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Decision No. 14,688

Appeal of REBECCA LAUGHLIN-JACKSON, on behalf of her daughter, MEGHAN JACKSON, and KAREN FOX, on behalf of her daughter, KATIE WOEPPLE, from action of the Board of Education of the West Genesee Central School District regarding its interscholastic athletic policy.


Decision No. 14,688

(February 22, 2002)

David M. Pellow, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners challenge an interscholastic athletic policy adopted by the Board of Education of the West Genesee Central School District ("respondent"). The appeal must be dismissed.

Petitioners are each the parent of a ninth grade student in respondent's high school. On August 15, 2001, respondent adopted an interscholastic athletic policy which provided, in part, that freshman would not be permitted to try out for certain varsity teams. As a result, petitioners' daughters were not permitted to try out for the girls' varsity soccer team, and this appeal ensued. Petitioners' request for interim relief was denied on September 27, 2001.

Petitioners assert that respondent violated its procedure governing policy development when its athletic director attempted to implement a new policy prior to board adoption, and that respondent acted in an arbitrary and capricious manner because it presented no tangible evidence to justify the new policy. Petitioners also contend that respondent failed to submit a timely answer to the petition.

Section 275.13 of the Regulations of the Commissioner of Education requires a respondent to answer the petition within 20 days from the time of service. Since the petition was served on September 13, 2001, respondent was required to serve its answer by October 3, 2001. However, respondent did not serve its answer until October 22, 2001, and offered no excuse for the late submission. Accordingly, I find no basis to accept the late answer, and the factual allegations set forth in the petition are deemed to be true statements (8 NYCRR "275.11).

The Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Squires, 40 Ed Dept Rep 193, Decision No. 14,458; Appeal of Razzano, 39 id. 303, Decision No. 14,244; Appeal of Davis, 38 id. 805, Decision No. 14,148). Although respondent's athletic director attempted to unilaterally amend the district's athletic policy by memorandum dated July 31, 2001, respondent adopted that policy change at its board meeting on August 15, 2001. As such, petitioners' complaint that respondent committed a procedural violation in the adoption of its athletic policy has been rendered moot.

Section "135.4(c)(7)(ii)(a)(4) of the Commissioner's regulations provides:

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 to permit "playing up" in a school district lies solely within the discretion of the board of education (Appeal of Pepe, 36 Ed Dept Rep 33, Decision No. 13,645). The petition in this matter fails to state how respondent's actions were an abuse of that discretion. Respondent's athletic director and superintendent both supported adoption of the policy. At the board meeting, respondent's superintendent indicated that the policy change was intended to enhance respectful student relationships, student connectivity, team spirit, and program building while diminishing the targeting of exceptional athletes by coaches.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which relief is sought (Appeal of S.H., 40 Ed Dept Rep ___, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164). Petitioners' allegation that their daughters devoted an extraordinary amount of time and effort toward the soccer program during the preceding summer because they believed that they would be able to try out for the varsity team did not prevent respondent from adopting a discretionary change in its athletic policy. Upon the record before me, I must conclude that petitioners have not demonstrated a legal right to the relief they seek.