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5th year Orchard Park senior with autism can't play football, Section VI says

When the Orchard Park High School varsity football team opens its season Sept. 2 at home against Pittsford Mendon, Jacob B. Kohler wants to be in uniform on the sideline.

“I love the intensity,” he said. “I love the speed. I actually kind of like getting hit.”

But Kohler, 18, who was diagnosed with autism as a child and needs a fifth year to graduate, has been ruled ineligible to play by Section VI, which governs Western New York high school sports.

Kohler has exhausted his four years of high school sports eligibility, said Section VI Executive Director Timm Slade.

“Once you enter ninth grade you have four years of participation,” he said. “Whether you participated on a team or not, you only have four years of participation.”

Kohler and his parents see things differently. They contend his autism disability prevented him from being physically and mentally ready to play sports during his freshman year, and he should be afforded another year.

“He can’t walk out on the field and do something illegal without getting a flag thrown at him,” said Jacob’s father, Scott E. Kohler. “I feel like there should be a flag thrown at New York State athletics and somebody should get in trouble.”

If Kohler is allowed to play, he’s unlikely to change the outcome of Orchard Park’s games. He is not a star. He does not start games. In past years, he has only been sent onto the field at the end of games when the outcome was already decided.

But participating in sports has helped Kohler develop into a better student, his parents say.

The Kohlers have appealed Section VI’s denial to State Education Commissioner MaryEllen Elia and are awaiting her decision.

Jacob Kohler carries the ball at practice for the Orchard Park High School varsity football team in Orchard Park, N.Y., on Friday Aug. 19, 2016.  (John Hickey/Buffalo News)

Jacob Kohler carries the ball at practice for the Orchard Park High School varsity football team in Orchard Park, N.Y., on Friday Aug. 19, 2016. (John Hickey/Buffalo News)

Difficult freshman year

Kohler’s case follows several other recent local instances of fifth-year disabled students who were denied eligibility.

In 2009, rules kept special education student Jordan Maliken from joining his Amherst Central High School track teammates and competing for a fifth season. The state Board of Regents voted unanimously the following year to authorize school superintendents to allow fifth-year students with disabilities to be non-scoring participants in non-contact sports.

In 2013, David Gorczynski, an autistic 20-year-old on the Orchard Park High School cross country team, was allowed to participate during his fourth and final year of high school thanks to a State Supreme Court ruling exempting him from a state age restriction.

The Kohlers cite a state education regulation that if “a pupil’s failure to enter competition during one or more seasons of a sport was caused by illness or accident, such pupil’s eligibility shall be extended accordingly in that sport.”

Jacob Kohler’s freshman year of 2012-2013 was very challenging due to many factors related to his autism diagnosis, according to the family’s petition to Elia.

“Jacob suffered from a high anxiety level due to a delay in motor skills, a lack of skill in interacting with others, little understanding of the abstract uses of language, such as humor or give-and-take in a conversation,” the petition states.

When he started high school at age 14, Kohler was only 4 feet 6 inches tall and weighed 72 pounds, placing him in the 1st percentile for height and weight, according to the family.

“Due to his disability he had difficulty consuming enough calories in a day to function,” the Kohlers wrote.

He also failed all but two of his freshman year classes and had a hard time making friends. Playing sports wasn’t even a consideration, they said.

Joining sports

Kohler in his sophomore year joined the cross country track team – the only sport he was physically ready for, his family says.

“Even though Jacob finished last in every race he made progress from the start of the season, finishing a 5K race in 36 minutes at the start to finishing in 27 minutes at the end of the season,” according to the petition.

His parents also noticed other marked improvements, including less time spent away from the classroom.

Kohler in November 2013 expressed an interest in playing football, so his doctor set height and weight goals of 5 foot 3 inches and 120 pounds, which he met at the end of his sophomore year after working out with the football team and on his own at the YMCA.

“Not one time did I ever have to tell him to work out,” said his father. “It was all on him. I’ve never been around a kid that motivated.”

