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Decision No. 15,168

Appeal of D.V., on behalf of her son C.V., from action of the Board of Education of the Eldred Central School District regarding student discipline.

Decision No. 15,168

(January 31, 2005)

Robert N. Isseks, Esq., attorney for petitioner

Shawn Law Offices, attorneys for respondent, Thomas H. Cragan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Eldred Central School District ("board") suspending her son, C.V., from school for alleged misconduct. The appeal must be dismissed.

During the week of March 8, 2004, C.V. used a home computer to access the website of a female teacher at the Eldred Junior-Senior High School. The website had been created as part of a continuing education program for teachers. C.V. altered the website by adding sexually explicit comments concerning both the teacher and the teacher�s spouse. These alterations were discovered by a student during a computer lab in the school, reported to a teaching assistant, and ultimately reported to school authorities. It appears that C.V. was suspended from school on March 17, 2004.

A superintendent�s hearing was held on March 22. C.V. was charged with violating the school�s code of conduct, by engaging in conduct that endangered the safety, morals, health or welfare of others, specifically by defamation and by using vulgar or abusive language in altering the website. After a discussion between the superintendent and petitioner as to the rationale for charging C.V. with conduct which actually occurred outside the school, C.V. pled guilty to the charge. As a result of his guilty plea, he was suspended from the date of the hearing, March 22 to April 22, 2004.

The next day, petitioner made a written request to appear before the board on April 1 to appeal " the additional 15 day out of school suspension of my son . . ." By letter dated April 2, 2004, the board president advised petitioner that the board had upheld the superintendent�s determination, and that her son�s suspension would continue until April 22. This appeal was commenced on April 29, after the suspension had been served.

Petitioner claims that all of the activity charged against C.V. occurred outside the school, off school premises, and did not violate any provisions of the code of conduct. She further argues that the superintendent had no jurisdiction to adjudicate this matter, because the comments made by C.V. on the website were protected speech under both the Federal and State constitutions.

Respondent agrees that the conduct occurred off school premises, but points out that the conduct had a very real disruptive effect within the school, where numerous students attempted to access the website. Respondent further points out that C.V. pled guilty at the superintendent�s hearing, and that the appeal taken by petitioner to the board was limited only to a consideration of the length of the suspension, and did not seek to overturn the guilty plea.

To the extent petitioner raises the issue of guilt, the appeal must be dismissed. Petitioner�s appeal letter dated March 23, 2004, to the board was limited to contesting the length of her son�s suspension. As respondent points out, petitioner�s previous counsel argued the matter before the board on April 1, 2004, only with respect to the length of the suspension. Petitioner has not challenged that statement by serving a reply. Because the issue of guilt was not raised before, and considered by, the board, and, indeed, was a plea rather than a determination, it may not be raised in an appeal before the Commissioner under Education Law �310 (Appeal of Ravick, 40 Ed Dept Rep 262, Decision No. 14,477). Petitioner�s appeal must therefore be limited to the length of the suspension.

Because the suspension has already been served, and in fact was served before the appeal was commenced, the matter of the penalty is moot, since no meaningful relief can be afforded (Appeal of N.S. 42 Ed Dept Rep 190, Decision No. 14,817; Appeal of Deborah F., 42 id. 178, Decision No. 14,813; Appeal of a Student with a Disability, 40 id. 42, Decision No. 14,416).

Even if I were not dismissing for mootness, I would dismiss the challenge to the penalty on the merits. Where a suspension is imposed, it must be proportionate to the severity of the offense (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689; Appeal of Durkee, 20 id. 94, Decision No. 10,329). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner�s judgment for that of the board of education (Appeal of B.B., 38 id. 666, Decision No. 14,113; Appeal of Forestiero, 34 id. 592, Decision No. 13,419). Upon the record before me, I find no basis for determining that respondent acting arbitrarily, unfairly, or excessively in imposing a suspension from March 22 to April 22, 2004 (cf., Appeal of David and Cynthia L., 40 id. 297, Decision No. 14,484; Appeal of Leahy, 39 id. 375, Decision No. 14,264; Appeal of B.B., supra).

In light of this disposition, I need not address the parties� remaining contentions.