Appeal of SHERWYN BESSON, on behalf of his daughter AYANNA, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 16,111

(July 27, 2010)

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

STEINER, Commissioner.--Petitioner appeals a decision of the Board of Education of the Malverne Union Free School District (“respondent”) denying his daughter, Ayanna, transportation for the 2009-2010 school year.  The appeal must be dismissed.

Ayanna attends a nonpublic school located within respondent’s district.  During the 2008-2009 school year, the district provided her transportation to and from the nonpublic school.  On July 14, 2009, petitioner submitted his application for transportation for 2009-2010.  By letter dated August 17, 2009, the district informed petitioner that his application for transportation was untimely and that his request would be reevaluated upon receipt and review of the district’s transportation contract bids.  Petitioner’s request for transportation was subsequently submitted to respondent. 

By letter dated August 26, 2009, respondent notified petitioner that his request for transportation was untimely and therefore was denied. On August 31, 2009, the district notified petitioner that it would cost an additional $5,300 per year to provide transportation to his daughter and accordingly confirmed the denial of petitioner’s transportation request. This appeal ensued.  Petitioner’s requests for interim relief were denied on September 28, 2009 and October 14, 2009.

Petitioner claims that he was unaware of the requirement to apply for transportation by April 1 each year and requests that his delay be excused. Petitioner also claims that he has incurred financial hardship, including loss of income, as a result of having to transport his daughter to and from school.

Respondent contends that ignorance of the transportation application deadline is not a reasonable excuse for delay, that the district would incur additional cost to provide transportation to petitioner’s daughter and therefore, it did not have to provide such transportation.

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 school year has now ended, the issue of transportation for that year is moot.

Even if this appeal were not dismissed as 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 argues that he was unaware of the April 1 deadline and that he believed the district would automatically renew his daughter’s transportation upon the nonpublic school’s request for books to the district.  A board of education need not accept ignorance of the April 1 deadline as a reasonable excuse for failure to file a timely transportation request (Appeal of Ghaffar, 46 id. 332; Decision No. 15,524; Appeal of Delaney, 46 id. 253, Decision No. 15,498; Appeal of Thomas, 45 id. 528, Decision No. 15,405).  Therefore, the board of education did not abuse its discretion in finding petitioner’s excuse for delay unreasonable.

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).

Upon the district’s examination of the 2009-2010 transportation arrangements, it determined that the district would incur additional costs to provide transportation to petitioner’s daughter.  Therefore, the denial of the transportation request was not improper.

THE APPEAL IS DISMISSED.

END OF FILE.