Sports and the Americans with Disabilities Act
Martin E. Block, Ph.D.
University of Virginia
Can an IEP Require Participation in Sports?
Board of Ed. of the City Sch. District of the City of White Plains, 31 IDELR | 179 (SEA NY
1999)
The district had classified the student as other health impaired based on ADD and depression.
The hearing officer determined that the student’s participation on sports teams was a related
service that was necessary for her social and emotional development, even though the IEP did
not provide for participation on any team. He further found that state athlete eligibility rules
were superseded by the 1997 Amendments to the IDEA, which included “recreation” and
“therapeutic recreation” within the definition of related services. The review officer supported
the hearing officer’s decision. There was unrefuted testimony by the mother, the student, and a
psychiatrist concerning the importance of participating on the sports teams and its beneficial
effect on her self-esteem and academic progress.
Are Age Limits Legal?
Board of Ed. of Montgomery Co. Public Schools (April 2000)
A Wootton H.S. student may play in his school’s last four boys lacrosse matches after a
Montgomery Co. judge ruled yesterday that a school system eligibility rule discrimination
against him based on his learning disability. Christopher Smink, a senior goalkeeper at the
Rockville school, is in his 10th semester of high school, and county rules prohibit students from
competing in sports for more than eight semesters. Smink had to repeat night grade after
struggling with ADHD. Therefore, the school system’s eligibility rule discriminated against
Smink because of his learning disability. That, the judge agreed, violated the federal ADA and
the school system’s own anti-discrimination policies. “If you have someone in their fifth year
of high school, they’ve got a competitive edge there,” Clancy (the school district’s lawyer) said.
“It’s important in high school events to at least have the perception of fairness.” The school
district also claimed that the student did not prove that the ADHD was a serious enough to
qualify as a disability under IDEA or that it was his disorder, rather than other factors, that led to
his poor grades.
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Are the Pass-to-Play Laws Legal and Binding?
Montgomery Schools Facing Bias Lawsuit (Sept. 16, 2000)
A Poolesville H.S. student and his parents have accused the Montgomery Co. school system of
discrimination, alleging in a lawsuit that the youth was forbidden to play football after his grades
plummeted last spring because of mental illness. Jake Bylsma, a 15-year-old junior, and his
parents say he was an honor roll student with a 3.2 GPA until last spring. Then, during the 4th
grading period of his sophomore year, he failed 3 subjects and his GPA fell to 1.1 before he was
hospitalized and diagnosed as hypomanic, a symptom of bipolar disorder. His poor grades
prevented him from achieving the minimum 2.0 GPA required for Montgomery students to
participate in sports and other extracurricular activities during the next marking period.
However, Jake and his parents argue that he should be allowed to play on the Poolesville football
team this fall as an “accommodation” under the disabilities act because his low grades were due
to his mental illness, a federally protected disability. Since being hospitalized for 3 weeks in
June, he is on medication, sees a psychiatrist and is back to his “regular self.” He said he is in
honors classes this year and doing well since school started last week, though he said he’s
disappointed that he missed the opening football game.
Students with Disabilities can Participate in Sports without Passing State LPT (July 31, 1992)
In a July 24, 1992 memo sent by the State Superintendent of Virginia Schools to Local
Superintendents of Schools, students with disabilities identified under the State Special
Education Regulations who are progressing toward their IEP, may become members of the 9th
grade class, whether or not they have passed and whether or not they have taken the Literacy
Passport Test (LPT). For students identified under section 504 of the Rehabilitation Act, their
education plans must address whether or not the student will become a member of the 9th grade
class if the student does not pass the LPT by the end of grade 8. Students cannot be awarded a
standard diploma if they do not pass the LPT prior to graduation. In a follow up memo dated
July 31, 1992, the State Superintendent stated: “these IDEA students are not barred from
participation in Virginia High School League sponsored activities on the basis of not earning a
passport (LPT). Bottom line? A student with an IDEA IEP that has not passed the LPT can
play high school sports.
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Is Walking Fundamental to the Game of Golf?
