Appeal of JOSEPH MUNNO, on behalf of the STUDENTS ATTENDING UNIVERSITY PREPARATORY CHARTER SCHOOL FOR YOUNG MEN, from action of the Classification Committee and Executive Committee of Section V of the New York State Public High School Athletic Association, Inc., and Robert Zayas, Executive Director, regarding classification of athletic programs.

Decision No. 17,201

(October 3, 2017)

Renee L. James, Esq., attorney for respondents

ELIA, Commissioner.--Petitioner appeals the determination of the Classification Committee and Executive Committee of Section V of the New York State Public High School Athletic Association, Inc. (“NYSPHSAA”) and Robert Zayas, Executive Director of NYSPHSAA (collectively “respondents”), to move the classification of the University Preparatory Charter School for Young Men (“UPrep”) basketball program from Class A-2 to Class AA.  The appeal must be dismissed.

Petitioner is the president and founder of UPrep.  According to petitioner, UPrep is a charter school that “has been playing basketball for only 4 years prior to [the 2016-2017] season.”  Petitioner asserts that, “[a]ccording to the classification guidelines for basketball in Section V, [UPrep] is a class B school.”  The record indicates that, pursuant to Section V’s Classification Policy, the Section V Classification Committee reviewed information, including the UPrep rosters for the 2015-2016 and 2016-2017 school years, and voted to move the UPrep basketball program from Class A-2 to Class AA.  By email dated November 8, 2016, petitioner appealed the decision to the Section V Executive Committee. 

On November 17, 2016, the Executive Committee voted to uphold the decision of the Classification Committee.  UPrep then appealed to the NYSPHSAA Appeal Panel (“Appeal Panel”). 

By decision dated December 2, 2016, the Appeal Panel upheld the decision of the Section.  The Appeal Panel found that UPrep “had knowledge that the Classification Policy applied to charter as well as non-public schools”; that the decision of the Section is not clearly contrary to the evidence; and that there was no evidence of a procedural error that affected the reliability of the decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 17, 2017.

Petitioner asserts that because UPrep is a charter school, it should be classified as a public school rather than a nonpublic school for classification purposes, and requests interim relief classifying UPrep as a public school, in Class B, “until the entire case is heard.”

Respondents assert that the appeal must be dismissed as untimely; for lack of proper service; for lack of proper notice; and for failure to state a cause of action.  Respondents also assert that petitioner is a school district, and as such, it is required to appear only by an attorney pursuant to 8 NYCRR §275.15. 

 I must first address the procedural issues.  Commissioner’s regulation §275.15 provides that, with respect to an appeal brought pursuant to Education Law §310, “[a] school district, corporation, LLC, LLP or other business entity shall appear only by an attorney.”  Although it is not entirely clear from the petition, petitioner lists himself as bringing the instant appeal “on behalf of the students attending [UPrep].”  Further, the verification signed by petitioner indicates that he “is the Petitioner in this proceeding.”  Respondent asserts that UPrep is a school district, and as such, it is required to appear only by an attorney pursuant to 8 NYCRR §275.15.  In reply, petitioner asserts that “I made it clear, I was representing the students of UPrep and not the school.”  I note that the underlying determination at issue was “the appeal of [UPrep] from a determination made by Section V....”  A charter school is not a school district; rather, it is an “independent and autonomous public school” (Education Law §2853[1][c]) that is treated as a nonpublic school for certain purposes (see e.g. Education Law §2853[4]).  A charter school is, however, an education corporation (Education Law §2853[1]) and, under 8 NYCRR §275.15, UPrep as an education corporation may only appear in an Education Law §310 appeal by an attorney.  Therefore, petitioner, as a non-attorney, could not maintain this appeal on behalf of UPrep.  However, in light of petitioner’s representations that he is not appearing on behalf of the charter school, I decline to dismiss the petition for failure to appear by an attorney. 

