Opinion
05-4983.
Decided September 28, 2005.
Carl F. Guy, Esq., Guy Law Office, Syracuse, NY, Attorney for Petitioners.
Eliot Spitzer, Esq., Attorney General of the State of New York, Roger B. Williams, Esq., Assistant Attorney General, Syracuse, NY, Attorney for Commissioner of the NYS Dept. Of Education.
Renee L. James, Esq., Jamesville, NY, Attorney for New York Public High School Athletic Assoc.
James P. Evans, Esq., Syracuse, NY, Evans Law Firm Attorneys for Bishop Ludden Jr./Sr. High School.
Petitioner Matthew Guy is seventeen years old and is entering his senior year of high school at defendant Bishop Ludden, Jr./Sr. High School (hereinafter "Bishop Ludden"). After commencing training in August to play football at Bishop Ludden, Bishop Ludden's Athletic Director was notified by defendant New York State Public High School Athletic Association, Inc. (hereinafter "Association") that Matthew Guy was not eligible to play in the 2005-2006 year. Matthew Guy has been prohibited from practice in games since notification by the Association to the Athletic Director pending this court's decision.
Matthew Guy alleges that he was home-schooled during his freshman year and due to that home schooling, he was precluded from participating in interscholastic sports. Because he was precluded from participating in interscholastic sports, he was forced to have used a year of eligibility by being home schooled. Petitioners contend that the provision cited as authority for the assessment by defendant Commissioner of the New York State Education Department (hereinafter "Commissioner") is arbitrary, capricious and unconstitutionally interpreted and administered by the Commissioner.
Petitioners seek an order permitting Matthew Guy to play his fourth consecutive year of interscholastic sports before reaching the age of nineteen. They seek a preliminary injunction against defendants, thereby allowing him to participate in all high school interscholastic sports, and a permanent injunction, allowing the same should a full trial on the merits of this issue occur.
Petitioners make four arguments in support of their position. First, they contend that the effect of the decision prohibiting Matthew Guy from participating in high school athletics interferes with a parent's constitutional right to educate her children as she chooses. Second, there is no express provision prohibiting such participation in the event a child is home schooled. Third, there are allowances for extensions explicitly provided for in the rules and regulations of the Commissioner reserved for circumstances "beyond a student's control". Fourth, petitioners were not notified of the adverse effect that home schooling would have on eligibility to participate in interscholastic high school sports.
The Commissioner's response:
The Commissioner maintains that petitioners have failed to state a cause of action against him; to obtain jurisdiction over him; and to name a necessary party, to wit: Section Three of the Public High School Athletic Association. In addition, the Commissioner requests that should this case continue, venue of this matter be removed to be heard within the County of Albany pursuant to CPLR 506(b)(2).
As to the argument that petitioners have failed to obtain jurisdiction over him, the Commissioner notes that the order to show cause and petition required that personal service or service by certified mail (return receipt requested) be on the Attorney General's office and defendants on or before September 14, 2005. CPLR 307(2) requires that for service to be complete, the document must be received by the state agency or officer sued in his official capacity (in addition to service upon the Attorney General's office as required by CPLR 307). These papers were not received by the Commissioner within the time provided by the order to show cause. The envelope addressed to the Commissioner reflects the certified mailing label and the printout from the United States Postal Services' web-site's "track and confirm" service indicates that the document was "accepted" by the Postal Service on September 13, 2005 at 4:04 p.m. and was delivered on September 15, 2005 at 10:18 a.m. at Albany New York. Because the papers were not served timely, the Commissioner contends that this court lacks personal jurisdiction to hear and/or determine the issues set forth in the petition regarding the Commissioner. Accordingly, the Commissioner requests that the petition be dismissed as to him.
In addition, the Commissioner maintains that the petition and amended petition fail to establish that Matthew Guy did not have available to him four years of athletic eligibility at a high school level of competition. The fact that he (or his family) chose to undertake a year or more of home schooling does nothing to undermine the fact that the opportunity was available to him to so participate if he enrolled in a public school.
Decisions of the Commissioner demonstrate that upon the appeal of such issues before him, the regulations have been applied equally to all circumstances involving the eligibility to participate in athletics at the high school level. The Commissioner made no assessment of petitioner's circumstances and was never asked to consider the same. No appeal was ever made to the Commissioner by or on behalf of the petitioner or his school.
Additionally, according to the Commissioner, to the extent that petitioner seeks to raise an equal protection constitutional challenge to the regulation, it must fail. Petitioner must establish that he was treated differently from others who are similarly situated and that the different treatment is not rationally related to a legitimate state interest. Participation in interscholastic sports is merely an expectation and no fundamental right is involved. Therefore, the Commissioner contends that petitioner's due process argument is meritless.
