CATE, Acting Commissioner.--Petitioner appeals the determination of the New York State Public High School Athletic Association ("Association") to change the classification of its athletic programs from Class C to Class B. The appeal must be dismissed with respect to the reclassification of petitioner’s basketball program, and otherwise remanded.

The Berkshire Union Free School District is a special act school district (Education Law "4001[8]). It has been a member of Section II of the Association since 1988. It is a residential facility, and enrolls only male students in grades nine through twelve. Its students are in attendance as a result of parental surrender, family court commitment or placement, or transfer from another social service agency (Social Services Law ""472-j, 472-k, 472-l).

Prior to December 1999, petitioner was classified as a Class C school for purposes of athletic competition. Under the Association’s rules, a member institution’s classification for a given year, e.g., 1999-2000, is based on the number of students enrolled, as shown on the records of the State Education Department, as of the beginning of the previous school year (October 1998) in grades nine, ten, eleven, and ungraded. For the 1999-2000 school year, schools having between 215 and 400 students were Class C schools, and schools having between 401 and 800 students were Class B schools. Classifications assume a co-educational student body made up of approximately equal numbers of male and female students. Berkshire’s actual enrollment in grades nine, ten, eleven and ungraded in October 1998 was 216, but all of the students were boys. (There were no ungraded students.)

The rules of the Association provide that the enrollment of a single-sex school must be doubled, in order to make a meaningful comparison to a co-educational school. Until December 1999, the Association was, for some reason, not aware that Berkshire enrolled only boys. When it learned of its misapprehension in December 1999, it applied the rule for doubling the enrollment of a single-sex school, which made Berkshire’s enrollment 432, and moved it from Class C to Class B. In its answer, the Association freely acknowledges its error in not knowing that Berkshire was an all-male school throughout its membership, and states that Berkshire should have been a Class B school for the entire 1999-2000 school year.

On January 18, 2000, Berkshire appealed to the Association’s Central Committee, and asked for a variance from the enrollment-doubling rule, and set forth other arguments with respect to the way its enrollment was determined. On February 3, the Association’s Executive Director advised petitioner that its appeal had been denied. This appeal was commenced February 16, and petitioner’s request for interim relief was denied on February 25.

Petitioner argues that the Association’s rule which determines enrollment by taking the number of students in grades nine, ten, eleven and ungraded students from the beginning of the previous school year (in this case October 1998), is, as applied to petitioner’s unique circumstances, arbitrary and capricious. (Ungraded students are not a factor in this appeal, and will not be discussed.) Petitioner further argues that the Association’s rule which doubles the enrollment of a single-sex school in order to compare that school to a co-educational school, is, as applied to petitioner’s unique student body, arbitrary and capricious, and magnifies the effect of the rule which determines enrollment from the previous year’s data. Petitioner asks me to determine that the Association's application of these rules for the purpose of determining Berkshire's class status is arbitrary, capricious and unreasonable and further asks that I direct the Association to restore Berkshire to Class C status. In its reply, petitioner requests, in the alternative, that respondent be ordered "to classify Petitioner’s teams separately for purposes of athletic competition, keeping its Class ‘C’ status for all sports except basketball."

The Association argues that its rules are not unfair, either on their face or as applied to petitioner, and that petitioner, by becoming a member of the Association, has agreed to abide by such rules and regulations.

Petitioner’s appeal is based on the unusual numerical configuration of its student body, which results from the way its students are assigned. Petitioner alleges that in the 1998-1999 school year, its actual enrollment was as follows: ninth grade 122, tenth grade 82, eleventh grade 12, and twelfth grade 6; in the 1999-2000 school year: ninth grade 109, tenth grade 101, eleventh grade 24, twelfth grade 4. Petitioner alleges that most of the boys it receives each year are placed in the ninth grade, but that 95 percent of those boys are released or leave before they reach the twelfth grade. Most placements do not exceed twelve months.

