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Decision No. 13,014

Appeal of a STUDENT WITH A DISABILITY, by his father, from action of the Board of Education of the Bellmore-Merrick Central School District regarding athletic eligibility.

Decision No. 13,014

(September 22, 1993)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner is the father of a student attending high school in the Bellmore-Merrick Central School District and appeals from a determination that his son will not be eligible to participate in interscholastic football during the 1993-94 school year. Petitioner requests that I issue an order extending his son's eligibility to participate in interscholastic football for an additional year. The appeal must be dismissed.

While the record before me is not entirely clear, it appears that respondent's committee on special education (CSE) has identified petitioner's son as a student with a disability. Because of academic difficulties, petitioner's son repeated his sophomore year. The record does not indicate if the student's academic difficulties were connected to his disability. In April 1993, petitioner was informed that his son would not be eligible to participate in interscholastic football in his senior year. This appeal ensued.

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 . . . 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 Commissioner's regulations.

Upon review of the record, I find that petitioner has not demonstrated that his son failed to enter competition because of "illness, accident or similar circumstances beyond the control of the student." In fact, petitioner acknowledges that his son did participate in football during four consecutive years and seeks to have me grant him a fifth year of eligibility. The fact that petitioner's son is a student with a disability is not a basis for granting him an additional year of eligibility. The regulations regarding eligibility for interscholastic sports apply equally to all students whether handicapped or not and do not constitute illegal discrimination (see Cavallaro v. Ambach, 575 F. Supp. 171; Appeal of a Child with a Handicapping Condition, 29 Ed Dept Rep 370; Matter of a Child with a Handicapping Condition, 26 id. 381).