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Decision No. 14,068

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Potsdam Central School District regarding participation in athletics.

Decision No. 14,068

(December 24, 1998)

 

Capello & Linden for respondent, Roger B. Linden, Esq., of counsel

 

MILLS, Commissioner.--This appeal concerns petitioners' allegation that respondent's staff discriminated against their son, preventing him from participating in interscholastic athletics, and their disagreement with respondent's decision to merge its football team with the team of a neighboring school district. The appeal must be dismissed.

Petitioners' son attended tenth grade in respondent's high school in 1996-97. According to petitioners, their son is learning disabled. In the 1996-97 school year, he tried out for the junior varsity basketball team, and was not selected. Petitioner filed a grievance with respondent pursuant to "504 of the Rehabilitation Act of 1973 (29 U.S.C. "794). In the grievance, they alleged that their son was not selected for the basketball team for three reasons: in retaliation against his father; because he is labeled learning disabled; and based on the fact that their son was told that he was not big enough to participate.

The grievance procedure resulted in a February 21, 1997 written decision by respondent. Respondent found that petitioners' son was not discriminated against as a result of being labeled learning disabled; and that no retaliatory measures were taken against him because of his father's actions.

In this proceeding, petitioners appeal the "504 decision. They reiterate their contention that their son was discriminated against when he was not selected for the basketball team and their belief that he was not selected due to retaliation against his father. They further contend that their son was told that he did not make the team because he was not big enough. In a separate claim, unrelated to the "504 grievance, petitioners contend that respondent's decision to merge its football team with the team of a neighboring school district is wrong because it limits the opportunities for district students to participate in that sport.

Respondent generally denies the allegations contained in the petition and specifically denies that it discriminated against petitioners' son because he is learning disabled, that the decision not to select petitioners' son was in retaliation against his father, or that petitioners' son was told that he was not selected for the basketball team because he was not big enough.

I will first address several procedural issues. Petitioners appeal respondent's decision resulting from a "504 grievance. While I do not have jurisdiction to decide cases solely based on "504 claims (Appeal of a Student with a Disability, 36 Ed Dept Rep 322), I do have jurisdiction when there is an independent basis to address petitioner's claims which would also constitute "504 violations (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 232). I have such a basis here. Section 100.2(k) of the Regulations of the Commissioner of Education (8 NYCRR "100.2[k]) makes it unlawful to deny a student the opportunity to participate in extra-curricular activities like athletics by reason of disability, provided that the activity is appropriate to the student's special educational needs. Thus, I will not dismiss the petition for lack of jurisdiction.

However, I do find that the petition is insufficient on its face. Section 275.10 of the Commissioner's regulations (8 NYCRR "275.10) requires in pertinent part that a petition "contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which petitioner deems himself entitled." In this case, the petition details alleged wrongs by respondent but does not specify the relief petitioners are seeking from this proceeding. I am unable to determine with specificity the nature of the relief sought (Appeal of a Student Suspected of Having a Disability, 37 Ed Dept Rep 303; Appeal of Timothy R. and Janice A. Blake, 37 id. 250; Appeal of George, 33 id. 495). Because of this deficiency, the petition must be dismissed for failure to comply with section 275.10.

Moreover, the claim concerning merger of the teams must be dismissed as untimely. Respondent board voted on April 22, 1996 to merge its football team with the football team of the Norwood-Norfolk Central School District. Section 275.16 of the Regulations of the Commissioner of Education (8 NYCRR "275.16) requires that an appeal be commenced within 30 days of the act complained of. The petition in this matter was served on respondent on March 11, 1997, nearly 11 months after respondent's decision to merge the teams. Accordingly, with respect to this claim, the appeal is untimely.

Even if I were not to dismiss the appeal on procedural grounds, I would dismiss it on the merits. Petitioners claim that their son was discriminated against because he is learning disabled but provide no evidence to support this claim. Petitioners also claim that their son was told that he was cut from the basketball team because he was not big enough to participate, but fail to identify the source of this alleged statement. Petitioners claim that their son was not chosen for the team because of complaints made by his father to respondent's athletic director that his son had not received enough playing time in the past and that the merger of the district's football team with a team of another district was wrong, but again provide no evidence that this was the reason for their son not being selected.

In an affidavit, respondent's junior varsity basketball coach identified himself as the staff member who decided to cut petitioners' son from the team. He indicated that his decision was based purely on the ability of petitioners' son to play basketball and the fact that other students played better. He further indicated that he did not discriminate against petitioners' son because he had a learning disability. In this regard, the basketball coach noted that, because he is a part-time coach and not a school teacher, he was unaware that petitioners' son even had a learning disability. He stated that he did not advise petitioners' son that he was not big enough to make the team. Petitioners' son and the other students who did not make the team were not given any explanation for the decision. The names of those who were chosen were simply posted. The basketball coach also stated that he never had any conflict with the father of this student and that his decision to cut the student from the team was not in retaliation against the student's father.

Respondent's athletic director also submitted an affidavit. In the affidavit, the athletic director confirmed that the decision to cut petitioners' son from the basketball team was made by the junior varsity basketball coach, and that he, the athletic director, did not participate in that decision. He also stated that the decision not to select this student for the team was not in retaliation against the student's father.

In an appeal before the Commissioner, petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Samuels, 36 Ed Dept Rep 85; Appeal of Nash, 35 id. 203) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Samuels, supra; Appeal of Nash, supra). Other than petitioners' bare assertions that their son was discriminated against because he is learning disabled, retaliated against for the actions of his father, and told that he was not selected for the team because he was not big enough, petitioners offer no evidence to support these contentions. In light of respondent's denial of these allegations, petitioners have failed to meet their burden of proof.

Finally, petitioners claim that respondent's decision to merge the district's football team with the team of a neighboring district is wrong because it limits the opportunities for district students to participate in that sport. Again, petitioners have provided no evidence in support of this allegation and have, therefore, failed to sustain their burden of proof. In addition, I find that respondent had the authority to take this action, pursuant to its general authority to manage and administer the affairs of the school district (Education Law "1709; Appeal of Pulvermacher, 36 Ed Dept Rep 333; Appeal of Marek, 35 id. 314).

THE APPEAL IS DISMISSED.

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