Appeal of SOPHIA SOLER, on behalf of her children JOSEPH and LINDA, from action of the Board of Education of the Valley Stream Central High School District regarding transportation.

Decision No. 16,284

(August 17, 2011)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the refusal of the Board of Education of the Valley Stream Central High School District ("respondent") to provide transportation for her children to a nonpublic school.  The appeal must be dismissed.

On or about June 15, 2010, petitioner moved into respondent’s district.  By letter dated September 14, 2010, petitioner requested transportation for her children to St. Francis Preparatory High School for the 2010-2011 school year.  On September 18, 2010, petitioner submitted the required transportation request forms.  By letter dated September 21, 2010, the assistant superintendent for finance and operations denied petitioner’s request as untimely.  He explained that, in accordance with board policy #8413, requests for transportation to nonpublic schools must be submitted by April 1 and that students who move into the district after the April 1st deadline must request transportation within 30 days of establishing residency.  Thereafter, petitioner appealed to respondent, citing her ignorance of the statutory deadlines and asserting that she only learned of the need to make a request for transportation on September 8, 2010 when she attempted to register her children in the district.  By letter dated October 13, 2010, respondent denied petitioner’s appeal.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 23, 2010.

Petitioner contends that her late transportation request should be granted because she did not know about board policy #8413.  She states that she believed transportation would continue to the nonpublic school under the same terms as in her former residence.  Petitioner seeks an order directing respondent to change its policy to begin the 30 day time period for transportation requests from the time of notification “from the school that the student attends” is received.  Petitioner also contends that having to pay for transportation via a Metropolitan Transportation Authority (“MTA”) card is a financial burden on her family and seeks reimbursement for previously purchased MTA cards.  Finally, she claims that the requested transportation will not result in any additional cost to the district because the transportation is provided by MTA which is funded by New York State and taxpayers like petitioner and her husband.

Respondent asserts that petitioner has not established a clear legal right to the requested relief.  Respondent contends that the substance of board policy #8413 was printed in several local news publications and that petitioner’s ignorance of the policy does not excuse her late transportation request.  Respondent maintains that providing the requested transportation would result in additional cost to the district.  Respondent asserts that the Commissioner of Education lacks authority to award transportation costs or to order respondent to modify policy #8413 as petitioner requests and, further, that such modification would violate Education Law §3635.  Finally, respondent contends that the petition is not properly verified.

As a procedural matter, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Here, the petition filed with my Office of Counsel is properly verified by petitioner and the appeal will not be dismissed on that ground.

However, 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s transportation request was for the 2010-2011 school year.  As noted above, petitioner’s request for interim relief was denied, and the school year has concluded.  Therefore, the appeal is moot.

Even if the appeal were not dismissed on procedural grounds, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).  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 a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837).  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of a Student with a Disability, 48 id. 207, Decision No. 15,837).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).

Petitioner admits that she established residency in the district on June 15, 2010.  Accordingly, her application for transportation should have been submitted no later than Thursday, July 15, 2010.  Petitioner delayed making her request until mid-September 2010, explaining only that she was not aware of the deadline.  A board of education need not accept ignorance of the filing requirement for new residents to apply for transportation to a nonpublic school within 30 days of establishing residency as a reasonable excuse for failure to file a timely transportation request (Appeal of Goldman, 39 Ed Dept Rep 630, Decision No. 14,334; Appeal of Mogilski, 37 id. 446, Decision No. 13,901).  Accordingly, I find that respondent’s refusal to excuse petitioner’s delay was reasonable, not arbitrary, capricious or an abuse of discretion.

Petitioner also contends that, because of the district’s refusal to provide transportation, she must pay for the MTA card herself.  While I am sympathetic to petitioner’s situation, personal hardship is not a basis for granting a late transportation request (Appeal of Goldman, 39 Ed Dept Rep 630, Decision No. 14,334; Appeal of Korzyk, 33 id. 460, Decision No. 13,113).

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.

I find petitioner’s argument that the requested transportation can be provided at no cost since she is a taxpayer and MTA receives public funds unavailing.  Respondent maintains that the district would incur an additional expense were it to provide MTA cards to transport petitioner’s children to the nonpublic school.  Even though the MTA receives public funding, the school district must pay the additional expense out of its budget and this incurs additional costs.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881).  Consequently, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.

Finally, although petitioner seeks an order directing respondent to change its transportation request policy, she cites no legal basis for such relief and, indeed, there is none.

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

THE APPEAL IS DISMISSED.

END OF FILE.