Court ruling keeps girl on Bishop Brady boys' hockey team, for now
Shelby Herrington played for the Brady boys' team the past two seasons, but with the creation of the Brady/Trinity girls' program this year, the New Hampshire Interscholastic Athletic Association declared her ineligible to play with the boys.
Herrington challenged that decision, and on Friday Merrimack County Superior Court Judge Richard McNamara ruled that she could continue to play for the boys' team through at least its first three games of the season, which opens Wednesday. McNamara said he will rule by Dec. 19 whether the NHIAA is within its rights to keep Herrington off the team she played for the past two seasons.
Herrington's lawyer argues the issue is one of discrimination, saying she is being denied a spot on the boys' team because of her gender. In court papers, Concord attorney Robert Carey cited the language of Title IX, the landmark 1984 federal law that requires colleges and high schools to put athletic programs for females on an equal footing with those for males.
"NHIAA's decision denies Shelby the opportunity to continue playing on the boys' team solely on the basis of her sex," Carey wrote.
The NHIAA, which adopts and enforces rules that govern high school sports in New Hampshire, decided last month that Herrington's place on the ice was with her school's newly formed girls' team.
The organization presented its position as pro-girls' hockey, saying that allowing girls to play for the boys' team at a school that offers teams for both genders would weaken the girls' program, as well as girls' hockey in general around the state.
The only way to grow the sport is to have exceptional girls play girls' hockey, said Mike Callahan, the lawyer for NHIAA who asked a judge to keep Herrington on the girls' team.
Callahan said other female hockey players awaiting the outcome of the case will push to join a boys' team if the judge rules permanently in Herrington's favor.
"We're going to create an elite class of quality players that will play on the boys' hockey team, and the girls' hockey team will become junior-varsity hockey," Callahan said during Friday's hearing. He also questioned whether less talented boys would attempt to play on girls' teams.
During the 1-1/2-hour hearing, McNamara raised a range of questions about high school sports. He used the Manchester high school football Turkey Bowl to question what level of school spirit could be found in a two-school team. He maintained that boys' and girls' hockey are different because boys' hockey is a much more physical sport; it permits checking while the girls' game does not.
And McNamara seemed to side with one of Herrington's strongest arguments: that the NHIAA allowed Danielle DiCesare to play her senior year on the St. Thomas Aquinas of Dover boys' team, in 2007-08.
Callahan said that was the first year of girls' hockey in the state, adding that New Hampshire girls' hockey has improved since then. He said the difference between the rules in boys' and girls' hockey isn't relevant to Herrington's aspirations to play at the collegiate level, noting that checking isn't allowed in college women's hockey either.
Herrington, 17, initially enrolled at Bishop Brady with the hopes of playing on the boys' team, which she succeeded in doing as a freshman and sophomore.
Her father, Lee Herrington, is founder of the Herrington Catalog Company, according to the company's website.
Shelby Herrington attends hockey camps in the summer, and she plays for Team Pittsburgh, a junior team affiliated with the Pittsburgh (Pa.) Aviators.
Her lawyer said her ability to obtain a scholarship to a Division I team and potentially an Olympic team placement is being jeopardized by the NHIAA decision. He would not speak to a reporter Monday.
When the NHIAA considered Herrington's case, the organization received letters on her behalf from several New Hampshire hockey coaches, as well as from Jeffery D. Kampersaf, head coach of Princeton University women's ice hockey program.
In an Oct. 31 letter to the NHIAA, Kampersaf said he has followed Herrington and seen her improve over the past two years, in part because of "her continued participation in the faster boys' game at the high school level."
Hockey coaches from Hanover, Pinkerton Academy of Derry and Bishop Guertin of Nashua wrote in support of Herrington.
In a Sept. 11 letter to Bishop Brady officials, Patrick Corbin, executive director of the NHIAA, said the gender equity issue has evolved from court cases and been upheld.
"If a sport is offered for boys and a comparable sport is offered for girls, then the girls must play on the team of their gender. There is no consideration or provision that accounts for competitiveness or ability in the by-laws," he wrote.