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Decision No. 12,655

Appeal of JEREMY HEINZ from action of the New York State Public High School Athletic Association, Inc., Section III, regarding participation in interscholastic athletics.

Decision No. 12,655

(February 27, 1992)

DeMong & Stickles, attorneys for petitioner

Hancock & Estabrook, attorneys for respondent

SOBOL, Commissioner.--Petitioner Jeremy Heinz appeals from respondent's refusal to allow him to participate in interscholastic competition as a member of the girls' varsity swim team of the Adirondack Central School District (the "District"). The appeal must be dismissed.

Petitioner was a sophomore in the District in September 1990 when his mother, Ms. Kathryn Hill, requested that the District allow him to compete as a member of the girls' varsity swim team. The District did not have a boys' swim team. The District conducted physical fitness tests to determine whether petitioner was eligible to participate. By letter dated October 2, 1990, the District notified Ms. Hill that petitioner was eligible to participate on the girls' varsity swim team. Petitioner competed as a member of the swim team that fall at six meets.

On October 8, 1990, the Carthage Director of Athletics sent a letter to the Executive Director of Section III protesting petitioner's participation on the swim team. Pursuant to 8 NYCRR '135.4(c)(7)(ii)(c)(4) respondent determined to convene a "Mixed Competition Panel" to conduct a due process hearing to determine whether petitioner was eligible to compete. By letter dated October 16, 1990, respondent notified Ms. Hill that a hearing would be conducted on October 22, 1990.

Upon the commencement of the hearing, Ms. Hill indicated that she might want to obtain counsel. The parties disagree as to how the panel responded to this request. Petitioner contends that Ms. Hill was told the hearing could be adjourned until 8:30 a.m.

the following day in the event petitioner desired representation. Petitioner alleges that he continued with the hearing because such a short adjournment would not enable him to retain counsel.

Respondent directly refutes petitioner's sworn allegations and contends that the hearing officer explained that petitioner had the right to counsel and that the hearing could be adjourned. According to respondent, the panel concluded that if the proceedings were delayed, petitioner would be able to continue to participate on the team. However, the panel also suggested that a subsequent determination that petitioner was ineligible would jeopardize the District's participation in sectional competition. Respondent contends that it was at this point that petitioner and his mother decided to proceed with the hearing.

Based upon the evidence submitted at the hearing, the panel concluded in a unanimous decision that petitioner was ineligible to compete. Petitioner was notified at the hearing of this result.

The panel's written decision indicates that it considered the results of petitioner's New York State Physical Fitness Test as well as petitioner's swim times as recorded in the interscholastic meets at which he participated. In addition, the panel noted that petitioner qualified to compete in the swimming sectionals although he was a first year swimmer, and petitioner had previously participated in varsity track as a seventh grader. The panel concluded that petitioner's participation "would have a significant adverse effect on the girls competing in varsity swimming for teams across the section." Petitioner received the panel's written decision on or about December 14, 1990. Petitioner filed this appeal on or about March 19, 1991.

Petitioner contends that respondent's determination was arbitrary and capricious on the ground that it neither adversely affected girls' opportunities to participate successfully on the District girls' swim team nor adversely affected girls participating on teams competing with the District. Petitioner further contends that respondent's determination was improperly predicated upon the "slug rule," which petitioner defines as a male's right to compete with females as long as he does not win. In addition, petitioner contends that he was denied his due process right to counsel.

Respondent raises a number of affirmative defenses including timeliness, mootness, and ripeness. In addition, respondent contends that its decision has a rational basis and is supported by sufficient evidence.

With respect to respondent's procedural defenses, I find that each has merit. 8 NYCRR '275.16 provides that an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner was

advised orally of respondent's decision on October 22, 1990. Petitioner received a copy of the written decision on or about December 14, 1990 and petitioner learned that respondent would not entertain his appeal by letter dated January 8, 1991. Regardless of which of these dates is selected, petitioner's March 1991 petition is well beyond the 30 days proscribed by the rule and is untimely. Petitioner's letter to me dated January 29, 1991 did not commence this proceeding. Petitioner has failed to demonstrate a justifiable reason for his delay. Accordingly, the petition should be dismissed (Appeal of Brown, 30 Ed Dept Rep 221).

