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Decision No. 13,647

Appeal of A STUDENT WITH A DISABILITY from action of Lawrence J. Zacher, Superintendent of the Whitesboro Central School District, regarding participation in interscholastic athletics.

Decision No. 13,647

(August 13, 1996)

Siegel, Hester, Stephens, Kahler & Manion, L.L.P., attorneys for petitioner, Merrit S. Locke, Esq., of counsel

Foley, Frye & Foley, attorneys for respondent, Richard A. Frye, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the refusal of Lawrence Zacher, Superintendent of the Whitesboro Central School District, ("respondent") to allow him to participate in interscholastic sports in his senior year. The appeal must be dismissed.

Petitioner has been deaf and mute since birth and communicates through sign language. Petitioner has attended special programs since the age of three. Since the seventh grade, he has attended the New York State School for the Deaf half day and the Whitesboro Central School District half day. He has participated in interscholastic football during the past three years. He will be a high school senior during the 1996-97 school year and would like to participate in a fourth year of football. However, petitioner will turn 19 on August 24, 1996, and under Section 135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations, a student is only eligible to participate in interscholastic sports until the age of 19 (unless the student turns 19 on or after September 1 of the school year in which he or she seeks to enter interscholastic competition).

Petitioner contends that he is older than his classmates because his deafness resulted in slower academic progress. He hopes to play football at the college level and is concerned that he will be overlooked by college football programs if he is not allowed to play during his senior year. He also argues that football has helped him fit in with his classmates and has contributed to his growth, development, and self-confidence.

By letter dated June 25, 1996, petitioner's mother requested a waiver of the age limitation. On June 27, 1996, respondent denied the request because it was not in his power to grant such a waiver. This appeal ensued. Petitioner requests a waiver of the "over 19" rule which would permit him to participate in interscholastic football in his senior year. Respondent requests that the Commissioner grant the relief requested in the petition.

Commissioner's regulations section 135.4(c)(7)(ii)(b)(1) provides in pertinent 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 first may continue to participate during that school year in all sports.

While I am sympathetic to petitioner's arguments and 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 Donovan, 34 Ed Dept Rep 625; Appeal of Prentice, 34 id. 432; Application of a Child with a Handicapping Condition, 29 id. 370).

Petitioner also contends that the rule, as applied, violates the Americans With Disabilities Act. However, in Reeves v. Mills, the court held that "the State's limitation for participation in interscholastic sports is based upon a student's age," not the student's abilities, and therefore, that the rule is applied uniformly without regard to students' disabilities (904 F. Supp. 120, 122 (W.D.N.Y. 1995)).