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PALMER v. MERLUZZI

April 12, 1988

DANIEL K. PALMER, ET AL., Plaintiffs,
v.
PETER L. MERLUZZI, ET AL., Defendants


Wolfson, United States Magistrate. Fisher, United States District Judge.


The opinion of the court was delivered by: WOLFSON; FISHER

{F. Supp. 402contd}

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

 [EDITOR'S NOTE: the page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

 REPORT and RECOMMENDATION

 FREDA L. WOLFSON, UNITED STATES MAGISTRATE

 This litigation involves, inter alia, plaintiff Daniel Palmer's (Palmer) claim that defendants, Peter L. Merluzzi (Merluzzi) and the Hunterdon Central Board of Education (The Board of Education) violated plaintiff's Fourteenth Amendment right to due process when they suspended him from participating in extracurricular events for sixty days. In the instant motion, defendants have moved for summary judgment. Plaintiff opposes this motion and has cross-moved to compel defendants to provide certain discovery. *fn1" These motions were referred to me by the Honorable Clarkson S. Fisher, U.S. District Judge.

 BACKGROUND

 At all relevant times, Palmer was a senior at Hunterdon Central High School (the High School) located in Raritan Township. Merluzzi was the Superintendent of Schools for the Hunterdon Central Regional School District. The Board of Education is the duly elected governing body for the Hunterdon Central Regional School District.

 Daniel Palmer was a starting wide receiver on the high school football team. He also was enrolled in a high school course known as "Careers in Broadcasting". On the evening of September 28, 1986, in conjunction with this course, Palmer and three other students had been assigned to the high school radio station. The next morning, school administrators questioned the students, including Palmer, about the discovery of beer stains and a marijuana pipe at the radio station. At this meeting, Palmer admitted to Dr. Paul Grimm, the school disciplinarian, that he had smoked marijuana and drank beer the previous night at the radio station.

 Palmer was then suspended by Dr. Grimm for ten days pursuant to Policy 5380 of the High School *fn2" and the Student Handbook.3 This suspension applied to both curricular and extracurricular activities of the school. Dr. Grimm telephoned Palmer's father, James Palmer, later that morning to inform him about the incident and the resulting suspension. Written confirmation of the ten day suspension dated September 30, 1986 was mailed to Palmer's parents and received on or about October 2, 1986. In that letter, Dr. Grimm specified the dates of suspension as being September 30 through October 13, 1986. This letter made no mention that any additional penalties were being considered.

 Thereafter, Merluzzi contacted two local drug and alcohol rehabilitation centers for a recommendation as to how to handle the situation. Specifically, Merluzzi sought information concerning "what would [be] . . . a reasonable period of time to accomplish some change in attitude amongst those individuals." (T 125) *fn5" Merluzzi did not inform the representatives he questioned that he was considering suspending the students from extracurricular activities. Merluzzi was told that sixty days was a reasonable period of time "to undergo some change". Id. Besides the incident in question, there was no evidence before Merluzzi that Palmer was a drug/alcohol abuser or that he had even previously used drugs or alcohol; Merluzzi did not even review Palmer's file before contacting the rehabilitation centers.

 On or about October 9, 1986, Palmer's father heard rumors that additional penalties might be imposed on his son. Mr. Palmer telephoned Dr. George Collier, President of the Board of Education, to discuss his concerns. During that conversation, Mr. Palmer was advised by Dr. Collier to address the matter in writing to the Superintendent of Schools, and further, that the matter might be discussed in more detail at a Board of Education meeting scheduled for October 13, 1986. Neither Mr. Palmer or his son ever received formal notice that further disciplinary action against Dan Palmer was being considered or that they should attend the upcoming Board meeting.

 Sometime before the October 13th Board of Education meeting, Merluzzi decided to recommend to the Board that Palmer and the other students be suspended from extracurricular activities for sixty days. *fn6" In reaching this decision, Merluzzi primarily relied on Policy 138 which states in pertinent part:

 
"No student may participate in a scheduled event if he was not in attendance on the day of the athletic event, or the day preceding a weekend event. No student may participate who has not demonstrated good citizenship and responsibility. No student who has not returned all equipment may participate in a succeeding season." (Emphasis added).

