concurring in part and dissenting in part.
It is uncontroverted that for the purposes of this appeal Daniel Palmer and some other persons consumed beer and smoked marijuana in the school radio station on the evening of September 28, 1986. Palmer does not challenge the propriety of his initial ten-day suspension from school. Instead, he challenges the imposition of the sixty-day suspension from extracurricular activities. The majority implicitly acknowledges that Palmer has a protected property interest in his continued participation in extracurricular activities, maj. typescript op. at 96, but concludes that Palmer has received due process. I agree that Palmer has a protected property interest in his continuing participation in Hunterdon’s football program (assuming eligibility requirements are met). However, because I believe Palmer has not received due process, I respectfully dissent.
*97I.
In determining whether Palmer has a protected property interest in extracurricular activities, this Court must apply New Jersey law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (property interests are defined by state law). Because the Supreme Court of New Jersey has not yet addressed the issue, our task is really one of predicting New Jersey law. Compagnie Des Bauxites de Guinee v. Insurance Co. of N. Am., 724 F.2d 369, 371 (3d Cir.1983); Connecticut Mut. Life Ins. Co. v. Wyman, 718 F.2d 63, 66 (3d Cir.1983).1
Under New Jersey law, Palmer unquestionably has a legitimate entitlement to a public education. New Jersey law requires that local authorities provide a free education to all residents over five and under twenty years of age. N.J.Stat.Ann. § 18A:38-1 (West 1968 & Supp.1988). New Jersey law further provides for compulsory attendance of all students between the ages of six and seventeen. N.J.Stat.Ann. § 18A:38-25 (West 1968). While no New Jersey statute specifically requires schools to provide extracurricular activities, New Jersey law does require public schools to offer “[a] breadth of program offerings designed to develop the individual talents and abilities of pupils.” N.J.Stat.Ann. § 18A:7A-5(d) (West 1968 & Supp.1988). Further, “extracurricular activities, including interscholastic athletics, play an integral part in satisfying the breadth of programs requirement.” Burnside v. New Jersey State Interscholastic Athletic Ass’n, Doc. No. A-625-84T7 at 5 (N.J.Super.Ct.App.Div., Nov. 15, 1984) (unpublished opinion); see also, Smith v. Board of Educ. of the Borough of Paramus, 1968 S.L.D. 62, 65 (decision of the New Jersey Commissioner of Education) (quoting Evaluative Criteria, 1960 Edition, of the National Study of Secondary School Evaluation) (“[t]he School provides for two general kinds of educational experiences, the regular classroom activities and those called extracurricular or cocurricular,” and “[tjogether they form an integral whole aimed toward a common objective”), aff'd, by the New Jersey State Board of Education on February 5, 1969.
The question of whether a student has a protectible interest in his continuing participation in extracurricular activities has been faced by numerous courts with differing results. Compare Davenport v. Randolph County Bd. of Educ., 730 F.2d 1395, 1397 (11th Cir.1984) (“‘[t]he privilege of participating in interscholastic activities must be deemed to fall ... outside the protection of due process.’ ”) (quoting Mitchell v. Louisiana High School Athletic Ass’n, 430 F.2d 1155, 1158 (5th Cir.1970)); Herbert v. Ventetuolo, 638 F.2d 5 (1st Cir.1981) (high school students had no property right to play interscholastic sports under Rhode Island law and, thus, students who were suspended from the hockey team were not entitled to notice and a hearing); Walsh v. Louisiana High School Athletic Ass’n, 616 F.2d 152, 159 (5th Cir.1980) (“A student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.”), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Parish v. National Collegiate Athletic Ass’n, 506 F.2d 1028 (5th Cir.1975) (basketball players who lost the opportunity to play in association-sponsored college tournaments through operation of an eligibility rule were not deprived of a “property” interest or a “liberty” interest which is protected by the due process clause); Pegram v. Nelson, 469 F.Supp. 1134 (M.D.N.C.1979) (no formal proceedings were required in a four-month suspension from extracurricular activities); and Dallam v. Cumberland Valley School District, 391 F.Supp. 358 (M.D.Pa.1975) (participation in interscholastic high school competitions is neither a right *98nor a privilege protected by the due process clause) with Boyd v. Board of Directors of McGehee Sch. Dist., 612 F.Supp. 86, 93 (E.D.Ark.1985) (notice and a hearing were required before a student could be suspended from the football team since “participating in interscholastic athletics must be deemed a property interest protected by the due process clause of the Fourteenth Amendment.”); Behagen v. Intercollegiate Conference of Faculty Representatives, 346 F.Supp. 602, 604 (D.Minn.1972) (the interest of college athletes in participation in sports is of such importance that it cannot be impaired without minimum standards of due process); Duffley v. Hew Hampshire Interscholastic Athletic Ass’n, 122 N.H. 484, 446 A.2d 462 (1982) (finding a due process right under state constitution for deprivation of extracurricular activity participation). In reviewing the facts of the instant case and New Jersey case law, the United States Magistrate concluded that “New Jersey case law, consistent with the majority of state and federal courts, specifically rejects the notion that participation in extracurricular activities is anything but a privilege.” App. at 129 (citing Dennis v. Holmdel Bd. of Educ., 1977 S.L.D. 388 (decision of the New Jersey Commissioner of Education)).2 The district court agreed. App. at 107.
