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Board of Education of the City of S., On Behalf of S.R.,*Fn1 v. New Jersey State Interscholastic Athletic Association


October 23, 2012


On appeal from the Department of Education, Agency Docket No. 94-4/12.

Per curiam.


Argued: October 17, 2012

Before Judges Axelrad and Haas.

Petitioner, a high school senior, appeals from the Commissioner of Education's (the Commissioner) decision upholding the New Jersey State Interscholastic Athletic Association's (the NJSIAA) denial of his petition for a waiver from the NJSIAA's Eight Semester Rule which disallows him from participating in secondary level football and baseball for a fifth year. Petitioner argues the NJSIAA applied the incorrect standard, and challenges the Commissioner's decision as arbitrary, capricious, and unreasonable, particularly in light of waivers previously granted by the NJSIAA. We are not persuaded by petitioner's arguments and affirm.


On January 25 2012, petitioner's high school principal applied to the NJSIAA for a waiver of the Eight Semester Rule on petitioner's behalf. On February 1, 2012, a nine-person Eligibility Committee unanimously denied the waiver, concluding petitioner had "not met the test of 'truly extraordinary circumstances.'" The school appealed to the NJSIAA's Eligibility Appeals Committee (EAC), which held a hearing on March 7, 2012. The EAC issued a written decision on March 15, 2012, denying the waiver by a 5-0 vote.

The Board of Education (BOE) appealed to the Commissioner. In a written opinion issued on June 25, 2012, the Commissioner upheld the NJSIAA's decision and dismissed the petition. Petitioner filed an appeal to this court on his own behalf. By order of August 16, 2012, we granted petitioner's motion to accelerate the appeal.


The NJSIAA is an independent, voluntary, and non-profit organization comprised of 433 public, non-public, and independent high schools in the state of New Jersey. It coordinates and regulates the athletic programs of its member schools to ensure uniformity in high school athletics across the state. As a member school, petitioner's high school is bound by the NJSIAA's charter, constitution, bylaws, rules, and regulations. N.J.S.A. 18A:11-3.

One of the basic eligibility rules for student athletes is the Eight Semester Rule. High schools in New Jersey have agreed that eligibility to play sports should be restricted to four years -- or in the words of the Rule, "eight consecutive semesters following his/her entrance into the 9th grade." NJSIAA Handbook, Bylaws, Article V, Section 4.J.

The pertinent part of the Rule states:

J. Semester of Eligibility

1. No student shall be eligible for high school athletics after the expiration of eight consecutive semesters following his/her entrance into the 9th grade. A student becomes ineligible for high school athletics when the class in which he/she was originally enrolled has graduated.

The purpose underlying the so-called "Eight Semester Rule" is explained in the NJSIAA's "Interpretive Guidelines for Student-Athlete Eligibility," published annually in the NJSIAA's Handbook and available on its website, as follows:

3c. The Eight Semester Rule - Article V, 4.J of the Bylaws basically provides that, with the exception of honorably discharged servicemen and servicewomen, and classified students who are ungraded, no student shall be eligible for high school athletics after the expiration of eight consecutive semesters following his/her entrance into the 9th grade. This rule is intended to prohibit "red shirting," and is also aimed at preventing athletically gifted pupils who are not meeting academic standards from replacing other students who are maintaining their academic standards but who might not have the same athletic prowess. The rule is also aimed at maintaining a uniform progression among all member schools within a four-year cycle and equalizing competition within these schools.

Unfortunately, despite its explicit terms and its obvious objectives, some member schools have interpreted this rule as applying to eight semesters of competition rather than eight semesters of attendance in a secondary school. The NJSIAA will not permit a student to participate in any sport for more than four seasons. Students below the 9th grade who participate on a high school team will be ineligible at the conclusion of eight consecutive semesters.

The fact that a student has not participated for four seasons will not in itself justify allowing such a student to participate in interscholastic sports beyond the eighth semester after his or her entrance into the ninth grade. Since the NJSIAA carefully regulates practice and scrimmages and is most concerned over the possibility of "red shirting," "participation" in any sports season will begin on the very first day that a Student-Athlete participates in or attends practice in a particular sport.

The Interpretative Guidelines set forth the standards for granting a waiver. The Eight Semester Rule may be waived when a student proves he or she cannot comply with the Rule due to circumstances beyond his or her control. Waivers are not granted when a student has repeated a year for academic reasons. The waiver provision is as follows:


In appropriate cases, the Eligibility Committee or the Eligibility Appeals Committee may grant a waiver from the strict application of any eligibility rules, where the overall objectives of the Association and its member schools will not be undermined. Specifically, waivers of these provisions have been granted in the past where it was shown that a student could not maintain the required academic standards or that he or she had to continue secondary schooling beyond the eighth semester because of circumstances beyond that student's control. By way of illustration, waivers have been granted because a student is a classified pupil who could not carry a full academic load.

Correspondingly, waivers of the eight semester rule have been granted where a student has had to repeat a semester or more because he or she was absent from school because of medical or psychological reasons or because that student was required to be home with a parent or guardian who was ill, or to a classified student whose Individual Education Program (IEP) mandated that student extend his or her schooling beyond the normal eight semester program.

Member schools must be aware of the fact that waivers are only intended to equalize opportunities among otherwise eligible students who cannot strictly comply with the eligibility rules because of circumstances beyond their control, and is not intended to provide such students with an actual advantage over the great majority of students who maintain appropriate academic standards over the normal eight semester secondary program. Accordingly, waivers of these rules are never granted where it would allow a student to participate in more than four seasons in any one sport or where a student has repeated an academic semester or year of secondary school for academic reasons.

It is expected that waivers of the academic, and eight-semester rule, as well as the age rule involving non-contact sports will continue to be granted, where it is determined that a student cannot comply because of circumstances beyond his/her control. . . . (emphasis added.)

The assistant principal and athletic director appeared on petitioner's behalf at the hearing before the EAC and presented the following facts and documentary evidence. The material facts are not in dispute. Petitioner entered his freshman year at a public high school in Maryland in September 2008, at age fourteen. During that time he played freshman football and baseball. He was late developing, about five feet three inches and ninety-five pounds, and was struggling with his courses. He was an average student with about a 2.8 GPA.

Petitioner relocated to North Jersey from Maryland with his family in September of 2009, when his father secured a new position in the area. After consulting with education professionals at the high school, petitioner's family decided it would be in petitioner's best interest to repeat ninth grade at the public high school, as it would afford him an additional opportunity to mature physically, emotionally, and academically. Petitioner's parents were looking for an opportunity to have him repeat a year of his education as early as fifth grade but, for a variety of reasons, it was not effectuated until the move to North Jersey. Petitioner participated in football and baseball during his freshman, sophomore, and junior years at the high school. He passed his courses, though he continued to struggle. Petitioner developed physically and, at the time of the hearing, was approximately six feet tall and one hundred and forty pounds.

Since petitioner competed in interscholastic sports on the secondary level for four years, counting the year he spent in high school in Maryland, he was ineligible to play sports during his senior year pursuant to the Eight Semester Rule. At the hearing, the school's representatives argued that petitioner should be permitted to play because being an athlete is integral to his social identity and contributed greatly to his overall development. They posited that the decision to delay petitioner academically was a difficult one for his parents but has proven to be correct as petitioner continues to struggle academically despite having been held back. When asked how petitioner's case differs from "red shirting," the eschewed practice of purposefully holding a student-athlete back to allow physical or emotional maturation, the school officials emphasized that petitioner was primarily held back for academic rather than athletic reasons.

In its written decision denying the waiver, the EAC noted that petitioner's parents' decision to retain him a year at the high school in New Jersey "may have been appropriate for [his] growth and development," but there was nothing that distinguished his case from "traditional 'red shirting,'" which "gives a student an athletic advantage over students who were not intentionally held back." As petitioner already had the opportunity to play four years of high school sports, granting a waiver would "provide [petitioner] an advantage over all other students" by "[a]llowing him to participate in high school sports for a fifth year," rather than "equalize opportunities," in direct contravention of the purpose for which waivers are permitted. Additionally, petitioner was a starter on an excellent football team; thus, if he were granted the opportunity to play for a fifth year, he would displace another student-athlete who is on a four-year track.

On appeal to the Commissioner, the BOE challenged the NJSIAA's conclusion that repeating the ninth grade allowed petitioner to advance physically and athletically as ignoring the critical fact that the family's decision was an effort to also cure the social, emotional, and academic disparity between petitioner and his peers. The BOE also stressed the family's decision to retain petitioner long before he entered high school or the move to New Jersey materialized, and thus the decision was not driven by a desire to give petitioner an athletic edge, but to help him academically. The BOE further argued it would be unfair to count petitioner's limited playing time on the freshman football team in Maryland against him. It additionally urged that the NJSIAA waived the eligibility rule in a number of analogous cases. Lastly, the BOE claimed petitioner deserved a waiver as he is not a "'difference maker' on the football field" and will not displace other students on the team.

The Commissioner rejected the school's argument that the NJSIAA's decision was arbitrary, capricious, and unreasonable. The Commissioner concluded:

[T]he Commissioner cannot find that the NJSIAA applied its rules in a patently arbitrary or unreasonable manner, in light of its duty to ensure fairness and integrity in athletic competition statewide. [Petitioner] has already had the opportunity to participate in four years of high school athletics as envisioned by the eligibility rules. Moreover, the Commissioner is in accord with the NJSIAA's finding that the [petitioner's] family's decision to have [petitioner] repeat ninth grade to give him an opportunity to grow physically and emotionally was voluntary and does not amount to circumstances beyond their control. Finally, the NJSIAA's conclusion that the circumstances in this case are indistinguishable from "red shirting" is not arbitrary[,] capricious[,] or unreasonable.

Accordingly, the Commissioner -- having found that petitioner was afforded the due process to which it was entitled and that the NJSIAA's decision denying the request for waiver was neither arbitrary nor unreasonable -- upholds the NJSIAA's decision and dismisses the petition of appeal.

This appeal ensued.


On appeal, petitioner renews the arguments made to the NJSIAA and the Commissioner. He emphasizes that the choice to repeat the ninth grade was forced by his poor academic performance, which was beyond his control; that it would be unjust to count the year he spent on the football team in Maryland when he only played three games; and reiterates that he is not a game-changing athlete who would shortchange other students by playing a fifth year. He also argues the Commissioner's determination should be overturned because the NJSIAA's decision was made using an incorrect, and more onerous standard, of "truly extraordinary circumstances" rather than "circumstances beyond his control."

Based on our review of the record and applicable law, we are not persuaded by any of petitioner's arguments and affirm substantially for the reasons articulated by the Commissioner and EAC. Our standard of review of administrative determinations is limited. "[W]e will not reverse the determination of an administrative agency unless it is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993) (citing Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993)). We limit our review "to a determination of whether the [Commissioner's] decision is 'unreasonable, unsupported by the record or violative of the legislative will.'" D.L. v. Bd. of Educ. of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting Capodilupo v. Bd. of Educ. of W. Orange, 218 N.J. Super. 510, 515 (App. Div.), certif. denied, 109 N.J. 514 (1987)).

We are not bound by an administrative agency's legal opinions. Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999)). Nonetheless, administrative decisions are cloaked with a "strong presumption of reasonableness." Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980). Additionally, the "agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (internal quotation marks and citation omitted). Regarding educational matters, the New Jersey Supreme Court has cautioned that "the courts cannot supplant educators; they are not at liberty to interfere with regulatory and administrative judgments of the professionals in the field of public education unless those judgments are palpably arbitrary or depart from governing law." Dennery, supra, 131 N.J. at 643.

We have to "undertake a 'careful and principled consideration of the agency['s] record and findings.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Riverside Gen. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)). However, if we are satisfied after our review that "the evidence and the inference to be drawn therefrom support the agency head's decision, then [we] must affirm even if [we] . . . would have reached a different result." Campbell, supra, 169 N.J. at 587 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). See also N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) ("holding a reviewing court is not to substitute its judgment for that of the agency").

Petitioner is correct that under the NJSIAA's Interpretive Guidelines, requests for waiver from any of the eligibility rules require only that the applicant demonstrate his or her inability to meet eligibility standards is due to circumstances beyond the applicant's control and the "truly extraordinary circumstances" language is used only in connection with waiver applications by students who have turned nineteen years old at the start of the school year. Nevertheless, we are convinced the NJSIAA's misstatement and the Commissioner's reference to that language in his procedural history had no impact on the ultimate decision and thus does not constitute reversible error. The Eligibility Committee issued a preliminary, not final decision, that was heard de novo by the EAC, which reached the same conclusion following a plenary hearing. Moreover, the Commissioner, whose determination we review, applied the proper standard and expressly found petitioner's family's decision "was voluntary and did not amount to circumstances beyond their control."

We discern no legal basis upon which to second-guess the determination made by the Commissioner in this matter. The appropriate process was followed. Petitioner was afforded due process every step of the way. He played two sports his freshman, sophomore, and junior years at the New Jersey high school. He then had the opportunity to seek a waiver of the Eight Semester Rule with the Eligibility Committee and, upon appeal, had his representatives present his position at a hearing before the EAC. The BOE presented his appeal to the Commissioner, and petitioner personally appealed the adverse decision to this court. We accelerated the appeal and have promptly rendered a decision.

There is substantial and credible evidence in the record to support the Commissioner's determination, which is a legitimate judgment call. Petitioner is not a special needs student, he did not have an illness that ruined one of his sports seasons, and he is not a classified student with an IEP. His parents made what they believed was a good decision for him so he could mature physically, socially, and academically. That, however, does not make the NJSIAA's decision arbitrary and capricious. The NJSIAA or Commissioner did not attribute a nefarious purpose to the decision to retain petitioner in ninth grade; to the contrary, they found petitioner's family decided it would be "in his best interests." Nonetheless, the legal result is the same -- it is a voluntary decision and the resulting circumstances and impact are indistinguishable from "red-shirting."

The cases, some of which are not actual decisions, cited by petitioner are factually distinguishable. They involve waivers or proportionality relief for students under another section of the rule -- section four, not section one -- namely, students who begin playing high school sports prior to ninth grade. Those cases involved students moving to New Jersey from states that permitted middle school students to play high school sports, which New Jersey does not. The decisions recognized that those students participated, for example, on a junior varsity team, while in middle school, pursuant to the rules of the states in which they lived, in part because of the small size of the schools, without knowledge that they would one day move to New Jersey, which had a different rule. Those students had no way of knowing that by playing sports in middle school they would use up their eligibility under New Jersey's eligibility rule. Those students also did not repeat a grade.

Moreover, as we were advised at oral argument by the NJSIAA's attorney, if petitioner had remained in Maryland and repeated a grade, he would have faced the same Eight Semester Rule as in New Jersey. He was unaware of whether Maryland had a waiver procedure.*fn2


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