The Illinois High School Association doesn’t have to create a separate track and field division for disabled athletes who can’t achieve the qualifying times for state-level competition in certain events, the US Court of Appeals for the Seventh Circuit ruled on February 2.
The case involved a student at Evanston Township High School in Chicago’s northern suburbs. Identified by the initials AH in the court filings, he has been a three-sport athlete (swimming, track and field, cross country) since he was a freshman. But he has a disability diagnosed as spastic quadriplegia, which is secondary to cerebral palsy, and his ability to control the muscles in his legs and hips is severely compromised.
As a result of that disability, he can’t run as fast as the he would need to run to come in under the highly demanding qualifying times for the IHSA’s state championship meet in track and field. He is, however, is gifted athlete, having competed in the International Paralympic Committee national championships as a T‐36 disabled athlete, against peers who have a similar disability that affects muscular control.
He asked the IHSA to make some changes to how runners qualify for the state finals, but his request was denied by the IHSA executive director, who has the lone word in cases involving accommodations for disabilities, by the association’s 10-member board on appeal, by the US district court in a lawsuit, and now by a three-judge panel on the Seventh Circuit. The changes he sought were:
- Change the qualifying times for the state meet for disabled runners
- Create a separate division for the state meet for disabled runners
- Provide a modified starting block that could accommodate disabled runners
The IHSA granted the last request since, they said, it didn’t fundamentally alter the nature of the state meet’s high level of competitiveness. But the other two requests were denied, and the Seventh Circuit held that they were “unreasonable as a matter of law.” In other words, the case never proceeded to a finding of fact.
Section 504 and the Americans with Disabilities Act expand the requirements of government to accommodate students with disabilities and give them the same opportunities to participate as other students have. It has been likened to Title IX, which gave female students equal opportunity to participate in government programs, including public schooling, as their male counterparts had.
This is where the dispute begins. If we follow the IHSA’s logic, which the majority on this court did, it would fundamentally change the state meet if a lower qualifying time were used for T-36 athletes. The majority referenced a Supreme Court decision in which a professional golfer had requested the accommodation of using a cart to get around on the golf course while non-disabled golfers were required to walk from one shot to the next. In that case, the Supreme Court found for the athlete and forced the PGA to modify the rule. They made that decision on the understanding that the essence of golf had nothing to do with walking from one hole to the next but on the ability to get the ball into the hole.
The IHSA argued that the essence of the state meet is that it is highly competitive and only a small percentage of non-disabled runners can meet the qualifying times anyway. Relaxing those qualifying times for disabled runners would fundamentally change the nature of the meet.
The law itself focuses on discrimination against disabled athletes, and the burden of proof generally falls on the disabled athlete to show that he has been discriminated against.
… the Supreme Court has recognized a duty to provide reasonable accommodations in Section 504 of the Rehabilitation Act. See Alexander v. Choate, 469 U.S. 287, 301 (1985) (noting that “to assure meaningful access, reasonable accommodations in the granteeʹs program or benefit may have to be made”). Thus, we have recognized that disability discrimination under the Rehabilitation Act and the ADA can be established in three different ways: “(1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people.”
The court uses what is known as the “but-for” rule in cases like this. It asks, “But for the disability, would the disabled athlete have been able to achieve his goals?” If the goal was to qualify for state, that can’t be shown in any fruitful way, since AH is, in fact, disabled.
The IHSA said that it would be highly unlikely, though, since fewer than 10 percent of non-disabled athletes achieve the state qualifying times to begin with, but even the IHSA has to acknowledge that the question of whether AH could meet the times “but for” his disability is absurd and totally hypothetical.
But is the goal of state meets to include “the fastest runners in the state,” or is it to run the fastest among one’s peers in the state? AH challenged this idea in his argument, but it was rejected by the majority. Still, just because Usain Bolt happens to come to Illinois at some point, we wouldn’t let him qualify for state—Bolt isn’t exactly a peer of high school runners.
And consider this: The IHSA has already created a separate division or category for female athletes to allow them to qualify based on times achieved by their peers, on the assumption that girls can’t achieve the same times as boys. Justice Ilana Rovner brings this up in her dissent:
This is akin to saying that allowing women to run in Olympic track events, where the qualifying times are lower, “undermines the competitiveness” of the men’s Olympic track events. As AH argued, “under IHSA’s theory, allowing Serena Williams to play tennis at Wimbledon or Katie Ladecky to swim at the Olympics would somehow ‘strip’ those competitions of their identity and prestige, devaluing the achievements of Roger Federer and Michael Phelps.”
The IHSA has, in fact, already created separate categories or classifications for smaller schools, he argues, and giving runners at smaller schools a higher qualifying time for the state meet than those at larger schools has nothing to do with the essence of track and field, either. Why not create a separate category for disabled runners?
But the opinion of the majority won out here. Medical schools, for instance, can’t be forced by Section 504 or the ADA to reduce the allow students to take only those classes that can accommodate their disability, since completion of all the medical school classes is required for training as a physician and for performing in the role of a physician after medical school.
“AH currently has the opportunity to compete in the Sectionals meet in order to qualify for State,” the court wrote. “The IHSA guarantees AH this equality of opportunity, and by all accounts, AH, his teammates, and coaches have benefited tremendously from his participation on the track and field team. However, the IHSA is not required under federal law to guarantee AH the results he desires from those opportunities.”
“This ruling does not summarily prevent the IHSA from considering adding any future participation opportunities; instead, it simply emphasizes that we have successful procedures and protocols in place for our member schools to enact change as they see fit,” IHSA Executive Director Craig Anderson said in a statement.
In some ways, the dissent sheds light on the possibility of an appeal to the Supreme Court. But in any event, it’s not a question of providing accommodations but of when those accommodations might happen and how the IHSA will structure them with fairness to all student-athletes.