Although not raised by respondents, I note that standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]; Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Although petitioner asserts that he is the president and founder of UPrep, he has also asserted that he is not representing UPrep and he has not demonstrated that he has suffered personal damage or injury to his civil, personal or property rights as a result of respondents’ determination to re-classify UPrep’s basketball team (see Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609).  Therefore, the appeal must be dismissed for lack of standing.

The appeal must also be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Petitioner appeals a determination of NYSPHSAA Section V.[1]  The affidavit of service indicates that, on January 25, 2017, the petition was served on Kathy Hoyt,[2] who “was not available and asked that the documents be emailed to her and that she would sign the attached document showing receipt of the package.”  Respondents submit an affidavit from Ms. Hoyt indicating that, on January 25, 2017, she received a phone call from petitioner, asking if she would sign a paper indicating that she had received his email.  According to Ms. Hoyt, “[b]eing new to the position, I did not realize that any response was needed.”  In reply, petitioner states that he committed procedural errors because he is not an attorney and did not receive appropriate guidance from my Office of Counsel.  However, I do not find this to be a sufficient explanation for his failure to properly serve Section V.  Therefore, the appeal must also be dismissed for lack of proper service.   

The appeal must also be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  The record indicates that petitioner received the December 2, 2016 NYSPHSAA Section V Appeal Panel determination on December 5, 2016.  Therefore, petitioner had until January 4, 2017 to commence the instant appeal.  According to the affidavit of service, petitioner attempted to serve the petition on January 25, 2017.  As discussed above, petitioner asserts that since he is not an attorney and did not receive “appropriate guidance” from my Office of Counsel, “many procedural pieces were not completed timely as noted by the Respondent.”  However, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Petitioner has failed to establish good cause for his delay.  The appeal therefore must be dismissed as untimely.  

The appeal must also be dismissed because petitioner has failed to join a necessary party – NYSPHSAA Section V.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Although Section V is named as a party, it was not personally served with the petition in this appeal as discussed above.  Because this appeal is from the determination of NYSPHSAA Section V, the rights of Section V would be affected by a decision in this matter.  Accordingly, I find that Section V is a necessary party (see Appeal of Marson, 49 Ed Dept Rep 295, Decision No. 16,031; Appeal of LaClair, 32 id. 594, Decision No. 12,924; Appeal of Basile, 32 id. 330, Decision No. 12,844).  Therefore, the appeal must be dismissed for failure to join a necessary party.

The appeal must also be dismissed as 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner requests interim relief classifying UPrep as a public school, in Class B, “until the entire case is heard.”  The record indicates that petitioner’s request for interim relief was denied on February 17, 2017.  Therefore, the sole relief requested by petitioner cannot be granted and the appeal is moot (see Appeal of Passer, 44 Ed Dept Rep 245, Decision No. 15,160).

Although I am constrained to dismiss the appeal for the reasons discussed above, for the benefit of the parties, I will discuss the merits.  

Petitioner contends that because UPrep is a charter school, it should be classified as a public school rather than a nonpublic school.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

Petitioner submits the guidelines and procedures of the Section V Classification Committee, indicating that the Committee conducts “an annual review of the sport classifications of nonpublic schools in Section V in accordance with the directive of the [NYSPHSAA].”  According to its guidelines and procedures, the purpose of the annual review is to determine the classification of nonpublic schools for the following year.  Petitioner submits that UPrep is not a nonpublic school subject to the classification policy, but, in any event, should have been classified as Class B as a result of that annual review.

Respondents assert that Section V is required to have a classification procedure for charter and nonpublic schools that reviews each team individually, in order to maintain a level playing field for all schools.  According to NYSPHSAA’s executive director, charter schools are initially classified based on their BEDS numbers, but “[b]ecause Charter School[s] and Non-Public schools do not have boundaries like traditional public schools they are subject to review by the Classification Committee and may be moved up to compete against larger schools if they become dominant.  This is to assure a level playing field....  If the school is not successful at the higher level they will be moved back down.”  Respondents assert that this policy was established “after schools with no geographical boundaries were dominating certain classes in certain sports to the detriment of traditional public school[s]” because the schools can attract athletes from outside district boundaries.

