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Decision No. 13,913

Application to reopen the Appeal of CLARELLE PIERRELUS, on behalf of her daughter, EDNA PIERRELUS, from action of the Board of Education of the Sewanhaka Central High School District regarding student residency.

Decision No. 13,913

(April 10, 1998)

Douglas E. Libby, Esq., attorney for petitioner Board of Education

Long Island Advocacy Center, attorney for respondent Pierrelus, Eileen C. Buckley, Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Sewanhaka Central High School District, applies to reopen Appeal of Pierrelus, Decision No. 13836. The application must be denied.

Petitioner claims that the petition in Appeal of Pierrelus should not have been dismissed as moot, since the district intends to seek tuition from respondent Pierrelus for the period in which the district alleges that the student was not a district resident. Respondent Pierrelus opposes the reopening of the appeal and reiterates that her daughter Edna was a resident of the district and was entitled to attend the district’s schools without the payment of tuition.

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.

Petitioner alleges that I misapprehended the facts when I dismissed the original appeal as moot since the issue of tuition reimbursement is outstanding. Essentially, petitioner’s argument is that the December 4, 1996 letter from the Commissioner of Education ordering the district to admit Edna Pierrelus specifically included a statement regarding the payment of tuition. The letter states:

This order shall not preclude respondent from seeking tuition from petitioner or other responsible parties in the event the final decision in this matter provides that the student in question is not entitled to attend respondent’s schools tuition free.

Petitioner argues that the appeal was inappropriately dismissed as moot and seeks that I reopen the decision and render a determination on the merits.

Petitioner’s argument is rejected. 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. Nevertheless, petitioner urges a determination on the merits so that the district will be able to pursue respondent Pierrelus for the tuition payments it seeks. However, the original appeal concerned the residency of respondent Pierrelus and her daughter. The original decision determined that the appeal was moot since the record indicated that the student had graduated from the district’s high school. The issue of tuition reimbursement was not before the Commissioner in the original appeal, nor does the Commissioner have any statutory authority to make a finding awarding student tuition. Therefore, I reject petitioner’s argument that the original appeal was improperly dismissed as moot.

I note that petitioner is not precluded from attempting to seek tuition payments from respondent Pierrelus in a court of competent jurisdiction. The language of the interim order is merely notice to the parent that even though the interim order has been granted, the parent may be liable for the payment of tuition in the event of a determination in favor of the district. That language is not a guarantee of a determination on the merits, and petitioner cites no case law that would compel the Commissioner of Education to assist the district in tuition reimbursement. Although I understand petitioner’s difficulties in seeking tuition payments under these circumstances, I see no basis to grant a reopening of the original petition.