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Decision No. 14,028

Appeal of BRIDGETTE STUDLEY, on behalf of her son, WILLIAM, from action of the Board of Education of the Elizabethtown Lewis Central School District regarding the denial of participation in interscholastic sports.

Decision No. 14,028

(November 13, 1998)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin and Gregg T. Johnson, Esqs., of counsel


MILLS, Commissioner.--Petitioner appeals the dismissal of her son from the Elizabethtown Lewis Central School District golf team for failure to consent to mandatory drug testing. The appeal must be dismissed.

At the time the appeal was commenced, William Studley was a senior at respondent's high school, and had been a member of the golf team for the spring 1997 season.

Prior to the 1996-1997 school year, respondent for several years had required all participants in its interscholastic sports program to sign a student-athlete contract. Among other things, the contract required that the athlete refrain from using all forms of alcohol, tobacco, and any other illegal substances. It further provided for penalties in the form of suspension in cases of violations. Petitioner and her son signed such a contract on November 4, 1996, which was intended to be valid for the 1996-1997 school year.

Following a series of board meetings, both regular and special, respondent on April 23, 1997, adopted a new policy entitled "Drug Testing of Student Athletes." This new policy provided for testing for marijuana, cocaine, opiates, amphetamines, and PCP. Under this new policy, all athletes were required to be tested before the start of the sport season in which they were participating. In addition, random tests were to be conducted throughout the school year, unannounced, and each athlete was subject to mandatory testing if chosen, i.e., "suspicionless testing." The policy provided specific procedures for collection of urine samples, testing, consequences, and reporting of results. The policy specifically provided that there would be no academic penalty for a positive test, that no positive test would be documented in a student's academic record, but stated that a positive test was required to be reported to the Department of Social Services. Information regarding drug tests would not be provided to any law enforcement agency except under compulsion, and the school district would not solicit the initiation of criminal proceedings. The policy also included a document in the nature of a consent and agreement, to be signed by the athlete and his parent, consenting to this suspicionless drug testing program.

Following the adoption of this policy, respondent gave notice to all district students and parents of an informational meeting on May 13, 1997. Thereafter, petitioner and her son refused to sign the required consent agreement, and on May 19 William Studley was dismissed from the varsity golf team. This appeal was commenced on May 20, 1997, and sought the following relief:

  1. Immediate interim relief permitting William J. Studley to participate in interscholastic athletics for the remainder of the 1996/97 school year in the Elizabethtown Lewis Central School District pending a decision on the merits of this appeal, and

  2. Such other relief as the Commissioner deems just and proper.

On June 3, 1997, I denied petitioner's request for a stay order. It appears that the regular season for the varsity golf team had ended previously.

Petitioner objects to several aspects of the manner in which this mandatory testing policy was adopted. She claims that respondent was not responsive to questions and concerns of the residents of the district, but proceeded to adopt this policy in a hasty manner. She further objects to the adoption of the policy on April 23, when many residents were not aware that it would be considered. Petitioner supplies a notice from a local newspaper dated April 9, 1997, announcing that a special meeting of the board would be held on April 23, and that that meeting would be devoted to the BOCES administrative budget and vacant seats on the BOCES board. The notice also, however, advises that the regular board meeting of April 10 was canceled and rescheduled to follow the special meeting of April 23. Petitioner also claims that the nearly immediate application of this policy was especially unfair to her son, who had signed the required athletic agreement that was in effect in November 1996, and which both petitioner and her son believed was sufficient for the entire 1996-1997 school year.

Respondent generally denies petitioner's claims, and states that its policy was in all respects legal and in compliance with the decision of the United States Supreme Court in Vernonia School District 47J v. Acton (515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed. 2d 564). Respondent also raises several affirmative defenses, including mootness, failure to state a claim properly before the Commissioner, lack of subject matter jurisdiction, and improper forum for the pursuit of novel constitutional claims. Respondent also points out that the only form of relief sought by petitioner was the immediate reinstatement of her son to the golf team, which was denied on June 3, 1997.

