“Teen Claims School Violated ADA by Barring Basketball with Service Dog”

by Walter Olson on August 23, 2010

“A Chicago area teen claims in a lawsuit that her high school violated the Americans with Disabilities Act when it barred her from playing basketball with the help of her service dog.” The president of Special Olympics Illinois, which sponsors the team that turned down Jenny Youngwith’s request, “said the group has to make decisions based on the safety of all the athletes.” [ABA Journal]

{ 39 comments }

1 Doug 08.23.10 at 11:52 am

I know that I will sound vindictive, but I hope she loses badly. Wasting time and money on defending themselves is silly and stupid. The rational thing will be to providing the support for the basketball game. So, in her selfishness, all may be denied this opportunity. My advice is to move along and find something else to do.

2 kat 08.23.10 at 11:55 am

The story is a little misleading, as the underlying news stories indicate that the girl proposed playing without the dog, but with a small padded backpack with a small oxygen tank on her back. Some commenters say this poses an unacceptable risk of explosion and others say it doesn’t. I would be curious to know about this aspect. If it doesn’t, then I do wonder why that wouldn’t be a reasonable accommodation if sufficient padding surrounded the oxygen tank.

3 Aaron Worthing 08.23.10 at 1:13 pm

agree with kat to some degree–i would like to know more. but i am VERY skeptical of any claim that the special olympics discriminates against the handicapped. Its sort of like the NAACP being sued for discriminating against black people. sure, its possible, but not likely.

4 VMS 08.23.10 at 1:41 pm

Way back, when I was in Jr. HS, I tried out for the baseball team. Each person trying out got one at-bat. I hit a sharp liner right to the third baseman. I was cut from the team because I did not get a hit. I was miffed that the cut was determined by what you did on a single at-bat, but so be it. A bunch of us that were cut from the team walked over to another field and we played a 3 inning game. There was a lot of bitching and moaning about getting cut from the team, but we all took it in stride. If anyone sued, that person would surely have been ostracized by the others. This is educated conjecture because no one sued for such nonsense back then.

See http://mylifebygogogoff.blogspot.com/2008_10_19_archive.html

5 Patrick 08.23.10 at 4:07 pm

That headline belongs on Best of the Web (I know you’re quoting the ABA Journal).

For a second I thought that the subject of the story was a basketball, rather than a teen.

6 Joe 08.23.10 at 4:11 pm

Even if the oxygen tank was thoroughly padded, wouldn’t it be cumbersome for this student to play with? Couldn’t it still potentially hurt another player who just happened to bump into it? When I played high school sports, girls weren’t even allowed to wear certain types of jewelry during a game, and that was for their safety.

7 Shtetl G 08.23.10 at 4:13 pm

I hope she wins and bankrupts the special olympics and the community center! That’s what i call justice.

8 Doug 08.23.10 at 4:53 pm

That, Shtetl G, is a very poor attitude to have. I, in fact, wish there was loser pays. Bet there would not be a suit filed in the first place. What if, she wins, and the court says she has to play. Do the other players have to play with her if they do not want to? Especially if they think she can cause them harm?

9 Mark Biggar 08.23.10 at 6:21 pm

What I don’t understand about this story is how a service dog can substitute for an oxygen tank and vice versa. What does it know mouth-to-mouth? Or does she always have a oxygen tank and the service dog is just a pack animal for the tank? In that case why have the dog at all, as a pull cart would seem just as good, won’t run off, you don’t have to feed it and it doesn’t causes messes either. Although it might be easier to get up and down stairs.

10 VMS 08.23.10 at 7:03 pm

The service dog was to carry the O2 bottles! The alternative was she had to wear them padded. Go figure.

11 Bumper 08.23.10 at 10:19 pm

Further proof that the ADA is the worst law ever.

Snowflake’s dog trips some kid running down the court causing serious injury, guess whose fault it’s going to be?

