Application to reopen the Appeal of T.L. and W.L. from action of the Board of Education of the Patchogue-Medford Union Free School District regarding student discipline.

Decision No. 15,647

(August 24, 2007)

Berger and Brandow, LLP, attorneys for petitioner, Deborah Berger, Esq., of counsel

Guercio and Guercio, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

MILLS, Commissioner.--Petitioners seek to reopen the Appeal of T.L. and W.L., 46 Ed Dept Rep ____, Decision No. 15,576, which dismissed petitioners’ challenge to the discipline imposed upon W.L. by the Board of Education of the Patchogue-Medford Union Free School District (“respondent”).  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  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.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Application to reopen the Appeal of Johnson, 45 Ed Dept Rep 275, Decision No. 15,320; Application to reopen the Appeals of Sitaras, et al., 44 id. 107, Decision No. 15,112; Application to reopen the Appeal of a Student with a Disability, 42 id. 241, Decision No. 14,839).

Petitioners allege that the notice of W.L.’s five-day suspension was untimely and that there was no evidence submitted in the prior appeal to prove otherwise.  Petitioners contend that their statements in the petition regarding the alleged untimely receipt of the notice of short-term suspension were verified under oath while respondent’s contrary statements were made upon information and belief.  Petitioners argue that their verification of the facts underlying the petition was sufficient to meet their burden to establish that the written notice of W.L.’s five-day suspension was untimely.

Petitioners have already raised the issue of respondent’s alleged failure to provide timely notice of the short-term suspension in the previous appeal.  Petitioners have not demonstrated that the decision was rendered under a misapprehension of fact nor have they presented any new material evidence that was not available at the time the decision was made.  Essentially, they are attempting to reargue the original appeal because they disagree with the outcome.  It is well settled that mere reargument of the issues presented in a prior appeal is not a basis for reopening an appeal (Application to reopen the Appeal of Kushner, 44 Ed Dept Rep 116, Decision No. 15,116; Application to reopen the Appeal of Slater, 41 id. 293, Decision No. 14,690; Application to reopen the Appeal of Tanzer, 40 id. 229, Decision No. 14,467).

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE