Appeal of C.S., on behalf of her child, from action of the New York City Department of Education regarding participation in interscholastic athletics.

Decision No. 18,056

(November 8, 2021)

Corporation Counsel of the City of New York, attorney for respondent, Georgia M. Pestana, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a decision of the New York City Department of Education (“respondent”) that denied her request to allow her child (“the student”) to participate in interscholastic football during the 2021-2022 school year.  The appeal must be dismissed.

The student, who was born with auditory deficiencies, repeated first grade.  Consequently, the student turned 19 prior to July 1 of his senior year of high school (the 2021-2022 school year).  Petitioner sought a waiver from the Public School Athletic League (“PSAL”), the football league in which his school’s football team participated, to allow the student to participate in football during the 2021-2022 school year.  By email dated July 6, 2021, the PSAL determined that the student was ineligible to participate in football during his senior year because of his age and the fact that football is a contact sport.  The PSAL further informed petitioner that she could apply for a waiver for a noncontact sport pursuant to the Commissioner’s regulations or that the student could serve as a manager for the football team.  This appeal ensued.

Petitioner contends that the student should be allowed to participate in interscholastic football despite having attained the age of 19 prior to the 2021-2022 school year due to extenuating personal circumstances.

Respondent argues that petitioner was ineligible to participate in interscholastic sports during the 2021-2022 school year pursuant to section 135.4 (c) (7) (ii) (b) (1) of the Commissioner’s regulations.  Respondent further argues that the regulatory waiver process available to students over the age of 19 does not apply to football because it is a contact sport.

The appeal must be dismissed.  Section 135.4 (c) (7) (ii) (b) (1) of the Commissioner’s regulations provides, in relevant part, that “[a] pupil shall be eligible for interschool competition in grades 9, 10, 11 and 12 until the last day of the school year in which he or she attains the age of 19.”  Petitioner admits that the student attained the age of 19 during the 2020-2021 school year.  Therefore, respondent correctly determined that petitioner was ineligible to compete in interscholastic athletics during the 2021-2022 school year (see Appeal of Cham, 55 Ed Dept Rep, Decision No. 16,873). 

Furthermore, respondent correctly determined that a waiver from the age requirements is not available in a contact sport, such as football.  Waiver from the age requirements for interscholastic sports is governed by 8 NYCRR 135.4 (c) (7) (ii) (d), which states, in relevant part, that “[a] student with a disability, as defined in section 4401 of the Education Law, who has not yet graduated from high school ... may be eligible to participate in a senior high school noncontact athletic competition.”  Football is a contact sport; this is demonstrated by contrasting it with the illustrative examples of noncontact sports in section 135.4:  “swimming and diving, golf, track and field, cross country, rifle, bowling, gymnastics, skiing and archery” (8 NYCRR 135.4 [c] [7] [ii] [d]).  Therefore, the waiver procedure for noncontact sports was inapplicable to the student’s circumstances.

In light of the foregoing, PSAL complied with the Commissioner’s regulations and rationally declined to issue the student a waiver to play a contact sport (see Appeal of a Student with a Disability, 36 Ed Dept Rep, Decision No. 13,647).  While I am sympathetic to the student’s desire to participate in the 2021-2022 football season, there is no provision in the Commissioner’s regulations that would permit a waiver of the maximum age limitation for football.

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

THE APPEAL IS DISMISSED.

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