Appeal of X.R.O., on behalf of J.O., from action of the Board of Education of the East Islip Union Free School District; John V. Dolan, as Superintendent of Schools; Ryan Pearsall; Christopher Padgur; and Sal Ciampi regarding athletic program placement.

Decision No. 17,904

(August 7, 2020)

Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner appeals from a determination of the Board of Education of the East Islip Union Free School District (“respondent board”); John V. Dolan, superintendent of schools (“respondent Dolan”); Ryan Pearsall, junior varsity baseball coach (“respondent Pearsall”); Christopher Padgur, assistant varsity baseball coach (“respondent Padgur”); and Sal Ciampi, varsity baseball coach (“respondent Ciampi”), not to invite her son, J.O. (“the student”), to participate on the East Islip High School’s junior varsity baseball team.  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s East Islip High School.  Between March 4 and March 12, 2019, the student tried out for the high school junior varsity (“JV”) baseball team.  On March 13, 2019, the student learned that respondent Pearsall had not selected him for the team.  Petitioner separately appealed respondent Pearsall’s determination to respondent Dolan and the board president.  Both declined to overturn respondent Pearsall’s decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 24, 2019.

Petitioner contends that respondents improperly denied the student a place on the JV baseball team.  Petitioner makes numerous requests for relief, including a determination that respondents’ method for selecting JV baseball players is invalid, arbitrary and capricious, and a determination that its method for informing students that they were not accepted for the JV baseball team – by publicly posting a team roster in the high school – “is cruel, arbitrary and capricious.”  Petitioner also requests that respondents devise a new rubric or assessment method that “is valid, reliable and significantly more objective” for choosing JV baseball players and a new way of informing students of tryout results that is “compassionate and comprehensive.”  Additionally, petitioner seeks numerous determinations relating to respondents’ alleged negligence in responding to certain actions she took prior to the commencement of this appeal – namely, petitioner’s request for documents relating to the JV baseball team selection process; her complaint that respondents engaged in “cronyism and favoritism” in the selection of the JV baseball team; and her complaint that respondent Ciampi made “racist and inappropriate comments on social media.”  Finally, petitioner requests that respondents issue a “written and personal apology” to the student “for the emotional pain, suffering, and humiliation” caused by their actions.

Respondents contend that the petition should be dismissed for failure to state a claim upon which relief can be granted, as moot, and for lack of jurisdiction.   Respondents deny that they acted improperly in selecting members of the spring 2019 JV baseball team. 

First, I must address several procedural matters. Respondents contend that petitioner’s reply includes additional information and exhibits that should have been submitted with the petition.  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.

To the extent petitioner complains that respondent Pearsall improperly chose not to select the student for the JV baseball team for the spring 2019 season, 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).  The record reflects that the 2019 baseball season concluded in May 2019.  Therefore, petitioner’s claims concerning this season are moot. 

Additionally, to the extent petitioner suggests that respondents will engage in improper conduct in the future, such claims must be dismissed as premature.  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).  However, to the extent that petitioner complains of policies that respondents admit they follow each year, I decline to dismiss these claims as moot insofar as they would affect the student in subsequent years of high school athletics (Appeal of McCrudden, 49 Ed Dept Rep 193, Decision No. 15,996).

To the extent that petitioner requests that I impose discipline upon respondent Ciampi, I have previously held that a board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (see e.g. Appeal of M.B., 56 Ed Dept Rep, Decision No. 17,044; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773). Although Education Law §310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including matters relating to the discipline of school personnel, the Commissioner lacks jurisdiction to impose discipline on district employees (see e.g. Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Matter of Richardson, 24 id. 104, Decision No. 11,333; Raymond, et al. v. Ambach, Supreme Court, Albany County, Special Term; Cholakis, J.; judgment granted dismissing petition to review; May 23, 1985; n.o.r.).  Such employee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts (see Education Law §§1709(16) and (33), 3020, 3020-a; Civil Service Law §75).  Therefore, I have no jurisdiction to impose – or to compel respondent board to impose – discipline upon respondent Ciampi.

Similarly, to the extent petitioner requests that I “rebuke” respondents for “admonishing ... petitioner after she complained” of respondent Ciampi’s alleged comments, it is well established that I do not have the authority to censure or reprimand a board of education, its members, or district staff (Appeal of Constantino Jr., 59 Ed Dept Rep, Decision No. 17,764; Appeal of Formato, 55 id., Decision No. 16,855; Appeal of Oglesby, 51 id., Decision No. 16,311).

Petitioner’s requests for certain documents, which are subject to the Freedom of Information Law (“FOIL”), must also be dismissed for lack of jurisdiction.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.  Furthermore, an appeal to the Commissioner under Education Law §310 is appellate in nature and does not provide for discovery (Appeal of L.S. 59 Ed Dept Rep, Decision No. 17,784; Appeal of W.T.B. and M.B., 44 id. 152, Decision No. 15,129).  Thus, petitioner’s claims seeking a determination that respondents “provide ... petitioner with the documents she requested” and “provide evidence of how they hold coaches accountable for their roster selection” must be dismissed. 

Additionally, to the extent petitioner seeks an order compelling respondents to apologize to the student, the Commissioner lacks the authority to order the board of education, a school district employee or an individual engaged by the school district to issue an apology (see Appeal of Constantino, Jr., 59 Ed Dept Rep, Decision No. 17,764; Appeal of L.D., 55 id., Decision No. 16,864; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773).

Turning to the merits, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has failed to meet her burden of proving that respondents’ method for selecting its 2019 JV baseball team was arbitrary or capricious.  Education Law §1709 vests in local boards of education the functions of governance and policymaking.  Thus, the criteria that coaches use to evaluate athlete performance is a decision for a local board of education that cannot be disturbed unless it is arbitrary or capricious (Appeal of Looman, 39 Ed Dept Rep 370, Decision No. 14,262; see generally Appeal of D.S., 59 Ed Dept Rep, Decision No. 17,770; Appeal of T.A. and J.A., 54 id., Decision No. 16,781; Appeal of Gordinier, 52 id., Decision No. 16,433).  As long as such local policy is not wholly without a rational basis, the Commissioner will not impose a different policy (Appeal of Gilewicz, 47 Ed Dept Rep 493, Decision No. 15,764; Appeal of Lynch, 42 id. 398, Decision No. 14,892).

Petitioner argues that respondents’ method for selecting the JV baseball team employs “a rubric with no clearly defined parameters,” is based on “questionable criteria,” and fails to assess “any measurable skill such as foot speed [or] throwing speed.”  She argues that “an effective rubric” should include clearly defined criteria and an explanation of what constitutes each score within the rubric.  She also argues that these criteria should be weighted in accordance with their “importance” and that “room for comments should be included.”  Additionally, she argues that respondents’ method for informing players that they were not selected for an athletic team, “by omitting their names on a team roster posted in a public location in the high school,” is arbitrary and capricious. 

Respondents assert that they employ a rubric for assessing athletes during sports tryouts that is derived from district policy.  Specifically, respondents submit with their answer a copy of a policy entitled “tryouts and selection of teams,” which provides, in relevant part, that “[w]hen athletes are evaluated during a tryout period, coaches are asked to utilize as many ‘objective factors’ as possible.  These factors differ from sport to sport. Some subjective elements come into play like effort and attitude.”  Respondents state that respondent Pearsall, in furtherance of this policy, created a “valid and reliable rubric” for selecting players based on their performance during the tryouts.  In an affidavit, respondent Pearsall indicates that, during the 2019 JV baseball tryouts, he evaluated “the players’ abilities in hitting, pitching, fielding, running and versatility,” and “used a 1-5 ranking in determining the skill set of the players for the different categories.” 

The record reflects that the student was one of 27 students who tried out for the 2019 JV baseball team.[1]  Respondent Pearsall indicates in his affidavit that, “[w]hile the student was talented, he was not among the top players based on the scoring in the rubric.”  Respondent Pearsall further asserts that selecting members for the team is not performed by a rote application of the rubric, as “the score does not always tell the full story.”  For example, respondent Pearsall explains that

a fielder can have better range, which would allow him to make plays that another student might not make.  A hitter might make hard contact but hit the ball directly at someone, which would be an out, compared to another student who might hit the ball off the edge of the bat and get a single because no one was there.

With specific respect to the rubric, the athletic director avers in an affidavit that he spoke with respondent Pearsall about the rubric and was “comfortable in how [respondent Pearsall] made the determination to select the players for his team.”  The athletic director further states that he believed respondent Pearsall “did not discriminate” against the student in the team’s selection.  Additionally, respondent Dolan avers in an affidavit that he, too, spoke with respondent Pearsall and was “confident that there was no impropriety in the selection of the [JV] baseball team” and that he did not believe there had been any “favoritism” or “cronyism” involved in the team’s selection.  Respondent Dolan further indicates that respondent Pearsall’s rubric “was created in accordance with the ... [d]istrict’s tryout policy.”

The only evidence petitioner submits in support of her claims of unfairness or impropriety are two printouts of presentations by other school districts in New York State concerning athletic tryouts.  These presentations are titled, respectively, “Player Evaluation:  The Importance of a Comprehensive System” and “Athletic Department Tryout Procedures.”  While these presentations explain how other school districts have addressed the difficult situation of determining who should be selected for an athletic team, they do not, in and of themselves, establish that respondents’ procedures are arbitrary or capricious (Appeal of Looman, 39 Ed Dept Rep 370, Decision No. 14,262; see Appeal of D.S., 59 Ed Dept Rep, Decision No. 17,770; Appeal of T.A. and J.A., 54 id., Decision No. 16,781).  The record reflects that respondents employ an objective rubric, which is supplemented with subjective impressions gleaned from the tryouts.  I cannot conclude that this method is improper or that petitioner has proven that respondents’ use of the method in selecting its 2019 JV baseball team was arbitrary or capricious.

Similarly, petitioner has failed to meet her burden of proving that respondents’ method for informing prospective student athletes of the results of athletic tryouts is arbitrary or capricious.  Petitioner argues that the method used to inform students is “cruel” and “an abuse of respondent[s’] discretion in its continued use and support.”  She adds that “students are not told why they were not selected and how they can improve.”  Other than these conclusory statements, however, petitioner has not established how respondents’ actions were arbitrary or capricious.  As a practical matter, respondents need some mechanism to inform athletes of the tryout results, and, on this record, I cannot find that respondents’ chosen method was arbitrary or capricious.  The fact that some students may be displeased with the results is insufficient to render the means of notification improper.

Additionally, while respondents may not offer suggestions for students’ improvement as a matter of course, the record reflects that, upon request, district officials met with petitioner to explain their decision.  The record reflects that respondent Dolan and the athletic director both met with petitioner and responded to her questions by email; additionally, respondent Dolan avers that he met with the student and encouraged the student to try out for the team next year.  Therefore, the record does not support a finding that respondents were or are unwilling to offer additional information or assistance to parents concerning students who were not selected for a sports team.

Finally, to the extent petitioner suggests that the student was not selected for the team due to alleged “cronyism” or “favoritism,” she has produced no proof of this claim.  To the extent petitioner suggests that social media postings by respondent Ciampi constitute such proof, she has not explained any connection between these postings and respondent Pearsall’s choice not to select the student for the 2019 JV baseball team.  Thus, petitioner has not met her burden of demonstrating a clear legal right to the relief requested or establishing the facts upon which she seeks relief (8 NYCRR §275.10; Appeal of Towler, 44 Ed Dept Rep, Decision No. 15, 220; Appeal of Polmanteer, et al., 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Antoniadis, 44 id. 84, Decision No. 15,106).

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

THE APPEAL IS DISMISSED.

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