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Decision No. 13,402

Application of HENRY G. BETHE, on behalf of his son, PAUL MUNSON BETHE, to review a determination of the New York State Public High School Athletic Association, Inc. relating to eligibility to participate in interscholastic sports.

Decision No. 13,402

(April 12, 1995)

SOBOL, Commissioner.--Petitioner's son, Paul, is a student at Ithaca High School. Petitioner appeals a determination by Section IV of the New York State Public High School Athletic Association (NYSPHSAA) that Paul will not be eligible to participate in interscholastic sports during the 1995-96 school year. The application must be denied.

Between 1988 and 1992, Paul attended a private school in Deerfield, Massachusetts. The record is unclear, but it appears that Paul was advanced a year and entered ninth grade during the 1991-92 school year. At that time, Paul was approximately 6 months younger than his classmates. In September 1992, Paul transferred to a private school in New Hampshire. Officials placed him in ninth rather than tenth grade during the 1992-93 school year, citing Paul's age and social immaturity. During the 1992-93 and 1993-94 school years, Paul participated in interscholastic sports at the private school. During the 1994-95 school year, Paul enrolled in Ithaca High School as an eleventh grade student.

Petitioner apparently filed an application with respondent to extend Paul's eligibility to participate in high school interscholastic athletics into the 1995-96 school year. On January 19, 1995, respondent refused to extend Paul's athletic eligibility and determined that he would not be eligible to compete in interscholastic sports during the 1995-96 school year.

8 NYCRR '135.4(c)(7)(ii)(b)(1) governs student participation in interscholastic sports and 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, except as otherwise provided in this subclause.

* * *

(i) If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, accident, or similar circumstances beyond the control of the student, such pupil's eligibility shall be extended accordingly in that sport.

Petitioner contends that Paul should be allowed to participate in interscholastic athletics during the 1995-96 school year despite the fact that the 1995-96 school year would be Paul's fifth year of eligibility since he entered ninth grade during the 1991-92 school year. Petitioner contends that because of Paul's age, the 1991-92 school year "should be treated as Paul's eighth grade year." I find no merit to that contention. Indeed, petitioner concedes that during the 1991-92 school year, Paul was enrolled as a ninth grade student and took ninth grade courses. Accordingly, Paul has been a high school student since the 1991-92 school year and has been eligible to compete in interscholastic athletics for four consecutive years (see Application of Villani, 29 Ed Dept Rep 233).

Petitioner also contends that Paul is entitled to an extension of athletic eligibility because the private school in Massachusetts did not have an interscholastic high school athletic program. Petitioner admits that the private school had an interscholastic athletic program, but asserts that it was "similar to NYS `modified' programs provided in junior high schools" and was not a high school program. I also find no merit to that contention. The fact that petitioner elected to enroll Paul in a private school that did not conduct a high school athletic program, while unfortunate, is not a basis for extending Paul's eligibility.

A review of the record indicates that petitioner has failed to demonstrate that Paul did not enter competition because of "illness, accident, or similar circumstances beyond the control of the student." A student who does not participate during a period of eligibility, but who is physically able to do so, is not entitled to an extension of eligibility (Matter of Bd. of Educ., Island Free UFSD, et al., 19 Ed Dept Rep 243; Matter of Clowe, 21 id. 192; Matter of Spear, 19 id. 334; Matter of Callahan, 26 id. 19, aff'd subnomBd. of Educ., Dover UFSD v. Ambach, Supreme Court, Albany County, Cobb, Jr., February 2, 1987, n.o.r.). In this case, Paul was not precluded from competition during his four-year eligibility period. Therefore, I concur with respondent's determination that an extension of Paul's eligibility to participate in interscholastic high school athletics during the 1995-96 school year is impermissible.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPLICATION IS DENIED.

END OF FILE