He played on the junior varsity football team during his junior year and as a wide receiver on the varsity team last year. His workout regiment also includes high-intensity workouts at STA, a private Elma gym for athletes.

Kohler proudly points out he can now deadlift 350 pounds and completes 800 to 1,000 pushups every other day. Today, he stands 5 foot 8 inches tall, weighs 153 pounds and passes his classes.

“We definitely feel like the participation in sports and what it did for his body overall also had distinct psychological benefits,” his father said Sunday at the family’s kitchen table. “I don’t think for two seconds that the person sitting next to me right now would be the same person if he had not been involved in sports.”

Petition to play

The first indication something was wrong came in a June 30 email from Orchard Park’s athletic director, who said Jacob was not eligible, Scott Kohler said. It came as a surprise because Kohler said he was told last year Jacob would be eligible, when it became apparent he would need a fifth year to graduate.

On July 28, on the Kohlers’ behalf, Orchard Park asked for a waiver from Section VI allowing Jacob to play and submitted evidence, including a letter from Jacob’s psychologist documenting his freshman year difficulties.

But in an Aug. 1 response, Section VI denied Jacob’s eligibility because “The petitioner was never denied the opportunity to participate in high school athletics during the ninth grade year.”

Slade, of Section VI, said he couldn’t comment on a specific case. But he said the state regulation cited by the Kohlers is reserved for a student who misses a semester or more of school due to injury or illness.

He used as an example a student who plays girls soccer but is hospitalized after a car crash and unable to attend school or participate in soccer that year. That student would be eligible to play during her fifth year.

“We’re upholding the commissioner’s regulation,” Slade said. “We can’t just arbitrarily say, ‘Oh, you can participate.’”

A decision on a petition to the state Education Department typically is returned after eight to 10 months. Football season will be over in November.

State Sen. Tim Kennedy is trying to expedite that process by reaching out to Elia’s office and asking for a quick decision.

“If we take away Jake’s ability to partake in football this year, it’s going to send a very negative message not only to our community but to the rest of this state,” said Kennedy, an occupational therapist who also advocated for Gorczynski in his case. “I believe strongly, as his family does, it will hinder his academic and physical, social and emotional well-being. It makes all the sense in the world for him to be able to gain this waiver.”

New York’s Department of Education said it could not provide any statistical information about the number of appeals filed that are similar to Kohler’s or the outcomes of those appeals.

‘A loud voice’

Meanwhile, Kohler has been allowed to continue practicing with the team while his appeal is under review.

“Practice has been going really well for me,” he said Sunday. “It’s all starting to pay off after all these years of working out constantly.”

He caught two passes for touchdowns during a practice this week. But he’s not a starter and only gets on the field for a few plays, generally at the end of a game if the team is way ahead. He’s hoping to play more this season.

“I love my teammates,” he said. “I love being around all my friends. It’s just so much fun.”

The feeling is mutual, said Dillon Janca, Orchard Park’s quarterback.

“He’s a great kid,” said Janca, 17. “I’d say he’s one of the hardest working kids on the team. He’s great to be around and I know everyone else wants him to be part of the team.”

Janca noted how dedicated Kohler is at working out and seeking extra practice. He’s also a vital component of the team, which last year won the Section VI Class AA championship.

“When you’re just talking to him he’s real quiet but during games and during practice he’s always cheering us on,” said Janca. “He’s a loud voice to get us going, get us pumped up and cheer us up during practice and during games.”

The team stopped giving out playbooks several years ago because players were losing them, and they were ending up in other teams’ hands. So Jacob Kohler made his own. He also quit his part time summer job to focus on football.

His parents say he’s more confident, mature and that Jacob is a “success story” for the positive effects of sports.

“This is what keeps him going every day and what he loves,” said his mother, Lisa Marie Kohler. “It’s heartbreaking watching your child work so hard for something that they’re denied for no good reason.”


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