As reported by the Buffalo News and in a New York State Sportsrwiters Association blog post, Jacob B. Kohler, a football player for Orchard Park High School who was diagnosed with autism as a child and needs a fifth year to graduate, was recently declared ineligible by Section VI of the NYSPHSAA. The basis for the ruling is that Kohler's four years of eligibility have expired, even though he did not play any sport as a freshman. Kohler's parents cite his disability as the reason for not playing any sport as a freshman and, in support of a fifth year of eligibility, they point to a waiver exception for students whose failure to enter competition was caused by illness or accident. Section VI, on the other hand, has taken the position that this exception is inapplicable to Kohler because (a) he did not miss a semester or more of school due to an illness or accident and (b) he was never denied an opportunity to participate in high school athletics during his freshman year. Kohler's parents have appealed the Section VI determination to the New York State Education Commissioner, but, unless the process is expedited, it seems unlikely that a ruling will be made before Orchard Park's first game on September 2nd.
The Section VI ruling is newsworthy because it seems patently unfair. However, the ruling also raises interesting legal issues under the Americans with Disabilities Act (ADA), in particular, whether the waiver sought by Kohler is a reasonable modification to accommodate a disability.
In 1998, Adam Bingham, a fifth year senior football player in Oregon with Attention Deficit Disorder (ADD) prevailed in a lawsuit successfully challenging the denial of a similar waiver on the grounds that it violated the ADA. The facts in that case are similar to the Kohler situation, including the primary reason for the Oregon School Activities Association's denial of Bingham's waiver request (his disability did not prevent him from missing school for a semester or more). Still, the court ruled in favor of Bingham, ultimately deciding that the waiver of Oregon's "eight semester rule" was a reasonable modification to accommodate Bingham's disability.
More recently, in 2013, the parents of Anthony Starego, an autistic football player in New Jersey, sued to challenge the denial of a waiver for a fifth year of eligibility, alleging a violation of the ADA. Although the court ruled that the waiver would be a reasonable accommodation for purposes of the ADA, it declined to grant an injunction on the grounds that Starego had already played four years of high school football and, as such, was not denied a right to participate as a result of his disability (a material difference from Kohler's situation, where, as referenced above, he has not played four years of football). In a heartwarming story, after the Starego court decision, the New Jersey State Interscholastic Athletic Association (NJSIAA) decided to reverse its position and grant Starego a fifth year of eligibility.
There are other cases where courts have rejected ADA challenges to "maximum participation" rules in other states, including McPherson vs. Michigan High School Athletic Association. The conclusion in that case was essentially that a waiver of the maximum participation rule would be unreasonable because it would undermine one of the fundamental purposes of the rule, to prevent redshirting, and impose administrative burdens by opening the floodgates to waiver requests.
In its opinion after a trial on the merits, the Bingham court in Oregon explained its disagreement with the reasoning in the McPherson case:
The McPherson decision seems to take issue with the fundamental premise of the ADA--that disabled students should be accommodated where it is feasible to do so with a reasonable modification of the rules. That there may be few or many qualified individuals with a disability is irrelevant to the reasonableness of a modification. Congress did not say "make a reasonable modification of your rules if only one or two disabled people may apply for such, but not if fifty or more might qualify."
In support of its position that the illness or injury waiver exception to New York's four year eligibility rule did not apply to Kohler, Section VI's Executive Director was reported as citing, as an example of a situation for which the waiver exception would apply, a soccer player who suffers injuries in a car accident and is unable to attend school or participate in soccer that year. In other words, the student must miss both school and athletic competition in order to qualify for the waiver exception.
Although New York does have a waiver rule that expressly covers students with disabilities, it only applies to non-contact sports and even then the student's participation is not scored for purposes of the competition. The NYSED's rationale in limiting the disabled student waiver to non-contact sports is to ensure the safety of the disabled student and the other student competitors, who may be younger and less physically developed. But these waivers, by their terms, still require that a school physician make a determination, based on the disabled student's physical development and maturity, that participation will not present a safety or health concern to the disabled student. As a result, limiting this waiver to non-contact sports for safety purposes is arguably unnecessary. Why? Well, if a physician's clearance is already a prerequisite to the waiver in order to scope out potential safety issues, that same evaluation and determination could also be made, perhaps through a more stringent lens, with respect to contact sports. After all, there is no blanket rule that flat-out bars disabled students from participating in contact sports for safety reasons.
As written, New York's disabled student waiver exception is of no benefit to Kohler, or any disabled student who plays a contact sport and needs a fifth year to graduate. Student athletes who fall into this category are stuck in a conundrum: they do not qualify for the ordinary waiver exception because their disability did not cause them to miss school and they do not qualify for the disabled student waiver because they play a contact sport. Unfair? Some might disagree, but it certaintly seems to be. Discriminatory under the ADA? That would be for a court to decide and, considering the decisions in Bingham, Starego and McPherson, it is unclear how that would play out under these circumstances.
The athletic eligibility fate of Jacob Kohler now lies in the hands of the Commissioner of the New York State Education Department. Before rendering a decision, the Commissioner's office may want to consider the following passage from the Bingham opinion:
Perhaps what is called for here is a fundamental rethinking by [the Oregon School Activities Association] and its membership schools about the function of high school athletics vis a vis learning disabled students who find themselves attending for a 5th year because of their disability. Especially in the case presented here, where the student does not run afoul of the age rule, does not have a competitive advantage, has not redshirted, and benefits greatly from the participation in sports, how can it be said that allowing the student to participate somehow fundamentally alters the nature of high school athletics?
The Commissioner's office may also wish to consider that, after the NJIAA successfully defended a legal challenge by Starego's parents under the ADA, it ultimately decided to do what many would consider the right thing under these circumstances: grant the waiver.