transportation to St. Thomas on a per-seat basis.  Petitioners claim that the district will not incur any additional expenses in transporting their daughter to St. Thomas because two other neighboring students, will be receiving transportation from respondent to nonpublic schools.  However, petitioners have introduced no evidence to support this claim.  Accordingly, based on the record before me, I find that petitioners have not met their burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which they seek relief.

THE APPEAL IS DISMISSED.

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