Respondent also contends that this proceeding is moot with respect to the fall 1990 season. Alternatively, respondent argues that with respect to the 1991 season, the appeal is premature. Petitioner commenced the appeal well after the conclusion of the swim season, November 3, 1990. The Commissioner need not render a decision in a controversy which subsequent events have laid to rest (Appeal of Hebrew Institute for the Deaf and Exceptional Children, 31 Ed Dept Rep 53; Appeal of Bahret, 30 id. 161). Where, as here, a sports season has ended and the record is silent with respect to a determination about the subsequent season, there is no current case or controversy (Appeal of Wilson, 30 Ed Dept Rep 60, 63). Thus, the petition should be dismissed.

Petitioner's reliance on Appeal of Shanahan, 27 Ed Dept Rep 382, is misplaced. In that matter, although the petitioner commenced the appeal after the conclusion of the sports season, the petitioner was challenging a rule that categorically prohibited male participation on female athletic teams (id. at 384). Thus, in Appeal of Shanahan, the blanket denial of participation suggested a strong likelihood that the controversy would arise in the future. Here, the only issue before respondent was petitioner's participation on the 1990 swim team. Because the relative strengths of an athlete and the field of competition may change over time, determinations regarding male participation on female teams must be made on an individual basis (id.). Accordingly, it is conceivable that a determination made in the context of a different sports season may be different.

In any event, given that petitioner bears the burden of proof in demonstrating that respondent's determination was arbitrary and capricious, I am constrained to dismiss on

the merits (Appeal of Wilson, 30 Ed Dept Rep at 63; Appeal of Hunter, 28 id. 556). 8 NYCRR '135.4(c)(7)(ii)(4) provides:

where a school does not provide separate competition for male and female pupils in interschool athletic competition in a specific sport, the superintendent of school . . . or the section may decline to permit a male or males to participate on a team organized for females upon a finding that such participation would have a significant adverse effect upon the opportunity of females to participate successfully in interschool competition in that sport.

"The intent of the regulation is to afford male students an opportunity to participate in sports where no male team exists, provided that their participation on female teams would not significantly affect the opportunities of females to participate successfully in athletic competition" (Appeal of Wilson, 30 Ed Dept Rep at 63; Appeal of DePold, 26 id. 460). In determining that petitioner's participation on the District girls' swim team "would have a significant adverse effect upon the opportunity of females to participate successfully in interschool competition in that sport," respondent analyzed the results of petitioner's New York State Physical Fitness Tests, petitioner's swim times as recorded in the meets in which he participated, and petitioner's rapid improvement in lowering his times.

Petitioner argues that the New York State Physical Fitness Test which measures speed, agility, strength and endurance by scoring the student's ability to perform, among other things, situps, squat thrusts, and pull-ups is not a proper basis for making a determination regarding swimming abilities. Although it might have been preferable for the panel's decision to have set forth some nexus between the skills measured by the New York State Fitness Test and the sport at issue, respondent also considered petitioner's actual swimming performance and steadily faster swim times in making its determination. The panel's consideration of all of these factors is not arbitrary and capricious.

Petitioner's allegations regarding the wrongful adherence to the "slug rule" and the denial of his right to counsel must be similarly rejected. Whether, as petitioner alleges, the complaining school district adheres to the "slug rule" is not the issue before me. As set forth above, the basis of the panel's decision is the only matter at issue. Here, the panel weighed the evidence and determined that petitioner's rapidly improving performances and his general athletic strength and abilities would lead to the type of dominance of the sport that the regulations were intended to prevent. Accordingly, petitioner has failed to demonstrate that the panel improperly employed the "slug rule."

Without addressing the scope of due process sufficient for the type of hearing at issue, I simply note that petitioner has not demonstrated that the October 16 notice from the District failed to provide him with sufficient notice to retain an attorney, especially where petitioner has indicated that his family has an attorney.

On such a record, I cannot say that respondent's determination was arbitrary or capricious.