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Decision No. 13,051

Appeal of LINDA J. DeMARCHI, on behalf of her son Kristopher, from action of the Board of Education of the Onondaga Central School District regarding disqualifications for extracurricular activities.

Decision No. 13,051

(November 23, 1993)

Carl F. Guy, Esq., attorney for petitioner

Grossman, Kinney, Dwyer, Reitz & Harrigan, P.C., attorneys for respondent, Kirstin M. Jahn, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's exclusion of her son, Kristopher, from interscholastic sports for two weeks. The appeal must be dismissed.

Respondent's written athletic training code prohibits a student from the "use or possession of alcoholic beverages, tobacco or any non-prescribed controlled drug." On January 27, 1993, Kristopher, who is a member of the high school basketball team, was accused of possessing marijuana and giving it to another student. At a hearing held on February 1, 1993, respondent's athletic committee found Kristopher guilty of violating the athletic training code and suspended him from basketball for two weeks. The committee also directed Kristopher to attend counseling with the guidance office and participate in a community service program. Respondent's athletic appeals committee affirmed this decision on March 31, 1993, and the board did likewise on May 19, 1993. This appeal followed.

Petitioner contends that Kristopher's suspension from basketball is improper because he was not given a fair hearing on the matter and was denied the chance to question witnesses. Petitioner seems to imply that her son is entitled to the same type of hearing required by Education Law '3214(c), when a student is suspended from school. There is, however, no requirement for such a hearing prior to the exclusion of a student from extracurricular activities (Matter of Evans, 24 Ed Dept Rep 342; Matter of Pellegrino, 22 id. 462). Accordingly, the fact that petitioner was not granted a full evidentiary hearing at which witnesses could be cross-examined is of no import.

While an evidentiary hearing was not required here, petitioner and her son were entitled to discuss the matter with appropriate representatives of the district. As stated by the court in Matter of O'Connor v. Board of Educ., 65 Misc 2d 40, 43:

While a full "due process" hearing is not mandated in this situation, whatever procedure is adopted by respondent must be basically fair, granting to the student and the person in parental relation to him an opportunity to appear informally before the person or body authorized to impose discipline and to discuss the factual situation underlying the threatened disciplinary action. Such would be an administrative not adversary proceeding.

The record before me indicates that petitioner and her son were afforded three separate opportunities to meet with district representatives to discuss this matter. Each time petitioner was accompanied by her attorney. Thus, petitioner and Kristopher were accorded all the process due them under the law (Matter of Port, et al., 9 Ed Dept Rep 107).

Petitioner also contends that Kristopher's suspension from extracurricular activities was improper because there was no competent or substantial evidence presented that he committed the acts alleged. The record indicates, however, that several student witnesses informed the high school principal that Kristopher possessed what he believed to be marijuana, that he tried to sell it to another student and eventually gave it to that student. In addition, the principal heard petitioner's son admit to petitioner that he found marijuana in a coat he was wearing and gave the marijuana to another student. Based on the foregoing, I conclude that respondent's action is fully supported by competent and substantial evidence and should therefore not be disturbed.

THE APPEAL IS DISMISSED.

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