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Decision No. 12,674

Appeal of HOWARD J., on behalf of his daughter MELANIE J., from a determination of the Board of Education of the City School District of the City of Peekskill regarding disqualification for extracurricular activities.

Decision No. 12,674

(March 27, 1992)

Peter Brasidas Nickles, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's decision to exclude his daughter from participation in cheerleading. The appeal must be dismissed.

On March 19, 1991 respondent board adopted a written policy pertaining to eligibility for extracurricular activities. That policy provides, in part, that if a student is failing more than one subject during a two-week grading period, the student is declared ineligible to participate in any extracurricular activities until the student's grades improve. Pursuant to that policy, petitioner's daughter was suspended from the cheerleading squad for two periods, November 27, 1991 to December 13, 1991 and from December 14, 1991 to January 14, 1992.

Petitioner cites several sections of the Regulations of the Commissioner of Education (8 NYCRR 135.1, 135.2, 135.4[a] and 135.4[c]) in support of his contention that those regulations prescribe eligibility to participate in interscholastic sports and a board of education may not adopt a policy that provides additional academic criteria for participation. Petitioner is mistaken. Those regulations do not prevent a board of education from mandating a reasonable standard of academic performance as a requirement for eligibility to participate in an extracurricular activity (Matter of Clark, 21 Ed Dept Rep 542). Pursuant to Education Law ''2503(1)(2) and 1709(2)(3), respondent board of education has the authority to prescribe the course of study in its schools, which includes the authority to establish reasonable academic standards as a prerequisite for eligibility for participation in extracurricular activities (see Matter of Kiely, 24 Ed Dept Rep 138; Matter of Clark, supra).

Petitioner also contends that the policy should be abolished because it is educationally unsound in that it encourages students to avoid difficult courses and does not take into account the fact that not all teachers mark the same and that some courses are more difficult than others. I disagree. Suspension from extracurricular activities is an educationally sound disciplinary measure for a student who fails to maintain required academic standards, and the threat of such suspension is an incentive for a student to maintain those standards (Matter of Kiely, supra; Matter of Clark, supra).

Petitioner further contends that the policy should be annulled because it reduces the number of students eligible to participate on the district's teams and requires those teams to compete against teams that draw from a larger pool of participants. Petitioner further maintains that such a situation presents a danger to the students on respondent's teams. Petitioner reasons that a student who is ineligible to practice for a grading period will be exposed to greater danger when the student resumes participation with the team because of the compelled lack of practice. I reject those contentions as frivolous.

Petitioner also maintains that respondent's policy is invalid because it discriminates against minorities. However, petitioner offers no evidence other than conclusory statements to support that allegation.

Finally, petitioner claims that his daughter's name, as well as the names of all other students suspended from extracurricular activities, are posted for public notice and that such practice violates the provisions of the Family Educational Rights and Privacy Act (20 USC 1232g). As I have indicated in a number of decisions, an appeal to the Commissioner pursuant to Education Law '310 may not be used to seek enforcement of the Family Educational Rights and Privacy Act (Application of a Child Suspected of Having a Handicapping Condition, 28 Ed Dept Rep 291; Application of a Child With a Handicapping Condition, 28 id. 19; Matter of Reninger, 23 id. 27). Enforcement of the Family Educational Rights and Privacy Act has been vested by Congress in the Secretary of Education (20 USC '1232g[f]), who is directed to establish an office and review board to investigate, review, and adjudicate complaints alleging violations of the Act (20 USC '1232g[g]). Pursuant to that authority, the U.S. Secretary of Education has established the Family Policy and Regulations Office, to which the Secretary has delegated enforcement functions (see 34 CFR '99.60, etseq.).

I have reviewed petitioner's other contentions and find them to be without merit.