(ii) Provisions for interschool athletic activities for pupils in grades 7 through 12. It shall be the duty of the trustees and boards of education to conduct interschool athletic competition for grades 7 through 12 in accordance with the following:

(a) Interschool athletic competition for pupils in junior high school grades seven, eight and nine. Such competition shall be conducted in accordance with the following: Seventh and eighth grade teams may participate only with teams of like grade groups, with the following exceptions:

(1) In junior high school, competition may include grades seven through nine.

(2) In six-year high schools, competition may include grades seven through nine.

(3) In four-year high schools, ninth grade pupils may participate in junior high competition.

(4) (i) A board of education may permit pupils in grades no lower than seventh to compete on any senior high school team, or permit senior high school pupils to compete on any teams in grades no lower than seventh, provided the pupils are placed at levels of competition appropriate to their physiological maturity, physical fitness and skills in relationship to other pupils on those teams in accordance with standards established by the commissioner.

(ii) Nothing in this subclause shall prohibit a bona fide seventh or eighth grade student, as defined by subdivision (g) of section 135.1, who is regularly enrolled in a public school district organized for pupils in kindergarten through eighth grade that contracts with a neighboring school district or districts on a tuition basis for the education of its high school students pursuant to Education Law sections 2040 and 2045 and section 174.4 of this Title, from seeking to participate in a high school team, in accordance with the standards described in item (i) of this subclause, provided that the boards of education of the sending school district (as such term is defined in section 174.4(a)(1) of this Title) and the receiving school district(s) (as such term is defined in section 174.4(a)(2) of this Title) adopt a resolution to permit such participation. In the case of seventh and eighth grade students attending a public school district organized for pupils in kindergarten through eighth grade that contracts with more than one neighboring school district for the education of its high school students, any such seventh or eighth grade student who participates in high school athletics pursuant to this subclause may select only one high school in which to compete during their seventh and eighth grade participation; if, following participation in a high school team during seventh and/or eighth grade, such student chooses to attend a different high school with which the student’s kindergarten through eighth grade school district contracts for the education of its high school students, such student shall be ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one year.

2. Clause (b) of subparagraph (ii) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education shall be amended, effective July 1, 2017 to read as follows:

(b) Interschool athletic competition for pupils in senior high school grades 9, 10, 11 and 12. Inter-high school athletic competition shall be limited to competition between high school teams, composed of pupils in grades 9 to 12 inclusive, except as otherwise provided in subclause (a)(4) of this subparagraph. Such activities shall be conducted in accordance with the following:

(1) Duration of competition. A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation, except as otherwise provided in this subclause, or except as authorized by a waiver granted under clause (d) of this subparagraph to a student with a disability. If a board of education has adopted a policy, pursuant to subclause (a)(4) of this subparagraph, to permit pupils in the seventh and eighth grades to compete in senior high school athletic competition, such pupils shall be eligible for competition during five consecutive seasons of a sport commencing with the pupil's entry into the eighth grade, or six consecutive seasons of a sport commencing with the pupil's entry into the seventh grade. A pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest. 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, except as otherwise provided in subclause (a)(4) or clause (d) of this subparagraph, or in this subclause. The eligibility for competition of a pupil who has not attained the age of 19 years prior to July 1st may be extended under the following circumstances.

(i) If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, [or] accident, documented social/emotional condition, or documented social/emotional circumstances beyond the control of the pupil, such pupil's eligibility shall be extended accordingly in that sport. In order to be deemed sufficient, the evidence must [include documentation showing that as a direct result of the illness or accident, the pupil will be required to attend school for one or more additional semesters in order to graduate] demonstrate that: (a) the pupil’s failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil; (b) as a direct result of such circumstances the pupil is required to attend school for one or more additional semesters in order to graduate; and (c) such participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport. However, nothing herein shall be construed to extend a student’s eligibility beyond the age of 19, except as provided in (d) of subparagraph (ii) of this paragraph.

(ii) If the chief school officer demonstrates to the satisfaction of the section that the pupil's failure to enter competition during one or more seasons of a sport is caused by such pupil's enrollment in a national or international student exchange program or foreign study program, that as a result of such enrollment the pupil will be required to attend school for one or more additional semesters in order to graduate, and that the pupil did not enter competition in any sport while enrolled in such program, such pupil's eligibility shall be extended accordingly in such sport.

