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Decision No. 13,588

Appeal of BRUCE W. and CATHERINE WHITE BERHEIDE, on behalf of their son, DANIEL, from action of the Enlarged City School District of the City of Saratoga Springs in relation to participation in interscholastic athletics.

Decision No. 13,588

(March 30, 1996)

Annie Rody-Wright, Esq., attorney for petitioners

McCary & Huff, Esqs., attorneys for respondent, Margaret D. Huff, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the determination of a panel on mixed competition to deny their son, Daniel, the opportunity to try out for the girls' varsity field hockey team of the Enlarged City School District of the City of Saratoga Springs ("respondent"). The appeal must be dismissed.

At the commencement of this appeal, Daniel Berheide was a seventeen year old student entering his senior year at Saratoga Springs High School. The petition describes him as "a bulky-looking teenager who stands 5'11" tall and weighs 198 lbs." In the fall of 1993, Daniel played as a sophomore on the girls' varsity field hockey team because the high school did not have a separate boys' team in that sport. In 1994, Daniel again sought to play field hockey, and a school district panel on mixed competition recommended that he be allowed to try out for the team, even though it expressed some concerns about the safety of the female participants. However, an appeal was brought before Section II of the New York State Public High School Athletic Association, which determined that Daniel would not be eligible to participate. That determination was appealed to the Commissioner of Education and was upheld (see Appeal of Berheide, 34 Ed Dept Rep 332).

In June 1995, Daniel again was a candidate for the girls' varsity field hockey team. Pursuant to guidelines issued by the State Education Department (the "Department"), Daniel cooperated in the assembly of certain medical and fitness information, and completed the athletic performance testing as outlined in the guidelines. The information gathered was submitted to a review panel pursuant to 8 NYCRR 135.4(c)(7)(ii)(c)(2) consisting of the school physician and a physical education teacher designated by the school principal. Because the school physician was also Daniel's personal physician, there was no third member. The panel met on July 27, 1995, to review all of the information, and to allow Daniel's mother and his attorney to provide further information. By letter dated August 10, 1995, respondent's Director of Physical Education advised petitioners that permission had been denied for their son to try out for the team. The panel decision indicated that the panel decided not to allow a tryout because, based on the information it had received, it believed that Daniel's presence would create a hazardous condition both to his potential teammates and opponents.

On September 8, 1995, petitioners served a petition upon Frank Crowley, respondent's high school principal. When petitioners' attorney later attempted to file the petition, it was rejected by my Office of Counsel for several procedural defects. It also appears that petitioners' attorney was informed that service upon the high school principal might not be sufficient under the Commissioner's Regulations. Petitioners' attorney thereafter telephoned both respondent's superintendent and one of respondent's attorneys. On September 15, 1995, petitioners' attorney filed a petition with my Office of Counsel which met the previously stated procedural objections, but made no further service upon any other district officer or employee. By letter dated September 25, 1995, I denied the stay sought by petitioners.

Petitioners claim that the panel's decision was arbitrary and capricious. Their main argument seems to be that the panel's decision was based exclusively on the basis of the Athletic Performance Test administered to Daniel, but not to any of the girls who were trying out for the team, and that this violated applicable Commissioner's Regulations and guidelines. Petitioners also allege that the panelists promised to contact the school's field hockey coach for her evaluation, but failed to do so.

Respondent generally denies that the determination was arbitrary or capricious, and denies that the panelists made any commitment to consult with the field hockey coach. Respondent questions jurisdiction in this matter, arguing that petitioners effected service only upon its high school principal, who was not a person who could properly accept service on its behalf under 8 NYCRR '275.8(a). Respondent asserts that the appeal must be dismissed for failure to join necessary parties, i.e., the Suburban Council (the league in which respondent district competes), Section II, and the New York State Public High School Athletic Association. Respondent also argues that the matter is moot, in that by the time the pleadings and other papers had been served, it was too late to render any meaningful relief.

I will not dismiss this appeal for lack of jurisdiction based upon defective service. I note that respondent has not challenged the petition on any of the other procedural grounds which caused it to be rejected originally by my Office of Counsel. It is clear that respondent's high school principal is not the person who should have been served. However, after carefully examining the affidavits executed by petitioners' attorney and respondent's superintendent, and a letter by respondent's attorney dated September 25, 1995, I have determined that respondent must be estopped from asserting defective service. Petitioners' attorney was reasonable in understanding that no further service would be required of her. Because the other procedural irregularities were corrected, and they are not asserted as affirmative defenses in respondent's answer, the service made on September 8, 1995, must be deemed both timely and sufficient.

