Editor’s Note: There is a correction included at the end of this article to an item included in the Sports Law Year-in-Review in the January issue of High School Today.

A Recent Case: A.H. v. IHSA

A.H., a 2017 graduate of Evanston Township High School who suffers from cerebral palsy, was an accomplished student-athlete who was a member of the school’s cross country, swimming, and track and field teams. At the beginning of his junior year, in the fall of 2015, he requested that the Illinois High School Association (IHSA) create a separate division with different qualifying time standards for para-ambulatory runners in the IHSA Sectional track meets and the State Championship track meet, as well as its annual 5K Road Race.

The IHSA has been a leader among state associations in adopting a philosophy of inclusion and creating sports participation opportunities for all student-athletes, including those with motor skill and learning disabilities. Since 2004, the IHSA has held its Wheelchair Basketball Tournament in conjunction with its State Championship Basketball Tournament, and the association also offers a para-ambulatory division at its swim meets, a wheelchair division at its track and field meets, and a wheelchair division at its annual 5K Road Race.

In 2017, the IHSA was chosen by Special Olympics Illinois as the Outstanding Organization of the Year. However, the IHSA does not have a separate division at its track and field meets for the highly limited number of competitors who suffer from a disability equivalent to A.H.’s.

The IHSA denied A.H.’s qualifying-time requests (his petition to use a modified starting block was granted) and he filed suit in federal district court under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. On July 7, 2017, the court granted summary judgment in favor of the IHSA, finding that A.H.’s qualifying-time requests were not reasonable accommodations under the Rehabilitation Act and the ADA because they would fundamentally alter the nature of the activity in question. A.H. then appealed to the U.S. Seventh Circuit Court of Appeals.

On February 2, 2018, based on well-established legal standards regarding the application of federal disability law to athletic programs, the appellate court upheld the lower court and ruled in favor of the IHSA, again concluding that A.H.’s qualifying-time requests would be unreasonable accommodations because they would fundamentally alter the nature of the sports activities in question.

In its written opinion (available full-text here), the Seventh Circuit stated that “the IHSA qualifying time standards are designed to make the individual races extremely competitive, purposely excluding a great majority of runners from reaching State. The demanding qualifying times established by the IHSA exclude able-bodied and disabled runners alike, leaving 90% of all runners, many thousands, in fact, from participating at State every year. Simply put, the qualifying times ensure that the State Championship meet is reserved for the best and fastest runners in Illinois. There is no reason to believe that disabled runners like A.H. have been unable to attain these qualifying times for State simply ‘by reason of’ or ‘on the basis of’ their disability. The odds are overwhelming that runners like A.H. would not meet the qualifying times even if they were not disabled. To lower the qualifying times for State by creating a new division of runners would fundamentally alter the essential nature of the Sectionals and State track and field meets.”

The Appeals Court concluded that the lower qualifying times proposed by A.H. would “assure” that he would qualify for State and that he clearly was seeking an accommodation that would allow him to achieve results that he could not achieve, irrespective of his disability, and as such which were unreasonable as a matter of law.

The Right to Participate

Courts are generally consistent in holding that students do not have a constitutionally protected property right to participate in scholastic athletics programs and that regulation of athletics programs is within the discretion of governing bodies such as state athletics associations and school districts. Such governing entities are therefore free to establish participation requirements for student- athletes, including qualifying standards, maximum age limits, maximum seasons of participation limits, maximum semesters of attendance limits, academic eligibility requirements, transfer or residency requirements, and medical clearance restrictions.

And because sports participation is considered by courts to be a privilege, not a right, student-athletes are unlikely to succeed with judicial challenges based on constitutional law to any of these categories of participation requirements.

However, in certain limited circumstances, students who suffer from a disability may have a separate, independent, statutory right to participate in school athletics programs. Four distinct sources of law create such a statutorily protected participation right by prohibiting discrimination on the basis of disability and requiring schools to accommodate, within certain limitations, participation in athletics by a student with a disability.

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 requires schools receiving federal financial assistance to provide reasonable accommodations for students with disabilities who are otherwise qualified to participate in school programs or activities. The statute has generally been interpreted as requiring schools to grant the accommodation requested by a disabled student unless compliance would place an undue burden on the school. The defect in the Rehabilitation Act for students with disabilites seeking greater participation opportunities is that the statute does not, by itself, provide sufficiently effective sanctions against non-complying schools. Therefore, throughout the 1970s and 1980s, advocates for the rights of the disabled argued that a new statute containing stronger sanctions for violators needed to be enacted by Congress.

Title II of the Americans With Disabilities Act of 1991

Title II of the ADA requires that public entities receiving federal financial assistance, including public school districts, must provide reasonable accommodations to a student with a disability who wishes to participate in a school program or activity and who is excluded from participation solely because of his or her disability. The statute includes an extensive range of sanctions that may be requested by the aggrieved party against the non-complying school and has become a highly effective source of law for disabled students seeking greater athletics participation opportunities.

