In a case with important implications for the full inclusion of students with disabilities, the New Jersey State Interscholastic Athletic Association (NJSIAA) agreed for the first time to waive its eligibility rules to allow a student with an Individualized Education Program (IEP) to remain a starting player on a high school football team for a fifth season.
Anthony Starego was the starting placekicker for Brick Township High School’s varsity football team at the end of the 2012 season, his fourth year on the team’s roster. Anthony had even scored the game-winning points for the team during a game that season.
Antony Starego has autism, and is an Individualized Education Program (IEP) student who is entitled to remain at Brick Township High School until he is 21. Anthony wanted to continue to play football for his school for one more season, and his school applied to the NJSIAA for a one-year waiver of its “four year” and “eight semester” limit on how long someone can play a competitive high school sport.
While technically Anthony had already played for Brick for four years, Anthony spent his first year working with Brick’s coaching staff to find a position on the team that was suitable to his strengths as well as his limitations. During that first season, the team often ran its plays on the side of the field opposite from where Anthony was positioned. Luckily, after trying many positions and putting in lots of hard work with his coaches and his father, Anthony found his calling as the team’s placekicker. In coming seasons, Anthony became a starting player and a valuable member of the team.
Brick High School applied to the NJSIAA for a one-year waiver of the “four year” and “eight semester” eligibility rule. The granting of this waiver would make up for Anthony’s “lost” freshman year on the team. None of the schools against which the Brick football team competed objected to granting Anthony a fifth year of eligibility.
Unfortunately, the NJSIAA denied the application, asserting that Anthony was too old to continue to play, that he would “displace” other players, would create an undue safety risk, and would give Brick an “unfair competitive advantage.” The Staregos, represented by lawyer Gary Mayerson, then went to Federal District Court seeking to enjoin the NJSIAA ruling, stating that the NJSIAA’s denial of the waiver violated the Americans with Disabilities Act (ADA). In the meantime, Anthony began practicing with the Brick football team, not knowing if he would ever be allowed to play competitively on the team again.
On September 9, 2013, the court denied Anthony’s ADA claim. However, in its ruling the court explicitly rejected every one of the reasons that the NJSIAA had given for denying the waiver. Based on this mixed rulings, the Staregos filed an amended complaint asserting an additional discrimination claim under the Individuals with Disabilities Educaiton Act (IDEA), and made filings with the New Jersey Superior Court.
Then, on September 27, hours before the Brick’s third football game of the semester, good news came. The NJSIAA had reconsidered their first ruling, and Anthony would be allowed to play out the remaining eight games of this football season. This was the first time the NJSIAA had ever allowed a student to play for a fifth year.
Obviously, this ruling meant a lot to the Staregos. Anthony said that he was excited to get to continue to play for Brick and “hold my head up high.” But what does this case mean for other people in situations similar to Anthony’s? We caught up with the Staregos’ lawyer Gary Mayerson to ask him some questions about this case.
ASF: The press release about this case says that when Anthony began to truly compete with the team as a placekicker, “a light went on” for him. How did football help Anthony off the field?
Gary Mayerson: To say the least, when Anthony was selected to be a starting placekicker for his varsity team, his self-esteem and confidence grew exponentially. According to his parents, a once quiet and shy student became a “jokester” almost overnight. Being a respected and admired member of the football team gave Anthony social entrée into school that he had not previously experienced. It also gave Anthony a sense of purpose. As Anthony told his parents, “I want to continue kicking field goals to make points for my team so that I can hold my head up high.”
ASF: What do you think was the catalyst that caused the NJSIAA to reconsider its original ruling and allow Anthony to compete for the rest of the football season?
GM: My best guess is the fact that the district court, while denying Anthony’s motion for a preliminary injunction, nevertheless rejected each and every one of the grounds upon which the NJSIAA had rejected the request for a one year waiver of the NJSIAA’s rules. In light of these adverse findings by the federal court, it was actually a very opportune time for the NJSIAA to settle because of the possibility of further adverse rulings at the federal or Superior Court levels. Additionally, all of the schools that Brick competes against communicated that they did not have any problem with Anthony continuing to compete. The NJSIAA was running out of reasons to bar Anthony.
ASF: You’ve said that this case represents “the next frontier for inclusion – competitive inclusion.” What needs to happen in every school in order for this next frontier to become a reality today?
GM: In the 1950s, the federal government was compelled to send in troops to ensure the safety of African-American students who had the right to attend an otherwise all-white school. Today, half a century later, President Obama is in his second term. Inclusion in the context of special needs students also is an evolutionary process because so much turns on changes in the public’s collective attitude. In the past, inclusion of special needs students in sports activities meant warming the bench or serving as the team’s mascot or equipment manager. In Anthony’s case, he is genuinely competing in every sense of the word. His high school supported the application for a “one further season” waiver but I would imagine that there are many more schools that would not have had the courage to take that step. “Inclusion” is not just a catch phrase to be trotted out at an in-district symposium. Just as is the case with anti-bullying policies, the public school must devote resources and training and otherwise make the commitment to “own” inclusion.
ASF: Anthony’s father has been quoted as saying, “We really believed in this so much. Not just for Anthony, but for all the good that can come from this regarding awareness for autism and kids that come after him. We understand the importance of this situation.” What precedents does this case set, especially for other students with autism with IEPs?
GM: Since the parties reached an amicable settlement, the ultimate legal precedent will be left to a future court to decide (whether the federal IDEA or ADA statutes control over conflicting state regulations). However, for IEP students who are participating in extracurricular sports activities, an important lesson is that the student’s IEP should expressly reflect the student’s participation in sports. Indeed, for IEP students participating in sports, specific goals (e.g. addressing domains such as social, communication, behavior, attention, etc.) can be developed that correspond to the sports activity.
