The parents of Anthony Starego, a Brick Township High School placekicker with multi-symptom autism and related cognitive impairments, filed an appeal Wednesday of a federal court ruling that denied their motion for a preliminary injunction that would have allowed their son to play a fifth season of high school football.
Raymond Starego and his wife Reylene filed a federal lawsuit in April on Anthony’s behalf against the New Jersey State Interscholastic Athletic Association and the State Department of Education, claiming both violated Anthony’s civil rights under the Americans with Disabilities Act, which states in part that reasonable accommodations must be made to include those with disabilities in interscholastic competition.
U.S. District Judge Freda L. Wolfson, who reviewed more than 200 pages of legal briefs and listened to nearly four hours of testimony from Starego’s father and freshman football coach in her Trenton courtroom last month, issued a 29-page opinion on Tuesday.
“Plaintiffs have failed to show that the Association’s decision denying Anthony a waiver violates the ADA,” Wolfson wrote. “Indeed, the Court’s focus is on whether Anthony was provided with equal access and opportunity to play football afforded to every other student without a disability. That is the very essence of the ADA. And, I find that he was given such access and opportunity.”
Wolfson, however, also refuted all of the NJSIAA’s additional claims for denying Starego a waiver, and hinted she may have granted the injunction had the case before her been presented differently.
In addition to the association’s eight-consecutive-semester and age-restriction rules – partly in place to prevent “redshirting,” the practice of gaining a competitive advantage by sitting out a year while maturing – the NJSIAA rejected Starego’s appeal because football is a contact sport, he has the potential to be a difference-maker and as an incumbent starter he could displace a teammate.
“If this case were brought as an appeal of the Association’s decision – which it is not – limited to the issue whether the waiver was properly denied under the Association’s rules governing eligibility, as opposed to an ADA discrimination case, the result might be different,” Wolfson wrote.
Starego’s attorney, Gary S. Mayerson, founding partner of New York City-based Mayerson & Associates, the nation’s first law firm dedicated to representing children and adolescents with autism spectrum disorders and other developmental disabilities, has amended his claim, requesting Wolfson reconsider her decision “based upon many favorable findings the court made.”
“While we are obviously disappointed by the court’s ultimate conclusion not to grant the injunction, we are actually very pleased and grateful to see so many of the court’s findings in Anthony’s favor that collectively show the NJSIAA improperly refused Anthony’s waiver on grounds that were entirely rejected by the district court,” Mayerson said.
Mayerson has asked Wolfson for a summary judgment reversing the administrative adjudications of the NJSIAA and the commissioner of education as unfounded, or a stay pending an expedited appeal with a three-judge panel of the Third Circuit Court of Appeals in Philadelphia
“Our entire family is deeply saddened and extremely frustrated in the decision of the court,” Raymond Starego said. “The judge not only failed to affirm the NJSIAA decision, in her ruling she dismissed each and every reason the NJSIAA gave in their rejection of our request for a waiver.
“So, a federal judge has said you have no reason for denying him a waiver under your own rules but he still can’t play. Only in America can the NJSIAA have no good reason to deny him a waiver but still get to do what they want anyway.”
NJSIAA attorney Steve Goodell, who has not yet had an opportunity to review Mayerson’s latest court filing, said: “If he’s filing an appeal, that’s up to him. That’s his right. We certainly think that we can live with the judge’s original ruling.”
“This court ruling — which upholds both the NJSIAA decision and the opinion of the Commissioner of Education — helps resolve a difficult and weighty issue,” NJSIAA Executive Director Steve Timko said.
“The courts, commissioner of education and NJSIAA concur that the Americans with Disabilities Act requires equal treatment for all students, regardless of disability, and that the Brick (Township) High School program afforded Anthony the opportunity to participate in four meaningful years of competition. This case involved a compelling young man who has already accomplished a great deal. We wish him the best.”
Citing NJSIAA rules that don’t allow student-athletes to play a sport for more than eight consecutive semesters or to compete after turning 19, State Department of Education Commissioner Christopher Cerf in July upheld a March NJSIAA eligibility appeals committee ruling that denied Starego a waiver to play in 2013.
Starego, who turned 19 in June and has already played four seasons, functions like a fifth-grader academically because of his disabilities, which include ADHD.
