Appeal of PAMELA SAXBY, on behalf of her children, from action of the Board of Education of the Pocantico Hills Central School District regarding transportation.

Decision No. 17,185

(September 13, 2017)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Pocantico Hills Central School District (“respondent”) denying her children transportation for the 2017-2018 school year.  The appeal must be dismissed.

On April 27, 2017, petitioner emailed respondent’s transportation coordinator and requested transportation to a nonpublic school.  Petitioner acknowledged that her request was “27 days after April 1,” but nevertheless requested that her request be granted because she had just received notification that her children were accepted into a nonpublic school the previous week.

The transportation coordinator contacted petitioner by telephone on April 28, 2017 to inform her that the district would not accept petitioner’s late request.  The transportation coordinator additionally stated that it was her belief that granting petitioner’s request would impose additional costs on the district.  The transportation coordinator further informed petitioner that she could submit a written appeal to respondent.

On May 2, 2017, petitioner appealed the denial of her transportation request to respondent, requesting that respondent grant the request notwithstanding the fact that she submitted it after the April 1, 2017 deadline (“the deadline”).  Petitioner argued that the acceptance of her children at the nonpublic school after the deadline presented a “reasonable excuse” and further asserted that the district’s transportation request form did not clearly indicate that parents must “request transportation for their child[ren] prior to the April 1^st deadline even where an admission decision has not yet been received....”  Alternatively, petitioner requested that the district provide the transportation but “allow [petitioner] to reimburse the [s]chool [d]istrict ... for the reasonable additional expenses...” of transporting petitioner’s children to the nonpublic school.

On May 8, 2017, respondent denied petitioner’s appeal because her transportation request was submitted after the deadline.  Respondent further declined to permit petitioner to reimburse it for transportation, stating that the district was “only permitted to transport children deemed eligible for transportation.”  This appeal ensued.

Petitioner contends that respondent impermissibly denied her transportation request because its individualized consideration of late transportation requests is inherently arbitrary.  Petitioner further argues that respondent’s denial of her request to reimburse the district for providing the requested transportation violated the students’ right to transportation pursuant to Education Law §3635.[1]  Petitioner additionally asserts that the district currently provides transportation to students “going in the same direction... of the [nonpublic] school....”  Finally, petitioner argues that her offer to reimburse the district for the costs of the requested transportation on a monthly basis would allow the district to avoid incurring an additional cost.  Petitioner requests an order directing respondent to provide the requested transportation at no cost or, alternatively, to provide the requested transportation subject to reimbursement from petitioner.

Respondent contends that its decision to deny petitioner’s request as untimely was within its discretion.  Respondent further argues that its determination was not arbitrary or capricious, that petitioner did not provide a reasonable explanation for the delay and that it would incur additional cost if it granted petitioner’s request.

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).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Here, petitioner admits that her request for transportation to the nonpublic school was late, but requests that I find that the student’s acceptance into the school after the deadline is a reasonable explanation for the delay.  The Commissioner has repeatedly held that neither a belated decision to enroll a student in a private school nor a belated notice of admission to a nonpublic school is a reasonable explanation for the late submission of a transportation request (see e.g. Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,975; Appeal of Lippolt, 48 id. 457, Decision No. 15,914; Appeal of Flores, 47 id. 484, Decision No. 15,761; Appeal of Goyal, 40 id. 40, Decision No. 14,415).  Therefore, I do not find the students’ late acceptance to the nonpublic school to be a reasonable explanation for petitioner’s late request.

Additionally, the record demonstrates that granting petitioner’s request would impose additional costs on the district.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881). 

Here, respondent asserts, and petitioner does not refute, that granting the transportation request would cost the district $35,298.48.  Petitioner has offered to reimburse the district for the “reasonable” costs of such transportation on a monthly basis.  Respondent is correct that there is no specific provision of the Education Law which would authorize a board of education to provide transportation on a fee basis.  Indeed, Education Law §3635(1) indicates that the cost of transportation provided to eligible pupils is a charge upon the school district.  But, in any event, respondent was not obligated to assume the potential complications connected with accepting petitioner’s promise to reimburse it for transportation costs.  Inherent in such an arrangement is the risk that the district will incur costs in the first instance and, if payment is not forthcoming, be forced to assume the duties of a collection agency or become saddled with additional debt.  Therefore, I find that respondent did not abuse its discretion by rejecting petitioner’s offer of payment and denying petitioner’s request given the additional cost.[2] 

Finally, petitioner contends that respondent’s consideration of late requests on a case-by-case basis is arbitrary or capricious.  As noted above, Education Law §3635(2) requires that a district accept a late request upon submission of a “reasonable explanation.”  This requirement, by its nature, contemplates individualized consideration of each applicant’s circumstances.  Petitioner is correct that rules of general applicability promote certainty and are generally desirable.  However, in this instance, the Legislature has determined that the need for determinations based on the facts of each case overrides the need for certainty with regard to late requests for transportation to nonpublic schools.  Thus, an individualized determination by a school official as to whether an explanation is or is not reasonable is not, in and of itself, arbitrary or capricious.

THE APPEAL IS DISMISSED.

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