The Issue

The December 11, 2015 settlement of a disabilities-related lawsuit, Kempf v. Michigan High School Athletic Association, illustrates the legal issues that prompted the U.S. Department of Education’s Office for Civil Rights (OCR) to issue its January 25, 2013 “Dear Colleague” letter clarifying the sports participation rights of students with disabilities. The case also demonstrates the value of governing bodies and school districts adopting a collaborative approach to developing and implementing reasonable accommodations for disabled students in order to maximize their opportunity to participate in sports on a level playing field with other student-athletes.

The OCR’s 2013 directive cites a U.S. General Accountability Office (GAO) study published in 2010 concluding that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools and sets forth a summary of federal disability law requirements applicable to direct or indirect recipients of federal funds such as school districts and state athletics or activities associations. The focus of the guidance is on the duty to provide reasonable accommodations to ensure both equal opportunity for disabled students to participate and equal opportunity during participation. The document is filled with common sense examples of easy-to-implement modifications to athletics competitions such as visual cues for a hearing impaired track athlete being used simultaneously with a starter pistol at the beginning of races, alteration of the two-hand touch rule for a one-handed swimmer, and school assistance with glucose testing and insulin administration for a diabetic student-athlete. The full text of the OCR Dear Colleague letter is available at www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf.

An examination of the Kempf lawsuit highlights the responsibilities of governing bodies and school districts to students based on three key pieces of federal legislation – Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act of 1990 (ADA), and the Individuals with Disabilities Education Act of 1990 (IDEA).

Kempf v. The Michigan High School Athletic Association: The Dispute

Ellis Kempf, 18, is a hearing impaired wrestler at Royal Oak (Michigan) High School who competes in the 152-pound weight class and serves as the captain of his school’s varsity squad. At age 2, he suffered a 100% loss of his hearing after a life-threatening bout of meningitis, and at age 5, he received cochlear implants that partially restored his hearing. However, for safety reasons, he cannot wear the external cochlear hardware during matches, leaving him completely deaf and unable to hear his coach or the referee.

During non-sanctioned competitions, Kempf had been using an American Sign Language interpreter provided by his district, the Royal Oaks Schools, and the interpreter was allowed to move freely around the perimeter of the 28-foot-diameter Active Wrestling Circle on the mat so that Kempf could maintain eye contact with him regardless of Kempf’s body position during the match. However, during MHSAA-sanctioned competitions, the interpreter was restricted to the coach’s box at the corner of the mat where he was often out of Kempf’s line of sight, resulting in an inability to access instructions from his coach being communicated by the interpreter, to receive information from the referee via the interpreter, and often to even know when matches began and ended. The MHSAA argued that the intent of limiting the interpreter to the coach’s box was a safety rationale – to prevent a collision between the interpreter and the wrestlers or the referee.

Following a year of unsuccessfully requesting an accommodation from the MHSAA to allow his sign language interpreter to move around the perimeter of the mat in order to maintain eye contact with him, on December 3, 2015, Kempf filed a lawsuit in a federal district court against the MHSAA alleging violations of Section 504, the ADA and the Michigan Persons with Disabilities Civil Rights Act.

Disabilities Law Applied To Sports

Section 504 and the ADA require that “reasonable accommodations” must be provided for an individual who can establish that he has a “disability” and that he is “otherwise qualified” to participate in the sport or activity in question. A disability is defined in the statutes and in cases interpreting those laws as “a physical or mental impairment limiting one or more major life activities.” Otherwise qualified is defined as “satisfying all of the essential skill, ability, physical and eligibility requirements for participation either in spite of the disability or with reasonable accommodations for the disability.” The IDEA also supports the mandate of “reasonable accommodations” for a disabled student-athlete, especially if an Individualized Education Plan (IEP) created pursuant to the statute sets forth in its Related Services section a recommendation that the student in question participate in the sport or activity in question. Most state civil rights laws addressing disabilities also require reasonable accommodations to support the participation by a disabled student in sports or other school extracurriculars.

Therefore, the key issue in most disability-related disputes between a student and a governing body or school district is the determination as to whether the requested accommodation is considered “reasonable.” The OCR and the courts have approached this issue by defining through rulings three categories of accommodations that are considered to be patently unreasonable and which thus do not have to be granted:

1. Fundamental Alterations: Requested modifications which would as a matter of course necessarily transform the nature of the sport or activity in question are considered unreasonable and do not have to be granted. In the Kempf dispute, the issue would be whether granting a sign language interpreter 360-degree access around the perimeter of the Active Wrestling Circle would significantly change the nature of the match taking place inside the 28-foot-diameter ring or provide the hearing impaired wrestler with an unfair competitive advantage.

2. Undue Financial or Administrative Burdens: Requested accommodations for which implementation would impose an excessive burden on a governing body or school district are considered unreasonable and do not have to be granted. In the Kempf dispute, the issue would be whether allowing a sign language interpreter adequate opportunity to move around the mat in order to maintain eye contact with a deaf wrestler would result in significant additional costs or require the addition of extensive extra administrative oversight.

3. Safety or Health Risk: Requested modifications which would present an excessive risk to the safety or health of the disabled person or other participants based on objective medical evidence, careful medical reasoning and sound medical judgment are considered unreasonable and do not have to be granted. In the Kempf dispute, the issue would be whether simple safeguards could be implemented to permit a sign language interpreter to move around the perimeter of the Active Wrestling Circle, but at the same time ensure that no contact would occur endangering the safety of the participants, coaches, scorers or referee.

Terms of the Settlement in the Kempf Lawsuit

On December 11, 2015, Kempf and the MHSAA entered into a Consent Decree specifying that a sign language interpreter will be allowed to be present at all association-sanctioned matches involving a hearing impaired wrestler and that the interpreter will be permitted 360-degree access around the 28-foot-wide Active Wrestling Circle on the mat. In settings where the venue and the mat are large enough, the interpreter will be required to stay at all times at least 6 feet away from the Active Wrestling Circle, while in smaller settings the appropriate distance will be determined by the referee in conjunction with the interpreter, with the emphasis on ensuring that the interpreter avoids any contact or interference with the wrestlers, scorers, coaches and referee. The full-text of the Consent Decree is available at www.mhsaa.com/portals/0/Documents/WR/sign%20language.pdf.

The timely resolution of the Kempf lawsuit illustrates a best-practices strategy for any governing body or school district approached by a disabled student requesting an accommodation to facilitate his or her participation in any school athletics or extracurricular activity. The advisable course of action is to adopt a collaborative attitude free of any rigid, inflexible preconceptions and focus on creative, common-sense problem-solving oriented solely toward developing a resolution that is in the best interests of the young people affected by the decision. In a situation like Kempf’s, where it is indisputably evident that granting the requested accommodation will not fundamentally alter the nature of the sport of wrestling, will not impose any significant financial or administrative burden on the governing body or school district, and will require only minimal, easy-to-implement safeguards in order to protect the safety of all involved, the wisest course of action is to acknowledge that the requested accommodation is reasonable and provide the modification with enthusiastic support for the participation opportunity it will present for a young person already valiantly battling to overcome the challenges of a disability.