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Decision No. 13,835

Appeal of BEHROOZ EATEMADPOUR, on behalf of FARRAH (AKA "FARAH") R. EATEMADPOUR, from action of the Board of Education of the Scarsdale Union Free School District regarding residency.

Decision No. 13,835

(September 25, 1997)

Plunkett & Jaffe, P.C., attorneys for respondent, Marc E. Scharff, Esq. of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Scarsdale Union Free School District ("respondent") that his daughter is not a district resident for the purpose of attending its schools tuition free. The appeal must be dismissed.

In September 1995, petitioner’s brother, Khosro Eatemadpour, submitted an application to respondent’s district requesting admission of petitioner’s daughter, Farrah, to seventh grade. In the application, Khosro Eatemadpour stated that he had full custody of Farrah and that she lived with him at 138 Johnson Road, Scarsdale, within respondent’s district.

Shortly thereafter, district officials discovered that the school census form, submitted by petitioner’s other brother, Amir Eatemadpour, stated that he, his wife and two children lived at 138 Johnson Road, Scarsdale, and that Khosro Eatemadpour and Farrah were not listed as residents of that address. This information precipitated respondent's investigation into Farrah's residence. During the course of that investigation, district officials learned that Khosro Eatemadpour had been directed by the Edgemont Union Free School District, the district that Farrah attended immediately prior to enrolling in respondent's district, to remove Farrah from the Edgemont schools because they were residing at an address within the Greenburgh Central School District. Respondent contends that its subsequent investigation verified that Khosro Eatemadpour actually resided at 155 North Central Avenue, Hartsdale, within the Greenburgh Central School District. On September 25, 1996 and October 24, 1996, respondent's Assistant Superintendent for Personnel sent letters to Khosro Eatemadpour, informing him that Farrah and his son, who also attended the Scarsdale Middle School, were not residents of respondent’s district, and that they should be removed from the district’s schools and enrolled in the schools of the Greenburgh Central School District.

The district thereafter hired an investigator who conducted a surveillance of the Hartsdale address on January 14, 15, and 21, 1997. According to the surveillance report, an unidentified man, Farrah and Khosro Eatemadpour’s son left the house at 155 North Central Avenue, Hartsdale, on the mornings of January 14 and 15, 1997. Farrah was observed entering the house at that address in the late afternoon on both days. Khosro Eatemadpour’s son was also observed entering the house at that address in the late afternoon of January 14, 1997 and playing in the driveway at that address in the late afternoon of January 15, 1997. On the morning of January 21, 1997, an unidentified man and Khosro Eatemadpour’s son were seen leaving the same address, and the man was seen driving Khosro Eatemadpour’s son to the Scarsdale Middle School.

By letter dated January 30, 1997, respondent’s Assistant Superintendent for Personnel advised Khosro Eatemadpour that the district had determined that Farrah Eatemadpour and his son were not legal residents of the district and that they would be barred from attending the Scarsdale Middle School as of February 24, 1997. Petitioner met with respondent's Assistant Superintendent for Personnel on February 24, 1997, and stated that his daughter resided with his other brother Amir Eatemadpour at 138 Johnson Road, Scarsdale and not with Khosro Eatemadpour at that address. Petitioner provided no documentation to substantiate that claim.

Petitioner claims that his daughter is a resident of the Scarsdale Union Free School District and for the past several years has lived with his brother Amir Eatemadpour at his residence at 138 Johnson Road, Scarsdale. Respondent claims that petitioner’s daughter resides outside of the district and that petitioner has failed to provide any documentation that his daughter is a district resident.

As a preliminary matter, although not raised by petitioner, it appears that respondent failed to comply with the procedures required by 8 NYCRR "100.2(y). That section provides, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.

In this instance, respondent’s district advised Khosro Eatemadpour by letters dated September 25, 1996, October 24, 1996 and January 30, 1997, that petitioner’s daughter was not entitled to attend the district’s schools. However, the district did not provide Khosro Eatemadpour or petitioner an opportunity to submit information on the question of Farrah’s residency prior to making the determination that she was not entitled to attend the district’s schools. Petitioner was given the opportunity to meet with respondent’s Assistant Superintendent for Personnel after the determination was rendered, on February 24, 1997, and petitioner could have submitted information on the question of his child’s right to attend the district’s schools at that time. Because petitioner was given the opportunity to provide information on his daughter’s residency on February 24, 1997, I find the district’s procedural error to be harmless. However, I admonish the district to comply in the future with the procedures set forth in 8 NYCRR "100.2(y).

