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Decision No. 15,055

Application to reopen the Appeal of DONALD and KAREN VOLK from action of the Board of Education of the Gowanda Central School District regarding foreign exchange students.



(May 26, 2004)


Hodgson Russ, LLP, attorneys for respondent, Tracie L. Lopard, Esq., of counsel


MILLS, Commissioner.--Petitioners seek to reopen Appeal of Volk, 43 Ed Dept Rep ___, Decision No. 14,964, regarding the decision of the Board of Education of the Gowanda Central School District ("respondent") to retain its policy to admit only those foreign exchange students sponsored by the American Field Service ("AFS") program.  The application must be denied.

Section 276.8 of the Commissioner"s regulations 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 that was not available at the time the decision was made.

Petitioners argue that the appeal should be reopened because the Commissioner did not adequately consider certain facts regarding respondent"s long-standing foreign exchange policy, respondent"s alleged misinterpretation of federal regulations, and respondent"s rejection of their request.

Petitioners submit a letter dated August 6, 2002, from a representative of International Fellowship, Inc., requesting permission to place two foreign students in respondent"s district.  Petitioners assert that this letter contradicts a statement in respondent"s memorandum of law ("MOL") in Appeal of Volk (supra) that "[s]ince at least 1982, the District had only been requested by American Field Services ("AFS") to admit its members as foreign exchange students."

This statement in the MOL was based on the affidavit of respondent"s president, in which he stated "[s]ince at least 1982, the District only had foreign exchange students who were members of AFS attend its schools."  Although the MOL mischaracterized the president"s statement, it does not negate the veracity of the statement, recognizing respondent"s long-standing policy that only students from AFS may attend respondent"s schools.  Moreover, the August 2002 letter is not new or material evidence that was unavailable at the time the decision was made or at the time the appeal was presented.

Petitioners also claim that respondent"s president misinterpreted a federal regulation relating to student exchange programs.  Respondent"s interpretation is irrelevant, however, because the Commissioner"s decision is based on the State"s Education Law, not the federal regulation.

In Appeal of Volk, I found that respondent"s reasons for recognizing AFS were neither arbitrary nor capricious.  Petitioners have not demonstrated that the decision was rendered under a misapprehension of fact nor have they presented any new or material evidence that was not available at the time the decision was made.  Essentially, they have attempted to reargue the original appeal.  It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application of Satler, 41 Ed Dept Rep 293, Decision No. 14,690; Application of Tanzer, 40 id. 229, Decision No. 14,467).