Appeal of G.M.D., on behalf of his daughter E.H.D., from action of the Board of Education of the Lake Placid Central School District regarding a suspension from interscholastic athletics.

 

(December 8, 2003)

 

William H. Kissel, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lake Placid Central School District ("respondent") to suspend his daughter, E.H.D., from interscholastic athletics for five (5) months from November 19, 2002 to April 19, 2003.  The appeal must be dismissed.

At the time of her suspension, petitioner"s daughter was 15 years old and a tenth grade student at Lake Placid High School.  She played varsity girls" soccer in the fall of 2002 prior to her suspension, and planned to play varsity girls" ice hockey in the 2002-2003 winter season.

Prior to her suspension, E.H.D. had signed a required athletic contract for the upcoming hockey season.  That agreement provided in pertinent part:

1. An athlete"s involvement in any of the following:

a. possession, use, buying or sale of any tobacco products

b. possession, use, buying or sale of intoxicants (alcohol or illegal drugs)

c. attendance in bar rooms and parties where alcohol and drugs are present.

ANY VIOLATION OF a, b, or c, YOU WILL AUTOMATICALLY LOSE YOUR RIGHTS TO CAPTAINCY AND ALL POST SEASON AWARDS.  IF YOU MEET ALL REQUIREMENTS FOR YOUR LETTER, YOU WILL RECEIVE IT.

FIRST OFFENSE OF THESE RULES will result in loss of 1/3 of games for that season.  If 1/3 of games are not left, it will go to next sports season.

a. While on suspension you will:

1. Practice with the team

2. Not dress for games

3. Travel and be on the bench for all games home and away

4. Meet with the school substance abuse counselor.

SECOND OFFENSE will result in dismissal from the team and on probation for five (5) school months.  If your probation period extends into another sports season, you will be allowed to start that sport season and practice.  YOU MAY NOT compete in contests until the probation period is up.

Virtually identical language appears in the district"s athletic policy, which was adopted March 17, 1998, and revised July 9, 2002.

Some of the facts underlying the suspension are in dispute.  On Friday, November 15, 2002, E.H.D. was invited by a fellow student athlete to visit a private residence that evening in Lake Placid.  Later in the evening, E.H.D. and two friends went to the residence by taxi, arriving at approximately 9:20 p.m.  E.H.D. states in her affidavit that she "had no prior indications that there was a party involving alcohol and drugs" (affidavit, paragraph 7).

According to her affidavit, E.H.D. became aware of a "bad situation" as soon as she entered the home and wanted to leave immediately.  She asked her friends to leave with her, but they chose to stay.  Thinking that it was unsafe to try to walk home alone, E.H.D. remained at the home until she was able to get a ride, which was a sensible thing to do.

On Tuesday, November 19, 2002, E.H.D. spoke to her hockey coach.  She explained that she had been at the residence in question the previous Friday night, explained the circumstances, and stated that she had left as soon as possible.  Her coach then brought her to meet with the athletic director and high school principal.

According to the affidavit of the hockey coach, at that meeting E.H.D. admitted that she had attended a party on November 15 where alcohol was present, that she had stayed for at least one-half hour, and further admitted that she knew before going to the residence that alcohol would be present and served.  The affidavit of the athletic director also notes that E.H.D. said that she stayed longer than she wanted to only because she did not have a ride.  At the conclusion of this meeting, the high school principal suspended E.H.D. from interscholastic athletics for a period of five (5) months for violation of provision 1(c) of the athletic contract.

Shortly thereafter, petitioner commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court, Essex County.  On December 13, 2002, Justice Dawson made an oral determination dismissing the petition for failure to exhaust the administrative remedies provided in the athletic policy.

Thereafter, petitioner sought review of the suspension pursuant to the district"s athletic policy.  At petitioner"s request, the district"s Athletic Council met on January 2, 2003.  Petitioner and his daughter both appeared and presented their arguments, and a transcript of the meeting is included in the record.  In the course of the discussion, E.H.D. stated that she did not know that alcohol would be present at the residence prior to going there, and stated that she did not recall admitting any such knowledge in her meeting with the hockey coach, athletic director, and high school principal.  She also stated that when she arrived at the residence it was not apparent to her that it was a party, and that someone later brought alcohol " a statement at odds with her affidavit.  After discussion of the development of the athletic policy through the shared decision making process in 1998, and its interpretation in other cases, the Athletic Council voted 8-0, with one abstention, to uphold the suspension.

By letter dated January 28, 2003, the superintendent affirmed the determination of the Athletic Council.  On March 4, 2003, respondent voted 6-0 to affirm the suspension.  This appeal ensued.

