Mom asks court to intervene so son can compete

Autistic student, who will turn 21 in January, needs waiver from state to race

By Patrick Lakamp
The Buffalo News

ORCHARD PARK, N.Y. (AP) — One of David Gorczynski’s legs is shorter than the other, and he has finished last in every race during his three years on the Orchard Park High School cross country team. But that never stopped him from competing.

Neither did his other disabilities, including an autism spectrum disorder, keep him from reaching the finish line, where his teammates often wait to cheer for him.

“He was smiling every time he crossed the finished line, and everyone was clapping,” said Jacob Eneix, last year’s team captain.

But Gorczynski’s fourth and final year on the Quakers cross country team is very much in doubt. Unless a judge intervenes, Gorczynski has run into an obstacle that will keep him off the team during the coming school year: a state regulation.

The state has refused to grant the 20-year-old autistic student a waiver to participate in the team sport again.

“David is part of a team. He is part of something. If the state takes that away from him, it would destroy him,” Eneix said. “I like to think of Orchard Park cross country as a family, and it wouldn’t be the same family without David. He is a great kid, and it would kill me if he couldn’t run.”

State education law permits a high school student to participate on school sports teams until the last day of the school year during which the student turns 19 years old. Gorczynski, 20, was allowed to join the Quakers cross country team last school year under a waiver the state grants to students whose education has been delayed because of their disabilities.

Gorczynski will turn 21 in January, and he needs another waiver to participate in cross country during the coming school year. But state education law provides for a waiver for one year — not for a second year.

Mary Ellen Gorczynski has asked for a State Supreme Court ruling allowing her son to compete during the coming school year. She has sought an injunction preventing the defendants — the New York State Education Department, the Orchard Park Central School District and the New York State Public High School Athletic Association — from enforcing the age

Each of the defendants asked the court to dismiss the motion.

Mary Ellen Gorczynski declined to comment for this story. But in an affidavit for court case, she said: “It is very important that cross country is an integrated activity where David gets an opportunity to socialize with nondisabled peers outside of school, especially as David’s classes except for gym are with all special needs students.”

Gorczynski’s court papers contend that the decision not to grant a second waiver violates the Americans with Disabilities Act, the New York Civil Rights Law and the New York and U.S. constitutions.

“But for David’s disability, he wouldn’t be in this predicament,” said Linda J. DeTine of Neighborhood Legal Services during a hearing last week before Justice John L. Michalski.

Jill Yonkers, an attorney representing the Orchard Park Central School District, told Michalski the district is simply following a state regulation. If state regulations provided for a second-year waiver, and Gorczynski met the criteria, the district would allow him on the team again, she said.

Assistant Attorney General Benjamin K. Ahlstrom, representing the state Education Department, asked Michalski for a quick decision, given that cross country practice starts next month.
After hearing from the lawyers at Wednesday’s hearing, Michalski reserved judgment.


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