Nor will I dismiss this matter for failure to join necessary parties. It is true that when the rights of an individual or an organization may be affected by a determination in an appeal brought pursuant to Education Law '310, that individual or organization must be joined as a party (Appeal of Skates and Poole, 35 Ed Dept Rep 40; Appeal of Smith, 34 id. 346; Appeal of Cardinal, 34 id. 76; Appeal of Sanfilippo, 33 id. 500). However, only persons who have actual, existing rights or interests come within the scope of this rule. In this appeal, the panel denied petitioners' son the right to try out for the girls' field hockey team. Only if the panel had granted the request to try out and Daniel had been selected for the team would any rights or interests arguably have come into being with respect to the Suburban Council and its member schools, Section II, or the New York State Public High School Athletic Association. Since that did not happen, their interests are speculative and they are not necessary parties for purposes of this appeal.

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 (Appeal of Healy, 34 Ed Dept Rep 611; Appeal of Lanoir, 34 id. 562; Appeal of Hartmann, 32 id. 640; Appeal of Heinz, 31 id. 326). In this appeal, petitioners' attorney was still requesting permission to serve additional papers as late as November 17, 1995, when the field hockey season was at or near its end. Moreover, this is not the type of case that is capable of repetition, since, as the Commissioner observed in Matter of DePold (26 Ed Dept Rep 460 at p.464): " . . . there can be no rule of thumb applying the provisions of subclause 4 [of 8 NYCRR '135.4(c)(7)(ii)(c)] to any individual male athlete. Rather, each instance must be decided on a case-by-case basis." As a result, the appeal must be dismissed as moot.

The appeal also fails on the merits. The record indicates that when Daniel completed the individual athletic profile and performance testing, he was 5'11" tall and weighed 198 pounds (ten pounds heavier than he was the previous year). (See Appeal of Berheide, supra, at p.334). In five of the six physical skills tested (shuttle run, standing long jump, flexed arm hang, 50 yard dash, 1.5 mile run), he substantially bettered the reference performances of female field hockey players set forth in the guidelines. For example, in the 1.5 mile run, he completed the course in 10 minutes, 45 seconds, while the reference time for girls was a full 15 minutes. As noted in the previous appeal decision, Daniel's coaches for varsity ice hockey and varsity lacrosse indicate that he is a highly skilled player with an aggressive style of play.

When a male athlete wishes to play on a female field hockey team, both subclause (2) and subclause (4) of 8 NYCRR 135.4(c)(7)(ii)(c) apply. When subclause (2) applies, the review panel must determine "the fitness of a given student to participate in mixed competition." The Department guidelines state:

The intent of the regulation is to match the student's readiness with an appropriate placement, as well as to provide the pupil with a successful competitive opportunity. When the physical abilities of the individual are deemed by the panel to be short of orexceed the physical abilities of other team members, thereby creating a hazardous condition or unfair advantage for that student or other members of the team, denial of participation would be appropriate. (Emphasis added.)

The Commissioner has interpreted subclause (4) as intending to prevent the domination of female athletics by males. As stated in Appeal of DePold (supra, at p.463):

Although the overall intent of the regulation is to assure that, where possible, no student is excluded from competition solely by reason of sex, subclause 4 recognizes that any gender-neutral qualification could result in total male dominance of all female athletics simply because of the fact that same age males tend to be stronger than females.

The Commissioner further stated in Appeal of Wilson (30 Ed Dept Rep 60, at p.63):

The intent of the regulation is to afford male students an opportunity to participate in sports where no male team exists, provided that their participation on female teams would not significantly affect the opportunities of females to participate successfully in athletic competition (Application of Hunter, 28 Ed Dept Rep 556; Appeal of Gregoire, 27 id. 141; Appeal of DePold, 26 id. 460). Respondent Section III concluded that this student's participation on the female field hockey team would have a significant adverse effect on the opportunity of female team members for successful participation in the sport.

I find that the panel's determination is supported by the record, and is consistent with both subclause (2) and subclause (4). Daniel's scores on the athletic performance testing were substantially better than those in the guideline standards. His prior successful participation on male teams in varsity ice hockey and varsity lacrosse is also significant.

Petitioners point to portions of the guidelines which they say require that the girls on the field hockey team also be administered the performance testing. I disagree. The guidelines do contain some references to other members of the team, although the regulation does not. Obviously, where a team has not yet been selected, it would be impossible to administer the performance test to other team members. It would also be impossible to administer it to all potential opponents. For purpose of comparison, the guidelines therefore provide performance standards. The guidelines make it clear that the performance standards found in the selection/classification chart are not intended as qualifying or disqualifying scores for mixed competition, but only provide a reference as to what could normally be found among the members of the team of a given gender at a given level of play. There is no indication in the record before me that the panel members were arbitrary and capricious in making their determination. Petitioners have failed to satisfy their burden of proof as to that issue (Appeal of Heinz, supra; Application of Hunter, 28 Ed Dept Rep 556). Finally, I note that 8 NYCRR 135.4(c)(7)(ii)(c) does not require that a panel on mixed competition consult with a student's former coach.

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