The appeal must be dismissed as moot. It is well established that the Commissioner of Education will only consider 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 Lascala, 38 Ed Dept Rep 16; Appeal of Schuler, 37 id. 512;; Appeal of Lawson, 36 id. 450). Where it is impossible for the Commissioner to award any meaningful relief because the person whose rights are to be affected has moved from the district, resigned, graduated, or withdrawn from school, the appeal will be dismissed (see, e.g., Appeal of Mangaroo, 37 Ed Dept Rep 378; Appeal of Blaske, 37 id. 277; Appeal of Ytuarte, 36 id. 238; Appeal of Whitney Point Concerned Parents Association, 36 id. 236). This is especially true when petitioner has sought interim relief as to all or most of his claim, and that relief has been denied (see, e.g., Appeal of Lescala, 38 Ed Dept Rep 16; Appeal of McConnon, 37 id. 691; Appeal of a Student With a Disability, 36 id. 248). In this matter, petitioner's demand for relief was that her son be restored immediately to the golf team. Petitioner's stay request was denied, and the 1997 golf season has ended and petitioner's son has graduated, leaving no possibility of any meaningful relief.

Although I am constrained to dismiss this matter on procedural grounds, the importance of the issues raised in this appeal warrant additional comment. Respondent claims that its suspicionless drug testing policy is fully in accord with the United States Supreme Court's decision in Vernonia School District 47J v. Acton (supra). I express no opinion as to the correctness of respondent's position. I do however point out that the Supreme Court in Vernonia faced a factual situation in which drug use within the school district had increased sharply, as had drug-related disciplinary problems. The Court found that not only were student athletes among the drug users, ". . . but, as the District Court found, athletes were the leaders of the drug culture" (132 L.Ed.2d at 571). An earlier program of special classes, speakers, and presentations designed to deter drug use had been ineffective. In view of these circumstances, the Court found that the school district's policy of suspicionless drug testing of student athletes was reasonably tailored to address the district's identified drug problem and was, therefore, constitutionally permissible. I additionally note that several significant cases dealing with the mandatory drug testing of students have been decided since Vernonia was decided in 1995. See, Todd v. Rush County Schools, 133 F.3rd 984, cert. den. ___ U.S.___, ___ S.Ct. ___, ___ L.Ed. 2d ___, October 5, 1998; Trinidad School District No. 1 v. Lopez, 1998 WL 373305 (Colo.) (June 29, 1998); and Willis v. Anderson Community School Corporation, ___ F.3rd ___ (Seventh Circuit, September 9, 1998). These cases present varying fact patterns, and were all decided based upon the Fourth Amendment of the United States Constitution.

Interestingly, none of these cases examine the authority of the entity adopting the drug policy to do so.

As I recently observed in Appeal of Rosenkranz, 37 Ed Dept Rep 330, at p.334:

A school district, like an administrative agency, is a creature of statute, and is generally without power to exercise jurisdiction beyond that conferred by statute (see, e.g., Matter of Flaminio v. Board of Education, Cleveland Hill UFSD, 97 Misc.2d 722, 412 N.Y.S.2d 100 (1979); Matter of Leone v. Hunter, 21 Misc.2d 750, 191 N.Y.S.2d 334 (1959); Matter of District No. 2, Town of Brookhaven, 214 A.D. 40, 210 N.Y.S.2d 439 (1925); Matter of DeAngelis v. Laino, 235 A.D. 390, 257 N.Y.S.2d 154; aff'd 260 N.Y. 661, 184 N.E. 135 (1932)).

In this appeal, respondent cites Education Law "912-a, and certain Commissioners' decisions allowing school districts to deny participation in extracurricular activities based upon misconduct. However, I note that Education Law "912-a is premised upon parental consent, and if a parent refuses to consent, the student is not precluded from participating in any activity. Respondent cites no other specific statutory authority for its policy. Likewise, none of the Commissioner's decisions cited by respondent have examined the complex issues relating to suspicionless student drug testing.

In view of my disposition of this matter on procedural grounds, it is unnecessary to discuss the other claims of the parties, which I find without merit.