Application to reopen the Appeal of J.S., on behalf of his daughter A.S., from action of the Board of Education of the City School District of the City of Albany regarding the Dignity for All Students Act.

Decision No. 17,548

(December 7, 2018)

Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks to reopen Appeal of J.S. (58 Ed Dept Rep, Decision No. 17,509) which appealed a determination by the Board of Education of the City School District of the City of Albany (“respondent”) that certain actions against his daughter (“the student”) did not constitute bullying or harassment pursuant to the Dignity for All Students Act (“DASA,” Education Law, Article 2).  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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).  The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (8 NYCRR §276.8[a]; see Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395).

In the application, petitioner states that he seeks to reopen the decision “for the purpose of making limited clarifications or corrections based on a misapprehension of facts.”  Appeal of J.S. (58 Ed Dept Rep, Decision No. 17,509) was dismissed, in part, as moot because both petitioner’s daughter and the classmate who engaged in the alleged bullying and harassment had graduated from respondent’s district after the appeal was commenced but prior to issuance of my decision.  Petitioner’s remaining claims in that appeal were dismissed because his requests for relief were outside of my jurisdiction in an appeal pursuant to Education Law §310 and because he failed to carry his burden of proof with respect to his request that I direct the district to implement a DASA education and awareness program.  The alleged factual errors and omissions identified by petitioner in the instant application, even if true, are not relevant to the factual findings and reasoning supporting my determination that the appeal was subject to dismissal as moot, as outside of my jurisdiction and for lack of proof (see Application to Reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314).  Therefore, petitioner has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR §276.8.

THE APPLICATION IS DENIED.

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