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State, not his disabilities, sidelines Orchard Park student athlete

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.

When Mary Ellen Gorczynski requested another waiver for the 2013-14 school year, the state Education Department told her and the school district that he could not receive a second waiver. So she has asked for a State Supreme Court ruling allowing her son to compete with the Orchard Park High School cross country team 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 restriction.

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.

The state allowed him to compete as a 20-year-old, she pointed out.

“None of the defendants have given you any reason you’d treat a 21-year-old any different,” she said.

Gorczynski has attended the high school since the 2010-11 school year, but due to his disabilities, he remains an ungraded student. The coming school year will be his last in the high school. He has participated in cross country for three years.

DeTine called his participation in the school sport “a wonderful model of inclusion.”

The other members of the team have embraced him, she said.

‘Our hands are tied’

Jill Yonkers, an attorney representing the Orchard Park Central School District, told Michalski the district is simply following a state regulation.

“It’s not Orchard Park’s regulation,” Yonkers said. “It’s nothing Orchard Park has done.”

“It is a very sympathetic case, but our hands are tied,” she told The News.

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.

“If the regulation says you get one waiver, you get it,” she said. “If it says two waivers, we’ll do it.”

But since the state regulations only allow for one waiver, the school district has done all it can do for Gorczynski, she said.

“Orchard Park gave all the relief it could last year” when he got a waiver to participate in the sport, she said.

In the court hearing, Yonkers countered Gorczynski’s constitutional claim.

“There is no constitutional right to play sports,” she said.

Renee James, a lawyer for the New York State Public High School Athletic Association, told Michalski that the voluntary association has “no authority to override” the state regulation.

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.

“The question is not whether you agree with the regulation or think it’s wise,” Ahlstrom told the judge. “The question is whether the regulation discriminates against those with disabilities.”

Ahlstrom said the regulation does not discriminate and gives “equal treatment.”

After hearing from the lawyers at Wednesday’s hearing, Michalski reserved judgment.

Team embraces Gorczynski

Gorczynski is classified as a student with multiple disorders by the Orchard Park Committee on Special Education, which provides an individual education plan for him, according to court records.

Because of that plan, his participation in cross country “rises to a level of a right,” said DeTine, Gorczynski’s lawyer.

The Orchard Park High School cross country team has a no-cut policy, so he has been able to participate on the junior varsity team for all three of his high school years. And no other student has been displaced from the team because of his participation.

In meets, only the fastest runners’ scores count, so no matter how long it takes him to finish a race, his times do not count and his last-place finishes do not count against the team’s overall score.

In court papers, his running form was described as a “galloping gait” rather than running, because of his disabilities.

In her affidavit, Gorczynski said: “I have seen David interact with the nondisabled team members. They go out of their way to interact with him, and he responds very positively. Even David’s first year on the team, the other boys and girls on his team would get permission from the meet officials to go back on the course after finishing their own races in order to ‘run David in,’ meaning they would run alongside him yelling encouragement.”

And how does she know that he likes running with the team?

“David has sensory issues. He hates rain, he hates mud, and he hates wearing his wind breaker pants,” she said in the affidavit. “David will run cross country in his wind breaker pants in the rain on the muddiest course without quitting. This is also how I know he really likes it.”

Eneix, the captain, agreed.

“This kid has been running for as long as I can remember,” he said. “I see it on his face: He loves it.”

Because of his athletic achievements – he has broken the five-minute mile – Eneix signed a letter of intent to run cross country and track at Mercyhurst University in Erie, Pa.

But he and other teammates rooted for Gorczynski just as much – if not more – than anyone else on the team.

“He was part of the team, from Day One,” Eneix said. “As captain, I wanted cross country to be a place kids could go and have the time of their lives and be accepted.”

But the state regulation, for now, will keep Gorczynski from being part of the team again.

“That just kills me,” Eneix said, that “they would allow that.”