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Nina Ottaviano, An Infant, By Her Father and Natural Guardian, John Ottaviano v. Kings Park Central School District

December 23, 2010

NINA OTTAVIANO, AN INFANT, BY HER FATHER AND NATURAL GUARDIAN, JOHN OTTAVIANO, PLAINTIFF,
v.
KINGS PARK CENTRAL SCHOOL DISTRICT, KINGS PARK CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION,
SUSAN AGRUSO, LINO BRACCO, WILLIAM MOTHERWAY, MARIE GOLDSTEIN, STEVE WEBER,
TOM LOCASCIO, AND LIZ BARRETT (INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES), DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

This case arises from the decision of the above named defendants (collectively the "Defendants") to suspend Nina Ottaviano ("Nina" or the "Plaintiff") from all extracurricular activities for one year following her admission that she provided another student with alcohol. The Plaintiff filed this action alleging that the Defendants: 1) violated the Equal Protection Clause of the Fourteenth Amendment by imposing a harsher punishment on her than on other students who committed less serious infractions; and 2) improperly discriminated against her under Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq., by preventing her from participating in sports for one year when male athletes who also committed alcohol related infractions were not banned for one year.

On December 13, 2010 the Plaintiff moved by order to show cause for a temporary restraining order and a preliminary injunction against the Defendants requiring them to allow her to participate in extracurricular activities generally, and in varsity basketball specifically. The Court scheduled the case for a hearing on the order to show cause for December 15, 2010. On that date, the Plaintiff waived a hearing for a temporary restraining order and a preliminary injunction.

Upon a review of the arguments set forth in the parties' submissions and the relevant law, for the reasons set forth below, the Court denies the Plaintiff's motion for a temporary restraining order and preliminary injunction.

I. BACKGROUND

A. Factual Background

The following facts are taken from the parties' submissions, as well as the Affidavit of John Ottaviano ("Ottaviano Affidavit"), the Affidavit of Lino Bracco ("Bracco Affidavit") and the Affidavit of Susan Agruso ("Agruso Affidavit"). As discussed later in the opinion, unless evidence is presented to the contrary, the Court considers all the relevant facts as true.

Nina Ottaviano is a student in her senior year at Kings Park High School. On September 16, 2010, approximately two weeks into the 2010-2011 school year, Nina attended a school function called the "Senior Banquet." The Senior Banquet is an annual event hosted by the Kings Park Central School District that is held off the school grounds for all of the senior students at the high school. Students are transported to the Senior Banquet by buses that leave from the high school. As the students boarded the bus to attend the Senior Banquet, a minor female student-referred to throughout this opinion as "M.S."-was caught with a hairspray bottle containing alcohol. After the Senior Banquet was over, Nina approached the principal of the school, the defendant Lino Bracco ("Bracco" or "Principal Bracco") and admitted to having provided M.S. with the alcohol. The parties dispute whether Nina brought the alcohol to school, or whether she was simply a conduit who passed the alcohol from one student to M.S. The parties also dispute whether Nina gave M.S. the alcohol on school grounds.

On September 17, 2010, Nina met with Principal Bracco who informed her that her punishment would be a two day suspension. This suspension was one day longer than the suspension received by M.S. because M.S. was not permitted to attend the Senior Banquet. Subsequently, Principal Bracco, who was new to the position, consulted Superintendent Susan Agruso ("Agruso" or "Superintendent Agruso"), also a defendant in this action, and the athletic director to ascertain the policy for punishing students who possessed alcohol on school grounds. Superintendent Agruso and the athletic director informed Principal Bracco that the offense carried a one-year suspension from all extracurricular activities, including athletics. Principal Bracco relayed this information to Nina and her parents in a conversation later that day, and informed them that the punishment was part of the school's "zero-tolerance policy" for possession of alcohol on school grounds. Prior to the disciplinary action giving rise to this case, Nina was a member of the National Honor Society, Students Against Drunk Driving, an editor of the Kings Park High School Newspaper, a varsity soccer player and a varsity basketball player. Nina's punishment meant she could not participate in any of these activities, or any new extracurricular activities, for the remainder of her senior year. In addition, Nina will not be able to list on her college applications that she participated in any extracurricular activities during her senior year.

B. The Policies

There are three policies that govern the discipline of students. The first is the District's Code of Conduct, which is distributed annually as part of the school calendar (the "Calendar Policy"). (Brown Decl., Ex. A.) The Calendar Policy lists possession of alcohol as a "Level 5 Infraction," and provides that one possible disciplinary action for committing a Level 5 Infraction is the "[r]emoval of student for calendar year from extracurricular, co-curricular and athletic activities." (Id.) The second policy is the Athletic Participation Policy, which states: "No student/athlete will possess or consume alcoholic beverages at any time or place during the school year" and that "[a]ny violation of the drug and alcohol policy will result in a one year suspension starting from the date of the incident." (Brown Decl., Ex. B.) The third policy is a policy that appears on the athletic department's folder and is referred to as the "Athletics Folder Policy," which states in relevant part that "[f]ailure to adhere to [the Board of Education and Athletic Department Rules] rules and policies might result in your suspension and/or dismissal from the team." (Brown Decl., Ex. C.)

In her Affidavit, Superintendent Agruso states that although these policies are discretionary and can be altered, the school has interpreted the policies to establish the following rules:

The District categorizes offenses involving unlawful and/or controlled substances into three categories and administers discipline accordingly. These are generally:

1. Caught in possession of a controlled substance at school or school events - suspension from school plus an automatic 1 year suspension from extra-curricular activities, including athletics.

2. Caught intoxicated at school, on school grounds, or at school-sponsored events -suspension from school as well as discipline according to team rules.

3. Intoxication outside of school - the District administrators generally do not get involved with such matters, however, coaches may discipline their teams as necessary.

(Agruso Aff. ¶ 32.) In Nina's case, the school determined that her transgression fell into the first category, and Agruso stated that the school has a "zero-tolerance" policy for infractions falling into that category. (Id. ¶ 33.)

C. Procedural Background

In October 2010, after seeking reconsideration by Bracco and Agruso to no avail, the Plaintiff appealed the extracurricular ban to the defendant Kings Park Central School District Board Of Education (the "School Board"). On October 6, 2010 the School Board denied the appeal from the disciplinary proceeding determination. As a result, the Plaintiff filed the instant action on October 28, 2010, alleging that the punishment she received violated the Equal Protection clause and Title IX. Subsequently, on November 29, 2010, the Plaintiff initiated an Article 78 proceeding in Suffolk County Supreme Court appealing the Defendants' decisions and requesting that the Plaintiff be permitted to participate in extracurricular activities for the remainder of the year. On December 13, 2010, with the Article 78 proceeding still pending and unresolved, the plaintiff filed the instant motion for a temporary restraining order and preliminary injunction seeking the identical relief to that being sought in the Article 78 proceeding. As stated above, on December 15, 2010, the Court held an order to show cause hearing, where the parties addressed the issues discussed below. At this hearing, plaintiff's counsel stated that Plaintiff waived her right to an evidentiary hearing:

MR. BROWN: Your honor, we'd waive our right to a hearing. We'd like to submit the papers. We've had I think positive communications with defendant's counsel based upon ideas you gave us in your chambers. So we will get back to you by Friday whether or not we can reach a resolution, if that's okay with your Honor. (Rough Tr.*fn1 33:9--14.) On Friday, December 17, 2010, the Defendants wrote to the Court advising the Court that a resolution could not be reached and ...


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