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Decision No. 14,024

Appeal of BISHOP GRIMES HIGH SCHOOL and BISHOP LUDDEN HIGH SCHOOL from action of Section III of the New York State Public High School Athletic Association, Inc., regarding reclassification of athletic programs.

Decision No. 14,024

(October 14, 1998)

O'Hara and O'Connell, PC, attorneys for petitioners, Dennis G. O'Hara, Esq., of counsel

Hancock & Estabrook, LLP, attorneys for respondent, Renee L. James, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the reclassification of certain of their athletic programs by Section III of the New York State Public High School Athletic Association, Inc. ("Section III" or "respondent") for post-season sectional competition for the 1998-1999 school year. The appeal must be dismissed.

Petitioners are nonpublic high schools operated by the Roman Catholic Diocese of Syracuse. They are members of the Onondaga High School League and of Section III, a subdivision of the New York State Public High School Athletic Association, Inc. Prior to 1998, Bishop Ludden competed at the Class C level, and Bishop Grimes competed at the Class D level.

In November 1997, the New York State Public High School Athletic Association amended its constitution by adding this language: "Section athletic councils may determine the appropriate classification for their nonpublic school members." On March 5, 1998, Section III's athletic council passed a resolution to classify nonpublic school members in an appropriate class to ensure equitable competition regardless of enrollment. The athletic council created a Classification Committee to carry out this policy for post-season sectional competition. The resolution contained a list of 14 suggested criteria for classification, set up general rules and procedures for classification and reclassification, and established an appeal process. Pursuant to this resolution, classifications are valid for a period of two years, but the initial classifications for the 1998-1999 school year would be for one year only, and would be reviewable in the spring of 1999.

The following day, Section III's Executive Director sent copies of the classification resolution and materials to all athletic directors of nonpublic schools in the Section, and advised that the Classification Committee would meet on March 26, 1998, for the purpose of classifying nonpublic school programs. He invited each school to supply information that it believed to be relevant to classification, and to send a representative to address the Committee.

On March 26, the Classification Committee met and heard presentations from eight nonpublic schools, including petitioners. Nearly all of the nonpublic schools, including petitioners, provided enrollment data from the State Education Department, but petitioners provided no other information. Bishop Grimes requested to continue at the Class D level, and Bishop Ludden requested to continue at the Class C level. However, the Committee reclassified Bishop Ludden's boys' and girls' basketball programs to Class B, and Bishop Grimes boys' and girls' basketball programs to Class C for post-season play. Both petitioners appealed these reclassifications, and a further meeting of the Classification Committee was scheduled for April 23 to consider their appeals. At that meeting, petitioners requested that other Class B, C, and D schools in the Section, including public schools, submit information as to their athletic programs, beyond simple enrollment figures. The Classification Committee agreed, and postponed any action on petitioners' appeals until May 14.

On April 24, Section III's Executive Director sent a memo to all Class B, C, and D schools' athletic directors, public and nonpublic, requesting extensive information, in accordance with the March 5 criteria, including enrollment, transfer policies, athletic budgets, sports programs offered, success rates in various sports, and other pertinent items. It appears that approximately 75 percent of the schools contacted actually provided information. On May 14, after discussion of the information and after again considering petitioners' arguments, the Classification Committee voted to reverse one of its earlier decisions and return Bishop Grimes' girls' basketball program to Class D. It refused to modify the classifications of Bishop Grimes' boys' basketball program, or Bishop Ludden's boys' and girls' basketball programs.

Thereafter, petitioners appealed these results to the Section III Executive Committee, which, on June 4 voted to accept the recommendations of the Classification Committee, and thereby denied petitioners' appeal. This appeal was commenced on July 6, 1998, and petitioners' application for interim relief was denied on July 17.

Petitioners argue that Section III failed to comply with procedures and policies dealing with classification which pre-dated the March 5, 1998, resolution, and have never been repealed. Petitioners further argue that the Classification Committee did not use the criteria contained in the March 5 resolution, and that only the nonpublic schools were asked to provide any information about their athletic programs prior to the March 26 meeting. They further argue that the information gathered prior to the May 14 meeting was incomplete, because more than one-fourth of the schools contacted did not respond. As a result of these alleged infirmities, petitioners argue that the reclassifications of their programs were arbitrary and capricious.

Respondent generally denies petitioners' claims and argues that its reclassification procedure for nonpublic schools is in full compliance with the constitution of the New York State Public High School Athletic Association. Respondent also raises certain affirmative defenses, including untimeliness and lack of jurisdiction to entertain and determine this appeal.

I find the appeal timely. Respondent argues that its reclassification decision was made on March 26, 1998, and this appeal was not commenced until July 6, 1998. However, it seems clear that the March 26 determination was not final, since it was modified on May 14, and further appealed to Section III's Executive Committee which, according to respondent's answer, voted to accept the recommendations of the Classification Committee at its June 4, 1998, meeting. At that point the reclassification decision became final, and this appeal was commenced within 30 days thereafter (the 30th day was July 4, a holiday, and this appeal was commenced on the next business day, July 6-see General Construction Law "25; Matter of NYC Board of Education, 25 Ed Dept Rep 361; Matter of Bd. of Ed., Byram Hills CSD, 22 id. 317).

