Application to reopen the Appeal of L.L. on behalf of J.L., from action of the Board of Education of the LaFayette Central School District regarding student discipline.

Decision No. 17,057

(March 7, 2017)

Ferrara Fiorenza PC, attorneys for respondent, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks to reopen the Appeal of L.L., 56 Ed Dept Rep, Decision 16,989, which dismissed petitioner’s challenge to the discipline imposed upon her son, J.L., (“the student”) by the Board of Education of the LaFayette Central School District (“respondent”).  The application must be denied.

While the application is not entirely clear, it appears that petitioner challenges certain statements she claims were made in the decision and alleges that, because the decision contained those statements, the decision was rendered under a misapprehension of facts.  For example, petitioner claims that the decision stated that “the petitioner does not deny any of the respondent’s contention[s] concerning the meeting between J.L.’s father and the principal on June 5^th.”  Petitioner challenges this statement, reciting her recollection of the timeline of the discipline imposed on J.L. and alleging that the principal lied in her affidavit about the day the in-school suspension was imposed. 

Petitioner also claims that the decision stated that the student’s action was considered “a class II infraction and that [she] [was] notified of such and given a chance to respond, hence due process is followed.”  Petitioner asserts that “the record does not show that this is indeed a conclusion the school could have come to based on the school’s own records....”  Petitioner argues that the disciplinary report is “generic” and indicates that the student was “punished for being part of a bullying incident.”

Petitioner further alleges that, although the district denied knowledge of “[m]alicious rumors, gossip and lying to the coach,” her recollection of a board of education meeting “would indicate that rumors and lies had spread past the children and that school administration had to be aware....”  Petitioner argues that the student’s punishment is not proportionate to the severity of the offense, that the school does not consistently apply its disciplinary standards, that “efforts made to punish the boys in a very public manner turned inappropriate punishment into bullying” and that the student was “inappropriately associated with other boys’ behavior leading to his excessive punishment.”

Respondent contends that the application should be denied because petitioner has not satisfied the standard for reopening.  Respondent argues that, despite petitioner’s allegation that the decision was rendered under a misapprehension of the facts, petitioner’s application only restates arguments in the original appeal and that the application is devoid of allegations that there is new and material evidence that was not available at the time the decision was made.  Respondent further argues that petitioner’s application only refers to information contained in the original record on appeal.  Additionally, by letters dated December 28, 2016, January 20, 2017 and February 7, 2017, respondent requests that the documents submitted by petitioner including, a “verified response” dated December 19, 2016, a “verified compliant” [sic] dated January 12, 2017, and an unsworn statement dated January 31, 2017, be disregarded in their entirety.    

I must first address a procedural matter.  Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It provides that after an application is filed, affidavits in opposition to an application to reopen may be submitted by any party opposing such application (8 NYCRR §276.8[b]).  The regulation does not provide for submission of any other pleadings or supporting papers.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Petitioner did not obtain prior approval to submit the verified response, the verified complaint or the unsworn statement, which reiterate and attempt to elaborate upon the arguments made by petitioner in her application, and I decline to accept such submissions.

Turning to the merits, 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 Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911; Application to reopen the Appeal of Zulawski, 47 id. 191, Decision No. 15,664).

Petitioner has failed to meet the standard for reopening.  The arguments in her application are restatements of arguments made in her original appeal.  Petitioner has not alleged, nor does the application contain, new material evidence that was not available at the time the decision was made.

THE APPLICATION TO REOPEN IS DENIED.

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