have stated that they want Luis Cruz to wrestle
on the team, even if he defeats other students. Mr. Schnellenbach
testified that Luis Cruz would be the same wrestler "if he was born June
1, June 2 or May 31.
22. Pete Riviello, Director of Athletics for Ridley School District,
also testified on behalf of plaintiffs. He stated that Luis Cruz has
tried out for the baseball team in the past, but that team has a cut
policy, and Luis Cruz did not make the team. Mr. Riviello testified that
Luis Cruz did participate on the interscholastic track teams during
Spring semesters. He confirmed what was previously said, including that
Luis Cruz has no competitive advantage, is not a safety risk, does not
displace other players (due to a no-cut policy), and is a positive
23. Mr. Riviello also testified that, despite P.I.A.A. rules as to
certifying eligibility of players, none of the 10 schools that comprise
the Central League abide by that rule. There was no testimony that
P.I.A.A. enforced those rules. The technical ineligibility of Luis Cruz
— a discrepancy in this case of 28 days — only was revealed
because Ridley School District itself reported it as soon as it was
24. Mr. Riviello testified that there were no intramural alternatives
to the Ridley High School interscholastic track and wrestling teams, and
that there is a flag football intramural unit which is not even close to
being a comparable alternative to the varsity football team of which Luis
Cruz has been a member.
25. Mr. Riviello also noted that the P.I.A.A. rules permit students to
participate in eight semesters of interscholastic sports; however, Luis
Cruz has only been permitted to participate in six semesters, and he
still needs the remaining two semesters.
26. Bradley Cashman, Executive Director of the P.I.A.A., testified on
behalf of Defendant as to the P.I.A.A. organization and the motivations
behind the Age Rule; namely, to avoid competitive advantage, safety risk
and displacement of customary-age players. Mr. Cashman opined that the
Age Rule does not prevent a student from practicing, but does prevent him
or her from participating in scholastic athletic contests.
27. Mr. Cashman testified that as of December 1, 1998 there were 2,413
special education students in Pennsylvania who were 19 years old. Mr.
Cashman testified he does not know how many of these students participate
in interscholastic competition. He testified he did not know how many of
these students have an IEP providing for sports activities. He said that
as of December 1, 1998 there were 308 21-year old special education
students in Pennsylvania.
28. Mr. Cashman did not state how many of the 19-year old students in
Pennsylvania were ineligible under the Age Rule. He confirmed that
19-year old students are not ineligible if they are born after the July 1
cut-off date, and that 19-year old students may be competing against
29. Mr. Cashman stated that the P.I.A.A. has averaged about 2 to 3
requests to amend the Age Rule annually during the past 20 years. He
stated that Luis Cruz's case is at most the second time, he believes,
that the P.I.A.A. has received a request in the context of a student with
30. Mr. Cashman testified that other ineligibility rules of the
P.I.A.A., such as the 8-semester rule and the transfer rule, have waiver
provisions, but the Age Rule does not, suggesting that it would be an
overly burdensome task to evaluate competitive advantage in individual
Cashman acknowledged that evidentiary hearings are regularly
held by the P.I.A.A. as to the transfer rule and the 8-semester rule,
often determining "athletic intent."
31. Ridley's request to amend the Age Rule was accompanied by possible
amendatory language that would have provided an exception to the Age Rule
"if . . . the pupil is not over the age of 21 [and]:
(1) an application for waiver is made to the
P.I.A.A.; (2) the student does not create a safety
risk to other players; (3) the student does not skew
the overall competitiveness of the particular activity
in which the student will participate; and (4) the
student has an individualized education program
(IEP), containing provisions for extra-curricular
32. An assessment of whether the student would "skew the overall
competitiveness of the particular activity" or whether the student would
constitute a competitive advantage would have to be looked at not only
sport by sport, but individual by individual. Such an assessment would
involve examining the individual in comparison with members of his or her
own team, and in comparison with members of opposing teams. Such an
assessment would involve projecting future athletic performance, at a
time in the student's life when athletic ability is changing. This would
be a very difficult, complex, and burdensome assessment involving many
variables, including both objective and subjective elements, according to
33. P.I.A.A. does not have the power to compel the information from
competitor schools that would be necessary to determine whether the
student would "skew the overall competitiveness of the particular
activity" or whether the student would constitute a competitive
34. P.I.A.A. estimates that it would have to significantly increase the
size of its staff, doubling or tripling it, in order to perform
assessments of whether a student would "skew the overall competitiveness
of the particular activity" or whether the student would constitute a
35. Luis Cruz is not a "star" player in any of his interscholastic
sports. Luis Cruz has been included in the football program for an
inclusive experience. He is a marginal player and appeared in football
games on a very limited basis such as a few kickoffs where the
performance apparently was not critical. At the same time, the non-special
education students of Ridley High School are attempting to be inclusive.
