Plaintiff’s Reliance on ADA to Get Extra Year of High School Eligibility Falls Short

Jan 13, 2023

A federal judge from the District of Oregon denied a motion for a preliminary injunction from an athlete who claimed the Oregon School Activities Association (OSAA) violated the Americans with Disabilities Act (ADA) when it declined to give him a fifth year of eligibility.

Previously, the court ruled on the plaintiff’s motion for emergency temporary restraining order, denying the motion on the grounds that the plaintiff did not demonstrate the requisite “likelihood of success on the merits.” Similarly, in the second instance, the court found the plaintiff’s more formalized bid should also fail for the same reason.

The plaintiff in the case, D.M., was a 17-year-old senior in high school. The OSAA has a policy that limits student participation in sports to four consecutive years or eight semesters after entering ninth grade, known as ‘the eight-semester rule.’

An exception to the eight-semester rule exists by way of a fifth-year hardship appeal. Specifically, a student may qualify for the exception if an Individualized Education Program (IEP) team determines that the student has a disability and was meeting certain requirements, but was unable to graduate within eight semesters primarily because of his disability, according to OSAA Handbook 35, Rule 8.2.4(b)(1). For purposes of this rule, “disability” is defined by the Individuals with Disabilities Education Act (IDEA) as a “child with a disability” has one or more of an enumerated list of impairments requiring “special education or related services.”

The plaintiff completed the ninth and tenth grades at Marist Catholic High School. His parent enrolled him at Triumph Academy, a residential treatment program, where he repeated the tenth grade. For his eleventh-grade year, and fourth year of high school, the plaintiff enrolled in the Eugene School District. The plaintiff was entering the twelfth grade and his fifth year of high school in the Eugene School District when he sought an additional year of eligibility to compete in school sports. The plaintiff’s high school submitted a fifth-year eligibility waiver request to the defendant in May of 2022, which the defendant denied the following month because the plaintiff did not meet the waiver requirements under Rule 8.2.4. In denying the plaintiff’s request, the defendant noted that he did not qualify for specially designed instruction under an IEP since his year spent at Triumph Academy was a “choice,” and allowing the plaintiff “to participate in contests as a fifth-year student would be taking a roster spot from an otherwise eligible student.”

The court noted that 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.” 42 U.S.C. § 12132. To succeed on a Title II claim, a plaintiff must show (1) he is a qualified individual with a disability, (2) he was excluded from participation in 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. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). To meet Title II’s “by reason of” requirement, a plaintiff must establish a causal connection between his disability and his exclusion from a public entity’s program. See Washington v. Ind. High Sch. Athletic Ass’n, 181 F.3d 840, 848-49 (7th Cir. 1999); Starego v. N.J. State Interscholastic Athletic Ass’n, 970 F. Supp. 2d 303, 314 (D.N.J. 2013).

In the present case, the plaintiff must have shown that but-for his PTSD and ADHD, he would have been eligible to participate in school sports. The plaintiff claimed that his disabilities caused him to leave school and attend Triumph, ultimately missing a year of participation in OSAA-regulated sports and resulting in his ineligibility. He also claimed that his “particular circumstances required an accommodation to access OSAA’s program.”

According to the federal judge, “Assuming without deciding that the plaintiff’s ADHD and PTSD qualify him as disabled under the ADA, the plaintiff has not demonstrated that his disabilities caused his ineligibility.” The judge continued, “The record instead reflects that the plaintiff’s parent chose to enroll the plaintiff at Triumph Academy to address substantial behavioral, emotional, and mental health concerns. The plaintiff acknowledges that his parent ‘made the smart decision to send the plaintiff to Triumph Youth Services because he had really severe trauma and he was also breaking the law. If his mom hadn’t made that decision [he] probably would be in jail or worse.’”

The plaintiff’s therapist also confirmed that he “was sent to Triumph due to anti-social behaviors.” After a few months at Triumph, a Treatment Plan Review noted that the plaintiff demonstrated “the propensity for threatening and intimidation of others, initiating fights and breaking into the property of others to steal. The plaintiff’s size and strength give him the potential to harm others. [The] plaintiff continues to be in the contemplative stage of change for all of his addictive behaviors.”

The record further revealed that the plaintiff’s disabilities were addressed by each of his prior schools before, during, and after his time at Triumph through a 504 plan or its equivalent. These accommodations included allowing fewer assignments with additional time for completion, modeling approaches to organizing information, and permitting breaks for emotional regulation. An evaluation team at the plaintiff’s school determined that an IDEA evaluation for special education eligibility and an IEP was unnecessary as “existing data [sufficiently] ruled out a suspicion of any educational disability that may require special education at this time.”

The team agreed that the plaintiff’s stress and anxiety “could be effectively addressed via general education supports that have been, and remain, available” to him. The team further noted that the plaintiff “never exhibited concerning behavior . . . in the academic setting.”

In the court’s decision, the judge wrote that despite his sympathy to the tragedy and trauma the plaintiff has suffered in his young life, the plaintiff’s history of being provided accommodations at school, as well as the evaluation team’s statements that his disabilities are adequately addressed by his 504 plan and other educational supports without need for an IEP, show that the plaintiff was not unable to meet the eight-semester rule due to his disabilities. Instead, based on an apparent combination of behavioral and emotional concerns, the plaintiff’s parent chose to enroll the plaintiff at a school that she believed could more adequately meet the plaintiff’s needs. Though the plaintiff refers to Triumph as a mental health residential treatment program, he received full academic credit and played on a rugby team during his year there. Under these circumstances, the ADA does not obligate the defendant to waive its eight-semester rule, providing the plaintiff an extra year of eligibility and taking a roster spot from another student, to accommodate the plaintiff’s attendance at Triumph.

The judge further highlighted significant support in multiple circuit courts, which “concluded that waiver of the eight-semester rule and age restriction rule constitutes a fundamental alteration of a high school sports program. See McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.3d 453, 461-62 (6th Cir. 1997); Sandison v. Mich. High Sch. Athletic Ass’n, 64 F.3d 1026, 1034-35 (6th Cir. 1995); Pottgen v. Mo. State High Sch. Activities Ass’n, 40 F.3d 926, 929-31 (8th Cir. 1994).

While citing the OSAA Handbook, the judge wrote, “Here, a fundamental purpose of the defendant’s eight-semester rule is to encourage continuous and sustained academic progress of students and to encourage graduation following the completion of eight semesters of high school.” Further, the judge stated, “Despite obtaining support for his disabilities throughout his schooling and failing to demonstrate that his disabilities caused his ineligibility, the plaintiff now seeks further accommodation in the form of a waiver of the eight-semester rule. Considering the facts of this case and the above purpose behind the rule, the plaintiff’s requested accommodation is not reasonable.”

As a result, the judge concluded, “Because it appears that no discrimination on the basis of disability occurred, and because the plaintiff’s requested accommodation is unreasonable, the plaintiff failed to meet his burden in showing a likelihood of success on the merits of his ADA claim.”

D.M. v. Oregon School Activities Association; D. Oregon; Civ. No. 6:22-cv-01228-MC; 11/22/22