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DISCRIMINATION AGAINST DISABLED IN SPORTS.
Term Paper ID:26311
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Examines extent & evolution of legal protection of disabled in amateur athletics, eligibility, funding, age requirements, litigation, employment, some non-sports aspects.... More...
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Paper Abstract:
Examines extent & evolution of legal protection of disabled in amateur athletics, eligibility, funding, age requirements, litigation, employment, some non-sports aspects.
Paper Introduction:
DISCRIMINATION AGAINST DISABLED PEOPLE BY ATHLETIC VENUES, HIGH
SCHOOL ATHLETIC CONFERENCES AND THE NCAA
This research paper examines the extent of legal protection presently afforded to disabled persons involved in high school and college athletics. The primary focus is upon amateur athletics but cases in the field of professional sports are mentioned where they provide relevant precedents for amateur athletics.
The legal protection afforded disabled persons generally and in sports has been considerably expanded during the past two decades, primarily as a result of the enactment of two federal statutes, the Rehabilitation Act of 1973 (RA) and the Americans with Disabilities Act of 1993 (ADA). Through the interpretations made by the courts, primarily federal courts, as to the scope and
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1984). Supp. Under a 1993 amendment to New York State's Education Law, a disabledstudent athlete can obtain an injunction against a public school whichrefuses to allow him to participate in a particular sport, provided that hehas obtained certificates from two licensed physicians stating that thestudent has the physical capacity to engage in that sport, and that isreasonably safe for the student to do so.[4] Non-transfer rules. . 1997). 794 (as amended 1992).New York Education Law, sec. 459 (D.N.J. Analysts International Corp. Kaperski, Disabled High School Athletes and the Right toParticipate: Are Age Waivers Reasonable under the Rehabilitation Act andthe Americans with Disabilities Act? Mitlen, Amateur Athletes with Handicaps or PhysicalAbnormalities: Who Makes the Participation Decision? The funds do nothave to go directly to the particular program, general federal assistanceto a school or university which sponsors such activities has been held tobe sufficient to bring it under sec. Inmaking such a determination, Law professor Mitlen says that a school isentitled to rely under Arline on "reasonable medical judgments."[3] Forexample, he says that under an unreported oral decision in Larkin v.Archdiocese of Cincinnati (S.D. 12111(4) simplysays that an employee is "an individual who is employed by an employer."Under sec. InSchool Board of Nassau County, Fla. In order to promote safety and to avoidunfair competition (the so-called 'red shirt threat', many high schoolathletic associations require their member schools not to permit personsage 19 or older to participate in interscholastic athletics. Supp. In reversing the District Court, the Second Circuitsaid that "termination by an employee subject to the Act which is justifiedas being due to absenteeism shown to be caused by substance abuse istermination 'solely by reason of' that substance abuse" and added that "aplaintiff is entitled to challenged as pretextual an assertion that theemployer is not relying on the employee's handicap" (in deciding todischarge him).[7] The Court in Maddox was on much more solid ground in relying on sec.12114(4), supra, of ADA. 1994).Pottgen v. 12111(2) to include any "employer, employment agency, labororganization, or joint labor-management committee." In the eligibility area, sec. alcoholism of such employee." In a non-sports case, Ham v. 1997). D.C. 1994), amongothers. Their only remedy is injunctive relief,which is difficult to obtain because of the requirement of the federalcourts that they prove that they have been irreparably harmed by thealleged violations and also that there exists a reasonable probability ofeventual success in the litigation on the merits. Mills, 9 4 F. Onehas only to attempt to read the lengthy (93 pages in Independent LivingResources) opinions in those cases to agree that the Wall Street Journalwas correct when it called ADA the "Lawyers' Employment Act."[12] The basic claims made by the plaintiffs in these and other cases,typically a disabled person in a wheelchair and nonprofit advocacyorganizations for the disabled is that the arenas, as designed andconstructed violated ADA in that they failed to meet the ADAAG's and theDepartment of Justice's Standards. Under sec. Wright v. 12112(a) of Title I of ADA, "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." A threshold question is whether the individual is an employee or anindependent contractor, which is governed by the same rules used for makingthat determination in tax and other areas of the law. 698 (D.Or. Florida High School Activities Association, 899 f. . 