Decision No. 17,074
Application to reopen the Appeal of T.A. and J.A, on behalf of their daughter C.A., from actions of the Board of Education of the Oyster Bay–East Norwich Central School District regarding class ranking.
Decision No. 17,074
(April 14, 2017)
Law Office of Michael A. Markowitz, P.C., attorney for petitioners, Michael A. Markowitz, Esq., of counsel
Frazer & Feldman, LLP, attorneys for respondent, James H. Pyun, Esq., of counsel
ELIA, Commissioner.--Petitioners T.A. and J.A. seek to reopen Appeal of T.A. and J.A. (54 Ed Dept Rep, Decision No. 16,781) which dismissed their challenge to the Board of Education of the Oyster Bay – East Norwich Central School District’s (“respondent”) method of determining grade point averages (“GPA”) for purposes of establishing class rank. 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 (Application to reopen the Appeal of Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911; Application to reopen the Appeal of Zulawski, 47 id. 191, Decision No. 15,664).
I must first address respondent’s contention that petitioners’ application to reopen was not properly served. Pursuant to §276.8(b) of the Commissioner’s regulations, an application to reopen shall be made in accordance with §275.8(b), which requires that that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (see Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335). Here, while the record contains evidence indicating that the application was served on the district, there is no evidence that it was served on respondent’s attorney as required by the regulation. Therefore, the application was not properly served and must be denied.
Even if the application were not denied for improper service, petitioners have not established any basis for reopening the prior decision. As noted above, §276.8 of the Commissioner’s regulations provides that applications to reopen 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 which was not available at the time the decision was made. Petitioners have not made the requisite showing here.
Petitioners’ appeal was dismissed for their failure to join the class valedictorian as a necessary party. In their application to reopen, petitioners have offered no response in this regard and submit no evidence that the decision to dismiss the appeal for failure to join a necessary party 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. The Commissioner has previously denied an application to reopen an appeal where petitioner failed to join a necessary party in the original appeal and offered no “justifiable excuse” therefor in his application to reopen (Application to reopen the Appeal of Aarseth, 33 Ed Dept Rep 226, Decision No. 13,033). Accordingly, petitioners have presented no basis upon which to reopen the appeal.
Rather, in their application, petitioners attempt to reargue the merits of the appeal, wherein I noted in dicta that petitioners had failed to meet their burden of proof and that the district’s method of determining class rank was reasonable. Petitioners essentially reassert the position presented in their original appeal that the valedictorian was unfairly advantaged by being allowed to take AP World History in ninth grade without satisfying the course prerequisite even though, as they allege in both their original appeal and their application, there are no exceptions to the prerequisite rule, and that this opportunity was not afforded to C.A. or any other student. However, petitioners present no new and material evidence in regard to their contentions that was not previously available. For example, petitioners submit respondent’s policy 7220, which was introduced by petitioners as an exhibit to their original petition in this matter and is not new evidence.
Petitioners also submit excerpts from respondent’s 2015-2016 course handbook to support their claim that respondent changed its policy as a result of their appeal. However, even assuming, arguendo, that respondent did change its policy as a result of this appeal, any such change was implemented after C.A.’s graduation and is not material to the issues presented herein and does not provide a basis for reopening.
In addition, petitioners had the burden to present all of the evidence and arguments at the time of their original appeal (Application to reopen the Appeal of Goldstein, 29 Ed Dept Rep 329, Decision No. 12,311). The facts upon which a reopening will be granted are not merely facts which are “new” to the petitioner, but they must not have been previously discoverable (Application to reopen the Appeal of Goldstein, 29 Ed Dept Rep 329, Decision No. 12,311). Here, petitioners submit a July 2015 affidavit from the parent of a student who petitioners allege was adversely affected by application of respondent’s GPA policy in the fall of 2013 when her final GPA was calculated. Petitioners provide no explanation as to why this information was not submitted with their appeal or how the allegations made in the affidavit, which relate to extra weighting for a college French course, are material to this matter. Petitioners also submit an attorney affirmation dated June 23, 2015; however, they do not explain why the information contained therein, which relates to the 2011-2012 school year, was not previously available to them. Finally, other than their claim that the class lists submitted herein were not received (pursuant to a Freedom of Information Law request) until after their appeal was commenced, petitioners do not explain how such lists, which relate to the 2006-2007 through 2010-2011 school years, constitute new and material evidence that was not previously available.
I find that petitioners’ application to reopen consists of attempts to augment previously undeveloped factual assertions and arguments, to advance new legal arguments, and to reargue certain issues presented in their appeal. It is well-settled that these are not bases for reopening an appeal (Application to reopen the Appeal of Wolff, 52 Ed Dept Rep, Decision No. 16,391; Application to reopen the Appeal of Thomas, 51 Ed Dept Rep, Decision No. 16,322).
THE APPLICATION IS DENIED.
END OF FILE