Application to reopen the Appeal of HEATHER MAIO, on behalf of her child EVALYNN DEAN, from action of the Board of Education of the Elmira City School District and the Schuyler-Steuben-Chemung-Tioga-Allegheny BOCES regarding dual enrollment.

Application to reopen the Appeal of ELIZABETH BRAND, on behalf of her child OLIVIA MURRAY, from action of the Board of Education of the Elmira City School District and the Schuyler-Steuben-Chemung-Tioga-Allegheny BOCES regarding dual enrollment.

Decision No. 17,925

(September 29, 2020)

Cooper, Pautz, Weiermiller & Daubner LLP, attorneys for petitioners, Scott J. Pautz, Esq., of counsel

The Law Firm of Frank W. Miller, attorneys for respondent Board of Education of the Elmira City School District, Frank W. Miller, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent Schuyler-Steuben-Chemung-Tioga-Allegany BOCES, John P. Lynch, Esq., of counsel

Rosa., Interim Commissioner.--Petitioners seek to reopen Appeals of Maio and Brand (59 Ed Dept Rep, Decision No. 17,776), a consolidated decision resolving two appeals from determinations of the Board of Education of the City School District of the City of Elmira (“Elmira”) and the Schuyler-Steuben-Chemung-Tioga-Allegheny BOCES (“BOCES”) to deny petitioner’s children (“the students”) admission to the New Visions program at the BOCES as dually enrolled students.  Because these separate applications present similar issues of fact and law, they are consolidated for decision.  The applications 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 J.S., 58 Ed Dept Rep, Decision No. 17,548; Application to reopen the Appeal of a Student with a Disability, 57 id., 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 Appeals of Maio and Brand (59 Ed Dept Rep, Decision No. 17,776), the Commissioner held that petitioners had not met their burden of proving that the New Visions program is a “career education” program within the meaning of Education Law §3602-c(1)(c).  As stated in the underlying decision, “[t]he statute specifically excludes ‘any program to prepare pupils for employment in occupations which generally are considered professional or which require a baccalaureate or higher degree’ from the definition of career education” (Appeals of Maio and Brand, 59 Ed Dept Rep, Decision No. 17,776, quoting Education Law §3602-c[1][c]).

In their applications, petitioners argue that language in the underlying decision “implies that the Commissioner’s ultimate decision to dismiss the [p]etition[s] may have been different had [p]etitioner[s] argued that New Visions fit within the purview of gifted education under Section 3602-c(1)(a) of the New York Education Law” and that they did, in fact, so argue in their reply memorandum of law.  Petitioners assert that the decision was therefore “rendered under a misapprehension as to the facts” because the Commissioner failed to consider their argument.

Respondents Elmira and BOCES both argue that the underlying appeals should not be reopened because petitioners have failed to meet their burden of establishing that the original decision was rendered under a misapprehension of fact or that there is new, material evidence that was not available at the time the decision was made.

Petitioners have failed to demonstrate 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.  Initially, petitioners’ argument that the Commissioner did not duly consider one of their contentions in rending the original decision is not a “fact” within the meaning of 8 NYCRR §276.8 (Application to reopen the Appeal of R.L., 58 Ed Dept Rep, Decision No. 17,427; compare Matter of Application to Reopen Appeal of Irving, et al., 14 id. 42, Decision No. 8,857 [appeal reopened where, contrary to finding in original appeal, petition contained notice required by Commissioner’s regulation §277.1]).  Therefore, petitioners have not established that the original decision was rendered under a misapprehension of fact, and their request that I reconsider the argument raised in their reply memorandum of law instead amounts to a request to re-argue the merits of the appeal, which is not a valid ground for reopening (Application to reopen the Appeals of J.A., 49 Ed Dept Rep 287, Decision No. 16,028).

In any event, the Commissioner did not err by refusing to consider petitioners’ improperly raised argument.  While petitioners correctly point out that they argued in a reply memorandum of law that the program in question was either a permissible career and technical program or a program for “gifted students” under Education Law §3602-c, the Commissioner explicitly rejected those portions of the memorandum of law containing new allegations.  As the Commissioner indicated in the decision, “[a] memorandum of law should consist of arguments of law” and “may not be used to add belated assertions or exhibits that are not part of the pleadings” (Appeals of Maio and Brand, 59 Ed Dept Rep, Decision No. 17,776, citing 8 NYCRR §276.4 [a party may submit a memorandum of law “consisting of the parties’ arguments of law”]; Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  It would have been inequitable to allow petitioners to present a new legal theory for the first time in a reply memorandum of law, at a point in the proceedings when respondents had no opportunity to respond to it.

Therefore, on this record, petitioners have not met their burden of establishing 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 (see Application to reopen the Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,396; Application to reopen the Appeal of a Student with a Disability, 57 id., Decision No. 17,314).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPLICATIONS ARE DENIED.

END OF FILE