12111(4)(B)(1), employees of the United States government arenot covered by ADA. However, in the principal areas indispute between the disabled and those with authority over them in sports,eligibility, employment and accessibility, less than sure guidance can begleaned from the burgeoning case law as to the rights, duties and equitiesof the parties involved. However, ADA excludes some conditions which mightotherwise qualify as a disability on medical grounds, such as compulsivegambling, various sexual disorders and illegal drug use, unless theindividual has completed a drug rehabilitation program and met otherrequirements to indicate that he has ceased his drug addiction (sec.12114). Michigan High Sch. The Court distinguished the PGA from other private clubs, which havebeen held to be exempt from Title II of the Civil Rights Act of 1964, 42U.S.C. Metro-North Commuter Railroad Co., 951 F.2d 511 (2nd Cir.1991).United States v. 71 U. Blanck, The Economics of the Employment Provisions of theAmericans with Disabilities Act: Part I-Workplace Accommodations, 46DePaul L. Magistrate Ashmankis found that the design of the RoseGarden violated the horizontal and vertical dispersal and otherrequirements under ADA. L. v. 584 (N.D.Ohio1996). App-Austin 1993, no writ). Supp. 122 5 of ADA, the prevailing party in any litigationunder it is entitled to recover reasonable attorneys' fees and costs. Some non-sports medicare/medicaid cases have held that plaintiffshave private causes of action under 42 U.S.C. Ohio 1993).Paralyzed Veterans of America v. Public entities are covered by Title II of ADA, which provides insec. 1175 (S.D.Ohio 1993). DISCRIMINATION AGAINST DISABLED PEOPLE BY ATHLETIC VENUES, HIGH SCHOOL ATHLETIC CONFERENCES AND THE NCAA This research paper examines the extent of legal protection presentlyafforded to disabled persons involved in high school and college athletics.The primary focus is upon amateur athletics but cases in the field ofprofessional sports are mentioned where they provide relevant precedentsfor amateur athletics. Cir. Archdiocese of Cincinnati, (S.D. . Arena to use a design by which wheelchair spaces wereghettoized in the two end zones with only a few in the front rows andalmost none in the center court sections" Paralyzed Veterans of America v.Ellerbe Becket Architects & Engineers, P.C., 95 F. Tucker, The Americans with Disabilities Act: An Overview(1992).----------------------- [1] 42 U.S.C. The employee had suffered afractured tibia and collarbone in an auto accident. The Court relied on Taub v. However, the Court foundthat the age requirement was necessary to safeguard against injury and toprevent unfair competition and a waiver of it would "fundamentally alterthe sports program." Using much the same reasoning, the Court found at 1 36that the age requirement was "an essential eligibility requirement" undersec. Under sec. PGA Tour, Inc., 1998 WL 54999 (D.Or. [13] Tom Huggler, Outdoors unlimited, 191 Outdoor Life 73 (March 1993). However, it also found at227 that the courses completed by Ganden did not "appear remotely similarto the subject areas of the 'core courses'" and at 228 that "it is . . Bethlehem Area School Dist., 55 F. . In Paralyzed Veterans of America v. Supp. However, he also found that some of requirementsalleged by plaintiffs were not encompassed under the act, such as thatcompanion chairs next to wheelchairs had to be bolted to the floor, whichthe Magistrate said at 724 was not "defined in the regulations" norsupported by any "rational justification." (He said that folding chairswould suffice). Supp, 342 (D.Ariz.1992).Bowers v. . 198 ), a case involving a student wrestler with only one kidney,whose parents were willing to sign a waiver and release the school fromliability, it was held that the school did not have the right to contravenethe wishes of the student and his parents and that its only duty was toadvise them of the risks involved. For example, a District Court in Arizona granted a temporaryrestraining order against the Little League preventing it from enforcing arule that wheelchair-bound coaches could not occupy coaching positionsalong the foul lines. inthe full and equal enjoyment of the . The important thing to remember is that the extent of accessibility requirements primarily is determined based on whether a facility is new or existing. 5 4 was intended to cover anyone "who isable to meet all of a program's requirements in spite of his handicap." Itoffered further clarification in a case involving the provision of healthbenefits, Alexander v. the more stringent standards apply to new construction and certain major renovations."[11] Under sec. Forexample, in Gruber v. The Court said at1575 that "ADA does not require an employer to create a new position toaccommodate a disabled employee." Under ADA (and RA), a disability can include a mental orpsychological disorder. Oregon Arena Corporation, 982 F. Milan Area Schs., 853 F. 5 4. 1175 (S.D. 273 (1987).Southwestern Community College v. 663(D.Conn. TABLE OF AUTHORITIES STATUTES AND REGULATIONSADA Title I EEOC Regulations.ADA Title III DOJ Regulations, 28 CFR Part 36, App. Heis no safety risk to himself to him or others. 1983 (underwhich plaintiffs can obtain relief for violation of their federalguaranteed statutory rights) by a 19 year old high school student with adisability who had been barred by his school and MHSAA) from participatingin interscholastic baseball. 1997) and in Washington, D.C., the subject of ParalyzedVeterans of America v. Supp. National Collegiate Athletic Association, 1996 WL 68 N.D.Ill.Gruber v. OTHER SOURCESJoe Agron, New accessibility guidelines for schools. 