Olinger v. U.S. Golf Ass’n - F.3d –, 2000 WL 257133 (7th Cir. 2000)
The 7th Circuit Court of Appeals upheld a ruling denying an accommodation to Fred Olinger who
sought to compete in the U.S. Open, based on its reasoning that such would fundamentally alter
the nature of the competition. Olinger has a degenerative condition know as bilateral avascular
necrosis that significantly impairs his ability to walk. The USGA did not dispute that Olinger
was disabled under ADA. However, the USGA contended that allowing Olinger to use a golf
cart would fundamentally alter the game. The 7th Circuit followed a line of the case that (1)
gives great deference to institutional decision-making on what is and what is not considered
fundamental to its program and (2) the notion that to require an athletic organization to
determine on a case-by-case basis who qualifies for ADA protection and what constitutes a
reasonable accommodation would pose an undue administrative burden. The court’s ruling
largely turned on the element of fatigue and the expert testimony of professional golfers who
attested to the physical and psychological stressors that walking the course may have,
particularly in extreme conditions as blazing heat and humidity. The court reasoned that under
these circumstances, Olinger would enjoy an unfair advantage over his fellow competitors if he
were allowed to use a golf cart.
PGA Tour v. Martin, No. 00-24, Supreme Court of the United States (May 30, 2001)
The Supreme Court ruled yesterday that professional golf must bend its rules so a disabled golfer
can participate in tournaments, applying to federal disability rights laws to professional sports for
the first time in a ruling that could strengthen the legal position of disabled people in ordinary
workplaces as well. By a 7-2 vote, the justices held that the PGA Tour must let golfer Casey
Martin ride a golf cart in spite of the tour’s usual requirement that all players walk the 18-hold
course. The 28-year-old Martin has a rare leg ailment that makes it almost impossible for him
to walk that far. The tournaments are “public accommodations” covered by the 1990 ADA, and
letting Martin use a cart is a “reasonable modification” that gives him the access required by the
law, the court said. It rejected the PGA Tour’s argument that waiving the rule for Martin would
represent a fundamental change in the game. Justice John Paul Stevens, in writing his opinion
for the court, said the PGA Tour’s insistence on the importance of its regulation, “pure chance
may have a greater impact on the outcome of elite golf tournaments than the...enforcement of the
walking rule.” In a dissenting opinion, Justice Antonin Scalia, a joined by Justice Clarence
Thomas, suggested that the majority had in fact intruded into the inherently subjective area of
what is “fundamental” to a game. Scalia warned that the ruling would prompt a torrent of other
lawsuits. “One can envision the parents of a Little League player with ADD trying to convince
a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball.”
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Is a League a “Place of Public Accommodation?”
Elitt V U.S.A. Hockey, 922 F.Supp. 217, 1996 U.S. Dist.LEXIS 4210 (E.D.Mo. 1996) [ELR
18:7:30]
Two youth hockey organizations have won an ADA lawsuit filed on behalf of an 11-year-old
boy who suffers from ADD. The boys’s parents had asked U.S.A. Hockey (a nation-wide
organization of youth hockey teams) and the Creve Coeur Hockey Club (the boy’s local team) to
accommodate the boy’s condition by allowing his father or brother to be on the ice during
practices and games and by permitting the boy to play with 8 and 9-year-olds rather than others
his age. Courts in MO has rejected the parents request for a preliminary injunction and has
dismissed the case entirely. Judge Webber did so, because the ADA applies only to “places of
public accommodation,” and the judge ruled that U.S.A. Hockey and the Creve Coeur Hockey
Club are not such places. Even if they were such places, he said he would have denied the
parents’ request for a preliminary injunction, because although their boy would suffer irreparable
harm if he were not able to play, U.S.A. Hockey and the Club would suffer greater harm if
ordered to make the requested accommodations. Also, ...because although the Act requires
“reasonable accommodations,” it does not require “undue...burden” to be assumed nor does it
require “a fundamental alternation in the nature of [the] program.” Judge Webber concluded that
the accommodations requested by the boy’s parents would have required undue burdens and a
fundamental alteration in the nature of the program.