Title III of the Americans With Disabilities Act of 1991

Title III of the ADA is identical to Title II of the ADA except that it applies to private entities, including private schools, that operate places of public accommodation. School sports programs have been held by federal courts to be places of public accommodation, therefore Title III of the ADA requires reasonable sports participation accommodations for students who attend private schools.

Individuals With Disabilities Education Act of 1990

The IDEA was enacted for the purpose of guaranteeing all students, including those with disabilities, a free and appropriate public education (FAPE). Pursuant to the statute, an Individual Education Plan (IEP) will be created, implemented and regularly updated for any student who qualifies as disabled and requires special education support and related services. Athletics participation is often included in the related-services section of an IEP and, as such, provides a disabled student with a strong statutory basis to request greater athletics participation opportunities.

Disabled & Otherwise Qualified

The two common threads that run through all of these disability statutes with regard to participation in scholastic athletics is that the individual asserting rights under each statute must be “disabled” and must be “otherwise qualified” to participate in the sports activity.

An individual is considered to be disabled if he or she “suffers a physical or mental impairment that substantially limits one or more major life activities.” Amendments to the ADA went into effect on January 1, 2009 that broadened the range of conditions that meet the statutory definition of disability. Students with motor skill impairments, learning disabilities, and classified as recovering drug addicts or alcoholics fall within the definition. For an in-depth analysis of the conditions and circumstances that satisfy the definition of disabled, go to either the EEOC’s website at www.eeoc.gov or the ADA website at www.ada.gov.

A disabled individual is considered to be otherwise qualified to participate in an athletics activity if he or she “can satisfy all essential skill, ability, physical, and eligibility requirements for participation either in spite of the disability or with reasonable accommodation for the disability.” Courts have ruled that in evaluating whether a disabled student is to be considered otherwise qualified, it is the legal duty of the governing body or school to make modifications to its participation requirements unless the requested modifications are considered to be unreasonable in nature. There are three categories of accommodations that courts have held to be patently unreasonable and which governing bodies and schools are therefore not obligated to provide.

Fundamental Alterations: The first category of unreasonable accommodations would fundamentally alter the nature of the athletics activity or fundamentally impair the purposes for which the disputed regulation was enacted.

Undue Financial or Administrative Burden: The second category of unreasonable accommodations is one that would impose an excessive financial or administrative burden on the governing body or school with regard to the practical application of the rule in question.

Safety: The third category of unreasonable accommodations would pose a significant risk to the health or safety of the disabled person or to other athletics participants.

Common Legal Challenges

The first type of claim commonly asserted by disabled students is similar to that in the A.H. case, a challenge to a state association refusal to alter participation rules at state-level competitions, and courts typically analyze the reasonableness of such requested accommodations using the three above-described categories of fundamental alteration, undue burden and safety.

The second type of claim commonly made by disabled students seeking greater sports participation rights is a challenge to state association rules establishing a maximum age limit for athletics participation or limiting athletics participation to students who have attended no more than eight semesters of high school and who have played no more than four seasons of the high school sport in question. A split among courts exists with regard to the enforceability of such regulations. In a number of states, such rules are considered to be absolute eligibility requirements and students not in compliance are not considered to be otherwise qualified for athletics participation. However, in other states, courts have required that an individualized analysis should be made for each disabled student as to whether waiving the rule in question would be a reasonable accommodation that could be made without frustrating the purposes of the rule (to promote safety, prevent competitive disadvantage and discourage redshirting). Schools must research (through district legal counsel) the local legal standards applicable to disabled students seeking athletics participation exceptions to maximum age limits, eight semester limits and four season limits.

A third type of claim commonly made by disabled students seeking greater sports participation rights is a challenge to academic eligibility requirements. Courts have generally upheld academic eligibility requirements such as no-pass, no-play regulations, minimum credit hour rules, and minimum grade-point average requirements. Despite arguments by students that a learning disability or some other recognized disability contributed to their inability to achieve the required academic standards, courts have consistently upheld such eligibility rules by concluding that special education courses are themselves a reasonable accommodation and that it is the responsibility of the student to achieve the required grades in those courses.

A fourth type of claim commonly made by disabled students seeking greater sports participation rights is a challenge to transfer or residency requirements. In general, courts have upheld the validity of transfer or residency rules even when they are applied to disabled students, with the sole exception being those situations where the purpose of the transfer was to receive better support services for a disability or to take special education courses that were not available at the previous school of enrollment or pursuant to a specific mandate incorporated into a student’s IEP.

A fifth type of claim commonly made by disabled students seeking greater sports participation rights is a challenge to a school’s refusal to grant medical clearance to participate because of a medical condition that fits within the definition of a disability. In many such cases, the student-athlete and his or her parents have argued that they are willing to assume the risk of harm that might occur during participation as a result of the medical condition; however, the school and its medical personnel conclude that the risk of harm is excessive and therefore refuse to grant medical clearance. In general, courts have held that a student-athlete is not otherwise qualified to participate if the school’s decision to bar participation is objectively evaluated, carefully reasoned and based on sound medical judgment.

On January 25, 2013, the United States Office for Civil Rights issued a Dear Colleague Letter clarifying the obligations of schools to disabled student-athletes making any of these five types of claims. It is available full-text here.