The Commissioner argues that the basis for the "duration of competition" rules set forth in the Commissioner's regulation is to prevent the practice of "red-shirting" — a way to get older, more physically developed players on one's team by having an extra year of eligibility to participate in interscholastic sports. As such, the Commissioner's regulation sets a legitimate goal for the safety and fairness of athletic competition.
Bishop Ludden's response:
The Athletic Director of Bishop Ludden has reviewed petitioner's transcripts which reflect that Matthew Guy attended the Kolbe Academy High School for the ninth grade in the 2001-2002 school year (the Athletic Director's understanding after speaking with petitioner and his parents is that Matthew Guy was home schooled in his freshman year under the supervision and/or with the assistance of the Kolbe Academy); Tyburn Academy in Auburn New York for the 10th grade in the 2002-2003 school year; Bishop Ludden where he repeated the 10th grade in 2003-2004; and Corcoran High School where he completed the 11th grade in 2004-2005. He has now re-enrolled in Bishop Ludden for his senior year.
After reviewing the regulations promulgated by the Commissioner, the Athletic Director determined that petitioner was not eligible to play football this year because he was in his fifth season since he began ninth grade having repeated the tenth grade in 2003-2004. The regulation indicates he is not eligible for an extension of eligibility because his fifth year of high school was not the result of his participation in a student exchange program or foreign study program and it was not the result of "illness, accident or similar circumstances beyond the control of the student". The Athletic Director then contacted the Executive Director of defendant New York State Public High School Athletic Association, Inc. (hereinafter "Association") who advised him after reviewing this information that petitioner was not eligible and did not qualify for an extension of eligibility under the circumstances.
The Athletic Director advised petitioner and his parents of the regulation and the information provided to him by the Executive Director. Neither petitioner nor his parents asked the Athletic Director to take any additional action to seek any further determination from the Association or Section Three regarding petitioner's eligibility.
The Association's response:
The Association is a not-for-profit corporation founded to set up a central authority for overseeing interscholastic athletics for boys and girls in grades seven through twelve and its member schools. The Association is responsible for adopting and administering rules to regulate interscholastic competition as established in the regulations of the Commissioner.
Petitioners do not dispute that Matthew Guy is in his fifth year of high school. Home schooling is not within the definition of the provision for an extension based on accident, illness or similar circumstance beyond the control of the student. A student's four years of eligibility begins upon entry into ninth grade whether ninth grade is in his home or in a school.
A request for a fifth year of eligibility sought by petitioners must be made to the Section Three Extended Eligibility Committee. No such application was made. No appeal has been brought before the Association regarding this matter. Therefore, there is no determination by the Association for the Court to review.
Judicial review of administrative action in proceedings such as this is severely limited to the question whether the challenged determination has a rational basis. A court may not substitute its judgment for that of an administrative agency regarding the better of two reasonable options.
Court's Decision:
This court agrees with the Commissioner that it lacks jurisdiction over the Commissioner due to petitioners' failure to timely serve him. See CPLR 307(2). Thus, this action is dismissed as against the Commissioner.
This court agrees with the Association that petitioners have failed to exhaust their administrative remedies. However, "the exhaustion rule is not inflexible and need not be followed when the action is challenged as either unconstitutional or outside of a grant of power, when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury". Caso v. New York Public High School Athletic Association, Inc., 78 AD2d 41, 45-46 (4th Dept. 1980) (citing Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57). The court declines to dismiss the action against the Association on this ground.
Nevertheless, this court finds that the petition must be dismissed against all respondents due to the fact that petitioners failed to name a necessary party, to wit: Section Three of the Public High School Athletic Association. In addition, on the merits, this court finds that Matthew Guy has already had four years of eligibility. The Association's regulations, in pertinent part, state as follows: "A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation."
In this case, Matthew Guy was first eligible in ninth grade. His ninth grade year was the first season. This year's entry into twelfth grade marks the fifth season due to his having repeated tenth grade. As such, Matthew Guy is not eligible to participate in school athletic competition and the petition must be denied.
The Commissioner's regulations further state that: "The eligibility for competition of a pupil who has not obtained the age of 19 years prior to July 1 may be extended . . . if sufficient evidence is presented . . . 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, . . . [or] the pupil's failure to enter competition during one or more seasons of a sport is caused by such pupil's enrollment in a national or international student exchange program were far in study program. . . ." Petitioners have failed to demonstrate that Matthew Guy qualified under either of these extenuating circumstances.
Petitioners have not produced any evidence that they are entitled to relief on this petition. They never appealed any decision to the Commissioner and have not demonstrated that they are entitled to an extension based on accident, illness or similar circumstance beyond the control of Matthew Guy. As such, the petition is denied and is hereby dismissed.
Respondents are to submit an order on notice.