Petitioner argues that, although his daughter admitted being at the premises in question, she did not have knowledge ahead of time that alcohol would be present, and that if she admitted that fact, it was only because of emotional stress she suffered during her meeting with the coach, athletic director, and principal.  Petitioner further argues, among other things, that the athletic contract was never properly adopted by the board of education, and that the contract is unclear as to who enforces it.  He also complains that the contract is not sufficiently clear to advise athletes of possible violations, and that its strict interpretation has resulted in a penalty disproportionate to the offense.

While it appears that the athletic contract was not technically adopted by respondent for the 2002-2003 school year, the relevant language of the contract is identical to the wording of the district"s athletic policy, the adoption of which is not at issue.  Petitioner relies heavily on Diaz v. Board of Education (162 Misc 2d 998), for the proposition that the failure to adopt the contract renders it a nullity.  The facts in Diaz, however, are vastly different from the facts of this appeal.  In that case, a ruling was made by an athletic association officer who clearly had no authority to make such a ruling, whereas here, the athletic policy was properly adopted by the board.

Petitioner further argues that the contract does not specifically designate the school official who is authorized to enforce it.  While that is technically true, the athletic policy provides quite clearly for an informal hearing to include the athlete, his/her coach, and the athletic director or his/her designee.  Such an informal hearing occurred on November 19, when E.H.D. met with her hockey coach, the athletic director, and the high school principal.  The suspension was a direct outcome of that informal hearing.

Petitioner"s reliance on Manico v. South Colonie Central School District (153 Misc 2d 1008) is misplaced.  In that case, the athletic policy had no enforcement provision, and the athletic suspension was imposed by the high school principal along with an academic suspension, immediately before a school vacation.  The court was influenced by the fact that the case arose at the time of a school vacation, and petitioner needed immediate review because his son was barred from a wrestling tournament which was about to begin.  The athletic director and superintendent were both unavailable, the assistant superintendent stated that he could not act, the board of education refused to act until the matter had been reviewed by the unavailable superintendent, and the court needed to issue a restraining order.  I find the facts of the case substantially different from the one at hand, and not instructive.

Petitioner further claims that the contract provisions are unclear, in that there is no definition in 1(c) for "attendance in bar rooms and parties where alcohol and drugs are present."  Petitioner claims that an athlete is not given sufficient specific warning of what constitutes a violation, and that this wording defines a strict liability offense where intent is irrelevant.

The discussion before the Athletic Council is important to understanding petitioner"s argument.  It is clear from the discussion that the language of the contract and the athletic policy was intended to define a strict liability offense.  Athletic Council members indicated that under prior policies, an athlete could be in attendance at a party where alcohol was present, disclaim any drinking of alcohol, and escape any consequences entirely.  It is clear that the current provisions were written to dispense with the element of intent.  It is also apparent that this interpretation has been consistently applied in prior situations.

Even if intent were relevant, the hockey coach and high school principal are quite clear that E.H.D. admitted to them on November 19 that she had known about the presence of alcohol before going to the residence.  At the meeting of the Athletic Council, E.H.D. stated that she did not have such knowledge, and claimed that she did not remember making such an admission.  The Athletic Council had the advantage of hearing and seeing the participants, and voted 8-0, with one abstention, to uphold the suspension, even though it appeared that some members of the Council were hesitant about finding strict liability.  It would not be unreasonable to conclude that those Council members who thought that the knowledge/intent issue was important resolved the question of credibility against E.H.D.

Petitioner has cited no authority for the proposition that a board of education may not define a strict liability offense for which a punishment may be enforced.  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.T., 43 Ed Dept Rep ____, Decision No. 14,916; Appeal of Wright, 38 id. 756, Decision No. 14,134; Appeals of Cynthia and Robert W., et al., 37 id. 437, Decision No. 13,899).  Petitioner bears the burden of demonstrating a clear legal right to the relief sought (Appeal of D.T., supra; Appeals of T.M., Sr., 42 Ed Dept Rep ____, Decision No. 14,855).  I conclude that petitioner has failed to meet his burden.

Finally, I do not find the penalty to be an abuse of discretion.  Prior Commissioner"s decisions have upheld suspensions from extracurricular activities under similar circumstances (see e.g., Appeal of Wright, supra; Appeals of Cynthia and Robert W., et al., supra).  In this case, petitioner"s daughter admits being at a party where alcohol was present in violation of respondent"s policy.  I find that a five-month athletic suspension, although substantial, is not an abuse of discretion (Appeals of Cynthia and Robert W., et al., supra).

I also note that this was E.H.D."s second violation of the district"s athletic policy, the first being consumption of alcohol during the varsity tennis season in 2001.  Respondent has consistently interpreted its policy in such a way that offenses carry over from season to season.  Petitioner suggests that offenses should not carry over.  However, such an interpretation would allow a three-sport athlete to violate the athletic policy twelve (12) times during a four-year high school career without committing a second offense "- a result which I reject.

I have considered the parties" remaining contentions and find them without merit.

 

THE APPEAL IS DISMISSED.

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