(iii) If the section declines to extend the pupil’s eligibility in accordance with this subclause, the section shall provide written notice of such determination to the chief school officer, with a copy to the pupil’s parent, guardian or person in parental relation. Such notice shall include, as applicable: information regarding the athletic association’s internal appeal process, including the name of the individual and address to which such appeal is to be directed; or a statement that the determination may be appealed to the Commissioner of Education, in accordance with Education Law section 310, within 30 days of the date of such determination and shall include the name and address of the section official upon whom such appeal shall be served. If the athletic association hears and denies an appeal, written notice of the determination shall be provided to the chief school officer, with a copy to the pupil’s parent, guardian or person in parental relation. Such notice shall include a statement that the determination may be appealed to the Commissioner of Education, in accordance with Education Law, section 310, within 30 days of the date of such determination and shall include the name and address of the athletic association official upon whom such appeal shall be served.

1. STATUTORY AUTHORITY:

Education Law section 101 charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law section 207 empowers the Board of Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.

Education Law sections 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education.

Education Law section 803 provides the Board of Regents with overall authority over physical education instruction in schools.

Education Law section 3204(2) and (3) relate to compulsory education.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement policy enacted by the Board of Regents relating to the age and four-year duration of competition limitations for athletic competition and the athletic placement process which provides a protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

3. NEEDS AND BENEFITS:

Commissioner’s regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for students in grades 7-12. The underlying spirit of Commissioner’s regulations governing interscholastic athletics is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for students in seventh or eighth grade who wish to participate in high school athletics pursuant to the athletic placement process (8 NYCRR § 135.4(c)(7)(ii)(a)); as well as for purposes of mixed competition (8 NYCRR § 135.4(c)(7)(ii)(c)); and for students with disabilities who wish to extend eligibility to participate in non-contact sports (8 NYCRR § 135.4(c)(7)(ii)(d)).

Athletic Placement Process

In general, interscholastic athletics for students in grades 7-12 must be organized for students in like grade groups. However, pursuant to § 135.4(c)(7)(ii)(a), a school district may choose to permit certain students to compete at a level of competition deemed appropriate to their physiological maturity, physical fitness, and skill level in relationship to other students at the desired level of competition.

The standards by which such participation is permitted are commonly referred to as the Athletic Placement Process(APP). The APP, last updated in 2015, provides a protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level. Such protocol ensures that student athletes are able to participate safely at an appropriate level of competition based upon physical and emotional readiness and athletic ability, rather than age and grade alone.

Though not required, many school districts throughout the State employ the APP to provide appropriate interscholastic athletic opportunities for exceptional student athletes in grades 7 and 8 to play at the high school level. Existing regulations provide that to be eligible for participation in interscholastic athletic competition at any level during a semester, the student must, among other things, be a bona fide student, enrolled during the first 15 school days of such semester (8 NYCRR § 135.4[c][7][ii][b][2]). Commissioner’s regulation § 135.1 defines a bona fide student as “a regularly enrolled student who is taking sufficient subjects to make an aggregate amount of three courses and who satisfies the physical education requirement.”

Not all of the State’s 728 school districts are traditional K-12 districts. Presently, there are 13 public school districts in the State that operate to serve students in grades K-8 only, and contract for the education of their high school students with other public school districts pursuant to the provisions of Education Law §§ 2040, 2045 and Commissioner’s regulation § 174.4. Because of their unique configuration, these 13 public school districts do not have their own “district high school,” and as a result, questions have arisen regarding the ability of students who are enrolled in K-8 public school districts to participate in the APP because they are not “enrolled” in a district with its own high school.

The proposed regulation is therefore designed to clarify the conditions under which K-8 public school districts may employ the APP protocol to allow the opportunity for exceptional student athletes to participate in interscholastic sports at the high school(s) with which the K-8 school district contracts for the education of its high school students, when such students are bona fide students of the K-8 school district. However, in an effort to avoid recruitment or other efforts to entice middle-school students to play for a specific high school, the regulation provides for a year of ineligibility if, following participation on a high school team pursuant to APP, the student chooses to attend a different high school with which the K-8 district contracts for the 9th grade year.

The existing guidance relating to the APP protocol is comprehensive. However, additional revisions will be necessary to provide these few K-8 school districts and the districts with which they contract for the education of their high school students with the necessary guidance to safely and appropriately implement the APP, if they choose.

