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Decision No. 17,633

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of Section IV of the New York State Public High School Athletic Association and the Board of Education of the Horseheads Central School District regarding interscholastic athletics.

Decision No. 17,633

(April 29, 2019)

Levene, Gouldin & Thompson, LLP, attorneys for respondent Section IV of the New York State Public High School Athletic Association, David M. Gouldin, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent Board of Education of the Horseheads Central School District, Wendy K. DeWind, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of Section IV of the New York State Public High School Athletic Association[1] (“respondent” or “Section IV”) that her son (“the student”) was ineligible to participate in interscholastic basketball and interscholastic lacrosse during the 2017-2018 school year.  The appeal must be dismissed.

Section IV is a subdivision of the New York State Public High School Athletic Association (“NYSPHSAA”), a voluntary association of public and non-public schools organized to provide a central association through which students may compete in interscholastic athletics.

During the 2017-2018 school year, the student was a senior attending high school in the Horseheads Central School District (“Horseheads”).  The record indicates that the student entered ninth grade at Horseheads High School in September 2013.  According to the record, the student suffers from chronic migraines and postural orthostatic tachycardia syndrome which cause frequent absences from school.  The record indicates that, on or about March 16, 2015, the student began receiving homebound instruction in accordance with an accommodation plan issued pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”).  The student continued to attend high school on a modified schedule for the 2015-2016 and 2016-2017 school years.  According to the record, on July 18, 2016, the student was notified that, as a result of his modified school schedule, he had not met the requirements to be promoted to twelfth grade for the 2016-2017 school year and, therefore, would be required to attend school for a fifth year in order to receive his high school diploma.

Upon entering high school in 2013, the student participated in interscholastic basketball for four consecutive seasons.[2]  The student was a member of the junior varsity team during the 2013-2014 season and was a member of the varsity team during the 2014-2015, 2015-2016 and 2016-2017 seasons.  The student also participated in interscholastic junior varsity lacrosse during the 2013-2014 season.

Petitioner asserts that during the 2014-2015 basketball season - the student’s sophomore year - the student was frequently absent from school as a result of his disability.  Petitioner claims that, therefore, the student’s participation as a member of the basketball team that year was minimal.  Petitioner asserts that the student played for eight minutes during one game that season.  As noted above, following the conclusion of the 2014-2015 basketball season in the spring of 2015, the student was placed on home instruction pursuant to a Section 504 plan.  The record further indicates that, because the student received home instruction, the student did not participate in lacrosse in the spring of 2015.  Thereafter, the student participated on the varsity basketball team during the 2015-2016 and 2016-2017 basketball seasons.

On April 24, 2017, Horseheads submitted an extended eligibility application on behalf of the student to Section IV’s Committee for Extended Eligibility seeking his extended eligibility to participate in interscholastic basketball and lacrosse during the 2017-2018 season.  By letter dated July 20, 2017, the request was denied.  Horseheads appealed and, by letter dated August 14, 2017, Section IV’s Appeals Committee upheld the determination denying Horsehead’s request for the student’s extended eligibility.  The district apparently did not further pursue an appeal of Section IV’s decision within NYSPHSAA.

Petitioner commenced this appeal challenging Section IV’s decision on September 15, 2017.  By letter dated October 5, 2017, petitioner was directed to join the Board of Education of the Horseheads Central School District as a necessary party, pursuant to §275.1 of the Commissioner’s regulations.  Petitioner promptly did so on October 6, 2017.

Petitioner’s request for interim relief was granted in part on October 11, 2017.  Pursuant to the stay order, respondents were directed to permit the student to participate as a member of the Horseheads Central School District boys’ lacrosse team during the 2017-2018 school year.  However, petitioner’s request for interim relief relating to participation in interscholastic basketball for the 2017-2018 school year was denied.

At the time Horseheads made the request for the student’s extended eligibility, §135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations provided in pertinent part:[3]

Duration of competition. A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation, except as otherwise provided in this subclause.... A pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest....

The regulation further provided for an extension of athletic eligibility under the following circumstances:

  1. If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness or accident, such pupil's eligibility shall be extended accordingly in that sport....

The regulation further provided:

In order to be deemed sufficient, the evidence must include documentation showing that as a direct result of the illness or accident, the pupil will be required to attend school for one or more additional semesters in order to graduate.

Thus, the regulation presented a two-pronged test for extended eligibility in the case of injury or illness: (1) the student must not have entered competition in the subject sport; and (2) the injury or illness which caused the student to not enter competition must have also caused the student to require additional time to graduate (Appeal of Caruso, 56 Ed Dept Rep, Decision No. 17,021; Appeal of N.M., Sr., 55 id., Decision No. 16,846).

