LITTLE EGG HARBOR TOWNSHIP - A former Pinelands Regional Middle School student and the American Civil Liberties Union of New Jersey are challenging the school district's zero-tolerance drug policy after the student was suspended for five days in 2008 when an over-the-counter allergy pill was found in his locker.

The Superior Court Appellate Division judges sent the case back to an administrative law judge Tuesday to decide the constitutionality of such policies in schools.

On April 16, 2008, a staff member at the school noticed a group of students acting in a suspicious manner and that dissipated when they saw the staff member. The following day, a parent contacted the school to express concerns of possible "transactions involving pills taking place in school."

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So two days later, school staff searched the locker of at least one eighth-grader - identified in court documents only as "P.P." because he is a minor - where they found an Alavert pill.

Alavert is a nonprescription antihistamine, similar to Claritin, that can help relieve and prevent allergy symptoms.

Wildwood-based attorney Frank L. Corrado, cooperating council for the ACLU of New Jersey, said his client was an honor-roll student and a member of both the National Honors Society and the school's band at the time of the incident.

"The boy has some allergies and his mother gave him a couple pills the previous year. But unknown to him, one of those pills had rolled under the piece of cardboard that is put in most backpacks to provide a sense of space," said Corrado, adding that school officials located the pill while searching the boy's backpack as it hung in his locker. "And for this, he was immediately suspended for five days."

The Press of Atlantic City contacted the attorney who handled the appeal for the Board of Education on Tuesday, but he declined to comment.

However, according to the decision, the "Code of Conduct" in the school board's 2008 student handbook stated: "‘misbehaviors' for which an ‘out-of-school suspension' could be imposed included a student's ‘possession ... of any item ... considered dangerous (e.g., weapons, drugs, alcohol, firecrackers, etc.)'" and that such conduct carried a five-day suspension, although the policy permitted modification at the discretion of the principal or assistant principal.

The board also adopted a separate policy prohibiting the administration of any medication to students unless the student's parents requested it in writing.

"Then, only medical professionals would dispense the medication," the policy stated.

But Corrado argues that school districts are governed by state law, which has statutes and regulations for discipline that allow for the automatic suspension of students following only a handful of specific incidents - such as assaulting a teacher or possession of a weapon - but entitles students to "procedural due process" for all other offenses.

Any zero-tolerance policy resulting in the automatic suspension of a student for possessing allergy medication, such as in this case, is a clear violation of what the student is entitled to under the constitution, he said.

"The set of facts in this case illustrate the kind of problems that zero-tolerance policies can create," Corrado said. "One-size-fits-all policies, in many incidents, are disproportionate to the severity of the offense and therefore raise serious constitutional questions."

The student's family and the ACLU filed two complaints against the school district in March 2009 - one to have his suspension reversed and a second that alleged the board's policy violated his procedural due process rights under the New Jersey Constitution.

The judges upheld a prior decision by a Law Division judge to dismiss count one of the complaint - because the plaintiff took too long to file the complaint. But they ruled Tuesday that the Law Division judge does have the authority to rule on the second count and sent the matter back to them to do so.

A date for that hearing was not set as of Tuesday afternoon.

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