Duration of Competition

Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1)(i), relating to the duration of competition, limits the participation of students in high school athletic competition to four consecutive seasons commencing with the student’s entry into the ninth grade and prior to graduation. However, the regulation provides that a request for an extension of duration of competition may be granted if sufficient evidence demonstrates that the student’s failure to enter competition during one or more seasons was directly caused by illness or accident, and such illness or accident will require the student to attend school for one or more additional semesters to graduate.

Prior to October 2014, this regulation also allowed students to seek an extension of eligibility when the student failed to enter competition for “other circumstances beyond the control of the student.” In response to confusion from the field, the Board of Regents amended the regulation to limit the eligibility extension for reasons only related to accident or illness. However, recent events have highlighted need for even greater clarity. Recognizing that extenuating circumstances may exist which do not neatly fit into the categories of accident or illness, but may still be suitable for extending a student’s athletic eligibility, the Department proposes additional revisions to specify two additional situations which may warrant extension of eligibility.

Following the public comment period, the Department proposes the following revisions to the proposed amendment which are intended to provide greater clarity and to ensure safe and equitable interscholastic athletic competition for all public school students.

Commissioner’s Regulation § 135.4(c)(7)(ii)(b)(1)(i) Duration of Competition

• If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, [or] accident, or documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil such pupil's eligibility shall be extended accordingly in that sport…

o This additional language seeks to further clarify the circumstances under which an eligibility extension may be granted. The Department received feedback that the initial proposed language, which simply included “other circumstances beyond the control of the pupil,” was too vague and may cause confusion in the field.

• In order to be deemed sufficient, the evidence must [include documentation showing that as a direct result of the illness or accident, the pupil will be required to attend school for one or more additional semesters in order to graduate] demonstrate that, (a) the pupil’s failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil; (b) as a direct result of such circumstances the pupil is required to attend school for one or more additional semesters in order to graduate; and (c) such participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport. However, nothing herein shall be construed to extend a student’s eligibility beyond the age of 19, except as provided in clause (d) of this subparagraph.

o The Department received feedback that the initial proposed language would be burdensome for superintendents and athletic association officials in making determinations that a student’s participation would not place the safety of the pupil or others at risk; and that the pupil will not hold an unfair advantage in the competition. However, because determinations regarding whether participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport are presently made in the context of male and female pupils in interscholastic athletic teams, the Department has revised the amendment to mirror such language.

• Additional language relating the appeal procedures was also removed from the proposed amendments as duplicative and unnecessary.

4. COSTS:

(a) Costs to State government: none.

(b) Costs to local government: none.

(c) Costs to private regulated parties: none.

(d) Costs to the regulating agency for implementation and administration of this rule: none.

The proposed amendment does not impose any costs on the State, local governments, private regulated parties or the State Education Department, but merely clarifies when a student’s eligibility for senior high school athletic competition may be extended for additional seasons for illness, accident or circumstances beyond the control of the pupil and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments. The proposed amendment merely clarifies when a student’s eligibility for senior high school athletic competition may be extended for additional and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

6. PAPERWORK:

This proposed amendment does not impose any additional paperwork requirements. The proposed amendment merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the APP for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or federal regulations.

8. ALTERNATIVES:

The proposed amendment is necessary to clarify when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the APP for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level. There were no significant alternatives considered.

9. FEDERAL STANDARDS:

There are no related federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated regulated parties will be able to achieve compliance with the proposed rule by its effective date. This proposed amendment does not impose any costs or compliance requirements, but merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the APP for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

Small Businesses:

The proposed amendment merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Government:

1. EFFECT OF RULE:

The proposed amendment applies to each of the 695 school districts within the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment does not impose any additional compliance requirements, but merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

Commissioner’s regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for students in grades 7-12. The underlying spirit of Commissioner’s regulations governing interscholastic athletics is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for students in seventh or eighth grade who wish to participate in high school athletics pursuant to the athletic placement process (8 NYCRR § 135.4(c)(7)(ii)(a)); as well as for purposes of mixed competition (8 NYCRR § 135.4(c)(7)(ii)(c)); and for students with disabilities who wish to extend eligibility to participate in non-contact sports (8 NYCRR § 135.4(c)(7)(ii)(d)).

