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Decision No. 13,887

Application to reopen the Appeal of GLORIA T. COLEMAN, on behalf of WILLIAM J. TARRANT, from action of the Board of Education of the City School District of the City of Mount Vernon regarding student discipline.

Decision No. 13,887

(March 13, 1998)

D’Andrea & Goldstein, Esqs., attorneys for respondent, Vincent D’Andrea, Esq., of counsel

MILLS, Commissioner.--Petitioner applies to reopen Decision No. 13621 concerning the suspension of her grandson, William Tarrant. The application must be denied.

Petitioner seeks to reopen my prior decision, disputing the educational services received by her grandson. Petitioner seeks an order directing respondent to permit the student to take the Global Studies Regents Competency Test and other examinations, and seeks $2500.00 in costs allegedly incurred in private tutoring expenses. Respondent raises a number of procedural issues, including timeliness, that the petition fails to state a cause of action and a clear and concise statement of petitioner’s claim, that petitioner does not meet her burden of proof, that the prior decision should not be reopened, and that the Commissioner of Education lacks authority to award damages, costs, attorney’s fees or expenses.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. 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 which was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen.

The application must be dismissed. I find no misapprehension of fact in the original decision. Nor do I find any new and material evidence that was not available at the time the decision was made. In the application, petitioner cites language in the original decision which reminded respondent of its obligation to provide William with substantially equivalent alternative instruction for the duration of his suspension since the student was of compulsory school age at that time. In this application, petitioner apparently disputes the instruction provided by respondent. Petitioner has apparently had continued disputes with respondent over the provision and scope of these services. Although I regret that the parties have been unable to work out an arrangement to benefit William, I find no basis in this application to grant the relief petitioner seeks. Respondent alleges that it has offered educational services to the student that petitioner has rejected, and there is no basis to grant the other relief she seeks.

To the extent that petitioner seeks an award of the costs of a private tutor, it is well established that the Commissioner of Education lacks the authority to award fees pursuant to an Education Law "310 appeal (Application of Danin, 32 Ed Dept Rep 20; Appeal of Sileo, 28 id. 313). Therefore, petitioner’s request for reimbursement is denied.