Scott D. Maddox
Plymale & Maddox, P.L.L.C. Roslyn Clark-Payne
Huntington, West Virginia The Wooton Law Firm
Attorney for the Appellee Beckley, West Virginia
Attorney for the Appellant
JUSTICE ALBRIGHT delivered the opinion of the Court.
1. 'Unless an absolute
right to injunctive relief is conferred by statute, the power to grant or
refuse or to modify, continue, or dissolve a temporary or a permanent injunction,
whether preventive or mandatory in character, ordinarily rests in the sound
discretion of the trial court, according to the facts and the circumstances
of the particular case; and its action in the exercise of its discretion will
not be disturbed on appeal in the absence of a clear showing of an abuse of
such discretion.' Syl. pt. 11, Stuart v. Lake Washington Realty, 141
W.Va. 627, 92 S.E.2d 891 (1956). Syl. Pt. 1, G Corp, Inc. v. MackJo,
Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995).
2. Three factors to
be considered in deciding whether to address technically moot issues are as
follows: first, the court will determine whether sufficient collateral consequences
will result from determination of the questions presented so as to justify
relief; second, while technically moot in the immediate context, questions
of great public interest may nevertheless be addressed for the future guidance
of the bar and of the public; and third, issues which may be repeatedly presented
to the trial court, yet escape review at the appellate level because of their
fleeting and determinate nature, may appropriately be decided. Syl.
Pt. 1, Israel by Israel v. West Virginia Secondary Schools Activities Commission,
182 W.Va. 454, 388 S.E.2d 480 (1989).
3. Under the West Virginia
Human Rights Act, W. Va.Code, 5-11-9 (1992), reasonable accommodation means
reasonable modifications or adjustments to be determined on a case-by-case basis
which are designed as attempts to enable an individual with a disability to
be hired or to remain in the position for which he or she was hired. The Human
Rights Act does not necessarily require an employer to offer the precise accommodation
an employee requests, at least so long as the employer offers some other accommodation
that permits the employee to fully perform the job's essential functions.
Syl. Pt. 1, Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 479 S.E.2d
4. To state a claim
for breach of the duty of reasonable accommodation under the West Virginia
Human Rights Act, W. Va.Code, 5-11-9 (1992), a plaintiff must alleged the
following elements: (1) The plaintiff is a qualified person with a disability;
(2) the employer was aware of the plaintiff's disability; (3) the plaintiff
required an accommodation in order to perform the essential functions of a
job; (4) a reasonable accommodation existed that met the plaintiff's needs;
(5) the employer knew or should have known of the plaintiff's need and of
the accommodation; and (6) the employer failed to provide the accommodation.
Syl. Pt. 2, Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 479 S.E.2d
5. When a state Commission
is authorized to promulgate 'reasonable' regulations for high-school athletics,
and the Commission creates a scheme to prevent students' being held back in
school for athletic purposes, such a scheme is applied unreasonably when the Commission refuses to consider legitimate academic
reasons for a student's repeating a grade in junior high school. W.Va.Code,
18-2-25 . Syllabus, Hamilton v. West Virginia Secondary Schools
Activities Commission, 182 W. Va. 158, 386 S.E.2d 656 (1989).
6. When a student
has a disability requiring special assistance or services to enable participation
in school-sanctioned extracurricular activities, a request for assistance
or services can be made on the student's behalf to any school official familiar
with the student's needs. That school official then has the responsibility
to inform the county board of education's director of special education of
the request so that appropriate action can be taken. Syl. Pt. 1, State
ex rel. Lambert by Lambert v. West Virginia State Bd. of Education, 191
W.Va. 700, 447 S.E.2d 901 (1994).
7. Because age alone does not determine one's qualifications for interscholastic sports competition and discrimination against exceptional students should be avoided where a reasonable accommodation of disabilities may be made, the otherwise salutary age nineteen rule, set forth in West Virginia Code of State Regulations § 127-2-4.1, may be waived. Waiver should be granted where a student's disabilities have delayed his progression through the education process and it is shown that the participation of the student requesting a waiver will not materially alter the quality of the interscholastic sports competition involved. Applications for waivers should be considered by the West Virginia Secondary Schools Activities Commission on a case by case basis and granted or refused after a thorough evaluation of all relevant factors, including, but not necessarily limited to the age of the student; the athletic experience of the student; the degree to which the student presents a risk of harm to other competitors due to his or her strength, size, or speed; the nature of the sport; the degree to which fair competition among high school teams would be impacted by the student's participation; and whether the student's individualized education plan, if any, contains a provision requiring sports participation.