Athletic Placement Process

In general, interscholastic athletics for students in grades 7-12 must be organized for students in like grade groups. However, pursuant to § 135.4(c)(7)(ii)(a), a school district may choose to permit certain students to compete at a level of competition deemed appropriate to their physiological maturity, physical fitness, and skill level in relationship to other students at the desired level of competition.

The standards by which such participation is permitted are commonly referred to as the Athletic Placement Process(APP). The APP, last updated in 2015, provides a protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level. Such protocol ensures that student athletes are able to participate safely at an appropriate level of competition based upon physical and emotional readiness and athletic ability, rather than age and grade alone.

Though not required, many school districts throughout the State employ the APP to provide appropriate interscholastic athletic opportunities for exceptional student athletes in grades 7 and 8 to play at the high school level. Existing regulations provide that to be eligible for participation in interscholastic athletic competition at any level during a semester, the student must, among other things, be a bona fide student, enrolled during the first 15 school days of such semester (8 NYCRR § 135.4[c][7][ii][b][2]). Commissioner’s regulation § 135.1 defines a bona fide student as “a regularly enrolled student who is taking sufficient subjects to make an aggregate amount of three courses and who satisfies the physical education requirement.”

Not all of the State’s 728 school districts are traditional K-12 districts. Presently, there are 13 public school districts in the State that operate to serve students in grades K-8 only, and contract for the education of their high school students with other public school districts pursuant to the provisions of Education Law §§ 2040, 2045 and Commissioner’s regulation § 174.4. Because of their unique configuration, these 13 public school districts do not have their own “district high school,” and as a result, questions have arisen regarding the ability of students who are enrolled in K-8 public school districts to participate in the APP because they are not “enrolled” in a district with its own high school.

The proposed regulation is therefore designed to clarify the conditions under which K-8 public school districts may employ the APP protocol to allow the opportunity for exceptional student athletes to participate in interscholastic sports at the high school(s) with which the K-8 school district contracts for the education of its high school students, when such students are bona fide students of the K-8 school district. However, in an effort to avoid recruitment or other efforts to entice middle-school students to play for a specific high school, the regulation provides for a year of ineligibility if, following participation on a high school team pursuant to APP, the student chooses to attend a different high school with which the K-8 district contracts for the 9th grade year.

The existing guidance relating to the APP protocol is comprehensive. However, additional revisions will be necessary to provide these few K-8 school districts and the districts with which they contract for the education of their high school students with the necessary guidance to safely and appropriately implement the APP, if they choose.

Duration of Competition

Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1)(i), relating to the duration of competition, limits the participation of students in high school athletic competition to four consecutive seasons commencing with the student’s entry into the ninth grade and prior to graduation. However, the regulation provides that a request for an extension of duration of competition may be granted if sufficient evidence demonstrates that the student’s failure to enter competition during one or more seasons was directly caused by illness or accident, and such illness or accident will require the student to attend school for one or more additional semesters to graduate.

Prior to October 2014, this regulation also allowed students to seek an extension of eligibility when the student failed to enter competition for “other circumstances beyond the control of the student.” In response to confusion from the field, the Board of Regents amended the regulation to limit the eligibility extension for reasons only related to accident or illness. However, recent events have highlighted need for even greater clarity. Recognizing that extenuating circumstances may exist which do not neatly fit into the categories of accident or illness, but may still be suitable for extending a student’s athletic eligibility, the Department proposes additional revisions to specify two additional situations which may warrant extension of eligibility.

Following the public comment period, the Department proposes the following revisions to the proposed amendment which are intended to provide greater clarity and to ensure safe and equitable interscholastic athletic competition for all public school students.

Commissioner’s Regulation § 135.4(c)(7)(ii)(b)(1)(i) Duration of Competition

• If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, [or] accident, or documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil such pupil's eligibility shall be extended accordingly in that sport…

o This additional language seeks to further clarify the circumstances under which an eligibility extension may be granted. The Department received feedback that the initial proposed language, which simply included “other circumstances beyond the control of the pupil,” was too vague and may cause confusion in the field.

