A Diagnosis of Attention Deficit Disorder Doesn't Supersede Eligibility Rules
John T. Wolohan
High school athletic associations maintain eligibility rules in order to help ensure a level playing field, protect the health and safety of athletes, and prevent red-shirting of high school athletes. Even with these rules in place, however, deciding when to grant eligibility requests remains one of the most confusing issues facing high school athletic administrators, since eligibility rules must be balanced against federal and state laws prohibiting discrimination.
A recent example of administrative confusion occurred with the filing of Tesmer v. Colorado High School Activities Association [2006 Colo. App. LEXIS 534]. Scott Orth, a fifth-year high school senior, had been diagnosed with attention deficit disorder (ADD) when he was eight years old. Orth was put on medication and placed in a speech class in fourth grade. Later, however, he stopped taking medication and did not take any remedial or special education classes. In 2001, when Orth began high school, it was determined that his ADD did not require that he take special education classes or that he be given substantial academic accommodations — although he was provided copies of class notes and granted additional time for taking tests and completing homework assignments.
During his freshman year, Orth suffered from a sinus infection that caused him to miss more than six weeks of school. As a result, he was unable to obtain a sufficient number of passing grades and was required to repeat the ninth grade.
The fall term of his senior year represented Orth's ninth consecutive semester of high school, and he was thus barred from playing football. Orth had run afoul of the Colorado High School Activities Association's eight-semester rule, which limits a student's eligibility for high school athletics to eight consecutive semesters after a student first begins high school.
In an attempt to restore his eligibility, Orth filed an application with the CHSAA for a hardship waiver. The CHSAA Executive Committee, however, denied Orth's request and concluded that his ADD did not prevent him from attending school or otherwise earning credits. Therefore, the committee ruled, Orth would not be allowed to use his disability to gain an extra year of football.
After Orth's request for a waiver was denied by the CHSAA, he and his mother, Beth Tesmer, filed for a preliminary injunction, arguing that by applying the eight-semester rule to him, the CHSAA was in violation of the statutory protections of the Colorado Anti-Discrimination Act (CADA). The trial court denied Orth's request, and he appealed to the Court of Appeals of Colorado.
In reviewing the case, the first question the appeals court considered was whether the case was moot. After all, the school's football season had already ended, and there was no evidence that Orth was attempting to play any sport during the spring semester. However, the court allowed the case to proceed, since it found a possibility that other students with ADD could make similar claims in the future. Additionally, the court ruled that since the duration of a high school sports season is usually only a few months, it would be unlikely that any court could hear similar litigation within one athletic season.
To prevail on a discrimination claim under Colorado law, the court noted, a person must show that the disability was the only reason he or she had been denied the same benefits or privileges enjoyed by everyone else. Therefore, the court next examined whether there was a causal link between Orth's ADD and his failure to play sports in his first ninth-grade year.
A disability under Colorado law is defined as any physical impairment that prevents or severely restricts an individual from performing one or more of a person's major life activities. While the CHSAA did not dispute that learning is a major life activity or that ADD can qualify as a mental impairment, it claimed that even if the court accepted everything Orth said regarding the impact of his ADD on his learning, his ADD did not constitute a substantial limitation under the law.
A mere diagnosis does not itself indicate that the disability substantially affects an individual's major life activities. In applying this to Orth, the court found that while it was undisputed that Orth was diagnosed with ADD in third grade and received medical treatment for it until he was in the eighth grade, the facts also showed that he had not received professional or medical treatment for his ADD since eighth grade. There was also no evidence to suggest that the symptoms associated with Orth's ADD increased or decreased since he was diagnosed. The court noted, too, that while in high school Orth did not require any special evaluations, individualized education plan or special education program, and was given only "minor accommodations."
As a result, the appeals court concluded that Orth's ADD did not prevent or severely restrict him on a permanent or long-term basis from learning and obtaining an education. Regardless of whether Orth's ADD caused him to repeat the ninth grade, his overall school record reflected satisfactory performance for every other year of school. Therefore, even if repeating ninth grade was the result of his ADD, the disability would have to be considered a temporary and short-term phenomenon that did not render him disabled under the Americans with Disabilities Act and the CADA.
While the court held against Orth, athletic administrators should not conclude that ADD will never constitute a disability. The facts in this case showed that Orth repeated the ninth grade not because of his ADD, but because of other issues. If a student's ADD were serious enough to interfere with his or her education, it is clear under both the Americans with Disabilities Act and Colorado state law that ADD would constitute a disability within the meaning of the law. When dealing with any eligibility request involving athletes with learning or other disabilities, it is essential that athletic administrators conduct a case-by-case review of each request.
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