
    Patrick Murtagh, by His Father and Natural Guardian, Joseph Murtagh, et al., Petitioners, v. Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Supreme Court, Special Term, Sullivan County,
    May 17, 1974.
    
      
      David Cohen for petitioners. Robert D. Stone for Ewald. B. Nyquist, as Commissioner, respondent.
   John T. Casey, J.

The petitioners have instituted an article 78 proceeding wherein they seek to set aside a determination whereby the petitioners were prohibited from participating in high school athletics.

The petitioners were prohibited from participating in high school athletics because of section 135.4 (subd. [e], par. [3], cl. [i], subcl. [a]) of the Rules and Regulations of the Commissioner of Education (8 NYCRR 13514 [e] [3] [i] [a]). That section provides: (i) Duration of competition, (a) A boy shall be eligible for inter-high school athletic competition only during eight consecutive semesters after his entry in the ninth grade, and prior to graduation, unless sufficient evidence is presented by the chief school officer to the league or section to show that the pupil’s failure to enter competition during one or .more semesters was caused by illness, accident, or such other circumstances deemed acceptable to the league or section. Significantly, the petitioners do not contend they fall within one of the exceptions to section 135.4 (subd. [e], par. [3], cl. [i], subcl. [a]). Similarly, they do not seek an order directing the chief school officer to present to the league or section any evidence that their •failure to enter competition during one or more semesters was caused by illness, accident or other such circumstances deemed acceptable to the league or section. Instead, the petitioners claim that section 135.4 (subd. [e], par. [3], cl. [i], subcl. [a]) is arbitrary. This proceeding is, therefore, more in the nature of an action for declaratory judgment. Consequently, under CPLR 103 (subd. [c]) the proceeding shall be considered as such an action.

Section 135.4 (subd. [e], par. [3], cl. [i], subcl. [a]) was promulgated under the authority granted the Board of Regents under section 207 of the Education Law. The regulation is legislative in nature. (Education Law, § 207.) According to the answer and attached exhibits the purpose of the “ eight consecutive semesters ” rule is to prevent “ red shirting “ Red shirting ” is a practice whereby a high school student is held back for one grade for academic reasons and does not compete in athletics for that school year. The student then competes in his fifth year in high school, when he is more mature, physically developed and presumably more proficient. “ Red shirting ” is undesirable because it encourages students interested in athletics to delay completion of their high school education and because it provides a vehicle whereby the older “ red ■shirted ” student is competing with younger, less developed students — a situation which could lead to injuries. Consequently, there is an obvious and reasonable basis for the regulation, and thus this court may not annul the regulation. I have considered the other arguments of the petitioners and find them to be without merit.

Section 135.4 (subd. [e], par. [3], cl. [i], subcl. [a]) is declared valid and the action is dismissed.  