Schultz v. Hernet Youth Pony League, Inc., 24 IDELR 934 (C.D. Cal. 1996) [ELR 19:2:23]
Places of public accommodations are not limited to actual physical structures, a California
federal district court ruled in a case against a youth baseball program. The court further found
that the league failed to adequately consider an 11-year-old’s request to play in a division
ordinarily reserved for children a bit younger. An 11-year-old with cerebral palsy alleged that
the Pony League violated the ADA and state law by refusing to allow him to play in a division
ordinarily reserved for younger children. The child moved for summary judgment as to
liability. The court found that the child was an individual with a disability under the ADA.
Also, the defendants were places of public accommodation under the statute (Title III), since the
statute’s definition of that term is not limited to physical structures. Further, the defendants
excluded the child without attempting to ascertain whether there were plausible modifications
that would have enabled the child to participate. The motion was granted.
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Can “Risk to Others” be used to Keep a Player off a Team?
Doe v. Woodford County Bd. Of Educ., 18 NDLR 90 (6th Cir. 2000) (No. 99-5369)
School officials found themselves in a dilemma when a student with hemophilia and hepatitis B
wanted to play on a Jr. varsity basketball team. As the 6th U.S. Circuit Court of Appeals
explained, they had to weigh the possibility of infringing upon the student’s rights under ADA
and the Rehabilitation Act against concerns for the health and safety of other members of the
team. The court found the defendants’ (school district) response to the situation was appropriate
and refused to find that they had violated the disability discrimination statutes. The parents of
the student felt the school board violated Title II of the ADA and Section 504 of the
Rehabilitation Act by placing his status on the team on “hold” pending receipt of a medical
clearance. The District Court granted summary judgment in favor of the defendants and the
parents appealed. The court noted that an individual is not qualified under ADA and the
Rehabilitation Act if his participation in an activity would pose a direct threat to the health and
safety of others. The court found that the defendants could not be held liable under the statutes
since they placed the student’s participation on hold pending receipt of additional information
that would enable them to make an individual assessment based upon medical knowledge.
Further, the defendants never actually removed the student from the team. The court concluded
that under the circumstances, the defendants acted quite appropriately when they placed the
student on hold status over a brief three week period while they decided how they should
proceed.” However, by the time defendants determined that the student could participate fully
as a member of the team, the student had opted to no longer remain on the team.
Soccer League Must Allow Youth with Walker to Play
November 4, 1999
Ryan Taylor, a 9-year-old with cerebral palsy, played two soccer games and got in a few kicks
before he was barred from the field. The reason: His steel walker was deemed a hazzard to
others. As a compromise, the league offered to let Ryan kick the ball in if it goes out of bounds,
but that wasn’t enough for Ryan and his parents. The Taylor’s padded the 2-foot-high walker
with foam and red duct tape in hope of getting David Dalton (volunteer president of the Lawton,
OK, soccer association) to reconsider. But he refused. Ryan noted “the goal post is a lot more
dangerous than that (pointing to his walker). Ryan’s parents sued, and U.S. District Judge
David Russell said Ryan could take the field with his teammates. I find it very remote that there
could be some injury (from the walker),” the judge said. There could be injury without the
walker.” Ryan was allowed to finish the season with his pee-wee team.
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Is Coaching from a Wheelchair Unsafe?
Parties resolve suit; wheelchair user will coach high school baseball (June 2, 2000)
A suit claiming that a California high school athletic association and others violated the ADA by
preventing a wheelchair user from coaching has been settled, with the defendants agreeing to pay
$10,000 and permit the man to act as an on-field coach. Victor Barrios already had 4 years of
experience coaching baseball at the high school level when an umpire told him near the start of
the 1999 season that he could not coach 3rd base for safety reasons. That led to the lawsuit.
Soon after the complaint was filed, a temporary restraining order hearing was held, and Barrios
was permitted to act as an on-field coach for the rest of the 1999 season. A major issue in the
case related to whether Barrios posed an unacceptable safety threat being on the field. The CA
Interscholastic Federation cited a National Association of State High School Associations
barring umpires from using wheelchairs in support of its position. The national federation has
since changed the rule in a way that eliminates the prohibition of umpires who uses wheelchairs.
Is Alcoholism a Disability?
