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Decision No. 14,505

Appeal of A STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Whitney Point Central School District and Dale C. Schumacher, Superintendent of Schools, regarding athletic eligibility.

Decision No. 14,505

(December 15, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Frank W. Miller and Jennifer G. Speller, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the action of the Board of Education of the Whitney Point Central School District ("respondent") and its Superintendent of Schools, Dale C. Schumacher, denying their son eligibility to participate in the junior varsity football program. The appeal must be sustained.

On August 16, 1999, petitioners' son began practice for the junior varsity football team at the district's high school. On August 20, in accordance with its "Minimum Sports Standards Policy" approved in September 1998, respondent declared petitioners' son ineligible for the team because of his grades the previous semester while an eighth grade student at the middle school. This appeal ensued. Petitioners' request for interim relief was granted on October 8, 1999.

According to respondent, petitioners' son received four failing grades in the final marking period of the 1998-99 school year, and five failing final grades. Paragraph three of respondent's Minimum Sports Standards Policy ("policy") provides:

A high school athlete that is failing one (1) subject will be allowed to play while getting help in that subject. An athlete that is failing two (2) subjects will need to have a form filled out weekly, while staying/getting extra help, showing that a sincere effort is being made to improve in those courses (form has areas to be evaluated). An athlete failing three (3) courses will be dropped from a team. An athlete on the modified level will follow the current Middle School policy regarding failure.

Petitioners contend that respondent's policy is unreasonable because it fails to specify in writing that spring grades will carry over to determine eligibility in the fall or that middle school grades will carry over to high school. Specifically, they contend that the middle school policy is distinct from the Minimum Sports Standards Policy, and since their son was promoted to ninth grade and not required to take summer school courses, they had no notice that his middle school grades would carry over to determine his eligibility the following school year in the high school. They assert that respondent has applied its policy inequitably by allowing other students to play with three failing grades and they dispute that their son failed math. They also claim that respondents are prejudiced against their son because he is a special education student.

Petitioners allege that respondent failed to make an eligibility determination until two months after the conclusion of the 1998-99 school year and after their son had participated in a week of double practices. They also contend that respondent's policy violates "100.2(l) of the Commissioner's regulations that requires school districts to adopt and implement written policies on school conduct and discipline. They assert that respondent's attorney concedes that "the district's practice of using grades from the previous semester to determine athletic eligibility is not part of the written policy." They request that their son be permitted to participate in the junior varsity football program.

Respondent asserts that the petition fails to state a claim upon which relief may be granted because respondent properly adopted and implemented its policy regarding athletic eligibility. While it acknowledges that its "practice of using grades from the previous semester to determine athletic eligibility is not part of the written policy," it asserts that the policy is clear and unambiguous, and that using grades from the previous semester is a reasonable interpretation of the policy. Superintendent Schumacher asserts that the policy is intended to apply to students in grades 7-12, and that petitioners' son is ineligible to participate in athletics under that policy because he failed five courses the previous semester. Respondent also argues that petitioners had notice of the policy since their son participated in modified football in the fall of 1998, modified wrestling in the winter of 1998-99, and was denied eligibility as a junior varsity baseball player in the spring of 1999 because he was failing three courses. Respondent contends further that by letter dated June 24, 1999, Middle School Principal David Wasser recommended to petitioners that their son attend summer school, but he failed to do so.

The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Jayme K., 40 Ed Dept Rep ___, Decision No. 14,434; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990; Appeal of Schuler, 37 id. 512, Decision No. 13,915). Although the fall 1999 football season has ended, I decline to dismiss this appeal as moot because I find that petitioners’ claim -- that respondent’s athletic eligibility policy is unclear -- is likely to recur (Appeal of Feiss, 37 Ed Dept Rep 339, Decision No. 13,874).

A board of education may establish reasonable academic standards as a prerequisite for eligibility for participation in extracurricular activities as part of its authority to prescribe the course of study in its schools (Education Law "1709[3]; Appeal of Stopka, 34 Ed Dept Rep 157, Decision No. 13,267; Appeal of Howard J., 31 id. 381, Decision No. 12,674; Appeal of Kiely, 24 id. 138, Decision No. 11,345). Suspension from extracurricular activities is an appropriate disciplinary measure for a student who fails to maintain required academic standards, and the threat of such suspension is an incentive for a student to maintain those standards (Appeal of Stopka, supra). However, an athletic eligibility policy can only motivate students to maintain academic standards if it clearly apprises students of what is expected of them. On the record before me, I find that respondent’s policy did not clearly apprise students that district officials would examine grades from the preceding school year to determine eligibility for a fall sports team, and therefore conclude that respondent acted arbitrarily in doing so here.

Respondent’s contention that the policy envisions using grades from the previous school year to determine eligibility for a fall sports team is contradicted by the language of the policy itself. The policy provides that an athlete who "is failing" one or two subjects, must, at a minimum, get extra help in those subjects. An "athlete failing" three courses will be dropped from the team. Respondent’s use of the present tense to describe the circumstances under which an athlete’s academic performance might jeopardize his or her participation in extra-curricular sports leads me to conclude that the policy envisions using only an athlete’s current grades to determine athletic eligibility. This conclusion is buttressed by the fact that the policy is ambiguous when applied to a student’s grades from a previous year. Under the policy, a student who "is failing" one or two subjects is permitted to continue playing so long as he or she takes certain steps to improve performance in that subject. However, a student cannot get extra help or improve performance in a class he or she is no longer taking. Accordingly, a student who failed one or two courses the previous year would not be able to satisfy the conditions set forth in respondent’s policy. It is unclear under these circumstances whether the policy would disqualify such a student from participating in a fall sport. Accordingly, I conclude that the policy was not intended to apply to a student’s grades from a previous school year, and find that respondent acted arbitrarily in doing so here. Although respondent has the right to condition a student’s participation in a fall sport on achieving specified academic standards the previous school year, it must amend its current policy to apprise students of such condition and clarify the circumstances under which failing grades from a prior year render a student ineligible to participate in a fall sport.

Finally, I must express my concern over petitioners’ son’s poor academic performance during the 1998-99 school year. The facts and circumstances have undoubtedly changed since petitioners commenced this appeal and are not before me. However, I urge the parties to vigilantly monitor this student’s academic progress and to convene the district’s Committee on Special Education to review the student’s I.E.P. if it appears that the student’s academic needs are not being met.

In light of this disposition, I decline to address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent amend its athletic eligibility policy to clarify the circumstances under which a student’s grades threaten his or her athletic eligibility.

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