A taped blood glucose monitor cost swimmer Ethan Orr and the rest of the Coronado High School relay team their state championship race, Igor Raykin says, and he’s filed a formal complaint with the U.S. Department of Justice against the Colorado High School Activities Association (CHSAA) on Orr’s behalf.
Raykin, of the law firm Kishinevsky & Raykin, says in the complaint that on June 25, Orr and his team were disqualified from the state championships for swimming and diving due to a blood glucose monitor taped to Orr’s arm. Raykin’s complaint argues that Orr’s disqualification constitutes discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
Raykin argues that CHSAA’s athletic events are considered a place of public accommodation. “A public accommodation cannot deny someone entry or access to something based on their disability,” he says. “What we said is essentially by denying this kid access to this swimming event, based on his glucose monitor, that this was a form of discrimination.”
According to Raykin, after the DOJ receives the complaint, they will determine if the DOJ has jurisdiction, and if so will then determine if the parties are willing to engage in mediation. If not, the DOJ will investigate the complaint. “There are a couple of things [we’d like],” says Raykin. “No. 1, it would be nice to get the disqualification off his record. No. 2, the big thing is the future. This kid is a junior.
Next year ... is his senior year. He wants to be able to [swim] without incident. The other thing is that, according to CHSAA rules, if you have a kid on a team roster who is ineligible for whatever reason to compete, then that entire team can be declared ineligible and then if they do go on to win something, then that victory would be wiped off the records. The concern is, here, because he had gone to seven previous events and had this glucose monitor taped up before, that they can actually wipe out all of that as though they never even appeared at the state championships. Next year, who knows? The team may not even want to take him because they’re worried about that very thing happening.”
Alexander Halpern, CHSAA’s general counsel, has released a written statement contesting the complaint from Raykin and Orr, a Manitou Springs High School junior who swims for Coronado. According to Halpern, “During the 2020-21 state swim championship, a referee noticed the student had a strip of tape on his arm. The referee asked the student if he had the necessary signed medical authorization letter as required under the National Federation of High Schools 2020/21, Rule 3-3-5 that applies to all participants. The rule specifies that tape may be used by a participant to treat a documented medical condition but the referee must be presented with signed documentation from a health care professional that certifies it is safe for the student to participate with the device attached. All coaches were informed of this requirement through multiple CHSAA notices.”
Though Orr did not have a signed medical authorization letter, which he also did not have for any previous swim meets that season, he did have a signed 504 plan on file with the school district. Those are formal plans schools develop to make accommodations for students with disabilities.
“Ethan has had a 504 plan since diagnosis, which we review with the school every year,” says Amanda Terrell-Orr, Orr’s mother. “Things kind of evolve over time about what accommodations would be more appropriate. When he was younger, he needed a lot more assistance in terms of medical assistance than he needs now.”
Halpern claims that though Orr was not allowed to compete, the Coronado team’s disqualification was not due to Orr, but to another unrelated incident that occurred after Orr was replaced for the event. “The student [Orr] did not have a signed medical authorization, and the referee advised him that he would not be able to compete in his final event, the 400 free relay,” he said. This decision was required by the rules of the NFHS that govern all participants equally and had nothing to do with the student’s disabilities. The referee also informed the coach of the decision. The coach stated that he had other athletes available for the event and the event proceeded with an alternate participant. Neither the student nor the team were disqualified. The team competed but was subsequently disqualified for an early takeoff completely unrelated to the matter of the student in question.”
Raykin contests Halpern’s claims. “This claim of an ‘early takeoff’ is the first I’ve heard of it,” he said in an email. “I provided [Halpern] with a copy of the complaint and documented evidence on Monday afternoon. Since then, he has provided me no subsequent evidence and has not provided any evidence that the disqualification was related to an early takeoff.”
Orr was diagnosed with Type 1 diabetes when he was 10 years old. His pancreas does not produce sufficient insulin, causing dangerous fluctuations in blood sugar levels. “There are so many ways in which it has affected our life,” says Terrell-Orr, Ethan’s mother. “We were committed from the beginning that anything Ethan wanted to participate in we would say yes, as much as we could. With that in mind, we started down the path of 24/7, 365 care. Type 1 diabetes is the kind of thing you have to manage every minute of every day and there’s never a break from it. The technology we have is fantastic, but it doesn’t do its job as well as a pancreas.”
Terrell-Orr notes that Orr’s disability requires a wide variety of interventions. “It includes things like having to make sure he can be safe at school, that there’s always someone at school who’s able to provide emergency care,” she says. “It involves many, many sleepless nights. It requires parenting and attention 24/7, 365. Lots of doctors appointments, lots of arguments with insurance companies about covering what he needs for his diabetes. The other thing is, as a parent, we had to work really hard to not be worried all the time about him being in danger. There are wide fluctuations in blood sugar, which is normal for people with Type 1 diabetes, but it can be very dangerous. We have had to be really intentional about not feeling like he’s in danger all the time, and that we need to be scared.”
For Orr, the incident during this year’s state championship has had an outsized impact. “Personally it was really devastating to have that happen, and embarrassing because I disqualified my entire team, not just me,” he says. “I’m not going to let this stop me from swimming. I love swimming, that’s why this is a really big thing. I’m planning on swimming for the same swim team. I hopefully will make state again this year.”