Appeal of NICOLE LANG, on behalf of her child, from action of the Board of Education of the Mohonasen Central School District regarding transportation.

Decision No. 18,164

(July 26, 2022)

Honeywell Law Firm, PLLC, attorneys for respondent, Christopher J. Honeywell, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Mohonasen Central School District (“respondent”) denying her child (“the student”) transportation to a nonpublic school.  The appeal must be dismissed.

On or about July 21, 2021, petitioner, a resident of respondent’s district, requested transportation on behalf of the student to a nonpublic school for the 2021-2022 school year.

By email dated July 22, 2021, respondent’s superintendent denied petitioner’s request for transportation because the request was late and granting it would result in additional cost to the district.  By email dated July 22, 2021, petitioner appealed the superintendent’s decision to respondent.  By email dated July 26, 2021, respondent denied petitioner’s appeal, additionally noting that the distance between petitioner’s residence and the nonpublic school exceeded 15 miles.  This appeal ensued.

Petitioner contends that respondent improperly denied her request because:  (1) she presented a reasonable excuse for her late request; (2)  the student has attended a different nonpublic school for the last five years and received transportation from respondent; and (3) the district provides transportation to another student who resides less than a mile from petitioner to a different nonpublic school.  Petitioner seeks a determination that the student is entitled to transportation to the nonpublic school for the 2021-2022 school year.

Respondent contends that the appeal must be dismissed, among other reasons, for lack of personal service.  On the merits, respondent contends that petitioner did not present a reasonable explanation for her late transportation request, which would impose additional costs on the district if granted.

The appeal must be dismissed for improper 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, petitioner’s affidavit of service reflects service on an individual identified as “receptionist.”  Respondent indicates that this individual’s title is “district registrar” and asserts that she is not authorized to accept service on behalf of the district.  Petitioner did not submit a reply or otherwise respond to this contention.  Accordingly, I am constrained to dismiss the appeal for improper service (see Appeal of M.C., 61 Ed Dept Rep, Decision No. 18,087).

Even if the appeal were not dismissed for improper service, 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 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).

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 acknowledges that her request for transportation was made on July 21, 2021, well after the June 24, 2021 deadline applicable to requests for the 2021-2022 school year.[1]  Petitioner suggests that the delay should be excused as the student was not accepted at the nonpublic school until August 2, 2021.  The Commissioner has consistently held, however, that a belated decision to enroll a child in a nonpublic school is not a reasonable explanation for the late submission of a transportation request (see., Appeal of Edelkopf, 58 Ed Dept Rep, Decision No. 17,570; Appeal of Jerome, 56 id, Decision No. 17,005; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  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 school district must grant a late transportation request if it can provide the requested transportation under existing transportation arrangements at no additional cost (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).  Where a late transportation request would result in additional cost, however, the district may deny such request.  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 asserts that it cannot provide the requested transportation under existing transportation arrangements at no additional cost.  Petitioner did not submit a reply or otherwise respond to this contention.  Accordingly, based on the record before me, I find that the requested transportation would entail additional costs and was therefore properly denied (Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,823).

Finally, petitioner’s assertion that respondent “provides transportation to another student who lives less than 1 mile from [her]” to a different school does not provide any basis for relief.  This allegation does not require respondent to establish a centralized pick-up point to the nonpublic school petitioner’s child attends (see Education Law § 3635 [1] [b]).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE