Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Half Hollow Hills Central School District regarding participation in interscholastic athletics.

Decision No. 17,806

(January 14, 2020)

Frazer and Feldman, LLP., attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

TAHOE, Interim Commissioner.--Petitioner appeals from action of the Board of Education of the Half Hollow Hills Central School District (“respondent”) regarding the eligibility of her child (“the student”) to participate in interscholastic athletics.  The appeal must be dismissed.

Petitioner and the student are residents of respondent’s district.  During the 2016-2017 school year, the student attended eighth grade at respondent’s West Hollow Middle School.  Although the record is not entirely clear, it appears that, during this time, the student participated in interscholastic athletics as a member of the varsity basketball team at respondent’s Half Hollow Hills High School East (“the public high school”), in accordance with section 135.4(c)(7)(ii)(a) of the Commissioner’s regulations.[1]  In September 2017, the student enrolled in ninth grade at the Portledge School (“the nonpublic school”), where she joined the basketball team.  Sometime thereafter, petitioner requested that respondent’s superintendent permit the student to participate in interscholastic basketball on behalf of the public high school for the 2018-2019 school year, despite the student’s continued enrollment in the nonpublic school.

In an email dated January 11, 2018, respondent’s superintendent informed petitioner that the student could not participate as a member of the public high school’s interscholastic basketball team because the student was enrolled in a nonpublic school and, thus, was not a bona fide student of the public high school.  By letter dated January 29, 2018, petitioner appealed this decision to respondent, requesting that the student be permitted to play for the public high school’s basketball team “for the 2018-2019 school year and beyond while attending [the nonpublic school].”  Petitioner asserted that the student should be entitled to participate based on her social/emotional needs and residence within the district.  By letter dated March 9, 2018, respondent denied petitioner’s request.  Respondent reasoned that the student was ineligible to participate because the rules of the New York State Public High School Athletic Association (“NYSPHSAA”) provide “that students must be enrolled in the school they are representing.”  This appeal ensued.

Petitioner asserts that, because she and the student reside within respondent’s district, respondent must permit the student to participate in interscholastic athletics on behalf of the public high school.  Petitioner further contends that the student’s participation on the public high school’s basketball team would benefit the student’s mental health and be in the student’s best interest.  Finally, petitioner asserts that, because the student receives certain accommodations in accordance with Section 504 of the Rehabilitation Act of 1973 (“Section 504”), she should receive similar flexibility with respect to this matter.  For relief, petitioner seeks a determination that the student “be permitted to participate in public school athletics within the district she resides.”

Respondent contends that the petition must be dismissed for failure to join NYSPHSAA and/or Section XI – the specific NYSPHSAA section of which the public high school is a member.  Respondent further avers that any claim arising under Section 504 is outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310 and that petitioner’s claims are not ripe for review insofar as the student’s current enrollment status at the nonpublic school is unknown.  Respondent additionally contends that petitioner fails to state a claim upon which relief may be granted; that her request for relief is against the public interest; that its decision was neither arbitrary nor capricious; and that any claims concerning events that occurred while the student was enrolled in respondent’s district are untimely.  Finally, in its memorandum of law, respondent objects to the contents of petitioner’s reply.

First, I must address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to respondent’s claim that petitioner failed to join a necessary party, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Respondent claims that petitioner failed to join NYSPHSAA and/or Section XI.  NYSPHSAA – which is comprised of several sections – is a voluntary association of public and non-public secondary schools that serves as a governing body for interscholastic athletics.  Accordingly, NYSPHSAA’s member schools are subject to NYSPHSAA’s Bylaws and Eligibility Standards, in addition to the provisions of section 135.4 of the Commissioner’s regulations governing interscholastic athletic competition.  Respondent asserts that NYSPHSAA and Section XI are necessary parties in this appeal because petitioner seeks an exception to the athletic eligibility rule included within NYSPHSAA’s bylaws.  Although respondent relied on NYSPHSAA’s eligibility rule to deny petitioner’s request in its March 9, 2018 letter, such reliance was erroneous insofar as section 135.4(c)(7)(ii)(b)(2) of the Commissioner’s regulations prescribes the eligibility requirements for interscholastic athletic competition, and such requirements are applicable to all public schools regardless of their membership in NYSPHSAA.  Furthermore, petitioner appeals directly from respondent’s denial of her request, and there is no evidence in the record that either NYSPHSAA or Section XI reviewed or rendered a determination in this matter.  Therefore, neither NYSPHSAA nor Section XI is a necessary party to this appeal, and I decline to dismiss for failure to join.

