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OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The State Superintendent of Education, pursuant to Section 3(b)(11) of the District of Columbia State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C. Official Code §§ 38-2602(b)(11) (2012 Supp.)) and Section 401 of the Healthy Schools Act of 2010, effective July 27, 2010 (D.C. Law 18-209; D.C. Official Code §§ 38-824.01 (2012 Supp.)), hereby gives notice of an emergency and proposed rulemaking amending Chapter 27 (Interscholastic Athletics) of Subtitle A (Office of the State Superintendent of Education) of Title 5 (Education) of the District of Columbia Municipal Regulations (DCMR), adopted on July 31, 2013.
This emergency proposed rulemaking maintains the framework of rules published on September 14, 2012 (59 DCR 10858), and incorporates recommendations received from D.C. Public Schools (“DCPS”) and public charter schools during the thirty (30) public comment period commencing April 5, 2013 (60 DCR 5147) to an initial rulemaking proposing amendments to Title 5-A Chapter 27 (DCMR). This emergency proposed rulemaking maintains uniformity among public schools to enhance eligibility, student safety, training standards, recruiting, and scholarship opportunities, for the immediate benefit of District’s high school student athletes attending D.C. Public Schools (“DCPS”) and public charter schools. The primary purpose of the revisions is to refine provisions affecting the safety and wellbeing of student athletes with an effective date prior to the start of the upcoming 2013-2014 school sports season beginning in mid-August 2013.
These emergency rules were approved by the State Superintendent of Education on July 31, 2013, and are deemed effective as of that date. The State Superintendent of Education also gives notice of her intent to take final rulemaking action to adopt these rules on a permanent basis not less than thirty (30) days after the date of publication of this notice in the D.C. Register.
The emergency rule shall remain in effect for one hundred twenty (120) days after the date of adoption, expiring on November 28, 2013, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Chapter 27 (Interscholastic Athletics) of Subtitle A (Office of the State Superintendent of Education) of Title 5 (Education) of the District of Columbia Municipal Regulations (DCMR) is amended in its entirety to read as follows:
CHAPTER 27 INTERSCHOLASTIC ATHLETICS
2700 GENERAL POLICY
2700.1 Student participation in interscholastic athletic programs in the District of Columbia public schools in grades four (4) through twelve (12) shall be governed by the rules and procedures set forth in this chapter.
2700.2 Interscholastic athletic programs shall place an emphasis on academic achievement, principles and practices of good sportsmanship, ethical conduct, and fair play, as well as safety, skills, and the rules of a particular sport.
2700.3 Consistent with this chapter, each Local Educational Agency (“LEA”) shall promulgate and implement interscholastic athletic standards including, without limitation, safety and first aid, eligibility, satisfactory progress toward graduation, practice, equipment, training, probationary actions, and grievance procedures for participants.
2700.4 Each LEA shall ensure that students with disabilities consistently have appropriate opportunities to participate in extracurricular athletic activities.
2700.5 All coaches, officials and other personnel, including volunteers engaged with students participating in interscholastic LEA programs, shall obtain a required background check, and demonstrate expertise with regard to a respective sport, applicable rules, safety and first aid standards.
2700.6 A student shall not be excluded from participation in, be denied the benefits of, be treated differently from other students, or otherwise be unlawfully discriminated against in interscholastic athletics based on, race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intra-family offense, or place of residence or business.
2700.7 Notwithstanding § 2700.6, a public school may operate a separate sports team for members of each sex, provided that the selection for such team is based upon competitive skill or the activity involved is a contact sport.
2700.8 Notwithstanding § 2700.6, a public school may operate a sports team for members of a single sex, so long as the public school operates a sports team for an underrepresented sex when there is sufficient interest to maintain a team. In the event there is insufficient interest, the LEA shall allow members of the underrepresented sex to try out for existing teams and qualify based on appropriate skill level, safety, and other standards for participation on such team.
