Decision No. 17,807
Appeal of D.B., on behalf of his son J.B., from action of the New York State Public High School Athletic Association, Inc. regarding participation in interscholastic athletics.
Decision No. 17,807
(January 24, 2020)
Renee L. James, Esq., attorney for the New York State Public High School Association, Inc.
Tahoe, Interim Commissioner.--Petitioner appeals a purported determination of the New York State Public High School Athletic Association, Inc. (“NYSPHSAA”) that his son, J.B. (“the student”), is ineligible for interscholastic athletic competition for the 2019-2020 school year. The appeal must be dismissed.
The student is a high school senior in the Burnt Hills-Ballston Lake Central School District (“the district”). At all times relevant to this appeal, the student attended public school in the district.
The student began participating in interscholastic lacrosse for the district in 7th grade, during the 2013-2014 school year, and continued participating as an 8th grade student, during the 2014-2015 school year. Due to academic and social difficulties, the student repeated the 8th grade during the 2015-2016 school year. The student participated in interscholastic lacrosse in the district again during this school year.
Upon beginning high school in the district, the student continued to participate in interscholastic lacrosse during the 2016-2017, 2017-2018, and 2018-2019 school years, as a freshman, sophomore, and junior, respectively. However, the student was advised that he would be ineligible to compete in interscholastic lacrosse during his senior year. Pursuant to the Commissioner’s regulations, a student who commences competition in an interscholastic sport during 7th grade is only eligible to compete in six consecutive seasons of such sport (8 NYCRR §135.4[c][ii][b]).
On or about July 22, 2019, the district submitted an “extended eligibility application” to Section II – the specific NYSPHSAA section of which the district is a member – seeking approval for the student to compete in varsity lacrosse as a senior during the 2019-2020 school year. In its request, the district asserted that the student should be eligible to play a seventh year of lacrosse in the district due to physical and social concerns that informed petitioner’s decision to have the student repeat his 8th grade year.
On July 25, 2019, Section II denied the district’s request for the student’s extended eligibility. There is no indication in the record that the district pursued an appeal of Section II’s decision to NYSPHSAA. This appeal ensued.
Petitioner argues that Section II’s determination was arbitrary and capricious. Petitioner complains that he was not sufficiently informed of the eligibility rules and that, around the time the student repeated his 8th grade year, the lacrosse liaison for Section II incorrectly advised petitioner that withholding the student from competing in interscholastic lacrosse at the time “due to his lack of social or physical maturity would not extend his playing eligibility.” Petitioner contends that, but for the lacrosse liaison’s erroneous advice, the student would not have participated in interscholastic lacrosse during his second 8th grade year and would thus be eligible to participate as a senior. For relief, petitioner seeks a determination that the student be permitted to participate in interscholastic lacrosse for the 2019-2020 school year.
NYSPHSAA asserts that the appeal must be dismissed as untimely and for failure to join the district. NYSPHSAA also argues that it has not rendered a determination in this matter and that Section II’s denial of extended eligibility was, in all respects, proper, as the student participated in interscholastic lacrosse for six consecutive seasons and is thus not entitled to an additional year of eligibility pursuant to the Commissioner’s regulations.
First, I must address the procedural issues. The appeal must 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929). 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 Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).
Section II’s decision denying the student’s extended eligibility request is dated July 25, 2019. Petitioner admits to receiving Section II’s July 25, 2019 decision on August 5, 2019. However, petitioner did not commence this appeal until September 17, 2019. Petitioner has not provided the requisite good cause for his failure to effectuate service within the 30-day time limitation. Although petitioner indicates that he is unfamiliar with the appeal process pursuant to Education Law §310, and that he needed several weeks to seek “affordable counsel,” 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 Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846). Accordingly, the appeal must be dismissed as untimely.
The appeal must also be dismissed for failure to join the district as a necessary party. 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).
The sole relief petitioner seeks in this appeal is an order permitting the student to participate as a member of the district’s interscholastic lacrosse team during the 2019-2020 school year. Such relief, if granted, would necessarily affect the district insofar as it would require the district – which did not appeal from the denial of its waiver application – to permit the student to participate on its athletic teams. Therefore, the district is a necessary party, and petitioner’s failure to join it as a respondent requires dismissal of the appeal (see Appeal of Stachelek, 57 Ed Dept Rep, Decision No. 17,363; Appeal of Donnellan, 57 id., Decision No. 17,362).
