Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of Section III of the New York State Public High School Athletic Association and the Immaculate Heart Central School regarding participation in interscholastic athletics.

Decision No. 17,428

(July 5, 2018)

Bond, Schoeneck & King, PLLC, attorneys for respondent Section III of the New York State Public High School Athletic Association, Liza R. Magley and Daniel J. Pautz, Esqs., of counsel

Schwerzmann & Wise, P.C., attorneys for respondent Immaculate Heart Central School, Keith B. Caughlin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of Section III of the New York State Public High School Athletic Association (“respondent” or “Section III”) that his son (“the student”) was ineligible for a waiver of Rule 30 (the “transfer rule”) of the New York State Public High School Athletic Association (“NYSPHSAA”) and, as such, was ineligible to participate in interscholastic football and interscholastic lacrosse for the 2015-2016 school year.  The appeal must be dismissed.

During the 2016-2017 school year, the student attended tenth grade at Immaculate Heart Central High School (“IHC”), a nonpublic school.  Prior to that year, the student attended Carthage High School in the Carthage Central School District and participated as a member of the Carthage High School interscholastic football and lacrosse teams during the 2015-2016 seasons.  According to the record, the student transferred to IHC for the 2016-2017 school year and continued to reside in the Carthage Central School District.

Respondent Section III is a section of NYSPHSAA, a voluntary association of public and non-public schools organized to provide a central association through which students may compete in interscholastic athletics.  In addition to the provisions of Commissioner’s regulation §135.4, which govern interscholastic athletic competition, NYSPHSAA’s member schools are governed by NYSPHSAA’s Bylaws and Eligibility Standards.  One of the bylaws, known as the “transfer rule,” provides that a student who transfers schools, without a corresponding change in residence of his/her parents, is ineligible to participate in any interscholastic contest in a particular sport for one year, if that student participated in that sport in the year immediately preceding the transfer (NYSPHSAA Bylaws and Eligibility Standard Rule 30).  The transfer rule includes provisions whereby member schools may apply to respondent Section III for a waiver of the rule on behalf of a student based on undue hardship, if certain conditions are met.  A hardship waiver may be granted if it can be shown that the reason for the student’s transfer was the result of financial hardship or was related to matters of health and safety.  

The record indicates that, in August 2016, IHC sought a waiver of the transfer rule, on behalf of the student, to permit his participation in interscholastic football and lacrosse during the 2016-2017 seasons.  The waiver request form submitted by IHC stated that the reason for the student’s transfer was for “academic issues associated with a learning disability that block scheduling exacerbates.  Please see documentation.  IHC does not have block scheduling.”

On or about August 25, 2016, Section III denied the waiver request, rendering the student ineligible to participate in interscholastic football and interscholastic lacrosse for the 2016-2017 school year.  The decision noted that, commencing in 2015, waiver requests for educational reasons were no longer permitted under NYSPHSAA’s bylaws. This appeal ensued.  Petitioner’s request for interim relief was denied on October 12, 2016.

Petitioner contends that, because the student is not an accomplished athlete and was not recruited by IHC to play on its athletic teams, he should be eligible to participate in interscholastic football and lacrosse during the 2016-2017 seasons, despite the transfer rule.  Petitioner further contends that the waiver request was not for educational reasons, but was based upon “health and safety.”  Petitioner asserts that, because Section III did not assess the waiver request as one based upon “health and safety,” it failed to follow NYSPHSAA’s guidelines, and the transfer rule penalty should be waived.  As relief, petitioner seeks a determination that the student is eligible to play interscholastic football and lacrosse for IHC during the 2016-2017 seasons.

Section III contends that petitioner fails to state a claim upon which relief can be granted.  Section III asserts that its denial of the request to waive the transfer rule penalty was proper and based upon the evidence presented by IHC in support of the student’s waiver request before it at the time.  Section III further asserts that, to the extent that IHC intended the waiver request to be based on health and safety reasons, no documentation of such reasons was provided at the time of its decision.

I must first address a procedural matter.  On October 5, 2016, petitioner sought permission to submit additional information in the appeal.  Respondent does not object to the filing of petitioner’s additional submission. Additional affidavits exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). 

Attached to his verified petition, petitioner submitted letters from the principal of Carthage Central High School, the student’s special education teacher at Carthage Central High School and the student’s physician in support of the waiver request.  Petitioner’s October 5, 2016 submission indicates that, subsequent to the filing of the petition, he discovered that such exhibits were not provided by IHC to Section III in support of the student’s waiver application.  To the extent that the submission attempts to add new claims or factual assertions that could have been asserted in the petition, I have not considered such information.  However, to the extent that petitioner seeks to clarify the record upon which Section III based its waiver decision, I have accepted such submission for consideration. 

The appeal must 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’s sole request for relief was limited to the student’s participation in interscholastic football and lacrosse during the 2016-2017 seasons.  Petitioner’s request for interim relief, seeking the same remedy, was denied on October 12, 2016 and the football and lacrosse seasons have concluded.  Accordingly, there is no further relief to be awarded and the matter is moot.

     In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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