The opinion of the court was delivered by: LARIMER
Pending before me is defendants' motion for summary judgment.
During the 1994-95 academic year, George was a junior at Horseheads High School and a member of the Marching Band. In October 1994, George was invited to participate in a Macedonian music festival--an event that apparently had special meaning to George because of his heritage, ethnic background, and culture. Participation required George to be in Toronto on October 16 and October 22. After reviewing his Marching Band schedule, George realized, however, that there was an exhibition performance in Corning, New York on October 15 and a competition performance in Williamsport, Pennsylvania on October 22.
George discussed the music festival with Carichner and the possibility of being excused from these performances. According to George, Carichner told him that he would be allowed to miss one of the two performances, but not both. Carichner maintains, however, that he gave George permission to miss the October 15 exhibition, but not the October 22 competition.
George attended the October 15 exhibition performance with the Marching Band, but missed the October 22 competition performance. He participated fully in the Macedonian music festival.
When George returned to school on the Monday following the festival, his guidance counselor informed him that he was no longer in the Marching Band because he had missed a performance without permission. Additionally, as a result of being dropped from the Marching Band, George was no longer in good standing in the Music Department and, therefore, was ineligible to participate in the All State Band.
Vera and Pando met with George's guidance counselor, principal Kent, and Carichner. Kent informed George's parents that he would review the circumstances surrounding George's dismissal and would talk to all music department teachers before a final determination was made. Upon further consideration, each music department teacher voted in favor of George's removal from the Marching Band. Kent agreed with this decision and informed Pando of it by telephone.
In this action, plaintiffs claim that defendants violated George's constitutional right to procedural due process.
Defendants move for summary judgment, arguing that participation in a high school marching band does not constitute a constitutionally protected property interest, entitling George to procedural due process.