Appeal of PAUL WILSON, on behalf of his son ALEX, from action of the Board of Education of the City School District of the City of Long Beach and Arnold Epstein, Director of Health, Physical Education and Athletics, regarding athletic eligibility.

Decision No. 15,497

(December 8, 2006)

Kelly & Labeck, P.C., attorneys for petitioner, Denis G. Kelly, Esq., of counsel

Ingerman, Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Long Beach (the “board”) and its director of health, physical education and athletics (collectively “respondents”), to deny his son, Alex, the opportunity to try out for the junior varsity lacrosse team.  The appeal must be sustained in part. 

At the time this dispute arose, Alex was an eighth grade student at the district’s middle school.  On February 28, 2006, petitioner’s attorney submitted a written request to the district’s director of health, physical education and athletics (“athletic director”) requesting that Alex be permitted to try out for the junior varsity lacrosse team.  Alex was denied the opportunity to try out while two other eighth grade students were invited to join the team.  Practice began for the junior varsity lacrosse team on March 6, 2006.  This appeal ensued.

Petitioner alleges that respondents violated New York State’s procedures for selection/classification for the junior varsity lacrosse team for the 2005-2006 school year.  Specifically, petitioner argues that respondents failed to confirm or ensure that a resolution had been approved to allow students to participate in the selection/ classification model program.  In addition, petitioner alleges that respondents failed to convene a proper pre-evaluation committee.  Petitioner also contends that respondents denied Alex the opportunity to try out for the lacrosse team, despite his request to be considered.  Moreover, petitioner contends that respondents violated the selection procedures by permitting two other eighth grade students to join the junior varsity team without following any of the procedures for such an invitation and without advising the middle school parents that such an opportunity existed.  Accordingly, petitioner requests that I order respondents to follow the New York State selection/ classification implementation procedures in the future and that I direct respondents to annually disseminate information to seventh and eighth grade parents and students as to the potential opportunity for such students to play on high school athletic teams.

Respondents contend the decision to deny Alex the opportunity to try out for the junior varsity lacrosse team is not arbitrary or capricious.  Specifically, respondents assert that the pre-evaluation committee determined that Alex did not have the potential to successfully compete at the junior varsity level and, therefore, he was not eligible to try out for the team.  Respondents further allege that the appeal is moot.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  I acknowledge that the 2005-2006 lacrosse season has ended.  However, “[i]t is settled doctrine that an appeal will, nevertheless, be entertained where, as here, the controversy is of a character which is likely to recur not only with respect to the parties ... but with respect to others as well” (East Meadow Community Concerts Ass’n v Bd. of Educ., Union Free School Dist. No. 3, County of Nassau, 18 NY2d 129, 135; Appeal of Muench, 43 Ed Dept Rep 419, Decision No. 15,039; Appeal of Student Suspected of Having a Disability, 38 id. 796, Decision No. 14,145).  Since the issue of whether respondents comply with New York State’s selection/classification standards for seventh and eighth grade students is likely to recur, I decline to dismiss this appeal as moot.

As to the merits, §135.4 of the Commissioner’s regulations permits a board of education to allow pupils in grades no lower than seventh to compete on interscholastic athletic teams organized for senior high school pupils.  These pupils are required to be placed at levels of competition appropriate to their physiological maturity, physical fitness and skills in relationship to other pupils in accordance with the standards established by the Commissioner (8 NYCRR §135.4[c][7][ii][a][4]).

In March 2005, the State Education Department, in collaboration with the New York State Athletic Administrators Association, the New York State Public High School Athletic Association and directors of physical education/athletics, implemented the “New York State Selection/Classification  Program  for  Interschool Athletic Programs” (“selection/classification program”), establishing standards and procedures for school districts to follow when  students in  grades seven  and eight  are in the selection  process for high  school athletics (The University  of  the State  of New York, New York State  Selection/Classification  Program  for  Interschool Athletic Programs, <www.emsc.nysed.gov/ciai/physed> [last updated March 2005]).

Phase 1 of the selection/classification program requires a district’s athletic director to “[c]onfirm that the school district has approved a resolution to allow students to participate in the [s]election/[c]lassification ... program.”  If no such resolution exists, the athletic director is required to take proper steps to ensure that this requirement is met.  While petitioner argues that the board failed to confirm that it had approved a resolution, or had taken the necessary steps to ensure that a resolution was approved before the spring lacrosse season, the record reveals that a resolution was substantially completed at the time this issue arose and a final resolution was adopted on March 15, 2006.  As a result, I find that respondents complied with Phase 1 of the process.

Next, Phase 2 of the process requires the athletic director to convene a committee, similar to the mixed competition panel, to perform a pre-evaluation assessment of the student to determine if the student has the potential to successfully participate at a higher level of athletic competition.  In the sport of lacrosse, the mixed competition review panel must consist of the school physician, a physical education teacher designated by the principal of the school, and if requested by the parents of the pupil, a physician selected by such parents (8 NYCRR §135.4[c][7][ii][c][2]).  In this case, the athletic director indicated that he asked the varsity lacrosse coach to participate on the pre-evaluation committee and directed the varsity coach to include other lacrosse coaches on the committee as well.  However, the record is devoid of any evidence to suggest that the school physician, or any physician, was included as a member of such committee.  In fact, respondents failed to release the names and/or titles of other members of the pre-evaluation committee, other than the varsity coach.  Consequently, upon the record before me, I find that respondents failed to convene a pre-evaluation committee in compliance with Phase 2.

Moreover, Alex should have been processed through the selection/classification procedures because petitioner’s attorney, on Alex’s behalf, specifically requested that he be given an opportunity to try out for the team.  The selection procedures state that if a student requests that he/she be processed through the selection/classification process, the athletic director shall obtain parental permission and have the student screened by a school physician prior to any performance testing.  Since petitioner’s attorney requested that Alex be considered for the junior varsity lacrosse team and the school physician never examined Alex and no parental consent was requested, I find that respondents failed to comply with the selection process.  In light of the foregoing, I admonish respondents, to comply with New York State’s Selection/Classification procedures hereafter.

I find no merit, however, to petitioner’s claims that respondents violated New York State’s selection/ classification procedures by failing to annually notify seventh and eighth grade parents and students as to the potential opportunity to play on an athletic team.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Upon the record before me, I find that petitioner has not met his burden of proof on this issue.  Petitioner failed to offer any evidence to suggest that respondents are required to disseminate such information on an annual basis.  Accordingly, this claim must be dismissed.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents review the district’s policies and practices to ensure compliance with New York’s selection/classification procedures in accordance with this decision.

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