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Decision No. 15,481

Appeal of SETON CATHOLIC CENTRAL HIGH SCHOOL by KATHLEEN DWYER, as Principal, CHRISTOPHER SINICKI, Athletic Director, STEVE BELLINGHAM, on behalf of his daughter MEGAN BELLINGHAM, JOHN DOWD, on behalf of his son KEENAN DOWD, JERRY GOSNEY, on behalf of his son JEROME GOSNEY, ROBERT GARBADE, on behalf of his daughter ELLIE GARBADE, ARTHUR O'NEIL, on behalf of his son SHANE O'NEIL, and MATHEW MYETTE, on behalf of his daughter KELSEY MYETTE, from action of Section IV of the New York State Public High School Athletic Association, Inc., including its "Classification Committee," and the New York State Public High School Athletic Association, Inc., regarding reclassification of athletic programs.


Decision No. 15,481


(October 25, 2006)


McDonough & Artz, PC, attorneys for petitioners, Curtis B. Gilfillan, Esq., of counsel


Levene, Gouldin & Thompson, LLP, attorneys for respondent Section IV of the New York State Public High School Athletic Association, Inc., David M. Gouldin, Esq., of counsel.


Renee L. James, Esq., attorney for respondent New York State Public High School Athletic Association, Inc.


MILLS, Commissioner.--Petitioners appeal the reclassification of certain athletic programs at Seton Catholic Central High School ("Seton") for post-season competition for the 2005-2006 and 2006-2007 school years.� The appeal must be dismissed.

Seton is a nonpublic school located in Binghamton, New York.� It is a member of Section IV ("Section") of the New York State Public High School Athletic Association, Inc.� Petitioners Bellingham, Dowd, Gosney, Garbade, O'Neil, and Myette are parents of Seton students who are members of the girls' soccer and basketball teams and boys' soccer and basketball teams.

Prior to June 2005, Seton sponsored a number of varsity teams that played in the Southern Tier Athletic Conference.� Its boys' basketball, girls' basketball, boys' soccer, girls' soccer, and girls' softball teams all competed at the Class C level, as established by the New York State High School Athletic Association ("Association").� At times relevant to this appeal, Seton had an enrollment, calculated for athletic classification purposes by the Bureau of Educational Data Systems (BEDS) of the State Education Department, of 310 students.� If Seton had been a public school, it would have been within the enrollment range of Class C schools (200-349 students).

Under the rules of the Association, a public school is classified solely on the basis of BEDS enrollment figures.� A public school may, however, elect to compete at a higher, but not a lower, classification level than its enrollment would dictate.

Under the Association's Constitution, Article II, section 1(f), the Athletic Council, the governing body of each section, has the authority to determine the appropriate classification level for nonpublic member schools (seeAppeal of Notre Dame High School, et al., 38 Ed Dept Rep 615, Decision No. 14,104; Appeal of Bishop Grimes High School, et al., 38 id. 237, Decision No. 14,024).

In May or June of 2005, the Section's sports coordinator notified Seton's athletic director that the Section's Classification Committee would be examining five of Seton's sports programs (boys' basketball, girls' basketball, boys' soccer, girls' soccer, and girls' softball) for possible reclassification.� On June 13, 2005, the coordinator advised the athletic director that the Classification Committee would meet on June 16, 2005.� Prior to that meeting, Seton's athletic director submitted requested information on team win-loss records for those sports over a five-year period, together with other information on student athletes.

On June 16, 2005, both Seton's athletic director and its principal attended the meeting of the Classification Committee.� After the close of the meeting, the Committee voted to recommend that Seton's boys' basketball, girls' basketball, boys' soccer, and girls' soccer teams be elevated to Class B for the 2005-2006 and 2006-2007 academic years because of their very high levels of achievement.� The Committee recommended that the girls' softball program be continued at Class C.� (I note that while there are some minor discrepancies in the record with respect to win-loss records for the four reclassified teams, it is clear that each team, competing in Class C during the period 2000-2001 through 2004-2005, had a winning percentage of no less than .675, with three of the teams above .700.)

Later on June 16, 2005, the Section's Athletic Council accepted the recommendation and voted to elevate the four teams from Class C to Class B for 2005-2006 and 2006-2007 by a vote of 72-1.� Seton's athletic director was informed of both decisions by a letter dated June 17, 2005, and was advised of Seton's right to appeal to the Section's Executive Board.

Seton appealed to the Executive Board ("Board"), and on August 25, 2005, Seton's athletic director, principal, and two attorneys appeared before the Board.� The three-member Board unanimously upheld the decision of the Athletic Council, and issued a written decision dated August 25, 2005.

Seton then appealed to the Association pursuant to its bylaws.� On October 4, 2005, Seton presented its case to an Appeal Panel chaired by the past president of the Association.� That same day, the Appeal Panel denied Seton's appeal, and later provided a written decision dated October 10, 2005.� The determination of the Appeal Panel is at issue in this appeal.

