857 F.Supp. 654 (E.D.Mo. 1994), 494-CV-00591, Pottgen v. Missouri State High School Activities Ass'n

Docket Nº:494-CV-00591
Citation:857 F.Supp. 654
Party Name:Pottgen v. Missouri State High School Activities Ass'n
Case Date:April 29, 1994
Court:United States District Courts, 8th Circuit, Eastern District of Missouri

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857 F.Supp. 654 (E.D.Mo. 1994)

Edward Leo POTTGEN, Plaintiff,



No. 4:94-CV-00591 CAS.

United States District Court, E.D. Missouri, Eastern Division.

April 29, 1994

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Kenneth M. Chackes, Vines and Ross, St. Louis, MO, for plaintiff.

Mallory Mayse, Columbia, MO, for defendant.


SHAW, District Judge.

This matter is before the Court on plaintiff's motion for a preliminary injunction, on which evidence and oral argument was heard April 18 and 19, 1994. Also before the Court is defendant's Motion to Dismiss. The Court has now reviewed all of the written and oral evidence presented by the parties, and concludes that plaintiff's motion for preliminary injunction should be granted.

This matter arises out of plaintiff's claim that defendant, the Missouri State High School Activities Association ("MSHSAA"), has violated (i) Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (the "ADA"); (ii) § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"); and (iii) 42 U.S.C. § 1983, by its refusal to allow him to participate in interscholastic athletics in the 1993-1994 school year under MSHSAA By-Law 232.0 because he is nineteen (19) years of age.

Plaintiff previously sought and obtained a temporary restraining order from this Court, J. Limbaugh presiding, which restrained MSHSAA from preventing plaintiff from competing in Hancock's baseball game scheduled for March 23, 1994, and from imposing any penalty, discipline or sanction on any school for which or against which plaintiff competed. As this matter could not be heard within the time contemplated by Federal Rule of Civil Procedure 65, the parties consented to and the Court ordered the extension of the temporary restraining order until the hearing on the preliminary injunction.

Findings of Fact

1. Plaintiff Leo Edward Pottgen was born on May 25, 1974, and is a nineteen (19) year old student at Hancock High School ("Hancock") in St. Louis County, Missouri.

2. Defendant MSHSAA is a voluntary, non-profit, private association of member secondary school districts public and private, which has the capacity to be sued in its association name. MSHSAA adopts standards for the uniform regulation of junior high and high school interscholastic activities as delegated by its approximately 730 member schools. MSHSAA is administered by an eight-member Board of Directors (the "Board") comprised of school superintendents and principals.

3. MSHSAA is governed by a Constitution and By-Laws, which are adopted and amended by vote of its member schools, with each member school having one vote. (Defendant's Exh. A.)

4. MSHSAA By-Law 821.0 authorizes the Board to appoint an Appeals Committee (the "Committee") to hear and render decisions on appeals, including the eligibility of students to participate in athletic programs. Appeals from decisions of the Committee are to the Board under MSHSAA By-Law 825.0.b.

5. MSHSAA does not directly receive federal funds, but it does receive funding from its member schools. Ninety percent of MSHSAA's member schools are public and receive federal funds.

6. Plaintiff has been diagnosed with a learning disability. Plaintiff was retained in grades one and three because of educational problems. An evaluation after the second retention revealed that plaintiff had a learning disability, behavior disorder, and a language impairment in auditory comprehension.

7. Because plaintiff repeated two grades in elementary school due to his disabilities, he entered his fourth (senior) year of high school at age nineteen. Plaintiff will turn twenty (20) years of age on May 25, 1994.

8. Plaintiff's mother, who died three years ago, utilized plaintiff's participation in school sports, particularly baseball, as motivation to help him overcome his learning disability. Plaintiff's grades and attitude in school improved as a result of his participation in interscholastic sports.

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9. Prior to his senior year, plaintiff competed in three (3) years of basketball and baseball, and two (2) years of cross country.

10. Plaintiff wished to compete in basketball, cross country and baseball in his senior year, but MSHSAA declared him ineligible to complete in interscholastic activities during the 1993-1994 school year under By-Law 232.0, because he reached his nineteenth birthday prior to the July 1 preceding his senior year.

