By Michael A. Ross, MS
In November 2020, the United States District Court for the District of New Hampshire granted summary judgement on behalf of the defendant, Pinkerton Academy, while dismissing the remaining federal claims as they pertain to the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act and other negligence claims, brought forth by Mrs. Tveter and her daughter, the plaintiffs. The aforementioned claims and instances would be reviewed through the lens of the plaintiff meeting the IDEA’s exhaustion requirement before further litigation could be conducted on the basis of previously mentioned federal statues enacted to protect children with disabilities within the educational setting.
Elizabeth Tveter, plaintiff, began attending Pinkerton Academy as a freshman in 2012, and was a member of the varsity field hockey team during her freshman and sophomore years. It is documented that she was well liked by both her teammates and the athletic department administration as well. During 2014, Tveter experienced a sever and traumatic brain injury while playing for a club team, not associated with Pinkerton, in which Tveter became disabled as a result of her injury.
Shortly after her injury, Tveter became a qualified student with a disability as identified by the guidelines established under Section 504 of the Rehabilitation Act. In 2014, Tveter had a Section 504 plan developed for her to utilize as her academic endeavors continued. In March of 2015, Tveter was found to be eligible of having a disability under the IDEA. Resulting from this accommodation, Pinkerton Academy developed and proposed an individualized education plan (IEP) which stated both academic and one athletic accommodation that Tveter would be entitled to receive. The IEP plan regarding her academic accommodations was extensive but thorough in addressing a student with a disability such as the one experienced by Tveter. Some of these accommodations included extended time for completing tests and assignments, a quiet location for taking tests and quizzes in the company of a paraprofessional, adjustments to lengths of writing assignments with emphasis on quality instead of quantity, access to teachers’ notes and access to elevators among various others. Regarding the one athletic accommodation requested by Mrs. Tveter to be included within the IEP, the IEP team agreed to include her request in the IEP draft that her daughter would remain eligible for athletics and extracurricular activities provided coursework was incomplete as a result of the implementation of the aforementioned academic accommodations for her disability. In other words, if Tveter’s coursework was found to be incomplete it must fall within the parameters established through her approved Section 504 and IEP plan to be excused. This IEP was initially agreed upon and accepted by both parties but was later rescinded and negated all together by the plaintiff because the sport-specific accommodation was not included. It is also documented that the plaintiff did not request an administrative due process proceeding to challenge any area of disagreement with the IEP after receiving a copy of the New Hampshire Procedural Safeguards Handbook for Special Education.
In 2014, Tveter was denied the opportunity to try out for Pinkerton’s field hockey team by the athletic director (AD) who justified this action through Tveter’s incomplete grades despite her Section 504 specifically stating she was granted additional time to finalize her grades. The AD additionally stated she had not received proper medical clearance for participation, but documents refuting these claims were provided by her treatment providers allowing her to try out and participate in certain drills. After receiving complaints from her parents, Pinkerton allowed Tveter to be a varsity member. She did not play in any contests over the course of the season. Her treatment providers would clear her for full participation and clearance after a series of tests were conducted, but Pinkerton maintained their restriction and her ineligibility was based on her failure to pass concussion protocol while displaying associated symptoms.
It is documented that on four separate occasions that season Tveter’s teammates bullied or convinced her to give up personal team issued clothing when various teammates had failed to pack or bring their own. Tveter would testify that she was subjected to gang stripping and that on the occasion regarding her skirt, it had been forcibly removed from her. No circumstantial evidence of these actions occurring within the presented context could be established, and during Tveter’s deposition she could not remember the circumstances of three of the documented incidents while vaguely offering some details regarding an incident with her socks. She stated that multiple teammates insisted she give her socks to a teammate because she would not be participating in the game, and her teammate warranted higher quality gear to compete in. No similar instances were documented in prior years when Tveter was a member of the team and before her disability. Mrs. Tveter made a claim to Pinkerton that bullying was occurring in which after an internal investigation, Pinkerton found there to be no evidence to support her claims as they applied specifically toward the sock incident. The varsity coach mandated Tveter’s socks be returned, in which they were shortly thereafter. The parents would further their claim by insisting the socks returned were of inferior quality than those they had initially started with resulting in Pinkerton reimbursing them for the cost of the original pair of socks.
Following field hockey, Tveter attempted to try out for tennis in which the AD again denied her eligibility because she was failing a class. When this issue was resolved the AD denied her attempt again stating that she had incomplete grades, similar to the experience at the beginning of field hockey. Based on her Section 504 plan this issue was also lifted. The AD would also refuse to grant permission offered to students with a disability from adhering to the academic requirements issued all other participants per the New Hampshire Interscholastic Athletic Association (NHIAA) guidelines. In response to the AD’s reasoning, Tveter’s parents reported the actions to Pinkerton on the basis of harassment, bullying, discrimination and retaliation. During this time, Tveter successfully completed the missing academic work making her eligible. Because she completed said work after the conclusion of tryouts, she was denied the opportunity to play varsity but was permitted to play junior varsity. It is documented that Tveter was the only member to not receive a team uniform during that season.
