Court: ADD Didn’t Prevent Student Athlete from Playing Football

Jul 28, 2006

A Colorado appeals court has ruled that a trial court properly denied a request for a preliminary injunction made by the parent of a student athlete, who claimed her son should have been permitted to play football his senior year despite the fact that he was not in compliance with the Colorado High School Activities Association’s 8-semester rule.
Beth Tesmer had argued that that rule violated the statutory protections of the Colorado Anti-Discrimination Act (CADA) regarding the developmentally disabled set forth in § 27-10.5-112, C.R.S 2005, and the prohibition against disability-based discrimination in places of public accommodation set forth in § 24-34-601, C.R.S. 2005.
Her son, Scott Orth, was diagnosed with attention deficit disorder (ADD) when he was eight years old. However, when Orth began high school in 2001, it was determined that Orth’s ADD did not require that he take special education classes or that he be given any special academic accommodations, except additional time for taking tests, completing homework and making copies of class notes.
From December of 2001 to February of 2002, Orth suffered from a sinus infection and missed six to ten weeks of school. He did not pass enough classes and was forced to repeat the ninth grade.
All was fine until the fall of 2005, when as a 12th grader he was barred from playing football because of the aforementioned rule, which limits student eligibility for high school athletics to eight consecutive semesters after the student first begins high school.
Orth filed for a “hardship” waiver with CHSAA’s commissioner, but was denied. The commissioner found specifically that Orth “had not shown that his ADD prevented him from attending school or otherwise earning credits.” Orth appealed the commissioner’s decision to the appeals committee, but again was denied.
Finally, he sued the association in state court. After losing in the trial court, he appealed.
While the appeals court could have decided against hearing the case because the season was over and a decision would be moot, it opted against that because “existing case law suggests that other students have been diagnosed with ADD and could make similar claims in the future. See, e.g., Washington v. Ind. High Sch. Athletic Ass’n, 181 F.3d 840 (7th Cir. 1999); McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.3d 453 (6th Cir. 1997); Bingham v. Or. Sch. Activities Ass’n, 24 F. Supp. 2d 1110 (D. Or. 1998); Rhodes v. Ohio High Sch. Athletic Ass’n, 939 F. Supp. 584 (N.D. Ohio 1996).”
“The trial court concluded that Orth failed to show that he had a reasonable probability of succeeding on the merits of either claim because he did not demonstrate a causal link between his ADD and his failure to play sports in his first ninth grade year,” the appeals court wrote. “Although our reasoning differs, we agree that Orth failed to show that he had a reasonable probability of success.
“(I)n its determination that Orth’s ADD did not prevent him from playing football in his twelfth grade year, the trial court answered the wrong question: it was the repetition of Orth’s ninth grade year, not his failure to play football in his first ninth grade year, that was the reason CHSAA’s eight semester rule barred Orth from playing sports in his fifth year of high school. Thus, the proper inquiry was whether Orth had to repeat ninth grade because of his ADD.
“Here, there is substantial evidence in the record that suggests that Orth repeated ninth grade, not because of his ADD, but because of his parents’ divorce, problems adjusting to a new school, and a sinus infection that required that he miss approximately two months of school.” Beth Tesmer and Scott Ronald Orth v. Colorado High School Activities Association; Ct. App. Colo., Div. A; No. 05CA2334; 4/20/06
Attorneys of Record: (for plaintiffs) Law Offices of Sandomire & Schwartz, Gabriel N. Schwartz, Colin Edward Moriarty, Denver, Colorado. (for defendant) Alexander Halpern, LLC, Alexander Halpern, Michelle Murphy, Boulder, Colorado.


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