They have rallied around him, as he is a "great team player."
36. Luis Cruz is not more experienced than other players. In fact, he
is less experienced and therefore has played football only on a very
limited basis. Further, he is five foot three inches tall and weighs 130
pounds, which is by no means greater than the average height and weight of
other, even younger, participants. It is thus readily apparent that there
is no safety threat to others or competitive advantage in the situation
presented here. Also, again, there is no "cut" policy on the football
squad, so Luis Cruz is not replacing any other student who would
otherwise have an opportunity to play.
37. Luis Cruz has "good basic skills" in wrestling, but there are "a
lot of better wrestlers than him." He is not a safety risk factor, but he
may have a competitive advantage based on his outstanding dual meet
38. In track, where there is also a no-cut policy, Luis Cruz is not a
fast runner, does not displace other students, has no competitive
advantage and represents no safety risk. He runs a minute behind
qualifying time in the mile. He has been
unable to earn points in duel meets and would only place by default.
39. The current IEP does not mention interscholastic athletics and
does not list participation in interscholastic athletic contests
as either an item of special education or as a related service for
40. The current IEP for Mr. Cruz includes a description of Mr. Cruz's
needs or deficits. Mr. Cruz has no known deficit in the area of
self-esteem that impacts on his productivity. Ridley's special education
evaluation of Mr. Cruz does not indicate that Mr. Cruz has problems in
the area of self-esteem. CER's and IEP's from 1993 to the present do not
indicate any deficits in the area of self-esteem.
41. Mr. Cruz has no known deficits in the areas of peer interaction or
interaction with adults that affects his productivity. CER's and IEP's
from 1993 to the present do not indicate any deficits in the area of
42. Mr. Cruz has no known deficits in the area of motivation. CER's and
IEP's from 1993 to the present do not indicate any deficits in the area
43. The description in Mr. Cruz's current IEP does not indicate that
Mr. Cruz has a deficit in being punctual for appointments or other
events. Mr. Cruz has no known deficit in the area of punctuality. CER's
and IEP's from 1993 to the present do not indicate any deficits in the
area of punctuality. Mr. Cruz has a recent history of good punctuality in
getting to transportation to his current IEP-related job site.
44. In Luis Cruz's current IEP, the section labeled "present status"
describes him as "very motivated . . . eager to learn and succeed . . .
responsible and very dependable . . . never afraid to take on more work
. . . always willing to help his teachers and peers . . . has many
friends in and outside of the program."
45. Mr. Cruz's IEP lists, among his strengths, that he is helpful,
cooperative, eager to learn, and friendly. The list of his needs in his
IEP do not include matters relating to motivation, attentiveness to
work, social skills, physical coordination, or self-esteem. Rather, his
IEP lists four needs: functional reading, consumer math, employability
skills, and problem solving skills.
46. The goals stated in Mr. Cruz's current IEP are consistent with his
stated needs. They focus on developing functional reading and
problem-solving skills and acquiring an understanding of basic math
required of consumers.
47. Mr. Cruz's IEP, the section on "program modifications and specially
designed instruction" reads, in its entirety, as follows: "project-based
learning; calculator to enhance math computation; directions given
verbally and in small, sequential steps to aide in understanding; job
coaching at worksites."
48. Mr. Cruz's IEP, the section on "related services" reads, in its
entirety, as follows: "Transportation: will be provided by Chester/Upland
49. The IEP includes information relating to the desired post-education
outcome of Mr. Cruz being prepared to be employable. These are referred
to as transition goals.
50. In Mr. Cruz's case, the section of the IEP that gives background
for transition planning reads as follows:
DESIRED POST-SCHOOL OUTCOMES: Define and project the
desired post-school outcomes as identified by the
student, parent and IEP team for these areas:
Community Living, Employment or Postsecondary
Education/Training, or both.
