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Decision No. 14,104

Appeal of NOTRE DAME HIGH SCHOOL and SETON CATHOLIC HIGH SCHOOL from action of Section IV of the New York State Public High School Athletic Association, Inc., regarding reclassification of athletic programs.

Decision No. 14,104

(April 6, 1999)

O'Hara & O'Connell, PC, attorneys for petitioners, Dennis G. O'Hara, Esq., of counsel

Levene, Gouldin & Thompson, LLP, attorneys for respondent, David M. Gouldin, Esq., of counsel

MILLS, Commissioner.--Petitioners are nonpublic schools that are members of Section IV ("Section") of the New York State Public High School Athletic Association, Inc. ("Association"). If considered strictly on the basis of their enrollments for purposes of interscholastic athletics, both schools would be Class C schools. They appeal from action of the Athletic Council and Classification Committee of Section IV. The appeal must be sustained.

During the 1995-1996 school year, Section IV asked its counsel, David M. Gouldin, to analyze the athletic success of petitioners' athletic teams to determine whether or not their classifications should be changed. In 1996, Mr. Gouldin prepared a report which contained these observations:


  1. It appears clear from the data assembled that in certain sports, private schools have achieved greater success than most, but not all, comparably classified schools over the past decade plus. In terms of final four entries, they appear to rank in the top 20% in most, but not all, of the sports for which data was gathered.
  2. Certain specific sports programs have evidenced consistently strong success, e.g. Elmira Notre Dame in football and boys basketball; Seton Catholic in softball and girls soccer.
  3. The record of the private schools in interscholastic competition generally does not seem to demonstrate an across-the-board advantage which those schools have received as the result of any distinctions between them and the public schools insofar as number and caliber of athletes enrolled is concerned. In other words, the private schools have not been strong in all sports, as one might expect if they were benefiting significantly from their enrollment advantages as a private school. They have been very strong in certain sports, but this is typical of the pattern for comparably competitive public schools.


  1. In the absence of a good program, any theoretical advantage which a private school may have over a public school does not translate into a discernable practical advantage.
  2. Where a private school district has a strong program and can in effect become a "magnet" school, then the lack of geographic boundaries and perhaps other advantages can accentuate the benefits of the strong program.


It would appear that an across-the-board change in classification or adjustment of the BEDS numbers would put the private schools at an unfair disadvantage in those sports where, at least at present, they appear to gain no benefit from their unique status.

At the same time, it does appear that in certain situations, the private schools may have some benefit which, while difficult to quantify, is nonetheless present. Probably the fairest and most unassailable approach would be to have the individual sports committees, on an annual basis, make a recommendation in their sport as to whether or not any adjustment is needed in order to "level the playing field" between private schools and public schools in any particular sport. Where a recommendation for an adjustment is made, with an identification of the reasons why the committee is recommending such an adjustment, the Classification Committee can rule on the reasonableness of the request. The private school could have an opportunity to be heard by the Classification Committee as to such adjustment before a final determination is made.

Although this type of sport-by-sport evaluation is more cumbersome, and certainly involves more time on the part of sectional volunteers and officials, it does appear to be the most equitable and legally defensible approach to a problem which has been festering for some years.

It does not appear that the Section took any action with respect to reclassification at that time.

In November 1997, the New York State Public High School Athletic Association amended its constitution by adding: "Section athletic councils may determine the appropriate classification for their nonpublic school members." Shortly after that amendment was adopted, the Association issued these guidelines:

Based on discussions by the NYSPHSAA governing board the following guidelines should be considered when establishing a policy for classifying non-public school members:

  1. review of classification placement should be an annual procedure;
  2. placement should be sport specific rather than total athletic program;
  3. a section classification committee should be established to perform the review process and make recommendations to the athletic council.

On January 14, 1998, the Section's Athletic Council adopted the resolution at issue in this appeal. The resolution moved all nonpublic schools up one class in all sports, thereby elevating petitioners' programs uniformly to Class B, and established an appeal process to the Classification Committee for specific sports. On February 2 and 4, petitioners sent letters to the Section's Interscholastic Sports Coordinator appealing the across-the-board reclassification of their entire athletic program; Seton Catholic's letter additionally requested specific reclassification in several sports.

In response to these letters, the Classification Committee met on June 4, 1998. It appears that the Committee entertained several sport-specific appeals, but apparently advised petitioners for the first time that it could not review the January 14, 1998, resolution of the Athletic Council.

On July 2, 1998, petitioners' counsel requested in writing that the Section's Executive Council review the action taken by the Athletic Council on January 14. On August 11, the Section's Interscholastic Sports Coordinator advised petitioners' counsel:

I am in receipt of your "appeal" of the January, 1998 "action" of the Athletic Council of Section IV with respect to the classification of public and private schools for purposes of interscholastic athletic competition.

There is no ability to appeal such legislative action to any committee or body within Section IV.

If school districts have any further right of review, we believe it may be limited to review available through the Department of Education of the State or the Courts.

Petitioners thereafter commenced this appeal.

