The opinion of the court was delivered by: TELESCA
Plaintiff Doretha Reaves brings this action on behalf of her son Kelvin Reaves pursuant to Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., alleging that Kelvin has been discriminatorily denied eligibility to participate in interscholastic high school sports by reason of his alleged disability of mild mental retardation.
Kelvin, who turned nineteen years of age on August 16, 1995, was found ineligible to participate in interscholastic sports pursuant to a New York State regulation which prohibits students who turn nineteen before September 1 from participating in those activities. Plaintiff alleges that Kelvin was classified as "educable mentally retarded" at eight years of age and due to this disability he was forced to repeat the first grade. As a result, he remained one year behind the grade level for students of his age and turned nineteen years of age prior to his senior year in high school.
Plaintiff seeks a preliminary injunction
directing the defendants, the New York State Education Department ("Education Department") and Education Department Commissioner Richard Mills, to waive the age requirement for Kelvin and allow him to play in a football game scheduled to take place on November 11, 1995 and to participate in interscholastic sports for the remainder of the academic year. The Education Department and Commissioner Mills oppose plaintiff's motion, arguing that her claim is not cognizable under the ADA and, therefore, that injunctive relief is inappropriate.
For the reasons set forth below, plaintiff's applications to proceed in forma pauperis and for a temporary restraining order are denied.
Thereafter, Kelvin was placed in regular classes and he is presently attending Edison Technical High School. At Edison, Kelvin has been a member of the junior varsity and varsity level football and basketball teams and has not been denied the opportunity to play these sports based upon his alleged mental retardation. Plaintiff claims that although Kelvin is not classified as "mentally retarded", he continues to experience learning difficulties and relies on team sports as an outlet for his energy and talents.
Realizing that Kelvin would turn nineteen in August 1995, prior to his senior year at Edison, the Athletic Director at Edison contacted the New York State Public High School Athletic Association and attempted to obtain a waiver of the eligibility requirement for Kelvin. Addendum B to Plf's Memo. The requirement, set forth at 8 N.Y.C.R.R. § 135.4, prohibits students who turn nineteen years of age before September 1 of an academic year from participating in interscholastic sports during that year. That request was denied in January 1995 and on appeal to the Section V Executive Committee on March 16, 1995. Kelvin's parents have appealed these determinations to the Commissioner of the New York State Education Department but have not yet received a response.
Title II of the Americans With Disabilities Act provides that:
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.
42 U.S.C. § 12132. A "qualified individual with a disability" refers to "an individual with a disability who, with or without reasonable modifications to rules, policies or practices, . . . meets the essential eligibility requirements for . . . the participation in ...