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Decision No. 17,106

Appeal of KIRSTEN BOSKET, on behalf of her son HUNTER, from action of the Board of Education of the Walton Central School District regarding athletic eligibility.

Decision No. 17,106

(June 21, 2017)

The Law Firm of Frank W. Miller, attorneys for respondent, Christopher M. Militello, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Walton Central School District’s (“respondent”) superintendent of schools that her son, Hunter (“the student”), is not eligible to participate in interscholastic sports as a member of the Walton Central School District’s varsity field hockey team for the 2016-2017 season.  The appeal must be dismissed.

The record indicates that in May 2016 the student sought permission to participate as a member of respondent’s varsity field hockey team (a team organized for female students) pursuant to the provisions of Commissioner’s regulation §135.4(c)(7)(ii)(c).  Section 135.4(c)(7)(ii)(c)(2) of the Commissioner's regulations provides:

(2) In the sports of baseball, basketball, boxing, field hockey, football, ice hockey, lacrosse, rugby, soccer, softball, speedball, team handball, power volleyball where the height of the net is set at less than eight feet, and wrestling, the fitness of a given student to participate in mixed competition shall be determined by a review panel consisting of the school physician, a physical education teacher designated by the principal of the school, and if requested by the parents of the pupil, a physician shall make its determination by majority vote of the members, and in accordance with standards and criteria issued by the department.

However, §135.4(c)(7)(ii)(c)(4) of the regulations further provides:

(4) Where a school does not provide separate competition for male and female pupils in interschool athletic competition in a specific sport, the superintendent of schools, ... or the section may decline to permit a male or males to participate on a team organized for females upon a finding that such participation would have a significant adverse effect upon the opportunity of females to participate successfully in interschool competition in that sport.

The record indicates that respondent convened a three-person review panel pursuant to Commissioner’s regulation §135.4(c)(7)(ii)(c)(2) to evaluate the student’s eligibility to try out for the girls’ varsity field hockey team.  Petitioner asserts that such panel voted to approve the student’s request on June 23, 2016.  Thereafter, the student’s request was referred to respondent’s superintendent for a final determination pursuant to §135.4(c)(7)(ii)(c)(4).

By letter dated June 28, 2016, respondent’s superintendent informed petitioner that the Hunter would be ineligible to participate as a member of respondent’s girls’ varsity field hockey team in the 2016-2017 season.  The superintendent indicated that the decision was based upon a review of all relevant information surrounding the student’s athletic ability and the stature and ability of the female members of the field hockey team.  As such, he concluded that the student’s participation would have a significant adverse effect on the opportunity of female students to participate successfully in interscholastic competition in field hockey and declined the student’s request.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 12, 2016.

     Petitioner asserts that her son should be afforded an opportunity to try out for the girls’ varsity field hockey team based upon the recommendation of the review panel.  Although it is not clear in the record, petitioner appears to claim that the superintendent’s decision declining Hunter’s request to try out for the girls’ team was improper because the review panel had voted to approve the request.  

Respondent contends that the petition is untimely and that petitioner fails to state a claim upon which relief may be granted.  Respondent further contends that the decision to deny Hunter’s request to participate on its girls’ varsity field hockey team was rational, within the sound discretion of the superintendent pursuant to the Commissioner’s regulations, and was in all respects proper.

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).  Petitioner’s request for relief concerns her son’s eligibility to participate on respondent’s interscholastic field hockey team during the 2016-2017 field hockey season.  Petitioner’s request for interim relief was denied and the 2016-2017 field hockey season has ended.  Consequently, the appeal is academic and is dismissed as moot (Appeal of N.M., Sr., 55 Ed Dept Rep, Decision No. 16,846).

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