Appeal of T.A., on behalf of his child, from action of the Board of Education of the Valley Stream Union Free School District No. 13 regarding transportation.

Decision No. 18,367

(January 8, 2024)

Guercio & Guercio, LLP, attorneys for respondent, Christopher W. Shishko, and Jared Sanders, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Union Free School District No. 13 (“respondent”) denying his child (the “student”) transportation to a nonpublic school for the 2023-2024 school year.  The appeal must be dismissed. 

Petitioner and the student reside in respondent’s district.  During the 2022-2023 school year, respondent transported the student to the nonpublic school.  By email dated May 13, 2023, petitioner requested that respondent transport the student to the same nonpublic school for the 2023-2024 school year.  Petitioner acknowledged that the request was untimely but explained that it was due to his spouse traveling abroad to care for a sick family member.

By email dated May 15, 2023, respondent’s assistant business administrator advised petitioner that respondent was unable “to process any applications after the deadline.”[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on June 7, 2023.

Petitioner contends that he presented a reasonable excuse for his untimely transportation application.  He requests transportation to the nonpublic school for the 2023-2024 school year.

Respondent contends that the appeal must be dismissed for improper service.  On the merits, respondent argues that petitioner did not present a reasonable excuse for the late request and, further, that providing such transportation would impose additional costs.

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).

Respondent argues that the petition was served on a staff member employed by a third-party who thus was not authorized to receive 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 Lang, 62 Ed Dept Rep, Decision No. 18,164; Appeal of M.C., 61 id., Decision No. 18,087).

Even if the appeal were not dismissed on procedural grounds, 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).

While petitioner has presented a plausible explanation as to why his spouse was unable to submit a timely request, “there is no evidence that petitioner ... was similarly constrained” (Appeal of V.G. and J.G., 62 Ed Dept Rep, Decision No. 18,148; see generally Appeal of Vigliotta, 40 id. 344, Decision No. 14,493).  The family circumstances he describes, therefore, do not excuse his failure to make a timely transportation request (Appeal of Abrams, 50 Ed Dept Rep, Decision No. 16,120; Appeal of S.W and D.W., 49 id. 67, Decision No. 15,960; Appeal of Haiimpour, 47 id. 46, Decision No. 15,621).

Moreover, respondent’s assistant superintendent for business and finance asserts, which petitioner does not dispute, that transporting the student would cost over $850 per month pursuant to the applicable transportation contract.  As such, petitioner has failed to meet his burden of proof (Appeal of Simonetti, 63 Ed Dept Rep, Decision No. 18,301).

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

THE APPEAL IS DISMISSED. 

END OF FILE