Petitioner contends that the student failed to enter competition during the 2014-2015 basketball and lacrosse seasons as a result of his illness.  Petitioner further asserts that the student is required to attend school for two additional semesters in order to graduate as a direct result of the same circumstances that affected his participation in athletic competition during the 2014-2015 school year.  Petitioner further contends that the student’s limited participation in basketball during the 2014-2015 season was so minimal as to constitute non-participation.  In addition, to claim extended eligibility under §135.4(c)(7)(ii)(b)(l) of the regulations, petitioner also asserts that, although basketball is a contact sport, the student is eligible for extended eligibility pursuant to §135.4(c)(7)(ii)(d) of the Commissioner’s regulations (which provides for extended eligibility for certain students with disabilities in noncontact sports) because his participation will not adversely affect the opportunity of other students to compete.

Petitioner further contends that respondent failed to properly provide notice to petitioner of its decision to deny petitioner’s appeal and the process by which that decision may be appealed, as required by §135.4(c)(7)(ii)(b)(1)(ii) of the Commissioner’s regulations.[4]  As relief, petitioner seeks an order permitting the student to participate in interscholastic basketball and lacrosse for the 2017-2018 school year seasons.

Section IV asserts several defenses.  Specifically, Section IV asserts lack of subject matter jurisdiction, improper venue, lack of authority to amend the Commissioner’s regulations, failure to exhaust administrative remedies, failure to join a necessary party, lack of standing, failure to state a cause of action upon which relief can be granted, untimeliness, lack of personal jurisdiction and that the denial of extended eligibility was properly made consistent with §135.4 (c)(7)(ii)(b)(1) of the Commissioner’s regulations.

I note that, although joined as a respondent, Horseheads did not oppose petitioner’s request for interim relief and has not submitted an answer.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner’s request for relief is limited to the student’s participation in interscholastic basketball and lacrosse during the 2017-2018 school year seasons.  Petitioner’s request for interim relief with respect to his participation in interscholastic basketball for the 2017-2018 school year was denied on October 11, 2017.  However, petitioner’s request for interim relief with respect to his participation in interscholastic lacrosse during the 2017-2018 school year was granted.  Both the basketball and lacrosse seasons for the 2017-2018 school year have concluded.  Accordingly, there is no further relief to be awarded, and the matter is moot.

Although the appeal is dismissed as moot, I remind respondent Section IV of its obligation pursuant to §135.4(c)(7)(ii)(b)(1)(ii) of the Commissioner’s regulations, to provide proper notice to a parent, guardian or person in parental relation of the denial of an appeal of an extended eligibility request.  The regulation further requires that the notice include: (1) a statement that the determination may be appealed to the Commissioner of Education, in accordance with Education Law §310, within 30 days of the date of such determination, and (2) the name and address of the athletic association official upon whom such appeal shall be served.  Section IV should review its procedures to ensure full compliance with the regulation in the future.

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

THE APPEAL IS DISMISSED.

END OF FILE


[1] I note that the caption on the petition names respondent Section IV as “Section IV Athletic Council and N.Y.S.P.H.S.A.A. Inc. Appeals Committee.”  While the New York State Public High School Athletic Association (“NYSPHSAA”) does have an Appeals Committee, petitioner is appealing from a determination of the Appeals Committee of the Section IV Athletic Council of NYSPSHAA.

 

[2] The record also indicates that the student had participated as a member of the junior varsity basketball team as an eighth-grade student during the 2012-2013 season in accordance with the provisions of Commissioner’s regulation §135.4(c)(7)(ii)(a).

 

[3] I note that, effective July 1, 2017, Commissioner’s regulation §135.4(c)(7)(ii)(b) was amended to clarify the circumstances under which an extension of eligibility may be granted.

 

[4] Amendments to 8 NYCRR §135.4(c)(7)(ii)(b)(1)(ii) became effective on July 1, 2017 and require that, “[I]f the athletic association hears and denies an appeal, written notice of the determination shall be provided to the chief school officer, with a copy to the pupil’s parent, guardian or person in parental relation.  Such notice shall include a statement that the determination may be appealed to the Commissioner of Education, in accordance with Education Law, section 310, within 30 days of the date of such determination and shall include the name and address of the athletic association official upon whom such appeal shall be served.”  The record indicates that the Appeals Committee of Section IV upheld the determination made by the Section IV Committee for Extended Eligibility on August 14, 2017, after the effective date of this regulation.