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Gary Mayerson: Why The Anthony Starego Case Is So Important

September 30, 2013

Gary Mayerson serves on the Board of Autism Speaks and is the founder of Mayerson & Associates, a Manhattan-based law firm founded in 2000 as the very first law firm in the nation dedicated to the representation of individuals with autism. This spring, Mayerson was approached by the Autism Speaks Legal Resource Center to represent the family of Anthony Starego, a Brick, NJ high school varsity placekicker with autism who ultimately won an unprecedented fifth year of playing eligibility through a settlement announced Friday with the New Jersey State Interscholastic Athletic Association (NJSIAA).

How does the Starego case represent a victory for inclusion for people with autism?

The Starego case reflects the next frontier for “inclusion”—competitive inclusion. In the past, inclusion in the context of public school sports meant, at best, warming the bench or serving as the team’s statistician or equipment manager. We have for years been comfortable including people with autism and other disabilities so long as they have remained on the periphery. Now, however, we must anticipate that there are likely to be many more Anthonys in the years to come, offering genuine competition where the outcome is going to “count.”  This is going to happen on the playing field, as well as in competing for higher education and employment opportunities. It is a miracle that Anthony managed to achieve varsity “starter” status. However, in ten years, that miracle is likely to become more commonplace. In other words, real progress.

Some in the autism community have argued that providing exclusions and waivers for people with autism defeats the goal of mainstreaming, that people with autism should "play by the rules" like everyone else. How do you respond?

That makes about as much sense as saying kids with autism shouldn't have IEPs and special education services. We're not pretending there are no differences, rather we are accommodating exceptionality to give students like Anthony a fair shot. It is important to keep in mind that Anthony is entitled to stay on at Brick High School until he turns 21. This settlement doesn't say that Anthony is guaranteed to be Brick's starting kicker. Anthony has to compete for that just like everyone else. If Anthony's coach decides that another player is more qualified, he can choose that player to be the starting kicker.

How did litigation lead to a successful outcome?

Most reported decisions pertaining to a student with a disability involve a situation where the student is at odds with the student’s school district. Here, Anthony and his school district agreed that Anthony would be staying on at Brick as an IEP student. Here, Anthony’s school district did the right thing and fully supported Anthony’s application for a “one further season” waiver. Brick Township had the courage and integrity to stand up for what was right from the outset. And ultimately, even the NJSIAA had the courage to reconsider its earlier ruling so as to do the right thing. I have special appreciation for all the teams who were polled by the NJSIAA who potentially could have thrown a monkey wrench into the settlement. They are the unsung heroes of the case. Any one of them could have said that they had a problem with Anthony competing against their team, but they didn't. Inclusion always works best when everyone puts out the "welcome" mat.

So the outcome, legally, was a win?

Legally, it will be left to a future court to adjudicate the ADA and IDEA claims. In all other respects, the outcome was a win for Anthony, who gets to continue playing the game that he loves, with teammates who respect him and who are inspired by him. The outcome of the litigation shows that “winning” does not have to entail humiliating or destroying your adversary. Here, all of the parties and the court can take credit for working together to achieve a noble and uplifting result.

Are there larger lessons to be learned from this case for people with autism?

The fact that Anthony may not be suitable to play certain positions (e.g. quarterback, running back, linesman, punter, wide receiver) did not disqualify Anthony from becoming a valuable member of his team. For students with autism, it is essential to focus the investigation on what the student can or be taught to do, rather on the things the student ostensibly cannot do. To their credit, Brick’s coaching staff and Anthony’s father worked with Anthony until they found a niche skill set that Anthony could develop with demonstrable efficacy, ultimately allowing Anthony to become a valuable and respected member of his varsity team as a “starter.” This demonstrates that there are many things that people with autism can achieve, provided that they have the right teaching support and sufficient practice opportunities. With autism as with any other significant disability, we need to have high expectations and be persistent. Vince Lombardi was right:  “Winners never quit and quitters never win.”