Appeal of SARAH HOROWITZ, on behalf of her son JOSHUA, from action of the Board of Education of the West Hempstead Union Free School District regarding transportation.

Decision No. 17,622

(April 23, 2019)

Guercio & Guercio LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the West Hempstead Union Free School District (“respondent” or “respondent board”) denying her son (“the student”) transportation for the 2018-2019 school year.  The appeal must be dismissed.

According to the record, the student “completed the application/interview process” for Journey Prep School, a nonpublic school, on October 19, 2018 and was accepted into such nonpublic school thereafter.  On November 3, 2018, petitioner requested that respondent provide transportation to the student to and from the nonpublic school.

In a letter dated November 14, 2018, respondent’s assistant superintendent for business rejected petitioner’s request because it was late and indicated that granting such late request would result in additional cost to the district.  Petitioner appealed this determination to respondent which, at a special board meeting on December 4, 2018, denied petitioner’s appeal.  This appeal ensued.

Petitioner contends that respondent’s determination was arbitrary and capricious because she presented a reasonable excuse for her late request for transportation.  Petitioner seeks a determination that the student is entitled to transportation to the nonpublic school “for the 2018-2019 school year.”

Respondent contends that its determination was rational and that petitioner is not entitled to the requested relief.

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 asserts that she presented a reasonable excuse for the delay.  Specifically, petitioner alleges that the nonpublic school opened in September 2018 after the April deadline, and that she “only learned of” the planned opening from a newspaper article dated May 7, 2018.  Petitioner further alleges that the student was not accepted at the nonpublic school until October 4, 2018, which was also after the April 1 deadline.  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).  The Commissioner has further held that the fact that a nonpublic school did not begin operation until after the April 1 deadline does not, in and of itself, render a district’s denial of a request for transportation an abuse of discretion (see Appeal of New Covenant Charter School, 41 Ed Dept Rep 358, Decision No. 14,713; Appeal of Pask, 24 id. 320, Decision No 11,408; Appeal of Knapp, 21 id. 377, Decision No. 10,721).  Therefore, on this record I cannot find that petitioner has established a reasonable explanation for her 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 it does not offer a busing route to the nonpublic school or have a contract concerning such route.  Thus, the record supports a finding that respondent could not provide the requested transportation under existing transportation arrangements and at no additional cost. 

Accordingly, petitioner has not demonstrated that respondent’s determination was an abuse of discretion and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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