Opinion
965-15
06-08-2015
In the Matter of the Application of The Albany Academies, LaSalle Institute, Emma Willard School, The Doane Stuart School, Academy of the Holy Names, Lima Christian School, McQuaid Jesuit, Our Lady of Mercy School for Young Women and Syracuse Academy of Science Charter School, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. New York State Public High School Athletic Association, Respondent.
Featherstonhaugh, Wiley & Clyne, LLP Attorneys for Petitioners (Jonathan McCardle, Esq., of Counsel) 99 Pine Street Albany, New York 12207 Renee L. James, Esq. Attorney for Respondent 6216 Turnwood Drive Jamesville, New York 13078
Featherstonhaugh, Wiley & Clyne, LLP Attorneys for Petitioners (Jonathan McCardle, Esq., of Counsel) 99 Pine Street Albany, New York 12207 Renee L. James, Esq. Attorney for Respondent 6216 Turnwood Drive Jamesville, New York 13078 Michael H. Melkonian, J.
In this CPLR Article 78 proceeding, petitioners, who are charter and private high schools in the State of New York, move for an order vacating, voiding and annulling the Bylaw and Eligibility Standard Rule 29 (the "Transfer Rule") and/or recent revisions thereto adopted by respondent the New York State Public High School Athletic Association ("respondent") on the ground that they are arbitrary and capricious. Petitioners also move for a writ of prohibition enjoining respondents from implementing three revisions to the Transfer Rule adopted by respondent's Executive Committee on October 23, 2014. Respondent opposes.
Respondent is the management, supervisory, and enforcement organization for interscholastic athletics among public, private and charter schools in the State of New York. It is organized geographically into eleven sections. Its member schools include petitioners. In exchange for their membership, petitioners have agreed to conform to the rules, regulations and policies of respondent. One of the bylaws adopted by respondent is known as the "Transfer Rule." The Transfer Rule provides that "[a] student who transfers without a corresponding change in residence of his/her parents * * * is ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one (1) year if as a 9—12 student participated in that sport during the one (1) year period immediately preceding his/her transfer."
There are six enumerated exceptions to the Transfer Rule, allowing respondent to waive the otherwise mandatory period of ineligibility under certain circumstances. Those exceptions are: 1. The student reaches the age of majority and established residency in a district and can substantiate that they are independent and self-supporting; 2. If a private or parochial school ceases to operate a student may transfer to another private or parochial school of his/her choice. Otherwise, a student must enroll in the public school district of his/her parents' residency; 3. A student who is a ward of the court or state and is placed in a district by court order. Guardianship does not fulfill this requirement; 4. A student from divorced or separated parents who moves into a new school district with one of the aforementioned parents. Such a transfer is allowed once every six months; 5. A student who is declared homeless by the superintendent pursuant to Commissioner's Regulation 100.2; and 6. A student of a military employee who is transferred to an active military base may enroll in the non-public school closest to their residence and maintain eligibility if the student enrolls in a non- public school immediately following the change in residence.
An examination of the record shows that, however, that each school shall have the opportunity to petition the "section" involved to approve a transfer without penalty based on an "undue hardship" for the student. In this regard, respondent has drafted and adopted a list of circumstances that warrant a waiver of the Transfer Rule (the "guidelines") and has set forth criteria to be used in evaluating such waivers . The guidelines specify three general categories of undue hardship: financial, health and safety, and educational.
In October 2014, respondent's Executive Committee voted to eliminate the "educational" undue hardship waiver from the guidelines. As a result, beginning with the 2015-2016 school year, educational undue hardship waivers will no longer available to students transferring schools without a corresponding change in residency. The Executive Committee also voted to add language to the fourth enumerated exception to the Transfer Rule, requiring that parents be "legally" separated in order to qualify for the exception. In addition, the Executive Committee voted to add language to the Transfer Rule itself requiring parents of transferring students to "demonstrate an intent to remain indefinitely" in their new home in order to qualify as changing their residence.
The "educational" waiver had allowed students to change schools without sitting out a year if the school they wanted to transfer to offered three academic courses that their home school did not.
The actions, internal affairs, proceedings, rules and orders of a high school athletic association are subject to judicial scrutiny only to the extent that there is evidence that the acts complained of were arbitrary, capricious or an abuse of discretion, violative of the applicable constitutions, by-laws, rules or regulations (Section VI of the New York State Public High School Athletic Assn., Inc. v New York State Public High School Athletic Assn., Inc., 134 AD2d 819, 820; Matter of Caso v New York State Public High School Athletic Assn., 78 AD2d 41; see, also, Tedeschi v Wagner Coll., 49 NY2d 652; Matter of Olsson v Board of Higher Educ., 49 NY2d 408; Eastern New York Youth Soccer Assn. v New York State Public High School Athletic Assn., Inc., 67 NY2d 665; Robin v New York State Public High School Athletic Assn., 71 AD2d 1009; Pratt v New York State Public High School Athletic Assn., 133 Misc 2d 679). The test is whether there is a rational basis for the respondent's actions. Actions are not arbitrary and capricious if they have a sound basis in reason and a foundation of fact (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Colton v Berman, 21 NY2d 322; Matter of Caso v New York State Public High School Athletic Assn., 78 AD2d 41).
