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Decision No. 13,409

Appeal of JACQUELINE L. and JOHN W. LANOIR, on behalf of their daughter, BRIDGET, from action of the Board of Education of the City School District of the City of Glens Falls regarding participation in interscholastic athletics.

Decision No. 13,409

(May 8, 1995)

Shuler & Harvey, Esqs., attorneys for petitioners, Timothy S. Shuler, Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's refusal to allow their daughter to try out for the Glens Falls High School boys' varsity ice hockey team. The appeal must be dismissed.

On or about October 19, 1994, petitioners' daughter, Bridget, signed up to try out for the Glens Falls High School boys' varsity ice hockey team. In accordance with 8 NYCRR 135.4(c)(7)(ii)(c)(2), Bridget's request was submitted to a review panel consisting of the school physician, a physical education teacher and, at petitioners' request, Bridget's physician. On October 28, 1994, the district's athletic director tested Bridget and found her to be competitive. In addition, the school physician examined Bridget and found her to be in good physical health. Notwithstanding these findings, the review panel denied Bridget a try out.

Petitioners commenced this appeal on December 7, 1994 and requested a stay of the review panel's determination. On December 19, 1994, I granted this request and directed respondent to permit Bridget to try out for the team, pending a determination on the merits of this appeal.

Petitioners contend that the review panel failed to follow the State Education Department's "Guidelines for Mixed Competition" ("guidelines") in evaluating Bridget's request. Specifically, petitioners allege that the review panel failed to: meet as a group to discuss Bridget's ability or take a vote; assess Bridget's skill level as compared with other members of the team; apply the applicable regulations to Bridget's individual case; give any consideration to Bridget's prior participation in a boys' checking league and hockey camp. Petitioners also maintain that the district failed to complete all of the information requested on the "Individual Athletic Profile for Mixed Competition" form.

Respondent contends that the review panel complied with all applicable regulations and the guidelines. Respondent further maintains that the review panel's determination was based on substantial evidence and was not arbitrary or capricious.

It is well settled that the Commissioner will decide only matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Application of a Child With A Handicapping Condition, 32 Ed Dept Rep 9; Appeal of Impellizzeri, et al., 32 id. 26; Appeal of DiMilia, 30 id. 391). In view of the fact that I granted petitioners' stay request permitting Bridget to try out for the team and the hockey season is now over, the appeal must be dismissed as moot since no meaningful relief could be granted even if warranted.

Although the appeal is dismissed on procedural grounds, I am constrained to comment on the process used to review petitioners' request. 8 NYCRR 135.4(c)(7)(ii)(c)(2) provides:

In the sports of baseball, basketball, boxing, field hockey, football, ice hockey, lacrosse, rugby, soccer, softball, speedball, team handball, power volleyball where the height of the net is set at less than eight feet, and wrestling, the fitness of a given student to participate in mixed competition shall be determined by a review panel consisting of the school physician, a physical education teacher designated by the principal of the school, and if requested by the parents of the pupil, a physician selected by such parents. Such panel shall make its determination by majority vote of the members, and in accordance with standards and criteria issued by the department.

As stated in the guidelines, the purpose of the regulation is to preserve the health and safety of students while assuring that students of both sexes have the opportunity to participate successfully in interschool competition. The guidelines further state that the review panel is responsible for determining the readiness of the student in terms of the medical health, maturity, fitness and skill of the individual in relationship to other members of the team. In this case, neither party submitted the "Individual Athletic Profile For Mixed Competition" form describing Bridget's physical education and medical history, physical data, and athletic performance test scores. Instead, respondent submitted several affidavits which tend to suggest that the review panel's decision was based solely on the medical opinion that young women who participate in contact or collision sports, such as ice hockey, may be predisposed to more serious joint injury than young men of the same age. Respondent is reminded that future decisions regarding a female student's participation on a male team must be based upon facts bearing on the readiness of the individual student, not on unsubstantiated generalizations.