United States District Court, D. New Jersey
RAYMOND and REYLENE STAREGO, individually and as guardians on behalf of their son, ANTHONY STAREGO, Plaintiffs,
NEW JERSEY STATE INTERSCHOLASTIC ATHLETIC ASSOCIATION, et al., Defendants
For RAYMOND STAREGO, REYLENE STAREGO, individually and as guardians on behalf of their son, ANTHONY STAREGO, Plaintiffs: GARY S. MAYERSON, LEAD ATTORNEY, MAYERSON & ASSOCIATES, NEW YORK, NY.
For NEW JERSEY STATE INTERSCHOLASTIC ATHLETIC ASSOCIATION, Defendant: STEVEN P. GOODELL, LEAD ATTORNEY, RACHEL USHER DOOBRAJH, HERBERT, VAN NESS, CAYCI & GOODELL, PC, Lawrenceville, NJ.
For BRICK TOWNSHIP HIGH SCHOOL, Defendant: MATHEW BRADY THOMPSON, LEAD ATTORNEY, BERRY SAHRADNIK KOTZAS & BENSON, TOMS RIVER, NJ.
For THE NEW JERSEY DEPARTMENT OF EDUCATION, CHRISTOPHER CERF, in his representative role as COMMISSIONER OF EDUCATION OF THE NEW JERSEY DEPARTMENT OF EDUCATION, Defendants: BETH N. SHORE, LEAD ATTORNEY, STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, TRENTON, NJ.
Freda L. Wolfson, United States District Judge.
The Court is confronted with the difficult question, at this injunctive relief stage, whether Anthony Starego (" Anthony" ), the autistic son of Raymond and Reylene Starego (" Plaintiffs" ), should receive a waiver to play a fifth year of competitive football at Brick Township High School (" Brick" ). Defendants, the New Jersey State Interscholastic Athletic Association (the " Association" ), the New Jersey Department of Education, Christopher Cerf, in his representative role as Commissioner of Education of the New Jersey Department of Education (the " Commissioner" ) (collectively, " Defendants" ), denied Anthony 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 (the " ADA" ), challenging the Association's decision to deny Anthony the opportunity to play competitive football, a sport that has, undoubtedly, helped Anthony flourish academically, as a student with disabilities, and has strengthened his confidence and self-esteem.
The high school football season is impending, and Plaintiffs move to preliminarily enjoin Defendants from denying Anthony 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 August 14, 2013. For the reasons set forth below, I reach the difficult decision to deny Plaintiffs' motion, because under the strictures of the ADA, Anthony has received the equal opportunity and access to play football, as he meaningfully participated in Brick's football program for four consecutive years.
The following facts are not in dispute and they are derived from the record before this Court on this preliminary injunction motion. Anthony turned nineteen years old in June 2013, and he began his fifth year at Brick high school in September 2013. See Mayerson Decl., ¶ 3. He has been diagnosed with autism, attention deficit hyperactivity disorder and cognitive impairments, which qualify Anthony for an individualized education program (" IEP" ). Id. at ¶ 6. In that connection, Anthony is eligible to continue to attend school until the age of twenty-one. Id. at ¶ 7. Anthony
joined the Brick football team beginning in his freshman year in September 2009. He has played continuously for four years; however, he did not become the starting varsity place kicker until midway through the 2012 football season, his senior year.
See Id. at ¶ 8.