According to NYSPHSAA’s executive director, at the annual review, the Committee reviewed information regarding UPrep’s past records in boys’ basketball and the rosters for the past and current year.  Specifically, the Committee noted that there were three new transfers to UPrep’s basketball program who were listed by UPrep as being 6’7”, 6’6”, and 6’3” in height and that these students had previously played varsity basketball at their former schools.  The Committee also reviewed UPrep’s schedule for the 2016-2017 season and noted that it had scheduled games with seven Class AA schools for the regular season.  As a result, the Committee voted to move UPrep’s team to Class AA.   

Petitioner relies upon a December 21, 2016 letter to NYSPHSAA from the Executive Deputy Director and General Counsel of the State University of New York’s Charter Schools Institute, which indicates that Section V is incorrectly treating charter schools as nonpublic schools.  The letter indicates that “[c]harter schools do not have the ability to allow in an athletically inclined student before any other qualified candidate” based on the charter school admission requirements set forth in Education Law §2854(2) and 8 NYCRR §119.5.  According to petitioner, this contention “is the basis of my appeal.” 

Initially, I note that the Classification Guidelines and Procedures references only nonpublic schools and does not specifically reference charter schools.  The parties do not appear to dispute that charter schools are not nonpublic schools.  Rather, respondents’ position is that both charter and nonpublic schools are reviewed together for classification purposes because both are schools “without boundaries.”  As the Appeal Panel noted, UPrep had knowledge that this policy applied to charter schools as well because it has “gone through the [classification] process in the past.”  However, the crux of petitioner’s argument appears to be that the Section’s position that its policy covers nonpublic and charter schools because both “operate without boundaries” is without merit.  Indeed, petitioner asserts in his reply that “New York State Charter School Law states that first priorities in terms of enrollment in a Charter School are families who reside within the district of residence- that being Rochester City School District.  We do not advertise, nor do we recruit outside of the City of Rochester.  In every year of our existence (7 years), all new students to grade 7 have resided within the City of Rochester.”  He further asserts that “[n]on-public schools in the Rochester Community, charge tuition, openly recruit throughout the rural and suburban areas grant scholarships based on need, athletic ability and other reasons.  UPrep does none of the above- we are a public school!” 

Education Law §2854(2)(b) provides, in part, as follows:

Any child who is qualified under the laws of this state for admission to a public school is qualified for admission to a charter school.... The school shall enroll each eligible student who submits a timely application by the first day of April each year, unless the number of applications exceeds the capacity of the grade level or building. In such cases, students shall be accepted from among applicants by a random selection process, provided, however, that an enrollment preference shall be provided to pupils returning to the charter school in the second or any subsequent year of operation and pupils residing in the school district in which the charter school is located, and siblings of pupils already enrolled in the charter school... (emphasis added).

Although I note that the admission policies of nonpublic schools are not subject to the limitations placed on UPrep by virtue of the above provision, the provision only provides for an enrollment preference for students residing in the school district in which the charter school is located and does not limit admission to students residing in a specific geographical area.  Rather, the statute does specifically contemplate that students throughout the state could apply for admission to UPrep.  Therefore, respondents’ inclusion of charter schools in its annual classification review is rationally related to their proffered reason that this is done in order to “level the playing field.”  As described above, the Classification Committee made its determination based on an individualized review of UPrep’s basketball program for the 2016-2017 school year.  Further, as respondents note, UPrep could always move down to a lower class if it is unsuccessful in Class AA, and such review is conducted on an annual basis.

On the record before me, there is no basis to overturn Section V’s decision to apply its classification policy to charter schools and to re-classify UPrep’s basketball team as Class AA based upon its annual review.   However, I urge respondents to revise the classification policy to expressly include charter schools in the provision relating to nonpublic schools.

THE APPEAL IS DISMISSED.

END OF FILE