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Decision No. 15,149

Appeal of J.P., on behalf of his son M.P., from action of the Superintendent of the City School District of the City of Cohoes regarding a suspension from interscholastic athletics.

Decision No. 15,149

(December 9,2004)

Girvin and Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Superintendent ("respondent") of the City School District of the City of Cohoes ("district") to suspend his son, M.P., from interscholastic athletics for one year. The appeal must be dismissed.

While enrolled in the eleventh grade at the district�s high school in November 2003, M.P. signed a pledge promising to obey all school rules and acknowledging that he read the district�s co-curricular eligibility policy. M.P.�s mother cosigned the form.

The co-curricular policy provides in pertinent part:

SUBSTANCE ABUSE: No smoking or drinking is allowed. Any violation of the rule will result in the following:

1st violation: Suspension from the team or co-curricular activity for the remainder of the season.

2nd violation: Suspension from all athletic teams or co-curricular activities for six months from the date of the infraction.

Any possession, sale or use of drugs will lead to immediate dismissal from the team or co-curricular activity and suspension from all sports or co-curricular activities for one (1) year: this includes during and after school, on or off school property. Legal authorities will be notified.

On Friday night, December 19, 2003, a police officer came upon M.P. and three other students in a car off school property. Finding marijuana in the car, the police notified the students� parents, but did not pursue criminal charges.

On Monday, December 22, 2003, after several staff members told the assistant principal of the weekend incident, the assistant principal called the students individually to her office. The school resource officer, a police officer assigned by the Cohoes Police Department, came to the assistant principal�s office as part of his morning routine and remained after the students arrived. When the assistant principal asked M.P. what occurred over the weekend, M.P. admitted that the police had found him and other students in a car with marijuana. The assistant principal conveyed the student�s admission to the athletic coordinator, who determined that the student�s conduct violated the district�s co-curricular eligibility policy and imposed a one-year suspension from interscholastic athletics.

On January 5, 2004, petitioner appealed to a committee composed of the athletic coordinator, the high school principal and the junior varsity basketball coach. The committee upheld the penalty. On January 13, 2004, respondent met with the four students involved and their parents. By letter dated January 27, 2004, respondent sustained the committee�s determination but offered an alternative resolution that would consider a reduction in the penalty if the students maintained good conduct. Petitioner did not accept the offer, and this appeal ensued. Petitioner�s request for interim relief was denied on March 2, 2004.

Petitioner asserts that the district�s co-curricular eligibility policy is arbitrary because the predetermined penalty for the possession, sale or use of drugs is much greater than the penalty related to tobacco products or alcohol. Petitioner argues that imposing different penalties is irrational because persons under 21 years of age cannot legally use any of these products; because alcohol use is as detrimental to a student�s health as marijuana use; and because the school�s interest in encouraging healthful habits and good citizenship is the same whether prohibiting alcohol or marijuana use. Petitioner also contends the student admitted to the assistant principal that marijuana was in the car because the police officer�s presence intimidated him and because he was not advised of his rights under respondent�s Code of Conduct. Petitioner seeks to invalidate the district�s policy and M.P.�s suspension, and requests expungement of M.P.�s records.

Respondent asserts that the petition fails to state a claim, that the co-curricular policy establishes reasonable conduct standards, and that the procedure used was fair.

A board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it can be shown that the board has abused its discretion, its policy will be upheld (Appeal of G.M.D., 43 Ed Dept Rep ___, Decision No. 14,998; Appeal of Wright, 38 id. 756, Decision No. 14,134; Appeals of Cynthia and Robert W. and Melani and James H., 37 id. 437, Decision No. 13,899). Petitioner has not established that the district�s current policy of imposing a greater penalty for drugs than for tobacco or alcohol is irrational or an abuse of discretion.

Petitioner contends that his son admitted to the assistant principal that marijuana was in the car because the police officer�s presence intimidated him and because he was not advised of his rights under the district�s Code of Conduct. The Code of Conduct provides that before police officials are permitted to question any student on school property, the principal (or designee) will try to notify the student�s parent to give the parent an opportunity to be present. Also, the code provides that students must be informed of their legal rights, that the student may remain silent, and that the student may request the presence of an attorney. Respondent denies that the officer questioned M.P. and also argues that this does not apply to situations in which the district is investigating violations of its own rules and the police officer is involved in his capacity as the School Resource Officer.

In an appeal to the Commissioner of Education, petitioner has the burden of establishing the facts upon which relief is requested (8 NYCRR �275.10; Appeal of V.P., 42 Ed Dept Rep 3, Decision No. 14,754) and the burden of demonstrating a clear legal right to the relief sought (Appeal of D.T., 43 Ed Dept Rep ___, Decision No. 14,916). Petitioner alleges that the officer "actively participated in the interrogation." While the assistant principal acknowledges that M.P. engaged in "casual conversation" with the resource officer on December 22, she states the officer did not threaten or question the student. Petitioner was not present when his son was questioned and did not reply to the new material and affirmative defenses set forth in respondent�s answer and accompanying affidavits. Therefore, since petitioner has failed to establish that the officer questioned M.P., I need not reach the question of whether respondent violated the district�s Code of Conduct.

The procedures governing suspension of student privileges or the imposition of administrative discipline need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose discipline (Appeal of Michael J.A., 39 Ed Dept Rep 501, Decision No. 14,293; Appeal of Forster, 31 id. 443, Decision No. 12,693). Having read the co-curricular eligibility policy, petitioner�s son was aware of the potential penalty when he engaged in the prohibited conduct. Petitioner�s son admitted his misconduct. The district�s administrators provided more than one opportunity for petitioner to informally discuss his son�s admission and the penalty imposed. Under these circumstances, I find that petitioner�s son was afforded sufficient due process, and I do not find respondent�s imposition of the penalty to be improper.