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Decision No. 12,552

Application of THOMAS AND MADELINE CIEPLINSKI, as parents and natural guardians of ERIC CIEPLINSKI, to review a determination of the New York State Public High School Athletic Association, Inc. relating to eligibility to participate in interscholastic sports.

Decision No. 12,552

(July 25, 1991)

Giardino & Schober, Esqs., attorneys for petitioners, Bridget M. Faso, Esq., of counsel

Hall, Ricketts, Marky & Gurbacki, Esqs., attorneys for respondent, Douglas W. Marky, Esq., of counsel

SOBOL, Commissioner--Petitioners are the parents of a student at the Nichols School and appeal from a determination made by Section VI of the New York State Public High School Athletic Association (NYSPHSAA) that their son will not be eligible to participate in interscholastic sports during the 1991-92 school year. Petitioners request that I issue an order directing respondent to extend Eric Cieplinski's eligibility to participate in interscholastic sports for an additional year. The appeal must be dismissed.

Petitioners' son was diagnosed as suffering from developmental dyslexia while a second grader in the Tonawanda Public School District. Because of his condition, petitioners' son attended the Gow School in South Wales, New York, for his freshman and sophomore years of high school. After completing his sophomore year at the Gow School, he attended the Nichols School in Buffalo, New York. Petitioners' son repeated his sophomore year when he entered the Nichols School. In May of 1989, petitioners were informed that their son would not be eligible to participate in the athletic program in his senior year at Nichols unless he obtained an extension from NYSPHSAA. Petitioners petitioned the Section VI extended eligibility committee of NYSPHSAA in December 1990. Section VI issued its ruling, denying the extension on January 11, 1991. This appeal ensued.

Respondent argues that petitioners failed to exhaust the administrative remedies provided for pursuant to NYSPHSAA rules prior to initiating the instant appeal. Petitioners received written notification of respondent's adverse decision. The notice indicated that the decision could be appealed to NYSPHSAA and provided no specific information on the procedures for initiating an appeal. In the absence of specific written notice regarding the applicable appeal procedures and notice that such appeal must be taken prior to commencing an appeal before me, I will not dismiss petitioners' appeal for failure to exhaust NYSPHSAA's administrative remedies (Appeal of Wilson, 30 Ed Dept Rep 60; Application of a Child with a Handicapping Condition, 29 id. 370). Respondent Section VI is admonished for its failure to provide adequate written notice of NYSPHSAA's appeal procedures and may not be permitted to benefit here from its own omission.

The petition must be dismissed on the merits. Section 135.4(c)(7)(ii)(b)(1) of the regulations of the Commissioner of Education provides, in pertinent part, that:

(1) 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...(i) 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, accident, or similar circumstances beyond the control of the student, such pupil's eligibility shall be extended accordingly in that sport.

Respondent contends that the decision complained of is consistent with the rules of the NYSPHSAA and was rendered in compliance with the applicable provisions of the Commissioner's regulations.

Upon review of the record before me in this matter, I find that petitioners have failed to demonstrate that their son failed to enter competition because of "illness, accident or similar circumstances beyond the control of the student." In fact, petitioners concede that their son did participate in sports during four consecutive years and seeks to have me grant him a fifth year of eligibility. As found by the Section VI committee, the regulation does not authorize an extension of eligibility beyond four consecutive seasons at the high school level upon the ground that a student has repeated a grade. There is no evidence in the record that petitioners' son is currently classified as handicapped. Even if he were, however, the regulations apply equally to all students, whether handicapped or not and do not constitute illegal discrimination toward handicapped individuals (See Cavallaro v. Ambach, 575 F. Supp. 171, [W.D.N.Y. 1983]; Application of a Child with a Handicapping Condition, supra).