• In order to be deemed sufficient, the evidence must [include documentation showing that as a direct result of the illness or accident, the pupil will be required to attend school for one or more additional semesters in order to graduate] demonstrate that, (a) the pupil’s failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil; (b) as a direct result of such circumstances the pupil is required to attend school for one or more additional semesters in order to graduate; and (c) such participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport. However, nothing herein shall be construed to extend a student’s eligibility beyond the age of 19, except as provided in clause (d) of this subparagraph.

o The Department received feedback that the initial proposed language would be burdensome for superintendents and athletic association officials in making determinations that a student’s participation would not place the safety of the pupil or others at risk; and that the pupil will not hold an unfair advantage in the competition. However, because determinations regarding whether participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport are presently made in the context of male and female pupils in interscholastic athletic teams, the Department has revised the amendment to mirror such language.

• Additional language relating the appeal procedures was also removed from the proposed amendments as duplicative and unnecessary.

3. PROFESSIONAL SERVICES:

The proposed amendment imposes no additional professional service requirements.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any costs, but merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any technological requirements or costs on school districts.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendments are intended to provide greater clarity and to ensure safe and equitable interscholastic athletic competition for all public school students.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements on school districts in rural areas, but merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

Commissioner’s regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for students in grades 7-12. The underlying spirit of Commissioner’s regulations governing interscholastic athletics is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for students in seventh or eighth grade who wish to participate in high school athletics pursuant to the athletic placement process (8 NYCRR § 135.4(c)(7)(ii)(a)); as well as for purposes of mixed competition (8 NYCRR § 135.4(c)(7)(ii)(c)); and for students with disabilities who wish to extend eligibility to participate in non-contact sports (8 NYCRR § 135.4(c)(7)(ii)(d)).

Athletic Placement Process

In general, interscholastic athletics for students in grades 7-12 must be organized for students in like grade groups. However, pursuant to § 135.4(c)(7)(ii)(a), a school district may choose to permit certain students to compete at a level of competition deemed appropriate to their physiological maturity, physical fitness, and skill level in relationship to other students at the desired level of competition.

The standards by which such participation is permitted are commonly referred to as the Athletic Placement Process(APP). The APP, last updated in 2015, provides a protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level. Such protocol ensures that student athletes are able to participate safely at an appropriate level of competition based upon physical and emotional readiness and athletic ability, rather than age and grade alone.

Though not required, many school districts throughout the State employ the APP to provide appropriate interscholastic athletic opportunities for exceptional student athletes in grades 7 and 8 to play at the high school level. Existing regulations provide that to be eligible for participation in interscholastic athletic competition at any level during a semester, the student must, among other things, be a bona fide student, enrolled during the first 15 school days of such semester (8 NYCRR § 135.4[c][7][ii][b][2]). Commissioner’s regulation § 135.1 defines a bona fide student as “a regularly enrolled student who is taking sufficient subjects to make an aggregate amount of three courses and who satisfies the physical education requirement.”

Not all of the State’s 728 school districts are traditional K-12 districts. Presently, there are 13 public school districts in the State that operate to serve students in grades K-8 only, and contract for the education of their high school students with other public school districts pursuant to the provisions of Education Law §§ 2040, 2045 and Commissioner’s regulation § 174.4. Because of their unique configuration, these 13 public school districts do not have their own “district high school,” and as a result, questions have arisen regarding the ability of students who are enrolled in K-8 public school districts to participate in the APP because they are not “enrolled” in a district with its own high school.

The proposed regulation is therefore designed to clarify the conditions under which K-8 public school districts may employ the APP protocol to allow the opportunity for exceptional student athletes to participate in interscholastic sports at the high school(s) with which the K-8 school district contracts for the education of its high school students, when such students are bona fide students of the K-8 school district. However, in an effort to avoid recruitment or other efforts to entice middle-school students to play for a specific high school, the regulation provides for a year of ineligibility if, following participation on a high school team pursuant to APP, the student chooses to attend a different high school with which the K-8 district contracts for the 9th grade year.

The existing guidance relating to the APP protocol is comprehensive. However, additional revisions will be necessary to provide these few K-8 school districts and the districts with which they contract for the education of their high school students with the necessary guidance to safely and appropriately implement the APP, if they choose.

Duration of Competition

Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1)(i), relating to the duration of competition, limits the participation of students in high school athletic competition to four consecutive seasons commencing with the student’s entry into the ninth grade and prior to graduation. However, the regulation provides that a request for an extension of duration of competition may be granted if sufficient evidence demonstrates that the student’s failure to enter competition during one or more seasons was directly caused by illness or accident, and such illness or accident will require the student to attend school for one or more additional semesters to graduate.

Prior to October 2014, this regulation also allowed students to seek an extension of eligibility when the student failed to enter competition for “other circumstances beyond the control of the student.” In response to confusion from the field, the Board of Regents amended the regulation to limit the eligibility extension for reasons only related to accident or illness. However, recent events have highlighted need for even greater clarity. Recognizing that extenuating circumstances may exist which do not neatly fit into the categories of accident or illness, but may still be suitable for extending a student’s athletic eligibility, the Department proposes additional revisions to specify two additional situations which may warrant extension of eligibility.

Following the public comment period, the Department proposes the following revisions to the proposed amendment which are intended to provide greater clarity and to ensure safe and equitable interscholastic athletic competition for all public school students.

Commissioner’s Regulation § 135.4(c)(7)(ii)(b)(1)(i) Duration of Competition

• If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, [or] accident, or documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil such pupil's eligibility shall be extended accordingly in that sport…

o This additional language seeks to further clarify the circumstances under which an eligibility extension may be granted. The Department received feedback that the initial proposed language, which simply included “other circumstances beyond the control of the pupil,” was too vague and may cause confusion in the field.

• In order to be deemed sufficient, the evidence must [include documentation showing that as a direct result of the illness or accident, the pupil will be required to attend school for one or more additional semesters in order to graduate] demonstrate that, (a) the pupil’s failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil; (b) as a direct result of such circumstances the pupil is required to attend school for one or more additional semesters in order to graduate; and (c) such participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport. However, nothing herein shall be construed to extend a student’s eligibility beyond the age of 19, except as provided in clause (d) of this subparagraph.

o The Department received feedback that the initial proposed language would be burdensome for superintendents and athletic association officials in making determinations that a student’s participation would not place the safety of the pupil or others at risk; and that the pupil will not hold an unfair advantage in the competition. However, because determinations regarding whether participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool competition in the sport are presently made in the context of male and female pupils in interscholastic athletic teams, the Department has revised the amendment to mirror such language.

• Additional language relating the appeal procedures was also removed from the proposed amendments as duplicative and unnecessary.

3. COSTS:

The proposed amendment does not impose any costs on school districts in rural areas, but merely clarifies when a student’s eligibility for senior high school athletic competition may be extended and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendments are intended to provide greater clarity around the athletic placement process and to ensure safe and equitable interscholastic athletic competition for all public school students, including those located in rural areas of this State. Therefore, no alternatives were considered.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.

The proposed amendment clarifies when a student’s eligibility for senior high school athletic competition may be extended for additional seasons for illness, accident, or documented social/emotional condition or documented social/emotional circumstances beyond the control of the pupil and for the utilization of the athletic placement process protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have no impact on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Below is a summary of the comments received since publication of a Notice of Proposed Rule Making in the State Register on November 9, 2016.

1. COMMENT:

Commenter enthusiastically supports the amendment stating that is in the best interest of exceptional student athletes who attend seventh or eighth grade in a K-8 school district.7-8 grade students who attend K-8 school districts should be afforded the same opportunity for the APP. The current regulation is ambiguous and adversely affects gifted athletes seeking levels of safe training and competition commensurate with their outstanding physiological maturity and performance ability.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive.

2. COMMENT:

Commenter supports the amendment and eligibility limitations if following participation on a high school team, the student chooses to attend a different high school.

DEPARTMENT RESPONSE

No response necessary as the comment is supportive.

3. COMMENT:

Commenter seeks to permit 7-8 grade students who are residents of a K-8 school district, but who attend nonpublic schools, to be also be eligible for the APP.

DEPARTMENT RESPONSE:

The intended scope of this amendment is to clarify the conditions under which K-8 public school districts may employ the APP to allow exceptional student athletes to participate in interscholastic sports at the high school(s) with which the K-8 school district contracts for the education of its high school students, when such students are bona fide students of the K-8 school district. Therefore, this comment is outside the scope of the proposed amendment and no amendments are necessary.

4. COMMENT:

Commenter supports the amendment because today’s regulation denies exceptional student athletes the opportunity to play at a challenging and competitive level. There are no such limits on students who excel academically.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive.

5. COMMENT:

NYSPHSAA’s concerns can be addressed through collaboration among partner districts, and policies enacted to ensure compliance with the regulations.

DEPARTMENT RESPONSE:

The Department appreciates this supportive comment and understands that additional revisions to APP guidance will be necessary.

