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Decision No. 13,089

Application to reopen the appeal of KERRY ANN MALONEY from action of the Board of Education of the City School District of the City of Mechanicville regarding class rank.

Decision No. 13,089

(January 6, 1994)

Buchyn, O'Hare, Werner & Gallo, Esqs., attorneys for respondent, Kathryn McCary, Esq., of counsel

SHELDON, Acting Commissioner.--This is an application to reopen Appeal of Maloney (33 Ed Dept Rep 154), in which the Commissioner denied petitioner's request that she be designated valedictorian of the 1993 Mechanicville senior class. For the reasons set forth below, this application must also be denied.

In the original appeal, petitioner contended that respondent's formula for determining class rank was improper because it was never approved by the board of education, was not communicated to the public and was capricious. Petitioner also asserted that respondent acted improperly when it determined valedictorian and salutatorian at the end of the first half of senior year rather than waiting to receive the grades for the last semester of that year. The appeal was denied because petitioner failed to establish her contentions.

I must now deny petitioner's application for reopening because she has not demonstrated sufficient grounds to warrant such relief. Section 276.8 of the Regulations of the Commissioner of Education provides that applications to reopen are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that a decision was rendered under a misapprehension of the facts or that there is new and material evidence which was not available at the time the original decision was made.

In this application, petitioner contends that I misapprehended the facts of the case. However, she presents no new facts, but merely reargues the issues presented in the appeal. It is well established that an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Impellizzeri, 32 Ed Dept Rep 295; Application of Ferris, 30 id. 444; Application of Burke, 28 id. 205). Accordingly, petitioner is not entitled to the relief requested.