Appeal of MATTHEW WILSON, on behalf of his child, from action of the Board of Education of the Farmingdale Union Free School District regarding transportation.

Decision No. 18,254

(March 22, 2023)

Law Office of Chad J. LaVeglia, PLLC, attorney for petitioner, Chad J. LaVeglia, Esq., of counsel

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

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Farmingdale Union Free School District (“respondent”) denying his child (the “student”) transportation to a nonpublic school for the 2022-2023 school year.  This appeal must be dismissed.

Petitioner and the student reside in respondent’s district.  Soon after the 2022-2023 school year began, petitioner withdrew the student from respondent’s schools and enrolled her in a nonpublic school.  On October 6, 2022, the student’s mother requested transportation to the nonpublic school for the 2022-2023 school year.

By letter dated October 7, 2022, respondent denied this request, reasoning that petitioner did not offer a reasonable excuse for the delay and that granting the request would result in additional cost to respondent.  This appeal ensued.

Petitioner contends that his submission of the transportation request six months after the statutory deadline was reasonable because his family submitted the request shortly after the student was admitted to the nonpublic school.  Petitioner seeks transportation on a prospective basis as well as reimbursement for the expenses that he has already incurred.

Respondent argues, among other things, that the petition must be dismissed because there was no reasonable excuse for the untimely transportation request.  Respondent further asserts that the requested transportation would result in significant cost.

Pursuant to Education Law § 3635 (2), a parent or guardian must submit a written request for transportation no later than the first day of April preceding the school year for which transportation is sought or, if the parent or guardian did not reside in the district as of April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable 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 request for transportation as late 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 or guardian 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).  A belated decision to enroll a child in a nonpublic 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).  On appeal, the Commissioner will not set aside the board’s determination 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).

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).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

It is undisputed that the transportation request was submitted six months after the April 1 deadline.  Accordingly, respondent could only grant this request if petitioner offered a reasonable explanation for the delay or if the transportation could be provided at no additional cost.  Petitioner has failed to prove either of these conditions.

First, petitioner argues that his explanation should have been accepted because he did not know until the beginning of the 2022-2023 school year that the student was gifted and required the kind of learning environment provided by the nonpublic school.  As noted above, numerous Commissioner's decisions have held that a belated decision to enroll a student in a nonpublic school does not constitute a reasonable excuse for failure to submit a timely transportation request.  This includes a parent’s determination that a nonpublic school would better suit a child’s needs (Appeal of Sarant, 41 id. 70, Decision No. 14,617; Appeal of McNair, 33 id. 419, Decision No. 13,098).  Therefore, petitioner has not established a reasonable explanation for the late request.

Additionally, the record reflects that providing transportation to the student would result in significant cost to the district.  Respondent estimates, which petitioner does not refute, that providing transportation to the nonpublic school for the 2022-2023 school year would cost approximately $48,000 because the district does not already provide transportation to the nonpublic school in question.  Under these circumstances, respondent’s denial of petitioner’s late transportation request was neither arbitrary nor capricious (see Appeal of Dumerlin, 59 Ed Dept Rep, Decision No. 17,756; Appeal of R.O., 40 id. 137, Decision No. 14,441).

Finally, as to petitioner’s request for reimbursement for transportation costs, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law § 310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE