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LEGAL/LEGISLATIVE SCENE
ADA Decision by John N. McGovern, J.D., C.T.R.S. In one of the first decisions on the Americans With Disabilities Act (ADA), a federal district court judge in Arizona has granted a temporary restraining order which prohibits Little League from enforcing their rule prohibiting any coach who uses a wheelchair from being on the playing field. The suit was filed by a coach who uses a wheelchair out of fear that his team may be prevented from playing in tournaments, or that Little League would cancel the affiliate's charter if the affiliate failed to enforce the rule. This decision has implications for every Illinois leisure service agency which permits Little League and similar organizations to use public playing fields. Although Little League is a private entity and as such is subject to a different set of rules than a park district or municipal parks and recreation department, the suit turns on an issue of interest for both Little League and a leisure service agency. The Lawsuit... The suit was filed by a Little League coach who uses a wheelchair. The man, who has been a coach for three years, has been able to coach on the field because the Little League local affiliate has ignored the rule in the past. Specifically, the rule limits a coach in a wheelchair to the dugout because Little League believes that when a coach who uses a wheelchair is on the field a safety hazard is created for the players. However, this blunt assumption is exactly where the court found fault. The ADA is a comprehensive civil rights law which prohibits discrimination against people with disabilities in employment, the private sector, mass transit, state and local government services, and telecommunications. The ADA prohibits discrimination by a private entity providing public accommodations (Title III). Included in the definition of public accommodations is a place of recreation. So, although Little League operations are not necessarily at a fixed location owned by a Little League authority, the application of the rules to a location appears to meet the requirement for a "place of recreation." The protection offered by the ADA is available to a person with a disability who is qualified to use the place of recreation. What are the qualifications to be a Little League coach? Here, the man in question has coached for three years. While his qualifications to coach are not known, the minimum requirements would likely be the ability to motivate and guide youngsters, some knowledge of baseball skill development and game tactics, leadership ability, and hopefully the completion of an ACEP course. The fact that he uses a wheelchair is unlikely to result in disqualification for these requirements. Therefore, this coach is entitled to the protection of the ADA. The ADA (see sections 36.202(b) and 36.204 of the title III rule) prohibits the use of administrative rules or regulations which discriminate against a class of individuals because of their disability, when those rules result in participation of unequal benefit. That appears to be the case here. However, section 36.208 does permit Little League to bar a person from a playing field if that person poses a "direct threat" to the safety of others. A direct threat is "...a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." Further, the ADA requires that an "individualized assessment" be conducted to objectively determine if a safety risk exists. The assessment must ascertain 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." Little League failed to meet this test. The Little League rule is not applied individually when a coach may pose a safety hazard. Instead, Little League officials have determined that all coaches in wheelchairs pose the same risk and must therefore be excluded from the playing field. That violates the ADA'S intent and language. Impact On Leisure Service Agency There are few leisure service agencies which do not follow Little League rules for in-house programs or allow the use fields by local Little League affiliates for baseball, softball, and teeball. For municipal departments or park districts, this ruling will apply directly to your operation. Title II of the ADA prohibits discrimination by units of state and local government in the delivery of all services, including baseball games. Are you exempted if you allow others to use your fields and run Little League programs? No. Title II (section 35.130 of DOJ rule) prohibits a leisure service agency from discrimination by the provision of aid to an organization which does discriminate (such as Little League) in the provision of services to the beneficiaries of the public entity program. The public entity program will be construed as the availability of a park for use by the public. If the
LEGAL/LEGISLATIVE SCENE
leisure service agency allows the local Little League affiliate the use of parks, it must require that the affiliate not discriminate on the basis of disability. Risk Management Steps are necessary for a leisure service agency to avoid liability and negative publicity on this subject. These are discussed below. 1. Examine rules for sports programs within your agency and for programs which request the use of your agency's fields or facilities. Where rules prohibit a class of people from fall use, such as a rule prohibiting a basketball coach who uses a wheelchair from being on the bench, the department should issue a policy statement that the rule will not be enforced against that class of people. 2. Develop a method of performing the "individualized assessment" required by the ADA to determine whether a person with a disability poses a direct threat to the safety of others which cannot be eliminated by modifying policies, practices, or rules. This assessment should begin with a discussion with the person with the disability who may pose a direct threat to the safety of others. 3. Go public with your plans. The ADA (section 35.106) requires a leisure service agency to provide the community with information about the application of the ADA to programs and services. Advertise the fact that the department will no longer abide by discriminatory rules. Restate the agency's interest in safety, though, and indicate that where a person's condition or disorder may result in a direct threat to the safety of others, the agency will conduct an individualized assessment of risk. 4. Change the agency's facility and field use request forms. The request for use of public facility or field should include language similar to the following: I, Pat Wilson, representing the Hometown Sports Organization, agree that while we use the fields made available by the Greenacre Park District that we will not discriminate on the basis of disability. 5. Start to review other rules which may affect program participants and determine if they treat people who have disabilities as a class, instead of as individuals. Conclusion It is interesting to see an early decision that affects programming while most park districts and municipal departments are scrambling to complete the evaluation of facilities and parks. Let this serve as a reminder that the ADA is a comprehensive law and that people with disabilities are exercising the rights granted by this law. Good faith efforts by agencies today will go a long way towards avoiding risks such as the one described here. Let's not read about your agency in the next issue. About the Author John N. McGovem, J.D. , C .T.R.S., is Executive Director of the Northern Suburban Special Recreation Association in Northfield, Illinois.
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