ORDER
Currently before the court is the motion of Plaintiff Dru Rhodes for a preliminary injunction enjoining Defendants Ohio High School Athletic Association (OHSAA) and The Catholic Diocese of Youngstown (the Diocese) from enforcing the OHSAA’s “eight consecutive semester” rule which would otherwise preclude Plaintiff from participating on his high school football team. The court took evidence and heard argument on this matter in a hearing held Thursday, August 22, 1996. The parties have also favored the court with briefs on the question, and the court is now well-prepared to issue its findings.
I. Background
Plaintiff Dru Rhodes is an eighteen year old student in his senior year at St. Thomas Aquinas High School, a school owned and operated by the Defendant Diocese. In 1987, while Dru was in the fourth grade, he was diagnosed with learning disabilities, including Attention Deficit Disorder. At that time he began receiving special services for his disability through the North Canton City School District.
Prior to Dru’s freshman year in high school, he enrolled at Western Reserve Academy where Dru and his parents believed he could continue his personalized educational program. While at Western Reserve, Dru also played on the school football team. As a private boarding school, the Academy was not required to provide accommodations for Plaintiffs learning disabilities, nonetheless, he did receive out of class attention from his teachers and from his headmaster, who oversaw Plaintiffs studying for at least a couple of hours each week. While enrolled there, Dru’s scholastic performance took a decidedly downward turn, and he now disputes the quality of the out-of-class attention that he received, saying that it fell far short of the tutoring which his disability requires. That year, Plaintiffs grade average was only 2.5 on 7 point scale, and he earned only one credit toward graduation. The student was informed that he would not be asked back to Western Reserve for the 1993-94 school year.
Consequently, in the fall of 1993 Dru Rhodes enrolled as a freshman in St. Thomas Aquinas High School. The school determined that Dru was academically ineligible to play football that fall semester because of his failing marks the year before. Fortunately, Dru thrived at St. Thomas where he received tutoring and other assistance for his disabilities; his present cumulative grade average is 2.633 on a 4 point scale. Dru has been involved in athletics since his second semester at St. Thomas.
The 1996-97 school year will mark Dru Rhodes’s fifth and senior year in high school. It will also mark his ninth and tenth high school semesters. In the present fall semester, Dru would like to compete on the school football team, but he has been denied that privilege pursuant to an OHSAA rule which states: “After a student completes the eighth grade, the student shall be eligible [to compete in high school athletics] for a period not to exceed eight semesters taken in order of attendance, whether the student participates or not.” (OHSAA Rule 4-3-4, docket #4, ex. 1.) Although Dru has competed in only seven semesters of high school athletics, he has already been enrolled in high school for eight consecutive semesters, thus, according to the rule, Dru’s athletic eligibility has expired.
Dru and his parents sought relief from the rule through the OHSAA’s waiver and appeal
II. Analysis
It is well established that when considering a motion for a preliminary injunction, the court must address the following factors:
(A) Whether the party seeking the order has shown a substantial likelihood of success on the merits;
(B) Whether the party seeking the order will suffer irreparable harm absent the injunction;
(C) Whether the order will cause others to suffer substantial harm; and
(D) Whether the public interest would be served by injunctive relief.
Golden v. Kelsey-Hayes Co.,
A Substantial Likelihood of Success on the MeHts.
1. Applicability of the I.D.E.A.
The Plaintiff has based his argument on three separate grounds which the court shall consider in turn. First, however, the court must address the Defendant’s argument that the Plaintiffs claims are not properly before the court because Dru Rhodes has not exhausted his administrative remedies in accordance with the Individuals with Disabilities Education Act (I.D.E.A.), 20 U.S.C. Section 1415. That Act, also known as the Education of the Handicapped Act, requires that states receiving certain federal financial assistance establish procedures “to assure that handicapped children ... are guaranteed procedural safeguards with respect to the provision of free appropriate public edueation[.]” 20 U.S.C. § 1415(a). The I.D.E.A. then specifies “with painstaking care” the minimum requisites for due process in that administrative context.