6. COMMENT:

Commenter supports the amendment because the bona fide students of the K-8 districts are at a disadvantage compared with their peers who are enrolled in the K-12 district.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive.

7. COMMENT:

A restrictive transfer policy enacted by the board of education will address recruitment concerns.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive.

8. COMMENT:

Commenters expressed concern that the proposed amendments would jeopardize student safety and equal opportunity for participation.

DEPARTMENT RESPONSE:

Commissioner’s regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for grades 7-12 and the underlying spirit is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for 7-8 students who wish to participate in high school athletics pursuant to APP (§ 135.4(c)(7)(ii)(a)); as well as for purposes of mixed competition (§ 135.4(c)(7)(ii)(c)); and for students with disabilities who wish to extend eligibility to participate in non-contact sports (§ 135.4(c)(7)(ii)(d)).

9. COMMENT:

Several commenters expressed concern because being a member of the “school district” is an integral and critical aspect of the APP.

DEPARTMENT RESPONSE:

The proposed amendments are designed to clarify the conditions under which K-8 public school districts may employ the APP to allow the opportunity for exceptional student athletes to participate in interscholastic sports at the high school(s) with which the K-8 school district contracts for the education of its high school students, when such students are bona fide students of the K-8 school district.

Presently, there are 13 public school districts in the State that operate to serve students in grades K-8 only, and contract for the education of their high school students with other public school districts pursuant to the provisions of Ed.L. §§ 2040, 2045 and § 174.4. The unique configuration of these 13 public school districts without a “district high school,” makes it impossible for these students to be enrolled in the district within which they will attend high school when they are in 7th or 8th grade. The amendment relates only to enabling bona fide students enrolled in a public K-8 district to participate in the APP only if the boards of education of the sending school district and the receiving school district(s) adopt a resolution to permit such participation. Therefore, because these student athletes are bona fide students of the public K-8 school district, the Department does not share this concern.

10. COMMENT:

Commenters asserted that some K-8 districts were permitted to use the APP on a case by case basis with no rationale or consistency. Commenter asserted that the majority of these “waivers” were provided to K-8 districts that have a contract with a “single” school district making the transition more traditional and like K-12 districts.

DEPARTMENT RESPONSE:

See Comment #9. Because of their unique configuration, these K-8 public school districts do not have their own “district high school,” and as a result, questions have arisen regarding the ability of students who are enrolled in K-8 public school districts to participate in the APP because they are not “enrolled” in a district with its own high school. Additionally, Education Law § 2040 provides that school districts that do not maintain a home high school may contract for the education of its high school students with one or more school districts. Therefore, limiting the proposed amendments would be inconsistent with the authority provided by the statute. The proposed amendments also ensure that, where a district contracts with more than one neighboring school district, its 7th and 8th grade students may select only one high school in which to compete during their seventh and eighth grade participation. The proposed amendments also require that, if, following participation in a high school team during seventh and/or eighth grade, such student chooses to attend a different high school with which the student’s K-8 school district contracts for the education of its high school students, such student shall be ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one year.

11. COMMENT:

Commenters expressed concern and asked questions about the implementation of APP in K-8 districts.

DEPARTMENT RESPONSE:

See response to Comment #5.

12. COMMENT:

Commenter expressed support for the amendments and that indicated any implementation concerns could be easily resolved through cooperation between the K-8 and the high school districts.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive.

13. COMMENT:

Although K-8 school districts represent a small portion of districts, commenter expressed fears if K-8 students are granted the ability to go through the APP to participate at a school in which they are not a bona fide student, this will ultimately lead to other students (nonpublic, homeschooled etc.) requesting similar privileges.

DEPARTMENT RESPONSE:

The proposed amendment relates only to enabling bona fide students enrolled in a public K-8 school district to participate in the APP, and then only if the boards of education of the sending school district and the receiving school district(s) adopt a resolution to permit such participation. Therefore, because these student athletes are bona fide students of the public K-8 school district, the Department does not share this concern.

14. COMMENT:

Commenter supports the clear language which clearly limits the APP to K-8 public school students which provides public school students with the same opportunity currently enjoyed by public school students attending K-12 districts.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive.

15. COMMENT:

Commenters were concerned that other student might try to use the APP if their school district does not offer opportunities they wish to receive.