2700.9 Except as provided in § 2700.12, a high school varsity team shall be limited to eligible students enrolled in that high school in grades nine (9), ten (10), eleven (11), and twelve (12).
2700.10 Except as provided in § 2700.12, a junior varsity team in high school shall be limited to eligible students enrolled in that high school in grades nine (9), ten (10), and eleven (11).
2700.11 A student who has participated in varsity competition in a sport during a school year shall be ineligible to participate in junior varsity competition in the same sport in the same year.
2700.12 (a) A DCPS student in grade nine (9), ten (10), eleven (11), or twelve (12) attending a DCPS school in which a desired sport is not offered, may request authorization at any DCPS school offering the desired sport.
(b) A public charter school student in grade nine (9), ten (10), eleven (11), or twelve (12) attending a public charter school in which a desired sport is not offered, may request authorization at another school located within the student’s attendance zone (based upon the student’s primary residential address), or at another public charter school.
(c) Students under this section seeking to participate at another school may only participate if it is allowed in the written policy of the LEA in which the student seeks to participate, and the student meets the eligibility requirements of the State, LEA, and school. An LEA may require actual costs associated with a student’s participation and the sending school is required to provide funding for the costs.
2700.13 LEAs and member schools shall annually publish their schedules for interscholastic competition.
2700.14 The State Superintendent may establish an advisory committee on interscholastic athletics to advise LEAs or the Office of the State Superintendent of Education (“OSSE”) on matters pertaining to interscholastic athletic programs.
2700.15 LEAs that receive federal funding and maintain athletic programs in the District shall designate at least one (1) employee for purposes of athletics to coordinate with the LEAs’ Title IX (as codified at 20 U.S.C. §§ 1681 – 1688) coordinator, to ensure that the requirements of Title IX are met regarding athletics.
2701 ELIGIBILITY TO PARTICIPATE
2701.1 The eligibility certification for students to participate in interscholastic athletics shall occur as follows:
(a) Principals shall be responsible for determining the eligibility of the students participating in interscholastic athletics by submitting a master eligibility list to the LEA’s athletic director (“AD”) fourteen (14) days before the date of the first (1st) official contest for each team.
(b) A supplemental eligibility list may be submitted up to fourteen (14) days after the first (1st) official contest. However, students on the supplemental eligibility list may not participate without the prior written approval of both the Principal and the LEA’s AD.
(c) Each LEA shall report the eligibility and participation of each student determined eligible to play by his or her Principal not later than seven (7) calendar days after receipt of the master eligibility list from the Principal, to the Statewide Athletics Office (“SAO”). Any supplemental list shall also be provided to the SAO immediately after it has been approved by the Principal and LEA.
(d) Each LEA shall provide a written summary with supporting documentation to the SAO with regard to any determinations related to a student’s ineligibility within five (5) school days of the determination of ineligibility.
(e) An LEA shall maintain a record of a student’s eligibility for each school year of a student’s participation on a junior varsity or varsity team. All documentation required in this chapter shall be on file prior to the first (1st) official contest of each sport and maintained during the sport season.
(f) The SAO, upon a thirty day (30) request to the LEA, shall be given access to review and sample athletic eligibility files. The SAO shall notify the LEA in writing regarding any recommendations to maintain sufficient eligibility documentation.
2701.2 LEA and school representatives shall not engage in any activity seeking to influence a student to transfer from one (1) LEA or school to another for the purpose of participating in interscholastic athletics.
