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Decision No. 14,574

Appeal of EUGENE P., on behalf of REBECCA P., from action of Section I of the New York State Public High School Athletic Association, Inc. and the Board of Cooperative Education Services of Southern Westchester Center for Interscholastic Athletics regarding athletic eligibility.

Decision No. 14,574

(May 9, 2001)

Richard L. Koral, Esq., attorney for petitioner

Keane & Beane, P.C., attorneys for respondents, Stephanie M. Roebuck, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of Section I of the New York State Public High School Athletic Association ("Section I" or "respondent") which denied a requested waiver of the New York State Public High School Athletic Association"s Rule 29(b), which limits the circumstances under which transfer students may participate in interscholastic athletics. Petitioner also named the Board of Cooperative Education Services of Southern Westchester, Center for Interscholastic Athletics ("BOCES") as a respondent, although BOCES was not involved in the determination. The appeal must be dismissed.

Petitioner"s daughter, Rebecca, is a sophomore at Irvington High School ("Irvington"). Since petitioner resides outside the district, he pays tuition for Rebecca to attend Irvington as a nonresident student. Prior to enrolling at Irvington, Rebecca attended The Ursuline School, a Catholic parochial school, for three years. It appears from the record that Rebecca did not want to return to The Ursuline School because she wanted to attend a secular school.

Petitioner asserts that his decision to enroll Rebecca at Irvington was based primarily on two considerations. First, Irvington was near his place of employment which would allow petitioner and Rebecca to commute together on a regular basis. Petitioner states that such an arrangement would provide stability for Rebecca in the wake of her parents' divorce. Second, petitioner contends that his decision was the result of a long search to find an environment that would challenge and nurture Rebecca"s academic growth. Petitioner claims that with the exception of one program where admittance was based on a lottery, there were no programs within his residential district that would meet Rebecca"s academic needs. Although Rebecca was not recruited and did not transfer to Irvington to play sports, both petitioner and Rebecca expected that she would be able to play interscholastic basketball and softball as she had at The Ursuline School.

In the fall of 2000, to allow Rebecca to participate in interscholastic basketball, Mr. Arthur McCormack, the Athletic Director at Irvington, petitioned Section I, requesting a waiver of Rule 29(b) which provides in pertinent part:


(b) A student who transfers without a corresponding change in residence of his/her parents (or other persons with whom the student has resided for at least six months) is ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one (1) year if the student participated in that sport during the one (1) year period immediately preceding his/her transfer...

Exemptions to (b):

  1. The student reaches the age of majority (emancipated minor) and establishes residency in a district.
  2. If a private or parochial school ceases to operate a student may transfer to another private or parochial school of his/her choice. Otherwise, a student must enroll in the public school district of his/her parents" residency.

3. A student who is a ward of the court or state and is placed in a district by court order. Guardianship does not fulfill this requirement.

4. A student from divorced or separated parents who moves into a new school district with one of the aforementioned parents. Such a transfer is allowed once every six months.

NOTE: It is provided, however, that each school shall have the opportunity to petition the section involved to approve transfer without penalty based on an undue hardship for the student.

Upon notification that Section I"s Transfer and Eligibility Committee had denied the request for a waiver, Mr. McCormack submitted a request for reconsideration to Section I"s Appeals Committee. In conjunction with this request, Mr. McCormack submitted three letters on Rebecca"s behalf from professionals who had provided counseling to Rebecca during the course of her parents" divorce. All three professionals supported a waiver of Rule 29(b), claiming that Rebecca"s participation in sports would enable her to deal with and manage the stress she was experiencing as a result of her parents" divorce. The letters also indicated that Rebecca"s participation in sports would provide her with a strong support system, positive female role models and contribute to a positive self-image -- all of which they opined would be essential to Rebecca"s ability to cope with and mitigate the effects of her family situation.

By letter dated November 28, 2000, Dr. Howard Meyer, Section I"s Executive Secretary, advised Mr. McCormack that the Appeals Committee affirmed the Transfer and Eligibility Committee"s decision to deny his request for a waiver of Rule 29(b). Dr. Meyer"s letter indicated that the determination was based on the fact that Rebecca"s transfer to a school outside of petitioner"s district occurred without a corresponding change in the residence of her parents. Additionally, Dr. Meyer stated that the circumstances relative to Mr. McCormack"s request did not warrant a waiver of Rule 29(b). Dr. Meyer advised that Rebecca could transfer to a school within her home district where she would be eligible to play basketball or could participate on another winter team other than basketball at Irvington.

Petitioner asserts that Rule 29(b) was originally designed to discourage high schools from competing unfairly among themselves by recruiting star athletes living outside of their districts. Petitioner contends that since Rebecca was not recruited and did not transfer to Irvington for the purpose of playing on its interscholastic basketball team, Rule 29(b) would impose a serious and unnecessary hardship on her. Consequently, petitioner seeks a waiver of Rule 29(b) on the grounds of undue hardship.

Respondent contends that Section I"s decision to deny the requested waiver was not arbitrary, capricious or contrary to sound educational policy where petitioner failed to establish a basis for an undue hardship exception. Respondent further contends that Section I"s decision does not prevent Rebecca from participating in other athletic opportunities at Irvington. Respondent requests that the appeal be dismissed in its entirety.

This appeal must be dismissed on the merits. Rebecca transferred to Irvington without a corresponding change of residence and as such she was precluded from playing basketball without obtaining a waiver of Rule 29(b). To obtain a waiver of Rule 29(b), the circumstances must conform to one of the stated exceptions or demonstrate undue hardship. Rebecca does not meet any of the exceptions to Rule 29(b): emancipation, closing of a private or parochial school, placement by court order, or a change of school districts as a result of separation or divorce. In the absence of an exception, petitioner must establish that failure to grant a waiver of Rule 29(b) would result in an undue hardship. Rule 29(b) was designed to prevent transfers for athletic purposes and to prohibit the improper recruiting of athletes. Here, petitioner argues that where Rebecca was not recruited and did not transfer to Irvington to play basketball, but rather to take advantage of the school"s challenging academic environment, she should not be excluded from basketball. However, Rule 29(b) applies regardless of the intent underlying the transfer (Appeal of the Board of Education of the East Bloomfield C.S.D. and Denney Wilcox, 38 Ed Dept Rep 636, Decision No. 14,107). If Rebecca transferred to a school within her district, she would have been eligible to play basketball. Rule 29(b) only prevents Rebecca from participating in basketball; she is eligible to play on any other winter sports team at Irvington. Also, Rebecca"s exclusion from basketball is temporary and she will be eligible to play in her junior and senior years. Moreover, the benefits petitioner argues are to be gained from participation in interscholastic sports are not unique to basketball and could be achieved by playing any sport.

Accordingly, I find that no undue hardship exists and therefore, respondent"s action was neither arbitrary nor capricious.