A federal judge from the Eastern District of New York has denied a parent’s bid for a temporary restraining order and preliminary injunction on behalf of her daughter in a case in which that daughter was ruled ineligible from athletics because she gave alcohol to a minor student.
In so ruling, the court found that the attempt by the plaintiff to show that the daughter was punished more severely than other similarly situated students failed.
The daughter in the case was Nina Ottaviano, a student who was 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,” 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, defendant Lino 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, 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.
Shortly thereafter, the plaintiff appealed the extracurricular ban to the defendant Kings Park Central School District Board Of Education, which denied the appeal. In response, the plaintiff sought judicial intervention, alleging that the punishment she received violated the Equal Protection Clause and Title IX. The plaintiff then sought an order and injunction to participate in extracurricular activities for the remainder of the year.
Addressing the equal protection claim, the court focused on how “similarly situated individuals must be ‘prima facie identical’ to the plaintiff” and whether Nina was treated disproportionately.
In the instant case, the court noted that the cases cited by plaintiff were alcohol-related violations, but did not involve bringing alcohol on campus, which was a distinguishing variable that negated the plaintiff’s argument.
As for the gender discrimination claim, the court again sided with the defendants that the plaintiff’s comparisons were invalid. “The plaintiff did not provide a single example of a male athlete caught in possession of alcohol on school grounds who received a different punishment,” wrote the court. “Conversely, the defendants provide an example of a male athlete, a star wrestler, who was caught in possession of a controlled substance on school grounds and received the same one-year ban on all extracurricular activities, including athletics.
“The court does not doubt that Nina is an exemplary student and an outstanding athlete. Also, the court is sadly mindful of the collegiate opportunities that Nina may miss out on as a result of this situation. However, on the arguments and evidence submitted to the court, viewing it in the light most favorable to Nina, the court cannot conclude that she is likely to succeed, or has raised serious issues as to whether she is likely to succeed on her federal claims.”
Nina Ottaviano, an infant, by her father and natural guardian, John Ottaviano v. Kings Park Central School District et al; E.D.N.Y.; 10-CV-4962 (ADS) (AKT), 2010 U.S. Dist. LEXIS 136055; 12/23/10
Attorneys of Record: (for plaintiff) Jeffrey Kevin Brown, Esq., Of Counsel, Leeds Morelli & Brown, P.C., Carle Place, NY. (for defendants) Adam I. Kleinberg, Esq., Of Counsel, Sokoloff Stern LLP, Westbury, NY.