Thereafter, petitioners commenced an Article 78 proceeding against the Section and the Association in Supreme Court, Broome County.� The matter was heard by Justice Phillip Rumsey on December 1, 2005, and the Court issued a decision dated February 10, 2006.� The Court ruled that because petitioners could have brought an appeal to the Commissioner of Education, the Association's determination could have been adequately reviewed and therefore dismissed the proceeding for failure to exhaust administrative remedies (CPLR �7801[1]).� With respect to petitioners' assertions that respondents' actions violated the Constitutional guarantees of due process and equal protection, however, the Court dismissed petitioners' Federal and State Constitutional claims, on the merits.� It appears that Seton may have served a notice of appeal, but there is no indication in the record that any appeal has been perfected or pursued.� In correspondence dated April 24, 2006, petitioners' counsel asks that the Commissioner proceed with this appeal "to conserve the time and effort of all involved and possibly militate against the need to pursue the referenced Notice of Appeal."

Petitioners state that the Supreme Court's decision, order and judgment was served with notice of entry on March 14, 2006.� This appeal, pursuant to Education Law �310, was commenced on March 30, 2006, by service on the Association, and on April 3, 2006, by service on the Section.

Petitioners allege that the determination made with respect to Seton's four reclassified sports programs was arbitrary and capricious, primarily because no consideration was given to the records of public schools, and the Classification Committee did not provide written criteria for its decision prior to its June 16, 2005, meeting.� Petitioners also contend that the process and procedure by which Seton's programs were reclassified violated their rights under the State and Federal Constitutions.� They also argue that a bylaw of the Association, which provides that any member school which institutes an unsuccessful legal action or appeal before the Commissioner of Education to overturn, stay or enjoin an eligibility ruling or a rule or rules of the Association or its subdivisions will be liable for reasonable costs and attorneys fees incurred by the Association, is unconstitutional.� Petitioners ask that I annul the determinations of the Classification Committee, Athletic Council, Executive Board, and Appeal Panel.� They also ask that I declare the Association bylaw regarding attorneys' fees to be unconstitutional.

Respondents generally deny that the reclassification of Seton's sports programs was arbitrary or capricious, or in any way procedurally defective.� They present numerous affirmative defenses, including the lack of standing on the part of individual petitioners.� Respondents allege that the Supreme Court's judgment rejected petitioners' allegations of constitutional violations, and dismissed them on the merits, and that in any event the Commissioner has no jurisdiction with respect to such constitutional claims.� Respondents also argue that the Commissioner has no jurisdiction to adjudicate the constitutional claims with respect to the rule regarding attorneys' fees.

���� I find that the individual petitioners lack standing in this appeal.� The Association's Constitution, Article II, makes it clear that only schools may become members of the Association.� Its Bylaw 3 states that it is an association of member schools, and, therefore "appeals will only be entertained from schools, leagues and sections."� Accordingly, under the Constitution and bylaws, individual petitioners have no right to appeal.� In addition, an individual may not maintain an appeal pursuant to Education Law �310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712).� Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311).� The petition fails to state any allegations of harm to any individual petitioner named herein.� The appeal is therefore dismissed as to all individual petitioners.

With respect to petitioners' claims that they were denied procedural due process and equal protection, I am foreclosed from considering such claims by the judgment of the Supreme Court, Broome County.� The Court found:

The requirement that administrative remedies be exhausted does not, however, apply to petitioners' assertions that respondents' actions violated the Constitutional guarantees of due process and equal protection ���. . . Nevertheless, after due consideration, the court has concluded that those contentions are meritless.� Even if the mere reclassification of a school's teams . . . were deemed a substantial impingement upon its rights . . . petitioners were afforded all the "process" to which they may have been entitled, to wit, notice of the Section's intention to consider reclassifying its teams, and an opportunity to be heard on that issue (cf., Matter of Diaz v. Board of Educ. of City of New York, 162 Misc 2d 998, 1004[1994]).

�. . .

Accordingly, the petition is hereby dismissed, on the merits with respect to petitioners' Federal and State Constitutional claims, and on the ground that petitioners have failed to exhaust available administrative remedies with respect to the other matters alleged therein.

Even if I were not foreclosed by that determination, I lack jurisdiction in this area.� An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Murray, 43 Ed Dept Rep 400, Decision No. 15,031; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804; Appeal of Finkel, 41 id. 74, Decision No. 14,619).� A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeals of American Quality Beverages, LLC, et al., 42 Ed Dept Rep 144, Decision No. 14,804).

���� With respect to petitioners' request that I declare the Association's bylaw concerning attorneys' fees unconstitutional, not only do I lack constitutional jurisdiction, as stated above, but I also find that the claim is premature.� The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643). There is nothing in the record before me indicating that the Association has made any claim or demand for attorneys' fees.� Even if the Association had done so, I lack jurisdiction to award such fees.� The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law �310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

���� I also note that the appeal is moot with respect to the 2005-2006 school year, which has ended.� The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). I note, however, that during the 2005-2006 school year, Seton's reclassified boys' and girls' basketball teams, and girls' soccer team all won Class B sectional championships, and the boys' soccer team reached the Class B sectional semifinals before losing to the eventual sectional champion.

