Appeal of SUSAN MARSON, on behalf of her daughter CASEY, from action of the State Education Department regarding athletic eligibility.

Decision No. 16,031

(March 17, 2010)

STEINER, Commissioner.--Petitioner appeals a determination that her daughter, Casey, is ineligible to participate in a girls’ golf championship tournament.  The appeal must be dismissed.

According to the petition, Casey is a high school student in the City School District of the City of Norwich (“district”).  Since the district does not have a girls’ golf team, Casey is a member of the boys’ team.  Petitioner was informed that Casey was ineligible to participate in the girls’ Section IV championship because her regular match schedule is not gender-specific to girls.  This appeal ensued.  Petitioner requests that I direct Section IV to permit Casey to compete in the Section IV Girls’ Individual Golf Championship and any resulting qualifications.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555). 

An appeal to the Commissioner pursuant to Education Law §310 is appellate in nature, and it is not clear from the petition who made the determination from which petitioner is appealing.  However, the appeal requests that I order Section IV (of the New York State Public High School Athletic Association, Inc.) to permit Casey to compete in its championship.  Therefore, Section IV and any other party who made the decision appealed from, are necessary parties to this appeal.  To the extent petitioner seeks to appeal the application of the mixed competition regulation to her daughter, the appeal must be dismissed for failure to join one or more necessary parties.

Finally, an appeal to the Commissioner pursuant to Education Law §310 is not the proper forum for challenging actions of the State Education Department or its staff or the legality of Commissioner’s regulations (seee.g.Appeal of New York Institute of Massage, Inc., 45 Ed Dept Rep 495, Decision No. 15,391; Appeal of Story, 32 id. 176, Decision No. 12,797, affdsubnomBOE, Beacon City School Dist. v. Sobol, et al., 212 AD2d 76).  Such actions and regulations can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

THE APPEAL IS DISMISSED.

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