If snowflake can’t walk down the street without supplemental oxygen then she has no business participating in an aerobic competitive sport. Guess whose fault it’s going to be when she passes out and slams her face into to the hardwood floor.

And think how mortified Bowser must be, his brethren march up the sides of mountains with kegs of rum and he is left to hoist little oxygen tanks for a Shaq wannabe.

Repeal the ADA and pass loser pays!

12 GregS 08.24.10 at 9:33 am

I hope she wins, because then I’ll be allowed to play basketball with the help of my safety panther.

13 GregS 08.24.10 at 9:35 am

Oops, I meant my service panther! Although he is very safe – he very seldom maims other people.

14 Jack Wilson 08.24.10 at 9:49 am

The ADA is simply an excuse for tyranny.

15 Aaron Worthing 08.24.10 at 9:54 am

Bumper

right, so then if the school instead says, “we are not only not going to let you on the team, but we are not going to even give you an education, cripple” that is kosher with you?

Btw, under the ADA, the loser does pay.

16 Le Mur 08.24.10 at 12:09 pm

They never let me take my service grizzly into the cage-fighting matches, even though I need him to carry my beer.

Here’s more info, though both articles seem to be glossing over…something:
http://peoplesworld.org/disabled-student-sues-special-olympics-for-right-to-compete/

They sort-of claim that she’s been playing basketball in the high school all along – but it doesn’t say whether on a team, goofing around, or what.

17 pwd 08.24.10 at 12:30 pm

First off the ADA is not a stupid law as it is a Civil Rights law that protects people with disabilities. Just like All Civil Laws that Protects People Rights! Of course people do
interpret because of the way it’s written as all laws it’s not an easy black and white. There’s a lot of gray areas and therefore it should be on a case by case basis.

Such like this case here before us. Is it a reasonable accommodations to allow this child with oxygen tanks and her service dog play on the Special Olympics, basketball. Well although this team would be all children with various disabilities there is still the part of the law that states *reasonable accommodations* for the safety of her and others. Although it may not be so reasonable to run up and down the court getting the tank cords entangled if the service dog was the one with the tanks. But would it be unreasonable for the child to do free throws and or have the tank in a backpack.

Well I for one wouldn’t know what would be considered reasonable or not reasonable. But I am sure there are some various alternatives in which she would be still able to play and have her service dog for her. Remember she has multiple disabilities in which her trained service dog does for her.

18 Aaron Worthing 08.24.10 at 1:45 pm

le mur

interesting link. the fastest way to get sued is not only to refuse someone but not even sit down and explain why.

19 Bumper 08.24.10 at 2:17 pm

Aaron W.

The education of a child and participation in extra curricular athletic activities are separate activities. While a worthy aspect of growing up ex-curricular are not a requirement for a successful childhood or education. The majority of school age children complete their education without ever participating in an extra curricular athletic activity. Sad but a fact of life.

The child in question is apparently not because she is a “cripple” but rather suffers from a medical condition that requires supplemental oxygen. I spent enough of my life around children and oxygen to know that this is potentially a FAIL. But when it comes to the ADA prudent is never an option.

Maybe there really is loser pays in the ADA, but I cannot recall a plaintiff loser that had to pay.

20 Jim Collins 08.24.10 at 2:44 pm

ADA does have a loser pays system. When the law is used to force an assinine out come, we all lose. Then in one way or another we all pay. ADA needs reworked with a good bit of reality thrown in. Her oxygen tank poses a safety threat to both herself and others. She should not be allowed to play. Anybody remember the Zares store in Orange Park Florida? A clown was filling Helium baloons from a small tank, when the tank fell over and the valve broke. It took off like a rocket and several people were hurt. What if she were to fall and the valve on her tank broke?

21 Aaron Worthing 08.24.10 at 2:56 pm

Bumper

> The education of a child and participation in extra curricular athletic activities are separate activities.

