Appeal of ODILIEN DESTRAT, on behalf of his children ODIANA and ROCHILE, from action of the Board of Education of the North Babylon Union Free School District regarding transportation.

Decision No. 17,533

(November 13, 2018)

Guercio & Guercio LLP, attorneys for respondent, Anthony J. Fasano, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the North Babylon Union Free School District (“respondent”) denying his children (“the students”) transportation for the 2017-2018 school year.  The appeal must be dismissed.

On April 28, 2017, petitioner submitted a request to respondent to transport his children to Bayshore Christian School, a nonpublic school, for the 2017-2018 school year.  Respondent granted this request.  On appeal, respondent explains that, although this request was submitted after the April 1 deadline, it was approved because the district already transported students to Bayshore Christian School and could provide the requested transportation without any additional cost.

On August 25, 2017, petitioner submitted a second late request to transport his children to Grace Christian Academy, a different nonpublic school, for the 2017-2018 school year.  According to the record, respondent did not provide transportation to Grace Christian Academy for any district residents at that time.

In an email to respondent’s district clerk dated August 30, 2017, petitioner indicated that, after he submitted his initial request in April 2017, he and his family “started the process to send my kids to a different school which is Grace Academy in Merrick NY.”  Petitioner further indicated that a district employee called him after he submitted his second request and informed him that the district could not provide transportation to Grace Christian Academy without board approval.  In the email, petitioner requested that respondent consider his transportation request.

In a letter dated September 11, 2017, respondent’s district clerk indicated that respondent had considered and denied petitioner’s request at a board meeting on September 8, 2017.  The district clerk indicated that respondent denied petitioner’s request because it was submitted after April 1 of the preceding school year, there was no reasonable explanation for the late request, and the transportation would result in an additional cost to the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 16, 2017.

 Petitioner contends that respondent unreasonably denied his request for transportation to Grace Christian Academy.  Petitioner asserts that this denial has caused hardship to him and his family.  Petitioner seeks a determination that his children are entitled to transportation to Grace Christian Academy.

Respondent contends that the appeal must be dismissed for failure to effectuate personal service upon respondent.  Respondent further argues that its determination was rationally based and not arbitrary or capricious.

First, I must address a procedural issue.  Respondent contends that the appeal must be dismissed because the petition was not “initially” served upon an individual authorized to accept service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Here, it appears that petitioner served the petition on a secretary to the district clerk on September 25, 2017.  The record reflects that the secretary is not authorized to accept service on behalf of the district or respondent.  However, petitioner has submitted an affidavit of service indicating that, subsequently, a process server personally served a copy of the petition on respondent’s district clerk on October 4, 2017.  This service occurred within 30 days of respondent’s denial of petitioner’s request for transportation.  Respondent has neither alleged nor proven that this subsequent service of the petition was improper.  Accordingly, on this record I find that petitioner personally served a copy of the petition in accordance with 8 NYCRR §275.8(a) and decline to dismiss the appeal on this basis.

Nevertheless, the appeal must be dismissed as moot.  Petitioner challenges respondent’s denial of his request for transportation for the 2017-2018 school year.  Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635[2]).  Since the 2017-2018 school year has ended, the appeal is moot (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

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 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, petitioner submitted his transportation request on August 25, 2017, well after the April 1 deadline.  Respondent’s deputy superintendent indicates in an affidavit that, at that time, it did not provide transportation to Grace Christian Academy for any district residents.  In his petition, petitioner explains that he decided to enroll the students in Grace Christian Academy because his children “excelled to a higher level after being tested ....”  While not entirely clear, it appears that petitioner contends that his late submission of the transportation request should be excused because he reached a decision to enroll the students in a more rigorous school based upon certain test results.  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 that petitioner has established a reasonable explanation for his 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 approximately $3,702.19 per month.  Therefore, I find that petitioner’s requested transportation would impose additional costs upon the school district and, consequently, that respondent did not act arbitrarily by denying such request.

THE APPEAL IS DISMISSED.

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