1993). [9] Joe Agron, New accessibility guidelines for schools. (1)(B) to include "anydepartment, agency, special purpose district, or other instrumentality of aState or States or local government." The age, core curriculum and otherbroad inter-conference or inter-collegiate rules of athletic eligibilityare generally administered by private entities such as NCAA. 12183(a), these more stringent requirements apply tofacilities first ready for occupancy later than 3 months after July 26,199 ," which must be "readily accessible to and usable by individuals withdisabilities, except where an entity can demonstrate that it isstructurally impracticable to meet the requirements of such subsection inaccordance with standards set forth or incorporated by reference inregulations issued under this subchapter." The task of preparing design andconstruction standards has been assigned by the Department of Justice tothe Architectural and Transportation Barriers Compliance Board ("AccessBoard") which issued ADA Accessibility Guidelines ("ADAAG") which appearedin the form of Standards issued by the Department of Justice in 28 CFR Part36, App. The Court, however, rejected another line of cases under RA, such asTeahan v. PGA Tour, Inc., 1998 WL 54999 (D.Or.1998). South Plainfield Board of Education, 49 F. It found at 668 that he had beendiscriminated against solely on the basis of his disability because "thesole reason that Dennin is in school at nineteen is due to his disability."It said at 68 that a waiver of the rule in his case "could not undermineany of the purposes of the CIAC rule" because he "has no competitiveadvantage. See Hoot v. Supp. In Bowers v. 1977), thecourt upheld a decision by a school board to restrict a student who wasblind in one eye from engaging in contact sports on the basis of medicaladvice that such activities posed a high risk of injury to his good eye.However, in Poole v. His employer offeredevidence that its clients would not accept plaintiff because of his casualattire. Supp. Supp.579 (M.D.Fla. 12187 because of its "heavyreliance . 397 (1979).Taub v. Those courts finding that the waiver is reasonable do so because they compared the purposes of the rule to the facts of the particular case."[5] Other High School Eligibility Rules. 1992).Teahan v. 418 (D.Pa. 455 (D.Nev. 393 (D.D.C. Supp, 1175 (S.D.Fla. . and at 1 33, "the agedrestrictions disqualifies an overage nondisabled student just as itqualifies the average nondisabled student just as it disqualifies theoverage disabled plaintiff." Under sec. or operatesa place of public accommodation" nor by ADA's prohibition against "failureto design and construct facilities . Supp. Agron says that "although it has been more than five years since its enactment, there is still much confusion about many aspects of the ADA. In Doe v. . 1995).Kampmeier v. [4] N.Y. Supp. 579 (M.D.Fla 1995) (later reversed on othergrounds) and a state court decision in University Scholastic League v.Buchanan, 848 S.W.2d 298 (Tex. While that wasnot necessarily dispositive, he concluded that in a number of respects theDOJ standards were unduly retroactive and therefore burdensome because theywere not timely. 12131(1), apublic entity is defined to include not only any state or localgovernmental entity, but also under subsec. The Court held that the denial of the waiver violated sec. Early RA Act Decisions on Eligibility Sec. Ohio, 199 ), the District Court upheld ahigh school's refusal to let an exceptional athlete with a heart conditionplay football. 1175 (S.D.Fla. In a number of early cases arisingunder RA, some federal courts held that public high schools, all of which,directly or indirectly, receive federal assistance must make a reasonableaccommodation to the interests and wishes of disabled student athletes. Choate 469 U.S. Therefore, a school eligibility rule which is neutral on its face andapplies to all students can nonetheless constitute a violation of RA andTitle II of ADA if it is applied in a discriminatory manner. University of Tennessee, 9 7 F. 12182(a) and 12183(a). [11] Id. Huizenga Holdings, Inc., 963 F. Education Law, sec. The Courts in both cases showed considerable deference to the DOJstandards. Nyquist, 553 F.2d 296 (2nd Cir. Oregon Arena Corporation, 982 F.Supp. 342 (D.Ariz. Pottgen involved a claim only under ADA and 42 U.S.C. Core Curriculum and Other Academic Requirements at the College Level The NCAA administers through its Initial Eligibility Clearinghousefor its college and university members a program which is designed toensure that all students who participate in athletics meet certain minimumacademic standards. Unlike the Courtin Bowers, the 7th Circuit accepted Ganden's arguments that there was acausal link existed between his disability and NCAA's refusal to waive itseligibility requirements and agreed that he was entitled to have NCAAreview individually his application for a waiver. Voinovich, 84 F. Walker won his motion for summaryjudgment, which invalidated the Tour's 'no-cart rule.' Age Eligibility Requirements. Davis 442 U.S. Arline 48 U.S. 1262(D.Minn. 1994). Rev.987-1 32 (1992).Review and Outlook, Wall Street Journal, Sept. The District Court found that the firing was theresult of his alcoholism, so the issue was whether the DUI convictionproved that he was not qualified to fill his position. In Southwestern Community College v. Supp. The D.C. 1994).Martin v. It found at 459 thatpresented an issue of fact precluding summary judgment, in that "there wasno evidence that the plaintiff's alcoholism had caused him to be tardy orabsent, that he had been intoxicated on the job, or that alcoholism hadinterfered with his work performance." That case was decided under RA sec.7 6(8)(C) which excluded from the definition of a disabled person one "whois an alcoholic whose current use of alcohol prevents such individual fromperforming the duties of the job in question . Swimming is not a contactsport." It further ruled that a waiver would not have imposed an undueburden on CIAC and held at 67 that Dennin had been denied procedural dueprocess which required a 'meaningful, individualized inquiry into Dennin'srequest for a waiver. He alleged that he had been terminated on account ofhis alcoholism in violation of RA and ADA. 12182(a) of Title III which proscribes "discrimination . 