While the appeal must be dismissed on procedural grounds, I note, for the benefit of the parties, that it would nevertheless be dismissed on the merits. Pursuant to section 135.4(c)(7)(ii)(b)(1) of the Commissioner’s regulations, if a board of education has adopted a policy to permit students in the seventh and eighth grades to compete in senior high school athletic competition, such students shall be eligible for competition during five consecutive seasons of a sport commencing with the student’s entry into the eighth grade, or six consecutive seasons of a sport commencing with the pupil’s entry into the seventh grade. Eligibility for competition of a pupil who has not attained the age of 19 years prior to July 1st may be extended under the following circumstances:
(1) If sufficient evidence is presented by the chief school officer ... to show that the pupil’s failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition, or documented social/emotional circumstances beyond the control of the pupil, such pupil's eligibility shall be extended accordingly in that sport. In order to be deemed sufficient, the evidence must demonstrate that:
(A) the pupil’s failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil (8 NYCRR §135.4[c][ii][b][i]) (emphasis added).
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).
Under section 135.4(c)(7)(b)(1) of the Commissioner’s regulations, a student is eligible to compete in six consecutive seasons of a sport commencing with the pupil’s entry into the 7th grade. Although an exception exists where a student’s “failure to enter competition during one or more seasons was due to illness, accident or documented social/emotional circumstances beyond the control of the pupil” (8 NYCRR §135.4[c][ii][b][i]) (emphasis added), this exception does not apply unless the student fails to enter competition during the six-year period of eligibility.
Here, petitioner contends that the student should be granted a seventh year of eligibility pursuant to 8 NYCRR §135.4(c)(7)(ii)(b)(1)(i) because of documented physical and social concerns that informed petitioner’s decision to have the student repeat his 8th grade year. In support of this claim, petitioner submits, inter alia, a letter from a physician documenting the student’s alleged physical and developmental delays. However, based on the limited record in this case, it appears that the student participated in six consecutive seasons of interscholastic athletics in the district, which renders the exception to the eligibility rules under section 135.4(c)(7)(ii)(b)(1)(i) inapplicable (see Appeal of McMillan, 35 Ed Dept Rep 309, Decision No. 13,552; Appeal of LaClair, 32 id. 594, Decision No. 12,924). While it is unfortunate that petitioner’s son’s circumstances were such that petitioner decided the student should repeat his eighth grade year, that is not a reason to extend his eligibility (see Appeal of J.P.S., 53 Ed Dept Rep, Decision No. 16,614).
Petitioner also suggests that, in and around the time the student repeated 8th grade, he was: (1) unaware of the nature or extent of the eligibility rules; and (2) erroneously informed that the student’s circumstances would not warrant an additional year of extended eligibility. Had he known that six consecutive seasons of competition would have precluded the student from participating in interscholastic lacrosse during his senior year, petitioner argues, he would not have had the student play lacrosse during his second year of 8th grade.
With respect to petitioner’s lack of knowledge concerning the eligibility rules, ignorance of applicable laws and regulations does not excuse petitioner’s lack of compliance therewith (see Appeal of Kirk, 39 Ed Dept Rep 567, Decision No. 14,313). With respect to the information allegedly shared by the lacrosse liaison, petitioner appears to argue that he was improperly advised, prior to the conclusion of the student’s allotted six years of competition, that the student would not be granted extended eligibility even if he did not compete in interscholastic lacrosse during the 2015-2016 school year, when he repeated 8th grade. Notably, other than petitioner’s own assertions, there is no evidence in the record concerning petitioner’s communications with the lacrosse liaison during the 2015-2016 school year or the accuracy of any information shared by the lacrosse liaison at that time. Regardless, as indicated above, the student has played six consecutive seasons of interscholastic lacrosse, thus foreclosing the availability of the social/emotional exception to the eligibility rules. To opine as to the applicability of this exception had the student’s circumstances been different would be advisory in nature, and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).
In light of the foregoing disposition, I need not address the parties’ remaining contentions, including respondent’s remaining procedural defenses.
THE APPEAL IS DISMISSED.
END OF FILE
 Although petitioner did not name and serve Section II as a respondent in this appeal, NYSPHSAA purports to submit its answer on behalf of both NYSPHSAA and Section II.
 In this respect, Section II’s denial letter explicitly advised petitioner that its decision could be “appealed by the petitioning school district directly to the Executive Committee of NYSPHSAA or directly to the Commissioner of Education; or appealed by the individual or person directly to the court system or directly to the Commissioner of Education.”