However, the notion upon which many of the New Jersey cases rely — that participation in extracurricular activities is a mere privilege as opposed to a right — is fast becoming outdated. Indeed, courts and commentators increasingly attack the “privilege” versus “right” distinction.3 Although New Jersey may not be constitutionally obligated to establish and maintain a system of extracurricular activities, many of its public schools, nevertheless, have done so. The New Jersey statutes implicitly acknowledge the importance of extracurricular activities. Public funds support the schools’ various “extracurricular” activities. Further, the Commissioner of Education has required teachers to supervise such activities when called upon to do so.4 Most importantly, a growing consensus indicates that the programs are not “extra” *99curricular, but rather, are an integral part of the whole curriculum. See supra, dissenting typescript op. at 98 n. 4 (discussing Paramus). Authority in New Jersey does support that proposition that “each pupil has a right to the opportunity to participate in interscholastic athletics and other extracurricular activities.” Burnside v. New Jersey State Interscholastic Athletic Ass’n, A-625-84T7 at 5-6 (N.J.Super.Ct.App.Div.) (Nov. 15,1984) (unpublished opinion). Were the New Jersey Supreme Court to consider the issue today, I believe it would recognize a protected interest in participation in extracurricular activities, assuming eligibility requirements are met.
II.
The question then becomes what process is due before Palmer’s right to participate may be withdrawn. See Morissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). The majority seems to find that no greater procedural protections are required because suspension from extracurricular activities was imposed in conjunction with the ten-day suspension. Its holding appears to be premised on the proposition that while extracurricular activities [i.e., football] are “an integral part of [the school’s] educational program,” maj. typescript op. at 95, a separate due process hearing is not required for deprivation of each component of that integral whole. This analysis and characterization of the issue ignores the fundamental point that students in New Jersey have the right to an opportunity to participate in extracurricular activities, see Burnside, supra, and that, once accorded that right, it cannot *100arbitrarily be taken away.5 The Supreme Court has stated that “[t]he authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards.” Goss, 419 U.S. at 574, 95 S.Ct. at 736. While it is true that “school disciplinary rules need not be as detailed as the criminal code which imposes criminal sanctions,” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 3165, 92 L.Ed.2d 549 (1986), students should not be subjected to the unrestrained hands of school authorities who wish to act whenever and however they please.
It cannot be denied that Superintendent Merluzzi acted in a wholly arbitrary manner in denying Palmer notice and an opportunity to be heard before an impartial decision-making forum. Merluzzi’s own testimony establishes that upon learning of the incident, he reviewed Board Policy No. 138 concerning interscholastic activities, and in particular, the last paragraph of section 3, which provides:
No student may participate in a scheduled event if he was not in attendance on the day of the athletic event, or the day preceding a weekend event. No student may participate who has not demonstrated good citizenship and responsibility. No student who has not returned all equipment may participate in a succeeding season.
