99-031

       Petitioner, the Board of Education of the City School District of the City of White Plains, appeals from an impartial hearing officer's decision which held that respondents' daughter was entitled to participate in petitioner's interscholastic athletics program, notwithstanding the fact that respondents had unilaterally enrolled the girl in a private school, because such participation was necessary for the child's social and emotional development. The hearing officer determined that participation on petitioner's sports terms was a related service which petitioner was obliged to provide to the child. The appeal must be dismissed.

        Respondent's daughter, who is 16 years old, attended the White Plains Public Schools from kindergarten through the ninth grade. She reportedly began to receive extra academic assistance pursuant to the provisions of Section 504 of the Rehabilitation Act of 1973 (29 USC 794) while in the fourth grade. In May, 1998, the girl was referred to petitioner's committee on special education (CSE). On August 24, 1998, the CSE recommended that she be classified as other health impaired, reportedly because of an attention deficit disorder (ADD) and depression (Exhibit 4). I note that the individualized education program (IEP) from the August CSE meeting indicates that the CSE would reconsider the issue of classification after it obtained the results of a speech/language evaluation and a neuropsychological evaluation. The girl's parents submitted copies of a subsequent neuropsychological evaluation and of an IEP dated January, 1999 with their memorandum of law to the hearing officer. Those documents indicate that the evaluators recommended that the girl be classified as learning disabled, and that the CSE accepted that recommendation. In any event, the child's classification does not appear to be a disputed issue in this appeal.

        The CSE also recommended that during the 1998-99 school year, respondents' daughter be enrolled in regular education tenth grade classes at the White Plains High School, except for mathematics which was to be taught to her in a special education class. It further recommended that the girl receive one class period per day of resource room services. I note that the girl's IEP was amended by the CSE in January, 1999 to include speech/language therapy and counseling. The girl's parents did not accept the CSE's recommendations. In September of 1998 they enrolled their daughter in the Windward School, which is a private school for learning disabled pupils located in White Plains, New York. It should be noted that the school has not been approved by the State Education Department to provide instruction to children with disabilities.

        In a letter dated September 23, 1998, respondent's attorney informed petitioner's Director of Special Education that respondents did not agree with the CSE's recommendations, and wished to have an impartial hearing for the purpose of obtaining an award of tuition reimbursement (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). When the hearing began on November 16, 1998, the parties stipulated that the issue which the hearing officer was to determine was whether respondents' daughter could participate in petitioner's interscholastic athletics program despite having been unilaterally enrolled by her parents in the Windward School.

        At the hearing on November 16, 1998, the child, her mother, and the child's psychiatrist testified about the importance of sports to the girl. The child testified that she had played girls' junior varsity tennis and softball and freshman basketball while enrolled in the ninth grade of petitioner's high school during the 1997-98 school year, and on a traveling, non-school softball team during the summer of 1998. She also testified that she was worried "a little bit" about academics during that school year because she did not do well (Transcript, page 62). The girl testified that she was not really worried about her academic performance at the Windward School during the 1998-99 school year, and that she had been a member of that school's coed soccer team. However, she described herself as just a regular player on that team, and said "I don't shine any more" (Transcript, page 55). The girl also testified that it meant everything to her to shine. Her mother testified that sports were very important to her child's self-esteem. She also testified that although her daughter had not been allowed to play on petitioner's teams for the 1998-99 school year, the girl was doing very well academically at the Windward School and no longer required the assistance of tutors (Transcript, page 24). The child's psychiatrist testified that he had begun treating her in December, 1997 with medication for ADD and depression, and that the drugs helped her to concentrate and feel better about herself. However, he asserted that they did not compensate for her bad feelings about herself because of her ineligibility to play on petitioner's teams and thus to shine in an area which was important to her. He further testified that it would have a beneficial effect upon the girl’s learning if she were allowed to play sports (Transcript, page 40).

        The hearing in this proceeding resumed on March 22, 1998. Petitioner's Superintendent of Schools, the principal of its high school, and a school social worker who had coached the girl when she was on the girls’ freshman basketball team each denied having represented to respondents that their daughter would be eligible to play on petitioner's interscholastic athletic teams if respondents enrolled her at the Windward School. The social worker acknowledged that a student attending the Windward School had apparently participated on one of petitioner's teams about four years previously, but asserted that this had been an error. Petitioner introduced evidence concerning the child's ineligibility to play on its teams through the testimony of the President of Section 1 of the New York State Public High School Athletic Association (NYSPHSAA), and a copy of the relevant portion of NYSPHSAA's 1998-2000 Handbook (Exhibit 5). I note that while NYSPHSAA is a private entity, it is the governing body for public high school interscholastic athletics, subject to the "Basic Code for Extra Class Athletic Activities" set forth in Section 135.4 (c)(7) of the Regulations of the Commissioner of Education. In material part, the "Basic Code" provides that:

" … A pupil shall be eligible for interschool competition in a sport during a semester, provided that he is a bona fide student, enrolled during the first 15 school days of such semester, is registered in the equivalent of three regular courses, is meeting the physical education requirement, and has been in regular attendance 80 percent of the school time, bona fide absence caused by personal illness excepted" (8 NYCRR 135.4 [c][7][ii][b][2]).

        The NYSPHSAA Handbook defines bona fide students in material part as follows:

"6. BONA FIDE STUDENTS: A contestant must be a bona fide student of the high school represented and must be taking at least four subjects including Physical Education. A foreign exchange student may be considered a bona fide student if all of these eligibility rules are satisfied. A student in an education program in two schools may represent only the home school. NOTE: A student in a shared services part-time or full-time program, taking the equivalent of four subjects including Physical Education, is considered as being registered in the home school. Exceptions for special cases must be approved by League and Section".

        At the hearing, the President of NYSPHSAA's Section I opined that a child who had been unilaterally enrolled by her parents in a private school would not be eligible to participate on a public high school team, apparently because the child was not enrolled in the public school (see Bradstreet v. Sobol, 165 Misc. 2d 931, affirmed 225 AD 2d 175 [3d Dept., 1996]). I note that the student in that case had not been classified as a child with a disability, and was being home schooled by his parents. The chairperson of the CSE testified that the girl's eligibility to participate in petitioner's interscholastic athletics program was a legal issue, but she further testified that " … we [the CSE] could write that into her IEP if we thought that appropriate" (Transcript, page 155). She acknowledged that the CSE had added counseling to the girl's IEP in January, 1999 to address certain social/emotional issues, including the girl's low self-esteem. However, she asserted that the CSE in January, 1999 had considered what athletic opportunities were available to the girl in the community, and had concluded that her desire to participate in athletics was adequately addressed by those opportunities and did not need to be addressed by the child's IEP. That IEP, as had the August, 1998 IEP, indicated in its statement of needed transition services (see 8NYCRR 200.4[c][2][viii]) that the girl should participate in leisure time and recreational activities as part of her community experience.

        The hearing officer rendered his decision on April 26, 1999. He noted that the IEP which the CSE had prepared for the child at its August 24, 1998 meeting identified her attentional deficits and her need for primary (special class) instruction in mathematics and supplemental instruction to support her regular educational program, but it did not refer to the child's reportedly low self-esteem. The hearing officer found that the Board of Education had not challenged the validity or efficacy of the parents' position with respect to their daughter's self-esteem or her desire to participate in single-sex athletic competition on school district teams. He further found that the CSE had declined to consider how the girl's participation in athletics affected her social development, and relied upon a legal opinion that the girl was ineligible to play on petitioner's teams. The hearing officer held that the State student athlete eligibility rules had been superseded by the 1997 amendments to the Individuals with Disabilities Education Act (IDEA) which included the terms "recreation" and "therapeutic recreation" within the definition of the related services which a school district was obligated to provide to a child with a disability as part of the child's free appropriate public education (see 20 USC 1401[8]). He found that this child needed to participate in petitioner's interscholastic athletic program for her social and emotional development, and that her IEP should have provided for her participation in that program.

        The Board of Education challenges the hearing officer's determination. It points out that the pre-amendment IDEA definition of related services (see former 20 USC 1401[a][17]) is virtually the same as the amended definition now found in 20 USC 1401(22). Both definitions refer to "recreation, including recreational therapy", with the proviso that the service "be required to assist a child with a disability to benefit from special education". I agree with petitioner that there really is no difference between the two definitions of related service for the purposes of this proceeding. However, that does not dispose of the matter.

        Petitioner argues that this child does not meet the eligibility requirements set forth in the Regulations of the Commissioner of Education, and that the Commissioner of Education has held that his athletic eligibility regulations apply with equal force and effect to children with disabilities (Application of Cieplinski, 31 Ed. Dept. Rep. 19). I agree that athletic eligibility rules are not necessarily to be waived because of a student's disability (Crocker v. Tennessee Secondary School Athletic Ass'n, 980 F. 2d 382 6th Cir., 1992]; McPherson v. Michigan High School Athletic Assoc. Inc., 119 F. 3d 453 [6th Cir., 1997]; Cavallaro v. Ambach, 575 F. Supp. 171 [W.D. N.Y., 1983]; Reaves v. Mills, 904 F. Supp. 120 [W.D.N.Y., 1995]; Rhodes v. Ohio High School Athletic Ass'n., 939 F. Supp. 584 [N.D. Oh., 1996]). Nevertheless, such rules may be waived for a student with a disability whose IEP indicates that participation in interscholastic athletics is essential to the student's educational program (Dennin ex rel Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 913 F. Supp. 663 [D. Conn., 1996] appeal dismissed as moot, 94 F. 3d 96 [2d Cir., 1996]; cf. Beatty by Beatty v. Pennsylvania Interscholastic Athletic Association, 24 IDELR 1146, [U.S. D.C. W.D. Pa., 1996]).

        In Application of a Child with a Disability, Appeal No. 97-80, I noted that the State Education Department had apparently adopted the position that the "enrolled student" rule could be waived if a student's IEP specifies that he or she should participate in sports. Petitioner argues that my decision in that appeal is inapposite because the student in that appeal was to have been placed by the school district in a private school and was therefore a duly enrolled student of the school district. Although I agree that a student who is placed in a private school by a school district is a duly enrolled student for purposes of the Commissioner of Education's eligibility rule, I must point out that the student in Appeal No. 97-80 had been unilaterally enrolled by his parents in a private school, as is the case in the instant appeal. The relevant question in this situation is whether the child's IEP specifically provides that the child should participate in petitioner's interscholastic athletic program in order to benefit from her instructional program, or should her IEP have so provided?

        The hearing officer found that the girl's IEP should have provided that she participate on petitioner's teams, if otherwise qualified to do so. In essence, he agreed with respondents' argument that their daughter's participation on single-sex sports teams has a direct impact upon her self-esteem which directly affects her academic progress. Although I must note that there is very little evidence in the record about the child’s academic performance while attending petitioner’s schools and the Windward School, there is the psychiatrist’s unrebutted opinion about the importance of participating on petitioner’s team and its beneficial effect upon the girl’s self-esteem, which all parties appear to agree has been low. Upon the limited record which is before me, I am constrained to support the hearing officer’s determination. In preparing future IEPs for the girl, petitioner’s CSE should ascertain whether there is in fact any nexus between the girl’s playing of specific sports and her educational performance.

THE APPEAL IS DISMISSED.