Appeal of the BOARD OF EDUCATION OF THECITY SCHOOL DISTRICT OF THE CITY OF RYE from action of the New York State Public High School Athletic Association regarding athletic eligibility.

Decision No. 16,513

(August 12, 2013)

Ingerman Smith, L.L.P., attorneys for petitioner, Emily J. Lucas, Esq., of counsel

Renee James, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioner, the Board of Education of the City School District of the City of Rye, appeals a determination of the New York State Public High School Athletic Association (“respondent”) denying one of its students, a student with a disability, extended eligibility to play basketball for the 2010-2011 school year. The appeal must be dismissed.

At the time of this appeal, the student was an 18year-old fifth-year high school senior in the Rye City School District (“the district”). The student first attended school in the district during the 2006-2007 school year and played basketball that year. During the 2007-2008school year, however, the student’s parents placed him in a private school that did not offer basketball.

At the end of the 2007-2008 school year, the student’s parents withdrew him from the private school and placed him in a therapeutic day program that did not offer basketball. For the remainder of the 2007-2008 school year and entire2008-2009 school year, the student attended that school.

The student returned to petitioner’s high school in 2009-2010 and played basketball that year. In April 2010,petitioner requested extended eligibility, pursuant to §135.4(c)(7)(ii)(b)(1) of the Commissioner’s regulations(“the regulation”), for the student to play basketball inthe following season, during the student’s fifth year of high school. That regulation provides, in pertinent part:

The eligibility for competition of a pupil who has not attained the age of 19 years prior to July 1st may be extended under the following circumstances.

(i) If sufficient evidence is presented by the chief school officer to the section to show that the pupil’s failure to enter competition during one or more seasons of a sport was caused by

illness, accident, or similar circumstances beyond the control of the student, such pupil’s eligibility shall be extended accordingly in that sport. In order to be deemed sufficient, the evidence must include documentation showing that as a direct result of the illness, accident or other circumstance beyond the control of the student, the pupil will be required to attend school for one or more additional semesters in order to graduate.

By letter dated June 30, 2010, respondent’s Section One Transfer and Eligibility Committee denied the request, stating that the student did not meet the requirements for extended eligibility under the regulation. Specifically, it noted that the student’s non-participation in basketball was not due to accident or illness that prevented him from playing the sport, but was attributable, instead, to the fact that the private school he previously attended did not offer basketball.

By letter dated July 19, 2010, petitioner appealed to respondent’s extended eligibly committee on behalf of the student. By letter dated July 27, 2010, the committee denied respondent’s request on the grounds that the student’s medical condition did not directly delay his academic progress and because his failure to participate in basketball was not a result of illness or injury, but rather, the private school’s failure to offer a basketball program. This appeal ensued. Interim relief was granted on December 8, 2010.

Petitioner asserts that extended eligibility for the student to play basketball is warranted, arguing that 8 NYCRR §135.4(c)(7)(ii)(b)(1) applies to this student in that his medical condition directly delayed his academic progress and prevented him from playing basketball in certain school years.1 Petitioner also argues that respondent’s decision violates Section 504 of the Rehabilitation Act of 1973 (“§504”) and the Americans with Disabilities Act (“ADA”). Respondent argues that the student is not eligible for extended eligibility under the regulation in that his medical condition was not the reason for his inability to play basketball, nor did it delay the student’s academic progress.

 1 I note that petitioner is not seeking a waiver pursuant to §135.4(c)(7)(ii)(d) of the Commissioner’s regulations.

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 a Student with a Disability, 48 Ed Dept Rep 532,Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No.15,836).

By order dated December 8, 2010, interim relief was granted and the student participated in basketball during the 2010-2011 season. Further, according to the record, the student became 19 years old in April 2011 and, thus, cannot request further extensions of eligibility pursuant to §135.4(c)(7)(ii)(b)(1). Consequently, the appeal is moot, warranting dismissal.

To the extent that petitioner asserts claims under the ADA and §504, the appeal must be dismissed for lack of jurisdiction. An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeals of a Student Suspected of Having a Disability,46 Ed Dept Rep. 539, Decision No. 15,588; Appeal of Mogel,41 id. 127, Decision No. 14,636; Appeal of Cochran, et al.,35 id. 555, Decision No. 13,631). Additionally, enforcement of §504 lies with the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability,48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 43 id. 487,Decision No. 15,061).

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

THE APPEAL IS DISMISSED.

END OF FILE