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Decision No. 12,917

Application to reopen the appeal of BRUCE A.M., on behalf of his son Erich, from action of the Board of Education of the Syosset Central School District regarding grade placement.

Decision No. 12,917

(April 21, 1993)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner applies for reopening of the decision in Appeal of Bruce A.M., 32 Ed Dept Rep 335, which dismissed his petition seeking an order directing respondent to place his son in first grade rather than kindergarten. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education state that any party may apply to reopen a decision of the Commissioner. An application to reopen is addressed solely to the Commissioner's discretion, and the applicant must show that the decision which is the subject of the application was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the original decision was made.

Petitioner's initial appeal was dismissed and respondent's decision to place the child in kindergarten rather than first grade was upheld for several reasons. Those included the fact that petitioner's son had previously not attended any kindergarten program. While petitioner maintained that he had tutored his son at home, there was no indication in the record of the nature or extent of that tutoring. Finally, the record indicated that petitioner's son exhibited serious social deficits which hindered his functioning within the kindergarten program and would have presented greater difficulty in a class with older children with whom he was not social-appropriate.

In the instant application, petitioner seems to contend that there is new and material evidence which was not available at the time of the original decision. Specifically, petitioner maintains that his son's socially inappropriate behavior is attributable to medication the child was receiving because of an allergic reaction to gerbils kept in the classroom. Petitioner further contends that once the gerbils were removed from the classroom, the child's medication was reduced and his social deficits were alleviated.

The record indicates and respondent acknowledges that the child has shown improvement in his ability to function socially. However, despite that improvement, petitioner's son continues to exhibit socially inappropriate behavior and experiences difficulties with social interaction. Those problems are not attributed solely to over-medication, but rather result from various factors including poor socialization skills and emotional immaturity. Such problems will be magnified if petitioner's son is placed with older, more mature students. Accordingly, I find that the new evidence submitted by petitioner is not a basis for reopening my prior decision in this matter.