I am sorry, is it your position that phys ed is not part of the educational mission?

God forbid we have too much equality.

Mind you, I said I am extremely skeptical of any claim that the special Olympics is engaged in discrimination against the handicapped. But I will not say it would be okay if they were.

> But when it comes to the ADA prudent is never an option.

In which you fail to notice the word “reasonable” in the phrase “reasonable accommodation.”

> Maybe there really is loser pays in the ADA, but I cannot recall a plaintiff loser that had to pay.

Well, honestly I don’t know how you would know.

Jim

> ADA needs reworked with a good bit of reality thrown in.
\
So, what you are saying is the accommodation should only be offered if it is reasonable to do so?

> It took off like a rocket and several people were hurt. What if she were to fall and the valve on her tank broke?

[Facepalm.] and you know the pressure is identical, how exactly?

22 wfjag 08.24.10 at 3:30 pm

“I am sorry, is it your position that phys ed is not part of the educational mission?”

As the parent of a disabled child/Special Olympian, I’d note that unless it is organized in Chicago much differently than elsewhere — Special Olympics is not an extracurricular activity of the school system. It is a separate, private organization. Among other things, this allows persons with disabilities to continue to participate in Special Olympics long after they leave school. Accordingly, the Spec Oly Basketball program probably has nothing to do with Phys Ed in school.

However, since it is a private organization, which usually depends on fund raising activities by the Special Olympians and their families to be able to operate, the costs of defense of the suit will likely bankrupt, and so shut down, the program long before this matter would ever come to trial. The Spec Oly programs I am familiar with all carry standard CGL and auto liability insurances, to cover the common tort liabilities. However, it is doubtful that such insurance policies cover the ADA claim raised by the suit. Accordingly, it is unlikely that Ms. Youngwith’s suit will force her being allowed to play Spec Oly Basketball (or particpate in any other Spec Oly program in her area), since, the likely outcome will be that the entire Spec Oly program (including Track & Field and Bowling) will be shut down for everyone.

Even a loser pay rule does not address this type of problem. Most small charitable organizations cannot afford the transaction costs associated with litigation to get to the point where that determination will be made. Further, a judgment against a judgment-proof party is worth exactly the worth of the paper it is printed on, and no more. Ms. Youngwith appaently attends a Chicago area public school — which are not noted for academic accomplishment — not a private school. So, it is doubtful that her parents have to means to satisfy a judgment awarding attorneys fees and costs against them (and, seldom do such awards cover all of the prevailing partys costs). So, even if the Spec Oly program gets an award against Ms. Younwith’s parents, it is highly unlikely that the program would ever collect.

I guess in a perverse way, this suit is accomplishing ADA’s objective of ensuring that Ms. Youngwith will have exactly the same opportunity as every one else to participate in the Spec Oly Basketball program — None.

23 no name guy 08.24.10 at 10:05 pm

Aaron W

You obviously never spent any time in metal shop as a bright eyed student. Had you, you would know that compressed gas cylinders be they helium, welding grade oxygen or even medical grade oxygen are all HIGH pressure cylinders, with the gas compressed to between 1,000 – 3,000 psi, or higher.

Also, had you ever played basketball at any level, you would know that jewlery (wedding rings, watches, braceletts, etc) is not allowed as its a safety hazzard. Hoop is in fact a contact sport, which I know from first hand experience at the lowest division of my large companies rec league (a few bloody noses and elbows to the head ram the point home). Even at grade school level, the swirl under the rim going for a rebound will knock a kid down all too often.

Now, given those facts, do explain how its reasonable for one of the players to be wearing a high pressure, metal compressed gas cylinder weighing several pounds, with a protruding valve assembly?

24 Doug 08.25.10 at 8:28 am

Well, obviously basketball cannot be a contact sport. In fact, the kids should just sit in chairs around the hoop and throw a ball into a lowered hoop so that they all can make a basket.

