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Monday, Sept. 12, 2016: Good intentions, unfortunate consequences (con't)

[ Continued from Page 1 ]

   It's those regulations -- specifically the "duration of competition" clause -- that compelled Section 6 to deny Orchard Park's initial appeal on behalf of Kohler and suffer the fallout in the realm of public opinion. Upon entering ninth grade, a student has only four years of athletic eligibility available, and the clock keeps ticking even if the student does not play a sport in one or more of those years. The exceptions are few and far between, and none seem to apply to Kohler because he remained in school the entire time -- even though he struggled in the classroom before becoming involved in sports.

   On average, Elia and her predecessors at NYSED have handed down a decision roughly every other day for the past quarter of a century. I've slogged my way through many of the sports-related appeals and could not find an instance in which a commissioner set aside the duration of competition regulation under circumstances remotely close to Kohler's. What I also noted was that these cases (related to sports or otherwise) tend to take a very long time to address and then resolve, to the point that decisions are sometimes rendered moot by the student having graduated or because the circumstances triggering the dispute no longer exist.

   With that in mind, I have to wonder whether Elia's announcement on this situation allowed her to do what observers might see as "the right thing to do" for now before she hands down a decision well after the final football game that Kohler's appeal would have to be turned down.

   If that's the case -- and I have no firm reason to believe it was her intent -- then one would have to ask whether Elia was influenced by external factors other than public sentiment. For one, State Sen. Tim Kennedy of Buffalo wrote to her on Kohler's behalf last month and his office promoted a petition to support the youth. Having a politician breathing down one's neck would be uncomfortable for anyone serving in an appointed position, particularly if they had been fired from their previous post in what seemed to be a politically inspired spat.

   I also wonder whether Kohler's role on the Orchard Park team -- as a relatively diminutive young man with minimal football background he doesn't get to play much, and even then only when the outcome is all but decided -- factored into Elia's decision.

   If that's the case, it can become a slippery slope in a hurry. Should prospective Section 1 male field hockey players in a couple of recent cases have been given the same benefit of the doubt over challenges to the mixed competition rules? Also, male volleyball players seeking to play on girls teams have been on a lengthy losing streak in recent appeals to sectional committees.

   More relevantly, would Mikey Brannigan have been given the same courtesy as Kohler had he needed it a couple of years ago? Doug Binder of did an enlightening story 18 months ago on Brannigan and the challenges presented by autism during his time at Northport. By any measure, Brannigan was then and is now in the top 1 percent of U.S. male milers. Had he required an additional year of school and been allowed to compete, he would have left at least 99.5 percent of all other N.Y. high school runners in his dust.

   Combined with a perplexing recent reversal on a transgender student issue, the announcement regarding the Orchard Park player could be taken as a sign that what once seemed to be pretty clear-cut regulations and guidelines are now gray areas worth challenging.

   If lawyers sense opportunity, business is going to start getting brisk in Elia's office. That leads me to remind the NYSED to be careful what you ask for because you might just get it.

   Completing today's trifecta: I hadn't thought much recently about Devonte Green, who was an outstanding Long Island basketball player, earned a scholarship and has now enrolled at Indiana University.

   You might recall that Green became the source of some controversy the final week of the 2015-16 basketball season when I reported that he somehow was playing his seventh season of varsity basketball, seemingly an impossibility under New York State Education Department regulations.

   I wrote at the time that I had received no cooperation -- in most cases not even the courtesy of a returned phoned call or email -- from officials of the New York State Association of Independent Schools or Long Island Lutheran, the last of Green's numerous high schools.

   My point of contention was that as a member of the New York State Federation of Secondary School Athletic Associations, LuHi and the NYSAIS had pledged to abide by NYSED regulations. To that end, I wanted to know if the NYSAIS had sought the advice of the state education commissioner's office before granting what appears to have been an unprecedented seventh year of eligibility to Green. football site

   There are extraordinary circumstances under which Green might have qualified for the extended eligibility, but I couldn't uncover any that seemed to apply to Green based on my knowledge of his background and I couldn't gain any insight into what the thought process was at the NYSAIS, which decided going into a shell was the smart response to a reporter's inquiry.

   I might yet gain access to that information courtesy of a suit filed last Friday in State Supreme Court on Staten Island. The Luthmann Law Firm is seeking access to the all NYSAIS documents "related to the Respondent NYSAIS' eligibility decision with respect to Devonte Green ..."

   The NYSAIS has until the end of this week to comply as part of the eligibility case tentatively scheduled to be heard Oct. 21. In that case, the family of Jordan Caruso is seeking an additional year of basketball eligibility for him. Caruso is a more than just modestly talented point guard at Staten Island Academy, a NYSAIS school, and he appears to have missed a substantial portion of the freshman basketball schedule for St. Peter's of the CHSAA in 2012-13.

   My perusal of the court filing leads me to believe that Caruso quite possibly has better standing to receive the eligibility waiver than Green ever did, but the NYSAIS rejected his appeal in January of this year. By the looks of the court filing, Caruso attorney Richard A. Luthmann's gameplan appears to be to tear into the NYSAIS in court on grounds of inconsistency.

   Certainly the NYSAIS has the right to conduct business in privacy, especially when dealing with matters related to students. But in all likelihood they are going to be made to divulge documentation that could make it very difficult to reconcile their ruling on Devonte Green with their ruling on Jordan Caruso.

   They might have felt they were doing the right thing for Green at the time, but where NYSAIS officials fell short was by being less than forthcoming last March when challenged on the issue. They could have answered certain questions without breaching confidentiality.

   Instead, they pulled a hockey move and "turtled," relying upon the privacy shell to justify their non-responsiveness. Well, it looks as though they're going to have to respond now. And a State Supreme Court justice carries a hell of a lot more weight than a reporter does.

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