I disagree with respondent's argument that I lack jurisdiction to deal with this matter. Respondent claims that the matter at issue involves a resolution passed by Section III, not a Commissioner's regulation. However, jurisdiction in such matters has been clearly established (see, e.g., Appeal of Sewanhaka CHSD, et al., 31 Ed Dept Rep 360).

The appeal must be dismissed on the merits. Petitioners contend that Section III was bound to follow classification procedures adopted in 1985 and 1993, which purportedly deal with classification of both public and nonpublic schools. Petitioners appear to argue that because the 1998 resolution did not repeal those procedures, it is somehow in conflict with them and that compliance with the 1998 resolution for nonpublic schools is flawed. However, as pointed out by respondent, there is no prohibition against Section III adopting different and/or additional procedures. I have examined the 1985 and 1993 procedures, and find them quite similar to the 1998 procedures, although clearly the 1998 procedures are more elaborate and by their own terms apply only to nonpublic schools. With respect to the appeal to the Executive Committee, I find no inconsistency among the documents. Indeed, I find that the 1998 resolution is more specific and provides definite appellate timelines which are more protective of the interests of an appellant than the earlier procedures on which petitioners rely.

Much of petitioners' argument is directed at the action taken by Section III's Classification Committee on March 26. At that time, the nonpublic schools generally had provided only enrollment data to the Committee, although they could have provided other materials. However, petitioners overlook the importance of the Classification Committee's meeting on April 23, when it agreed to postpone any further decision on petitioners' reclassifications and agreed to contact all Class B, C, and D schools to obtain additional information. As a result of that action, nearly 75 percent of the Class B, C, and D schools responded with information that was available to petitioners and to the Classification Committee for the May 14 meeting. While petitioners may argue that the information was incomplete, the information contained in the record before me is quite extensive, especially with respect to the performance of the nonpublic schools in post-season sectional play. (As noted above, respondent's reclassifications of petitioners' programs apply only to post-season play.) Although petitioners argue that the Classification Committee did not properly "review and analyze" the data collected, relying on the affidavit of one member of the Classification Committee, the minutes of the meeting indicate otherwise.

I cannot say that the action of the Classification Committee, as later adopted by Section III's Executive Committee, was arbitrary and capricious. Petitioners had three opportunities to make presentations to the Classification Committee on March 26, April 23, and May 14. They submitted the information that they wished to submit, and the Classification Committee, at their request, gathered substantial information from other schools in the Section at the same levels of classification. Clearly at the May 14 meeting, the Classification Committee did some analysis of the situation, since it voted to reverse its own action with respect to the Bishop Grimes girls' basketball team, which was returned to Class D for the 1998-1999 school year. It is well established that the petitioner always bears the burden of proving that a determination is arbitrary and capricious (Appeal of Sewanhaka CHSD, et al., 31 Ed Dept Rep 360; Appeal of Havasy, 29 id. 90; Appeal of Kwak and Rooney, 17 id. 442). Petitioners have failed to carry that burden in this appeal.

The March 5 resolution stated that Section III's policy was to place nonpublic school members in the appropriate class to ensure equitable competition regardless of their enrollment. Among the criteria to be considered were enrollment, the strength of individual sports programs, and historical information as to sports achievement in a school's present placement. The record before me amply demonstrates that the reclassified programs have been extremely successful against their current level of competition.

Over the last 26 years, the Bishop Ludden boys' basketball program has won 13 sectional titles. During the past six years, it has won six consecutive Class C championships, from a pool of approximately 30 Class C schools in the Section. In the past eight years, the Bishop Ludden girls' basketball program has won four sectional titles and has achieved an overall combined record of 156 wins and 30 losses. The Bishop Grimes boys' basketball program has won three of the last seven Class D titles in the pool of 29 Class D schools in the Section.

Based upon these statistics and the other information contained in the record, it is evident that the reclassified programs have been extraordinarily successful, indeed dominant, against their present levels of competition. These facts provide a rational basis for the Competition Committee's decision to move them up to a more appropriate level of competition. I do not regard this action as punishing successful programs; rather, I see it as placing these extraordinarily successful programs at a level where they can compete with other successful programs, rather than dominating their opposition as they currently do.

I have considered petitioners' arguments that the criteria contained in the March 5 resolution are unfair because they have been applied only to nonpublic schools. Petitioners have not, however, argued that the achievement and maintenance of equitable competition is wrong, or that it is not a legitimate purpose of Section III. The Court of Appeals has recognized that an athletic organization may treat public and nonpublic schools differently when such action "further[s] the identified purposes by reasonably assuring that all member schools have the opportunity to compete on a relatively level playing field." Archbishop Walsh High School v. Section VI, 88 NY2d 131 at p.138. The same reasoning applies in this matter.

I note that petitioners have not challenged the action of the New York State Public High School Athletic Association in amending its constitution. Petitioners have also not challenged the adoption of the Section III classification procedures on March 5, 1998, nor have petitioners challenged the action of the Onondaga High School League in changing their classifications for regular season play.

I have considered the other claims of the parties and find them without merit. Nothing in this decision shall preclude petitioners from again seeking reclassification of their athletic programs in accordance with the rules and procedures established by Section III at the conclusion of the 1998-1999 school year.

THE APPEAL IS DISMISSED.

END OF FILE