Appeal of DAVID B. and DJENANE MURRAY, on behalf of their daughter CHANTAL, from action of the Board of Education of the Valley Stream Central High School District, Superintendent Ronald D. Valenti and Principal Kathleen Cairo regarding participation in interscholastic athletics. 

Jason G. Parpas, Esq., attorney for petitioner

 Guercio & Guercio, attorneys for respondents, John P. Sheahan, Esq., of counsel 

(March 4, 2004)

  MILLS, Commissioner.--Petitioners challenge the refusal of the Board of Education of the Valley Stream Central High School District, Superintendent Ronald D. Valenti and Principal Kathleen Cairo ("respondents") to allow their daughter, Chantal, to participate on the Valley Stream Central High School District ("the district") Memorial Junior High School ("Memorial") boys" baseball team.  The appeal must be dismissed.

In March 2003, Chantal, then a seventh grade student at Memorial, applied to participate on Memorial"s boys" baseball team. The team has a no-cut policy. Accordingly, boys may participate if they receive parental permission and pass a physical examination. Girls, however, must first be assessed in a shuttle run, a standing long jump, a flexed-arm hang, stomach curls and a fifty-yard dash.

Memorial"s athletic director discontinued Chantal"s assessment after she performed below the district"s standard on the flexed-arm hang.  The athletic director subsequently reassessed Chantal to comply with the district"s policy that participants be assessed in each area.  This time Chantal performed above the standard on the shuttle run and standing long jump, slightly below the standard on the stomach curls and fifty-yard dash, and substantially below the flexed-arm hang standard.  Based in part on this assessment, the district"s superintendent and athletic review panel determined that Chantal could not participate on the boys" baseball team. 

The district subsequently determined that the review panel did not comply with the Commissioner"s regulations because it did not consist of the school physician, a physical education teacher designated by the principal of the student"s school, and if requested by the student"s parents, a physician selected by the parents.  The district subsequently offered Chantal the opportunity to retake the assessment and have a properly constituted review panel determine her eligibility. Petitioners declined this offer. This appeal ensued.

Petitioners contend that respondents" actions violate the United States and New York State Constitutions, violate the Commissioner"s regulations, and are arbitrary and capricious.  Petitioners seek an order requiring the district to permit Chantal to participate on the boys" baseball team without further athletic testing.

Respondents contend that an appeal to the Commissioner is not the proper forum to decide novel questions of constitutional law, and that respondents did not violate Chantal"s constitutional rights. Respondents concede that they did not initially comply with the Commissioner"s regulations because the review panel was not properly constituted. They assert, however, that they subsequently offered petitioners the opportunity to have Chantal evaluated by a properly comprised panel, and that petitioners" refusal renders this appeal either premature or moot.

Pursuant to "276.5 of the Commissioner"s regulations, I accept petitioners" belatedly submitted reply affidavits.  However, the purpose of a reply is to respond to affirmative defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress or add to the petition"s allegations (8 NYCRR ""275.3 and 275.14; Appeal of Hubbard, 43 Ed Dept Rep __, Decision No. 14,981). Accordingly, although I have accepted petitioners" reply affidavits, I have considered only those portions responding to new material or affirmative defenses in respondents" answer.

I decline to address petitioners" constitutional claims because an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation ( Appeal of American Quality Beverages , 42 Ed Dept Rep 144, Decision No. 14,804; Appeals of Malley, 31 id. 149, Decision No. 12,601, judgment granted dismissing petition to review, Malley v. Sobol, Sup. Ct., Albany Co., Special Term (Keegan, J.), June 22, 1992, n.o.r.). 

Petitioners" remaining claims must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794).  

Under "135.4(c)(7)(ii)(c)(3) of the Commissioner"s regulations, when a district offers separate competition to boys and girls in a specific sport, the district may, but is not required to, permit girls to play on the boys" team.  For these purposes, baseball and softball are considered a single sport (8 NYCRR "135.4[c][7][ii][c][1]).  When a district permits a girl to attempt to qualify for a boys" team, her fitness to participate must be determined by a properly comprised review panel (8 NYCRR "135.4[c][7][ii][c][2]).  The purpose of this regulation is to ensure the health and safety of the student.

Memorial offers a girls" softball team for which Chantal is eligible. Accordingly, respondents were not required to permit her to try out for the boys" baseball team. However, once respondents exercised this discretion, they were required to follow the procedure set forth in "135.4(c)(7)(ii)(c)(2) including the use of a properly constituted review panel. 

Respondents attempted to address petitioners" concerns about the alleged violations of the Commissioner"s regulations by providing petitioners the opportunity to have Chantal evaluated by a properly comprised panel.  Petitioners refused respondents" offer. Petitioners" failure to avail themselves of this remedy renders the appeal moot (See, Appeal of C.Q. and J.Q., 41 Ed Dept Rep 294, Decision No. 14,691).  

Respondents are reminded that future decisions regarding a female student"s participation on a male team must comply with the Commissioner"s regulations. This means that the review panel must be properly comprised and that the student must be given the opportunity to complete each component of the assessment before the panel reaches a determination.  A review panel"s discretion to determine the fitness of a student to participate must also be exercised in a rational, reasonable manner.

THE APPEAL IS DISMISSED.

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