Respondent also asserts that petitioner’s appeal is untimely to the extent that her claims concern events that occurred while the student was enrolled in respondent’s district.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, petitioner appeals from respondent’s denial of her request to permit the student to participate as a member of the public high school’s interscholastic basketball team.  The record reveals that respondent rendered this determination by letter dated March 8, 2018. Petitioner commenced her appeal on March 27, 2018 – well within 30 days.  Accordingly, the appeal is timely.  Although the petition references underlying events that occurred more than 30 days before the commencement of this appeal, petitioner does not make any claims or requests for relief regarding such events.  Therefore, I decline to dismiss the appeal as untimely.

To the extent that petitioner alleges that the student should be entitled to participate as a member of the public high school’s interscholastic basketball team pursuant to Section 504, the appeal must be dismissed for lack of jurisdiction.  Enforcement of Section 504 is within the exclusive jurisdiction of the federal courts, the United States Department of Justice, and the United States Department of Education, and it may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).

To the extent that petitioner requests that respondent permit the student to participate in interscholastic athletics during the 2018-2019 school year, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner did not seek interim relief in this matter, and the 2018-2019 school year has ended.  Consequently, the appeal is moot to the extent that petitioner seeks relief regarding the 2018-2019 school year (Appeal of P.D. and C.C., 56 Ed Dept Rep, Decision No. 16,999).

To the extent that petitioner requests that respondent permit the student to participate in interscholastic athletics during subsequent school years, such relief would be impermissibly advisory under the circumstances.  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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

Petitioner makes a blanket request that the student be permitted to participate in interscholastic athletics within the district.  To the extent that petitioner seeks such relief for the 2019-2020 school year and beyond, petitioner brought her claims prematurely in the instant appeal from respondent’s March 2018 determination.  Although respondent determined that the student was ineligible to participate in interscholastic athletics during the 2018-2019 school year on the ground that she was enrolled in the nonpublic school at that time, the student’s enrollment status could have changed, and there is no evidence in the record to establish that the student is currently enrolled in the nonpublic school or that she will be enrolled in the nonpublic school in the future.  In the absence of any evidence regarding where the student is enrolled in school, an adjudication of her right to participate in interscholastic athletics within respondent’s district during the 2019-2020 school year or any future school years would be inherently speculative and, therefore, impermissibly advisory (see Appeal of Sidmore, 58 Ed Dept Rep, Decision No. 17,463; Appeal of Allen, 56 id., Decision No. 16,970; Appeal of Benfante, 53 id., Decision No. 16,524; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The appeal therefore must be dismissed in its entirety.

     Nevertheless, for the benefit of the parties, I note that respondent properly denied petitioner’s request that the student be permitted to participate as a member of the public high school’s interscholastic basketball team while enrolled in the nonpublic school.  Section 135.4(c)(7)(ii)(b)(2) of the Commissioner’s regulations provides as follows:

A pupil shall be eligible for interschool competition in a sport during a semester, provided that he [or she] is a bona fide student, enrolled during the first 15 school days of such semester, is registered in the equivalent of three regular courses, is meeting the physical education requirement, and has been in regular attendance 80 percent of the school time, bona fide absence caused by personal illness excepted.

Section 135.1(g) of the Commissioner’s regulations defines a bona fide student as “a regularly enrolled student who is taking sufficient subjects to make an aggregate amount of three courses and who satisfies the physical education requirement.”

