Appeal of ADINA and JEFFREY HOLLANDER, on behalf of their children EITAN and YONATAN, from action of the Board of Education of the West Hempstead Union Free School District regarding transportation.

Decision No. 17,849

(June 10, 2020)

Heller, Horowitz & Feit, P.C., attorneys for petitioner, Eli Feit, Esq. and Stuart A. Blander, Esq., of counsel.

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

TAHOE., Interim Commissioner.--Petitioners appeal the decision of the Board of Education of the West Hempstead Union Free School District (“respondent”) to deny their request for transportation on behalf of their two children (collectively “the students”).  The appeal must be dismissed.

Petitioners and the students reside within respondent’s school district.  The students attended a nonpublic school (the “first nonpublic school”) during the 2018-2019 school year and respondent provided public transportation for the students to attend the out-of-district nonpublic school.  Prior to the April 1 statutory deadline, petitioners submitted a request to the district for the students to continue receiving transportation services to the first nonpublic school for the 2019-2020 school year.

During the summer of 2019, petitioners applied on the students’ behalf to another nonpublic school (the “second nonpublic school”).  Petitioners assert that the first nonpublic school “was no longer a good fit for their children,” and that one of the students “had been the target of bullying by other children.”

According to the record, on or about August 23, 2019, petitioners submitted a new transportation request to respondent for transportation to the second nonpublic school for the 2019-2020 school year.

In a letter to petitioners dated August 27, 2019, respondent denied petitioners’ request for transportation to the second nonpublic school because it was submitted after the April 1 deadline.  This appeal ensued.

Petitioners argue that they have a reasonable excuse for their late transportation request; namely, that they did not receive notice of acceptance from the second nonpublic school until August 22, 2019.  Therefore, petitioners argue that respondent’s denial of their application was arbitrary and capricious because they provided respondent a reasonable explanation for their late application for transportation.  Petitioners also argue that the district granted the late transportation request of another district family whose children are similarly situated to petitioners’ children.  Petitioners seek a determination that the students are eligible for transportation to the second nonpublic school for the 2019-2020 school year.

Respondent argues that the appeal should be denied because petitioners’ transportation request was late, and petitioners did not provide a reasonable explanation for such delay.  Respondent denies petitioners’ allegations that it granted another late transportation request under similar circumstances and asserts that it would incur additional transportation costs if the late request were granted.

First, I must address a procedural issue.  Petitioner submitted a reply in this matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

A belated decision to enroll a student in a private school is not a reasonable explanation for the late submission of a transportation request (Appeal of Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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).

Petitioners acknowledge that their request for transportation to the second nonpublic school was submitted on August 23, 2019 after the April 1 deadline, but assert that such delay was due to circumstances beyond their control.  Petitioners argue that the decision to transfer the students to a new school was not taken lightly, but that they ultimately decided to do so because one student was the victim of bullying, and the other student was not benefiting from the academic program at the first nonpublic school.  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 petitioners’ late request.

Petitioners’ reliance upon Student with a Disability (48 Ed Dept Rep 207, Decision No. 15,837) is misplaced.  In that appeal, the Commissioner held that petitioners therein presented a reasonable explanation for a late request for transportation where the school district “initiated a change in the student’s placement [pursuant to an individualized education program] without forewarning to petitioners and after the transportation deadline.”  Here, by contrast, the reason for petitioners’ delay in requesting transportation rests solely upon their decision to change the students’ enrollment to the second nonpublic school after the deadline had passed.

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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Meyerson, 46 id. 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545).  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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Respondent further asserts that it would incur an additional cost to transport the students to the second nonpublic school.  Petitioners do not appear to contest this assertion, as petitioners contacted the company that provides transportation for respondent (“bus company”) and reported to respondent, in an email, that:  “After calling the bus company, they wanted $7,000 for us to add them to the bus.”  Moreover, respondent submits a copy of its contract with the company that provides transportation for respondent’s students.  The terms of that contract support respondent’s argument that the school district would incur additional expense if it were to honor petitioners’ late application for transportation as respondent contracts for the transportation of students on a ‘per-student’ cost per month.[1]

Petitioners argue in response that respondent will not incur additional transportation expenses because:  (1) it will “save” the money that it had already budgeted to transport the students to the first nonpublic school; and (2) respondent “had available seats on the ... bus [to the second nonpublic school] and would not incur any additional expense if it accommodated [petitioners’] request”; and (3) a seat on the bus to the second nonpublic school opened up when another family in the district who had been approved for transportation to the second nonpublic school decided, in the summer of 2019, to instead attend the first nonpublic school.

While respondent admits that “one student who previously requested transportation did withdraw from the bus” to the first nonpublic school, respondent indicates that, “under [its] contract with the bus company” that provides service to the first nonpublic school, which appears to be a separate bus contract that is not contained in the record, it would “not be charged for such student for the remainder of the school year.”  Therefore, respondent explains, it granted the other district family’s late transportation request because it was able to accommodate such request without incurring any additional cost.

However, unlike the other district family, the record supports a finding that providing transportation to petitioners’ children to the second nonpublic school would result in additional cost to the district.  Respondent denies petitioners’ allegations that it “had available seats” on the second nonpublic school bus for the 2019-2020 school year.  Although respondent admits that the other district family’s decision not to attend the second nonpublic school made one seat available on this bus, petitioners seek transportation for their two children.  Therefore, petitioners have not met their burden of proving that there were available seats on the bus to the second nonpublic school and that no additional costs would be incurred in accommodating petitioner’s late request.[2]

Finally, petitioners’ argument that informal guidance issued by the State Education Department (“SED”) supports their request for relief is without merit.  The SED guidance merely reiterates, in question and answer format, the standards set forth above, which are derived from Education Law §3635 and prior decisions of the Commissioner of Education.

Thus, petitioners have failed to meet their burden of proving that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE