Decision No. 17,808
Appeal of ELIJAH SCOTT and WANDA EDIE, on behalf of their son, Daniel Scott, from action of the Monsignor Martin High School Athletic Association of the Diocese of Buffalo regarding participation in interscholastic athletics.
Decision No. 17,808
(January 24, 2020)
Atti Law Firm PLLC, attorneys for petitioners, Julie Atti Rogers, Esq., of counsel
Bond, Schoeneck & King, PLLC, attorneys for respondent, Dennis K. Schaeffer, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioners appeal the determination of the Monsignor Martin High School Athletic Association of the Diocese of Buffalo (“MMHSAA”) that their son, Daniel (“the student”), was ineligible to participate in interscholastic athletics during the 2018-2019 school year. The appeal must be dismissed.
MMHSAA is an unincorporated association and athletic league comprised of Catholic and other nonpublic high schools in Western New York, which is operated under the auspices of the Diocese of Buffalo as well as the New York State Catholic High School Athletic Association (“NYSCHSAA”), which is in turn an affiliate organization of the New York State Council of Catholic School Superintendents. As relevant here, MMHSAA’s member schools are governed by NYSCHSAA’s constitution and bylaws, and these bylaws adopt the provisions of section 135.4 of the Commissioner’s regulations governing interscholastic athletic competition as “basic minimum standards for athletics for all member schools.”
During the 2013-2014 school year, the student attended 8th grade in the Williamsville Central School District, where he competed in interscholastic athletics as a member of the Williamsville North High School basketball team. Subsequently, the student enrolled at Christian Central Academy – a private K-12 school and member of MMHSAA – as an 8th grade student for the 2014-2015 school year. Initially, the student participated as a member of Christian Central Academy’s interscholastic high school basketball team during the 2014-2015 season. In “late 2014,” however, Christian Central Academy’s athletic director removed the student from the team, after MMHSAA’s executive director informed him that, pursuant to NYSCHSAA’s bylaws, the student was ineligible to participate in interscholastic athletics as an 8th grader.
The student subsequently resumed playing interscholastic basketball for Christian Central Academy as a 9th grade student during the 2015-2016 school year. Thereafter, the student withdrew from Christian Central Academy and enrolled at the Park School of Buffalo – another private school and member of MMHSAA. The student participated as a member of the Park School’s interscholastic basketball team as a 10th grade student during the 2016-2017 school year and as an 11th grade student during the 2017-2018 school year.
By letter dated May 19, 2018, MMHSAA’s executive director informed the Park School’s director of athletics and physical education that the student would be ineligible to compete in interscholastic basketball as a 12th grade student during the upcoming 2018-2019 school year. The executive director indicated that, pursuant to the Commissioner’s regulations as incorporated by NYSCHSAA’s bylaws, the student was eligible to compete in only five consecutive seasons of interscholastic basketball, beginning with the 2013-2014 school year – the year that the student competed as an 8th grade student on behalf of the Williamsville North High School basketball team. Accordingly, the executive director asserted that the student’s final year of eligibility was the 2017-2018 school year. Petitioners indicate that they were forwarded the executive director’s determination sometime in June 2018. This appeal ensued. Petitioners’ request for interim relief was denied on September 28, 2018.
Petitioners argue, among other things, that MMHSAA erroneously represented to them that the student would remain eligible to participate in interscholastic basketball during his senior year and that they relied upon such assurances to the student’s detriment. For relief, petitioners seek a determination that the student is eligible to participate in interscholastic basketball at the Park School during the 2018-2019 school year.
MMHSAA contends that the appeal must be dismissed for lack of jurisdiction, improper service, failure to exhaust, untimeliness, failure to join, and failure to state a claim. MMHSAA additionally requests an award of attorneys’ fees and costs.
The appeal must be dismissed for lack of jurisdiction. Education Law §310, in relevant part, provides that “[a]ny party ... aggrieved may appeal ... any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools” (Education Law §310). Courts have interpreted this broad grant of authority to encompass only “controversies within the common school system” (Matter of Bowen v. Allen, 17 AD2d 12, 15 , affd without opn 13 NY2d 663 ; see Matter of Bd. of Ed. City School Dist. of Rome v. Ambach, 118 AD2d 932  [noting that “the statute deals throughout with the common schools”]). The “common school system” refers to the State’s public elementary and secondary schools, over which the Commissioner has long exercised supervisory powers (Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405, Decision No. 11,991).
Here, petitioner appeals from a determination of MMHSAA – an association of nonpublic schools operated under the auspices of the Diocese of Buffalo – regarding the student’s participation in interscholastic athletics at a nonpublic school. Notably, there is no evidence in the record that MMHSAA’s member schools compete against public high schools in interscholastic athletic competitions or that MMHSAA is otherwise subject to the Commissioner’s regulations, except insofar as NYSCHSAA has willingly incorporated the Commissioner’s regulations into its own bylaws (cf. Appeal of Caruso, 56 Ed Dept Rep, Decision No. 17,021 [nonpublic school “subjected itself” to the Commissioner’s jurisdiction by committing to comply with Part 135 of the Commissioner’s regulations in order to compete against public schools in interscholastic athletics]). Although the Commissioner has exercised jurisdiction over entities other than nonpublic schools, such jurisdiction requires a specific, statutory grant of authority, which is absent here (see e.g. Appeal of the Board of Education of the Kiryas Joel Union Free School District, 59 Ed Dept Rep, Decision No. 17,712 [under Education Law §3202(4), the Commissioner of Education is authorized to decide disputes over foster care tuition reimbursement, which may include social services or other agencies]; Appeal of B.S., 56 id., Decision No. 17,058 [under Public Health Law §2164(7)(b), a parent, guardian, or person in parental relationship to a child denied school entrance or attendance to a school, including a nonpublic school, for lack of required immunizations may appeal to the Commissioner of Education]). Accordingly, I find that Education Law §310 does not confer authority on the Commissioner to review this matter, and the appeal must be dismissed for lack of jurisdiction (Appeal of Egodigwe, 41 Ed Dept Rep 19, Decision No. 14,598; see also Appeal of Community Education Council District 3, 59 id., Decision No. 17,774).
For the benefit of the parties I note that, even if I had jurisdiction over the instant appeal, it would 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).
Here, petitioners sought only to permit the student to participate as a member of the Park School’s interscholastic basketball team during the 2018-2019 school year. In a post-answer submission, MMHSAA contends that this matter is moot insofar as the student transferred out of state and did not attend the Park School during the 2018-2019 school year. Regardless, petitioners’ request for interim relief was denied on September 28, 2018, and the 2018-2019 school year has ended. Consequently, the matter is moot (Appeal of P.D. and C.C., 56 Ed Dept Rep, Decision No. 16,999).
Finally, respondents’ request for costs and attorneys’ fees must be denied. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).
In light of this determination, I need not address the parties’ remaining contentions, including respondent’s other defenses.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioners indicate that the appeal is also brought by the “Park School of Buffalo.” However, in correspondence dated September 11, 2018, counsel for petitioner clarified that she does not represent the Park School. Although my Office of Counsel informed the Park School of the commencement of this appeal, no attorney entered an appearance on behalf of the Park School (8 NYCRR §275.15 [a school district, corporation, LLC, LLP or other business entity shall appear only by an attorney in an appeal to the Commissioner of Education under Education Law §310]).