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Decision No. 12,666

Appeal of SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT and GEORGE GOLDSTEIN, Superintendent of Schools, and JACK SALERNO, District Athletic Director, from action of the New York State Public High School Athletic Association, Inc., Section VIII, regarding membership on its athletic council.

Decision No. 12,666

(March 20, 1992)

Douglas E. Libby, Esq., attorney for petitioners

Charles M. Wetterer, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners challenge a provision of respondent's constitution that requires equal representation of males and females on its council. The appeal must be dismissed.

The New York State Public High School Athletic Association (NYSPHSAA) divides New York State into eleven sections. Section VIII is charged with the administration of public high school athletics in Nassau County. The Athletic Council ("the council" or "respondent") is a division of Section VIII, and petitioners are members of that section. Pursuant to the membership and governance provisions of the council's constitution, each member school must designate one male and one female voting representative.

The facts are not in dispute. On September 12, 1990, petitioner Goldstein wrote to respondent's chairperson seeking an exception to the rules based on hardship. His request stated that since petitioners' district encompassed five schools, respondent's rule would necessitate the absence of eleven individuals, including its athletic director. Instead of providing one male and one female per school as the rule required, petitioner Goldstein proposed that the five current school athletic directors serve as the male representatives and the district athletic director (also a male) serve in place of the five female representatives. In a letter dated September 26, 1990, respondent unanimously denied the request based on the constitutional provision for one male and one female vote for each participating high school. In denying the request, respondent noted that although the Athletic Council could not reduce the representation from petitioners' high schools based on the constitutional entitlement to "one person/one vote", petitioner was free to voluntarily do so to address its hardship. On November 1, 1990, petitioners appealed the decision according to the 1990-92 NYSPHSAA Handbook. On November 7, 1990, the Executive Director of NYSPHSAA notified petitioners that the association had no authority in the matter and would not entertain the appeal. This appeal ensued.

Petitioners contend that the membership requirements of the Section VIII constitution are arbitrary and capricious and violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Petitioners claim that the rule unlawfully discriminates on the basis of sex and contend that the district's athletic director is qualified to represent its athletic programs for both males and females. Petitioners request that I issue an order directing that the district's athletic director be allowed to cast a sixth vote at Section VIII meetings in place of the five "female" votes.

Respondent contends that the membership clause of its constitution is necessary to ensure proper representation of boys and girls in athletics in Nassau County. Acknowledging that the constitution allows for some deviation in the requirements, respondent argues that it denied petitioners' request after determining that an exception was not warranted in this case. Respondent alleges that petitioners cannot legitimately assert that there are no female employees among the five high schools in the district qualified to represent girls' athletics.

Petitioners have the burden of demonstrating that respondent's actions or the membership and governance provisions of the Section VIII Athletic Council constitution are arbitrary and capricious or contrary to sound educational policy (Appeal of Havasy, 29 Ed Dept Rep 90; Appeal of the Board of Education of the Somers Central School District, et al., 28 id. 319; Matter of Kwak and Rooney, 17 id. 442). According to respondent, the constitution's membership and governance provisions were established to comply with Title IX of the Educational Amendments of 1972. Upon review, I do not find respondent's explanation for its membership rule and its decision to deny petitioners an exception arbitrary or capricious. Respondent considered petitioners' request for an exception and concluded, after due deliberation, that the intent of its constitution was "one person/one vote." Nonetheless, respondent advised petitioner that the decision to send fewer representatives than the authorized number (i.e., one male and one female per school) was a decision that petitioners could make to address the hardship. Notably, petitioners did not elect to reduce its representation but filed an appeal, seeking to disregard altogether the membership requirement of female representation. Because I find respondent's rules rational and its decision rejecting petitioners' request for an exception within its discretion, I have no basis to set aside its rules. To the extent petitioners raise constitutional claims, it is well settled that Education Law '310 is not the proper forum to decide novel questions of constitutional law (Appeal of St. Cyr, 27 Ed Dept Rep 351; Matter of Curtin, 20 id. 473).