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Decision No. 12,834

Application to reopen the appeal of IRENE H. IMPELLIZZERI and MICHAEL J. PETRIDES from action of Joseph H. Fernandez and the Board of Education of the City School District of the City of New York, regarding AIDS instruction.

Decision No. 12,834

(November 13, 1992)

John D. Murnane, Esq., and John D. Hartigan, Esq., attorneys for petitioners

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondents, Paul Marks, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen Decision No. 12745, dated July 9, 1992 (32 Ed Dept Rep 26). Petitioners contend that the decision was rendered under a misapprehension of fact and that there is new evidence which was not available at the time the original decision was made. The application must be denied.

An application to reopen an appeal is governed by 8 NYCRR '276.8, which provides: "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 decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made." Application of Coleman, 31 Ed Dept Rep 211; Application of Burke, 28 id. 205. An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Ferris, 30 id. 444; Appeal of Burke, supra).

In the original appeal, petitioners contended, among other things, that the proposed HIV/AIDS curriculum developed by respondent Fernandez violates regulations of the Commissioner of Education because it stresses safe sex as a means of avoiding AIDS, rather than stressing abstinence. They also contended that the curriculum failed to disclose fully and clearly the danger of condom failure and anal intercourse. Petitioners further maintained that respondents' condom availability plan for high school students violated '135.3(c)(2)(ii)(c) and (d) of the regulations of the Commissioner because it did not ensure that pupils given condoms would receive adequate guidance by competent health care professionals based on their individual needs. The original appeal was dismissed as moot because the proposed curriculum challenged by petitioners was amended by respondents and no longer existed in the form in which it was written when the appeal was commenced in September 1991. In addition, the sections of the regulations of the Commissioner cited by the petitioners as being violated by the condom availability plan were amended after the appeal was filed, and petitioners did not claim that the plan violated the amended regulations.

In this application to reopen the appeal, petitioners do not argue that they challenged the revised curriculum in their original appeal or that they claimed in that appeal that the condom availability plan violated the regulations, as amended. Instead, petitioners simply reargue several issues presented in the original appeal, i.e., whether the proposed curriculum fully discloses the danger of condom failure and anal intercourse and whether students who receive condoms are provided with complete personal health guidance. Mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application of Gordon, 29 Ed Dept Rep 417; Application of Macchia, 29 id. 314; Application of Burke, supra). In addition, petitioners' contentions do not contradict my original determination that, in light of the fact that the proposed curriculum and the pertinent regulations have been amended, the issues raised by petitioners are now moot. Accordingly, petitioners have failed to show that the original determination was rendered under a misapprehension of fact.

Petitioners maintain that the appeal should be reopened because they have new and material evidence which was not available at the time the original decision was made. The new material offered is an exchange of memoranda between petitioner Impellizzeri and respondent Fernandez which merely reargues some of the issues presented in the appeal. Arguably, such "evidence" may be new, but it is not material and is not a basis for reopening the appeal.