25 Jack Wilson 08.25.10 at 8:36 am

Once she is on the team, someone will complain they are allergic to dogs. Then the real fun begins.

26 No Name Guy 08.25.10 at 11:57 am

Yeah…what I though. Crickets from Aaron……

Another few facts of basketball, besides it being a contact sport.

Everyone up under the rim, jumping for rebound. The kid behind our intrepid oxygen tank wearer, comes down and SMACK, gets a face full of metal tank from the humpback pack, instead of brushing along their back.

Oxygen tank wearing kid, has the ball, is closely guarded. Wants to do the dribble with back to the defender, to do the little push ‘em back move, then step forward for the turn around jumper. What’s the defender supposed to do with a big humpback whacking them in the chest in this case?.

Oxygen tank kid on defense, playing man to man (typical at that age). Kid they’re guarding has the ball (and is on a well coached team), signals for a pick to be laid, cuts across to peel off oxygen kid with the pick to get a clean shot. Pick layer smacked not by a soft body of our oxygen tank kid, but by big humpback pack with a steel oxygen tank in it.

27 Aaron Worthing 08.25.10 at 12:09 pm

No name

> Yeah…what I though. Crickets from Aaron……

Well, I am sorry but I can’t be here all the time.

Wfjag

> is not an extracurricular activity of the school system.

Actually the article is a little bit ambiguous on it. fair enough. File that under facts we don’t know, yet.

No name, again:

> Had you, you would know that compressed gas cylinders be they helium, welding grade oxygen or even medical grade oxygen are all HIGH pressure cylinders

And they have to be compressed?

> Also, had you ever played basketball at any level, you would know that jewlery (wedding rings, watches, braceletts, etc) is not allowed as its a safety hazzard.

Except some articles say that she was allowed to do this for years and then suddenly, “no, can’t do it” and no good explanation. Now that is by two different entities, but still I am not going to laugh this out of court.

That said, they have to get over the obstacle of explaining to a court, that is likely to ask, “let me get this straight. You are saying the special Olympics is discriminating against the disabled?”

But you guys want to pretend we can definitively answer the question. i refuse to do so.

28 Nora 08.25.10 at 12:51 pm

It says she’s played basketball in gym class. That’s different from competitve basketball – even a team on the Special olympics. I’ve played basketball in gym class – and I can’t play on a team. She may have been practicing skills where she was not actually playing in a game. Also, she was playing against non-developmentally challenged players – is there a possibility that they and the teacher were making it a point to take it easier on her than others?

29 Nora 08.25.10 at 1:06 pm

Also, just quickly googling it, she could be using a concentrator, which isn’t compressed oxygen, but apparently they need to be battery powered. Not sure if they come in backpack models

30 Bill Alexander 08.25.10 at 3:43 pm

Aaron said: “And they have to be compressed?”

Yes, if the oxygen is not compressed, then the tank contains one or two breaths. The whole point of compressing to 2000 or so psi is to cram as much gas into as small a tank as will do the job.

One of the things we don’t know is how much oxygen she needs, that helps to determine how big a tank to last for a couple of hours.

31 Jackie Chiles 08.25.10 at 4:48 pm

ADA is NOT loser pays.

32 No Name Guy 08.25.10 at 5:17 pm

Aaron

Yeah, what I’d thought….the crickets are still chirping since you declined to address the point of my posts, which is that a large protruding metal object is inherently unsafe while playing basketball.

So, while the crickets continue to chirp, how about trying to address the central point – How is it that wearing an oxygen cylinder (or even a concentrator as mentioned by Nora) is safe during a typical basketball game? Please compare and contrast this to the typical ban on wedding rings, watches and other far smaller jewlery while playing basketball, all of which do not protrude substantially from the natural profile of the wearers body.

On this one:
“> Had you, you would know that compressed gas cylinders be they helium, welding grade oxygen or even medical grade oxygen are all HIGH pressure cylinders

And they have to be compressed?”

