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Decision No. 13,330

Appeal of BRUCE W. and CATHERINE WHITE BERHEIDE, on behalf of their son, DANIEL, from action of the New York State Public High School Athletic Association, Section II, Inc., in relation to participation in interscholastic athletics.

Decision No. 13,330

(January 10, 1995)

Hicks & Bailly, Esqs., attorneys for petitioners, Stephen F. Bailly, Esq., of counsel

Tabner, Laudato & Ryan, Esqs., attorneys for respondent, C. Theodore Carlson, Esq., of counsel

McGivern, Shaw & O'Connor, Esqs., amicus curiae on behalf of the New York State Public High School Athletic Association, Inc., Ronald R. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's refusal to allow their son, Daniel, to participate in interscholastic competition as a member of the girls' varsity field hockey team of the Saratoga Springs City School District (the "district"). The appeal must be dismissed.

Daniel is a sixteen year old junior at Saratoga Springs High School. In 1993, he was allowed to play on the girls' varsity field hockey team because Saratoga did not have a male field hockey team. In May 1994, Daniel again requested to play on the girls' team. This request was denied and a hearing panel established by respondent reviewed Daniel's eligibility. On June 16, 1994, the hearing panel determined that Daniel was not eligible to participate on the field hockey team because his participation "would have a significant adverse effect upon the opportunity of females to participate successfully in inter-school competition in that sport." This appeal followed.

Petitioner contends that respondent's determination was arbitrary and capricious because Daniel's participation would not adversely affect girls' opportunities to participate successfully on the district's team or on teams competing with the district. Respondent contends that its decision is rational and is supported by evidence.

Section 135.4(c)(7)(ii)(4) of the Commissioner's regulations provides:

Where a school does not provide separate competition for male and female pupils in interschool athletic competition in a specific sport, the superintendent of schools, ... or the section may decline to permit a male or males to participate on a team organized for females upon a finding that such participation would have a significant adverse effect upon the opportunity of females to participate successfully in interschool competition in that sport.

The regulation is intended to afford male students an opportunity to participate in sports where no male team exists, provided their participation would not have a significant adverse effect on female participation in athletic competition (Appeal of Heinz, 31 Ed Dept Rep 326; Appeal of Wilson, 30 id. 60; Appeal of DePold, 26 id. 460).

Petitioner bears the burden of proof in demonstrating that respondent's determination was arbitrary and capricious (Appeal of Heinz, supra). In determining that Daniel's participation on the girls' field hockey team would adversely affect female participation in interschool competition in that sport, respondent considered Daniel's height, weight and ability, including his scores on the athletic performance and development standards for girls' field hockey. On May 7, 1994, Daniel was 5'11" and weighed 188 pounds. The record reflects that Daniel's athletic performance testing indicates superior ability in relation to the section classification program requirements. For example, the program requirements from August 1992 require a field hockey student to complete a 1.5 mile run in 15 minutes. Daniel completed the 1.5 mile run in approximately 10 minutes, 17 seconds. Additionally, Daniel's coaches for varsity ice hockey and varsity lacrosse indicate Daniel is highly skilled and has an aggressive style. Respondent's determination not to allow Daniel to participate on the girls' field hockey team was based upon their concern that Daniel's superior ability would inhibit females from competing and that his aggressive play style would create a hazardous condition to members of his team or opposing teams. On such a record, I conclude respondent's determination was rational.

I have considered petitioners' other contentions and find them without merit.

THE APPEAL IS DISMISSED.

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