App. at 105. He then met with administrators and the football coach. He solicited their views on an additional penalty. A consensus (not unanimous) was reached in favor of an additional penalty although no specific number of days was then determined. Dr. Grimm, the school disciplinarian, did not favor an additional penalty. Merluzzi then telephoned two counseling agencies and got their views as to an appropriate period of rehabilitation. He believed that under existing Board policies that he was empowered to make and enforce such decisions regarding exclusion from extracurricular activities.
The Board met on October 13, 1986. Pri- or to the meeting, Palmer’s father and Mer-luzzi accidentally met in the hallway. Palmer’s father asked Merluzzi, before the meeting if, as rumor had it, Merluzzi was going to invoke a sixty-day exclusion from extracurricular activities. Merluzzi said he would recommend such a penalty. He also stated that he was not seeking Board approval to do so since he had authority to *101mete out this type of penalty. Nothing was mentioned about the possible additional suspensions until Palmer’s father inquired about his son’s status. The Board then retired into an executive session and heard statements made by Palmer’s father and the recommendations of Merluzzi. After the conclusion of the meeting, no formal action was taken by the Board and the matter was apparently referred back to Merluzzi for further review. Shortly thereafter, Merluzzi informed Palmer’s father of the sixty-day suspension.
Astonishingly, Merluzzi did not even review the records of the students involved before deciding on the punishment. Instead, Merluzzi relied on recommendations from drug rehabilitation centers without ascertaining whether or not Palmer was in need of “rehabilitation.” It is undisputed that this was Palmer’s first drug offense in school. There is no indication that Palmer had ever used drugs previously. Thus, it is difficult to conceive how an informed and effective decision regarding discipline can be made in this manner.
With regard to James Palmer’s “opportunity to be heard,” the majority notes that “Palmer’s father was advised that a sixty-day suspension was under consideration and was afforded an opportunity thereafter to address the appropriateness of that sanction.” Maj. op. at 94 n. 3. However, given the nature of the circumstances in which James Palmer found himself, this is a woefully inaccurate statement. First, I find it troubling that this Court would deem a “rumor” to constitute adequate notice of a sanction of this type. Merluzzi did not advise the parents or students involved of his intended action before October 13, 1986. There is nothing in the record to indicate that the Palmers had been given official notice of the impending action nor is there any indication that someone from the Board had been designated to contact the Palmers for purposes of informing them that further sanctions were to be discussed.
Second, the record clearly shows that James Palmers’ “opportunity” to address the Board was, at best, an opportunity to “vent” his frustrations before a body that ultimately exercised no authority in the decision to impose the sixty-day sanction. The record indicates that the decision was a foregone conclusion by the time of the October 13, 1986 Board meeting. After hearing oral argument and testimony from Mer-luzzi himself, the AU found that Merluzzi “was not seeking Board approval to do so [mete out the sixty-day suspension] because he had the authority to hand out this type of penalty [himself].” App. at 30. The AU additionally found that Merluzzi “had ‘mulled over’ the decision since his meeting with school administrators on October 2 or 3” and “when he spoke to parents after the October 13 Board meeting nothing would have changed his mind.” Id. What the majority refers to as an “opportunity” to be heard was, in reality, nothing more than a statement by James Palmer which fell on the deaf ears of Mer-luzzi and which was heard by a body having no apparent input in the decision. This mere illusion of an opportunity to be heard should not be deemed sufficient to pass constitutional muster.
Finally, the majority “decline[s] to adopt such a requirement [of notice] in a situation like the one before us in which the possible sanctions are knowable from previously published materials or are obvious from the circumstances.” Maj. op. at 94. The sanctions were certainly not obvious from past practice nor were they apparent from published materials. The record indicates that this was the first time punishment in excess of ten days had been imposed under Hunterdon’s drug policy. Further the School Handbook provided only for a ten day suspension for a first offense. It was only after Palmer’s incident that the school regulations were modified to provide, for a first offense, “10 days’ suspension from school and all functions” and “60 calendar days’ suspension from school activities starting with the student’s return to school.” App. at 147.6
*102Because I believe Superintendent Merluz-zi acted in a wholly arbitrary manner in taking away a protected property interest and what may have been Palmer’s only avenue to higher education, I respectfully dissent.