The Court rejects petitioners' contention that the Transfer Rule itself is irrational, arbitrary or capricious (see, Brooks v Section V of New York State Public High School Athletic Assn., Inc., 300 AD2d 1094). Respondent has rationally concluded that barring certain high school students who transfer from one school to another after initial entry into the ninth grade will substantially discourage recruiting, pirating and jumping of high school athletes from one school to another and will prevent interscholastic athletic recruiting at the secondary school level. Indeed, respondent has a rational basis for enacting rules that promote sportsmanship and fair play while avoiding the dangers of recruitment. Courts have upheld the Transfer Rules of several states that have state high school athletic associations and rules similar to, if not exactly like, the Transfer Rule at issue (see, e.g., Ulliman v Ohio High Sch. Athletic Assn., 184 Ohio App.3d 52; Morgan v Oklahoma Secondary Sch. Activities Assn., 2009 OK 21; Revesz v Pennsylvania Interscholastic Ath. Assn., Inc., 798 A2d 830; State ex rel. Missouri State High Sch. Activities Assn. v Romines, 37 SW3d 421; Wajnowski v The Connecticut Assn. of Schools et al., 1999 Conn. Super. LEXIS 3448; Indiana High Sch. Athletic Assn. v Carlberg, 694 NE2d 222; Robbins v Indiana High Sch. Athletic Assn., 941 FSupp 786; Simkins v The South Dakota High Sch. Activities Assn., 434 NW2d 367; Griffin High Sch. v Illinois Sch. Assn., 822 F2d 671; Steffes v California Interscholastic Federation, 176 Cal. App. 3d 739; Berschback v Grosse Pointe Public Sch. Dist., 154 Mich. App. 102; In re Missouri State High School Activities Assn., 682 F2d 147; Whipple, 52 Ore. App. 419; Walsh v Louisiana High Sch. Athletic Assn., 616 F2d 152; Kentucky High Sch. Athletic Assn. v Hopkins County Bd. of Educ., 552 SW2d 685; Parker ex rel. Parker v Arizona Interscholastic Assn., Inc., 204 Ariz. 42; Bruce v S. Carolina High Sch. League, 258 SC 546). These Courts found, among other things, that parents and children do not have a fundamental right to participate in interscholastic athletics (see, e. g., Simkins v The South Dakota High Sch. Activities Assn., 434 NW2d 367 ["a student's interest in interscholastic athletic participation was a mere expectancy, rather than a protected entitlement"]; Kentucky High Sch. Athletic Assn. v Hopkins County Bd. of Educ., 552 SW2d 685 ["[p]articipation in interscholastic athletics is not a constitutionally protected civil right. Furthermore, such activity does not become constitutionally protected merely because the student athlete loses the opportunity to play in tournaments or to compete for athletic scholarships at the college level"]). Accordingly, the Court notes that this decision is in no way unprecedented.
The Court also rejects petitioners' argument that requiring parents be "legally" separated in order to qualify for the fourth enumerated exception to the Transfer Rule is violative of New York State Education Law § 313-a. Education Law § 313-a applies to admission into education institutions and is simply inapplicable here. There is no requirement that potential students list the marital status of their parents to gain admission to the school. Nor is this modification to the fourth enumerated exception irrational. Respondent has rationally determined that this modification is necessary in order to prevent parents from strategically circumventing the Transfer Rule by "physically" separating for a period of time with no intention of divorcing, a tactic which would enable their child to qualify under the fourth exception and immediately compete in the next season of their sport. For the same reason, the Court also rejects petitioners' argument that respondent acted in an arbitrary or capricious fashion by enacting a requirement that parents demonstrate an "intent to remain indefinitely" in their new home in order for the move to qualify as a "change in residence" under the Transfer Rule. This modification is also a rational response to parents' efforts to intentionally and strategically circumvent the Transfer Rule. The Court also rejects petitioners' argument that the newly enacted residency language is unconstitutionally vague (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385).
This statute prescribes that "[n]o application for admission to any educational institution in the state of New York shall contain any questions requiring the involuntary disclosure of the marital status of the parents of those applying for admission."
The determination by Supreme Court, Fifth Judicial District (Siegel, J.) is considered by this Court to be persuasive in this regard (see, Exhibit "A" attached to the Affirmation in Opposition).
Finally, the Court rejects petitioners' argument that respondent's determination to eliminate the educational waiver from the guidelines is arbitrary, capricious or irrational. Respondent has determined that the educational undue hardship waiver has been misused to circumvent the Transfer Rule and has determined that its elimination from the guidelines was its best means of detering athletically motivated transfers and recruiting with its limited resources. The Court cannot say that this was irrational.
The petitioners' remaining contentions have been considered and are either without merit or not necessary to resolve in light of the foregoing.
Accordingly, based on the foregoing the Court concludes that the remedy of prohibition does not lie in the instant matter and that the Article 78 petition must be dismissed.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorney for respondent. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry. Memorandum constitutes the Decision and Order of the Court.
SO ORDERED.
ENTER. Dated: Troy, New York
June 8, 2015
___________________________________ MICHAEL H. MELKONIAN Acting Supreme Court Justice Papers Considered:
Notice of Petition dated February 23, 2015;
Petition dated February 23, 2015;
Affirmation of Jonathan S. McCardle, Esq., dated February 23, 2015, with exhibits annexed;
Affidavit of Paul Gallucci dated February 23, 2015;
Verified Answer dated March 12, 2015;
Affidavit of Robert Zayas dated March 9, 2015, with exhibits annexed;
Affirmation of Renee L. James, Esq., dated March 10, 2015, with exhibit annexed;
Memorandum of Law dated March 13, 2015, with exhibits annexed;
Affidavit of Michael Kelly dated March 18, 2015, with exhibits annexed;
Affirmation of Jonathan S. McCardle, Esq., dated March 19, 2015, with exhibits annexed;
Memorandum of Law dated March 19, 2015, with exhibit annexed; and
Affirmation of Renee L. James, Esq., dated March 23, 2015.