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Decision No. 13,645

Appeal of ALBERT P. PEPE, JR., on behalf of ERICA PEPE, from action of the Board of Education of the Northport-East Northport Union Free School District regarding athletic eligibility.

Decision No. 13,645

(August 12, 1996)

John A. Bray, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Warren H. Richmond, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the policy of the Board of Education of the Northport-East Northport Union Free School District ("respondent") regarding the participation of seventh and eighth grade students on high school interscholastic athletic teams. The appeal must be dismissed.

On November 22, 1993, pursuant to Commissioner's regulations '135.4(c)(7)(ii)(a)(4), respondent adopted a policy whereby seventh and eighth grade students were permitted to compete on high school interscholastic athletic teams, commonly referred to as "playing up." In accordance with this policy, petitioner's daughter, Erica, who will enter the eighth grade in the fall of 1996, had been screened by two coaches for possible participation in high school athletics. In April 1996, respondent revised its policy prohibiting such participation where an interscholastic team is organized at the middle school level, thereby limiting participation to bowling and golf. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on May 9, 1996.

Petitioner contends that the change in policy is "clearly arbitrary, capricious, violative of stated policy, without rational basis, wrongheaded, unfair and a clear denial of equal protection" and that the decision is not supported by sound educational, budgetary, staffing or safety reasons. Petitioner also alleges that the issue was raised, and voted on, by a board member who is the parent of a high school student athlete who perceived that her child was disadvantaged by the policy, thereby indicating bias and partiality. Petitioner requests that his daughter be permitted full participation in all athletic programs offered by respondent.

Respondent contends its decision was lawful, reasonable, and within its discretion and that no conflict of interest was created by the vote.

Section 275.10 of the Commissioner's regulations requires a "petition [to] contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327).

Commissioner's regulations '135.4(c)(7)(ii)(a)(4) states:

A board of education may permit pupils in grades no lower than seventh to compete on any senior high school team, or permit senior high school pupils to compete on any teams in grades no lower than seventh, provided the pupils are placed at levels of competition appropriate to their physiological maturity, physical fitness and skills in relationship to other pupils on those teams in accordance with standards established by the commissioner. (Emphasis added.)

Therefore, the decision whether or not to permit "playing up" in a school district lies solely in the discretion of the board of education, and petitioner has not established any facts which establish an abuse of that discretion. Therefore, while I understand that petitioner and his daughter are disappointed by respondent's change in policy, they have not demonstrated a legal right to the relief they seek.