. It is well settled that "[i]n the absence of an authoritative pronouncement by a state's highest court, we may give serious consideration to the opinion of an intermediate appellate court.” Aetna Casualty & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir.1988). While there exist several intermediate appellate decisions as well as decisions by the New Jersey Commissioner of Education pertaining to the issues presented in this case, for the reasons discussed infra, I believe the cases are not indicative of how the New Jersey supreme court would rule today.
.In Dennis a high school student was suspended from the high school football team and denied his athletic letter because he violated training rules by consuming alcohol during the season. The student apparently did not dispute his suspension but argued that he was unaware that he could forfeit his letter by drinking. He also contended that he was denied due process because he was never given a full hearing to present his side of the incident.
The Commissioner of Education upheld the suspension and the denial of the letter. He held that "[I am] not aware of any law or administrative rule supporting petitioner’s argument that he was denied procedural due process because he was never afforded a hearing before the Board. It must be remembered that participation in interscholastic athletics is a privilege which is subject to rules made by local boards of education.” Dennis, 1977 S.L.D. 388, 391.
The decision in Dennis has been followed in two recent cases. See H.O. v. Montgomery Twp. Bd. of Educ., OAL Dkt. Educ. 6887-85 (March 12, 1986), adopted by the N.J. Comm'r of Educ. (April 28, 1986); L.L.S. v. Board of Educ. of the Borough of Haddonfield, OAL Dkt. Edu. 5009-86 (Sept. 26, 1986), adopted by the N.J. Comm’r of Educ. (Oct. 30, 1986) (there is no right to participate in school band as a drum major); Winfield Brooks v. Regan, No. 81-3610 at 5 (D.N.J. Dec. 2, 1982) (Fisher, C.J.) (unpublished) (holding that “since plaintiff Winfield Brooks had no property interest in playing football, this court need not determine if he was dismissed in accordance with due process.”).
. For example, several respected commentators on constitutional law have suggested that:
[T]he right-privilege distinction has come to an end as both courts and commentators have realized that the individuals should not be subjected to the unfettered discretion of government to withhold even “privileges." Such a rule would leave many individuals at the mercy of a bureaucratic system and threaten the liberties protected by the Bill of Rights. When the government acts to dispense benefits, it must conform to the restrictions of the Constitution, which means that it may not deprive someone of an interest to which they are otherwise entitled without a procedure to determine the basis for the deprivations.
R. Rotunda, J. Nowak & J. Young, 2 Treatise on Constitutional Law Substance and Procedure § 17.5 at 235 (1986) (footnotes omitted); see also Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (the Court used the term "statutory entitlement” and stated that ”[i]t may be realistic today to regard welfare entitlements as more like 'property1 than a ‘gratuity.’”). Id. at 262 n. 8, 90 S.Ct. at 1017 n. 8.
. For example, in Smith v. Board of Educ. of the Borough of Paramus, 1968 S.L.D. 62 (decision of the New Jersey Commissioner of Education), aff'd by the New Jersey State Board of Edu*99cation on February 5, 1969, the Commissioner of Education determined that teachers are legally bound to perform extracurricular supervisory activities assigned to them by the Board of Education. The Commissioner reasoned that "the public school curriculum is not restricted to the few areas of study which the Legislature has prescribed.” Id. at 64. In an extended discussion on the importance and significance of extracurricular activities, the Commissioner remarked:
Boards of Education are free to determine whatever other learning experiences are suitable to the pupils to be served and will best achieve the aims and objectives of the schools. In pursuit of the goal of the highest degree of self-realization possible for each individual, the schools have traditionally sought an even greater diversity than is provided by formal classroom learnings. Thus, they have provided opportunity for a wide variety of extra-classroom activities in which pupils are encouraged to explore and pursue individual interests. Historically, these pursuits became known as "extracurricular," unfortunately connoting something which was tacked on and of minor importance compared with the classroom teaching program. Later, resort was had to use of the term "cocurricular” in an effort to establish the parallel significance of these curriculum elements. The semantics used are of no moment. In Willett v. Colts Neck Board of Education, 1966 S.L.D. 202, 206, the Commissioner held that school affairs such as dances, concerts, dramatic productions, athletic events and the like, although generally referred to as "extracurricular” were better designated “extra-classroom," and are certainly part of the total curriculum.
The existence of a board [sic] and well-developed program of student activities is an essential factor in the approval or accreditation of any secondary school. The Commissioner notes that the "Guidelines for Approval Through Self-Study for New Jersey Secondary Schools,” a manual developed by the Office of Secondary Education for use in the evaluation and approval of New Jersey secondary schools, pursuant to N.J.S. 18A:45-1, clearly demonstrates that a full and well-conducted program of student activities is a vital element in the assessment of the effectiveness of the school program. Similarly the Evaluative Criteria, 1960 Edition, of the National Study of Secondary School Evaluation, which provides the basis for accreditation of New Jersey secondary schools by the Middle Atlantic States Association of Colleges and Secondary Schools, devotes a full section to the student activity program (pages 241-256), and states as one of the "guiding principles” (page 241):
“The school provides for two general kinds of educational experiences, the regular classroom activities and those called extracurricular or cocurricular. Together they form an integrated whole aimed toward a common objective * *
In the Commissioner’s judgment, therefore, boards of education are not only permitted under the law, but have an affirmative duty and responsibility to develop a broad program of pupil activities beyond formal classroom instruction as an essential part of the curriculum offered.
*100Id. at 64-66.
. Few courts have considered the issue in this context. However, in one such case, Pegram v. Nelson, 469 F.Supp. 1134 (M.D.N.C.1979), the district court did engage in a similar analysis. In this case, high school students were given a ten-day suspension from school and a four-month suspension from extracurricular activities. The court held that greater procedural protections were not required merely because the extracurricular activity suspension was imposed in conjunction with the ten-day suspension. There the court stated that:
If the plaintiffs property interest in public education ... is considered to extend to the total "educational process," then, under certain circumstances, the need for some due process might arguably arise where a student is excluded from participation in extracurricular activities. This is because participation in extracurricular activities can be considered part of the total educational process. It has been recognized that “[t]he educational process ... is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups — ” Albach v. Odle, 531 F.2d 983, 985 (10th Cir.1976). However, Goss should not be read to establish a property interest subject to constitutional protection in each of these separate components.
469 F.Supp at 1139 (footnote and citations omitted).
However, in Pegram, the court specifically found that “[t]he opportunity to participate in extracurricular activities is not, by and in itself, a property interest." Id. This is not the case in New Jersey, see Burnside, supra, and thus the case is distinguishable on this basis. The court did recognize in Pegram that “total exclusion from participation in that part of the educational process designated as extracurricular activities for a lengthy period of time could, depending upon the particular circumstances, be a sufficient deprivation to implicate due process.” Pegram, 469 F.Supp. at 1140 (emphasis in the original). The court in that case went on to state that the court "need not decide ... whether the plaintiff had a right to procedural due process under these facts, for assuming that he did have such a right, he was afforded all the process that he was due.” Id. In the instant case — to the contrary — Merluzzi acted in a wholly arbitrary fashion inconsistent with the most fundamental notions of due process.
. The United States Magistrate, despite holding that Palmer did not have a protected property interest, was troubled by the arbitrariness of *102Merluzzi’s actions. She wrote in a Report and Recommendation:
While I find that defendants’ conduct passes the rational relationship test, I must add that this finding does not signify support by this Court of the length of suspension or the manner in which it was determined. Suspending a student from extracurricular activities for sixty days ostensibly to correct a drug/alcohol program [sic] without 1) reading the student’s personnel file, 2) determining that a substance abuse problem in fact exists and, 3) ensuring that counseling is available to students who require it raises serious doubts about the corrective value of the punishment.
App. at 140 n. 11. Additionally, the Administrative Law Judge, in finding that due process had been violated, stated that ”[t]his eleventh hour, additional penalty, coming without official notice and without any chance to be heard, flies in the face of all notions of fundamental fairness.” App. at 32.