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Decision No. 15,916

Appeal of M.K. from action of the Board of Education of the Bay Shore Union Free School District regarding extracurricular activities.

Decision No. 15,916

(May 8, 2009)

Long, Tuminello, Besso, Seligman & Werner, LLP, attorneys for petitioner, Michelle Aulivola, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) suspending his participation in extracurricular activities for the remainder of the 2008-2009 school year.  The appeal must be dismissed.

Sometime in September 2008, petitioner, a senior at respondent’s high school, was apprehended by high school security guards for suspicion of being under the influence of a controlled substance.  According to petitioner, he was neither engaged in school activities nor inside the school building when apprehended.  Petitioner was escorted into the high school and questioned, where he admitted to having used marijuana off school grounds.

The district’s code of conduct (“code”) provides that “... it is the policy of [respondent] that students shall be disciplined for off-campus conduct detrimental to the interest of the school district and/or disruptive to the school community.”  For violations against public health and safety, the offense of “use of a controlled substance” carries the penalty of a minimum administrative action of suspension from all extracurricular activities for one calendar year and an out-of-school suspension for five days.

By letter dated September 24, 2008, the high school principal notified petitioner’s parents that, in accordance with the code, petitioner was suspended for five days, from September 24 through October 2, 2008, for being under the influence of a controlled substance (marijuana).  The letter informed petitioner’s parents that they could request an opportunity for an informal conference with the principal, at which time they would have the right to ask questions of complaining witnesses.  According to respondent, neither petitioner nor his parents requested a meeting with the principal.

According to petitioner, he was precluded from participating as a member of the wrestling team during the winter 2008-2009 season and remains ineligible to participate as a member of the crew team during the spring 2009 season.  Petitioner appealed his suspension to respondent, who denied his appeal on January 28, 2009.    This appeal ensued.

Petitioner asserts that his use of marijuana on the day of his apprehension was an isolated incident, he cooperated with school officials, had no drugs in his possession and is otherwise remorseful.  He seeks a reversal of respondent’s determination affirming his suspension and precluding his participation in extracurricular athletics for the remainder of the 2008-2009 school year.

Respondent asserts that the petition is without merit, that petitioner admitted engaging conduct in violation of the code, that petitioner was afforded due process and that the penalty is appropriate.

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, the policy will be upheld (Appeal of D.M. and C.M., 45 Ed Dept Rep 335, Decision No. 15,339; Appeal of J.P., 44 id. 204, Decision No. 15,149).  Procedures governing suspensions from extracurricular privileges 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 the discipline (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.C. and D.C., 46 id. 447, Decision No. 15,560; Appeal of Y.P. and S.P., 46 id. 445, Decision No. 15,559).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

In this case, M.K. admitted using marijuana, a controlled substance, the penalty for which is prescribed in the code.  The principal’s letter gave petitioner and his parents an opportunity to discuss the charge and suspension, of which they apparently failed to avail themselves.  Petitioner failed to submit a reply to the answer or otherwise deny the principal’s assertion.  Accordingly, petitioner has failed to meet his burden of proof that respondent abused its discretion in this matter.