Before starting the blog for this week, a couple of preliminary matters. First, about a month ago, I hit 300 blog posts. I simply could not do it without the loyal readership of the people here. Thank you! Also, my last blog entry dealing with animals on planes really took off. The Texas Bar informed me that it was a top 10 blog entry for the week (I had posted a link for it on the animal law section of the Texas Bar listserv). So, again thank you!

The case of the day comes from the Seventh Circuit and is A.H. v. Illinois High School Association. The case contains some strange reasoning and a vigorous dissent as well as being about a topic, ADA and sports, that has long interested me. As usual, the blog entry is divided into categories and they are: facts; majority reasoning causation; majority reasoning fundamental alteration; dissenting opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff is a three sport athlete in Cross-Country, swimming, and track and field at Evanston Township High School (north suburban Chicago) since his freshman year. He is a full member of the track and field team and has never been prevented by his school or the Illinois High School Association from being on the team or participating in individual school meets. For a paralympian, he is considered an elite athlete and competed at the US Paralympic trials in 2016. The Illinois High School Association is a not-for-profit voluntary association that organizes and regulates interscholastic high school athletic events throughout Illinois. It has a Board of Directors as well as an executive director that oversee day-to-day operations. The Executive Director has complete authority to decide accommodation requests, which can be brought by member schools or by an individual. There is no public criteria the Executive Director consults when evaluating such requests. Further, the Executive Director’s ruling on accommodation requests can be appealed to the ten member board, which then holds a hearing with the student athlete and other relevant parties. The Illinois High School Association does have a nondiscrimination policy for students with disabilities and has established a para-ambulatory division for swimming and a wheelchair division at track and field meets, but it does not have a para-ambulatory division for runners like the plaintiff. Qualification for the State tournament is based upon time, which most people, even able-bodied ones, cannot meet. Certainly, the plaintiff cannot meet that time and even the world record holder in the plaintiff’s classification could not meet that time. Plaintiff requested that the Illinois High School Association create a separate division with different time standards for para-ambulatory runners for the Illinois State championship track meets as well at the annual 5K Road race. The Executive Director denied that request relying on a guidance from the US Department of Education Office of Civil Rights that said that schools were under no obligation to create separate or different activities for students with disabilities. At the District Court level the Illinois High School Association won on summary judgment and plaintiff appealed.

II

Majority Reasoning Causation

  1. The standard for causation under the ADA and the Rehabilitation Act is the same and requires but for causation.
  2. In order to establish causation, plaintiff would have to prove that but for his physical disability, the normal operation of the qualifying times would have allowed him to qualify for State, which is something he cannot do.
  3. Plaintiff has not established that were he not disabled, he would be among the 10% of track and field athlete that qualify for State each year.

III

Majority Reasoning Fundamental Alteration

  1. Plaintiff’s requested accommodations are unreasonable as a matter of law.
  2. The creation of a new division would lower the current qualifying times and make it easier for certain runners to qualify for State or medal in the road race.
  3. The essential nature of a track and field race is to run a designated distance in the shortest time possible. The time standards governing which runners qualify for State championship is the essence of the sport, which is that a person must run as fast as possible to achieve the predetermined times. Those standards ensure a certain level of competition and maintain a necessary scarcity of opportunity. Lowering the qualifying time for State by creating a new division of runners fundamentally alters the essential nature of the sectional and State track and field meets as well as the road race.

IV

Dissent by Judge Rovner

Judge Rovner had a vigorous dissent and it goes as follows:

  1. Judge Rovner agrees that but for causation is the standard.
  2. While but for causation is the standard, she disagrees as to what the but for standard is in this case. For Judge Rovner, the question is whether the plaintiff furnished sufficient evidence to create a material dispute of fact as to whether but for his disability, he would have a meaningful opportunity to qualify for the State finals.
  3. The majority gets it wrong when it concludes that what the plaintiff desires is not only the meaningful opportunity to qualify for State finals but to actually qualify for those finals.
  4. Judge Rovner analogizes the whole thing to a female runner seeking to establish a separate classification for girls. Although it is true that qualifying time for female runners might mean that a female runner is very likely to qualify for the State finals, that is not the same thing as asking to automatically qualify for the State finals. A female runner should not be punished merely because of her hard work and good fortune placed her in the top percentage of female runners. In fact, any female would have standing to file a lawsuit asking for a female division so that she might have the opportunity to participate in a Statewide competition.
  5. A female runner would not need to demonstrate that but for the fact she was born female, she would have a chance to make the qualifying time for the State finals, as it is the opportunity to try that she is missing. The same reasoning applies to a student with a disability.
  6. The current set up of the Illinois High School Association denies the plaintiff a meaningful opportunity to try. How could any athlete ever demonstrate that but for his disability he would qualify for State finals. In fact, the pursuit is absurd.
  7. Creating a new division would not be a fundamental alteration since that is exactly what the Illinois High School Association did when it created a separate divisions for female runners, wheelchair athletes, and runners from smaller schools. When it did that, it lowered the qualifying standards for the State finals by creating a new division with different required qualifications. If doing that altered the essential nature of the State finals and the road race, then any of those division should never have been created or the fundamental nature of the program has already been modified.
  8. Running a designated course and distance in the shortest period of time is not the essential nature of a track or road race. Rather, it is running that race in the shortest period of time as compared to one’s peer group (emphasis in Judge Rovner’s dissent). No one would think it fair if Usain Bolt signed up to compete in the Illinois High School Association State final despite the fact that he could surely run the designated course in the shortest period of time.
  9. The argument that lowering the qualifying standards diminishes the competitiveness of the State championship meet and road race makes no sense whatsoever. That would be the same as arguing that allowing separate division for women and students with disabilities somehow undermines the competitiveness of a sporting event or diminishes the accomplishments of elite male athletes. That would be the same as saying that allowing women to run Olympic track events, where the qualifying times are lower, undermines the competitiveness of the men’s events. It would also be like arguing that Serena Williams playing tennis at Wimbledon or Katie Ledecky swimming at the Olympics somehow strips those competitions of their identity and prestige thereby devaluing the achievement of Roger Federer and Michael Phelps.
  10. The Illinois High School Association created a separate division for smaller high schools, which is particularly good evidence that creating new categories does not fundamentally alter the nature of the program or undermine the competitiveness of the championship. In that situation, there is no physical or genetic reason a runner from a small school could not be able to run just as fast as a runner from a larger school. Instead, a separate division for smaller schools was created for reasons other than just allowing the fastest runners in the State to complete -most likely to allow greater access to the finals for runners who might not otherwise have a meaningful chance to compete in a State finals.
  11. The Illinois High School Association allows only its two top runners to compete in each event at the sectional tournaments, which is the tournament through which runners qualify for the State finals. If they were truly interested in the fastest times, then the Illinois High School Association would only open the finals to the top 10% of runners in the State regardless of gender, ability, school site or sectional results.
  12. The cases cited by the majority only speak to whether a person was otherwise qualified. Here, the plaintiff is otherwise qualified to run in the track event and the reasonable accommodation he requests will not change the nature of any other event or the competition as a whole. The success of any para-ambulatory athlete in no way diminishes the success of any other athlete or alters the fundamental nature of the competition and the majority offers no explanation why that would be the case.
  13. Plaintiff has more than earned the opportunity to compete at the highest levels.