Alcohol not Considered Disability (November 14, 1999)
A federal judge Friday ruled out of bounds the claim of a north suburban (Chicago) high school
basketball star Ricky Higgins that his suspension from athletics for abusing alcohol was
discriminatory. Higgins argued that because he is an alcoholic he should be covered by laws
that bar discrimination against the disabled. U.S. District Judge Paul Plunket ruled that the
year-long athletic suspension of the 17-year-old Warren Township High school’s star guard did
not violate such laws. Plunkett said granting Higgins’ request for an “accommodation” under
terms of the school’s rule banning alcohol and drug use “would eviscerate the rule itself” and
“give license to those with substance abuse problems to engage in unsafe and unhealthy
behaviors.” Higgins was a passenger in a car carrying an open container of alcohol. He also
was charged with drunken driving in another incident. That benched him for a year under
school policy that one alcohol incident costs a player 30$ of his eligibility and two cost him a
year. His mother sued the school district saying that after the suspension, Higgins was found to
be an alcoholic (a recognized disability under ADA) – as his father and grandfather had been.
That should earn him the protection of the ADA, she said, and require his reinstatement.
Plunkett (the judge) noted that the suspension had been made before the alcoholism diagnosis
was made, so it was “obviously” not discriminatory. Superintendent Robert A. McKanna said
the decision “reaffirms the rights of a school to discourage and punish drug and alcohol use.”
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Is a “Special Course” considered a Core Course?
NCAA Allows “Special Courses” to Count towards College Credit (Sept. 2000)
Toure Butler received a scholarship to play football at the University of Washington. He arrived
on the Seattle campus in August, 1996 and reported for football practice. But after moving into
the dorms and practicing for two weeks, the NCAA told him he could no longer play for the
Huskies. The NCAA determined that Toure did not meet academic eligibility requirements.
Toure had necessary tests scores and GPA, but the NCAA would not accept Toure’s core
courses, because they were taught in non-traditional ways. Toure filed an ADA lawsuit, arguing
that NCAA’s refusal to recognize courses modified to accommodate students with learning
disabilities violated the law. The U.S. Department of Justice intervened and a federal judge
granted Toure an injunction that allowed him to remain at the University of Washington.
Eventually, the Department of Justice and the NCAA entered into an agreement monitored by
the Federal Court in which the NCAA agreed to change its policies and procedures for
determining eligibility. Under the landmark agreement, the NCAA agreed to:
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certify classes designed for students with learning disabilities as “core courses” if they
classes provide them with the same type of knowledge and skills as other college-bound
students– increasing by 10 fold the number of certified classes for students with learning
disabilities;
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enable college freshman with learning disabilities, who do not meet the initial-eligibility
rules, to earn a 4th year of athletic eligibility if they show they can succeed academically,
while also playing sports;
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direct its evaluating committees to review the students’ high school preparation and
performance when deciding whether to grant a waiver, and include experts in learning
disabilities when evaluating a student application;
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designate an “ADA Compliance Coordinator,” to assist NCAA staff and to serve as a
liaison with students’ train its staff on the new policies’ and policies; and publicize the
agreement to students, parents, and member colleges and universities; and,
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pay a total of $35,000 in damages to four student-athletes.
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Can You Simply Not Allow a Child to Play Because of Their Label?
Inskip v. Astoria Sch. Dist., 16 NDLR 262, No. 99-515-KI (D. Or 04/26/99)
An 18-year-old high school junior with autism and epilepsy alleged that a school district violated
title II of the ADA and the Rehabilitation Act by refusing to allow her to play in practice softball
games - intr-squad games - and competitive games with other schools. The U.S. District Court,
District of Oregon granted preliminary injunctive relief to the student. Evidence indicated that
the student was qualified to play softball games since she had softball skills comparable to other
members of the junior varsity team. Further, the team coach acknowledged that the student had
“average skill overall in softball.” In addition, the district failed to show that the student or
other players would be subjected to a reasonable probability of substantial injury if the district
permitted the student to play in intra-squad or competitive softball games. However, the district
could exclude the student from competitive games based upon a reasonable assessment by
coaching staff that the team’s competitiveness would be reduced because she was permitted to
play.
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