Appeal of AVIVA SMUS, on behalf of her child, from action of the Board of Education of the West Hempstead Union Free School District regarding transportation.

Decision No. 18,527

(November 25, 2024)

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

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the West Hempstead Union Free School District (“respondent”) denying transportation for her child to a nonpublic school.  The appeal must be dismissed.

On March 28, 2024, petitioner requested transportation for her child (“the student”) to a nonpublic school.  Then, on May 6, 2024, petitioner submitted a request to a different nonpublic school.  Respondent’s transportation director denied the request because it was submitted after the April 1 deadline and would present an additional cost.  Petitioner appealed this determination to respondent, which affirmed the transportation director.  This appeal ensued.

Petitioner claims that she enrolled the student in the second non-public school because the student received a diagnosis of ADHD after the April 1 deadline.  Petitioner further asserts that the student was bullied and harassed at a school she previously attended.  While she acknowledges that the requested transportation would cost additional money, she indicates she “is willing to pay the incremental cost.”

Respondent asserts that its decision was reasonable, as petitioner did not provide a reasonable explanation for the late request and it would impose additional costs for the district.

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).  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).

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).

Petitioner has not demonstrated that respondent abused its discretion in denying her late transportation request.  It is well settled 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 (Appeal of Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Although petitioner previously submitted a timely application, this is irrelevant for purposes of analyzing her late application to a different nonpublic school (Appeal of Litton, 47 Ed Dept Rep 277, Decision No. 15,695, 279).  Petitioner has not submitted any proof concerning the student’s diagnosis or the extent of any alleged bullying or harassment.  However, even assuming the record contained such proof, the Commissioner has previously rejected similar contentions as insufficient to excuse a late transportation request (Appeal of Hollander, 59 Ed Dept Rep, Decision No. 17,849).

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 upheld 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).

Here, respondent asserts, and petitioner does not refute, that granting the transportation request would cost the district $1,000 per month.  While petitioner offered to pay these costs, school districts are “not obligated to assume the potential complications connected with accepting [a] promise to reimburse it for transportation costs” (Appeal of Saxby, 57 Ed Dept Rep, Decision No. 17,185).  “Inherent in such an arrangement is the risk that the district will incur costs in the first instance and, if payment is not forthcoming, be forced to assume the duties of a collection agency or become saddled with additional debt” (id.).  Therefore, I find that respondent did not act arbitrarily by denying petitioner’s request (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295).

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

THE APPEAL IS DISMISSED.

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