11. MSHSAA By-Law 232.0, Age Standards, provides as follows:

A student shall not have reached the age of 19 prior to July 1 preceding the opening of school. If a student reaches the age of 19 on or following July 1, the student may be considered eligible for the ensuing school year.

To be eligible for junior high school competition against teams all in a particular grade classification, the student shall not have reached the following ages prior to July 1 preceding the opening of school: Grade Seven--14, Grade Eight--15, or Grade Nine--16. If a student does not meet the age standard for a particular grade classification, that student may compete on a team of a higher grade classification. Seventh and eighth grade students shall not compete with or against students in grade 10 or above except in cases where they attain the age of 15 prior to July 1 preceding the opening of school and their school does not sponsor a separate ninth grade team in the sport concerned, or where they attain the age of 16 years prior to July 1 preceding the opening of school.

12. Because of his age, plaintiff is ineligible to compete in interscholastic activities during the 1993-1994 school year under By-Law 232.0. Plaintiff's birthdate places him only thirty-five (35) days beyond the cut-off date provided in By-Law 232.0.

13. The purpose of By-Law 232.0 is threefold: (i) To disallow competitive advantage to teams using older athletes against teams with younger athletes; (ii) to protect younger athletes from harm; and (iii) to discourage student athletes from delaying their education to gain athletic maturity and experience.

14. Article VI, § 6.p. of the MSHSAA Constitution authorizes the Board "to grant eligibility to a student in a case that is beyond the control of a student or his (her) parents, which in the opinion of the Board involves undue hardship or an emergency and does not violate the intent of any standards of eligibility." (Defendant's Exh. A, p. 12.)

15. Plaintiff, with the assistance of Hancock Assistant Principal Ed Stewart, petitioned MSHSAA in October 1993 for another year of eligibility to compete in interscholastic athletics for the 1993-1994 school year. (Plaintiff's Exh. 2.)

16. Plaintiff's petition was presented to the MSHSAA Appeals Committee in November 1993 by Mr. Stewart, and plaintiff's father, Charles Pottgen. Among the evidence presented was the fact that plaintiff was retained in two grades in elementary school before a proper diagnosis was made of plaintiff's learning disability and other disabilities. (Plaintiff's Exh. 2; Defendant's Exh. C.)

17. The Committee voted to deny plaintiff's petition, for the reason that "waiving the Age Standard contained in By-Law 232 by the committee would be waiving the intent for which the rule was voted in by the member schools and would not be applied consistently from one student to the next under the true purpose for which the rule was adopted." (Defendant's Exh. C.) In a letter to Mr. Stewart officially notifying him of the Committee's decision, MSHSAA's Executive Director stated, "From the discussion of this case, it was apparent that the Committee believed that to waive the By-Law would have been waiving the actual intent of the rule itself." (Plaintiff's Exh. 7.) The Committee did not mention plaintiff's disability in its decision.

18. Plaintiff appealed the Committee's decision to the Board, and submitted additional documentary evidence concerning his disability. (Plaintiff's Exh. 3, 4.) Mr. Stewart appeared before the Board in January 1994 and described plaintiff's educational history and diagnosis of learning disability, noting

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that plaintiff (i) had no control over the fact that he did not receive the special educational services he needed for academic success until after two retentions; (ii) had made steady improvement since receiving special services; (iii) would not exceed the limit of eight semesters of participation if allowed to play; (iv) was not physically advanced for his age; and (v) was not in high school any longer than any other student in the high school grades. (Plaintiff's Exh. 4; Defendant's Exh. D.) Stewart also stated that participating in baseball helped plaintiff to "maximize his capabilities". (Plaintiff's Exh. 4.)

19. The Board voted to deny plaintiff's appeal. The minutes of the Board's meeting at which plaintiff's appeal was presented state, "It was pointed out during the hearing that the Age Standard has remained consistent throughout the years. It is necessary for the intent and consistency of this rule to remain intact must be (sic) applied the same to all students." (Defendant's Exh. D.) The appeal was denied "based upon the need for having an absolute application of the Age Standard in order to allow consistency for all students." Id. The Board officially denied plaintiff's appeal by letter dated March 14, 1994. (Plaintiff's Exh. 8.) The Board did not mention plaintiff's disability in its decision.

20. The Board's decision to deny plaintiff's appeal was based solely on the Board's judgment that an age limit is the only fair way to address the issue of competitive...

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