This is an appeal by the
West Virginia Secondary School Activities Commission (hereinafter WVSSAC)
from an August 28, 2001, order of the Circuit Court of Wayne County granting
a permanent injunction prohibiting the WVSSAC from enforcing its age rule
against Appellee Jarrett Baisden, a senior at Spring Valley High School during
the 2001-2002 school year who sought to play high school football at the age
of nineteen. On appeal to this Court, the WVSSAC contends that the lower court
erred by ruling that the age rule was unenforceable against Mr. Baisden. Based
upon the fact that Mr. Baisden has graduated and is no longer a student at
Spring Valley High School, we find these issues surrounding his eligibility
to play high school football technically moot. However, due to the importance
of the issues raised and the probability that such issues will affect the
rights of other students facing similar circumstances, we herein address the
issues presented by Mr. Baisden and ultimately reverse the decision of the
(See footnote 1)
The WVSSAC now contends that
the lower court erred by granting the injunction and ruling that the age rule
was unenforceable against Mr. Baisden.
Similarly, in the present case,
based upon the fact that the circumstances of Mr. Baisden's request for a waiver
from the age nineteen rule will certainly be encountered by other students,
this case satisfies the third factor identified in Israel. This issue
may be repeatedly presented to the trial court, yet escape review at the
appellate level because of [its] fleeting and determinate nature. . . .
182 W. Va. at 455, 388 S.E.2d at 481. We consequently determine that the technical
mootness of this issue does not preclude our consideration thereof.
Where students have alleged that application of age limitations effectively discriminated against them because of their disabilities, or more precisely because of the delays in education occasioned by their disabilities, courts in state and federal jurisdictions throughout the country have not been uniform in their responses. The primary point of controversy is whether the disabled student is qualified within the meaning of that term in the applicable statutes, i.e., whether the students are capable of meeting the essential requirements of the program with or without reasonable accommodations. In the ADA, for instance, the term qualified individual with a disability is defined at section 12131(2) as follows:
The term qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Some courts encountering this question have approached the definitions quite
literally, holding that disabled students were not entitled to injunctive relief
under either statute because (1) they were incapable of satisfying an essential
program requirement, namely the age limit itself; (2) the only accommodation
available to achieve qualification would be a total waiver of the age limit,
and such waiver would constitute a fundamental alteration in the program not
required by anti-discrimination legislation; and/or (3) enforcement of the age
rules simply was not discrimination because the limits were based
only on age and were neutral, applied equally to disabled and non-disabled students.
See Sandison v. Michigan High School Athletic Ass'n, Inc., 64 F.3d 1026
(6th Cir. 1995); Pottgen v. Missouri State High School Activities
Ass'n, 40 F.3d 926 (8th Cir. 1994), fully discussed below.
Other courts, however, have granted preliminary injunctions in such cases, as discussed below, reasoning that (1) although an age limit might be considered neutral with respect to disabled and non-disabled students, its application to a disabled student constituted discrimination where the student's disability was the only reason the student was still in school beyond the age limit; and (2) principles of reasonable accommodation required that individualized assessments be provided to disabled students who exceeded the age limit because their disabilities had required them to remain in school past the age limit. The assessments would be designed to examine the issue of whether allowing them to participate in the sport would undermine the legitimate purposes of the age limit.
This Court has not previously
addressed the precise issue facing us today. In applying the requirements of
the West Virginia Human Rights Act in Skaggs v. Elk Run Coal Co., Inc., 198
W. Va. 51, 479 S.E.2d 561 (1996), however, this Court addressed the discrimination
and reasonable accommodation issues within the context of employer- employee
relations and announced the following at syllabus point one:
Under the West Virginia Human Rights Act, W. Va.Code, 5-11-9 (1992), reasonable accommodation means reasonable modifications or adjustments to be determined on a case-by-case basis which are designed as attempts to enable an individual with a disability to be hired or to remain in the position for which he or she was hired. The Human Rights Act does not necessarily require an employer to offer the precise accommodation an employee requests, at least so long as the employer offers some other accommodation that permits the employee to fully perform the job's essential functions.
