Terry Published in ISBA Newsletter

On February 2, 2018, the Seventh Circuit Court of Appeals affirmed the district court’s granting of summary judgment to the Illinois High School Association (IHSA) in finding that the disabled student’s requests were not reasonable accommodations under the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA).1 Despite the student’s argument that, among other things, the IHSA should create separate para-ambulatory time standards and divisions, the student failed to show that, but for his physical disability, the normal operation of the qualifying times would have allowed him to qualify for the state championship meet. In addition, the Rehabilitation Act and the ADA did not require the IHSA to alter the fundamental nature of their track and field events, and so the student’s accommodation requests were unreasonable as a matter of law.

The student (A.H.) was born with spastic quadriplegia related to cerebral palsy. It is generally the most severe of the type of spastic cerebral palsy, marked by the inability to use the legs, arms, and body. Despite A.H.’s disability, A.H. was a three-sport athlete. Besides competing in track and field, A.H. competed in cross country and swimming. Because of his disability, A.H. was classified by the International Paralympic Committee as a T-36 disabled athlete, meaning that A.H.’s disability impairs among other things, his muscular control, balance, coordination in both his legs and arms with a limited range of motion in his hips, knees, and ankles.

While A.H. was disabled in a way that would prevent most students from attempting athletics, he was a full member of the track and field team. A.H. was never prevented by the school or the IHSA from being a part of the team or fully participating at individual school meets. A.H. competed in the U.S. Paralympic Trials in 2016 and was widely considered an elite athlete in the disabled athletic community.

In order to qualify for the State Championship, a runner must place in the first or second position at the state sectional meet. A.H.’s times in the various track and field events did not allow him to qualify for the state championship meet, which is organized and held by the IHSA. The state qualifying times established by the IHSA at the sectional meet intentionally preclude thousands of able-bodied runners from qualifying for state each year. Only 10 percent of all runners on IHSA-member track and field teams qualify for State.

The IHSA does not have a para-ambulatory division for runners similar to A.H. However, the IHSA maintains an accommodation policy for students with disabilities. The executive director of the IHSA has complete authority to decide accommodation requests, which can be brought by member schools or an individual student-athlete. There are no set criteria the executive director uses when evaluating such requests. The executive director's ruling on an accommodation request can be appealed to the 10-member IHSA board, which will hold a hearing with the student-athlete and other relevant parties.

On September 26, 2015, A.H., on an individual basis, submitted three accommodation requests to the IHSA: (1) that the IHSA create separate para-ambulatory time standards for the sectional and state meets in the 100, 200, 400, and 800 meter races; (2) that the IHSA create a para-ambulatory division in the annual 5K road race; and, (3) that A.H. be allowed to use a modified starting block in the 100, 200, and 400 races. On October 8, 2015, the executive director granted A.H.’s third request for a modified starting block. A.H.’s first two requests were denied because they were not reasonable in the opinion of the executive director. In his ruling, the executive director relied on guidance from the U.S. Department of Education Office of Civil Rights, which noted that students with disabilities must be provided access to extracurricular activities, but schools are under no obligation to create separate or different activities for the disabled. The IHSA board upheld the executive director’s ruling.

A.H. filed a lawsuit on February 4, 2016, seeking injunctive relief to compel the IHSA to adopt the separate para-ambulatory qualifying times and divisions at the sectional and state track meets, as well as the road race. A.H. alleged that IHSA's refusal to adopt these accommodations amounted to impermissible discrimination against disabled individuals under Section 504 of the Rehabilitation Act and Titles II and III of the ADA. The United States District Court for the Northern District of Illinois entered summary judgment in favor of the IHSA. A.H. appealed to the United States Court of Appeals, Seventh Circuit.

The Rehabilitation Act and the ADA provide that individuals with disabilities should be afforded extensive protections from discrimination. Section 504 of the Rehabilitation Act provides that no disabled person shall be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance solely because the individual has a disability. Similarly, the ADA builds on those protections against discrimination to include public entities and places of public accommodation.

While the Rehabilitation Act and the ADA seem to imply that intent is needed to show discrimination, other methods of proving discrimination on the basis of disability may be used. Title III of the ADA (along with Title II and Section 504 through their respective regulations) contains specific requirements imposing a duty to provide reasonable accommodations to individuals with disabilities. The court of appeals stated that it is generally recognized that there are three ways to establish disability discrimination: (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 of appeals focused their analysis on the reasonable accommodation request that the IHSA received from A.H.

In affirming the district court’s granting of summary judgment to the IHSA, the court of appeals noted that the statutory language of both the Rehabilitation Act and the ADA requires proof of causation. According to the court of appeals, the language in both statutes requires the plaintiff to prove that “but for” his disability, he would have been able to access the services or benefits desired. In this case, to establish causation, A.H. must have proven that but-for his physical disability, the normal operation of the qualifying times would have allowed him to qualify for state. Put another way, the causation analysis depends on whether A.H. would qualify for state if he were not disabled. The fact that A.H. did not have a chance to qualify as a disabled runner did not establish that the qualifying standards set by the IHSA are the but-for cause of his failure to qualify for state given that only 10 percent of all able-bodied runners qualified for the State meet already. The court resolved that while A.H. was able to perform at a high level, despite his disability, he was not able to establish that, were he not disabled, he would be among the top 10 percent of runners that qualify for State.

The court went on to discuss the reasonableness of A.H.’s accommodation requests noting that “[e]ven if A.H. had adduced evidence that but-for his disability, he would qualify for State… his claim would fail because his requested accommodations are unreasonable as a matter of law.” Referencing a 7th Circuit Court of Appeals case, the court noted that an accommodation is unreasonable if it fundamentally alters the nature of the program, service or activity.

In analyzing what accommodations fundamentally alter the nature of the activity, the court compared two similar cases. In Brookhart v. Illinois State Board of Education , it was determined that altering the content of a minimum competency test in order to make it easier for mentally disabled students to pass would constitute a “substantial modification” of the Board’s requirements in order to receive a diploma.2 Conversely, in PGA Tour v. Martin , the U.S. Supreme Court held that allowing a disabled golfer to use a golf cart between his shots, would not fundamentally alter the nature of the game since the essence of the game has to with shot making. Using a cart in between shots offered no competitive advantage to the golfer.3

In A.H.’s case, to lower the qualifying times for state by creating a new division of runners with lower qualifying times would fundamentally alter the essential nature of the sectional and state championship track and field.

The court concluded that the Rehabilitation Act and the ADA do not require the IHSA to alter the fundamental nature of the track and field events, thus A.H. accommodation requests were held to be unreasonable as a matter of law.

On these two points, the court of appeals affirmed the district court’s grant of summary judgment in favor of the IHSA.

Jeffrey L. Terry is with Schmiedeskamp, Robertson, Neu & Mitchell, LLP, Quincy, IL and is a member of the ISBA Education Section Council.