Since 1997, each section of the Association has had the authority to determine the appropriate classification for their nonpublic school members (Association Constitution, Article II, Section 1[f]; seealsoAppeal of Notre Dame High School, et al., 38 Ed Dept Rep 615, Decision No. 14,104; Appeal of Bishop Grimes High School, et al., 38 id. 237, Decision No. 14,024).� Section IV has had such a committee since shortly after the Association's constitutional amendment.

I cannot agree with petitioners' argument that the failure to consider the records of public school athletic programs makes the reclassification process arbitrary or capricious.� The Association's Constitution provides at Article II, section 2: "All member schools of this corporation agree to abide by this Constitution and the Eligibility Standards, Sports Standards, Modified Program Rules, Officiating Standards, in all interschool competition as adopted by the Executive or Central Committees or approved by referendum of member schools."� The Association's 2004-2006 Handbook, of which I take judicial notice, provides at p. 144:

For school classification purposes, enrollment figures are collected by the Section Athletic Councils from the October State Education Department BEDS (Bureau of Education Data Systems) forms, and approved by the Executive Committee in January.� Classification will be determined on a school year basis using the October BEDS numbers of the preceding school year.

. . .

Classification numbers are verified with the State Education Department numbers when they become available.

. . .

Schools within each section may choose to move up but not down in classification.

Taken together, these provisions indicate that a nonpublic school may be appropriately placed for competitive purposes within the class its student enrollment would dictate, or above or below that class, if appropriate.� However, a public school is automatically placed within the class dictated by its student enrollment, unless it chooses to play at a higher level.� A public school may not be placed below the class dictated by its enrollment, and may not be placed in a higher class involuntarily.� For these reasons, a classification committee need not consider the records of public schools, because it has no authority to alter the classification of a public school involuntarily.� Even if a public school becomes "dominant" in one or more sports, there is no authority in either the Association or its sections to place it in a higher class against its will.

Petitioners also contend that the placement of its programs was arbitrary and capricious because it was not provided with criteria for reclassification.� The record indicates that the Classification Committee had determined that in reviewing a specific sport program at a nonpublic school it should review data, particularly sectional, class and league performance history, for no less than a five-year period.� The Committee used the following specific criteria:

a.              How many times during the five-year period has the school reached the semifinals of sectional competition in the sport in question?

b.              How many times has the school competed in the finals during the five-year period?

c.              How many times has the school been sectional champion?

d.              What has the record of the non-public school been against schools within its own class, as well as schools in the next class above?

On January 28, 2005, the Executive Committee of the Association approved mandatory classification criteria beginning with the 2006-2007 school year:

As a 2 year experiment Sections would be required to formulate a Classification Committee to review the classification of their non public school members.� In the evaluation process the following criteria must be included, but not limited to:

-            Periodic review - at least every two years

-            Sport specific - season specific

-            BEDS Numbers

-            Levels of competition - regular season

-            Level of success (5 year period)

� �� - League, Conference, Sectional, Regional, State

-            Approval by Athletic Council

-            Appeal process

Although the Section's criteria are not identical, they are very similar to those adopted by the Association.� As noted above, sections have had the authority to use classification committees since 1997, and the Section has had such a committee since then (Appeal of Notre Dame High School, et al., 38 Ed Dept Rep 615, Decision 14,104).

The record before me indicates that Seton's four reclassified teams enjoyed unusual success during the five-year period reviewed by the Classification Committee and ultimately approved by the Appeal Panel.� During the five-year period, Seton's boys' soccer team was sectional champion once, reached the sectional finals twice, and reached the semifinals once; the girls' soccer team was sectional champion once (and State champion), reached the sectional final three times, and reached the sectional semifinals once; the boys' basketball team was sectional champion three times, and reached the semifinals once; the girls' basketball team was sectional champion twice (and State champion once), and reached the semifinals once.� Against Class B opponents, each of the four reclassified teams had winning records, and three of the teams had winning percentages greater than .700.�� As the Appeal Panel found: "The record below contains evidence which amply demonstrates that the reclassified programs have been extremely successful against the current level of competition."

I do agree with petitioners that the classification criteria should have been available to Seton prior to the meeting of the Classification Committee.� However, the forms Seton was asked to complete required information on overall win-loss records, win-loss record against opponents by class, results from sectional post-season competition, and results in State-level post-season competition.� Under these circumstances, Seton's claimed ignorance of the classification criteria is not of any consequence.� As pointed out by the counsel for the Section:

While it is true that Seton was not provided with a written statement concerning the criteria to be employed by the Committee at the first meeting, there is not one shred of evidence to support the implication that the criteria were crafted to embrace Seton's programs.� We submit that earlier receipt of the criteria would not have altered any part of the presentation by Seton.� There is very little about the evaluation of the issue that is subjective.� There can be no claim that Seton would somehow have been able to change its data had it known what the written criteria were.

In the future, the Section should make such criteria available at the earliest stage, and if and when it modifies its criteria to conform to the Association's January 28, 2005 mandate.

I have considered the parties' remaining contentions, and find them without merit.