Petitioners contend that the resolution of January 14, 1998, was arbitrary and capricious, was not in accord with the guidelines set forth by the Association, and was in conflict with the report prepared by the Section's own counsel. Petitioners further contend that the sport specific appeals procedures are arbitrary and capricious, in that the nonpublic schools have the burden of proof to show why a particular program should not be elevated to the next higher class.

Respondent generally denies that either its resolution or appeals procedures are arbitrary or capricious. It contends that the appeal is untimely since it was commenced more than seven months after the adoption of the January 14, 1998, resolution. Respondent claims that its actions were taken in good faith to ensure appropriate and equitable athletic competition.

I will not dismiss the appeal for untimeliness. The resolution of January 14, 1998, read:

Class #1 "Be it resolved that all parochial and private schools be moved up one class for athletic competition in specific sports based on their enrollment." i.e. (If class C to B, if B to A).

Motion by Myers Second by King Action N/A

Amendment: "Move up in all sports and have an appeal process for sports specific to the Classification Committee. (Final approval taken by Athletic Council.) Effective Fall 1998".

Motion by Myers Second by Ely Action Carried

2 no

Sullivan Trail

As noted above, petitioners promptly brought appeals to the Classification Committee through the Interscholastic Sports Coordinator. Petitioners' request for relief remained before the Classification Committee from early February until June 4, at which time petitioners were told for the first time that the Classification Committee could not review the resolution. Petitioners then sought relief from the Executive Council, which took no action from July 2 until August 11, when it advised petitioners that it had no authority to review the resolution, and, indeed, that there was no body within Section IV which could do so.

Under these circumstances, I find that the appeal should not be dismissed for untimeliness. In the first instance, the language of the resolution is somewhat vague as to the jurisdiction of the Classification Committee, and I do not find it unreasonable for petitioners to have believed that an appeal to the Classification Committee with respect to the January 14 resolution was proper. The Classification Committee's decision to hold petitioners' appeal for a period of four months without raising any objection as to jurisdiction, and the Executive Council's similar inaction for over one month, had the effect of giving petitioners the impression that their attempts to pursue relief within the Section were proper. To permit the Section to assert untimeliness in view of its own dilatory conduct would be unreasonable and unjust.

In any event, the action of the Section, although adopted on January 14, 1998, was not intended to go into effect until the fall sports season in September 1998. This appeal was commenced on September 10, 1998. Previous Commissioner's decisions have recognized that where the effective date of a determination does not affect petitioner for some delayed period of time, an appeal within 30 days after petitioner actually suffers some injury is timely (see, e.g., Appeal of Bales, 32 Ed Dept Rep 559; Appeal of Berowski, 28 id. 53; Matter of Roupp, 18 id. 378).

Turning to the merits, I find that the blanket reclassification made by the Section was arbitrary and capricious. The Section's action not only ignored the guidelines set forth by the Association, but directly contradicted the factual analysis made by its own counsel only a short time before. The report by Mr. Gouldin in 1996 contains an appendix which analyzes the success, measured by number of championships, of petitioners' athletic teams as compared to the public schools in the Section, and also measures the "final four entries" as against the public schools. To use Mr. Gouldin's words: "The record of the private schools in interscholastic competition generally does not seem to demonstrate an across-the-board advantage which those schools have received as a result of any distinctions between them and the public schools insofar as number and caliber of athletes enrolled is concerned." Petitioners provide additional information with respect to certain sports, e.g., that the Notre Dame boys soccer team has had only two winning seasons from 1982 to 1997, while the Seton boys soccer team has had only four winning seasons over that same period. The full record before me does not contain convincing evidence that petitioners' athletic programs have had such significant success over the past years, when compared to the programs of the public schools in the Section, as to justify the drastic action taken here.

Unfortunately, it appears that the Section disregarded Mr. Gouldin's cogent advice: "Although this type of sport-by-sport evaluation is more cumbersome, and certainly involves more time on the part of sectional volunteers and officials, it does appear to be the most equitable and legally defensible approach to a problem which has been festering for some years." Instead, the Section argues that it took into consideration Mr. Gouldin's report and the Association guidelines, but believed that a sport-by-sport consideration "was inconsistent with the fundamental fact that the advantages which are present and defectively undermine competitiveness are not limited to isolated sports teams. They potentially provide an advantage in every sport." (Emphasis added.) However, by focusing on potential problems and disregarding the facts as set forth in the record before me, the Section has acted unreasonably.

I find that the Section's action in reclassifying all programs without factual, evidentiary support in the record for doing so is arbitrary and capricious, and must be set aside. If the Section wishes to consider reclassification in the future, it should do so in accordance with my decision in Appeal of Bishop Grimes High School, et al. (38 Ed Dept Rep 237).

In view of this disposition, it is unnecessary to consider the determinations made by the Section with respect to individual sports on appeal. I have considered the other arguments of the parties and found them to be without merit.


IT IS ORDERED that Section IV's resolution of January 14, 1998, elevating all of petitioners' athletic programs by one class, is annulled.