Id.; Crocker v. Tennessee Secondary Sch. Athletic Ass’n.,
In the instant case, it is clear that Plaintiff Rhodes has not subjected his claim to Ohio’s Impartial Due Process Hearing procedure. However, Rhodes argues that the exhaustion requirement and, indeed, the entire I.D.E.A. do not apply to him. Plaintiff relies on the terms of the statute which state that the I.D.E.A. governs only those who seek “safeguards with respect to the provision of
free appropriate public
education[.]” (Docket #8, at 2 (quoting 20 U.S.C. § 1415(a)).) Plaintiff Rhodes’s education is neither free
In the instant case, Plaintiff attended a private school that has chosen to subject itself to an athletic association to which the state delegates a great deal of authority and, thus, it is likely that the Plaintiffs claim would typically be subject to Ohio’s administrative process. However, there is no evidence in this matter that Rhodes had an IEP in recent history, save for the one implemented in order to aid him in his preparation for the ACT college board examination. Thus, unlike the plaintiff in Crocker, Plaintiff Rhodes had no IEP from which to appeal through the Ohio administrative process. To dismiss the instant action for failure to comply with an administrative process which was not open to Plaintiff would be manifestly unjust, and is not compelled by the statute. The court will thus reach the merits of Plaintiffs claims under the Americans with Disabilities Act, 42 U.S.C. Section 12101-12213, and Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. Section 794.
2. Plaintiffs Federal Claims.
The ADA and the Rehabilitation Act both prohibit discrimination against the disabled. In Section 504 of the Rehabilitation Act, Congress declared that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal [funding.]” 29 U.S.C. § 794(a). Similarly, the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity,” 42 U.S.C. § 12132, and that “[n]o 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 ... operates a place of public accommodation.” 42 U.S.C. § 12182(a). The main difference between the Rehabilitation Act and the ADA is that the coverage of the ADA is broader, extending its prohibition against discrimination to private individuals, including the private owners and operators of places of public accommodation. 42 U.S.C. §§ 12181, 12182; see also, 42 U.S.C. § 12201(a) (“[N]othing in this chapter shall be construed to apply a lesser standard than [those] applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued ... pursuant to such title.”). Both Acts may be invoked by aggrieved individuals such as Plaintiff. 29 U.S.C. § 796a(2), (same remedies as provided in 42 U.S.C. § 2000d et seq.); 42 U.S.C. § 12188(a)(1), 2000a-3(a).
a. The Rehabilitation Act Claim.
To successfully prosecute a cause of action under the Rehabilitation Act in the instant setting, Plaintiff must prove four elements:
1. That he suffers from a disability;
2. He is otherwise qualified for participation in the program;
3. He is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely by reason of his disability; and
4. The program or activity is receiving federal funding.
Sandison v. Michigan High Sch. Athletic Ass’n., Inc.,
When addressing the plaintiffs’ Rehabilitation Act claims, the Sixth Circuit considered the third element first, that is, the Court determined that the MHSAA’s “nineteen-year-old rule” could not be classified as a “decision made, solely by reason of each student’s learning disability.”
Sandison,
In the instant case, Defendant OHSAA argues that its “eight consecutive semester rule” is similarly neutral and thus does not exclude Plaintiff Rhodes from participation in interscholastie football “solely by reason of’ his learning disability. This court agrees. The OHSAA regulation, like that of the MHSAA in Sandison, did not preclude Plaintiff Rhodes from participating in high school athletics earlier in his high school career, rather it was not until Rhodes entered his fifth, senior year that the rule “operated to disqualify him.” See id. Where the students in Sandison were held back due to their difficulties in school, so too was Plaintiff Rhodes. However, here as in Sandison, it is the passage of time, measured out in semesters, which precludes Plaintiff from competing, not the disability which allegedly caused him to repeat his freshman year. Moreover, the court makes a preliminary finding that Rhodes failed his first freshman year due to the combination of his learning disability and his adjustment to a new and, for him, unpleasant boarding school experience. Thus, the causal connection has not been established between the learning disability and the repeat of Rhodes’s freshman year, let alone the consequent expiration of his eligibility.
