A federal judge from the Southern District of Ohio granted a motion for a preliminary injunction, which blocks the Ohio High School Athletic Association’s (OHSAA) requirement that a student athlete, who is disabled, must reside in the state of Ohio to be eligible to compete at one of the association’s member high schools.
In so ruling, the court noted that it could have accommodated the student athlete and complied with the Americans with Disabilities Act (ADA).
Charles Steines was a ninth grade student at The Summit Country Day School in Cincinnati. Despite residing in Kentucky, Steines has attended school in Cincinnati since being diagnosed with a learning disability, Attention Deficit Hyperactivity Disorder, prior to the first grade. He hoped to play on the varsity soccer team, but the OHSAA refused to grant an accommodation or waiver of the OHSAA’s instate residency requirement (Bylaw 4-6-3). The parents sued, alleging a violation of the aforementioned acts.
In its analysis, the court noted that district courts must “consider the following four factors when deciding to issue a temporary restraining order: (1) whether the movant has demonstrated a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of preliminary injunctive relief would cause substantial harm to others; and (4) whether the public interest would be served by issuance of preliminary injunctive relief. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000).”
The court went on to recap the plaintiffs’ argument “that the OHSAA bylaws have the effect of discriminating against Steines on the basis of his disability, in violation of the Rehabilitation Act of 1973 and Titles II and III of the ADA. For the reasons stated below, the Court finds Plaintiffs demonstrate a strong likelihood of success on their claim under Title II of the ADA, and therefore finds it unnecessary to address the remainder of Plaintiffs’ claims.
“Title II of the ADA provides that ‘no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.’ See 42 U.S.C. § 12132. ‘The term qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.’ 42 U.S.C. § 12131(2).”
The court further noted that the association could be deemed a public entity. “More than a decade ago, the United States District Court for the Northern District of Ohio found the OHSAA to be subject to Title II on the following grounds:
“This court notes that every available district court opinion, which has addressed this very issue has found that a state athletic association is an instrumentality of the State. See Hoot by Hoot v. Milan Area Sch., 853 F. Supp. 243, 251 (E.D. Mich. 1994); Sandison v. MHSAA, 863 F. Supp. 483, 487 (E.D. Mich., 1994), rev’d in part, 64 F.3d 1026 (1995); Dennin v. Connecticut Interscholastic Athletic Conf., Inc., 913 F. Supp. 663, 670 (D. Conn. 1996); Johnson v. Florida High Sch. Activities Ass’n. Inc., 899 F. Supp. 579, 583 (M.D. Fla. 1995), vacated on mootness grounds, 102 F.3d 1172 (1997); Pottgen v. Missouri State High Sch. Activities Ass’n, 857 F. Supp. 654, 662 (E.D. Mo. 1994), rev’d, 40 F.3d 926 (8th Cir. 1995). Of particular interest is the opinion of the court in Hoot. That Court explained that the Michigan High School Athletic Association is an instrumentality of the state because the MHSAA, a private, nonprofit association that is sanctioned by state law, is the ‘official association’ of the state, has a permanent ex officio member of the State Board on its governing board, and is composed of primarily public schools and ‘frequently uses public facilities’ thus intertwining the MHSAA with state instrumentalities. Hoot by Hoot, 853 F. Supp. at 250-51.
“This court does not have the same quality of evidence before it as did the court in Hoot, but weighing that evidence which was submitted on this question in the instant case, the court finds that the plaintiff has proven that the defendant OHSAA is an instrumentality of the State of Ohio. The evidence tends to show that Ohio has delegated a substantial amount of state authority to the OHSAA: the great majority of OHSAA’s members are public schools, it frequently uses public facilities, and it exercises the ability to sanction public schools for violations of its rules. The OHSAA is thus an instrument of the State and a ‘public entity’ amenable to suit pursuant to Section 12132. Rhodes v. Ohio High Sch. Athletic Ass’n, 939 F. Supp. 584, 590-91 (N.D. Ohio 1996). No evidence has been brought to light in this case that would call for a different conclusion.
