Federal Court Decides if ADA Requires Extra Season for Disabled High School Football Player

Jun 14, 2024

By Gary Chester, Senior Writer

A federal judge in Oregon tackled the issue of whether a high school football player who missed a season due to behavioral challenges was entitled to an extra year of eligibility under the Americans with Disabilities Act (ADA). In D.M. v. Oregon Scholastic Activities Association (OSAA), 2024 U.S. Dist. LEXIS 70851 (D.Or. May 13, 2024), trial judge Michael McShane in 2022 denied the student-athlete’s application for a preliminary injunction requiring the governing body, the OSAA, to accommodate him by extending his eligibility to play high school football in his fifth year of high school. The Ninth Circuit affirmed, ruling that the matter was moot because D.M. had graduated from high school.

After the remainder of the case resumed in the trial court, the OSAA filed a motion for summary judgment on the remaining issue of whether the plaintiff was entitled to an extra year of high school sports eligibility as an ADA reasonable accommodation for his behavioral disability.

The plaintiff asserted that he suffered from post-traumatic stress disorder (PTSD) and related conditions constituting a disability under the ADA. His condition forced him to repeat a grade in a treatment program at Triumph Academy, which is outside the public school system and did not offer sports activities. The OSAA argued that since a learning disability did not cause D.M. to lose a year of eligibility to play sports, the defendant was not obligated to grant him an additional year in which to participate. The plaintiff argued that his behavioral disability was closely related to his academic struggles and the need to repeat a grade so as to compel the OSAA to accommodate him. 

The Plaintiff Faced Personal Challenges

 D.M. was a 17-year-old student about to enter his senior year at Sheldon High School in Eugene, Oregon. He was fortunate enough to have been adopted from an Ethiopian orphanage at age four, but he suffers from depression, PTSD, and other mental health conditions. Playing football was a critical component of the plaintiff’s life, providing him with motivation to study hard and a positive social structure where he felt competent.

D.M. played football for three of the four years in which he was eligible and wanted to play one more season. But Oregon’s policy generally restricts a student’s eligibility for high school sports to eight semesters, which is consistent with some other states. There are express exceptions to the eight-semester rule and D.M. sought a hardship exemption that would allow him to play in his senior year.

The plaintiff’s eight-semester “clock” began when he enrolled as a ninth-grade student at Marist High School in August 2018. The preceding year, D.M. suffered a tragedy when his older brother died by suicide. D.M.’s seventh and eighth-grade years were consolidated to expedite his enrollment at Marist, where another brother was already enrolled. D.M. completed the ninth and tenth grades at Marist but his behavioral conditions produced anti-social conduct, prompting his parents to enroll him at Triumph Academy where he repeated the tenth grade.

For his eleventh-grade year, and fourth year of high school, D.M. enrolled in the Eugene, Oregon school district. When the action was decided, D.M. was entering the twelfth grade and his fifth year of high school.

Assuming he passed his classes, the plaintiff would have graduated at the conclusion of the 2022-2023 academic year. Since D.M. entered the ninth grade in August 2018, his eight semesters of athletic eligibility expired after the 2021-2022 school year. He applied for a hardship waiver of the rule based on his disabilities, but the OSAA denied the request because the waiver applies only to students with individual disabilities under the ADA who have an Individualized Education Plan (IEP).

Did the Plaintiff’s PTSD Cause Him to Repeat a Year?

Title II of the ADA (42 U.S.C. § 12132) 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, program, or activities of a public entity or be subjected to discrimination by any such entity.” To prove a claim under this section, a plaintiff must show that: (1) he is a qualified individual with a disability, (2) he was excluded from participation or otherwise discriminated against with regard to a public entity’s services, programs, or activities, and (3) such exclusion or discrimination was by reason of his disability.

The ADA, however, does not require public entities to fulfill every accommodation that a disabled person requests; it only mandates reasonable accommodations. The reasonableness of the proposed accommodation depends on the individual circumstances of each case. The burden of proof rests with the plaintiff.

There are three circumstances justifying a waiver of the eight-semester rule, including where the student’s IEP team has determined that the student was meeting the requirements of the student’s IEP but was unable to graduate from high school within eight semesters after entering the ninth grade primarily because of the disability. The other circumstances involve a significant absence from school or a lack of English proficiency.

The plaintiff did not meet any of the criteria for a waiver. He argued that a waiver would constitute a reasonable accommodation, and that a blanket fifth-year waiver should be permissible for any student with an ADA-qualifying disability who can establish a connection between the disability and the need for an additional year of high school.

The OSAA argued that the eight-semester rule promotes academic progression and fair and safe competition among participants. The exceptions “focus on whether the student is able to academically progress (earn credits) and thereby graduate in four years.”

The OSAA Obtains Summary Judgment

The court discussed the IEP requirement, which mandates that professionals evaluate a student to determine whether the student is disabled for the purposes of the Individuals with Disabilities Education Act (IDEA). The plaintiff was considered for an IEP twice, but his IEP team of teachers and administrators decided that he was not a candidate for special education and chose not to implement an IEP. D.M. had a less formal academic success plan throughout high school and this was deemed sufficient to support him in advancing to graduation. D.M. urged the court to require the OSAA to amend its rules to enable students with disabilities as defined by the IDEA and Section 504 of the Rehabilitation Act to request a fifth year of eligibility.

Judge McShane found that it would not be reasonable to disregard the fundamental difference between students who meet the criteria for obtaining an IEP and those who do not. Even if D.M. could show that a waiver of the eight-semester rule was reasonable, he was unable to establish a causal connection between his disabilities and his ineligibility under the district’s eligibility policy. D.M. argued that he would not have required a year-long stay at the Triumph treatment center but for his disabilities, and the ADA required the OSAA to afford him reasonable accommodations not only for his disability but also for his disability-related needs.

Judge McShane disagreed because D.M. was enrolled at Triumph because it was deemed a school “better equipped to address his behavioral, emotional, and mental health concerns.” Simply put, D.M. did not obtain a waiver permitting him to play football in his senior year because he suffered from an emotional disability as opposed to a learning disability. Had D.M. repeated a grade due to a learning disability that required an IEP, then he would have qualified for a waiver.

The court distinguished D.M.’s situation from Washington v. Indiana High School Athletic Association, 181 F.3d 840 (7th Cir. 1999), where a school district did not waive the eight-semester rule for a student whose learning disability caused him to fail at school and drop out. The Seventh Circuit found that the district had violated the ADA because but for the learning disability the student would have otherwise been eligible to play sports.

In contrast, D.M. did not have an IEP and did not leave school due to a learning disability. The court stated that it was “unclear how Plaintiff’s proposed blanket-waiver comports “with the ‘fact-specific, individualized analy[es]’ that distinguishes reasonable accommodations from unreasonable ones.” Judge McShane noted that multiple circuit courts have concluded that a waiver of the eight-semester rule fundamentally alters high school sports.

The Takeaway

The decision reflects the general reluctance of the judiciary to disturb policy effected by voluntary educational associations. Exceptions such as where the association’s actions conflict with its own policy are rare. Here, the trial court and the Ninth Circuit followed precedent and found the IEP requirement to be reasonable.

That being said, the court recognized D.M. as a sympathetic plaintiff who did suffer from a disability under the ADA that was not a per se learning disability that required an IEP. The decision raised the issue of whether the court could have used its equitable powers to find for the student-athlete under the exceptional circumstances of the case.

Articles in Current Issue