Malcolm Bevel ["Malcolm"] is currently in the 11th grade at East High. He and his family have lived in the Waterloo school district at all times pertinent to this appeal. As a 7th grader, Malcolm attended Logan Middle School in the Waterloo district. Concerned about the quality of his education at Logan, the Bevels transferred Malcolm to the Laboratory School, where Malcolm completed grades 8, 9, and 10. Mr. Bevel summarized Malcolm's experience at the Laboratory School, including NU High, by stating that on balance, it was a good place for Malcolm. Mr. Bevel stated that Malcolm attained a cumulative grade point average of 3.31 at the Laboratory School, while being challenged academically. Malcolm not only did well in his studies, he participated in athletics, speech competitions, the string orchestra (earning a position at the respected Dorian Festival at Luther College), a state history fair, and state and national Russian language competitions.In February of 2002, officials at the University of Northern Iowa, the "parent" facility of the laboratory school, announced that grades 10 through 12 of NU High would "shift" to Cedar Falls and other area schools, beginning with the 2003-2004 school year. Mr. Bevel characterized this announcement in his testimony as NU High was "not going to offer grades 10 through 12," commencing with the 2003-2004 school year.

. His straightforward testimony was that, had Malcolm stayed at NU High for the 2002-2003 school year and were grades 10 through 12 not offered at the Laboratory School site, Malcolm would have to transfer as a senior to another attendance center. In light of the fact that Malcolm's post-secondary plans are to attend a college quite some distance from Waterloo, the Bevels made a family decision that he should not make what Mr. Bevel termed "a tough adjustment" two years in a row. Therefore, in April of 2002, Mr. Bevel registered Malcolm for the upcoming [present] school year at East High, that being the high school in which attendance center the family resides.

On behalf of the IHSAA, Mr. Saggau did not dispute that the Bevel family's motivation in transferring Malcolm was based on academic reasons, not athletic reasons. The IHSAA did, however, state that Malcolm's transfer was from one member school to another member school, removing it from the language in 281-IAC 36.15(3) "a"(8) regarding "any transfer situation not provided for elsewhere in this chapter? ." The implication is that the Board of Control did not consider the reasons for Malcolm's transfer in determining his eligibility. The IHSAA argues that subparagraph (8) stands alone, that it must be interpreted apart from the words of paragraph 36.15(3) "a" that precede it. Its argument concludes that because this is a transfer from one member school to another member school, it is not a "transfer situation not provided for elsewhere in this chapter." Therefore, the executive board does not have to consider the factors behind Malcolm's transfer. This agency concludes that, in any transfer covered by the general transfer rule, where one of the first exceptions does not apply, the Board of Control must consider the motivating factors for the student transfer.

This leaves the "fighting issue" whether a transfer motivated solely by the desire to avoid a transition from one educational setting to another for two consecutive years rises to the level that an exception should be made to the ineligibility rule for Malcolm. There are no cases in which this agency has previously stated that such motivation is sufficient to avoid the 90 consecutive schools days of ineligibility. We decline to do so in this case. The evidence shows that a final determination of the fate of grades 10 through 12 of NU High was not made before Malcolm started school at East High, and, indeed, has not been made to date. The decision made by the Bevel family was made in anticipation of a decision not yet finalized by UNI or the Board of Regents. We have previously held, in a case involving a district in the discussion stages ? but short of the decision stage ? whether to whole-grade share with one or more other districts, that parents "should be able to wait to see what their school board does, and hear the Board's basis for its [decision], before having to make their decision." In re Cameron Kroemer, 9 D.o.E. App. Dec. 302 (1992).

In summary, there are recognized student transitions when the 90 consecutive school days of ineligibility do not apply. If grades 10 through 12 of NU High cease to be offered or are "shifted" to the Cedar Falls or other districts in 2003-2004, affected students will have immediate eligibility anywhere they attend school at the start of that school year. Because a transfer that is made in anticipation of a change is not recognized in the Iowa Code or Iowa Administrative Code as an exception to the general rule, we cannot read into the law what the lawmakers did not include themselves. A rule of statutory construction that cannot be disregarded is that, had the legislature intended to include immediate eligibility for students who transfer the year before anticipated changes to the student's present school, the legislature would have so acted. Legislative intent is expressed by omission as well as by inclusion. Wiebenga v. Iowa Department of Transportation, Motor Vehicle Division, 530 N.W.2d 732,735 (Iowa 1995).

That the September 4, 2002, decision of the Board of Control of the Iowa High School Athletic Association that Malcolm Bevel is ineligible to compete in interscholastic athletics for 90 consecutive school days at East High was AFFIRMED.