Forces are in motion to keep David Gorczynski on the Orchard Park High School cross country team, and if good intentions combined with political influence have any clout, they just might succeed.
Gorczynski’s teammates, coaches and team members of Orchard Park’s rivals have come forward on the autistic runner’s behalf, and scores of parents and students have signed an online petition started by a supporter to “Let David Compete in XC.”
And now, he also has a state senator and at least some members of the Board of Regents on his side.
Because of his age last year – he was 20 – Gorczynski was granted a waiver to participate in cross country last season. But he was denied a waiver this year under a “one per customer” limit included in the Regulations of the Commissioner of Education.
The problem is a subsection of a subclause of a clause of a subparagraph of paragraph 7 of subdivision (c) of section 135.4 of the education rules – an otherwise well-intentioned set of guidelines that make it possible for students with disabilities to participate in noncontact sports regardless of their age or the number of seasons they have played. The subsection says that if a student has been granted a waiver once to play an extra year – whether it’s a fifth season or because he or she is older than 19 – the student can’t have another waiver.
Gorczynski’s mother, Mary Ellen Gorczynski, is seeking an injunction in State Supreme Court to keep the school district and state from enforcing the decision, but a resolution could come too late for her son. The team begins practice in three weeks.
After learning of Gorczynski’s situation through a Buffalo News report last week, State Sen. Tim Kennedy decided to intervene. He said he sees no reason for the limit on waivers and calls the results “unconscionable.”
“I’m not aware of why that subsection is in there, but the bottom line is we simply need to change it,” Kennedy said. “The effect otherwise is adverse for David and for student athletes all over New York State whose families have been denied the waiver and who don’t challenge it.”
Kennedy last week contacted State Education Commissioner John B. King Jr. and members of the Board of Regents, asking that the 21 words that are keeping Gorczynski off the team be stricken from the regulations.
Robert M. Bennett, Western New York’s Regent representative and the board’s chancellor emeritus, said he fully supports Kennedy’s request.
“My preference is always to help the student,” Bennett said. “I’m going to speak to the commissioner, and I would advise (Gorczynski’s) family to request another waiver.”
Because the Regents do not meet again until mid-September, Bennett said he also supports Kennedy’s request that King grant an “emergency waiver” immediately so Gorczynski can join his teammates for practice later this month.
“My guess is the commissioner will grant it if he can find some wiggle room here,” Bennett said.
Kennedy said once the emergency waiver is granted, the full board can officially take up the rule change in September.
Gorczynski’s troubles may have surprised those familiar with the case of Jordy Maliken, another autistic athlete who in 2009 was not allowed to compete in track for a fifth year at Amherst High School. In response to public outcry over Maliken’s situation, the Board of Regents changed the rules a year later. The amendment allowed disabled athletes whose participation did not affect the outcome of the competitions or keep younger students off the teams to compete for a fifth year, or beyond 19-year-old age limit.
It was too late for Jordy, but the rule change is what kept Gorczynski running last year.
Lawyers for Orchard Park School District said the district is bound by the state regulations and helpless to overrule them. Schools that deliberately field players known to be ineligible for any reason can face a number of sanctions, including forfeiting the contest. They also are not allowed to permit ineligible athletes to participate in team practices.
Justice John L. Michalski heard Mary Ellen Gorczynski’s request for an injunction against denial of the waiver on July 17 and reserved judgment. Linda J. DeTine of Neighborhood Legal Services, who is arguing on Gorczynski’s behalf, said a date has not yet been set for him to issue a ruling.
Meanwhile, support for the runner – who has finished last in every race, who has one leg shorter than the other and who crosses every finish line with a smile – continues to grow.
From testimonials posted on the online petition to let him keep running, it is clear he isn’t the only one who benefits by being on the team.
For instance, Taylor Jezuit, who was on the team with Gorczynski for two years, signed the petition and added a note.
“David doesn’t just need OPXC, OPXC needs David, to continuously remind them of their love of the sport and also remind them of how, even when a race is tough, you just need to keep smiling and keep running,” Jezuit wrote. “He always did this for me at every practice and every race.”
David Sardo also commented while signing the petition.
“… Common sense should reign in this instance,” Sardo wrote. “David is a walking lesson in humanity for all those who come in contact with him. Cross Country is one of the few sports where a student can fully participate, be congratulated for effort, and NOT be a concern with regard to size, age, matchups, etc.”
Besides his legislative job, Kennedy is also an occupational therapist, which gives him another, professional view of how athletics can help disabled athletes.
“These students are already facing so many hurdles from a very young age, to put this one – to put essentially a brick wall in front of them because they have a disability – is just wrong,” Kennedy said.
He noted that he does not believe he is asking for special treatment for the athletes, but only that the state not set up artificial barriers for them.
“Our goal in society is to create an environment of independence for everyone, and that’s what they are learning,” Kennedy said.