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Decision No. 13,177

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his father, from action of the Board of Education of the Horseheads Central School District regarding athletic eligibility.

Decision No. 13,177

(May 9, 1994)

Sayles, Evans, Brayton, Palmer & Tifft, Esqs., attorneys for respondent, James F. Young, Esq., of counsel

SOBOL, Commissioner.--Petitioner is the father of a high school student in the Horseheads Central School District and appeals a determination that his son is not eligible to participate in interscholastic swimming during the 1993-94 school year. Petitioner requests that I extend his son's eligibility to participate in interscholastic swimming for an additional year. The appeal must be dismissed.

Petitioner's son is a senior at respondent's high school and has had an inconsistent academic record. The student was accelerated a grade in elementary school, but subsequently repeated 10th grade. Petitioner suspects that his son has an attention deficit disorder and has requested that respondent's committee on special education evaluate him. In December 1993, respondent notified petitioner that his son would not be eligible to participate in interscholastic swimming 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.

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(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. (emphasis supplied)

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 swimming during four consecutive years and seeks to have me grant him a fifth year of eligibility. The fact that petitioner's son may have 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; Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 370; Appeal of a Child with a Handicapping Condition, 26 id. 381).