1. Post Secondary Education/Training (Define the outcome or explain why
it's not needed): Luis speaks of going into the army in Puerto Rico when
he graduates. He does not express a desire for further education or
2. Employment (Define the outcome or explain why it's not needed): Luis
does say that he would like to have employment for a good salary when he
leaves school, however, he is not clear on what type of job would
3. Community Living (Define the outcome or explain why it's not
a) Residential: Luis currently lives with his mother,
stepfather, and brothers and sisters. He is very
caring and expresses a feeling of responsibility to
all his family members. He does not talk much about
his own future, accept [sic] that he says that maybe
someday he would like to have a nice house.
b) Recreation/Leisure: Luis plays many sports at the
high school, including, football, wrestling and
baseball and track. He has become friends with many of
the team players and is often socializing with them in
the hallways during the school day. Luis continues to
require extra-curricula [sic] activities, such as
sports, as part of his need for socialization and
educational outcomes provided in accordance with IDEA
regulations. Luis does not go to school dances or talk
yet about dating. He does say that he is waiting for
all that for after high school.
This reference to "extra-curricula [sic] activities, such as sports",
which appears in a section of the IEP that is intended to provide
background about post-school aspirations and not to prescribe special
education or related services, is all that is offered from the education
records of Luis Cruz as a basis for a federal right to compete in
interscholastic athletics under IDEA.
51. After Ridley became aware of Mr. Cruz's ineligibility to
participate in interscholastic athletic contests, the IEP team did not
take any steps to provide alternatives for recreation, for
extra-curricular activities, or for maintaining Mr. Cruz's good
pre-employment habits such as his punctuality.
52. There are extracurricular programs at Ridley other than sports in
which Mr. Cruz could participate and through which he could interact with
peers who do not have disabilities.
53. The P.I.A.A. Age Rule affects a student's eligibility to
participate in interscholastic athletic contests, but does not affect a
student's eligibility to participate in extra-curricular activities such
as pre-season practices, regular-season practices, non-P.I.A.A.
competitions, wrestle-offs, intramural scrimmages and other intramural
events, or other contests in which the team participates that are not
governed by P.I.A.A. rules.
54. Although not required by the P.I.A.A. Age Rule, Ridley has a policy
that has precluded Mr. Cruz from participating in practices and other
events in which the team participates, on account of Mr. Cruz's age.
Ridley has continued to apply that policy to Mr. Cruz notwithstanding
Ridley's knowledge that Ridley's policy was not compelled by P.I.A.A.
II. CONCLUSIONS OF LAW
The plaintiffs claim that defendant has violated (1) the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et. seq.;
(2) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
et. seq.; (3) the Americans with
Disabilities Act (ADA),
42 U.S.C. § 12101, et. seq.; and (4) 42 U.S.C. § 1983.
Plaintiff has no constitutional right to participate in interscholastic
sports, both sides agree. Plaintiff argues in his § 1983 claim,
however, that since sports is included as an integral part of his IEP and
therefore is related to his constitutional right to education, the
privilege of participating in sports is transformed into a federally
protected right. Plaintiffs cite Crocker v. Tennessee Secondary Sch.
Athletic Ass'n, 735 F. Supp. 753 (M.D.Tenn. 1990), but this case is
inapposite as plaintiff's counsel should clearly recognize. In Crocker,
the plaintiff had requested a due process hearing in connection with his
IEP. An administrative judge then ordered that plaintiff must be allowed
to participate in extracurricular activities. No appeal was taken from
this order. Id. at 758.
In this case, as defendant points out, plaintiff has not exhausted
administrative remedies before seeking relief under IDEA. (See
20 U.S.C. § 1415 dealing with procedural safeguards).
Accordingly, even if plaintiff's theory that the inclusion of
interscholastic sports in his IEP transforms the right to participate in
interscholastic sports into a federally protected right is a legally
correct position, it is inapplicable in this case where plaintiff failed
to exhaust administrative remedies before seeking relief under IDEA.
With respect to the Rehabilitation Act, 29 U.S.C. § 794(a)
provides in part that
no individual with a disability shall be subjected to
discrimination under any program or activity receiving
federal financial assistance. There is no evidence
that the defendant receives federal financial
assistance. The analysis in Cureton v. National
Collegiate Athletic Association, 198 F.3d 107, 118 (3d
Cir. 1999), although involving Section 601 of Title
VI, still compels the conclusion that the P.I.A.A.
which receives no federal financial assistance is not
liable under the Rehabilitation Act.*fn1
The only remaining claim of plaintiff is under the ADA. The P.I.A.A.
is, in my opinion, a public entity under Title II of that Act and
plaintiff's claim should be viewed according to its provisions. Thus, the
applicable section of the ADA provides:
§ 12132. Discrimination.
Subject to the provisions of this subchapter, 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.
The term "qualified individual with a disability" is defined at §
12131(2) as follows: