Appeal of EILEEN A. McCRUDDEN, on behalf of her daughter ERIN, from action of the Board of Education of the Putnam Valley Central School District, Dr. Marc Space, Superintendent of Schools, Ed Hallisey, Principal of the Putnam Valley Middle School, Dr. David Fine, Assistant Principal of the Putnam Valley Middle School, Kelly Thompson, Varsity Girls’ Basketball Coach, Brian Hogaboom, Athletic Coordinator, and Frank Heitman, physical education teacher, regarding athletic eligibility.

Decision No. 15,996

(October 26, 2009)

Kuntz, Spagnuolo & Murphy, P.C., attorneys for respondents,   Leah L. Murphy, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the actions of the Board of Education of the Putnam Valley Central School District (“board”), Dr. Marc Space, Superintendent of Schools (“superintendent”), Ed Hallisey, Principal of the Putnam Valley Middle School (“Hallisey” or “principal”), Dr. David Fine, Assistant Principal of the Putnam Valley Middle School (“assistant principal”), Kelly Thompson, Varsity Girls’ Basketball Coach (“basketball coach”), Brian Hogaboom, Athletic Coordinator (“athletic coordinator”), and Frank Heitman, physical education teacher (“Heitman” or “Erin’s teacher”) (collectively referred to as “respondents”), in denying her daughter, Erin, the opportunity to try out for the girls’ junior varsity basketball team (“JV basketball”).  The appeal must be dismissed.

At the time this dispute arose, Erin was a twelve-year-old, seventh-grade student at the district’s middle school.  In November 2007, petitioner requested that Erin be allowed to try out for the JV basketball team.  In accordance with the board’s resolution implementing New York State’s selection/classification procedures, a pre-evaluation committee was convened to assess Erin’s physical, social and emotional capability of successfully competing at a higher level.  The committee consisted of (1) the principal; (2) the assistant principal; (3) the athletic coordinator; (4) the basketball coach; and (5) Erin’s teacher.  The committee considered, among other things, a physician’s report based on a physical examination that October.   The committee determined that Erin was not capable of successfully competing at a higher level and denied her request to try out for JV basketball. 

Petitioner appealed the committee’s determination to the superintendent, who upheld the committee’s decision. Petitioner then appealed to the board, which did not respond to petitioner.  This appeal ensued.  Petitioner’s request for interim relief was denied.  

Petitioner alleges that respondents violated New York State’s procedures for selection/classification for JV basketball.  Petitioner also claims that respondents arbitrarily applied these procedures by allowing other eighth grade students to try out for and compete on JV teams.  Additionally, petitioner alleges that respondents failed to convene a proper pre-evaluation committee, as required by New York State’s selection/classification program, by not inviting Erin’s pediatrician to the committee meeting.  Further, petitioner argues that the committee’s decision to deny Erin the opportunity to be selectively classified and compete at a higher level was arbitrary and capricious.  Petitioner seeks an order compelling respondents to apply New York State’s section/classification procedures consistently for all students. Petitioner also requests that Hallisey’s actions in forming the committee be sanctioned.

Respondents contend that the decision denying Erin’s request to try out for JV basketball was not arbitrary or capricious and was made in accordance with the board’s resolution and New York State’s selection/classification procedures. Respondents contend that the committee reasonably denied Erin’s request on the grounds that she did not meet the physiological, developmental screening requirements for selection/classification.  Respondents also contend that Heitman was not personally served and that the appeal is 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Since the basketball season has ended and try outs for JV basketball are over, this appeal is moot, except to the extent petitioner seeks an order compelling the board to apply its policy consistently in the future.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  In this case, petitioner has failed to prove that the board applied its policy inconsistently and has not demonstrated a clear legal right to such relief.  Accordingly, the appeal must be dismissed.

As to petitioner’s request that Hallisey’s actions be sanctioned, I lack the authority to sanction or reprimand board members or district staff (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898).  Accordingly, petitioner’s request for this relief must also be denied.

THE APPEAL IS DISMISSED.

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