Thus, the Skaggs Court mandated an individualized, case-by-base analysis of the reasonable accommodation issue one the claim for breach of duty to so provide was properly made. Syllabus point two of Skaggs described the requirements for stating a claim for breach of the duty to provide reasonable accommodations, explaining as follows:
To state a claim for breach of the duty of reasonable accommodation under the West Virginia Human Rights Act, W. Va.Code, 5-11-9 (1992), a plaintiff must alleged the following elements: (1) The plaintiff is a qualified person with a disability; (2) the employer was aware of the plaintiff's disability; (3) the plaintiff required an accommodation in order to perform the essential functions of a job; (4) a reasonable accommodation existed that met the plaintiff's needs; (5) the employer knew or should have known of the plaintiff's need and of the accommodation; and (6) the employer failed to provide the accommodation.
In Hamilton v. West Virginia
Secondary Schools Activities Commission, 182 W. Va. 158, 386 S.E.2d 656
(1989), this Court rejected the WVSSAC's blanket application of the eight
semester rule enacted to ban red-shirting for athletic advantage.
(See footnote 6)
In the syllabus of that opinion, this Court explained:
When a state Commission is authorized to promulgate reasonable regulations for high-school athletics, and the Commission creates a scheme to prevent students' being held back in school for athletic purposes, such a scheme is applied unreasonably when the Commission refuses to consider legitimate academic reasons for a student's repeating a grade in junior high school. W.Va.Code, 18-2-25 .
This Court in Hamilton stated: What makes the scheme unreasonable is the Commission's refusal to consider the circumstances surrounding a student's being held back. Id. at 160, 386 S.E.2d at 658. Mr. Hamilton was simply being punished for having failed the ninth grade.
Id. The Court concluded that such blanket application of otherwise
legitimate rule could not be condoned and that the purposes of the Commission's
rules _ to prevent red-shirting _ may be accomplished in a more reasonable
and less restrictive way. Id. at 161, 386 S.E.2d at 659.
In State ex rel. Lambert
by Lambert v. West Virginia State Board of Education, 191 W.Va. 700, 447
S.E.2d 901 (1994), this Court addressed the issue of the modifications to
be effectuated in the education setting where a student required extra assistance
to allow her to fully participate. In syllabus point one of Lambert,
this Court explained:
When a student has a disability requiring special assistance or services to enable participation in school-sanctioned extracurricular activities, a request for assistance or services can be made on the student's behalf to any school official familiar with the student's needs. That school official then has the responsibility to inform the county board of education's director of special education of the request so that appropriate action can be taken.
See also Syl. Pt. 3, Board of Educ. v. West Virginia Human Rights Com'n, 182 W.Va. 41, 385 S.E.2d 637 (1989) (Hearing-impaired children, between five and twenty-three years of age, are handicapped for purposes of W.Va. Code, 18-20-1, as amended. Therefore, when a county board of education fails to provide an appropriate education for a hearing-impaired child between five and twenty-three years of age, such failure constitutes unlawful discrimination based upon handicap and is violative of W.Va. Code, 5-11-9(f), as amended).
In one of the seminal federal
cases dealing precisely with the issue raised in the present case, the Eighth
Circuit Court of Appeals in Pottgen applied Title II statutes and ruled
that a student who had repeated two grades in elementary school due to learning
disabilities would not be granted an injunction against enforcement of an age
nineteen rule. The majority in Pottgen reasoned that prior to deciding
whether a student was a qualified individual under the ADA, it must
first determine whether the age limit was an essential eligibility requirement
by reviewing the importance of this requirement in the interscholastic baseball
program. 40 F.3d at 931. The Pottgen court found that the age limit was
an essential eligibility requirement which could not be waived for the disabled
student. The age limit served to (1) reduce any competitive advantage to teams
with older athletes; (2) protect younger students from injury; (3) discourage
students from delaying their education to enhance athletic performance; and
(4) prevent coaches from red-shirting students. Id. at 929. The Pottgen
court found that the only possible accommodation, waiver of the age limit, would
be unreasonable and would constitute a fundamental alteration in the baseball
program, a result not required by the ADA. Id. at 929- 30. Since no reasonable
accommodation could be made, plaintiff was not otherwise qualified.
The dissent in Pottgen undertook a different line of reasoning, contending that the primary question to be answered is whether an age limit is essential to a program. The dissent quoted the Code of Federal Regulations as follows:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
40 F.3d at 932 (Arnold, C. J., dissenting), quoting 28 C.F.R. § 35.130(b)(7) (1994). While the majority in Pottgen found that such individualized inquiry should not be made until the general essentiality determination was made, the dissent reasoned that the inverse was true. (See footnote 7) The dissent reasoned that the courts are obligated by statute to look at plaintiffs as individuals before they decide whether someone can meet the essential requirements of an eligibility rule like the one before us in the present case. Id. at 931. [I]f a rule can be modified without doing violence to its essential purposes, as the District Court has found in the present case, I do not believe that it can be 'essential' to the nature of the program or activity to refuse to modify the rule. Id. at 932-33. Further, the dissent concluded that [i]f an eligibility requirement can be reasonably modified to make someone eligible, that person is a qualified individual. Id. at 933.
The reasoning of the majority
in Pottgen was employed one year later in Sandison. In that
case, the Sixth Circuit held that nineteen-year-old high school students,
delayed in finishing high school due to learning disabilities, had not been
excluded from participation solely by reason of disability, within
the meaning of federal anti-discrimination legislation. 64 F.3d at 1034. The Sandison court held that the age
rule was neutral with respect to disability and had been neutrally applied
by association. It further reasoned that waiving the age rule would fundamentally
alter the nature of track and field events by allowing older students to participate.
Id. at 1035; see also McPherson v. Michigan High School Athletic
Ass'n, Inc., 119 F.3d 453 (6th Cir. 1997) (holding that eight-semester
eligibility rule did not violate ADA); Rhodes v. Ohio High School Athletic
Ass'n., 939 F. Supp. 584 (N.D. Ohio 1996) (holding that eight-semester
eligibility rule excluded students on the basis of age, not disability); Reaves
v. Mills, 904 F. Supp. 120 (W.D. N.Y. 1995) (finding no discrimination
in refusal to waive age nineteen rule); Cavallaro ex rel. Cavallaro v.
Ambach, 575 F. Supp. 171 (W.D. N.Y. 1983) (upholding refusal to waive
age nineteen rule in wrestling).
In Johnson v. Florida
High School Activities Ass'n, Inc., 899 F. Supp. 579 (M.D. Fla.1995) judgment
vacated on other grounds, 102 F.3d 1172 (11th Cir.1997), the Florida District
Court considered whether a disabled student could be excluded from participation
in sports because he was not age eligible. 899 F. Supp. at 582. Rather than
a blanket finding that the requirement was essential and that any waiver would
be unreasonable, the Johnson court required an individualized analysis
of the requirement, its underlying purposes, and the manner in which allowing
participation would affect those purposes. Id. at 585. The Johnson
court embraced the minority opinion expressed in Pottgen, and consequently
concluded that where the particular student in question was not a safety hazard,
was an average player, and had less experience than other players, waiving
the age rule would not fundamentally alter the nature of the program. Johnson, 899 F.
Supp. at 586; see also University Interscholastic League v. Buchanan,
848 S.W.2d 298 (Tex.Ct.App.1993) (waiver of age eligibility rule was reasonable
accommodation); Booth v. Univ. Interscholastic League, 1990 WL 484414
(W.D.Tex. 1990) (waiver of age eligibility rule was reasonable accommodation).
In Dennin v. Connecticut
Interscholastic Athletic Conference, Inc., 913 F.Supp. 663 (D.Conn.),
judgment vacated on other grounds, 94 F.3d 96 (2d Cir.1996), the court
determined that the student would be deemed otherwise qualified
if with reasonable accommodation he could meet the necessary requirements
of the program at issue. 913 F.Supp. at 669. The athletic conference had submitted
the literalists' argument that to be otherwise qualified, the
student must meet the age requirement. The court found that such assertion
essentially begged the question, reasoning that if the individual does not
meet an essential requirement due to the effects of his disability, it remains
to be determined whether a reasonable accommodation, including a modification
of the age rule, would enable the individual to become otherwise qualified.
Id. at 668.
The Dennin court
conceded that an accommodation cannot be considered reasonable
if it imposes undue financial or administrative burdens or fundamentally
alters the nature of the program. Id., quoting Pottgen,
40 F.3d at 929. Thus, the question presented is whether waiver of the age requirement fundamentally alters
the program or imposes undue burdens. Id.
