by Maureen Anichini Lemon (Fall 2017)
In a recent opinion and order, the United States District Court of the Northern District of Illinois granted summary judgment to the Illinois High School Association (“IHSA”) on all but one issue raised in a lawsuit claiming disability discrimination. A.H. v. Illinois High School Association, 2017 WL 2907840 (N.D. Ill. 2017). A.H. is a high school student with cerebral palsy. Since his freshman year, A.H. has been a member of his high school’s swim, track and cross-country teams. Additionally, he participated in the 2016 U.S. Paralympic Trials, and is considered an ‘elite’ and ‘up and coming’ athlete in adaptive sport competitions.
Despite these achievements, A.H. has never run fast enough at sectionals to qualify to compete in the IHSA’s state finals for track. A.H. made three requests to IHSA: (1) that he be allowed to use a modified starting block; (2) that IHSA create qualifying time standards for para-ambulatory athletes for the state finals; and (3) that IHSA create a para-ambulatory division in its annual 5K Road race. The IHSA allowed A.H. the use of a modified starting block, but denied the request for different time standards and for a new para-ambulatory division.
Because of the IHSA’s denial of two of A.H.’s requested accommodations, he brought a lawsuit alleging violations of Section 504(a) of the Rehabilitation Act (“Section 504”), Title II of the Americans with Disabilities Act (“ADA”), and the Equal Protection Clauses of the Illinois and federal constitutions. IHSA moved for summary judgment on all claims.
After addressing several jurisdictional issues, the federal court focused on whether the IHSA’s refusal to grant the requested accommodations discriminated against A.H. by reason of his disability. Did the refusal to accommodate A.H. deprive him of “meaningful access to the benefits” granted by the IHSA? To succeed on this claim, A.H. must show a “but-for” causal connection between his disability and his ineligibility to participate in the State track final or Road Race. According to the court, A.H. was unable to meet this ‘but-for’ standard.
IHSA’s qualifying time standards prevent not only para-ambulatory racers like A.H. from competing in the state finals, but they prevent 90% of the state’s non-disabled high school runners from competing in the state finals. A.H. would have to have demonstrated that, but for his disability, he would have been among the State’s 10% elite runners who qualified to participate in the state track finals. While A.H. would likely be able to decrease his running time were he unencumbered by cerebral palsy, his current speeds are not close enough to the qualifying times of non-disabled athletes to assume that his disability is the but-for causation for his inability to qualify. The court concluded that it is IHSA’s highly selective standard, and not A.H.’s disability, that prevents him from having a ‘meaningful change’ to qualify for IHSA events.
The court further concluded that, even if A.H. could prove that he would have qualified for the IHSA events but for his disability, his request that IHSA establish a lower qualifying standard would not be a reasonable accommodation. The court reiterated the well-established rule that an accommodation is unreasonable if it would (1) fundamentally alter the nature of the program or (2) create undue financial and administrative burdens. 28 C.F.R. §35.130(b)(7). Here, A.H.’s requested accommodations would not create undue financial or administrative burdens. They would, however, fundamentally alter the nature of the State track finals by lowering the qualifying times necessary to compete in the state finals.
The court cited to Southeastern Community College v. Davis, 442 U.S. 397 (1979), for the proposition that institutions do not need to lower their competitive standards for individuals with disabilities. Two scenarios exist in which an accommodation fundamentally alters a sporting event: (1) when it changes an ‘essential aspect of the game;’ or (2) when it gives a disabled player an unfair advantage. For example, allowing a wheelchair racquetball player two bounces instead of one before returning the ball would alter the nature of racquetball. Kuketz. V. Petronelli, 821 N.E.2d 473 (Mass. S. Ct. 2005). In PGA Tour, Inc. v. Martin, 532 U.S. (2001), the U.S. Supreme Court noted that the essential nature of golf is shot-making, and that allowing a disabled golfer to ride a cart would not fundamentally alter the essential nature of the game of golf. Allowing Martin to ride a golf cart did not confer a competitive advantage on him and he otherwise had the skill to compete against non-disabled golfers. By contrast, the A.H. court found that A.H. does not have the ability to compete with runners who are not disabled; rather, he seeks an accommodation to make him competitive.
The court separately considered A.H.’s request for para-ambulatory runners to start at different times or in different lanes. A.H. made this request to ensure the safety of all runners. This accommodation would not change the essential nature of the race but could facilitate participation by para-ambulatory runners who might not otherwise run due to safety concerns. Because the parties did not address whether creating a separate division would be a reasonable accommodation, or whether a lesser accommodation would be feasible, the court denied the IHSA’s motion for summary judgment on the Road Race failure to accommodate claim.
Finally, the court rejected A.H.’s equal protection claim. Because disabled individuals are not a suspect class entitled to heightened scrutiny on such claims, the court analyzed whether the IHSA had a rational basis for its decision. The IHSA’s desire to provide an integrated environment without altering the essential nature of the competition is rational. A.H. relied on the fact that the IHSA has a separate division for wheelchair users to buttress his argument that it is a violation of equal protection to deny para-ambulatory athletes a different division. The court disagreed, noting that wheelchair users are engaged in a fundamentally different activity, ‘wheeling’ as opposed to ‘running.’ The court opined that it is rational to group runners with runners, and to group wheelchair users in a separate group.
The A.H. ruling is a reminder to Illinois school districts of the obligation to provide ‘reasonable’ accommodations to disabled students to provide ‘meaningful access’ to the school districts’ programs and activities. If a student requests an accommodation to allow him/her the opportunity to participate in a sport or extra-curricular activity, ask whether the accommodation would fundamentally alter the nature of the program, create an undue financial burden, or create an undue administrative burden. If the answer is ‘no’ to these three questions, the school district should offer the accommodation to avoid a charge of disability discrimination. If you have any questions regarding your obligations to accommodate students in athletics or other programming, please contact Maureen A. Lemon or another Ottosen Britz attorney for assistance.