The eight consecutive semester rule can be applied to students regardless of disability, and it was so applied here. The court, therefore, finds that the rule cannot be characterized as a decision made solely on the basis of Plaintiffs disability. For this reason, Plaintiff Rhodes does not state a cause of action under the Rehabilitation Act, and he has not demonstrated a substantial likelihood of success on that claim.
b. The Americans with Disabilities Act Claims.
The Plaintiff actually brings his ADA claims under two separate, complimentary provisions, 42 U.S.C. Sections 12132 and 12182. The former prohibits discrimination by a “public entity,” the latter by “any person who [operates] a place of public accommodation.” The two provisions are mutually exclusive, but together, encompass nearly ev
The ADA defines the term “public entity” as including “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131. The Defendant OHSAA argues that it is a private, voluntary association not encompassed by this definition of a “public entity” and that it is, therefore, outside the purview of Section 12132. In support of its contention, the OHSAA argues that it receives no public funds, and is governed by its members which consist of both public and private schools. “The actions of publie schools taken in accordance with the OHSAA bylaws,” the OHSAA argues, “do not operate to transform the OHSAA’s conduct into state action.” (Docket #4, at 16-17.) The OH-SAA’s argument is supported by an 1962 Ohio Supreme Court case,
State ex rel OH-SAA v. Judges of the Court of Common Pleas of Stark County,
Plaintiff Rhodes counters that Defendant is an instrumentality of the State of Ohio because schools and facilities in which it carries out all of its functions receive federal assistance, because some coaches and other school employees receive federal financial assistance, and because the OHSAA can sanction publie and private schools for noncomplianee with its rules. (Docket # 8, at 10-11.) Plaintiff cites to a portion of a Sixth Circuit opinion,
Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. OHSAA,
The other case relied upon by Plaintiff to establish the OHSAA’s public status,
Alerding v. OHSAA,
Nonetheless, this court notes that every available district court opinion which has addressed this very issue has found that a state athletic association is an instrumentality of the State.
See Hoot v. Milan Area Schs.,
This court does not have the same quality of evidence before it as did the court in Hoot, but weighing that evidence which was submitted on this question in the instant case, the court finds that Plaintiff has proven that the Defendant OHSAA is an instrumentality of the State of Ohio. The evidence tends to show that Ohio has delegated a substantial amount of state authority to the OHSAA: the great majority of OHSAA’s members are public schools, it frequently uses public facilities, and it exercises the ability to sanction public schools for violations of its rules. The OHSAA is thus an instrument of the State and a “public entity” amenable to suit pursuant to Section 12132.
While Defendant does not dispute that Plaintiff’s claim is properly brought pursuant to Section 12182, the court finds to the contrary. In a definitional section, Section 12181(7), Congress has listed a multitude of private entities which are considered to be public accommodations. This list is qualified, however, by the definition of “private entity” which provides that the term encompasses all of those not considered public entities pursuant to 42 U.S.C. § 12132(1). 42 U.S.C. § 12181(6). Taken together, these definitions have been understood to mean that a place of public accommodation must be operated by a private entity.
Sandison
i. The Section 12132 Claim.
Again, the ADA as codified at 42 U.S.C. Section 12132, provides that a public entity such as the OHSAA cannot exclude a “qualified individual with a disability” from participation in activities, nor deny him benefits, nor discriminate against him in any way “by reason of such disability.” 42 U.S.C. § 12132.
Under the ADA, a “qualified individual with a disability” means “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, ... meets the essential eligibility requirements for the ... participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The court is to make factual findings concerning both whether the requirement is essential, and whether some reasonable modification is available which satisfies the legitimate interests of both the Association and Dru Rhodes.
Sandison,
Here, as in
Sandison,
the Defendant Athletic Association argues that the regulation in question is an “essential” requirement of its program. In that cause, the Sixth Circuit upheld the district court finding that the nineteen-year-old rule was “necessary” and “essential” because the rule advanced two purposes: first, it “safeguards against injury to other players;” and second, it “prevents any unfair competitive advantage that older and larger participants might provide.”