2701.3 A student who transfers enrollment from any school to a public school in the District of Columbia in grades nine (9), ten (10), eleven (11), or twelve (12) is ineligible to participate in interscholastic athletics unless he or she meets one (1) of the following exceptions:
(a) A student in grade nine (9) may transfer one (1) time during that school year without loss of eligibility;
(b) A student attending a public school moves to a new bona fide permanent residence in the District of Columbia, with his or her custodial parent(s), legal guardian, or primary caregiver;
(c) The student is transferred to another school by any court order;
(d) A reorganization, consolidation, or annexation of the student’s school occurs;
(e) The closure of the student’s school or school’s athletic program;
(f) The student is ordered to transfer for non-athletic purposes;
(g) The student has special needs, as identified by the Individualized Education Program (IEP) or Section 504 Plan, and is transferred to another public school for the delivery of a free appropriate public education;
(h) A transfer is the result of the student’s being homeless as defined in the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11434a(2), except if the student’s homeless status is shown to have been created by the student or his/her family for the primary reason of eligibility in interscholastic athletics;
(i) The student transfers as provided for in 5 DCMR E § 3805 because his or her school has been designated as a persistently dangerous school;
(j) The student transfers as provided for in 5 DCMR E § 3809 because he or she has been the victim of a violent crime or a pattern of bulling or other aggressive conduct or sexual harassment;
(k) The student is a qualified foreign exchange student under § 2701.4(e) or an international student residing in the District with his or her parents.
(l) The period of ineligibility for students that transfer absent an exception shall be one (1) calendar year commencing with the first (1st) day of official attendance in the receiving school.
2701.4 The LEA shall develop written procedures for challenges to eligibility based upon credible information that a student may not meet eligibility requirements set forth in this chapter. Challenges to a student-athlete’s eligibility shall occur as follows:
(a) A challenge must be presented in writing and signed by the submitting party, addressed to the appropriate school authority where the student is enrolled.
(b) The LEA shall provide a written report with supporting documentation of its findings and the student’s right to appeal to the LEA, to the challenging party, SAO, and parents or guardian, not later than five (5) school days after the date the matter is reported to or by the LEA.
(c) Upon a final eligibility determination by the LEA, the LEA shall issue the results of its review and supporting documentation to the SAO and the parents or legal guardian. For the protection of his or her team’s win/loss record, the student whose eligibility is in question may not practice, scrimmage, or play in any school sponsored interscholastic athletic competition, until the LEA has issued its eligibility determination pursuant to its review.
(d) In the event an LEA requires forfeiture of a contest already played, the Athletic Appeals Panel (“Panel”) shall review the decision affirming or denying the forfeiture and shall provide the results of its findings and recommendations to the LEA not later than five (5) school days after the date the matter is reported to the SAO.
(e) If the LEA fails to provide the results and supporting documentation required in this subsection before the student participates, the SAO may on its own initiative refer the case to the Panel for a final decision regarding eligibility and the forfeiture of contest.
2701.5 In order to be eligible to participate in interscholastic athletics at a public school, a student shall also meet the following requirements:
(a) A student shall be a resident of the District of Columbia in conformance with all residency laws and regulations for students attending public schools in the District of Columbia.
(b) A nonresident student of the District of Columbia is eligible to participate in interscholastic athletics under the following circumstances:
(1) Admission to a public school complies with applicable laws and Regulations;
(2) Applicable nonresident tuition payments are current; and
(3) Enrollment in a public school in the District of Columbia for one (1) calendar year, consistent with § 2701.3.