Are you really that uneducated? Nahhhh. Must be willful ignorance. (Sorry for slipping into insults, but dang man, you really are clueless about some pretty basic stuff, or at least you’re typing some pretty clueless stuff.)

Oh, and that an unsafe condition of the past (that the person in question may have been allowed previously to do this) in no way makes it acceptable to continue. The facts of hoop are such that it should be self evident that it’s unsafe for a player to have an oxygen tank (or concentrator) on their person during a game.

Now, if the person in question wants to play some non-contact game using a basketball and hoop, like say, Horse, or something like the shooting contests they have at the all star game, hey great. No problem with that. Wear your oxygen as it’s NOT UNSAFE to do so in those conditions.

5 on 5 on a full or half court on the other hand – forget it.

33 gitarcarver 08.25.10 at 6:33 pm

Aaron,

As I am sure you know, one of the things that must be considered when excluding a disabled / challenged individual from an event is the reasonable expectation that the person or others will be injured.

Both the NCAA and NFHSA require that no jewelry be worn by a player. They even extend the ban to Medic Alert bracelets and necklaces which must be taped down to the player. (The bracelet cannot be visible – it must be under tape. A medic alert necklace must be removed and only the TAG be on the player.)

The reason for this is that basketball is a game where people reach and stab at the ball. Even reaching for a rebound will put players at risk of entanglement with jewelry. Players used to get their fingers in the jewelry which caused dislocated / broken fingers and arms.

The only way to make this situation safe for all players is to have the young lady not wear her oxygen mask / tube. As she requires the oxygen – even in a backpack that she carries – there is no way to prevent others from reaching in, and getting their fingers entangled in the oxygen lines.

This is one case where I can’t see a way to make the player safe not only for herself, but for others as well.

34 Nora 08.25.10 at 9:28 pm

I just wanted to make it clear – I am not knocking doing skills training – as someone with the physical activity level of a potato, I applaud and admire Jenny’s dedication. Learning to play basketball, and make baskets takes dedication and patience I never had, and Jenny sounds like an incredibly nice and focused person. Also, it’s also very possible that the other students and the gym teacher were not taking it easy on her, and she’s a good and competitive player able to overcome her physical challenges.

I’ve read the complaint. It says that Jenny has “fully participated in safely and fully participated in School District basketball and sports
programs using her service animal and oxygen tank since entering high school in 2007 until on or about November 9, 2009, when she was denied the opportunity to fully participate on the court
during basketball games.” I am not sure “fully participated” in the programs is the same things as having competed “on the court”. If she has, more power to her.

The email provided as an exhibit does indicate that SOI rejected the oxygen tank option, as well as the service animal. However, the complaint requests that SOI and the school district allow full participation with service animal, so maybe they want Jenny to be able to use the service animal on the court, instead of the tank. They also don’t detail where the special olympian who participated with a 20 lb tank participated, although they do claim he participated safely.

They also mention an accommodation of an olympian being pushed in a wheelchair. That doesn’t seem to me to be the same. A person pushing a wheelchair is cumbersome, but I would think there may be less of a risk of injury from tripping into the tank or over the tube/leash.

It is curious that two of the charges in the complaint are that the school district and SOI deprived Jenny of “loss of companionship” and “lack of supervision”.

One of the articles made it sound as if Jenny had been training with her team for weeks. In fact, it was November 3rd, when first practice was held, and SOI determined she shouldn’t compete on the 9th.

I don’t wish to speculate anymore, as I would like more facts before I come to any conclusion. It is possible that SOI is behaving very badly against a kid who has participated in many games before, against kids/teams of similar physical and mental abilities, using an oxygen tank and her service animal. If it can be done, then it becomes a matter as to whether the accommodation is reasonable. However, it is possible that Jenny cannot compete on the team for a number of reasons – health and safety of other players, Jenny, the animal. I will be interested in reading the defendant’s response.

35 Bob Lipton 08.26.10 at 7:42 am

I find the word “safely” to be key. If in the sense of “without significantly greater risk than without” — given the vague nature of “significantly” — then she should be permitted to play. If by it is meant “Nothing bad has happened” then I don’t find it compelling.

Bob

36 kevin 08.26.10 at 1:52 pm

First off OXYGEN IS NOT EXPLOSIVE!!!!!!! It supports combustion.
There is a model in fire-science known as the Fire Triangle. Simply put for combustion to take place there must be 3 physical properties present. Without getting long winded on percentages, ratios and temperatures the 3 properties needed are 1. FUEL 2. HEAT 3. OXYGEN. To avoid a long chemistry rant, although there are some chemicals which can posses all 3 potentials inclusively these materials are generally highly regulated let alone illegal to common citizens!

The oxygen Jenny carries poses NO GREATER risk to anyone around her then the GAMES THEMSELVES. Uh, the batteries in the motorized wheelchairs have a greater explosive potential!!!

This boils down to LAWYERS and INSURANCE companies!!!

Simba (the dog), is a highly trained service dog and poses less of a threat of injury to any one then the athletes themselves!!!!

Why can’t Jenny carry the tanks herself. My guess is the added weight coupled with the rigours of the physical activity woud be counter productive by simply placing a greater strain on her cardio-vascular system!

Seems to me athletes will step on, run into, bump into or strike each other accidentally with or without Jenny and Simba. So ban the games all together so no one gets hurt!

If anyone involved, employed, around, or interested etc., in the Special Olympics even allows the thought of an “unfair advantage” for Jenny and or her team to WIN as an argument of denial in participation then all I can say is, Hell has a SPECIAL place for them, right next to the parents that fight at their kids sporting events, or heckle other kids from the stands!

The Special Olympics is SUPPOSED to be about overcoming CHALLENGES and ADAPTING to ADVERSITY. S.O. PLEASE tell your attorneys and insurance company to pound sand and let the young lady compete!!! There are plenty of other blood suckers in those fields out there that will gladly except you as clients and underwrite your endevours. SHAME ON YOU!!!

For what it’s worth I have sponsored a Special Olympian in both winter ans summer games for the past 15 years, now I’m not so sure whether I’ll continue knowing how they are handling this situation! I didn’t realize the principals of S.O. moonlighted as politicians!)

37 Aaron Worthing 08.26.10 at 3:27 pm

No name

> you declined to

Read it again, you are wrong. Read all of it.

> how about trying to address the central point

My central point is this. its dubious, but we can’t say for sure based on this scant and contradictory record.

Gitar

> The reason for this is

Lawyers, actually. Our overactive tort system.

We did none of this crap when I was a kid.

38 gitarcarver 08.26.10 at 7:39 pm

We did none of this crap when I was a kid.

We did. I know that Little League, for example, has had a no jewelry policy since the 60′s. According to friends that officiate, the no jewelry rule in Fed and NCAA has been around at least since the late 60′s.

The point is still that the playing a sport where there is a good chance of getting tangled up in a necklace or bracelet is amplified when there is a tube attached to the young lady’s head and neck, and trails behind her.

39 Bumper 08.27.10 at 2:53 am

Aaron Worthing on 08.24.10 at 2:56 pm asked a question of me in response to my remarks:

I wrote > The education of a child and participation in extra curricular athletic activities are separate activities.

Aaron then asked > I am sorry, is it your position that phys ed is not part of the educational mission?

Why yes Aaron it is my position that as a part of the curriculum physical education classes are NOT an extra-curricular activity. Let me help you distinguish between the two, a child participating in a class activity (this instance physical education) gets a grade, for participating in an EXTRA curricular activity you might get your name in the paper for scoring the winning basket.

Based on this I can only conclude that anything you have to say on this matter is of little consequence, so I’ll leave you to your own wit.

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