I love to follow sports. Accordingly, over the years, I have found a way to combine my interest in sports with the Americans with Disabilities Act. As far back as the first edition of my book, which is now in its third edition and I am working on the fourth, I have always had a section on how the Americans with Disabilities Act applies to sports. Not surprisingly, I read Illinois ex rel. Madigan v. Illinois High School Association, 2012 WL 3581174 (N.D. Ill. August 17, 2012), with great interest. This case is fascinating in a lot of respects. The case involved a lead plaintiff who is 16 years old and swims for Fenwick high school (Id. at *1), a private Catholic high school in Oak Park Illinois and an athletic powerhouse. While her swimming time placed her among the top adaptive high school swimmers in the state of Illinois, her disability prevents her from meeting the qualifying standard that the Illinois High School Association sets for students without disabilities, and therefore she is unable to earn points for her team at meets. Id. She wanted the opportunity to qualify for the state championship meets in swimming and track, which she also competes in, and to earn points for her team during the 2012-2013 sports season. Id. Prior to this lawsuit, the Great Lakes Adaptive Sports Association met with the plaintiff, her high school, and the Illinois High School Association to discuss ways that athletes with disabilities could compete in the state track and swimming championship. Id. at *2. The Illinois High School Association was presented with a written proposal requesting that they modify their policies to include qualifying time for students with disabilities and an exhibition heat for swimmers with disabilities at the state swimming championship, but the Illinois High School Association didn’t respond to the proposal. Id. Subsequently, the Illinois Atty. Gen. became involved and made additional proposals, all for naught. Id. In fact, the Illinois High School Association filed a preventive law suit against the Atty. Gen., which was then transferred to the federal court. Id. The swimmer filed her own lawsuit alleging that the Illinois High School Association discriminated against her and other student with disabilities in violation of the Americans with Disabilities Act and the Rehabilitation Act of 1973 in several different respects. See id. at *2. Finally, the Department of Justice Civil Rights division also became involved and filed a statement of interest as well. Id. The Illinois High School Association filed a motion to dismiss on three different grounds, which the court denied in all respects. Id. at **3, 6.
There were several issues in the case. Before getting to the issues, it is important to remember that this was a motion to dismiss. Therefore, so long as the plaintiff sets forth facts that are sufficient to state a cause of action, what the actual facts may reveal down the road are not relevant at a motion to dismiss. The first issue was whether the plaintiff had alleged sufficient facts for their claim that the Illinois High School Association would be covered by § 504 of the Rehabilitation Act. Id. at *3. In order to be covered by §504 of the Rehabilitation Act, an entity must take federal funds. The Illinois High School Association tried to argue through an affidavit that they did not take federal funds. Id. However, the court, in an opinion by Judge Joan Gottschall of the United States District Court of the Northern District of Illinois, noted that the complaint stated that the Illinois High School Association received federal funds both directly and indirectly, and that a motion to dismiss was not the place to accept additional evidence.
Second, the Illinois High School Association argued that they were not subject to title II of the Americans with Disabilities Act. As readers of this blog know, title II of the ADA prohibits public entities from discriminating in their programs and activities. The Illinois High School Association tried to argue that they were not a public entity and that the title II claim should be dismissed. Id. The court did not buy that argument. More specifically, the court noted that plaintiffs alleged that 98% of the Illinois school members of the Illinois High School Association and that all Illinois public high schools were supported by public taxation, recognized by the Illinois Board of Education, and the Illinois High School Association oversaw the schools in Scholastic sports programs in high schools in a very specific and detailed manner. Id. at *4. Therefore, the court said that the facts did allege that the Illinois High School Association was an instrumentality of a State or or local government thereby subjecting it to title II of the Americans with Disabilities Act.
Finally, the Illinois High School Association tried to get the title III claim dismissed as well. The court didn’t buy that either. In particular, the court said that there were sufficient facts alleging that the Illinois High School Association owned, leased, or operated the place of public accommodation and therefore was subject to title III of the Americans with disabilities act. Id. at *5. The court did leave open the question as to what level of control was sufficient to justify a finding that the Illinois High School Association owned, leased, or operated places of public accommodation. Id. at *6.
There are lots of things interesting about this case. First, the high school athletic associations of the various states would do well to read this case if for no other reason in order to help them anticipate future litigation and to develop preventive systems should they desire to forestall that. Second, one normally doesn’t think that a public entity and a place of public accommodation could be the same defendant in the same case. However, this case shows how such a finding may be possible. From a plaintiff perspective, there are advantages to being able to claim coverage under title II of the ADA as well as title III of the ADA as title II of the ADA would lead to damages and title III of the ADA does not. Also, being able to claim title two and title III of the ADA, for reasons mentioned previously, allows the plaintiff to probably move into mixed motive territory down the road should that be necessary where a § 504 claim does not allow for that. This case will certainly be worth following in the future.