12 (W.D.N.Y. 119 (D.Tex 1978), vacated 622 F.2d 118 (5th Cir. It also would provide aneffective remedy where none if an individual's attempt to obtain aninjunction has become moot through the passage of time. 1568 (D.Kans. 418 (D.Pa.1982), an outstanding high school athlete who had been barred from playingfootball in his senior year after it was discovered he had only one kidney,was granted an injunction against the school under sec. Delta Airlines, Inc., 941 F.2d 437 (6th Cir. Champion, Sports Law in a Nutshell (1993).Ruth Colker, The Law of Disability Discrimination Cases and Materials(1995).Tom Huggler, Outdoors unlimited, 191 Outdoor Life 73 (March 1993).Julia V. In general,despite the confusion and lack of uniformity in court decisions, mostcourts have done an effective job in enforcing ADA's basic mandates,without permitting interpretations to come into force which would beimpractical or create unreasonable burdens for those responsible foramateur athletic programs at high school or college levels. . Americans withDisabilities Act (Editorial), 7 American School & University 6 (Oct.1997).Peter D. 1996). 5 4. Ellerbe Becket Architects &Engineers, P.C., supra, 945 F. Supp., 1262 (D.Minn.1997).University Scholastic League v. Michigan High School Athletic Association,Inc., 119 F.3d 453 (6th Cir. It followed same reasoning as the 6th CircuitCourt of Appeals in Sandison and added that the implementation of a waivermechanism would impose an unreasonable administrative burden on theauthorities involved. Little League Baseball, Inc., 794 F. Supp.698 (D.Or. The Court said at 182 inthe Minnesota case, supra, that exempting the architects from liabilitywould leave a gap in coverage in ADA under which "it is conceivable that noentity would be liable for construction of a new commercial facility whichviolates ADA." This may be true but arguably the fairer solution would befor Congress to amend ADA to make architects liable, rather than for thefederal courts to impose retroactively a new form of strict liability onarchitects, which in most circumstances, because of their limited size andinsurance coverage capacity, are rarely held strictly liable for theirerrors and omissions, but only if they are proven to have been negligent. Supp. 2 -a(e), and therefore exempt from ADA, such as the Boy Scouts ofAmerica, which, despite its large membership, serves primarily private orcharitable purposes. [1 ] Quoted in Colker, supra, 332. Champion suggests that a college football player on scholarship mightbe regarded as an employee who would have a cause of action under Title Iif he were dropped from the team or deprived of his athletic scholarshipbecause of his disability, but there are no cases backing up thisassertion. .unreasonable to require the NCAA to lower" its standard that studentathletes achieve a minimum passing grade on their tests which measurecompetency in the core course areas. A 23.Bonnie P. Milan Area Schs., 853 F.Supp. What if the school physicianadvises against participation and the student athlete's physician counselsto the contrary? The Court said that the same reasoningapplied to the claim of a Title III violation" "Title III does not requirethe NCAA to simply abandon its eligibility requirements, but only to makereasonable modifications to them." Discrimination in Employment Under sec. Rev. 191 (Winter 1997). 12114(4) provides in part that an employer "may hold an employee who . Rev.1 19 (1992). 1568 (D.Kans. 287 (1985) whenit said at 299: "the question of who is 'otherwise qualified' and what actions constitute 'discrimination' [under sec. 243, (E.D.Mich., S.D. Missouri State High School Activities Association, 1 3 F.3d72 (8th Cir. Summing up this line of cases, Julia Kaperski, a graduate lawstudent, says that: "courts disagree over whether an age waiver is a reasonable modification to a high school athletic program. CASESAlexander v. These standards include completing 13 core coursesbefore reaching college and passing standard tests designed to showproficiency in such courses. Sec. The facts presented in opposition to thedefendant's motion for summary judgment and in support of plaintiff'smotion for a preliminary injunction showed that the school had deniedplaintiff status as a disabled person and the opportunity to take remedialcourses but the Court found at 247 that the school "knew or should haveknown of [Hoot's] disability" which the Court said raised a material issueof fact as to whether the application by MHSAA of the semester houreligibility requirement and its refusal to grant him a waiver violated hisconstitutional rights and ADA. 397, 4 6 (1979),the Supreme Court clarified the meaning of the seemingly inherentcontradiction in the use of the terms "no otherwise qualified person with adisability" by stating that sec. Supp. Delta Airlines, Inc., 941F.2d 437, 443 (6th Cir. that are readily accessible to andusable by individuals with disabilities" under secs., 3 2(a), 3 3(a), 42U.S.C. Underthese circumstances, it is not at surprising that the interpretationsreached by the various District Courts and Courts of Appeal are far fromuniform, adding further confusion and complicated the dilemmas faced by thebuilders who have schedules to meet. 483(E.D.Mich. He is without doubt, always the slowest swimmer in the pool. The DOJ Standards have spawned extensive and complex litigation,primarily involving new professional sports arenas in Portland, Oregon, thesubject of Independent Living Resources v. The Court found that Ganden wasunlikely to be able to prevail on the merits of his claim. Held: the non-transfer rule was aviolation of sec. . Analysts International Corp. 16 3.2(g)(1) of the implementing regulationsunder Title I issued by the Equal Employment Opportunity Commission,"disability means, with respect to an individual --(1) a physical or mentalimpairment that substantially limits one or more of the major lifeactivities of such individuals." In Jackson v. South Plainfield Board of Education, 49 F. In Dennin v. Supp. Marshall, 459 F. . MichiganHigh School Athletic Association, 64 F.3d 1 26 (6th Cir. 455 (D.Nev.1992), the plaintiff, who alleged he had been discriminated against underRA because of his alcoholism, was removed from his position as Chief of theBureau of Alcohol after he was arrested and pled guilty to driving underthe influence of alcohol. A.Americans with Disabilities Act of 199 , 42 U.S.C. (Americanswith Disabilities Act) (Editorial), 7 American School and University 6(October 1997). Supp. Athletic Ass'n, 863 F. Even after [receiving] medicalassurance that athletic participation would not harm the individual, schoolboards would still restrict participation."