DEPARTMENT RESPONSE:

The proposed amendment is expressly limited to the APP as presently permitted by § 135.4(c)(7)(ii)(a)(4) and merely makes the APP available to bona fide 7-8 grade students who are regularly enrolled in a public school district organized for pupils in grades K-8 that contracts with a neighboring school district or districts on a tuition basis for the education of its high school students pursuant to Education Law §§ 2040 and 2045 and Commissioner’s regulation § 174.4.

16. COMMENT:

Commenters opposed the one year period of ineligibility for a K-8 student who participates at the high school level and then transfers to a different high school with which the K-8 district contracts for 9th grade.

DEPARTMENT RESPONSE:

The Department believes this is an important safeguard to protect against concerns raised about improper recruitment activities in connection with the APP process for K-8 districts, within the applicable statutory authority of the Commissioner to promulgate regulations which govern interscholastic athletics.

17. COMMENT:

Commenter supports extended eligibility in limited circumstances with appropriate documentation.

DEPARTMENT RESPONSE:

No response is necessary as the comment is supportive.

18. COMMENT:

Commenters were concerned about the burden on superintendents which would require them to make individual assessments to determine whether a student’s participation will result in an unfair advantage in competition and whether the safety of the pupil or others is not at risk.

DEPARTMENT RESPONSE:

See Comment # 8. In light of the concerns raised by the public comment, the Department has revised the regulation to condition the eligibility extension on the same standard used for mixed competition, a determination that such participation would not have a significant adverse effect upon the opportunity of other pupils to participate successfully in interschool athletic competition in the sport.

19. COMMENT:

Commenter expressed concern that the amendments may create inequities with respect to students who are deemed eligible and those who are not granted an extension. Specifically, that consideration of safety and opportunity for competition might allow a student who is not a talented player an extension but would not allow a student who is bigger and more skilled the same opportunity. Commenter seeks additional objective criteria.

DEPARTMENT RESPONSE:

See response to Comment #18. In response to public comment the Department has revised the amendment to further guide the circumstances under which an eligibility extension may be granted.

20. COMMENT:

Commenters oppose the amendments expressing concern that the proposal reverts to pre-2015 language.

DEPARTMENT RESPONSE:

The Department continuously reviews the impact of regulations and policy. As a result of such review, the Department proposed to amend the regulation to clarify and further define the circumstances under which extended eligibility may be granted.

21. COMMENT:

Commenters were concerned that the changes could result in litigation against districts that permit a student to participate and another student is injured by that student, or by students who are denied an extension of eligibility.

DEPARTMENT RESPONSE:

See Comment #18. Ro the extent that determinations relating to participation in interscholastic athletics are presently disputed, the proposed amendment makes no changes to the availability of the avenues for judicial or administrative review.

22. COMMENT:

Commenter suggested including a definition and criteria for which “other circumstances” might warrant an extension.

DEPARTMENT RESPONSE:

In response to public comment, the Department has revised the amendment to clarify and further define the circumstances under which extended eligibility may be granted. Furthermore, the Department anticipates issuing guidance relating to the implementation.

23. COMMENT:

Commenters were concerned about the role of the sections in determining eligibility. Specifically that recent amendments have helped make eligibility determinations consistent throughout the state.

DEPARTMENT RESPONSE:

See response to Comment #18. In response to public comment, the Department has revised the amendment to clarify and further define the circumstances under which extended eligibility may be granted.

24. COMMENT:

Commenters expressed concern about specifying the Commissioner’s de novo review of the record in a challenge to an eligibility determination by a section or athletic association. Commenters believe that it conflicts with the legal standard of review used by the Commissioner in § 310 appeals. They are concerned that it puts schools, sections and NYSPHSAA in an unfair position of having to follow the Commissioner’s regulations only to be overturned by the Commissioner, not because they made the “wrong” decision, but because the Commissioner would decide the case differently.

DEPARTMENT RESPONSE:

The Commissioner has always had, and continues to have, the authority to determine that a decision challenged pursuant to Education Law § 310 was not reasonable and to substitute his/her judgment (see e.g., Appeal of the Board of Education of the Byron-Bergen Central School District, 25 Ed Dept Rep 404, Decision No. 11,628 (1986); Appeal of Kraft, 24 id. 243, Decision No. 11,566 (1986)). Therefore, the phrase “de novo review” has been eliminated from the proposed amendments as unnecessary.