At the beginning of her senior year, Tveter signed up for varsity field hockey tryouts and was again found to be ineligible based on incomplete grades. This verdict again dismissed her Section 504 accommodation regarding additional time for completion to be granted as well as the NHIAA policy allowing disabled students additional exemptions regarding their academic rigor and expectations necessary for eligibility. Tveter completed the required academic work the morning of tryouts and successfully earned a spot on the varsity roster. Her parents filed a complaint during this time to Pinkerton stating that their daughter was being discriminated against and being denied equal opportunity to participate in sports. Later in the season, Mrs. Tveter issued another complaint on the basis of discrimination and retaliation. She claimed the outcomes of the events led to her daughter no longer being a starter, being denied the opportunity to play her permanent position and receiving less adequate playing time. An investigation concluded that these events were occurring because there were other members on the team performing at a higher level during this time.
Further into the season Tveter would be struck in the back of the head during warmups, suffering a concussion in which her mother would insist the incident was a form of bullying and harassment. The event was found to be an accident. Three days after being cleared from concussion protocol, Tveter would be hit again during a physical education class. As previously experienced, the parents issued a complaint on the grounds of bullying. Tveter stated that she was struck in the face with a sponge ball causing her head and neck to whip back in a violent motion. Upon further investigation, testimony from multiple students and the gym teachers stated she had not been hit in the face, but in the chest and the soft ball was implemented in these games to avoid the very incident that occurred from escalating.
Two months later, while signing up for tennis tryouts, Pinkerton required Tveter to pass the five-day concussion protocol based on her previous injuries and incidents before she would be permitted to tryout. Her mother states this course of action was inappropriate to apply this protocol and existed as yet another example of retaliation on behalf of Pinkerton. Tveter would complete the protocol and make the varsity team in which she was awarded a red jersey as opposed to the white jerseys the remainder of the team was given. At the award ceremony in 2016, it is stated that Tveter did not receive awards she had earned as a scholar athlete in which her mother expressed in an email as additional evidence of Pinkerton acting in retaliation.
Case Analysis and Key Findings
Shortly before Tveter graduated from Pinkerton Academy, she and her mother filed a lawsuit addressing twelve different causes of action against thirteen defendants. The complaint stated that the defendants denied Tveter her right to a free appropriate public education (FAPE) under the IDEA while also discriminating, harassing and retaliating against her in violation of ADA, Section 504, Title IX the Fourteenth Amendment and New Hampshire law.
The court dismissed the claims pertaining to Tveter’s denial of receiving a FAPE based on the implementation of both the Section 504 plan and the IEP addressing the various accommodations granted to Tveter deemed necessary for her academic success. The claims regarding Tveter’s constitutional, Title IX and other state law claims were also dismissed for failure to state a claim upon which relief could be granted. The defendants moved for summary judgement for all remaining claims on the basis that Tveter’s sports-related claims require exhaustion under IDEA. The court examined and addressed precedential cases examining the extent of the exhaustion requirement necessary to truly evaluate the incidents and their impact within the IDEA guidelines and framework. Because Tveter did not fully or properly address the exhaustion requirements deemed necessary while trying to establish a case of denied FAPE within the IDEA framework, the defendants were granted summary judgement on all remaining federal claims. One of the key considerations accounted for within this claim was the verbiage within the IDEA framework that insists an IEP include supplementary aids and services. This terminology is defined as aids, services and other supports provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 1412(a)(5) of this title. Expressed within this statement and Tveter’s IEP there is a sound foundation to justify that athletic participation falls within her claim of FAPE and this is something she should have pushed through the aforementioned administrative process that the IDEA delineates. Despite having this accommodation within the plan, the school’s actions and findings do not warrant further investigation or consideration after evaluating precedential framework, examining the record of occurrences and reading the wording and intent of federal statues aiming to better serve disabled students.
The defendants were also granted summary judgement concerning the remaining negligence claims as the court found that no reasonable person could state that the injuries and incidents claimed by Tveter were at the fault of school officials or others in a position of supervision. The aforementioned incidents being the concussion received during warmups and the sponge ball during a controlled physical education setting were found to have been accidents and not at fault of the supervising officials listed within each incident. A lack of circumstantial evidence on behalf of the plaintiffs can be examined and considered as part of the eventual granting of summary judgement in favor of the defendants.
One area warranting additional consideration is the allowing of the athletic accommodation to be implemented into Tveter’s IEP justifying athletic participation while not adequately adhering to academic guidelines established by the school and the NHIAA. While the intention of such an accommodation is understandable and admirable to some extent, it does allow for the potential of increased legal issues as witnessed through the case of Tveter after her disabling injury occurred. Analyzing this case would serve many public education entities well to better proactively address students with a disability in regard to athletic participation while also allowing to more proactively safeguard themselves from the potential of legal action taken against them. This case highlights the many gray areas that can be found while trying to serve in the best case of the student and the need for a sound Section 504 and IEP plan that is mutually beneficial for all parties involved.
Tveter v. Pinkerton Acad., No. 16-cv-329-PB, 2020 DNH 193 (D.N.H. 2020)
Michael A. Ross is an Assistant Professor of Sport Management at Shorter University and a PhD student at Troy University specializing in research related to youth sport studies, leadership, social media policies and procedures within athletics and participation motivations in sport and recreation.