[2] School officials were saidto be acting in a parens patriae capacity to safeguard the welfare of thestudent. In Hoot, a student withlearning disability brought suit against a school system and MHSAA allegingthat they had denied him equal protection under the laws and discriminatedagainst him in violation of ADA on the basis of his learning disability bydenying him the opportunity to play football. Missouri State High School Activities Association, 4 F.3d926 (8th Cir. The enactment of ADAsubjected high school athletic conferences, state and national collegeathletic associations, including the National Collegiate AthleticAssociation (NCAA) and many other private entities within the broad ambitof its anti-discrimination provisions. Ohio High School Athletic Association, 939 F. Martin v.Voinovich, 84 F. A number ofcases have been decided in federal courts in which the validity of such agerestrictions on student athletes who have learning disabilities have beenalleged to violate RA and ADA. or whose employment . Supp. . on public participation for the purpose of generatingrevenue for the tour." Casey Martin v. These additions to ADA were apparently the result of last minutecompromises agreed to by the bill's sponsors as concessions to conservativelegislators.[6] Although alcoholism is covered within the definition of disabled,sec. Anderson Consulting andYellow Technology Services, 956 F. 393, 398, 4 4(D.D.C. shall, solely by reason of her or his disability, beexcluded from the participation in, be denied the benefits of, or besubjected to discrimination under any program or activity receiving Federalfinancial assistance." 29 U.S.C. Cir. Buchanan, 848 S.W.2d 298 (Tex. Michigan High School Athletic Association, Inc., 119 F.3d(6th Cir. 1993). Tucker, The Americans with Disabilities Act: An Overview(1992). 12182(a) provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." These terms have been given very broad meaning by thecourts. HuizengaHoldings, Inc., 963 F. Supp. More Complex Eligibility Cases under RA and ADA Differences in Coverage under RA and ADA. He allegedhe had been fired in violation of Title I of ADA. v. 1978).Ganden v. Because of the vagueness of some of public accommodations provisionsand the slowness of the internal government process through which the ADAAGstandards and DOJ Standards are finalized, arena operators and architectsare faced with costly design and construction tradeoff dilemmas. . [7] Quoted in Ruth Colker, The Law of Disability Discrimination Casesand Materials 4 3-4 5 (1995) [8] Peter D. 1995). 1992), an employeewas terminated for failing to wear business clothes as required by theemployer, a contract computer programming firm. [6] Bonnie P. Supp. v. to stand so that those who watch the event from a wheelchair may obtain a benefit comparable to that received by most ambulatory spectators."However, he pointed out that Standard 4.33.3 containing this requirementwas not published until after construction was commenced. Welsh v. [3] Matthew J. 1997), stating at 723 that "a judgment that isreversed on appeal is a nullity," and therefore, Pottgen was not theprevailing party and could not recover attorneys' fees). In accord, Johnson v. Its basic holding was thatthe students were not discriminated against under sec. Ellerbe Becket, Inc., 976 F. 1997).Poole v. Kaperski, Disabled High School Athletes and the Right toParticipate: Are Age Waivers Reasonable under the Rehabilitation Act andthe Americans with Disabilities Act? App-Austin 1993, no writ).Welsh v. Missouri State High School Activities Association,1 3 F.3d 72 (8th Cir. Supp. ConnecticutInterscholastic Athletic Conf., Inc., 94 F.2d 96 (2nd. Supp. A23. 1997), a Temple University student and a talentedfootball player, who failed to meet these standards, challenged theirvalidity under ADA. Fish and Wildlife Service toorganized special deer hunts and fishing contests for the disabled.McCarville says that "most of these activities are segregated, and that'snot what the ADA is all about."[14] A large number of states, 34, allowhunters with disabilities to use their stationary vehicles as blinds, andto use crossbows if they are unable to pull longbows (legal in 37 states). Supp. The courtsthen, which are ill-prepared or equipped to interpret architectural andconstruction specifications, are left with a nearly impossible task. This case illustrates that at least for alcoholicemployees, it is more difficult to bring an employment-relateddiscrimination claim under ADA than it is under RA. Outdoor Sports ADA applies to discrimination in any field of activity against thedisabled, including outdoor amateur sports. is an alcoholic to the same qualification standards for employment that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the . secs. 1997), the District Court arrived at a totally oppositeconclusion, stating at 1266 that it found "the government's interpretationof the statute to be more persuasive." In accord, Johanson v. 49 Baylor L. Rev. 893 (Summer 1997). Supp. Nyquist, 553 F.2d 296 (2nd Cir. Supp. Accordingly, the defendants' motion forsummary judgment was denied. Mills, 9 4 F. 1981) and Jacobson v. 1992) inwhich a postal worker was fired after he was discovered to be in possessionof heroin. 