The record indicates that petitioner withdrew the student from respondent’s district and enrolled the student in the nonpublic school in September 2017.  Because the student was no longer enrolled in respondent’s district, she was not a bona fide student of the district under sections 135.1(g) and 135.4(c)(7)(ii)(b)(2).  Accordingly, the student did not meet the basic eligibility requirements to participate as a member of the public high school’s interscholastic basketball team.

This determination is supported by the holding in Bradstreet v. Sobol (225 AD2d 175).  In that case, the plaintiff sought a declaration that her home-schooled child was eligible to participate in interscholastic athletics in her local school district.  The court held that “[the] plaintiff’s daughter [was] not eligible to participate in the local [public] school's interscholastic sports program,” because “[t]he [Commissioner’s] regulations clearly and unambiguously require enrollment in the school district as a condition for participation in that school's interscholastic sports program.”  The court further observed that “[i]t [was] equally clear that [the] plaintiff’s daughter, who receive[d] her education through home schooling and not in a public school, [was] not ‘regularly enrolled’ in a public school.”  Respondent’s determination in this matter is thus consistent with sections 135.1(g) and 135.4(c)(7)(ii)(b)(2) of the Commissioner’s regulations as well as existing case law.

Petitioner’s reliance on Appeal of Dellefave and Duffy (31 Ed Dept Rep 413, Decision No. 12,684) is misplaced.  In that appeal, the interscholastic wrestling team for the public high school that the petitioners’ children attended was merged with the interscholastic wrestling team for another public high school within the district, as there were “not have enough students to constitute a wrestling team” at the school that the petitioners’ children attended.  Accordingly, the petitioners’ children competed as members of the interscholastic wrestling team for the other public school within the same district.

After the wrestling team at the school that the petitioners’ children attended was “gradually redeveloped,” the petitioners in Appeal of Dellefave and Duffy sought a determination from NYSPHSAA that their children could continue to compete as members of the other public school’s team.  NYSPHSAA denied the request, and the petitioners appealed to the Commissioner.  Citing 8 NYCRR §135.4(c)(7)(ii)(b)(2), the Commissioner upheld NYSPHSAA’s determination.  The Commissioner concluded that, “once the factual basis for the exception granted to the students no longer existed, it would be arbitrary for [NYSPHSAA] to continue to permit the students to compete for a school in which they were not then enrolled.”

The Commissioner’s decision in Appeal of Dellefave and Duffy thus affirms that students must compete in interscholastic athletics on behalf of the school in which they are enrolled.  Although the petitioners’ children had previously been permitted to compete in interscholastic athletics for a different public school than the one that they attended, this prior determination affording the petitioners’ children an “exception” to the requirements of section 135.4(c)(7)(ii)(b)(2) was not the subject of the petitioners’ appeal, and the Commissioner did not render any decision on the propriety of such prior determination beyond noting that it was “understandable” under the circumstances.

In any event, the circumstances that predicated the “exception” in Appeal of Dellefave and Duffy are distinguishable from the facts herein.  Here, the student attended a nonpublic school, and there is nothing in Appeal of Dellefave and Duffy that suggests that respondent’s decision to deny petitioner’s request to permit the student to compete in interscholastic athletics on behalf of respondent’s district while attending a nonpublic school was arbitrary or capricious.

I am sympathetic to petitioner’s explanation of why she chose to enroll the student in the nonpublic school and how important playing on the public high school’s basketball team was to the student.  On this record, however, I cannot find that respondent’s determination to deny petitioner’s request was arbitrary or capricious.  Petitioner’s desire to have the student participate as a member of the public high school’s interscholastic basketball team while attending the nonpublic school is foreclosed by the plain language of 8 NYCRR §135.4(c)(7)(ii)(b)(2).  Accordingly, the appeal would be dismissed on the merits even if it were not dismissed on procedural grounds as discussed above.

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

THE APPEAL IS DISMISSED.

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