Warsaw Community High School varsity soccer player Gustavo Rodriguez will not play this season after Superior Court I Judge Duane Huffer denied a request for preliminary injunction of his suspension Wednesday. The 17-year-old was suspended for 365 days because of alleged marijuana use and failing a urine test where he tested positive for marijuana. Attorney David Kolbe filed for the injunction at the request of the high school senior and his parents, Jose and Maria Rodriguez, arguing that Gustavo’s right to due process was violated. “We respect the decision of the court and appreciate the chance to finally have a full and fair hearing on this,” Kolbe said after the two-hour hearing Wednesday. In rendering his verdict, Huffer said that while it was a shame that the school did not fully follow its own procedures regarding suspensions and the appeal process, Gustavo did get his appeal heard. The Athletic Review Committee heard his appeal Monday and held up the 365-day suspension. Kolbe’s witnesses were Jose and Gustavo. Gustavo’s mother was present but did not testify. According to testimony, Gustavo had smoked marijuana since the seventh grade and was a regular user of pot until a car accident last year. A friend had given him some marijuana for his birthday. The day after his birthday, he met up with his friends and brought the weed with him as requested by the friend who gave it to him, Gustavo testified. He dropped his car off and then got into a friend’s car as a passenger. While Gustavo didn’t see how the accident happened, the car they were riding in hit a tree. After police showed up, Gustavo eventually admitted that he and his friends had been smoking pot and showed the officer where they had hid a small amount because they were scared. Gustavo was put on informal adjustment with the Kosciusko County Probation Department and complied with all the terms of the probation. Once the high school found out about the accident and Gustavo’s marijuana use, he and Jose were told in December that Gustavo would be suspended from sports. Since Gustavo was complying with his probation, Athletic Director Dave Anson said the suspension would be half a season, or 180 days. However, the school did not send a letter by certified mail to his parents about the meeting, according to the Rodriguezes’ testimonies. In mid April, Gustavo was given a random urine drug test, which he failed. Gustavo was shocked at the result. Under oath, Gustavo said he hadn’t smoked any marijuana since the accident last November. “I can proudly say I have not,” he testified. The only time he said he was around drugs and alcohol was April 6 when he went to Fort Wayne to pick up some friends at a party. He said he was only there half an hour and did not partake. Gustavo demanded a second test, which his parents paid for, and which came back negative. Though the school had given Gustavo a drug test in April, he and his family did not receive anything in writing until July 31. Anson later testified he wrote something up in April, but because of “oversight,” never sent it to the Rodriguezes. While on the stand, both Jose and Gustavo testified that they were not allowed to have legal counsel in with them at the Athletic Review Committee. Both also stated that having legal counsel at that hearing would have been a great help to them. For Warsaw Community Schools, attorney William Hopkins Jr. questioned Rodriguez about signing the Athletic Code of Conduct. He acknowledged he had signed it. After Gustavo failed the April urine test, Hopkins asked him what he was told at a meeting about his suspension. “They told me it wasn’t looking good for me right now,” he responded. He said he waited for someone to tell him that he was suspended because he wasn’t clear on the issue but knew it was a possibility. Since the last test came back negative for marijuana, Gustavo said he thought he had a chance of maybe just getting half a season suspended. “I left confused,” Gustavo said. During his testimony, Jose said that he did not receive any notification from the school about Gustavo being suspended. In addition, at the April meeting, Gustavo met with Anson with his mother, who is Spanish speaking. Kolbe said the school should have known better than to conduct such a meeting without an interpreter for the parent and relying on the student to be an interpreter. Hopkins asked Gustavo if he was provided an interpreter or asked for one, which he responded “no” to. Hopkins also asked Gustavo if he told his mother everything that went on at the April meeting. He said he did not. Hopkins’ first witness was Jeff Retz, the scientific director at Witham Memorial Hospital Toxicology Laboratory. He testified how a drug test is performed and to the accuracy of the tests. Hopkins attempted to have Retz testify on the effect of second-hand marijuana smoke, but after Kolbe objected to Retz having any expertise in that area, Huffer sustained Kolbe’s objection. Hopkins then called Anson to the stand. Anson testified that at the April meeting he did not indicate it was a “possibility” that Gustavo would be suspended for 365 days, but that he “would be suspended” for 365 days. Anson, and later WCHS Principal Troy Akers, did admit some mistakes were made regarding mailing out notices via certified mail on a timely basis. Asked, however, what the repercussions would be if Gustavo was allowed back on the team, Anson said, “The effect and impact on teams would be detrimental.” Kolbe also grilled Anson on the suspension and appeal process, at one point asking Anson if having a meeting with a student and his non-English-speaking mother was sufficient. When Anson said yes, Kolbe asked him if there could have been confusion at the meeting, to which Anson agreed there could have been. Kolbe also asked Anson how letting Gustavo back on the team could harm the school. Anson said it would affect the character of the program and students following rules. He also acknowledged he didn’t follow all the procedures in this case. Akers testified he wouldn’t change the 365-day suspension because he has to stand by the school’s athletic code and because Gustavo had two offensives and the level of those offensives. In his closing remarks, Kolbe said there have been a number of procedural errors in the case, including certified letters not sent out after the December and April meetings. He also pointed out that the testing process in the student handbook is confusing. It was also “tragic” to expect a child to be the interpreter for his parent. Hopkins acknowledged that mistakes were made, but there was no evidence of “compression” of a decision, as Kolbe alleged during the hearing. There is no fundamental due process right or right to counsel in sports, he continued. Gustavo did get a fair hearing, he said. “As we sit here today, what are they really asking for? For a kid who flunked two drug tests to play the second half of a season? Are they asking you to weigh our screw-ups versus his drug problem?” Hopkins asked.
