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Decision No. 14,000

Appeal of THOMAS and THERESA MARTIN, on behalf of their son, JARRED, from action of the Mixed Competition Committee of Section II of the New York State Public High School Athletic Association, Inc. (Douglas Kenyon, Chairperson; John Whelan, President; Mary Ann Bump, Field Hockey Chairperson), WASAREN League (Michael Macura, President; Sandra Adams, Field Hockey Representative), the New York State Public High School Athletic Association, Inc. (Sandra Scott, Executive Director), and Board of Education of the Schuylerville Central School District (Leon Reed, Superintendent),regarding participation in interscholastic athletics.

Decision No. 14,000

(August 21, 1998)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent Section II of the New York State Public High School Athletic Association, Inc., Martin D. Auffredou, Esq., of counsel

Judge & Duffy, Esqs., attorneys for respondent WASAREN League, Monica A. Duffy, Esq., of counsel

McGivern, Shaw & O'Connor, Esqs., attorneys for respondent New York State Public High School Athletic Association, Inc., Ronald R. Shaw, Esq., of counsel

Ruberti, Girvin & Ferlazzo, PC, attorneys for respondent Board of Education of the Schuylerville Central School District, Patrick J. McKenna, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the determination of the Mixed Competition Panel of Section II of the New York State Public High School Athletic Association, Inc. ("Section II") that their son, Jarred, was ineligible to participate in the sport of girls field hockey for the fall 1997 season. The appeal must be dismissed.

At the time this appeal was commenced, Jarred Martin was entering the tenth grade at Schuylerville High School. Schuylerville is a member of the WASAREN League. In the fall of 1995, when he was an eighth grader, and again in the fall of 1996, when he was a ninth grader, Jarred was a member of the girls varsity field hockey team at Schuylerville. During both of those seasons, the Schuylerville field hockey team won the New York State Class C field hockey championship.

In June 1997, Jarred again intended to participate in field hockey. Pursuant to 8 NYCRR "135.4(c)(7)(ii)(c), a mixed competition review panel for the Schuylerville district reviewed relevant information and approved Jarred's participation for the fall 1997 field hockey season. In August 1997, it appears that the member schools of the WASAREN League voted to appeal that determination to Section II with respect to Jarred's eligibility.

On September 4, 1997, Section II held a hearing at which representatives of each of the member schools of the WASAREN League, and representatives of Schuylerville High School, and Jarred's parents were able to present materials and oral argument on both sides of the question. On September 9, 1997, the mixed competition panel of Section II issued a written decision:

The Panel therefore concludes that Jared's [sic] participation on the Schuylerville Central High School girls field hockey team would have a significant adverse affect [sic] upon the opportunity for females to participate successfully in inter-school competition in field hockey and in accordance with the intent of the regulations of the Commissioner of Education at 8 NYCRR "135.4(c)(7)(ii)(c)(4).

The appeal of the WASAREN Athletic League is sustained. Effecting [sic] immediately, Jared [sic] is ineligible to participate in the sport of girls field hockey at the Schuylerville High School for the fall 1997 season.

Petitioners argue that, while their son is bigger, stronger, and faster than many high school girls who play field hockey, he is not so physically dominating as to be a danger to other female participants. They claim that the decision of the mixed competition panel was arbitrary, capricious, and prejudicial, and state that the ruling was "the product of collusion, prejudicial beliefs, and a zealous pursuit of self-interest which violates all sense of equity and fairness."

Respondents (other than the Schuylerville board of education) generally deny petitioners' claims, and state that the determination of the mixed competition panel was based upon the evidence and arguments before it. Section II claims that defective service was made on respondents Whelan and Kenyon, but evidently does not challenge service upon respondent Bump. The WASAREN League asserts that it is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.

The board of education of the Schuylerville Central School District, although named as a respondent, has participated in this appeal only to the extent of filing a letter written by its attorneys in support of petitioners' appeal. As such, no relief is sought against the board of education, and the appeal is dismissed as against it. With respect to respondents WASAREN League and New York State Public High School Athletic Association, Inc., it is clear that those entities did not make the determination which is being challenged here. Only the determination of Section II is at issue in this appeal, therefore, the appeal is dismissed as against the WASAREN League and the New York State Public High School Athletic Association, Inc.

The appeal with respect to Section II must be dismissed as moot. It is well settled that the Commissioner of Education will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Hendrickson, 36 Ed Dept Rep 128; Appeal of Campese, 36 id. 17; Appeal of Berheide, 35 id. 412; Appeal of Capeless, 35 id. 454; Appeal of Healy, 34 id. 611; Appeal of Lanoir, 34 id. 562; Appeal of Hartmann, 32 id. 640; Appeal of Heinz, 31 id. 326). In this appeal, the determination made by Section II was only with respect to the fall 1997 field hockey season, which has ended.

The appeal also fails on the merits. The record that was before Section II indicates that in June 1997 Jarred Martin was 5'8 3/4" tall, and weighed 151 lbs. Although not as large as other male field hockey players who have brought appeals to the Commissioner (see, e.g., Appeal of Berheide, 35 Ed Dept Rep 412; Appeal of Berheide, 34 id. 332), Jarred's height and weight would make him approximately 4 inches taller and more than 20 pounds heavier than the average female field hockey player who competed in the WASAREN League during the 1996 season. In addition, Jarred is a member of the United States Men's National Field Hockey Team, both the under-18 and the under-21 teams. As such, it appears that he practices and plays in international-level competition. One athletic director opined that as a ninth grader, Jarred was already a better, more dominant player than a local female player who had graduated from high school and had gone on to play for the United States Olympic Field Hockey Team.

I have reviewed the materials that were before the Section II mixed competition panel, and cannot say that its decision was arbitrary or capricious in any way. Because I am unable to conclude that the decision lacked a rational basis, I will not overturn it (Appeal of Berheide, 34 Ed Dept Rep 332; Appeal of Heinz, 31 id. 326; Appeal of Wilson, 30 id. 60; Application of Hunter, 28 id. 556).

THE APPEAL IS DISMISSED.

END OF FILE