(c) A student shall provide written authorization for each team that he or she wishes to participate on, and the authorization shall contain the signature of the custodial parent, legal guardian, or primary caregiver.;
(d) A student shall provide a medical certification confirming that the student is physically fit for the sport in which the student seeks to participate;
(e) (1) A student shall be covered by appropriate accident insurance, obtained either by his or her LEA or his or her parent or guardian and approved by his or her school’s LEA, during each season the student participates;
(2) Appropriate notice of the coverage and cost of the accident insurance obtained by his or her school’s LEA shall be provided annually to parents or guardians and adult students;
(3) A parent or guardian submitting a policy for approval by the student’s school’s LEA shall do so within the time specified by the LEA; and
(4) Students participating in football shall be insured by additional football accident insurance which shall be paid for by the LEA in which the student is enrolled;
(f) A student athlete shall maintain compliance with State attendance regulations and shall be present at least two-thirds (2/3) of the required school days preceding the first day of each season designated by the SAO for each sport that the student participates in. The student athlete shall have no more than three (3) unexcused absences during the season of participation for each sport;
(g) A student in grade nine (9), ten (10), eleven (11), or twelve (12), shall have a grade point average of at least 2.0 (“C”) to participate in interscholastic athletics;
(h) A student in grade four (4), five (5), six (6), seven (7), or eight (8) shall not fail more than one (1) subject in the grading period immediately preceding the sport season in which the student wishes to participate;
(i) The student shall not have graduated from high school from the LEA for which he or she participates in a sport; provided, that an eligible student whose graduation exercises are held before the end of the school year may continue to participate in interscholastic athletics until the end of that school year;
(j) A student-athlete who reaches the following ages on or before August 1 of the school year in which he/she wishes to compete is not eligible:
(1) (12) years old in grades four (4) and five (5);
(2) (15) years old in grades six (6) through eight (8); or
(3) (19) years old in grades nine (9) through (12);
(k) A student shall maintain amateur standing by engaging in sports only for the physical, educational, and social benefits derived from sports and by not accepting, directly or indirectly, a remuneration, gift, or donation based on his or her participation in a sport other than approved school, LEA, or State awards;
(l) A student is eligible to participate in regular season, playoff, or championship interscholastic athletic contests for a maximum of:
(1) Four (4) semesters (two (2) seasons) in grades four (4) through five (5);
(2) Six (6) semesters (three (3) seasons) in grades six (6) through eight (8); and
(3) Eight (8) semesters (four (4) seasons) in grades nine (9) through twelve (12), consistent with paragraphs in this subsection;
(m) (1) Semester computations pursuant to Subsection (l) shall begin from the semester in which the student was enrolled for the first time in any school in grades four (4), six (6), and nine (9), and shall be counted continuously thereafter, regardless of whether he or she remains continuously enrolled in school.
(2) For student athletes in grades nine (9) through twelve (12), eligibility shall cease at the end of the eighth (8th) semester after first (1st) entering the ninth (9th) grade;
(n) Completion of a summer school program shall not be counted as a semester of attendance;
(o) A student shall participate only under the name by which he or she is registered in the public school he or she attends;
(p) A student’s participation shall be classified as follows:
(1) Grades four (4) and five (5) shall participate on the elementary level;
(2) Grade six (6) shall participate on the elementary level, unless enrolled in grade (6) at a middle school, in which case shall participate on the middle school level;
(3) Grades seven (7) and eight (8) shall participate on the middle school level; and
(3) Grades nine (9) through twelve (12) shall participate on the high school level;
(q) The grade designation on the student’s official record, or official transfer record, shall be controlling in determining whether a student is assigned to grades four (4) through six (6) as used in this chapter;
(r) A student shall be considered to be assigned to grades seven (7) through twelve (12), as used in this chapter, based upon the qualifications adopted by the Chancellor of DCPS or the director of another LEA, as applicable; or the grade designation on the official transfer record from another jurisdiction; provided that the student has met the minimum criteria required for the grade;
(s) A student may represent only one (1) school in the same sport during a school year;
(t) A student who has participated in varsity competition in a sport during a school year shall be ineligible to participate in junior varsity competition in the same sport in the same year;
(u) A student who needs fewer than two (2) credits to graduate from twelfth (12th) grade and who transferred to a high school within the preceding twelve (12) months is prohibited from participation in any interscholastic athletic activity for the duration of the student’s enrollment at that school;
(v) An international student participating in a foreign exchange program shall be considered immediately eligible for a maximum period of one calendar school year if the student:
(1) Has not completed his or her home secondary school program;
(2) Meets all other eligibility requirements of this section;
(3) Has been randomly assigned to his or her host parents and school and neither the school the student attends nor any person associated with the school has had input in the selection of the student and no member of the school’s coaching staff, paid or voluntary, serves as the resident family of the student;
(4) Possesses a current J-1 visa issued by the U.S. State Department; and
(5) Is attending school under a foreign exchange program on the current Advisory List of International Educational Travel and Exchange Programs published by the Council on Standards for International Education Travel and such program assigns students to schools by a method which ensures that no student, school, or other interested party may influence the assignment;
(w) An international student not participating in a foreign exchange program shall be treated as all other students who transfer schools;
(x) A student in grade nine (9), ten (10), eleven (11), or twelve (12) shall not participate in the same individual or team sport outside of school, or with a team, an organized league, tournament meet, match or contest between the first (1st) and last scheduled contest of the school team during the season of the sport; provided, that a student who is selected to represent the United States in international amateur competition shall not become ineligible in school competitions for participating in qualifying trials. The following sports shall be exempted from the restrictions of this paragraph:
(1) Golf;
(2) Swimming;
(3) Tennis;
(4) Gymnastics;
(5) Volleyball;
(6) Softball;
(7) Track and field;
(8) Cross-country;
(9) Crew;
(10) Soccer;
(11) Cheerleading;
(12) Lacrosse;
(13) Rugby;
(14) Field Hockey; and
(15) Wrestling;
(y) A hardship waiver was granted to the student by the Panel.
2701.6 A request for a waiver of the eligibility requirements shall be made only upon presentation in writing by the AD of an LEA to the SAO for a decision by the Panel, as follows:
(a) A request for a waiver from the requirements in this chapter shall be presented to the SAO in writing with supporting documentation by the LEA;
(b) The SAO shall forward the waiver request received from the AD of an LEA to the Panel; and
(c) No later than five (5) school days after the date of receipt, the Panel shall affirm or deny the waiver request in a written decision.
(d) The decision of the Panel is final.
2702 INELIGIBILITY AND CHALLENGES
2702.1 A student who is ineligible to participate in interscholastic athletics is prohibited from playing, practicing, or otherwise participating with a team in the District of Columbia during the period of such ineligibility.
2702.2 A student who participates in interscholastic athletics and is found ineligible is prohibited from participating in any interscholastic competition for one (1) calendar year from the date of the finding of ineligibility. Additionally, in order to be considered for eligibility when the calendar year has passed, the student must show that all of the eligibility requirements are satisfied.
2702.3 A student who is ineligible to participate in interscholastic athletics at the time of transfer from one (1) school to another, for any reason other than failing to meet the requirements of this chapter, shall not be considered for eligibility at the receiving school until one (1) full calendar year has passed from the date it was determined that the student was ineligible.
2702.4 Each LEA shall establish policies addressing probationary actions based on determinations of ineligibility in accordance with this chapter. The LEA shall provide copies of the written regulations to the SAO no later than August 1 of each school year.
2702.5 Any LEA carrying an ineligible student as a member of the team shall forfeit each contest played by such student.
2702.6 If any forfeiture creates a tie among teams participating in a SAO tournament and/or championship contest, a coin toss as mutually agreed by the school ADs shall determine the requisite order.
2702.7 An LEA, or school official including, without limitation, a coach, trainer, or volunteer assisting in athletics, who knows, or should have known, that an ineligible student is participating or has participated in an interscholastic athletic program or contest, shall be subject to disciplinary action pursuant to LEA regulation or policy.
2702.8 The LEA shall provide the disciplinary determinations pursuant to § 2702.7 to the SAO for review by the Panel no later than five (5) calendar days after the date of such action. The Panel shall investigate the matter and issue a written decision whether the school officer or agent participation in SAO activities shall be reduced, suspended, or revoked, in addition to any LEA actions.
2703.1 A student who participates in a team sport may participate in an “all-star” competition for the sport that occurs outside the interscholastic season of the sport without jeopardy to his or her eligibility if:
(a) The all-star competition is an activity sanctioned by the SAO or another National Federation of State High School Association (“NFHS”) member;
(b) All participants in the all-star competition are graduating seniors or students completing their athletic eligibility at the end of the school year;
(c) The student has played in no more than one (1) other all-star competition in his or her sport; or
(d) The all-star competition occurs after the student has participated in his or her final contest for his or her school.
