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Decision No. 15,839

Appeal of STEVEN RAGONE, on behalf of his daughter ALYSSA, from action of the New York State Public High School Athletic Association regarding participation in interscholastic athletics.

Decision No. 15,839

(October 7, 2008)

Renee James, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the application of a rule promulgated by the New York State Public High School Athletic Association (“respondent”) to girls playing on boys’ interscholastic bowling teams.  The appeal must be dismissed.

At the time of this appeal, petitioner’s daughter, Alyssa, was a senior at a nonpublic school that is a member of Section II of respondent’s association.  Because Alyssa’s school did not have a girls’ bowling team, she had been a member of the boys’ bowling team since she was in ninth grade during the 2003-2004 school year.

At the end of each bowling season, “sectional competitions” (“sectionals”) are held to determine which teams within each of respondent’s regional sections will compete in the state championship.  The six highest-scoring male bowlers and the six highest-scoring female bowlers from the sectionals are selected as members of the boys’ and girls’ all-star teams.  Section II’s all-star teams then compete against those of other sections in a statewide tournament.

Section 135.4(c)(7)(ii)(c)(1) of the Commissioner’s regulations states in part that “[e]qual opportunity to participate in interschool competition, either on separate teams or in mixed competition on the same team, shall be provided to ma[l]e and female students....  In schools that do not provide separate competition for male and female students in a specific sport, no student shall be excluded from such competition solely by reason of sex....”

Respondent has established a rule which states that “once an individual competes on a team for one sex during a season, he/she may not compete for or against a team organized for the other sex during that season.”  Because Alyssa was a member of the boys’ bowling team for the entire 2005-2006 season, respondent’s rule prohibited her from using her scores from boys’ sectionals to earn a place on Section II’s girls’ all-star team.

On February 16, 2006, petitioner commenced an Article 78 proceeding in State Supreme Court in Albany County, claiming that respondent’s rule as applied to Alyssa was unfair and discriminatory.  Petitioner requested that Alyssa be added to the Section II girls’ all-star bowling team for the March 2006 state all-star tournament.

On March 1, 2006, an Albany County Supreme Court Justice ordered that the petition was “granted without costs to the limited extent that it applies to this particular case only and has no precedential value” and that Alyssa be placed on the Section II girls’ all-star team as a second alternate.

Petitioner commenced this appeal during the 2006-2007 bowling season.  Petitioner’s request for interim relief was denied on January 31, 2007.

Although many aspects of his petition are unclear, petitioner appears to argue that respondent’s rule is arbitrary and capricious as applied to Alyssa.  Petitioner also appears to contend that respondent’s rule, which refers to the classification of individuals, conflicts with §135.4(c)(7)(ii)(c) of the Commissioner’s regulations.  Petitioner seeks relief in the form of a new or modified rule permitting girls on boys’ bowling teams to compete as individuals at girls’ sectionals.

Respondent contends, interalia, that its rule is a rational interpretation of the Commissioner’s regulation and that the appeal must be dismissed as untimely and moot.

The appeal must be dismissed as moot.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  The 2006-2007 bowling season is long over.  Accordingly, the matter of Alyssa’s all-star participation is moot.

Petitioner also lacks standing to assert claims regarding the rule’s application to other female bowlers to whom it might apply in the future.  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 Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).

Furthermore, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).

In light of this disposition, I need not address the parties’ remaining contentions.