Starego v. New Jersey State Interscholastic Athletic Association, No. 13-3172; U.S. District Court (DNJ); opinion by Wolfson, U.S.D.J.; filed September 9, 2013. DDS No. 16-7-xxxx [29 pp.]

The court is confronted with the question, at the injunctive-relief stage, whether Anthony Starego, the autistic son of plaintiffs Raymond and Reylene Starego, should receive a waiver to play a fifth year of competitive football at Brick Township High School. Defendants, the New Jersey State Interscholastic Athletic Association, the New Jersey Department of Education, and Christopher Cerf, in his representative role as commissioner of the Department of Education, denied Starego a waiver to continue to play competitively for the Brick football team since he is no longer eligible based on the association's age and eight-semester rules. The association's initial decision was confirmed by the commissioner.

Plaintiffs bring this case under the Americans With Disabilities Act (ADA), challenging the association's decision to deny Starego the opportunity to play competitive football, a sport that has helped him flourish academically, as a student with disabilities, and has strengthened his confidence and self-esteem.

Plaintiffs move to preliminarily enjoin defendants from denying Starego the right to play competitively on the Brick football team for one more year in the position as place kicker. In addition to the papers filed by the parties, a hearing, wherein testimony was presented, was held on Aug. 14.

Held: The New Jersey State Interscholastic Athletic Association's denial of a waiver to Starego to allow him to play competitively on the Brick football team for a fifth year did not violate the ADA. Starego has received the equal opportunity and access to play football, as he meaningfully participated in Brick's football program for four consecutive years.

The court departs from the association's findings of fact and concludes that granting Starego a waiver would be a reasonable accommodation under the ADA. The court's decision is based partly on the fact that permitting Starego to play another year would not run afoul of the stated purposes for the age and eight-semester rules: there is no evidence of any type of red-shirting conduct, there is no threat of other students being displaced by Starego, and finally, there are minimal, if any, safety concerns. More important, the weight of the evidence does not suggest that Starego's participation in football would significantly change the nature and competitiveness of the game such that providing a waiver would become unreasonable under the ADA.

That said, plaintiffs' request for injunctive relief rises and falls with the inquiry whether Starego has been denied an opportunity to play competitive football, via a waiver of eligibility rules, by reason of his disabilities. Plaintiffs must present sufficient evidence to establish whether the reason for Starego's ineligibility is due to his disabilities, and if so, that a denial of a waiver of the eligibility rules constitutes a failure to accommodate his disabilities.

According to the association's rules, the intent of a waiver is to equalize opportunities for students who are otherwise unable to meet the eligibility rules due to circumstances beyond their control. This purpose falls in line with the ADA's aim to provide equal access for Starego to play football like his teammates who do not have a disability. The ADA does not provide Starego additional opportunities because of his disabilities but puts him on an equal footing with every other student player.

Defendants maintain that Starego has been afforded the full benefit of participation in football because he has played football for four years. The association stated that Starego's participation should be limited to four years of competition because allowing him to play a fifth year would provide a benefit to which other students are not entitled. The association cited to its interpretative guidelines, which state, in relevant part, "waivers of the rules are never granted where it would allow a student to participate in more than four seasons in any one sport…." The association's position, however, does not analyze the issue of what is "participation" under the ADA.

The interpretative guidelines' language prohibits any student from playing additional years of football if he/she has "participated" for four full years. This language fails to take into account any exceptions due to a student's disability and whether that disabled student meaningfully participated in the sports program. In the court's view, the absolute and prohibitive nature of the guidelines potentially defeats the purpose underlying the waiver rules — to provide ineligible students, because of circumstances beyond their control, with opportunities to participate in interscholastic sports. Similarly, such a position can be inconsistent with the mandate of the ADA.

The inquiry under the ADA is not limited to calculating the number of years for which Anthony played, but also requires a determination whether Anthony's four years of participation in football were qualitatively similar to those students without a disability such that Starego had equal access to, and meaningfully participated in, the football program despite his disabilities. At the preliminary injunction hearing, plaintiffs attempted to show that Starego's participation in Brick's football program during his freshman year was not meaningful; under the ADA, plaintiffs argue, Starego deserves to play, competitively, for another year.

The court finds that Brick provided Starego with the same opportunities afforded to every other student on the football team. Starego experienced full and meaningful participation in the football program. Starego's experience on the team reflects that he, like everyone else, struggled and persevered. Starego's growth on the field from his freshman to his senior year is akin to any other student's improvement in performance due to age, physical maturity, and experience. Starego's four-year experience on the Brick High School football team was not qualitatively different than students without a disability and he had full access to the program. Thus, his ineligibility to play competitive football a fifth year is not based on his disabilities and therefore, the association's decision to deny Starego a waiver was not based on his disabilities. Plaintiffs have failed to carry their burden on a likelihood of success on the merits of their ADA claim.

Plaintiff's motion for injunctive relief is denied.