Appeal of N.B., on behalf of her son, from action of the Monticello Central School District regarding transportation.

Decision No. 16,511

(July 26, 2013)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Judith Crelin Mayle, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Monticello Central School District (“respondent”) denying her son transportation to a nonpublic school. The appeal must be dismissed.

Petitioner resides within respondent’s school district. She withdrew her son from respondent’s schools in November 2009 and enrolled him in a nonpublic school, which he attended through the 2011-2012 school year. Petitioner filed transportation requests each year for the2009-2010, 2010-2011 and 2011-2012 school years. Respondent granted each request and provided transportation to petitioner’s son from a centralized pick-up point.

On or about June 12, 2012, petitioner requested transportation to John S. Burke Catholic High School (“Burke”), a nonpublic school, for her son for the 2012­2013 school year. Respondent’s superintendent denied petitioner’s request because the request was not submitted before the April 1 deadline and because the distance between petitioner’s home and Burke exceeded 15 miles.

Petitioner appealed the superintendent’s denial of her request. After meeting with petitioner regarding her appeal, respondent denied petitioner’s request. Respondent’s superintendent notified petitioner of respondent’s decision by letter dated July 25, 2012.

On or about September 7, 2012, petitioner attempted to file an appeal with my Office of Counsel. However, the petition was rejected for failure to include both an affidavit of personal service and the notice required by Commissioner’s regulations §275.11. On September 27, 2012,petitioner served a petition upon respondent and subsequently filed it with my Office of Counsel. The petition included a request for interim relief, which was denied on October 11, 2012.

Petitioner asserts that she removed her son from respondent’s schools because he had been bullied. She seeks a determination that her son is entitled to transportation to Burke.

Respondent contends that petitioner’s transportation request was untimely and that she failed to provide a reasonable explanation for the delay. Respondent also contends that petitioner does not reside within 15 miles of Burke, that it has not implemented a centralized pick-up point and that it has no obligation to provide the requested transportation. Respondent further argues that the petition is untimely and that petitioner has not offered good cause to excuse the delay.

I must first address a procedural issue. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).

The record indicates that respondent’s final determination was made on July 25, 2012 and petitioner admits that she received the determination on that date. Petitioner first attempted to file an appeal with my Office of Counsel on or around September 7, 2012. That petition was rejected for failure to include both an affidavit of personal service and the notice required by Commissioner’s regulations §275.11. On September 27, 2012, petitioner served a petition upon respondent, more than 30 days after July 25, 2012. As an excuse for her delay in commencing the appeal, petitioner asserts that she was not advised of the 30-day limitation period and that the superintendent did not inform her of any deadline. She also claims that she had surgery on August 26, 2012. While I am sensitive to petitioner’s situation, I have consistently held that neither illness nor ignorance of the appeal process is a valid excuse for late commencement of an appeal (Appeal of D.M., 47 Ed Dept Rep 433, Decision No. 15,745).Accordingly, the appeal is dismissed as untimely.

Even if it were not dismissed on procedural grounds, the appeal 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).

Here, petitioner acknowledges that she filed her request for transportation after April 1, 2012. She offers no explanation for the delay, and instead refers generally to the State Education Department’s (“Department”) website, which, she argues, states that the filing of a request after April 1, 2012 “would not be an issue.” Petitioner’s general reference to alleged information on the Department’s website does not constitute a reasonable explanation for the delay.

Even absent a reasonable explanation for the delay, alate 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 Lippolt, 48 Ed Dept Rep457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881). According to respondent, no other district students attend Burke, and the district would incur $30,397.50 annually in additional expense to provide the requested transportation. Accordingly, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.

In addition, Education Law §3635(1) establishes a system of entitlement to transportation services to nonpublic schools. Transportation between a pupil’s home and the nonpublic school that the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation (Education Law §3635[1][a]; Appeal of S.T.,48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes,48 id. 299, Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677). Although the statute requires aboard of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213,Decision No. 15,305; Appeal of Heffernan, 43 id. 447,Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).

Additionally, transportation may also be furnished for certain other pupils attending a nonpublic school in accordance with Education Law §3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pick-up points, and must provide transportation between such pick-up points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pick-up points to any nonpublic school to which regular home-to-school transportation is not already being provided (Appeal of S.T., 48 Ed Dept Rep 389, Decision No.15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865;Appeal of Keller, 47 id. 224, Decision No. 15,677).

Education Law §3635(1)(b)(ii) further states that aboard of education "may, at its discretion," provide transportation from a centralized pick-up point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years (Appeal of S.T., 48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299,Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677). When a school district exercises its discretion to provide transportation pursuant to Education Law §3635(1)(b)(ii), the statute requires that the distance from the centralized pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Bittlingmaier, 45Ed Dept Rep 213, Decision No. 15,305; Appeal of Turner, 40id. 156, Decision No. 14,447; Appeal of Bank, et al., 40id. 141, Decision No. 14,442).

Petitioner does not dispute that she and her son reside more than 15 miles from Burke. Nor does petitioner offer any evidence that respondent is transporting other students to Burke. Although respondent has the authority to transport petitioner’s son to Burke from a centralized pick-up point because it had provided transportation to the school in at least one of the last three years, it is not obligated to do so and the matter is wholly within respondent’s discretion (Education Law §3635[1][b][ii]; see e.g. Appeal of Porzio, 42 Ed Dept Rep 166, Decision No.14,808). Therefore, petitioner has failed to establish any legal entitlement to the requested transportation.

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

THE APPEAL IS DISMISSED.

END OF FILE