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CAVALLARO v. AMBACH

November 16, 1983.

Daniel CAVALLARO, A Handicapped Child, by his parents, Joseph CAVALLARO and Donna Cavallaro, and Spencerport Central School District, Plaintiffs,
v.
Gordon M. AMBACH, Commissioner, New York State Department of Education, The New York State Public High School Athletic Association, Inc., The New York State Federation of Secondary School Athletic Association, The Eligibility Committee of The New York State Public High School Athletic Association, Inc., The Section V Eligibility Committee of the New York State Public High School Athletic Association, Inc., John D. O'Donnell, Alton B. Doyle and Bruce H. Johnson, Defendants.



The opinion of the court was delivered by: TELESCA

MEMORANDUM DECISION and ORDER

TELESCA, District Judge.

INTRODUCTION

 This is an action commenced pursuant to 42 U.S.C. Section 1983 and 29 U.S.C. Section 794 by Daniel Cavallaro, his parents and the Spencerport Central School District, alleging that Daniel has been discriminated against on the basis of his handicap and has been unlawfully denied the opportunity to participate in inter-scholastic wrestling. Presently before me is plaintiffs' motion for a preliminary injunction.

 FACTS

 Daniel Cavallaro is a 19 year old boy who in September of this year began his senior year at Spencerport High School. He first entered the Spencerport School District inn September of 1980 by enrolling in the Ninth Grade at the Trowbridge School. The year before, Daniel had attended a private school but had not successfully completed the Ninth Grade, which necessitated his repeating that grade at Trowbridge.

 In his first year in the Spencerport district, Daniel's scholastic performance did not improve and he showed severe deficiencies in both Math and English. In May of 1981, he was referred to the Spencerport School District's Committee on the Handicapped, and after a series of psychological tests, the Committee determined that Daniel showed signs of neurological problems, was developmentally behind, had a lack of motivation and a poor self-image. The Committee classified Daniel as neurologically impaired and referred him to the Spencerport Special Education Program for the learning disabled.

 In his first year in the Spencerport School District, Daniel had participated in inter-scholastic wrestling. As part of its report, the Committee recommended that Daniel continue his involvement with athletics. Thereafter during Daniel's Sophomore and Junior years in high school, he evidently attained some distinction as an inter-scholastic wrestler. According to School Psychologists and teachers, this notoriety as an athlete enabled him to improve his self esteem with the resulting improvement in his academic work.

 The present controversy involves Daniel's participation in wrestling in this his Senior year at high school. Under New York State Education Department regulation, 8 NYCRR Section 135.4 (C[iib]), an individual who has reached the age of 19, prior to September 1st of that school year, is prohibited from participation in inter-scholastic athletics. *fn1" Thus, according to the regulation, Daniel is precluded from wrestling in his Senior year. In addition to his age, the regulation also prohibits Daniel from participating in inter-scholastic sporting events because a student is only eligible to compete for four (4) consecutive years beginning with his enrollment in the Ninth Grade. *fn2" Since Daniel spent one year in Ninth Grade at a private school, and later repeated the Ninth Grade at Spencerport, his fourth consecutive year of eligibility was last year, his Junior year.

 Aware of a problem due to Daniel's age, Joseph Clement, the Superintendent of Schools at Spencerport, sought a waiver of the applicable regulation from the New York State Public High School Athletic Association, Section V Eligibility Committee to allow Daniel to compete in his Senior year.On July 11, 1983 the Committee notified plaintiffs that the request for an extension of Daniel's eligibility had been denied citing the appropriate regulation. The letter also informed plaintiffs that an appeal of this decision was available to the Commissioner of Education.

 Plaintiffs decided to forego the administrative appeal to the Commissioner, because of a recent decision by the Commissioner which indicated that, in his opinion, the age regulations were not waivable. *fn3" The present action was then commenced on October 21, 1983 by the filing of a complaint alleging discrimination based on Daniel's handicap in violation of 29 U.S.C. Section 794 and a denial of the Equal Protection of the Laws in violation of the Fourteenth Amendment of the United States Constitution and Title 42 U.S.C. Section 1983.

 DISCUSSION

 I.

 Presently before me is plaintiffs' motion for a preliminary injunction. In order for such motion to be granted, and an injunction issued, plaintiffs must demonstrate (a) that Daniel would otherwise suffer irreparable injury, and (b) either (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly in their favor. Jackson Dairy Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2nd Cir.1979). It must be emphasized, because it is so often overlooked by litigants, that in order to utilize the lesser burden of showing "sufficiently serious question going to the merits", a plaintiff must make the additional showing that the hardships which would be imposed upon the plaintiff if the injunction does not issue, far outweigh the ...


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