Decision No. 14,137

(May 28, 1999)

MILLS, Commissioner.--Petitioner appeals the refusal by the Board of Education of the Cuba-Rushford Central School District ("respondent") to transport her daughter to a nonpublic school. The appeal must be sustained.

Petitioner and her daughter are residents of respondent’s school district. By letter dated March 27, 1998 petitioner requested that respondent provide transportation for her daughter to Southern Tier Catholic School ("Southern Tier"), a nonpublic school in Olean, New York. At respondent’s April 21, 1998 board meeting, Superintendent Bruce Inglis told petitioner that he had driven the route and found the distance to be 15.1 miles to the school from petitioner’s home and 15.3 or 15.4 miles on the return trip. By letter dated April 27, 1998, respondent's superintendent informed petitioner that respondent had denied her transportation request. Petitioner commenced this appeal on May 19, 1998. She requests that respondent measure the route in a calibrated vehicle and that petitioner, her husband, or some other impartial party be present at the time the mileage is measured.

Petitioner contends that she and her husband drove the route from their home to Southern Tier on four different occasions, using four different vehicles. The distances petitioner measured on each trip were, 14.75, 14.8, 14.8, and 14.85 miles. Accordingly, petitioner requests that respondent measure the route in a calibrated vehicle.

Respondent has not submitted an answer to the petition pursuant to 8 NYCRR ""275.12 and 275.13 despite personal service and a letter from my Office of Counsel informing respondent that its answer was late and advising of the consequences of failing to submit an answer. Accordingly, the factual allegations set forth in the petition are deemed to be true statements that have been admitted by respondent (8 NYCRR "275.11; Appeal of O’Bomsawin, 37 Ed Dept Rep 554; Appeal of T.B., 35 id. 408). In addition, although respondent’s superintendent submitted correspondence relating to this appeal, such correspondence was not submitted in accordance with "276.5 of the Commissioner’s regulations and therefore is not part of the record and will not be considered in this appeal.

Respondent’s failure to submit an answer compels me to sustain this appeal. Pursuant to Education Law "3635(1), a board of education is required to provide transportation to students residing in the district provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route from home to school. A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor to make such measurements with the accuracy of a professional survey (Appeal of Ameri, 37 Ed Dept Rep 652; Appeal of Jagoda, 34 id. 154; Appeal of Shah, 31 id. 312; Appeal of Taylor, 26 id. 228). Thus, a school district may use a calibrated odometer to measure distance (Appeal of Taylor, supra). However, due to respondent’s failure to answer I must deem all the factual allegations set forth in the petition to be true. Petitioner claims that the mileage was either 14.75, 14.8 or 14.85 miles from her home to the nonpublic school. There is nothing in the record before me to challenge these measurements. Even the letter sent to petitioner denying her request for transportation does not mention how the distance from petitioner’s home to the school was measured, or what respondent’s measurements were. It simply states that the nonpublic school is beyond the 15-mile limit prescribed by the Education Law. Since there is nothing in the record, to explain whether respondent measured the distance with a properly calibrated odometer or other measuring device, I am constrained to sustain the appeal.

In light of this disposition, I remind respondent of its responsibility to submit an answer pursuant to ""275.12 and 275.13 of the Commissioner's regulations when it is named as a respondent in any future appeals.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent's determination that the distance between petitioner's residence and the Southern Tier Catholic School exceeds 15 miles be set aside and that the matter be remanded to respondent; and

IT IS FURTHER ORDERED that, on remand, respondent measure the route from petitioner’s home to the Southern Tier Catholic School, using a vehicle with a calibrated odometer or other properly calibrated measuring device.

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