A non-graded student with an Individualized Education Program (IEP) that, according to court filings, addresses football, Starego is not enrolled in a particular grade. He is entitled under federal law until age 21 to a free and appropriate public education including nonacademic and extracurricular activities.
Starego overcame insurmountable odds because of his disabilities to kick four extra points in a 28-27 upset of Toms River East last year and the winning field goal in the closing seconds of a 24-21 victory over Toms River North the following week.
Mayerson described Starego’s accomplishments in court filings as “fairly miraculous” and “simply astonishing.” Starego, whose story garnered national attention, was featured last fall on ESPN and also made an appearance on The Today Show.
As permitted by the NJSIAA, Starego began practice with teammates last month and has participated in all of Brick Township’s scrimmages. He can remain a team member, but is ineligible to compete.
Allowing Starego to compete in 2013 would compromise the ability of the NJSIAA and Cerf to govern scholastic sports and would not serve the greater good of the association’s 434 member schools, Deputy Attorney General of New Jersey Beth N. Shore, representing the State Department of Education, argued in court filings.
Mayerson argued Starego deserves “special treatment” through a limited one-year waiver as a reasonable accommodation under the ADA because he is an IEP student with a disability who would not otherwise be eligible to compete this fall.
Citing a 2001 U.S. Supreme Court ruling that the PGA Tour could not lawfully deny disabled golfer Casey Martin the option to ride in a golf cart between shots, Mayerson argued the NJSIAA failed, as mandated by the high court’s decision, to consider Starego’s personal circumstances in deciding whether to accommodate his disability.
Wolfson’s ruling hinged upon the issue of “reasonable accommodations.” The judge had an independent obligation to make an individualized determination whether Starego’s time on the Brick Township football team was “qualitatively similar” to other players. She determined Starego’s disabilities did not hinder his ability to play and mature over four seasons as a placekicker.
In her decision, Wolfson cited testimony from Dominick Marino, Starego’s freshman football coach, writing that she found his “testimony credible that Anthony did not significantly lag behind other members of the football squad, and his testimony further supports the fact that Anthony meaningfully participated in the football program beginning his freshman year.”
Marino, however, also testified that Starego’s “disability would hold him back (in practice and games) because he couldn’t do the function,” a statement that Raymond Starego said contradicts the decision.
Starego played freshman football in 2009, was a member of the jayvee squad in 2010 and 2011, and made the varsity team last fall. He became the team’s starting placekicker midway through the 2012 campaign.
Quarterback Marc Taylor, a 2003 Asbury Park graduate who set the Shore Conference’s single-season passing record as a junior, is believed to be the only football player in the NJSIAA’s 95-year history to compete in more than four seasons.
During the summer of 2002, the state education commissioner, on a due process technicality, overturned an NJSIAA eligibility appeals committee ruling that denied Taylor a waiver for a fifth year. Taylor played in at least one freshman football game at Asbury Park as an eighth grader, starting his eight-consecutive-semester clock before entering high school, which under NJSIAA rules meant his scholastic career should have ended at the conclusion of his junior season.
The redundancy of kicking extra points and field goals in practice suits Starego’s autism, whose core symptoms include repetitive behaviors.
In seventh grade, Starego couldn’t reach the goal line from 10 yards out. By eighth grade, he attempted three extra points in Pop Warner games, badly missing each.
After becoming a member of the Brick Township football program, however, everything suddenly and unexpectedly began to click, not just from the kicking tee, but in many aspects of Starego’s life.
Anger issues, biting, yelling and disruptive behavior were the norm for Anthony after the Staregos adopted him 16 years ago. Additionally, Starego was tactile sensitive, meaning the slightest touch would make him uncomfortable.
“After five or six years of school,” Raymond Starego said, “we were no closer to 2 plus 2 equals 4 than we were when we started.”
Starego, who trains under former Rutgers University kicker Lee McDonald, booted a career-long 33-yard field goal in a 6-3 loss to Lacey.
The greatest strides Starego made, however, were off the field, as Raymond Starego attributed his son’s academic and social progress largely to his membership on the football team.
Raymond Starego said his son cradled the special-teams game ball he received after his winning field goal last fall while saying out loud: “All my life I’ve been a knucklehead, and now I’m not a knucklehead anymore.”