On Appeal From the United States District Court For the District of New Jersey (Trenton), Civil Action No. 86-4673.
Stapleton, Scirica and Cowen, Circuit Judges.
STAPLETON, Circuit Judge:
This is an appeal from a summary judgment in favor of the defendants, Peter Merluzzi, Superintendent of Schools for the Hunterdon Central High School District, and the Hunterdon Central Board of Education. Plaintiff Dan Palmer, a student and football player at Hunterdon, claims that his Constitutional rights to due process and equal protection were violated when Superintendent Merluzzi suspended him from playing interscholastic football for sixty days. We will affirm.
In September of 1986, Dan Palmer was a senior at Hunterdon Central High School and a starting wide receiver on the high school's football team. He was also enrolled in a high school course called "Careers in Broadcasting Technology." On the evening of September 28, 1986, in order to fill a course requirement, Palmer and three other students were assigned, without faculty supervision, to the school radio station, which is located on the school premises. The next morning, beer stains and a marijuana pipe were discovered at the radio station. Later that day, Palmer, school disciplinarian Dr. Grimm, and Mr. Buckley, Palmer's former football coach, met in Mr. Buckley's office and Palmer was questioned about this discovery. During that meeting, Palmer admitted that the evening before he had smoked marijuana and consumed beer at the radio station.
On September 30, 1986, Dr. Grimm sent Mr. and Mrs. Palmer a letter advising them that their son had been assigned a ten-day out-of-school suspension effective from September 30, 1986 to October 13, 1986. The letter asked the Palmers to call Dr. Grimm if they had additional questions and suggested that they and their son consider counseling. The Palmers took no action to contest the ten-day suspension.
After Dr. Grimm's meeting with Palmer, Superintendent Merluzzi conferred about the appropriateness of additional discipline with Dr. Grimm, Mr. Buckley, assistant principal Dr. Myers, Mr. Kleber, the faculty director of the radio station, and Palmer's current football Coach, Mr. Meert. Suspension from extra-curricular activities was discussed and all except Dr. Grimm agreed that such a step was appropriate. No specific number of days for such a suspension was discussed, however.
Thereafter, Merluzzi made telephone calls to two drug-counseling agencies. These agencies suggested sixty days as an average time for the rehabilitation of someone with a minor drug problem, and Merluzzi ultimately decided that sixty days would be an appropriate period for the students concerned to ponder their actions. All students who were involved in the incident at the radio station received the same punishment.
On October 13, the eve of the expiration of the ten-day suspension, the Board of Education met. Palmer's father, James Palmer, hearing "rumors" concerning the possible imposition of additional sanctions on his son, attended the meeting and spoke with Merluzzi shortly before it started. Merluzzi confirmed that he was inclined to impose a sixty-day extra-curricular suspension, but told James Palmer that he could raise the issue with the Board. James Palmer was accorded half an hour in closed session to present his views; he argued that the additional suspension would adversely affect his son's chances of playing football in college and would also reduce his chances of being awarded college scholarships. The Board declined to intervene and, after the meeting, Merluzzi informed all concerned parents that he was definitely going to impose the sixty-day extra-curricular suspension.
Subsequent to the imposition of the sixty day extra-curricular suspension, Palmer appealed to the New Jersey State Commissioner of Education for a review of the actions of the defendants. On October 20, 1986, an evidentiary hearing was conducted before Administrative Law Judge Bruce R. Campbell. Judge Campbell found that the "ten-day out-of-school suspension was procedurally faultless and consistent with announced policy." Appendix at 29. With respect to the sixty-day football suspension, however, he concluded that Palmer had been denied procedural due process. First Judge Campbell decided that Palmer's interest in participating in the school's football program was such that due process was implicated. Due process was not afforded, according to Judge Campbell, because Palmer was not given notice of the proposed sixty-day suspension and afforded a hearing thereon. In the course of so concluding, he observed:
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 ...