Petitioner argues, and the Association does not deny, that the Association’s formula is intended to predict, from the grades 9-11 enrollment of one year, the following year’s grades 10-12 enrollment. As a result, the 1998-1999 actual enrollment of 216 boys in grades 9-11 would predict a 1999-2000 enrollment of 216 boys in grades 10-12, whereas the School’s actual enrollment in grades 10-12 in 1999-2000 was only 129 boys.

Under the Association’s previous method of calculating enrollment, which was in use until a few years ago, petitioner’s actual enrollment in grades 10-12 in 1999-2000, i.e., 129, would have been used, then doubled, resulting in an enrollment of 258. Under that system, petitioner would still have been a Class C school for 1999-2000.

Petitioner argues that, because its ninth and tenth grade enrollments make up such a large proportion of the student body, its athletic teams, which are mostly composed of ninth and tenth graders, will be at a serious disadvantage when playing varsity sports against other Class B schools, where most players are eleventh or twelfth graders. It also points out that its student population is largely transient, so that there is less continuity in its athletic programs and few students actually progress all the way from the ninth grade to the twelfth grade. As a result, its teams cannot compete "on a relatively level playing field" (Archbishop Walsh High School v. Section VI, 88 NY2d 131, at p. 138).

The proper classification, for athletic purposes, of schools that are not maintained by regular public school districts with fixed geographical boundaries presents many practical difficulties (see, e.g., Appeal of Notre Dame High School, et al., 38 Ed Dept Rep 615, Decision No. 14,104; Appeal of Bishop Grimes High School, et al., 38 id. 237, Decision No. 14,024). In most cases, the difficulties have arisen with nonpublic schools that do not have fixed geographical boundaries. Here, the problem arises with a publicly funded school, but with an unusual population distribution. As a publicly funded school, petitioner’s classification is apparently set by the enrollment formula of the Association, and the Association’s 1997 amendment to its constitution that allowed each of its section’s athletic councils to determine appropriate classifications for nonpublic schools does not apply. As a publicly funded school, petitioner may request classification at a higher, but not lower, level than the classification formula dictates.

By its request for alternative relief, petitioner concedes that its basketball program was properly reclassified from Class C to Class B. The record indicates that, as a Class C competitor, petitioner’s modified, junior varsity, and varsity basketball teams over the past five seasons have compiled a combined record of 206 wins and only 13 losses (a winning percentage of .941). I take judicial notice of the fact that petitioner’s boys’ varsity basketball team won the 1999-2000 Section II Class B Tournament, shortly after this appeal was commenced.

Petitioner’s teams in modified soccer (5-33-1) and varsity baseball (16-44) have been less successful, however. In the recently-introduced sport of volleyball, after an initial 1-11 season in 1998-1999, petitioner’s team won 12 matches and lost only 3 in 1999-2000.

The record before me indicates that petitioner appealed its reclassification to the Association without differentiating among its various sports programs. The record before me does not indicate whether or not the Association has the authority under its constitution and rules to reclassify the athletic programs of a special act, publicly funded, school district on a sport-by-sport basis, as the Association has authorized, and indeed encouraged, its sections to do with nonpublic schools (see, Appeal of Notre Dame High School, et al., supra, at pp.241-242; Appeal of Bishop Grimes High School, et al., supra, at pp.618-619, 621-622). I, therefore, remand this matter to the Association to reconsider, under its constitution and rules, petitioner’s appeal with respect to the classification of its sports programs, other than its basketball program.

IT IS ORDERED, that the appeal be dismissed with respect to the reclassification of petitioner’s basketball program;

IT IS FURTHER ORDERED, that the matter be remanded to the Association for further consideration with respect to the reclassification of petitioner’s athletic programs other than basketball, under the Association’s constitution and rules; and

IT IS FURTHER ORDERED, that all of petitioner’s athletic programs shall remain classified as Class B programs pending the Association’s reconsideration of the reclassification of petitioner’s programs other than basketball.

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