V

Takeaways/Thoughts

  1. It wouldn’t surprise me in the least if an en banc hearing was sought or if it was appealed to the United States Supreme Court. Remember, at the United States Supreme Court level, persons with disabilities have been very successful outside of the employment context.
  2. I find the majority reasoning of but for causation absurd. It reminds me of the time back in 1989 when I published my thesis on wrongful life in the Journal of Health and Hospital Law while getting my LL.M. in Health Law. The problem with that tort is assessing damages. That is how could you say that a person could receive damages for being born? In fact, that is the reason why courts have just about always rejected the tort. In my thesis, I tried to construct an argument as to how damages for wrongful life could be assessed consistent with legal principles (using the mathematical concept of zero is another approach I proposed, but that didn’t make it into my thesis).
  3. It is indeed a futile gesture and an absurd pursuit to ask an athlete to demonstrate that but for his disability he would qualify for State finals. Such a causation requirement means that an athlete with a disability never has the right to have a separate division set up for athletes like him or her absent the good graces of the State High School Association regardless of whether sufficient membership or demand exists for such a division.
  4. Judge Rovner makes a lot of excellent points with respect to fundamental alteration. She notes that the Illinois High School Association has already created numerous other separate divisions and none of those divisions fundamentally altered the nature of their programming.
  5. The majority and dissent both get it wrong when they say that causation under title II of the ADA is the same as under the Rehabilitation Act. Under the Rehabilitation Act, causation is “solely by reason of,” (29 U.S.C. §794(a), while under title II of the ADA, causation is, “by reason of.” (42 U.S.C. §12132).  The term “solely,” is completely missing from the causation standard under title II of the ADA.
  6. Congress when it amended the ADA left the causation standard under title II the same while leaving the Rehabilitation Act causation standard the way it was. The presumption is that Congress knew what it was doing when it did that.
  7. In this blog entry, we discussed that the Supreme Court has held status-based discrimination is subject to a mixed motive standard.
  8. The Illinois High School Association has said that it doesn’t mind creating separate divisions, but it wants it to come from its members rather than the courts. If the majority decision stands, then it is entirely up to the Illinois High School Association good graces to establish subdivisions as a person could never prove causation.
  9. With respect to the fundamental alteration analysis, my view is that Judge Rovner probably got it right. I do think the Illinois High School Association would be in a better position if it could show that the number of paralympians that would be the plaintiff’s peers would be extremely small so that the selectivity of the division would be compromised.
  10. An appeal may resolve the issue of causation when it comes to cases before and after the amendments to the ADA. Also, it would cement causation being different between the Rehabilitation Act and the ADA. Again, if I am on the plaintiff side, I would most certainly go for an en banc hearing and/or an appeal to the Supremes. If it were to go to the Supreme Court, I am not sure how it would turn out. However, it is definitely worth a shot if I am the plaintiff even with the current configuration of this Court.
  11. A guidance from a federal agency, which the majority opinion relied on, may not be entitled to deference. See this blog entry.

One Response to ADA and the High School Athletic Association

Great blog. Judge Rovner clearly thought through this issue more carefully than the rest of the panel, especially with respect to fundamental alteration. Almost every sport already has divisions based on age and gender, so creating a new division based on disability can’t affect the competitiveness of other divisions. The causation standard is also bizarre. With the rare exception of a high performing athlete who abruptly suffered a disabling injury no one who is disabled will be able to prove that but for their disability they could perform as well as non-disabled athletes. (Although I would argue that we know what people are capable of by looking at what they do with what they have, so a high performing disabled athlete would likely have been a high performing athlete if not disabled.)

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