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Decision No. 13,624

Appeal of K.R., by his parents, from action of Section V of the New York State Public High School Athletic Association relating to Eligibility to participate in Interscholastic Sports.

Decision No. 13,624

(June 13, 1996)

McGivern, Shaw & O'Connor, attorneys for respondent, Ronald R. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal from respondent's refusal to allow him to participate in interscholastic sports in his senior year and seek a waiver from the Commissioner to enable him to play. The appeal must be dismissed.

Petitioners' son is a senior in the Rochester City School District ("the district") and participated in interscholastic football through his junior year. He was born on August 16, 1976 and turned 19 in 1995. By letter dated January 6, 1995, Section V of the New York State Public High School Athletic Association ("Section V") informed petitioners that their son would be ineligible to participate in interscholastic sports during his senior year (the 1995-96 school year) because of his age and that its decision may be appealed to the Section V Executive Committee. Petitioners commenced this appeal on August 30, 1995.

Petitioners also filed a complaint in the United States District Court for the Western District of New York on behalf of their son and, on November 10, 1995, Judge Michael A. Telesca denied petitioners' request for a temporary restraining order that would have directed the State Education Department and the Commissioner of Education to waive the age eligibility rule set forth in 8 NYCRR 135.4(c)(7)(ii)(b)(1) and allow K.R. to participate in interscholastic sports (Reaves v. Mills, 904 F. Supp. 120 [WDNY 1995]).

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

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 first may continue to participate during that school year in all sports.

Petitioners claim that their son is entitled under the Americans with Disabilities Act (ADA), 42 U.S.C. 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. 794a, to a waiver of the age eligibility rule contained in the regulation because he repeated first grade due to a past disability recognized by the district's committee on special education (CSE).

In his decision, Judge Telesca found that petitioners failed to prove that their son is protected by the ADA or Section 504, having conceded that he is no longer classified by the district's CSE (Reaves v. Mills, supra at 122). In addition, the Judge decided that "the State's limitation for participation in interscholastic sports is based upon a student's age," not the student's abilities, and that the regulation is applied uniformly among the student population regardless of whether or not a student has a disability (Reaves v. Mills, supra at 122).

Having litigated the same claim on the same set of facts and received an adverse determination on whether respondent violated their son's rights, petitioners are barred by the doctrine of res judicata from relitigating the issue (Appeal of Bach, 34 Ed Dept Rep 130; Appeal of Tobin, 30 id. 315; Appeal of Roth, 26 id. 165; Matter of Monaco, 24 id. 348).