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Decision No. 14,107

Appeal of THE BOARD OF EDUCATION OF THE EAST BLOOMFIELD CENTRAL SCHOOL DISTRICT and DENNEY WILCOX, on behalf of RYAN WILCOX, from action of Section V of the New York State Public High School Athletic Association, Inc., and the New York State Public High School Athletic Association, Inc., regarding a waiver application.

Decision No. 14,107

(April 7, 1999)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for petitioners, Dennis T. Barrett, Esq., of counsel

Robert G. Lamb, Jr., Esq., attorney for respondent Section V of the New York State Public High School Athletic Association, Inc., Maureen Pilato Lamb, Esq., of counsel

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

MILLS, Commissioner.--Petitioners appeal from decisions of Section V of the New York State Public High School Athletic Association ("Section") and the New York State Public High School Athletic Association, Inc. ("Association"), which denied their request for a waiver of a rule restricting transfer students from participating in interscholastic athletics in certain instances. As a result of these actions, Ryan Wilcox was prevented from playing interscholastic basketball during the 1998-1999 school year. The appeal must be dismissed.

During the 1997-1998 school year, Ryan Wilcox resided in the Canandaigua City School District, where his father, petitioner Denney Wilcox, was an administrator. During that school year, Ryan was a ninth grade student and participated in junior varsity basketball.

Effective July 1, 1998, Denney Wilcox accepted a position as high school principal in the East Bloomfield Central School District ("East Bloomfield"), which is adjacent to the Canandaigua City School District. East Bloomfield has a policy allowing children of its nonresident employees to attend its schools without the payment of tuition. As a result, Ryan began attending East Bloomfield's high school in September 1998, although he continued to live with his family in Canandaigua.

By changing schools without a corresponding change in residence from one school district to another, Ryan Wilcox became subject to Rule 29 of the Association's official rules which provides in pertinent part:

29. TRANSFER:

a. A student in grades 9-12 who transfers, with a corresponding change in residence . . .

b. A student who transfers without a corresponding change in residence of his/her parents (or other persons with whom the student has resided for at least six months) is ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one (1) year if the student participated in that sport during the one (1) year period immediately preceding his/her transfer.

Exemptions to (b):

1. The student reaches the age of majority (emancipated minor) and establishes residency in a district.

2. If a private or parochial school ceases to operate a student may transfer to another private or parochial school of his/her choice. Otherwise, a student must enroll in the public school district of his/her parents' residency.

3. A student who is a ward of the court or state and is placed in a district by court order. Guardianship does not fulfill this requirement.

4. A student from divorced or separate parents who moves into a new school district with one of the aforementioned parents. Such a transfer is allowed once every six months.

NOTE: It is provided, however, that each school shall have the opportunity to petition the section involved to approve transfer without penalty based on an undue hardship for the student.

In mid-September 1998, petitioners initiated a request to Section V for a waiver of the transfer rule as it applied to Ryan Wilcox. Because none of the specific exceptions stated in the rule applied, petitioners sought relief under the clause regarding "undue hardship": "It is provided, however, that each school shall have the opportunity to petition the section involved to approve transfer without penalty based on an undue hardship for the student."

Section V denied the request on September 25, 1998, and again on October 14, 1998, on appeal. Upon further appeal to the Association, the Association rendered a decision dated October 28, 1998, which again denied the application for a waiver. This appeal ensued. I denied petitioners' application for a stay on November 24, 1998.

Petitioners suggest that the transfer rule is an unauthorized restriction on eligibility beyond the restrictions imposed by the Regulations of the Commissioner of Education. They claim that it conflicts with the district's employment policy which allows nonresident employees to enroll their children in East Bloomfield without the payment of tuition. They further claim that the rule in effect makes athletic considerations override educational considerations, and creates an irrebuttable presumption of improper conduct when a transfer of school is made without a transfer of address. They further claim that the decisions of the Section and the Association were contrary to the evidence presented and were therefore arbitrary and capricious.

Respondents generally deny petitioners' allegations, and point out that petitioner East Bloomfield is a member of a voluntary athletic organization and has agreed to abide by the rules and regulations of both the Association and Section V. Respondents further point out that Ryan Wilcox does not fall within any of the enumerated exceptions to the transfer rule, that petitioners were aware of the transfer rule before Denney Wilcox decided to accept the position as principal at East Bloomfield, and that if any hardship existed, it was self-created.

I do not agree with petitioners' position that Rule 29 is in conflict with the Regulations of the Commissioner of Education because it adds to the requirements of 8 NYCRR "135.4(c)(7)(ii)(b)(2). Petitioners concede that the Association's "outside competition" rule, which adds restrictions to the cited Commissioner's regulation, is valid (Eastern New York Youth Soccer Association v. NYSPHSAA, 108 AD2d 39, aff'd 67 NY2d 665; Caso v. NYSPHSAA, 78 AD2d 41). In effect, the "transfer rule" also adds a temporary restriction when a student transfers from one school to another for a reason other than a change in residence. Although no party has cited a New York case upholding this particular rule, similar rules have been upheld as rational exercises of authority on the part of athletic associations in other states under circumstances similar to the case before me. (See, e.g., Walsh v. Louisiana High School Athletic Association, 616 F2d 152, cert. den. 449 U.S. 1124; U.S. ex rel. Missouri State High School Activities Association, 682 F2d 147; Barnhorst v. Missouri State High School Activities Association, 504 F. Supp. 449; Indiana High School Athletic Association, Inc., v. Carlberg, 697 N.E. 2d 222).

Petitioners' arguments, therefore, deal with the particular circumstances of this student. Petitioners concede that Ryan Wilcox does not meet any of the stated exceptions to the rule: emancipation, closing of a private or parochial school, placement by court order, or divorce. Petitioners can succeed only if they have established an "undue hardship." I find no such hardship in the record. The parties recognize that Ryan could have continued to attend school in Canandaigua, and that if he had, he could have continued to play basketball without any loss of eligibility.

All parties were aware of the existence of the transfer rule prior to Denney Wilcox's acceptance of the principalship in East Bloomfield. The Wilcox family made an informed decision that Ryan should transfer to East Bloomfield to be with his father, knowing full well that his ineligibility to play basketball for one season would result. Whether athletic considerations, educational considerations or mere family preferences took precedence in this case is not relevant. The rule applies regardless of intent, and is designed to prevent transfers for athletic purposes, and to discourage improper recruiting. I find no infirmity in this. Nor do I find any validity to petitioners' claim that the rule creates an impermissible, irrebuttable presumption that every transfer is for athletic reasons. The rule does not permanently exclude a student from athletic competition, but merely impairs the students' eligibility for one year upon a transfer without a corresponding change in residence.

I also reject the claim that the operation of the transfer rule somehow frustrates the policy of the East Bloomfield board of education with respect to offering nonresident employees the benefit of allowing their children to enroll without paying tuition. Obviously, the rule only has an impact on those nonresident employees whose children are interested in athletics. The transfer rule has the same impact on all nonresident students who transfer into a district, whether they are children of employees who do not pay tuition, or others who do pay tuition.

I find no arbitrary or capricious action on the part of respondents. I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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