Application to reopen the Appeal of B.M., on behalf of his daughter R.M., from action of the New York City Department of Education regarding educational placement.

Decision No. 15,998

(October 26, 2009)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Michael Suarez, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks to reopen Appeal of B.M. (48 Ed Dept Rep 302, Decision No. 15,866), which dismissed petitioner’s challenge to respondent’s middle school selection process.  The application must be granted in part, and on reopening, the appeal must be dismissed.

The facts of this application are stated in Appeal of B.M. (48 Ed Dept Rep 302, Decision No. 15,866) and will not be repeated here.  In that appeal, petitioner argued that respondent’s middle school selection process was arbitrary and capricious and requested that R.M. be admitted to the middle school of her choice, New York City Lab Middle School for Collaborative Studies.

In the decision, the Commissioner determined that petitioner had not met his burden of demonstrating that the middle school selection process on its face, or as administered by respondent, was arbitrary or capricious and dismissed the appeal. 

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395; Application to reopen the Appeal of Johnson, 45 id. 275, Decision No. 15,320).

In this application, petitioner raises three alleged omissions, which he contends impact the outcome of the prior decision.

First, petitioner argues that the decision stated that his daughter’s second choice school "filled its entering class with students who selected the school as their first choice,” but that the affidavit of the school's principal stated that "most of the seats in the entering class are filled during the first round of the admissions process."  I agree that the original decision mischaracterized the principal’s statement and the decision is modified accordingly.  In fact, according to respondent, R.M. was considered for admission during the second round, but was not selected for one of the few remaining seats.     This, however, does not change the ultimate determination that petitioner failed to prove that respondent’s selection process is arbitrary or capricious or that his daughter should be admitted to her first choice school.

In addition, petitioner argues that the decision omitted the fact that students were selected for admission to R.M.’s third choice school from applicants who listed it as their third and fourth choices, as well as through additional placements by respondent.  According to respondent, 95% of the students are selected from students who listed the school as their first or second choice and who took the entrance examination, and 5% are evaluated for admission based on their school records and overall performance.  While these details were not recited in the prior decision, consideration of them does not change the outcome of the prior decision. 

Finally, petitioner argues that the Commissioner failed to consider respondent’s alleged policy that middle schools “consider all students who choose the school first and second as the same."  Petitioner argues that R.M.’s second choice school violated the district’s policy by excluding R.M. from the admissions process.  There is no indication that such a district-wide policy exists.  Thus, I do not find a misapprehension of fact based on this alleged omission.  In addition, as explained above, R.M. was considered for her second choice school, but was not selected.

THE APPLICATION TO REOPEN IS GRANTED IN PART.

IT IS ORDERED that Decision No. 15,866 is reopened and modified to the extent indicated above; and

IT IS FURTHER ORDERED that petitioner’s appeal is dismissed.

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