The Association is a voluntary, non-profit organization, comprised of boards of education of local public school districts and private schools in New Jersey, that oversees athletic competition among member schools, such as Brick. Among its various roles, the Association promulgates eligibility rules that are essential for regulating and structuring high school sports. See N.J.S.A. 18A:11-3. One of the two rules at issue here is the eight semester rule, which states: " No student shall be eligible for high school athletics after the expiration of eight consecutive semesters following his/ her entrance into the 9th grade." NJ SIAA Bylaws, p. 35. The rule further states that " [c]lassified students who are ungraded will have eight consecutive semesters of eligibility beginning with the first semester of participation in interscholastic athletics at the freshman, junior varsity, or varsity level." Id. at p. 36. The second rule at issue is the age rule. This rule states: " An athlete becomes ineligible for high school athletics if he/ she attains the age of nineteen prior to September 1. However, any athlete attaining age nineteen on or after September 1 shall be eligible for the ensuing school year." Id. at p. 31. According to the Interpretive Guidelines of the Association's rules, the purposes of the age and eight semester rules, in essence, are to (1) prevent red-shirting -- the practice of holding a student back a grade to gain a competitive advantage, (2) prevent students from displacing other students on the sports team, (3) maintain a uniform progression through the four grades of high school, (4) provide all students with equal opportunity to play interscholastic sports, and (5) act as a safety measure. Id. at p. 46-47.
Students may apply for a waiver of these eligibility rules. The waiver process provides students an avenue to challenge the applicability of a rule, or rules, based on the student's individual circumstances. Indeed, waivers are " intended to equalize opportunity among otherwise eligible students who cannot strictly comply with the eligibility rules because of circumstances beyond their control." See NJSIAA Bylaws, p. 49. Two Association committees make waiver decisions -- the Eligibility Committee and the Eligibility Appeals Committee. Id.
In June 2013, Anthony turned nineteen, and according to the age rule, he was no longer eligible to play high school football. Similarly, because Anthony has participated in Brick's football program for four years, he was also precluded from playing on the team under the eight semester rule. In that regard, in anticipation of Anthony's ineligibility, Plaintiffs, with the assistance of Brick, applied for a limited waiver in February 2013.  On March 11, 2013, the Appeals Committee held a hearing wherein school staff and others,  along with Anthony and his parents, attended to provide the Committee with testimonial and documentary evidence in order to establish that
a waiver was necessary. Based on the presentation of Plaintiffs' evidence, the Association concluded that Anthony did not qualify for the waiver. In summarizing its findings, the Association explained:
Here, the student does not qualify for a waiver because he has already received the full benefit of participation in high school sports; as a proven difference-maker who is a college-level kicker his continued participation would provide his team with an actual advantage against other teams; his participation would deny other students their opportunity to participate; and, because the EAC [the Association] could not rule out the safety concerns addressed by the Age Rule. Changing the rules in this case would fundamentally alter the competition.
Association Decision, p. 5.  However, recognizing that Anthony benefits tremendously from playing football from a developmental standpoint, the Association permitted Anthony to participate in team practices and scrimmage games in the upcoming season. Plaintiffs appealed the adverse decision to the Commissioner pursuant to N.J.S.A. 18A:11-3. In a written opinion, which deferred to the Association's factual findings, the Commissioner affirmed the Association's decision on June 28, 2013.
Plaintiffs brought the instant suit under the ADA to challenge the Association's denial. According to Plaintiffs, the Association violated the ADA by refusing to provide reasonable accommodations by way of a waiver to permit Anthony, a disabled student, to continue to play football competitively for Brick.  Because the upcoming football season begins competitive play on September 13, 2013, Plaintiffs move for emergent relief to enjoin Defendants from denying Anthony the opportunity to play for the team for one more year.
I. Standard of Review for Preliminary Injunction
It is well-settled in this circuit that a party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that he will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Conestoga Wood Specialties Corp. v. Sec'y of the U.S. Health and Serv., No. 13-1114, 724 F.3d 377, at *11-12 (3d Cir. Jul. 26, 2013); Kos Pharms. Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). The Third Circuit has instructed, and recently reconfirmed, that a plaintiff seeking an injunction must meet all four criteria, as " [a] plaintiff's failure to establish any element in its favor renders a preliminary injunction inappropriate." NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999); see Conestoga, 724 F.3d 377, at *11.
II. Americans with Disabilities Act
As the likelihood of success is the pivotal factor in this case, I will turn to a discussion of Plaintiffs' claims under Title II of the ADA. Section 12132 of Title 42 of United States Code prohibits ...