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December 19. 2012 8:16PM

Herrington allowed to play on Bishop Brady boys' hockey team


Bishop Brady High School hockey player Shelby Herrington practices recently after a judge's ruling allowed her to continue playing for the Concord school's boys' team rather than joining the newly created cooperative girls' team comprising players from Brady and Trinity High of Manchester. (DAVID LANE/UNION LEADER)

A Merrimack County Superior Court judge ruled Shelby Herrington can continue to play for the Bishop Brady High School of Concord boys' hockey team.

In a nine-page ruling Wednesday, Judge Richard McNamara granted a request by Shelby's parents, Joan and Lee Herrington, for a preliminary injunction prohibiting the NHIAA from barring her from playing on the boys' team.

"She's of course very happy," said Concord attorney Robert Carey, who represents the Herringtons. "And we're very pleased as well."

Before the season began, the NHIAA required Herrington to play for the girls' varsity team, since Bishop Brady offers one for the first time this year. Article I, Section 4 (f) (4) of the NHIAA bylaws states: "Interscholastic athletics involving mixed (boys/girls) competition is prohibited except in those instances where the member school does not offer equivalent (same) activities for girls."

Her parents filed a suit against the NHIAA in hopes she would be allowed to continue to play for the boys' team, which she has been a part of for two years.

Pat Corbin, the executive director of the NHIAA, doesn't understand why the court ruled the way it did. He felt the judge agreed with the NHIAA's two main issues - there wasn't gender bias and there was an equality offering - but still allowed Herrington to play for the boys' team.

"The interesting things is the court ruled in favor of the NHIAA on the issues, but the injunction continued," Corbin said. "Now I've got to figure out why the injunction is still there."

The premise of the ruling is based on whether boys' and girls' hockey are "equivalent activities." The girls' team is a cooperative squad with Trinity of Manchester, which is 20 miles away, while the boys' team is comprised only of players from Bishop Brady. And the girls' team doesn't practice as often as the boys', something the NHIAA said the school has an apparent obligation to remedy.

McNamara wrote, "This finding, though, does not lend any support to the (NHIAA's Council Appeal) Board's conclusion that the two teams provide 'equivalent activities' for each gender but, rather, lends support to the opposite conclusion."

In the ruling, McNamara wrote, "If injunctive relief is not granted pending resolution of this case, Ms. Herrington will suffer irreparable harm because she will likely lose the opportunity to compete in interscholastic sports for this academic year; it is already late December and hockey season will be over by April. Finally, there is no other adequate remedy at law available to her."

Giants coach Randy Manni was pleased with the decision. He has Herrington on his second line and says she is a player who has a lot to contribute to the team.

"I love it," Manni said. "She's a great kid. I love working with her. She's very coachable."

At the statewide level, Corbin was concerned about the effect the ruling might have on other sports. He said it could be applied to allow a boy who is cut from his team to play for a girls' team and could significantly impact the talent level of the girls' hockey league in the state, something he said Title IX was created to protect.

"A concern is if this becomes a precedent for all other sports," Corbin said. "All those things come to light."

This isn't the first time a girl has been allowed to play for a boys' team at a school that has a girls' team. In the inaugural year of girls' hockey as a varsity sport, Danielle DiCesare was permitted to play for the St. Thomas Aquinas of Dover boys' team. The school has a cooperative team with Dover.

Corbin said he has to discuss with his attorney what further action can be taken and could not comment on if the NHIAA will appeal the decision until he does so.

Herrington was supposed to center the second line for the Giants at Hanover on Wednesday night.

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Mark Quirk may be reached at mquirk@unionleader.com.


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