Appeal of ELLEN KAMINSKY, on behalf of her daughter ARIELLA, from action of the Board of Education of the Sewanhaka Central High School District regarding transportation.

Decision No. 15,970

(August 18, 2009)

Douglas E. Libby, Esq., attorney for respondent

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") denying her daughter, Ariella, transportation to a nonpublic school for the 2008-2009 school year.  The appeal must be dismissed.

Ariella attends the Samuel H. Wang Yeshiva University High School for Girls (the “school”).  In February 2008, the school requested parents to submit their applications for transportation for the 2008-2009 school year.  Petitioner submitted a transportation application to the school on or about February 16, 2008 and assumed the school would forward it to respondent’s district.  The school did not forward petitioner’s application to the district by the April 1, 2008 deadline.  On September 5, 2008, the School’s Head wrote to respondent to explain petitioner’s situation.  By letter dated September 24, 2008, the district clerk notified petitioner that her request for transportation was denied.  This appeal ensued.

Petitioner alleges that transportation is necessary for Ariella to attend the school.  Petitioner argues that a reasonable excuse was provided to the district and that the district would incur no additional cost to transport her daughter, because the school offered to pay for the transportation. 

Respondent argues that petitioner failed to submit a timely transportation request and failed to provide a reasonable explanation.  Respondent further contends that petitioner submitted timely requests in prior years and that the district would incur additional costs to transport Ariella.

The appeal must be dismissed as moot.  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).  Since the 2008-2009 school year has ended, petitioner's transportation request for that school year is moot.

Even if the appeal were not moot, it would 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 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).

Petitioner contends her excuse is reasonable as she believed the school would forward her application to the district.  Respondent maintains that this is not a reasonable excuse, as the application for transportation states on its face that it should be submitted to respondent’s central administrative offices, and petitioner properly followed this procedure for the 2005-2006, 2006-2007 and 2007-2008 school years.  Under these circumstances, I find that petitioner has failed to estalish a reasonable excuse for her failure to make a timely transportation request.  Moreover, it was ultimately petitioner’s responsibility to file the transportation request with the school district by the April 1 deadline (seeAppeal of Vigliotta, 40 Ed Dept Rep 344, Decision No. 14,493).

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).

Here, the affidavit of respondent's transportation supervisor indicates that the district would incur an additional cost of $9,360 for Ariella’s transportation because the transportation contract is on a per-pupil basis.  Accordingly, I conclude that respondent did not abuse its discretion in denying petitioner's late transportation request.  The fact that the school was eventually able to arrange for private payment to the bus company is of no consequence.

THE APPEAL IS DISMISSED.

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