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Decision No. 13,432

Appeal of BRANDON DONOVAN from action of the Board of Education of the Hamilton Central School District regarding participation in interscholastic athletics.

Decision No. 13,432

(June 19, 1995)

Matthew R. Fletcher, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to allow him to participate in interscholastic sports in his senior year of high school and seeks a waiver from the Commissioner to enable him to play. The appeal must be dismissed.

Petitioner is an eleventh grade student in respondent's district and has participated in interscholastic athletics during his three years of high school. Petitioner was born on August 29, 1976, and will turn 19 on August 29, 1995. By letter dated December 1, 1994, respondent informed petitioner that he would be ineligible to participate in interscholastic athletics during the 1995-1996 school year because of his age. This appeal followed.

Section 135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations provides in relevant part:

A pupil shall be eligible for interschool competition in grades 9, 10, 11 and 12 until his/her 19th birthday . . . A pupil who attains the age of 19 years on or after September 1 may continue to participate during that school year in all sports.

Petitioner himself alleges that he will reach the age of 19 before September 1, 1995. As a result, respondent has correctly determined that petitioner is not eligible to compete in interscholastic sports during his senior year.

Petitioner contends that this rule is unfair as applied to him, because his parents did not enroll him in kindergarten until he was six years old. He further alleges that during the early years of elementary school, his parents decided to hold him back an additional year because they did not think he was ready to go on to the next grade. He cites University Interscholastic League v. Buchanan, 848 SW2d 298, for the proposition that a learning disabled student may be given additional time to participate in sports. However, he admits that he is not classified as learning disabled or any other special education category.

While I am sympathetic to petitioner's arguments, and I understand his desire to continue athletic participation, the regulation in question is absolute and contains no provision for waiver of the maximum age limitation by either the school district or the Commissioner of Education (Appeal of Prentice, 34 Ed Dept Rep 432; Application of a Child with a Handicapping Condition, 29 id. 370; Appeal of Davison, 25 id. 180; Matter of Allen, 22 id. 255).

I have considered the parties' remaining contentions and find them without merit.