N.Y. Education Law § 3208-a: Special proceeding to determine physical capacity of student to participate in athletic programs

§ 3208-a. Special proceeding to determine physical capacity of student

to participate in athletic programs. 1. Upon a school district's

determination that a student shall not be permitted to participate in an

athletic program by reason of a physical impairment, based on a medical

examination conducted by the school physician, the student may commence

a special proceeding in the supreme court pursuant to the provisions of

article four of the civil practice law and rules to enjoin the school

district from prohibiting his participation. Such special proceeding

may be brought in the county in which the student resides or in the

county in which the school district is located.

2. The petition in the proceeding shall be a verified petition of a

parent or guardian of the student. The petition shall have annexed

affidavits of at least two licensed physicians setting forth that in

their opinion the student is physically capable of participating in an

athletic program, that participation would be reasonably safe, and any

special or preventive measures or devices needed to protect the student.

3. The court shall grant such petition if it is satisfied that it is

in the best interest of the student to participate in an athletic

program and that it is reasonably safe for him to do so.

4. No school district shall be held liable for an injury sustained by

a student granted an order under this section provided such injury is

incurred during such student's actual participation in an athletic

program and, provided further, that such injury is attributable to the

physical impairment for which such court order was obtained.

5. Unless specifically prohibited by the court, an order granted

pursuant to the provisions of this section shall be considered valid and

sufficient for subsequent years, provided that the student has not

changed athletic programs and, further, that two licensed physicians set

forth current affidavits that, in their opinion, the student's physical

impairment has not changed since the time of the original court order.

6. In no event shall a successful petitioner be entitled to costs in

any proceeding brought pursuant to this section.

7. The school district shall not be responsible for providing or bear

the cost of, any special or preventive measures or devices needed to

protect the student unless such special or preventive measures or

devices are contained in a student's individual education plan

recommended by the school district committee on the handicapped and such

student is a child with a handicapping condition, as defined in section

forty-four hundred one of this chapter.

8. A physically impaired child eligible to commence a special

proceeding as provided by this section shall be defined as any child

determined by a school physician as ineligible for participation on the

basis of the regulations of the state education department, the American

Medical Association Guide for Medical Evaluation for Candidates for

School Sports, or by any standard established by the school district

involved.

9. An athletic program for the purpose of this section shall include

intramural activities, inter-school activities, extramural activities,

and organized practice as defined by section 135.1 by the commissioner

of education's regulations.