5 4 of RA provides that "no otherwise qualified individual witha disability . Under NCAA's by laws, certain remedial coursesdesigned for students with learning disabilities may fulfill the core-curriculum requirements, if the Clearinghouse so certifies based oninformation supplied by the student's high school and provided also thatthe learning disabled student maintains certain grade levels and achievescertain test scores. It said at 1 that "the plain languageof the statute makes clear that clear architects are not covered." However, in United States v. 5 4 was involved in that case becauseall of the medical advice was unanimous. 584(N.D.Ohio 1996).Sandison v. . 121 1 et seq. The Court found that although under Title III, such arestriction would be valid "where such individual poses a direct threat toothers" but it also found that the coach in question had not done so. Frank, 957 F.2d 8 (1st Cir. Boy Scouts of America, 993 F.2d 1267 (7thCir. To avoid irritation, hewore loose and casual clothes to work such as Hawaiian shirts. Arline 48 U.S. The leading cases deciding that they do not are Sandison v. At 1 32, the Court said: "The plaintiffs' respectivelearning disability does not prevent the two students from the meeting theage requirement; the passage of time does" . .. For example, in Independent LivingResources, the Portland Rose Garden, the home of the Trail Blazers, an NBAbasketball team, and other professional sports team, was supposed to havebeen designed and constructed on the formula of 'one percent plus one,'"meaning the number of wheelchair spaces must be equal to one per cent ofthe total seating capacity" (7 7). Choate 469 U.S. 663 (D.Conn. 1994).Sandison v. 12112 ofTitle I of ADA, which prohibits discrimination against the disabled over abroad range of employment practices by any covered entity, which is definedin sec. TheDistrict Court awarded Pottgen these items since he had been able tocomplete the baseball season under its ruling. facilities, privileges,advantages or accommodations of any place of public accommodation." NCAAhas been held to operate such public accommodations in at least oneeligibility case, Ganden v. Frank, 957 F.2d 8 (1st Cir. Plaintiff, an assistant football coach at the University ofTennessee had his employment terminated after it became known that he hadlied about his history of alcoholism on his employment application and hisprevious arrests for substance abuse and drunk driving. Another area where there is a split in authority is whetherarchitectural firms are liable for violations of ADA on structures theydesign. Champion, Sports Law in a Nutshell 228 (1993). 1983.Rehabilitation Act of 1973, 29 U.S.C. University of Tennessee, 9 7 F. 5 4. 1997).Casey Martin v. . Davis 442 U.S. . 5 4 ofRA and Titles II and III of ADA. Supp. Supp. Supp. Supp. In the employment area, discussed below, RA contains no specificprohibition against discrimination against the disabled. . What theywant is equal access to the outdoors."[13] He says that Roger McCarville,an amputee who helped start Outdoors Forever, a disabled advocacy group inMichigan is opposed to efforts by the U.S. 1994) and Dennin v. 5 4 solely by reasonof their disability. MHSAA had refused to granthim a waiver of its requirement that student athletes complete a certainnumber of semester hours. 1994).Independent Living Resources v. 1996), amongothers. A therapistadvised that his playing football would be necessary for his mental health.He was banned from joining the team. Interscholastic Athletic Conf., Inc., 913 F. 11, 1989, p. 1993). . 1991).In Teahan, a maintenance man was discharged after his alcoholism led toexcessive absenteeism. 12131(2) of ADA and that waiver of it does not constitute "areasonable modification" under the same subsection. 794 (as amended 1992),respectively. . 5 4 applies only to programs oractivities which receive federal financial assistance. The Court denied his claim, finding that "no reasonable jury couldfind that plaintiff is significantly restricted in major life activitiesother than work". State of Nevada, 788 F. However, Title III applies to otheractivities than those affected by the physical layout of publicaccommodations. National Collegiate Athletic Association, 1996WL 68 N.D.Ill.). [12] Review and Outlook, Wall Street Journal, Sept. 1996).Pottgen v. National Collegiate Athletic Association, 974 F. . 32 8 (McKinney Supp. No violation of sec. For example, Magistrate Ashmankis found at 733 that "DOJ reasonably could have concluded that lines of sight over standing spectators are necessary during events at which spectators are expected . . Ellerbe Becket, Inc., 976 F. Conclusion RA and especially ADA have wreaked major changes in the attitudes ofAmericans toward the estimated 43 million disabled persons in the country.ADA has also opened up major new areas of statutory and regulatoryinterpretation which are clogging federal court dockets. The Court also rejected PGA's claim that the greens andfairways, which are in plain sight of large crowds of spectators on tourdays, are not public accommodations. A similar request by a college swimmer for a preliminary injunctionunder ADA was denied in Ganden, supra. 1995) and Pottgenv. Mitlen cautions that the school in that situation may bein violation of sec. The 8thCircuit court reversed, finding that the age requirement did not violateRA, ADA or a Department of Education regulation. 