Id.
at 1035. In the instant case, the court finds that the eight consecutive semester rule also promotes at least three important purposes: first, it prevents red-shirting
3
of all students, especially those who due to their relatively young age might not be deterred by the nineteen-year-old rule; second, it limits the
Ultimately, the court need not decide this issue because Plaintiff has failed to meet a separate requirement of a Section 12132 claim. As in his Rehabilitation Act claim, to successfully assert an ADA claim Plaintiff Rhodes must demonstrate that his exclusion from participation on the football team was “solely by reason of [his disability.]”
Sandison
3. Plaintiff’s State Law Claim.
In his Complaint, Plaintiff Rhodes states Ohio Revised Code Section 4112.01 et seq. as a basis for his claim of discrimination. He restates his claim for the protection offered by that Code provision in his motion for a preliminary injunction, (docket # 3, at 3), but then fails to make any arguments or offer evidence specifically in support of his state law claim. Understandably, Defendant has not addressed that issue of law either. Because it is Plaintiffs duty to demonstrate some likelihood of success on the merits and because he has not attempted to make such a demonstration regarding his state law claim, the court finds that Plaintiff has not demonstrated any likelihood of success on that claim.
The court concludes that Plaintiff has not demonstrated that it is likely he will succeed on the merits of any of his claims in the instant case. This first element of the preliminary injunction paradigm weighs in favor of Defendant OHSAA.
B. Irreparable Harm.
Plaintiff Rhodes has convincingly demonstrated that he will suffer irreparable harm if his motion for an injunction is denied. This is Dru Rhodes’s senior year in high school and possibly his last chance to participate in organized interseholastic athletics. Indeed, Rhodes testified that his ability to compete on the college level will be greatly diminished if he is unable to play football this season. The court finds that Rhodes will suffer irreparable harm in the absence of an injunction requiring OHSAA to waive its eight consecutive semester rule. This factor weighs decidedly in favor of Plaintiff Rhodes.
C. Substantial Harm to Others.
Defendant OHSAA argues that an injunction would injure the “integrity and academic goals of St. Thomas Aquinas High School and the [OHSAA] — and by that is meant all member schools,” and it would “further displace a student athlete on Rhodes’ team and provide[ ] an unfair advantage against Rhodes’ opponents.” (Docket # 4, at 17-18.) It is doubtful that a court order requiring
D. The Public Interest.
Plaintiff believes that the public interest would best be served by an injunction which ensures the right of a disabled student to a complete education, including the ability to participate in athletics. Defendant disagrees, instead offering the view that the public interest is embodied in the regulations of the OHSAA which have been approved by a board which is itself representative of school districts and athletic officials throughout the state. In the end, the court is not required to weigh the rights of the disabled against the voice of the people of Ohio as spoken by the OHSAA, because the court found previously that Plaintiff is unlikely to demonstrate that his disability was the sole cause of his ineligibility under the OHSAA’s rules. The court finds, therefore, that the public interest in upholding the rules established by the OHSAA is greater than its interest in Plaintiff Rhodes’s individual predicament. This factor too, weighs in favor of the Defendant OHSAA.
III. Conclusion
The court finds that Plaintiff is unlikely to succeed on the merits of his claim, that he will suffer irreparable harm if an injunction does not issue, that there is a likelihood of some harm to others if the injunction should issue, and that the public interest disfavors an injunction in the instant case. Accordingly, the court concludes that Plaintiffs request for a preliminary injunction enjoining the Defendants from enforcing OHSAA’s eight consecutive semester rule, should be, and is, DENIED. The OHSAA is free to enforce its rules as it sees fit, in accordance with the law.
IT IS SO ORDERED.
Notes
. Like the Defendant Diocese in the instant case, the defendant schools in Sandison did not oppose the plaintiffs but rather offered conditional support for their student athletes.
. The Sandison Court explained that its ADA analysis tracked its analysis under the Rehabilitation Act, and thus, this court will also take guidance from Sandison s discussion of the Rehabilitation Act.
. The court understands this term, red-shirting, to mean holding a student back in a grade level regardless of his or her scholastic performance in order to gain physical and mental maturity which would presumably lead to greater athletic achievement.