Appeal of T.G. and R.G., on behalf of their son M.G., from action of the Board of Education of the Minisink Valley Central School District regarding student discipline.

Decision No. 14,451

(August 22, 2006)

Richard N. Lentino, Esq., attorney for petitioners

Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son, M.G., by the Board of Education of the Minisink Valley Central School District ("respondent").  The appeal must be dismissed.

During the 2004-2005 school year, M.G. was 16 years old and attended eleventh grade in respondent's high school.  On November 5, 2004, M.G. was charged with conduct which endangers the safety, morals, health or welfare of others, and insubordination, and was suspended for an initial period of five days, specifically for alleged inappropriate sexual conduct involving three female students occurring on October 22 and November 4, 2004.  A superintendent's hearing was scheduled for November 15, 2004 but was adjourned at the request of M.G.'s attorney.  Prior to adjournment, an amended statement of charges was substituted for the original, which deleted references to the alleged use by M.G. of coercion, force, threats and intimidation with respect to the acts alleged.

A superintendent's hearing was held on November 19, 2004.  Respondent produced one witness, a high school assistant principal, who testified that she met with M.G. on November 5, 2004 to discuss complaints made by three female students (A.E., A.K. and J.M.) that M.G. was sexually harassing them.  The assistant principal testified that M.G. admitted that he exposed his penis to A.E. on two occasions, once in a school stairwell and the other time in the back of a classroom, and admitted that he exposed his penis to A.K. and touched her breast while they were on the school bus.  The assistant principal stated that M.G. told her that the incidents involving A.E. and A.K. were done with their express verbal consent.  The assistant principal also stated that M.G. told her that he did not expose his penis to J.M. after she declined his offer to do so.

On November 22, 2004, the hearing officer issued his report finding M.G. guilty of all charges and recommending that M.G. be suspended for one calendar year.  By letter to petitioners, dated November 24, 2004, the superintendent of schools accepted the hearing officer's findings and penalty recommendation and indicated that M.G. could return to school on November 7, 2005.  By letter dated December 1, 2004, M.G.'s attorney appealed to respondent.  On December 9, 2004, respondent issued its decision upholding the superintendent's determination. 

On November 29, 2004, petitioners commenced an action in the United States District Court, Southern District of New York, alleging violation of M.G.'s rights under the 14th Amendment, Equal Protection Clause of the U.S. Constitution.  The Court granted a temporary restraining order, which was extended to a preliminary injunction, permitting M.G. to return to school during the pendency of the Court proceeding. 

Petitioners commenced this appeal on December 21, 2004.  Petitioners contend that the penalty of one calendar year suspension is arbitrary and excessive; that M.G. was denied equal protection of the law under the 14th Amendment because respondent disciplined their son for a consensual sexual encounter but did not similarly discipline the participating female students; and that M.G. was denied due process under the 14th Amendment by wrongfully taking his substantial property right to an education and ability to obtain an athletic scholarship.  Petitioners also request an order expunging references to the alleged incidents from M.G.'s disciplinary record.

Respondent contends that the penalty imposed was proper and proportionate to the seriousness of the offenses of which M.G. was found guilty.  Respondent also contends that petitioners are precluded from raising the constitutional issues because they were not raised in the student disciplinary hearing, and maintains that petitioners properly elected to adjudicate these issues in federal court.

Since petitioners' allegations regarding violations of their son's 14th Amendment equal protection and due process rights were never raised in the student disciplinary hearing or the appeal to respondent board, they may not be raised in an appeal before the Commissioner under Education Law �310 (see, Appeal of D.V., 44 Ed Dept Rep 263, Decision No. 15,168; Appeal of Ravick, 40 id. 262, 268, Decision No. 14,477).  Furthermore, even if such issues were raised in the disciplinary hearing or appeal to respondent board, petitioners commenced a federal court action against respondent to adjudicate these issues, and it would be contrary to the orderly administration of justice for me to decide issues that petitioner has elected to raise in another forum (Appeals of T.M., SR., 42 Ed Dept Rep 281, Decision No. 14,855).  Therefore, I decline to decide petitioners' constitutional issues.

     Accordingly, the only matter remaining for my determination is whether the penalty of a one-year suspension for such conduct is excessive.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  The record establishes that M.G. exposed his penis on school premises and on a school bus to two female students on three separate occasions, and during the incident on the school bus M.G. touched the breast of one female student.  The record also establishes that M.G. offered to expose his penis to a third female student, who refused.  Such conduct is grossly inappropriate and unacceptable, regardless of whether it was consensual as petitioners allege.  In view of the persistent and public nature of such conduct by M.G., I do not find respondent's imposition of a one year suspension to be excessive. 

     Furthermore, the fact that other students who were involved in the incidents may have received a lesser penalty, or no disciplinary measures at all, does not, of itself, provide a basis for nullifying the discipline imposed upon petitioners' son, provided that, as here, the record establishes he engaged in the misconduct and the penalty imposed is appropriate therefore (see, Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975). 

     THE APPEAL IS DISMISSED.

END OF FILE