948 (D.N.J.198 ).Reaves v. 243, 251 (E.D.Mich., S.D. Arena, LP, 117 F.3d 579 (D.C. 1984).Johanson v. In Sandison, the lower court granted a preliminary injunction againstenforcement of a decision by schools and the Michigan High SchoolAssociation (MHSAA) to refuse two 19 year-old learning-disabled high schoolseniors permission to participate in track and cross country meets. . Rev. 877-914 (Summer 1997).Walter T. 1144 (D.Tenn. 483, 488 (E.D.Mich. 12132 that "no qualified individual with a disability shall, by reasonsuch disability, be excluded from participation in or be denied thebenefits of the services, programs, or activities of a public entity, or besubjected to discrimination by any such entity. Supp. National Collegiate Athletic Association,974 F. Supp. With some exceptions, ADA adopted the same definition of disabled asis used in RA. 11, 1989 at p. Rev. 175-196 (Winter1997).Matthew J. The legal protection afforded disabled persons generally and insports has been considerably expanded during the past two decades,primarily as a result of the enactment of two federal statutes, theRehabilitation Act of 1973 (RA) and the Americans with Disabilities Act of1993 (ADA).[1] Through the interpretations made by the courts, primarilyfederal courts, as to the scope and meaning of these statutes, regulationsissued thereunder, and companion state laws, the discretion of athleticofficials at all levels in dealing with disabled persons has been greatlyaffected and substantially narrowed. Law professor Peter Blanck says that "critics of Title I havecharacterized an employer's obligation to provide access to qualifiedpersons as a form of market distortion leading to economicinefficiencies."[8] However, Agron says that "ADA compliance can beaccomplished without breaking the bank if the spirit of the law isunderstood and followed from the outset."[9] Accessibility Requirements Title III of ADA contains a number of sections outlining therequirement that entities owning or leasing in public accommodations mustavoid discrimination against disabled persons and make reasonable effortsto make their facilities accessible to them. 121 1 et seq.Civil Rights Act of 1964.42 U.S.C. Supp. 5 4. In a recent case involving professional golfer Casey Martin, whosuffers from a limp due to a rare circulatory disorder in his right leg,the PGA Tour, Inc., an adjunct of the Professional Golf Association, washeld to be a commercial association, not a private club, and therefore notexempt from Title III of ADA under sec. Boy Scouts of America, 993 F.2d 1267 (7th Cir. "nor substantially limited in his ability to work."And even if he were disabled, reasonable accommodation to his physicalproblems did not mean transferring him to a new position. [2] Walter T. After he wasarrested again on a DUI charge, which was reported in the press, theUniversity discharged. [14] Id.----------------------- 31 Columbia University,52 F. A ("DOJ Standards"). 1998).Dennin v. Metro-North Commuter Railroad Co., 951 F.2d 511 (2nd Cir. Ohio High School Athletic Association, 939 F. 119 (D.Tex. The Court said at 95 that the arena operator may notunder ADA a "relegate most wheelchair users to the dark corners of thearena." Nor was it consistent with the intent of Congress for the operatorsof the D.C. Huggler says that "thousands ofhunters and anglers with disabilities don't want anyone's pity. 1996), a District Court in Connecticut grantedthe motion for an injunction under RA and ADA of a 19-year old student withDown syndrome who had been refused permission to continue as a member ofhis high school swim team by the Connecticut Interscholastic AthleticLeague. sec. [5] Julia V. Supp. . 1996).Doe v. Bethlehem Area School Dist., 55 F. Similarly, in McPherson v. Changing Legal Approaches to the Disabled in Athletics Traditionally, disabled student athletes, like other disabled personsin America, had few, if any, legal rights, because society regarded them asa problem, decisions concerning whom should be left to the authoritiesinvolved. . Anderson Consulting andYellow Technology Services, 956 F. The Court denied Bowers' application for a preliminaryinjunction because it found at that: (1) "Bowers failed to satisfy theinitial eligibility requirement because he failed to meet the NCAA's corecourse requirement, not because of his disability; (2) the maintenance ofsuch standards is essential and necessary to accomplish the purposes of theprogram and their abandonment "would fundamentally alter the nature of theprivilege of participation in the NCAA's intercollegiate athletic program"(at 1993); and (3) their application in this case did not discriminateagainst Bowers because he was asking not for a modification oraccommodation for his disability, but rather sought "a virtual eliminationof the 'core course' requirement." The Court said at 192: "While ADArequires 'evenhanded treatment' of individuals with disabilities, it doesnot require 'affirmative action." In the opinion of the Court at 467, NCAAhad made "more than adequate reasonable accommodation for students withlearning disabilities" by permitting them to apply for waivers and bygiving them credit for properly constructed remedial courses. 1977).Larkin v. State of Nevada, 788 F.Supp. 1992). MichiganHigh Sch. The Court in Taub upheld the termination on the grounds that thepostal worker had failed to meet the requirements of his job by becominginvolved in criminal conduct and was, therefore, not discharged because ofhis disability. L. In accord, Reaves v. Mitlen, Amateur Athletes with Handicaps or PhysicalAbnormalities: Who Makes the Participation Decision? Moreover, a number of federal courts have found that under Title IIof ADA high school athletics associations are instrumentalities of thestates in which they are organized. Ohio, 199 ) (Unreported).McPherson v. 5 4, a disabled person is "otherwise qualified" toparticipate in a program if, with "reasonable accommodation," he or she canmeet the "necessary" requirements of the program. In denying Maddox' claim under RA, the Court rather unconvincinglyattempted to distinguish his case from theHam case, arguing that Maddox had been fired not because of his alcoholismbut because of his criminal conviction and because, as a football coach, hehad to serve as a role model for children and in the community and theUniversity was justified in firing him to protect its public reputation. 