A Hudson County Superior Court judge denied a request Tuesday to allow a Hoboken High School football player to return to action for the school’s 5-0 team while a question concerning his eligibility is decided among other agencies.
Attorney Patrick Jennings, who is representing Hoboken senior Terrence Vargas, had filed a lawsuit against the Hoboken Board of Education and the New Jersey State Interscholastic Athletic Association, claiming that Vargas’ rights were infringed as part of the Individuals with Disabilities Education Act (IDEA).
But Superior Court Judge Maurice Gallipoli turned down Jennings’ request for an immediate action that would have let Vargas temporarily return to the undefeated Red Wings in time for this weekend’s game against Emerson High School of Union City. Gallipoli said that his court wasn’t the appropriate place to decide such a matter, and that the NJSIAA normally hears such cases.
The lawsuit stems from the fact that Vargas, classified as a special education student since grade school, was denied the right to participate in athletics because he failed two classes last year – even though there are New Jersey State Department of Education guidelines that state that special education students cannot be graded on the same scale as mainstream students.
According to Jennings, Vargas was told at the end of last year that he would not have to attend summer school to make up the grades. But after practicing for football and participating in scrimmages this year, Vargas’s coach got a letter from Superintendent of Schools Patrick Gagliardi saying he could not play in the regular season.
After hearing testimony Tuesday from Jennings and from attorneys for the Hoboken Board of Education and the NJSIAA, the state’s governing body regarding high school athletics, Judge Gallipoli ruled that he could not make such a decision in the court of law. He requested that the matter be handled in other agencies, such as the state Department of Education or the NJSIAA.
“On the facts presented to me, I cannot grant emergent relief in this case,” Gallipoli said after nearly two hours of testimony. “I can’t see how the failure to grant emergent relief would result in irreparable harm to the plaintiff. Playing football is not a constitutional right. In good conscience of the law, I cannot rule on this.”
Gallipoli added that if Vargas participates now and then finds out that he shouldn’t have been allowed to, “the harm that would be caused to the school, the Board of Education, and the team that would be penalized far outweighs any harm given to the plaintiff, even if it means he never participates in high school football again.” However, Gallipoli refused to dismiss the entire lawsuit.
“The plaintiff is free to pursue any other legal remedies in this case,” Gallipoli said. “This is not a final disposition of the case.”
Top player
Jennings presented the lawsuit after a series of events that went against Vargas, who would have been Hoboken’s premier football player this season and was named to the Hudson Reporter All-Area team in 2003 as a junior linebacker for the Red Wings.
According to the facts presented in court Tuesday, the 18-year-old Vargas failed two classes, U.S. history and mathematics, at the end of last year, his junior year.
According to a policy adopted by the Hoboken Board of Education in 2003, the two failures would make Vargas ineligible to participate in extracurricular activities until either he could remediate the courses or until proof of improvement was provided during the next available marking period.
However, those rules generally pertain to mainstreamed students, not special education students, some of whom attend school without ever receiving a grade.
Special education students have to meet regularly with Child Study Team representatives to monitor the students’ progress. The outline for the child’s education guiding this process is called an Individual Education Plan or IEP. Before a student is allowed to be promoted to the next grade level, the Child Study Team must certify that the student has completed the IEP in the previous year or semester, commensurate with the student’s academic ability. Final approval on the IEP is given by the school’s principal.
Although Vargas failed the two classes, his IEP review, given last June, promoted Vargas to the 12th grade. Apparently at the time, he was informed that he did not have to attend summer school to remediate the two failed courses.
The lawsuit states that Vargas’ last IEP review, dated Sept. 2, 2004, read that he was permitted to play and the review was signed by Patricia Drumgoole, a member of Hoboken’s Child Study Team.
There was another memorandum presented to Hoboken head football coach Ed Stinson that stated that Vargas was “state eligible,” which meant that he was eligible under the guidelines for special education students presented by the NJSIAA.
Because he had those prior approvals, Vargas began practices with the Red Wings in August and even participated in the team’s three preseason scrimmages.
But then…
However, on Sept. 15, just two days before the season opener against Union Hill, Stinson received a memorandum from Superintendent of Schools Patrick Gagliardi that Vargas was ineligible to play because he had failed the two classes last semester.
The terms of the lawsuit state that “the unilateral decision was apparently predicated upon a recently enacted local Board of Education policy, and that decision contradicts the NJSIAA’s rules and regulations regarding special education students.”
The lawsuit was filed because “Vargas was not provided with any procedural due process or an opportunity to be heard, that it was not provided with a forum to challenge the decision made by Gagliardi, and that Vargas relied upon Hoboken’s assertion that he did not have to attend summer school.”
The lawsuit states that Vargas is seeking judgment against the Hoboken Board of Education and the NJSIAA. “As a result of Hoboken’s wrongful conduct, Vargas has been irreparably harmed,” the lawsuit reads. He is seeking damages, attorney’s fees and “any other relief that the court deems equitable and just.”