The reasoning of Johnson and the dissent in Pottgen is persuasive. It would be an anathema to the goals of the Rehabilitation Act to decline to require an individualized analysis of the purposes behind the age requirement as applied to Dennin. Failure to perform such an analysis would exalt the rule itself without regard for the essential purposes behind the rule.
Id. at 668-69. The Dennin court also addressed the burden imposed upon the defendant in requiring individual consideration of each waiver application. The court explained that the athletic conference was not required to grant waivers to all students who fail to meet the age requirement. However, it would be required under the Rehabilitation Act to give the disabled individual consideration, including to Dennin, as he falls within the Act. (See footnote 8) Id. at 669.
In addressing issues of
whether the student was being discriminated against on the basis of his disability,
the court stated that the sole reason that Dennin is in school
at nineteen is due to his disability. But for his disability, his fourth year
of athletic participation . . . would not have been when he had become nineteen
but at age eighteen. 913 F.Supp. at 669. Defendant's argument
would result in the rule insulating itself from scrutiny. Id., quoting
Booth, 1990 WL 484414 at *3 ([t]o accept such an analysis would
mean that any student who fails to meet [defendant's] requirement as a result
of a past handicap is not 'otherwise qualified,' and therefore is not protected
by the Rehabilitation Act).
The Dennin court
also recognized that [a]lthough there generally is no constitutional
right to participate in interscholastic sports, it has been held that inclusion
of such activity in an IEP transforms it into a federally protected right.
Id. at 671, citing T. H. v. Montana High School Ass'n, 1992
WL 672982 at *4 (D. Mont. 1992); see also M. H., Jr. v. Montana
High School Ass'n, 929 P.2d 239 (Mont. 1996) (holding that under the Individuals
with Disabilities Education Act, participation in sports over the age limit
must be permitted where such participation is required by a student's individualized
education program (IEP)).
(See footnote 9)
The minority view of Pottgen
was also implemented by the Seventh Circuit Court of Appeals in Washington
v. Indiana High Sch. Athletic Ass'n, 181 F.3d 840 (7th Cir. 1999), cert.
denied, 528 U.S. 1046 (1999). In that case, a learning disabled student
brought an action alleging that athletic association's failure to grant a waiver
of its eight- semester eligibility rule violated the ADA. The Seventh Circuit
Court of Appeals addressed the issue of continued participation by students
after eight semesters of high school and concluded as follows: In short,
we believe that the analysis of Chief Judge Richard Arnold in dissent in the
Pottgen case . . . is more compatible with the congressional intent.
Id. at 850.
The Washington court referenced the United States Supreme Court's decision in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), (See footnote 10) and explained:
that the individualized approach is consistent with the protections intended
by the ADA. The entire point of Arline's statement that a person is otherwise
qualified if he is able to participate with the aid of reasonable accommodations
is that some exceptions ought to be made to general requirements to allow opportunities
to individuals with disabilities. To require a focus on the general purposes
behind a rule without considering the effect an exception for a disabled individual
would have on those purposes would negate the reason for requiring reasonable
181 F.3d at 851. The Washington court refused to accept the suggestion that liability under Title II of the Discrimination Act must be premised on an intent to discriminate on the basis of disability. (See footnote 11) Id. at 846.
The Washington court
also relied upon the United States Supreme Court's interpretation of anti-discrimination
legislation in Alexander v. Choate, 469 U.S. 287 (1985). The Alexander
Court had stated as follows: Discrimination against the handicapped
was perceived by Congress to be most often the product, not of invidious animus,
but rather of thoughtlessness and indifference _ of benign neglect. 469 U. S. at
295. The Alexander Court also recognized that much of the conduct
that Congress sought to alter in passing the Rehabilitation Act would be difficult
if not impossible to reach were the Act construed to proscribe only conduct
fueled by a discriminatory intent. Id. at 296-97.
Recognizing the divergence
of opinion throughout various jurisdictions dealing with this issue, the Washington
court concluded that the minority opinion in Pottgen most closely paralleled
congressional intent and determined that the better view is to ask whether
waiver of the rule in the particular case at hand would be so at odds with
the purposes behind the rule that it would be a fundamental and unreasonable
change. 181 F.3d at 850.
