In the Matter of Terrence J. Brooks, as Parent and Guardian of Lorne D. Brooks, et al., Petitioners,
Section V of the New York State Public High School Athletic Association, Inc., et al., Respondents.
Paul L. Leclair for petitioners.
Maureen Pilato Lamb for Section V of the New York State Public High School Athletic Association, Inc.,
Ronald Shaw for New
York State Public High School Athletic Association, Inc., respondent.
Kenneth R. Fisher, J.
Petitioners, who are students at John Marshall High School and former students of Aquinas Institute, both in the City of Rochester, instituted this CPLR article 78 proceeding seeking to vacate the decision of Section V of the New York State Public High School Athletic Association, Inc., and the appeal determination of the New York State Public High School Athletic Association, declaring petitioners ineligible to play football during their senior season at John Marshall, by reason of respondents' Bylaw and Eligibility Standard rule 29, on the ground that petitioners transferred from Aquinas to John Marshall without changing their residence. Rule 29, adopted by the New York State Public High School Athletic Association, Inc. (NYSPHSAA), provides, with four limited exceptions not relevant here, that " [a] student who transfers without a corresponding change in residence of his/her parents ... is ineligible to participate in any interscholastic athletic contest in a particular sport for a period of one (1) year if the student participated in that sport during the one (1) year period immediately preceding his/her transfer."
Petitioners contend that the rule was adopted by NYSPHSAA in violation of duly promulgated New York State Department of Education regulations which, among other things, prescribe that " [a] pupil shall be eligible for senior high school competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade." (8 NYCRR 135.4 [c]  [ii] [b] .) Petitioners further contend that Education Department regulations (described below), and indeed NYSPHSAA's Constitution, require that policies, rules and regulations for interscholastic sports, whether adopted by NYSPHSAA or its various sections, including Section V, be consistent with Education Department regulations and applicable law, and in particular the four-year eligibility mandate.
Petitioners make a second claim. Although rule 29 traditionally and even now (the text of the rule has not changed) provided for the opportunity of " each school ... to petition the section involved to approve transfer without penalty based on an undue hardship for the student" (rule 29, last sentence), respondent Section V passed a referendum in May of 2000,
distributed in December 2000, which effectively eliminated " undue hardship" petitions. Respondents relied at least in part on the referendum in denying petitioners' appeals. Petitioners contend that the referendum is itself arbitrary and capricious, as contrary to the undue hardship relief valve built into rule 29.
The initiatory papers were presented to the undersigned on Wednesday, October 3, 2001, at approximately 4:00 P.M ., together with an application for a temporary restraining order (TRO) which would have had the effect of permitting petitioners to compete in last Saturday's high school football game. Notice was given to respondents of the application for the TRO, and oral argument by telephone conference was held Thursday morning, October 4, 2001. By decision and order dated October 4, 2001, petitioners' motion for a temporary restraining order was denied on the ground that " immediate and irreparable injury" (emphasis supplied) within the meaning of CPLR 6301 and 6313 (a) would not occur before a hearing on the motion for a preliminary injunction could be held. The order to show cause bringing on the petition also was signed on October 4th setting the hearing, and indeed the return of the petition itself, on Wednesday, October 10, 2001, at 10:00 A.M . Respondents filed the return, and responded to the motion for a preliminary injunction, and oral argument was held. The parties agreed that no evidentiary hearing was necessary and that decision on the petition could be rendered without disposition of the motion ...