“Indeed, the facts established in this case are consistent with those in Rhodes. For example, OHSAA members include public and nonpublic schools. Depending on the school system, some members use public facilities to hold sporting events, and the OHSAA routinely holds tournaments in leased public facilities. The OSHAA sets eligibility standards for students seeking to participate in interscholastic athletic programs at member schools, and the OSHAA board oversees its members’ athletic programs and has the power to sanction public schools for violations of OSHAA rules.”
Next, the court turned the plaintiffs’ argument that “the OHSAA violated Title II of the ADA by refusing to grant Charles, who due solely to his disability attends school in Ohio rather than in his home state of Kentucky, an accommodation of the OHSAA’s Instate Residency Rule to allow him to play soccer on his high school’s team.”
The defendant countered that it “is merely applying a neutral residency requirement that would bar Charles from participation in OHSAA-governed sports programs in Ohio even if he were not disabled,” and second, “that Charles is not requesting a mere accommodation, but rather a complete waiver of an essential eligibility rule, a step which the ADA does not require.”
The court noted that “over the past two decades, a number of student athletes have alleged ADA violations stemming from the application of facially neutral eligibility criteria resulting in their exclusion from school athletic programs. See generally McPherson, 119 F.3d at 460; Sandison v. Michigan High Sch. Athletic Ass’n., Inc., 64 F.3d 1026 (6th Cir. 1995); Washington v. Indiana High Sch. Ath. Ass’n, 181 F.3d 840 (7th Cir. 1999). By adapting precedent stemming from the employment discrimination context, courts have identified three methods by which plaintiffs can prove such claims:”
Discrimination “may be established by evidence that (1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people. Washington, 181 F.3d at 847 (relying on the approach outlined by the Sixth Circuit in McPherson, 119 F.3d at 460).
“The instant case concerns the second approach. In contrast to claims pursued under the first approach, wherein the plaintiff must prove the defendant intentionally acted on the basis of disability, a plaintiff pursuing a claim via the denial of reasonable accommodation approach need not prove discriminatory intent. Id. at 846; see also Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 908-10 (6th Cir. 2004) (addressing the scope of Title II). ‘Title II mandates not only that public entities refrain from intentionally discriminating against disabled individuals but that they also make certain accommodations to the disabled in the course of providing public services.’ Ability Ctr., 385 F.3d at 908.”
The court continued, noting that “granting the requested waiver would impose at the very most only a minimal financial or administrative burden.”
The “only remaining question is whether granting the requested waiver would require a fundamental alteration in the nature of the OHSAA’s program. As to this question, the burden of proof falls on the OHSAA. Jones v. City of Monroe, MI, 341 F.3d 474, 480 (6th Cir. 2003).”
But “conspicuously absent from the defendant’s responsive pleading is any direct explanation of why the Instate Residency Rule is essential or necessary.” The court went on to question “the asserted necessity of the Instate Residency Rule to the functioning of a successful athletics program. First, as noted above, there is no evidence that significant numbers of out-of-state students are clamoring for entry into the OHSAA’s programs or that such participation would even be feasible for large numbers of students. Second, there similarly is no evidence the unfair recruitment of out-of-state students is a widespread concern. Finally, the broad nature and sheer number of residency exceptions that have been adopted suggest to this Court that the OHSAA itself does not actually view instate residency to be an essential eligibility criterion. In fact, Bylaw 4-6-3 has more exceptions that any other eligibility criterion set forth in Section 6 of the Bylaws.
“Even if the Court were to agree that the Instate Residency Rule is necessary, the Court nonetheless finds based on the individualized inquiry that the ADA requires that granting the narrow waiver requested by the Steines in this case would not fundamentally alter the nature of OHSAA athletics.”
Charles Steines v. Ohio High School Athletic Association; S.D. Ohio; Case No. 1:14CV525, 2014 U.S. Dist. LEXIS 158460; 11/10/14
Attorneys of Record: (for plaintiffs) John Patrick Concannon, Katherine Daughtrey Neff, Randolph Harry Freking, of Freking & Betz, Cincinnati, OH. (for defendant) Steven L Craig, LEAD ATTORNEY, Canton, OH.
