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Decision No. 12,764

Application to reopen the appeal of NATHAN DASHE, on behalf of Michael Dashe and Marcus Dashe, from action of the Board of Education of the Sewanhaka Central High School District regarding student residency.

Decision No. 12,764

(July 29, 1992)

Graynor & Graynor, Esqs., attorneys for petitioner, Andrew D. Graynor, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent

SHELDON, Acting Commissioner.--This is an application by respondent, the Board of Education of the Sewanhaka Central High School District, to reopen Appeal of Dashe, 31 Ed Dept Rep 195, which sustained in part petitioner's appeal from respondent's determination that petitioner's two sons were not residents of respondent's school district, annulled the decision of the impartial hearing officer and remanded the matter for a hearing. Respondent contends that the Dashe decision was based upon a misapprehension as to the facts and that there is now new material and evidence which I should consider that was previously unavailable. The application must be denied.

Applications for reopening are governed by 8 NYCRR '276.8. That regulation provides in pertinent part:

Applications for reopening are addressed solely to the discretion of the commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.

In Appeal of Dashe, supra, the Commissioner found that respondent's policy was to provide parents or persons claiming custodial relationships with a "full due process hearing" to determine student residency, including the opportunity for counsel to present evidence and cross-examine district witnesses.

The Commissioner further found that, having given parents the right to an evidentiary due process hearing, respondent was bound by its own policy and must assure that hearings are conducted before a neutral factfinder and comport with due process. Since the record indicated that the hearing officer was not neutral, but instead actively presented the school district's case against petitioner, the Commissioner remanded for a rehearing before a neutral hearing officer.

Respondent now introduces evidence of the district's regulation pursuant to which the hearings were conducted. That regulation was not a part of the record before the Commissioner in the original appeal. Respondent contends that the decision being challenged was based upon an erroneous interpretation of the term "due process" rather than the actual written procedures followed by the school district.

I find respondent's contentions unpersuasive. In paragraph 5 of the April 12, 1991 affidavit of respondent's superintendent of schools, submitted in the original appeal, the superintendent avers: "Pursuant to Board policy, the Sewanhaka District [sic] currently provides parents or persons claiming custodial relationships with a full due process hearing." [emphasis added]. While respondent characterizes his application to reopen as based, in part, on new material and evidence not previously available, respondent offers no reason why the regulation could not have been submitted in the original appeal to clarify the superintendent's statement.

In any event, even after examining the regulation, I find no reason to reopen the appeal. The regulation provides that appeals of residency determinations shall be directed to an "Impartial Hearing Officer" at a specified address. I find nothing in the remaining language of respondent's regulation to indicate that some meaning other than the common understanding of the term "impartial hearing officer" as a neutral factfinder is intended by the use of such term. As established in the original appeal, the hearing officer did not conduct the hearing in an impartial manner, as a neutral fact finder, but instead actively presented the school district's case against the petitioner. Therefore, as indicated in the original decision, the matter must be remanded for a rehearing before a neutral hearing officer. Said hearing should be scheduled expeditiously.

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE