Appeal of D.P.B. from action of the Board of Education of the Milford Central School District regarding interscholastic athletics.

Decision No. 15,812

(August 6, 2008)

Law Firm of Frank W. Miller, attorneys for respondent, Frank W. Miller and Iman Abraham, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Milford Central School District (“respondent”) denying his participation in interscholastic athletics.  The appeal must be dismissed.

During the fall of 2007, petitioner expressed an interest in playing on the high school basketball team.  The district’s superintendent met with petitioner and his mother to inform them that petitioner would not be allowed to participate in athletics for the winter season because of his arrest during the summer of 2007.  The superintendent asserts that petitioner was charged with the possession and sale of drugs, and that this information was widely publicized in the newspaper throughout the community.  Petitioner’s mother met with respondent, which upheld the superintendent’s decision on November 8, 2007.

In February 2008, petitioner requested permission to participate on the high school track team.  Apparently, both the coach and the athletic director denied petitioner’s request, allegedly because of his prior involvement with drugs.  In March 2008, petitioner met with the superintendent regarding his request.  By letter to petitioner’s mother dated March 7, 2008, the superintendent explained that he was denying petitioner’s request to participate on the track team because the coach and athletic director believed his participation would be detrimental to the program based on his past legal history.  In addition, they did not believe that petitioner’s participation would reflect positively on the district.  The superintendent added that he believed, based on petitioner’s past history, “that participation in Track would not be in the district’s best interest.”  This appeal ensued.  Petitioner’s request for interim relief was denied on April 16, 2008.

Petitioner denies that he was arrested or charged with the use or sale of drugs or that there was widespread publicity, and states that only a single article appeared in the newspaper.  Because petitioner did not turn 18 until October 12, 2007, petitioner was adjudicated as a “Youthful Offender” and the record does not reveal the nature of the charges.  In addition, in the fall of 2007, when petitioner was initially denied participation on the basketball team, petitioner had not yet been sentenced.[1]  Petitioner contends that the incident in the summer of 2007 occurred off school grounds and was unrelated to school activities, and that he is being unjustly denied participation in athletics for personal reasons.  He claims that he is receiving disparate treatment because the district permitted two other students who were arrested to participate in athletics, one with an ankle monitor.  He contends further that nothing in the district’s athletic contract or student handbook justifies excluding him from the team.  Petitioner seeks to participate on the track team.

Respondent asserts that the appeal is untimely and petitioner is barred from appealing the determination regarding the track team because he failed to appeal respondent’s November 2008 determination regarding the basketball team.  Respondent further asserts that it properly excluded petitioner from participation in athletics because he violated the district’s policies, engaged in substantial misconduct involving drugs, and has an extensive disciplinary record.  Respondent contends that, although petitioner denies that his arrest concerned drugs, he has failed to present evidence of the offense with which he was charged.  Respondent distinguishes petitioner’s case from that of the other two students on the grounds that petitioner’s case is far more egregious.  Respondent also alleges that petitioner violated his probation in May 2008.

Initially, I must address a procedural matter.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Respondent requests permission to submit a supplemental affidavit by the superintendent along with its memorandum of law to respond to allegations in petitioner’s reply.  Petitioner does not object.  Therefore, I have considered those portions responsive to new material set forth in the reply.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Petitioner requests that he be allowed to participate on the track team for the spring 2008 season.  Since the 2007-2008 school year has ended, that season has passed and no further relief may be granted.

Although the appeal is dismissed on procedural grounds, I must comment on certain aspects of respondent’s actions, the student handbook and the athletic contract.  Although respondent upheld the superintendent’s decision in November 2007 to deny petitioner’s participation on the basketball team for the winter athletic season, there is no record from the superintendent or respondent, or any other written indication, that petitioner’s exclusion from athletics at that time extended over multiple seasons.

Respondent asserts that the student handbook provides that “no person will be allowed to participate in [the district’s] athletic program who is involved in illicit drugs and/or alcohol.”[2]  However, a review of the handbook does not reveal the language cited by respondent.  Instead, the handbook’s section on “interscholastic athletics” provides only three requirements for eligibility: authorization by the school physician; written parent or guardian consent; and endorsement by the school principal based on established rules and various State Education Department regulations.  While acknowledging that participation in any extra-curricular activity is a privilege, paragraph four of the section on “expected conduct,” provides for withdrawal, not exclusion, from the activity, as a penalty.  Further, under the code’s discipline chart, drug related offenses are subject to referrals, suspensions, and dismissal hearings, with the athletic director notified of all suspensions; athletic exclusion is apparently not a prescribed penalty.

Respondent also asserts that “the Student Athlete’s Code and Contract requires that students not participate in the use of drugs or alcohol.” Assuming that the two-page “Athletic Participation Agreement” provided by respondent is the same “contract” referred to, the agreement provides that “any use of drugs, alcohol, or tobacco by a team member will result in the athlete being immediately suspended from athletic competition . . . Should the athlete commit a second offense, he/she will be dismissed from his/her sports team for the remainder of the season . . . .”  While this language obviously promotes the laudatory goal of zero tolerance for drug and alcohol use, it provides sanctions to be taken against athletes already on athletic teams, not the eligibility of a student to participate on a team.

I recommend that respondent review its athletic participation agreement and student handbook in light of this decision.

THE APPEAL IS DISMISSED.

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