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Decision No. 14,371

Application to reopen the Appeal of AMARA S., on behalf of S.T., from action of the Board of Education of the Freeport Union Free School District regarding a student suspension.

Decision No. 14,371

(May 25, 2000)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner applies to reopen Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182, concerning the suspension of her son. The application must be denied.

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 facts underlying this application are set forth in detail in the original decision and will not be repeated here. Petitioner contends that the appeal should not have been dismissed as untimely. She claims that respondent’s policy, which permits an appeal of a student’s suspension for five days or less to the board of education, was not followed. Petitioner maintains that a letter sent by her attorney to respondent’s superintendent was the equivalent of an appeal to the board of education. She contends that because she received no response to this letter, her time to appeal to the Commissioner should not have been deemed to have commenced. Petitioner also attempts to reargue witness credibility issues in her application.

Both of these claims were raised in the previous appeal. Respondent did have a policy permitting, but not requiring, the appeal of a student suspension of five days or less to the board of education. However, petitioner did not avail herself of this process. Rather, her attorney sent a letter to the superintendent, and did not appeal to the board of education. After carefully examining the issues in the original appeal, I found no unusual circumstances warranting an extension of petitioner’s time to file an appeal with the Commissioner, and petitioner has failed to produce new evidence to warrant such a finding on this application.

Petitioner simply attempts to reargue the original decision. Mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Appeal of Osoris, 38 Ed Dept Rep 273, Decision No. 14,031; Appeal of Goldin, 37 id. 603, Decision No. 13,938). Furthermore, I do not find that there was a misapprehension of the facts in my original decision, or that petitioner provides new material facts that were not available when she brought the original petition.