71 U. Blanck, The Economics of the Employment Provisions of theAmericans with Disabilities Act: Part I-Workplace Accommodations, 46 DePaulL. 1997).Maddox v. See Sandison v. Neb. 1992).Hoot v. 789 (D.Pa. 32 8 (McKinney Supp. 273 (1987), theSupreme Court held that preventing harm to other persons is a valid groundfor refusing to permit handicapped athletes to play a particular sport. 287 (1985).Anderson v. 1 (D.D.C. The federal courts have consistently been reluctant to invalidatesuch academic requirements as violations of ADA in cases involving mentallyretarded students. v. sec. 1992).Jacobson v. Itfound that "a public accommodation must make an individualized assessment"in such cases, which the Little League had failed to do.[1 ] Anderson v.Little League Baseball, Inc., 794 F. Most of the reported casesdeal with whether new sports arenas have been designed and constructed insuch a manner as to permit ready accessibility for disabled persons inwheelchairs, the deaf, the blind, etc. 1995).Rhodes v. 1982).Ham v. 1993). Athletic Ass'n, 863 F. 1983 if they can prove thattheir federally guaranteed statutory rights have been violated. Arena, LP, 117 F.3d 579(D.C.Cir. . and 29 U.S.C. Florida High School ActivitiesAssociation, 899 F. 794(a). Circuit Court came to an opposite conclusion in theParalyzed Veterans cases, supra. Missouri State High School Activities Association, 4 F.3d 926 (8th Cir.1994). Connecticut Interscholastic Athletic Conference, Inc.,913 F. He said at 743 that "if the Access Board wishes to reviseits interpretation [of an ADAAG] to include a requirement for lines ofsight over standing spectators, it will have to do so through notice andrule making. would constitute a direct threat to property or the safety of others." The leading case involving the application of RA and ADA to alcoholicemployees in sports is Maddox v. . 49 Baylor L. 948(D.N.J. sec. Marshall, 459 F. In accord,Rhodes v. Sec. Private Rights of Action No private right of action is provided for disabled plaintiffsdiscriminated against under ADA. Michigan High School Athletic Association, 64 F.3d 1 26(6th Cir. However, the 8th Circuitreversed in Pottgen v. Sec. In his dissent, Chief Judge Richard Arnold found thatTitle II of ADA had been violated because an individualized inquiry intothe necessity of the age limit in Pottgen's case and said at 923 that "theage requirement could be modified for this individual player without doingviolence to the admittedly salutary purposes underlying the age rule." (Under sec. 1997).Johnson v. 1995).School Board of Nassau County, Fla. 1996).Dennin v. 1997).Jackson v. Neb. 198 ), an emotionallydisturbed student moved in with his grandparents in another district forreasons having nothing to do with his athletic aspirations. Ellerbe Becket Architects & Engineers,P.C., 95 F. 459(D.N.J. Thus, in Kampmeier v. D.C. Finally, even though NCAA and other intercollegiate athleticassociations might not regarded as a public entity for purposes of TitleII, they have been held in some eligibility cases to be subject to ADAunder sec. 5 4] would seem to be two sides of a single coin; the ultimate question is the extent a grantor [of health services] is required to make reasonable modifications in its programs for the needs of the handicapped." Grube established that a school was not required under RA to modifyits standards, change its rules or reduce the quality of team play, only tomake a reasonable accommodation to the needs of the disabled athlete. Many high schools used to have rules denyingeligibility for students to participate in athletics if they did not residein the school district in which their parents reside. Supp. According to Champion, "handicapped athletes were regularlyrestricted under a paternalistic attitude. Supp. 12 (W.D.N.Y. In fact, the necessary number ofwheelchair spaces were provided, but the Court found that "many of thesespaces existed only on paper" as alleged by plaintiffs (94) and were notdispersed properly. 1144(D.Tenn. Connecticut Interscholastic Athletic Conf., Inc., 94 F.3d 96(2nd Cir. 1997) the Sixth Circuit Court of Appealsupheld a eight semester rule imposed by MHSAA under which a student isdenied participation in high school athletics programs if he has completedeight semesters and refused to grant an injunction under RA and ADArequested by student with Attention Deficit Hyperactivity Disorder, who hadbeen held back a year due to his disability and had been denied permissionto play interscholastic basketball. An extension of a privateright of action to ADA cases would help make up for a lack of vigorousadministrative enforcement of the statute by the federal government, but itwould place additional burdens on sports defendants already subjected tostrict liability and draconian injunctions for their violations of RA andADA. 1996), the District Courtheld that architects are not covered by ADA's prohibition againstdisability discrimination "by any person who owns, leases . The purpose of therule was to keep out 'ringers' moved from one district to another toimprove a school's athletic standing. . 1997).Paralyzed Veterans of America v. In most of thecases brought under RA, federal courts have held that such entitiesindirectly received federal financial assistance.
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