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New Jersey lawyer focusing on special education law and employment law

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Disability, Age Waivers, and Sports Tournaments

There is an interesting petition on Change.org that seeks to change a rule permitting Michigan high school student Eric Dompierre to play ball for at least another year.

Eric is a high school student with Down’s Syndrome. He recently turned 19 years old. He will continue his education at his high school next year where he hopes to continue to play in tournaments with his classmates. The problem is that the Michigan High School Athletic Association‘s constitution imposes age restrictions on those who can participate in tournament games. Eric is, to put it mildly, too old to play in state sponsored tournaments.

According to the FAQ on the Michigan High School Athletic Association (MHSAA) website:

To participate in MHSAA tournament sponsored sports a student must be under 19 years of age except that a student who turns 19 on or after Sept. 1 of a current school year is eligible for the balance of that school year.

According to the MHSAA’s History, Rationale, and Application of the Regulations of HS Athletics in Michigan:

the age limitation cannot be waived, regardless of how few days or hours a student exceeds the limit or the circumstances which delay the student’s start of progress through school. . . . [The rule] treats all students equally regardless of race, creed, origin, gender, giftedness, or disability. . . . (p. 15)

The document goes on to state:

Throughout society, absolute age standards are accepted. Sometimes they are minimums (16 to drive, 18 to vote, 21 to drink alcohol). Sometimes the age standards are maximums. . . .

The age limitation has many purposes, among which are that it helps to create equal conditions by limiting competition to participants of approximately the same age, size and maturity. . . . (p. 15)

The document noted that the Michigan Department of Civil Rights upheld the MHSAA’s age rule even to handicapped students (cases cited on p. 16).

The document also cited Sandison v. MHSAA, 64 F.3d 1026 (6th Cir. 1995), a case that involved two high school students with learning disabilities who turned 19 years old and were declared ineligible to participate in running track. The students sought an age waiver, and they alleged that the MHSAA’s age rule violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students ultimately lost that case. See also Pottgen v. Missouri State High School Activities Association, 40 F.3d 926 (8th Cir. 1994).

Despite the 73,000+ people who signed the petition to support an age waiver to permit Eric to play ball in what might be his final year of high school, the MHSAA rule imposing an age limit does not appear to be discriminatory. The rule was not written to exclude those with disabilities; rather, it is a neutral rule that excludes everyone, not just those with disabilities, who reach a certain age. That is how the Sandison court saw it back in 1995, and that is how it seems to be at the present time.

Yet, none of this has stopped Eric’s father from starting a petition to change the MSHAA constitution. This is, after all, a free country, and positive change is always a good thing.

Eric’s father says that there are 23 states that allow waivers to the maximum age rule. On its face, age waivers sound reasonable, particularly in light of the fact that some students with disabilities may need to continue their secondary education until they reach 21 years of age.

It is important to keep in mind, however, that in those states where age waivers are available, students with a disability who are over 18 years of age do not necessarily have a right to play. Other factors must be taken into consideration, such as

1. The athletic experience of the student;

2. The degree to which the student presents a risk of harm to other competitors due to his or her strength, size, or speed;

3. The nature of the sport;

4. The degree to which fair competition among high school teams would be impacted by the student’s participation; and

5. Whether the student’s individualized education plan, if any, contains a provision requiring sports participation.

See Baisden v. West Virginia Secondary Schools Activities Commission, WV Sup. Ct., 2002. See also Sandison, at 1035.

BasketballAt this point, the MHSAA is not legally obligated to create an age waiver, though it would be helpful to know the specific reasons why the MHSAA won’t do it. At the time this blog post was published, I was unable to find an official statement on the MHSAA website outlining its reasons why it has rejected to create an age waiver.

In the meanwhile, netizens from both sides of the aisle are debating whether the MHSAA should permit age waivers. Some people say that age is irrelevant–so long as Eric is a student, he should be permitted to play. Others argue that Eric has to learn to appreciate the “rule of law”: Eric has to learn that rules are rules, and the rules cannot always be bent for him.

If you live in Michigan, and you believe that Eric should play ball and that the MHSAA should permit age waivers, you may want to sign the petition.

[Update: On May 31, 94% of the members of the Michigan High School Athletic Association voted in favor or amending the MHSAA constitution. For more information, see this news article and this blog post.]

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