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Decision No. 17,179

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Yorktown Central School District regarding athletic participation.

Decision No. 17,179

(September 5, 2017)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Garrett L. Silviera, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Yorktown Central School District (“respondent”) that his son (“the student”) is not eligible to participate in interscholastic athletics as a member of the Yorktown High School junior varsity baseball team.  The appeal must be dismissed.

At the time of this appeal, the student was a tenth-grade student attending Winston Preparatory School, a nonpublic school (“Winston Prep”).  The record indicates that, prior to January 2017, the student attended respondent’s high school.

Petitioner asserts that he rejected the recommendations of respondent’s Committee on Special Education (“CSE”) made on June 13, 2016 and January 17, 2017, and enrolled the student at Winston Prep in January 2017.  The student’s June 2016 Individualized Education Plan (“IEP”) notes that when the student was enrolled in respondent’s schools, the student played on respondent’s freshman baseball team.  The June 2016 IEP further states that the student “benefits from playing baseball as it improves his self-esteem.”  The January 2017 IEP also noted that the student played on respondent’s freshman baseball team.

The record indicates that on March 16, 2017, petitioner attended a meeting together with his attorney and respondent’s director of pupil personnel services (“PPS director”).  In an email dated March 23, 2017, the PPS director “confirm[ed]” that the district would permit the student to try out for the junior varsity baseball team.

Petitioner asserts that on April 7, 2017, respondent’s athletic director informed petitioner by telephone that the student was not eligible to play baseball.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 24, 2017.

Petitioner alleges that participation in interscholastic athletics is a necessary component of the student’s IEP and is required to provide the student with a free appropriate public education (“FAPE”).  Although not entirely clear, it appears that petitioner is alleging that respondent’s refusal to allow the student to participate as a member of respondent’s baseball team under the circumstances is a violation of the student’s right to a FAPE.  Petitioner seeks a determination that, as a resident of respondent’s district, the student is entitled to a FAPE, which includes an opportunity to participate in interscholastic athletics.[1]

I am without jurisdiction in an appeal brought pursuant to Education Law §310 to entertain petitioner’s claim that participation in interscholastic athletics is a necessary component of the student’s IEP under the Individuals with Disabilities Education Act (“IDEA”) and Education Law, Article 89.  The IDEA and Education Law, Article 89 provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a FAPE to such child (20 USC §1415; Education Law §4404[1]). Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415), Education Law §4404, and §200.5(j) of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).[2] Therefore, because petitioner’s claims relate solely to the provision of a FAPE to the student, they must be dismissed for lack of jurisdiction.

In light of this disposition, I need not address petitioner’s remaining contentions.




[1]By letter dated May 11, 2017, respondent informed my Office of Counsel that it would not be submitting any opposition papers or an answer to the petition.  Therefore, the factual allegations set forth in the petition are deemed to be true statements (Appeal of Calabrese, 43 Ed Dept Rep 98, Decision No. 14,933; Appeal of DiMartino, 38 id. 762, Decision No. 14,136).


[2]The record indicates that, by letter dated February 27, 2017, petitioner requested an impartial hearing regarding the CSE’s placement recommendation for the student.  The record does not contain any information relating to the status or outcome of this impartial hearing.