WEST VIRGINIA RECORD

MORGANTOWN -- A Morgantown man has requested a Monongalia County judge grant a temporary restraining order that would allow his cousin to play varsity basketball at Morgantown High School.

On Dec. 1, Tembele Yangandawele filed his motion for an ex parte temporary restraining order and preliminary injunction against West Virginia Secondary School Activities Commission. In his motion, Yangandawele claims the SSAC denied his cousin, Salomon Dany, the right to participate in the varsity basketball program at Morgantown High School.

According to the motion, Yangandawele is a legal and non testamentary guardian to Dany. Because Yangandawele is not a testamentary guardian and because Dany does not reside with his parents, the SSAC ruled he would not be allowed to play varsity basketball.

Dany played high school basketball in 2007-08 while living with a cousin who was his guardian, according to an order the SSAC Board of Review issued.

When that cousin was transferred to a job out of the United States, Dany moved to Morgantown to live with his other cousin, Yangandawele, according to the order.

Dany moved into Yangandawele's Morgantown apartment to escape from war in the Congos and because of financial hardships his family was facing, the motion states.

Before the start of the school year, Yangandawele enrolled Dany in Morgantown High School in June 2008, he claims.

As a student at the school, Dany expressed a desire to join the basketball team, and Yangandawele agreed the sport would be good for the teenager.

"Tembele believes basketball will complement Solomon's efforts to successfully graduate from Morgantown High School," the suit states.

So, he asked Morgantown High School's athletic director, Dan Erenrich, if Dany could play the sport, he claims.

Erenrich responded that because of their unique living situation, Dany and Yangandawele would have to request permission from the WVSSAC, according to the motion.

That is when the SSAC denied Yangandawele's request, referring to an Adoption-Guardianship rule that states students who wish to participate in interscholastic athletics must live in the attendance zone where their parents reside, the motion states.

After the SSAC returned its ruling, Yangandawele approached the executive director of SSAC, Gary Ray, to ask for his permission.

However, Ray also denied Dany the opportunity, citing the Adoption-Guardianship rule, Yangandawele claims.

Yangandawele appealed to the Board of Directors, but they also denied the waiver of the Adoption-Guardianship rule that would have made Dany eligible to participate in the sport, according to the motion.

So, he appealed the case to the Board of Review, which upheld Ray's and the Board of Directors' decisions, the motion states.

"The Board also finds that the student's cousin is a non-testamentary guardian and, therefore, the student is ineligible under Rule 127-2-8.1 which requires that the student be residing with one or both parents, a testamentary guardian or under placement by WV Health and Human Services," the SAAC Board of Review's order states.

Under one rule, foreign exchange students attending a school with the Council on Standards for International Educational Travel are allowed to participate in extracurricular sports.

But, since Dany is not a foreign exchange student with the CSIET, the Board of Review ruled that this policy did not apply to him.

However, the Board of Review did say Dany would be allowed to participate in junior varsity basketball if he chose.

Yangandawele is not satisfied because he wants Dany to play the varsity sport.

"Allowing Salomon Dany to participate at the junior varsity level is in effect denying him eligibility as it is a well known and accepted practice that a senior in high school will be cut from junior varsity as this is a building level, preparing the athletes for the coming years on the varsity level," the suit states. "Furthermore, it is the granting of eligibility at the junior varsity level lacks any rationale as to denying eligibility to play at the varsity level."

The SSAC's rules are discriminatory, Yangandawele claims.

"WVSSAC eligibility rule forbidding students from playing varsity athletics if they do not relocate with their parents has a disparate impact on foreign students based on alienage because such student typically cannot meet hardship exception," the motion states.

The SSAC developed the rule to prevent school shopping, the motion states.

However, the rule fails to take into consideration the case of international students such as Dany, according to the motion.

Through its policy, the SSAC is denying Dany's constitutional right to a thorough and efficient education, the motion states.

"Elements of a thorough and efficient education, in addition to purely academic goals, include the ability to live a healthy lifestyle, the ability to participate in recreational activities and a sense of responsibility to facilitate compatibility with others in society," the motion states.

In addition, the policy is unreasonable, Yangandawele argues.

According to the state Supreme Court of Appeal's decision in Hamilton V. Secondary Schools Activities Commission, even if a plaintiff is not able to demonstrate a constitutional violation, he is still entitled to prevail when the SSAC rule is unreasonable, Yangandawele alleges.

"In the present case Defendants justify their rule barring foreign exchange students, not affiliated with CSIET, based primarily upon 'school shopping', but they offer those not affiliate with CSIET no opportunity to demonstrate their individual situations not related to 'school shopping,'" the motion states.

Yangandawele argues Dany should be allowed to play basketball because of a certain rule in the Athletic Participation/Parental Consent/Physician's Certificate Form that states "an athlete must be residing with parents ... unless an AFS or other foreign exchange student."

"This statement indicates that a foreign exchange students would have one year of eligibility even when not residing with parents without being affiliated with CSIET," the motion states.

"This Court should not let Defendants abdicate their responsibility to help each child in West Virginia achieve a thorough and efficient education."