Skip to main content

Decision No. 13,655

Appeal of D.H., by his parents, from action of the Board of Education of the Waterville Central School District regarding participation in interscholastic athletics.

Decision No. 13,655

(August 14, 1996)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal respondent's refusal to allow their son to participate in interscholastic sports in his senior year of high school and seek a waiver of the Commissioner's regulations to enable him to play. The appeal must be dismissed.

Petitioners' son will enter the twelfth grade in respondent's school district in the fall of 1996 and has participated in interscholastic soccer and basketball in previous school years. He was born on August 29, 1977, and will turn 19 on August 29, 1996.

The record indicates that petitioners' son was classified in 1986 as a learning disabled student by respondent's committee on the handicapped, now known as the committee on special education. Petitioners allege that their son was required to repeat the second grade because of his disability. There is nothing in the record, however, to indicate whether petitioners' son is currently classified as disabled.

Furthermore, the record does not indicate how or when respondent prevented petitioners' son from participating in interscholastic sports. In fact, respondent's answer states that it fully supports a waiver of the Commissioner's regulations to permit petitioners' son to participate in interscholastic sports during his senior year of high school.

Section 135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations 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.

In this case, the record indicates that petitioners' son will turn 19 prior to September 1, 1996.

Petitioners contend that participation in interscholastic sports will give their son a better opportunity for athletic scholarships. Petitioners further argue that they are only seeking a three day extension to the Commissioner's regulation. While I am sympathetic to petitioners' arguments, and I understand their son's 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; Appeal of Davison, 25 id. 180; Matter of Allen, 22 id. 255). Furthermore, the maximum age restriction applies to all students, whether disabled or not, and has been held not to be illegal discrimination toward individuals with disabilities (Reaves v. Mills, 904 F.Supp 120 [W.D.N.Y. 1995]).