In his initial arguments in front of Gallipoli, Jennings said, “My client never received any notification for his suspension and the reasons why. In one set of papers, he was a passing student and in the next, it’s said that he had two grades below 65 in the fourth quarter of his junior year. But if that’s the case, then why did the Hoboken Board of Education pass him to the 12th grade? Why did Hoboken tell him he didn’t have to go to summer school?”
Gallipoli said that after reviewing the IEP report, he believed that Vargas’ attending summer school “would not be of help to his academic situation.”
“Because he is a special education student, he should not be allowed to give carte blanche for participation,” Gallipoli said.
Could have helped
“They tell him he’s not required to go to summer school, but if he had to, he could have taken the classes over the summer and passed,” Jennings said. “If they gave him notice in June that he had to go, it would have given him a reasonable opportunity to take the corrective steps.”
At one point in Jennings’ testimony, Gallipoli seemed agitated.
“Why did we bring this case here to begin with?” Gallipoli asked Jennings.
“If this procedure worked properly, it would have not been brought here,” Jennings said. “If my client was told what he needed to have done before September, he would have done it. But to come in two days before the season starts to say he can’t play is wrong.”
Matthew Giacobbe, the attorney representing the Hoboken Board of Education, said that a letter was sent to all parents in 2003 that informed them of the new policy about failing two or more subjects.
“There was even an assembly telling all students that if you don’t pass two classes, you can’t play,” Giacobbe said. “In May of 2004, the Child Study Team sat with the plaintiff, his parents, and two of his coaches to deal with his poor academic record and abysmal attendance record. The meeting was done in an attempt to try to help the plaintiff. In June, it wasn’t that he failed one class. He failed two for the entire year. He was absent 37 times and tardy another 13 times.”
Giacobbe added, “This policy pertains to all students. No one is being excluded. He knew once he failed that he was done. But because of his talent on the gridiron, he should be allowed to play? That’s not right. He did not fill the requirements. Everyone knew that if he didn’t pass, he wasn’t going to be able to play. If the plaintiff wants to seek emergent relief, he can do so in front of the state Department of Education or the NJSIAA, not the court of law.”
The NJSIAA has an eligibility appeals committee that handles similar controversial cases of eligibility. But Jennings didn’t want to waste any more time, because Vargas has already been forced to miss five games.
That’s where he’ll go Attorney Michael Herbert, representing the NJSIAA, said in court that the association “bends over backwards to make sure all appeals are done correctly.”
“This is a typical case that comes to our eligibility appeals committee,” said Herbert, a Jersey City native. “It provides maximum due process to schools and students. We’ve dealt with cases like this before. But there is no irreparable injury and there is no constitutional right to participate in sports. We’ve had more than 700 cases with every spectrum of problems, and granted waivers to one-third of those cases. But what I’m hearing is that he’s an outstanding football player, and that’s not reason enough. They didn’t give the waiver process a try.” Added Herbert, “What about the kid he displaces who has passed his classes? What about the other special education students who pass?”
Jennings retorted, “We’re not here because he’s an outstanding football player. We’re here because he’s a special education student.”
Herbert shot back, “With all due respect, your client could never have a free ticket to play football.” Gallipoli finally made his ruling.
“For one to be entitled to emergent relief, the applicant needs to show that he would suffer irreparable harm,” Gallipoli said. “I believe that it balances the equity and intentions of all involved to have this settled in other agencies.”
Jennings will have to take his case to the state Department of Education and the NJSIAA. The next NJSIAA eligibility appeals committee meeting is scheduled for Nov. 9. If Vargas is declared eligible then, he will have four games remaining, including the state playoffs. The Red Wings have already qualified for the NJSIAA North Jersey Section 1, Group I state playoffs.
If Vargas only becomes eligible when the report cards for the first marking period are handed out Nov. 19, Hoboken will have only one game remaining. They are slated to play North Bergen Nov. 24, the day before Thanksgiving.
Vargas comments
Vargas was extremely distressed by the judge’s ruling. He was forced to sit in the courtroom and not issue a word in his defense.
“I’m really disappointed a lot by it,” Vargas said after the hearing. “They told me if I went on to 12th grade, I didn’t have to go to summer school. If they told me I had to, I would have gone. It makes me mad. I never thought this would happen.”
Anthony Vargas, Terrence’s father, had one question.
“Why would they let him go to camp, go to practices, play in scrimmage games and then tell him he’s ineligible?” Anthony Vargas said. “That’s unfair.”
Terrence Vargas said that he was happy that the team was still winning without him. “I guess I can still go to practice and wait until the next hearing,” Terrence Vargas said. “I’m passing my classes now, so I’ll play as soon as they tell me I can.”
Giacobbe refused to answer questions on why Vargas was allowed to practice and scrimmage, then wasn’t allowed to play.
“We came here to talk about our local policy, which pertains to all students,” Giacobbe said. “We’re willing to have the plaintiff take the case to the NJSIAA and address the merits of the case there. But I can’t comment on anything else. The policy is in place for every student.”
Jennings said that he will continue to try to get his client his proper due.