 Prior to the commencement of the Board meeting, Merluzzi and Palmer's father accidently met in the hallway. Palmer's father questioned Merluzzi if he was going to recommend that his son face additional penalties. Merluzzi stated that he was going to recommend that a sixty day extracurricular suspension be imposed. Shortly thereafter, the meeting began. Nothing was mentioned about the possible additional suspensions until Palmer's father inquired about his son's status. The Board then retired into executive session and heard statements made by Palmer's father and the recommendations of Merluzzi. After the conclusion of the meeting, no formal action was taken by the Board and the matter was apparently referred back to Merluzzi for further review. Shortly thereafter, Merluzzi informed Palmer's father that a sixty day extracurricular suspension would be imposed.

 On October 20, 1986, a hearing was conducted before the Honorable Bruce R. Campbell, A.L.J. Judge Campbell, in a written opinion, found that the "ten-day out-of-school suspension was procedurally faultless and consistent with announced policy." D.K.P. By His Guardian Ad Litem J.P. and J.P. and B.P. v. Board of Education of Hunterdon Central Regional School District and Peter L. Merluzzi, Superintendent, OAL Dkt. No. EDU 7004-86 at 3 (October 21, 1986). Therefore, the request to set aside and expunge the ten-day suspension was denied.

 Concerning the extracurricular suspension, Judge Campbell found that the defendant's conduct denied Palmer due process and thus he remanded this issue to the Board for proceedings consistent with the decision. Specifically, Judge Campbell held,

 
1. Extracurricular activities, contrary to what the name implies, are part of the organized activities of the school; that is, the curriculum.
 
2. A board of education has the right, under particular circumstances, to exclude pupils from extracurricular activities.
 
3. An exclusion from this part of the curriculum for more than ten days may not, in right reason and basic fairness, be accomplished without furnishing the affected pupil advice of the proposed exclusion and an opportunity to be heard.
 
4. "This is not to imply that a full dress judicial hearing with a right to cross-examine witnesses is required." Dixon v. Alabama, 294 F.2d 150 at 158-159.
 
5. In a case such as the present matter, the necessary elements of due process relative to an exclusion from extracurricular activities can be provided in the general suspension process provided that that part of the penalty going to extracurricular activities be made known to the pupil at the time.
 
6. In the present case, a ten-day suspension was imposed, was consistent with what pupils and parents would expect from reading The Informational Calendar and Student Handbook (J-2) and was in its ninth day before pupil and parents had any official notice that an additional penalty was being considered.
 
7. This eleventh hour, additional penalty, coming without official notice and without any chance to be heard, flies in the face of all notions of fundamental fairness.

 The Commissioner of Education affirmed the finding of the Administrative Law Judge regarding the suspension for ten days. However, the Commissioner set aside the stay of the sixty day extracurricular suspension previously imposed. Specifically the Commissioner found:

 
The record shows that he [Merluzzi] consulted existing Board policy on interscholastic athletics (J-7), as well as policies 536 (J-3), 537 (J-4), and 538 (J-5) relating to school discipline and drugs. Based upon such review, he consulted with other members of the faculty and staff, as well as two external counseling agencies, before making a determination to add an additional penalty of the 60-day exclusion from extracurricular activities. Upon his review of the aforementioned documents, the Commissioner is convinced that the action taken by the superintendent was consistent with the responsibilities delegated to him by the Board which did not specifically require Board approval prior to their imposition, even though the superintendent did ultimately bring the matter to the Board.
 
"Offenses involving the abuse of drugs are a serious menace to the mental health of our society, and the introduction and abuse of drugs in the public schools must be dealt with swiftly, in order to prevent their further introduction to other students."
 
And just as in that case wherein E.E. had deliberately acted in violation of school policy and the state laws on school grounds, the Commissioner determines herein that the Board's action denying the privilege of participation in an extracurricular activity to be a reasonable exercise of the Board's discretionary authority.

 Id. at 5-6. The Commissioner directed the Board of Education to grant Palmer and his parents an immediate opportunity to informally present their reasons for mitigation or the setting aside of the suspension.

 Plaintiff appealed the Commissioner's ruling to the Appellate Division of the Superior Court of New Jersey seeking to stay the ban from all extracurricular activities. The Appellate Division denied this application. Plaintiff then appealed the decision of the Appellate Division to the New Jersey Supreme Court. The New Jersey Supreme Court declined to hear the matter.

 On October 27, 1986, Palmer's attorney presented oral argument to the Board. The next day, plaintiff was notified in writing of the Board's decision affirming the penalty imposed by Merluzzi.

 On November 25, 1986 plaintiff filed a complaint in this court. On March 25, 1987, on petition by plaintiff, the Commissioner dismissed the matter without prejudice. The only pending action is the one before this Court.

 DISCUSSION

 1. Property Interest - Due ...


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