Baisden v. WVSSAC

• Citation: 211 W.Va. 725,568 S.E.2d 32
• Decision Date: 27 June 2002
• Docket Number: No. 30317.,30317.
• Court: Supreme Court of West Virginia
• Parties: Jarrett BAISDEN, Petitioner/Appellant Below, Appellee v. WEST VIRGINIA SECONDARY SCHOOLS ACTIVITIES COMMISSION, Respondent/Appellee Below, Appellant

568 S.E.2d 32

211 W.Va. 725

Jarrett BAISDEN, Petitioner/Appellant Below, Appellee v. WEST VIRGINIA SECONDARY SCHOOLS ACTIVITIES COMMISSION, Respondent/Appellee Below, Appellant

No. 30317.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 2002.

Decided June 27, 2002.

Scott D. Maddox, Plymale & Maddox, P.L.L.C., Huntington, for the Appellee.

William R. Wooton, Roslyn Clark-Payne, The Wooton Law Firm, Beckley, for the Appellant.

ALBRIGHT, Justice.

This is an appeal by the West Virginia Secondary School Activities Commission (hereinafter "WVSSAC") from an August 28, 2001, order of the Circuit Court of Wayne County granting a permanent injunction prohibiting the WVSSAC from enforcing its age rule against Appellee Jarrett Baisden, a senior at Spring Valley High School during the 2001-2002 school year who sought to play high school football at the age of nineteen. On appeal to this Court, the WVSSAC contends that the lower court erred by ruling that the age rule was unenforceable against Mr. Baisden. Based upon the fact that Mr. Baisden has graduated and is no longer a student at Spring Valley High School, we find these issues surrounding his eligibility to play high school football technically moot. However, due to the importance of the issues raised and the probability that such issues will affect the rights of other students facing similar circumstances, we herein address the issues presented by Mr. Baisden and ultimately reverse the decision of the lower court.¹

I. Facts and Procedural History

On January 2, 2001, Mr. Barry Scragg, principal of Spring Valley High School, submitted a written inquiry to the WVSSAC regarding whether Mr. Baisden could play football for the high school team during the 2001-2002 school year despite the fact that he had attained the age of nineteen prior to August 1, 2001.² The Executive Director of the WVSSAC ruled that Mr. Baisden was ineligible to participate in interscholastic athletic competition for the 2001-2002 school year due to the fact that West Virginia Code of State Regulations section 127-2-4.1 provides that "[a] student in high school who becomes 19 ... before August 1 shall be ineligible for interscholastic competition." Upon review, the eligibility determination was upheld by both the WVSSAC Board of Appeals and the WVSSAC Board of Review.

On June 6, 2001, Mr. Baisden appealed the WVSSAC determination to the lower court and requested a permanent injunction prohibiting the WVSSAC from enforcing its eligibility decision. By order dated August 28, 2001, the lower court granted a permanent injunction prohibiting the WVSSAC from enforcing its age rule against Mr. Baisden, based upon the fact that Mr. Baisden's learning disability had required him to repeat two years of education and that application of the age rule discriminated against Mr. Baisden based upon the delay in his education occasioned by his learning disability.

The WVSSAC now contends that the lower court erred by granting the injunction and ruling that the age rule was unenforceable against Mr. Baisden.

II. Standard of Review

In Weaver v. Ritchie, 197 W.Va. 690, 478 S.E.2d 363 (1996), this Court set forth the following a priori standard of review with regard to permanent injunctions: "In reviewing challenges to the findings and conclusions of the trial court, we apply a two-pronged deferential standard of review with the final order and ultimate disposition (granting of the permanent injunction) reviewed under an abuse of discretion standard, and the underlying factual findings under a clearly erroneous standard." Id. at 693, 478 S.E.2d at 366. In syllabus point one of G Corp, Inc. v. MackJo, Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995), this Court also explained as follows:

"Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion." Syl. pt. 11, Stuart v. Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d 891 (1956).

III. Discussion

A. Mootness

We explained as follows in syllabus point one of Israel by Israel v. West Virginia Secondary Schools Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989)

:³

Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

An example of a situation in which the technical mootness of an issue was not deemed to preclude this Court's consideration of the matter is Cathe A. v. Doddridge County Board of Education, 200 W.Va. 521, 490 S.E.2d 340 (1997), a case in which a student's period of expulsion had ended before this Court had the opportunity to decide the case. In resolving the mootness issue in Cathe A., this Court recognized that it retains discretion to address issues raised in technically moot cases and utilized the approach outlined in Israel to conclude that since other students may also be affected by the appeal of a particular student's case, the substantive issues should be resolved. 200 W.Va. at 527, 490 S.E.2d at 346.

Similarly, in the present case, based upon the fact that the circumstances of Mr. Baisden's request for a waiver from the age nineteen rule will certainly be encountered by other students, this case satisfies the third factor identified in Israel. This issue "may be repeatedly presented to the trial court, yet escape review at the appellate level because of [its] fleeting and determinate nature...." 182 W.Va. at 455, 388 S.E.2d at 481. We consequently determine that the technical mootness of this issue does not preclude our consideration thereof.

B. Application of the Age Nineteen Rule

The issue of whether application of the age nineteen rule to a student whose learning disability has caused him to remain in high school beyond the age of eighteen has been the subject of vigorous debate in recent years. Age limitations imposed by counties, states, or interscholastic sports associations typically bar students from participating in interscholastic sport competitions after a certain age, most commonly framed in terms of prohibiting participation during a given school year if the student has attained the age of nineteen prior to August or September of that year. See generally, John E. Theuman, Validity, Under Rehabilitation Act or Americans With Disabilities Act, of Rules or Laws Limiting Participation in Interscholastic Sports to Those Below Specified Age, 143 A.L.R.Fed.567 (1998). The rules are typically strictly enforced, based upon the safety issues raised by permitting older, larger, more experienced players to compete against younger students. Where students remain in high school beyond the age of eighteen due to disabilities, however, the exclusion of such individuals from athletic participation has been the subject of extensive deliberation focused primarily upon whether exclusion is violative of state and/or federal guidelines enacted to protect the rights of disabled individuals. Implicated federal legislation includes section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131; and Title III of the ADA, 42 U.S.C. § 12181.⁴ The West Virginia Human Rights Act, specifically West Virginia Code § 5-11-9 (1998) (Repl.Vol. 1999), governs unlawful discriminatory practices in this State.⁵

Where students have alleged that application of age limitations effectively discriminated against them because of their disabilities, or more precisely because of the delays in education occasioned by their disabilities, courts in state and federal jurisdictions throughout the country have not been uniform in their responses. The primary point of controversy is whether the disabled student is "qualified" within the meaning of that term in the applicable statutes, i.e., whether the students are capable of meeting the essential requirements of the program with or without "reasonable accommodations." In the ADA, for instance, the term "qualified individual with a disability" is defined at section 12131(2) as follows:

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

Some courts encountering this question have approached the definitions quite literally, holding that disabled students were not entitled to injunctive relief under either statute because (1) they were incapable of satisfying an essential program requirement, namely the age limit itself; (2) the only accommodation available to achieve qualification would be a total waiver of the age limit, and such waiver would constitute a fundamental alteration in the program not required by anti-discrimination legislation; and/or (3) enforcement of the age rules simply was not "discrimination" because the limits were based only on age and were...