Respondent contends that the appeal is untimely. Section 275.16 of the Commissioner’s regulations requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause. Petitioner commenced this appeal on March 27, 1997, more than 30 days after the district’s January 30, 1997 final determination. However, the district mailed the January 30, 1997 letter of determination to 155 North Central Avenue, Hartsdale. Khosro Eatemadpour maintained that he resided at 138 Johnson Road, Scarsdale. The district’s previous correspondence sent to Khosro Eatemadpour at the Hartsdale address remained unclaimed. Consequently, a question exists as to whether Khosro Eatemadpour received the determination. Because of this question, the fact that respondent failed to provide petitioner with the opportunity to present his evidence in the manner required by regulation, and the brief duration of the delay, the interests of justice would not be served by dismissing this appeal as untimely.

Respondent contends that the petition is not sufficiently clear to advise the district of the nature of petitioner’s claim and the specific acts complained of. Section 275.10 of the Commissioner’s Regulations provides that a petition:

shall contain a clear and concise statement of petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner’s claim and of the specific acts complained of.

In this case, the petition is quite clear. Petitioner contends that his daughter is a resident of respondent’s district and that she is living with his brother Amir Eatemadpour at 138 Johnson Road, Scarsdale. Because respondent has failed to establish that it has been somehow prejudiced by the alleged inadequacy of the petition, I will not dismiss the appeal on that basis (Appeal of Brazile, et al., 35 Ed Dept Rep 456; Appeal of Rackley, 35 id. 5).

Turning to the merits, Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446). For the purposes of Education Law "3202(1), "residence" means "domicile" which is established by one’s physical presence and the intention to remain there permanently (Appeal of Doyle-Speicher-Maldonado, 35 Ed Dept Rep 110; Appeal of Cupid, 34 id. 609).

Based on its investigation, respondent’s district found that petitioner’s daughter did not reside within the district but resided at 155 North Central Avenue, Hartsdale. The district learned from Farrah’s previous school district that she lived with Khosro Eatemadpour in the Greenburgh Central School District. The district’s investigators surveilled the Hartsdale address, which is located in the Greenburgh Central School District, on three days in January 1997, and observed Farrah leaving that address on two mornings. She was observed entering the house at that address in the late afternoon on those days. The district maintains that the school census form submitted by Amir Eatemadpour, petitioner’s other brother, stated that he, his wife and two children resided at 155 North Central Ave., Scarsdale, the purported residence of Khosro Eatemadpour. Khosro Eatemadpour and Farrah were not listed as residents of that address, according to the district.

As against this evidence, petitioner offers only his statement that his daughter Farrah has lived for the past several years with his brother Amir Eatemadpour at his residence located at 138 Johnson Road, Scarsdale -- a statement that is in conflict with Farrah’s application for admission to the district, filed in September 1995 by Khosro Eatemadpour, which stated that Khosro Eatemadpour was Farrah’s guardian and that she resided with him at 138 Johnson Road, Scarsdale. Petitioner provides no explanation for this discrepancy. Petitioner does not offer an explanation for the results of the district’s surveillance, which found petitioner’s daughter leaving the house at 155 North Central Avenue, Hartsdale on the mornings of January 14, and 15, 1997 and returning to the house in the late afternoon. Petitioner provides no documentation to substantiate his claim that Amir Eatemadpour is the true guardian of his daughter, or that he has relinquished custody and control of his daughter to Amir Eatemadpour, or that his daughter is in fact residing permanently in Amir Eatemadpour’s household at 138 Johnson Road, Scarsdale. In addition, petitioner’s involvement in this case indicates that he is still making decisions concerning his daughter, calling into question his claim that he has in fact relinquished custody and control.

The evidence before me is insufficient to conclude that respondent acted arbitrarily or capriciously in determining that petitioner’s daughter is not a resident of the district. The results of the district’s investigation and surveillance and petitioner’s total lack of documentation of his daughter’s residence support the district’s determination. Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that a student is not a resident of the district, the determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep , Decision No. 13795, dated July 24, 1997); Appeal of Steinberg, 36 Ed Dept Rep 65). On this record, I cannot find that respondent acted arbitrarily or capriciously by determining that petitioner's daughter did not reside in this district.

THE APPEAL IS DISMISSED.

END OF FILE.