Application to reopen the Appeal of C.B., on behalf of her son D.B., from action of the Board of Education of the Sachem Central School District regarding student discipline.

Decision No. 17,896

(August 6, 2020)

Robinson & Associates, P.C., attorneys for petitioner, Kenneth L. Robinson, Esq., of counsel.

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner seeks to reopen Appeal of C.B. (59 Ed Dept Rep, Decision No. 17,840), which dismissed in part her appeal from a determination by the Board of Education of the Sachem Central School District (“respondent”) to suspend her son D.B. (“the student”).  The application must be denied.

During the 2019-2020 school year, the student attended respondent’s high school and was disciplined for misconduct which resulted in a three day in-school suspension and a two day out-of-school suspension.  In Appeal of C.B. (59 Ed Dept Rep, Decision No. 17,840), the Commissioner sustained petitioner’s request for expungement of the student’s short-term suspension and denied her request for expungement of the student’s in-school suspension.

Petitioner requests that the decision be reopened, arguing that respondent did not provide her with required notice of the suspension and that there was no evidence that the student’s continued presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  She further argues that respondent’s code of conduct states that discipline will be progressive and that, at the time of the suspension, the student had not been subject to any prior disciplinary actions.  Finally, petitioner argues that “all students have been severely impacted by the disruptions to the educational system caused by the COVID-19 pandemic” and that “in the interests of justice and fairness, the in school suspension should be reversed and removed from [the student’s] records.”

Respondent contends that the application should be denied because petitioner has not satisfied the standard for reopening a prior decision of the Commissioner.  Respondent argues that, despite petitioner’s allegation that the decision was rendered under a misapprehension of the facts, petitioner’s application only restates arguments in the original appeal and fails to allege that there is new and material evidence that was not available at the time the decision was made.

I must first address a procedural matter.  By letter dated June 23, 2020, petitioner requested that I accept said letter in response to respondent’s affirmation in opposition to the application to reopen.  Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It provides that after an application is filed, affidavits in opposition to an application to reopen may be submitted by any party opposing such application (8 NYCRR §276.8[b]).  While the regulation does not provide for submission of any other pleadings or supporting papers, the Commissioner may, in her discretion, accept additional affidavits, exhibits and other supporting papers into the record (8 NYCRR §276.5(a)).  In my discretion, I have accepted this letter into the record.

Turning to the merits, section 276.8 provides that 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 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).

Petitioner has failed to meet the standard for reopening the underlying appeal.  In essence, petitioner re-argues an issue presented in the prior appeal; namely, that that the due process procedures applicable to out-of-school suspensions should apply to in-school suspensions.  Additionally, contrary to petitioner’s assertions, the COVID-19 pandemic provides no basis to expunge the student’s in-school suspension, which was imposed and served in October 2019.  Petitioner’s remaining contentions restate arguments that she made in the underlying appeal.  Petitioner has not alleged, nor does the application contain, new material evidence that was not available at the time the decision was made, or that there was any misapprehension of fact.  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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