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Decision No. 16,028

Application to reopen the Appeals of J.A., on behalf of his children, from action of the Board of Education of the Levittown Union Free School District, Principal Joanne Wallace and Lynn Dionisio, regarding educational placement.

Decision No. 16,028

(February 10, 2010)

Ingerman Smith, LLP, attorneys for respondents, Jonathan Heidelberger, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks to reopen the Appeals of J.A., 49 Ed Dept Rep ____, Decision No. 15,987, which dismissed petitioner’s challenge to the decision of the Board of Education of the Levittown Union Free School District (“board”), elementary school principal Joanne Wallace (“Wallace”) and kindergarten teacher Lynn Dionisio (“Dionisio”) (collectively “respondents”), that his twins be placed in separate classes for the 2008-2009 school year.  The application must be denied.

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).

Petitioner contends that the decision should be reopened because the Commissioner incorrectly determined the matter to be moot.  He relies on two previous Commissioner’s decisions involving educational placements (Appeal of S.T., 41 Ed Dept Rep 348, Decision No. 14,709 and Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680).  Petitioner’s reliance on these decisions is misplaced.  In both cases, the school year, and thus the educational placement for that school year had not ended when the Commissioner’s decision was rendered.  In contrast, in the appeals petitioner seeks to reopen, the relief sought related to his children’s placement during the 2008-2009 school year, which had already ended at the time the Commissioner’s decision was rendered and the record did not address the subsequent year’s placement.  Hence, petitioner’s appeals are moot.

Petitioner also asserts that the Commissioner’s finding that petitioner did not cite to specific legal authority requiring respondents to consider the guidelines issued by the New York Association of School Psychologists (“NYSAP”), the Educational Resources Information Center (“ERIC”) and the National Association of Elementary School Principals (“NAESP”) pertaining to the class placement of twins, is wrong.  However, petitioner has not demonstrated that the decision was rendered under a misapprehension of fact nor has he presented new material evidence that was not available at the time the decision was made.  Petitioner is essentially rearguing his original appeals because he disagrees with the outcome.  Reargument of the issues presented in a prior appeal is not an adequate basis for reopening that appeal (Application to reopen the Appeal of T.L. and W.L., 47 Ed Dept Rep 123, Decision No. 15,647; Application to reopen the Appeal of Kushner, 44 id. 116, Decision No. 15,116).

THE APPLICATION TO REOPEN THE APPEALS IS DENIED.

END OF FILE.