2703.2 A senior who fails to comply with § 2703.1 shall be subject to a penalty that may result in the loss of athletic eligibility for the balance of the school year. For all other students, the penalty may result in loss of eligibility for the next season in the sport in which the student participated in the all-star competition. The SAO shall review penalty decisions. The decision of the SAO shall be final.
2704 LEA REGULATIONS
2704.1 All LEA rules, policies, and procedures related to athletics shall be consistent with the provisions of this chapter. Upon request, LEAs shall provide the SAO with copies of their respective rules, policies, and procedures.
2799 DEFINITIONS
2799.1 When used in this chapter, the following terms shall have the meanings ascribed:
Athletic Appeals Panel (“Panel”)--A review Panel composed of three (3) people appointed by the State Superintendent of Education on a case by case basis, consisting of one (1) member from the public charter schools, one (1) member from DCPS, and one (1) member from OSSE.
Athletic Director (“AD”) – A person who holds the position of athletic director or a person or entity that performs the functions of an athletic director as designated by an LEA.
Boundary Zone or Attendance Zone - The area designated by DCPS as inbounds for a particular residence.
Day – One (1) calendar day, unless otherwise stated.
First year of eligibility – The school year a student first enters ninth (9th) grade for the first (1st) time.
Ninth Grade - A student is considered to be in grade nine (9) upon the student’s promotion from the eighth (8th) grade to the ninth (9th grade) on the last school day of the student’s eighth (8th) grade (8th) grade academic year. The ninth (9th) grade year is considered to be completed on the thirtieth (30th) calendar day following the last day of the student’s first ninth (9th) grade academic year.
Local Education Agency or LEA – means an educational institution at the local level that exists primarily to operate a publicly funded school or schools in the District of Columbia, including the District of Columbia Public Schools (DCPS) and a District of Columbia public charter school.
League – An association of sports teams or clubs that compete mainly against each other.
OSSE – The District of Columbia Office of the Superintendent of State Education.
Participate – Inclusion on the tryout roster or team roster as a member of a recognized school team to tryout or play in practices, contests, and competitions, or otherwise engaging in other activities as part of the team.
Previous participation – Prior participation in interscholastic athletics in grades nine (9) through twelve (12).
Public School – A school within the District of Columbia Public Schools (“DCPS”) system, a District of Columbia public charter school, or a private school member participating in the District-wide competitions approved by the SAO.
Receiving school - The school a student enrolls in, after leaving his or her previous school.
Sending School – A school that a student withdraws from, in order to attend a different school.
Semester (“full academic semester”) -- A semester is approximately two (2) marking periods during which academic coursework towards graduation requirements occurs but does not include the summer.
Statewide Athletics Office (SAO) – A unit of the Office of the State Superintendent of Education that directs, coordinates, and provides guidance for interscholastic athletic programs.
Title IX - Title IX is a portion of the Education Amendments of 1972, approved June 23, 1972 (Pub. L. No. 92‑318, 86 Stat. 235 20 U.S.C. §§ 1681 – 1688).
Transfer - The student has withdrawn from a sending school and has enrolled in a receiving school.
Week – Seven (7) calendar days, unless otherwise stated.
Persons wishing to comment on this notice of rulemaking should submit their comments in writing including or through an electronic submission to: Office of the State Superintendent of Education, 810 First Street, N.E., 9th Floor, Washington, D.C. 20002 [(202) 727-6436], or to Jamai.Deuberry@dc.gov with subject “Attn: Jamai Deuberry, Interscholastic Athletics Rules.” All comments must be received no later than thirty (30) days after publication of this notice in the D.C. Register. All comments received will be taken into consideration during the proposed rulemaking process prior to final adoption of these rules.