(See footnote 12)
In Cruz v. Pennsylvania,
157 F.Supp.2d 485 (E.D. Pa. 2001), the Pennsylvania District Court encountered
an action brought by a disabled student under the Individuals with Disabilities
Education Act, § 615, as amended, 20 U.S.C.A. § 1415. The Cruz
court found that modification of an age rule to permit a student to participate in sports
would not fundamentally alter the nature of the competition. Id.
at 499. As in the case presently before this Court, the contention was made
that the age rule was essential in Cruz to protect athletes from unfairness
and to maintain uniformity of standards with regard to the ages of the participants.
The court reasoned: It now seems clear that a rule is essential to a
program unless it can be shown that the waiver of it would not fundamentally
alter the nature of the program. This determination must be made on an individual
basis. Id. The Cruz court also considered the burden to
be placed on the athletic administrators in examining individual requests
for waivers. The court noted that the administrators would not be overly burdened
by such determinations, particularly noting that if the student seeking the
waiver had an IEP requiring participation in interscholastic sports, no weighing
of relevant considerations would be required. Id. at 500.
In applying those principles
to the facts of the present case, we must reverse the determination of the lower
court. While we decide, through this opinion, that individualized assessments
are required in cases of this nature and that reasonable accommodations may
be made through waiver of the age nineteen rule under certain circumstances,
we do not believe that the facts of this case justify waiver as an accommodation.
Mr. Baisden turned nineteen on July 27, 2001. He is six feet four inches tall
and weighs 280 pounds. He runs the forty- yard-dash in 5.3 seconds. His participation
in high school football would permit him to compete in this contact sport against
students approximately five years younger. The safety of younger, smaller, more
inexperienced students would be unreasonably compromised. In our view, this
would fundamentally alter the structure of the interscholastic athletic program,
a result which is not required by reasonable accommodation standards in anti-discrimination
law. Consequently, we reverse the determination of the lower court.
(See footnote 15)
Title III of the ADA similarly prohibits discrimination
by places of public accommodations, with places of public accommodations defined
at 42 U.S.C. § 12181(7).
of these sections are very similar in application. The ADA is patterned to
some extent upon the Rehabilitation Act; thus, decisions explaining the Rehabilitation
Act and its regulations provide effective guidance regarding the meaning
of the same terms in the new law. Vande Zande v. Wisconsin Dep't of
Admin., 44 F.3d 538, 542 (7th Cir.1995).
any person being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any place of public accommodations
(A) Refuse, withhold from or deny to any individual because of his or her race, religion, color, national origin, ancestry, sex, age, blindness or disability, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of the place of public accommodations[.]
This Court in Israel found that for the purposes of the Human Rights Act, the WVSSAC is a place of public accommodations. 182 W.Va. at 464, 388 S.E.2d at 490.
It is the cynical and pernicious manipulation of
a student's academic standing for the derivative athletic glory of adults
_ over-zealous coaches and parents. The scheme is to take young athletes of
star quality, hold them back in school for a year, keep them off the field,
and have them use that year to gain bulk, strength, and maturity. When the
student is led back to the field after a year, he makes a more impressive
show for coaches, parents, fans, and college recruiters. Red-shirting subverts
the student's normal academic progress to unworthy and improper ends. It is
a corrupt and mean-spirited practice.
Hamilton, 182 W. Va. at 160, 386 S.E.2d at 658.
In Dennin's case, such consideration
would be relatively simple. In some cases it would be more complex, depending
on the sport in question, the size, agility, strength and endurance of the
individual, and whether the quality of his/her athletic capacity/capability
is enhanced by his/her age beyond eighteen. That it may prove difficult in
some cases does not substantiate the claim that it would be unduly burdensome
or destructive of the purpose of the rule.
913 F. Supp. at 669.
In School Board of Nassau County v. Arline, 480
U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), the Supreme Court recognized
that there is a need to balance the interests of people with disabilities
against legitimate concerns for public safety. Although persons with disabilities
are generally entitled to the protection of this part, a person who poses
a significant risk to others will not be 'qualified,' if reasonable modifications
to the public entity's policies, practices, or procedures will not eliminate
The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability. It must be based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or on the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. This is the test established by the Supreme Court in Arline. Such an inquiry is essential if the law is to achieve its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks.
28 C.F.R. Pt.35, App.A, 520 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services).