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Decision No. 12,844

Appeal of NICHOLAS and VIRGINIA BASILE, on behalf of their son LEE BASILE, from action of the Board of Education of the Cato-Meridian Central School District relating to participation in interscholastic athletics.

Decision No. 12,844

(November 25, 1992)

Matthew R. Fletcher, Esq., attorney for respondent

Petitioners appeal from the October 17, 1991, decision of a hearing panel of the Eligibility Committee of Section III of the New York State Public High School Athletic Association (the "panel"), which found their son, Lee Basile, ineligible to participate in interscholastic wrestling during the 1991-92 school year. Petitioners applied for an interim order granting their son extended athletic eligibility for the 1991-92 school year pending this appeal. That relief was denied on February 12, 1992. The appeal must be dismissed.

Petitioners' son participated in high school interscholastic wrestling in each of four successive seasons, beginning with the ninth grade in 1987-88, 1988-89, 1989-90 and 1990-91. Because petitioners' son did not meet academic requirements for graduation in 1990-91, he attended an additional year of high school in 1991-92. Petitioners requested permission for their son to participate in interscholastic wrestling for a fifth season in 1991-92.

Section 135.4(c)(7)(ii)(b)(1) of the Regulations of the Commissioner of Education provides:

(1) Duration of competition. A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation. . . .

At the beginning of 1991-92, respondent school district advised petitioners' son that he was ineligible to participate in interscholastic wrestling because he had previously participated in each of four seasons after the ninth grade.

At petitioners' request, the Superintendent of Schools of the Cato-Meridian Central School District arranged for a hearing before the panel. The hearing was held on October 17, 1991. The panel denied extended eligibility to petitioners' son because of his participation in interscholastic wrestling in each of four seasons after the ninth grade.

Before reaching the merits, it is necessary to address several procedural issues raised by respondent. Respondent contends that the appeal should be dismissed because it was not commenced within 30 days from the making of the decision complained of, as required by '275.16 of the Regulations of the Commissioner of Education (8 NYCRR '275.16). The decision of the Section III hearing panel was rendered on October 17, 1991. Petitioners commenced this appeal by service of a petition on respondent school district more than three months later, on January 23, 1992. In his discretion, the Commissioner may excuse a failure to commence a timely appeal for good cause set forth in the petition (Appeal of Brown, 30 Ed Dept Rep 221; Appeal of Chiljean, 30 id. 57; Appeal of Goldberg, 29 id. 476). In their petition, petitioners state that, "On December 1991 petitioners, did receive the decision by section III hearing board on petitioners (sic) request." However, petitioners provide no evidence to support their contention that they received the panel's October 17, 1991 decision in December 1991. Petitioners do not respond to respondent's affirmative defense that the appeal is untimely, having been commenced more than 30 days after the panel's October 17, 1991 decision. Based on the record before me, I find that the appeal was commenced more than 30 days after the making of the decision complained of. Consequently, the appeal is dismissed as untimely.

Respondent further contends that the appeal should be dismissed because petitioners have failed to join a necessary party -- Section III of the New York State Public High School Athletic Association. I have repeatedly held that a party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of Lauterback, 30 Ed Dept Rep 223; Appeal of Cooper, 26 id. 370; Appeal of Evans and Goodson, 26 id. 307). In this case, petitioners are appealing from a determination of a hearing panel of the Eligibility Committee of Section III of the New York State Public High School Athletic Association. Because this appeal is from the determination of the Section III hearing panel, the rights of Section III of the New York State Public High School Athletic Association would be affected by this decision. Accordingly, petitioners have failed to join a necessary party, and the appeal must be dismissed on that ground as well.

With respect to the merits, petitioners do not deny that their son participated in four consecutive seasons of interscholastic wrestling after the ninth grade. Instead, they argue that he was denied due process because respondent school district did not advise Lee when he wrestled his final match in the 1990-91 school year that he would be ineligible to participate the following season, and because the district did not provide written notification that Lee was ineligible to compete. Respondent contends that actual notice was given to petitioners, although such notice may not have been in writing.

Based on the record before me, petitioners received actual notice in September 1991 that their son was ineligible to compete in 1991-92. There is no requirement that a school district provide written notice of athletic ineligibility. In addition, there is no requirement that a school district notify students at their final competition that they will be ineligible to compete in the following season. Moreover, petitioners received the process due them. By letter dated September 5, 1991, petitioners requested that respondent school district reconsider its decision concerning their son's eligibility to compete. On October 1, 1991, the Superintendent of Schools of the Cato-Meridian Central School District wrote to petitioners that the district was arranging for a hearing before a hearing panel of the Eligibility Committee of Section III of the New York State Public High School Athletic Association on the issue of their son's eligibility to compete in 1991-92, pursuant to petitioners' request. The evidentiary hearing was held on October 17, 1991, and petitioners attended. A decision by the Section III hearing panel was rendered on October 17, 1991. Accordingly, petitioners were not denied due process in this matter.

Petitioners also contend that the panel was unaware of amendments to the Regulations of the Commissioner of Education that could have affected its decision in this matter. Petitioners cite historical notes to 8 NYCRR '135.4 to substantiate this claim. This allegation is without merit. The specific requirement in the Commissioner's regulations which deals with the number of years that a high school student may compete in a particular sport (8 NYCRR '135.4[c][7][ii][b][1]) has not been amended in recent years. The panel rendered a decision that is consistent with the requirements of that regulation.

THE APPEAL IS DISMISSED.

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