Maryland Bar Bulletin
Publications : Bar Bulletin : September 2007

|

No matter what sports they may choose, it is recognized that youth with disabilities have yet to receive physical and sports opportunities in parity with able-bodied adolescents in the community. Department of Health and Human Services guidelines entitled “Healthy People 2010” reported that from 1990 to 1994, disability rates increased among youth under age 18. The guidelines state that, “In view of…[these]…increased rates of disability…it is particularly important to…address…aspects of health and well-being, including promoting health, preventing secondary conditions, and removing environmental barriers…” Among other objectives established by the guidelines are the inclusion of youth with disabilities in regular physical activities, ensuring the accessibility of and involvement in health and wellness programs. This article will therefore discuss the advocacy efforts of a high school student named Tatyana McFadden who utilized the legal system for its loftiest purpose – that is, positive social change.

A mobility-impaired adolescent, McFadden is a Paralympic athlete in track and field. In 2004, she won silver and bronze medals for track and field events at the Paralympics Summer Games in Greece. She constitutes a courageous advocate of others in challenging actions of the Maryland educational system that she alleged violated civil rights guarantees under the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973, as Amended (Rehabilitation Act).

Being frustrated with her segregation from the vista of victory and the precipitous cliffs of defeat, the physical and mental benefits that redounds from involvement in athletics and the sheer thrill of equaling a full member of a team, McFadden sought an injunction against the Howard County school system in 2006 to remedy what she believed to constitute a lack of inclusion in sporting activities. In McFadden v. Cousin, the court granted her motion for a preliminary injunction against the Howard County Public Schools. In early 2007, Howard County Public Schools settled with McFadden and her legal representation, the Maryland Disability Law Center. The agreement allowed her to participate in the same number of track events as able-bodied students, to be able to wear a team uniform, to earn points for her team and receive recognition of her accomplishments, such as school letters. However, McFadden is scored in her own category and is not ranked against the able-bodied athletes in events.

In spring 2007, McFadden sought an injunction forbidding the declination to award her points for the successful completion of events. The court found that the initial set of criteria for a preliminary injunction favored McFadden. However, the court concluded that the likelihood of success on the merits of her claims would be “sufficiently attenuated that the extraordinary remedy of a preliminary injunction is not justified.” To demonstrate a prima facie case under the ADA and the Rehabilitation Act, a plaintiff must be a qualified individual with a disability receiving the benefits of a public service or activity. After determining that McFadden met those criteria, the court hinged its ruling on the final criterion of the three-part standard that she was not “excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.” In dictum, the court wrote that

“by asking for her individual points to count toward her team’s total in the able-bodied track and field division…[she]…is asking the court to equate wheeling with running…despite the fact that wheeling is a distinct discipline.” In line with the tenor of this dictum, the court stated that “it is not likely that, upon a full review of the merits of McFadden’s claims, the court will be persuaded that it is discriminatory…for defendant to maintain a difference in the opportunity of wheelchair racers, in contrast to non- wheelchair racers, to earn points for teams, where all but a small number of teams are significantly under-represented in the distinct class of competitors of which McFadden is the sole member: wheelers.” Moreover, the ruling can be interpreted to indicate that while McFadden experienced some discrimination, it was only a smidge of discrimination, and that is not sufficient. The court also indicated that while McFadden is an amazing young lady, the public interest would not be served in that the school system is doing all that it can to broaden opportunities to students with disabilities.

Through the course of her two suits, however, McFadden ultimately received Solomon-like justice; incremental as it may be, progress towards the full inclusion of persons with disabilities has been achieved. Like the African Americans of the 1940s, (e.g., Jackie Robinson), persons with disabilities, and particularly youth, cannot only physically or mentally benefit but also parlay inclusion in sporting opportunities, especially, when eligible persons with disabilities can play side-by-side with the able-bodied in such activities as swimming, beeper soccer and baseball, as a means of removing socio-economic barriers. As the law professor Mark C. Weber stated in a 2004 law review, “Just as segregation feeds on itself by constantly reinforcing the fear of the unknown, carefully structured integration creates positive attitudes.…”

Working in tandem, agencies and organizations, such as the Maryland Department of Disabilities, the Maryland Department of Education and the Maryland State Bar Association, by and through such committees and sections as Anti-Discrimination Matters, and the sports and tax related sections can continue the long-term struggle to ensure full inclusion and integration of persons with disabilities in society, in this context, sports. Access to physical activities and sporting opportunities are symptomatic of other issues historically and currently encountered within the educational system by students with disabilities. They can therefore harness their collective legislative capital to have a bill or bills sponsored in the 2008 session of the Maryland General Assembly to promote and ensure adequate funding to school systems for inclusion of youth with disabilities in among other programs and services, physical education and sporting opportunities.

Gary Norman is an attorney with a visual disability who practices in federal health care reimbursement. He dedicates this article to his mobility-impaired fellow attorney, friend and writing mentor, the late Roberta Cepko.

previous next
Publications : Bar Bulletin: August  2007