Date: 02-02-2018

Case Style:

Case Number: 17-2456

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Louis Fogel. Ren-how Harn, Lina Powell, Abraham Michael Salander, Shaun Van Horn

Defendant's Attorney: Matthew S. Hefflefinger, Brett Michael Mares, Andrew J Roth

Description: A.H., a senior at Evanston Township
High School, is a member of the school’s track and field team
despite his physical limitations from spastic quadriplegia
related to cerebral palsy. During his junior year, he requested
that the Illinois High School Association (IHSA) create a
2 No. 17‐2456
separate division with different time standards for paraambulatory
runners in the Sectional and State championship
track meets, as well as the annual 5K Road Race. The IHSA
denied these requests, and A.H. filed this suit seeking injunctive
relief under Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794(a); and, Titles II and III of the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12132, 12182(a). The district court
granted summary judgment in favor of the IHSA, finding that
A.H.’s requests were not reasonable accommodations under
the Rehabilitation Act and the ADA. We affirm.
I. BACKGROUND
Despite being born with spastic quadriplegia related to
cerebral palsy, A.H. has been a three‐sport athlete in cross
country, swimming, and track and field at Evanston Township
High School since his freshman year. A.H. is classified by the
International Paralympic Committee (IPC) as a T‐36 disabled
athlete, meaning that his disability impairs his muscular
control, balance, coordination, and range of motion. In particular,
A.H. has limited coordination in both his legs and arms,
and has limited range of motion in his hips, knees, and ankles.
Thus, his disability hinders crucial parts of his body that are
essential for running.
A.H. is a full member of the track and field team, and he
has never been prevented by his school or the IHSA from being
on the team or participating at individual school meets. In fact,
A.H. has never missed a track meet in his high school career.
He is fully embraced and respected by both his coaches and
teammates. Moreover, A.H. is considered an elite athlete
No. 17‐2456 3
within the disabled athletic community, as he competed at the
U.S. Paralympic Trials in 2016.
The IHSA is a not‐for‐profit voluntary association which
organizes and regulates interscholastic high school athletic
events throughout Illinois. It consists of 810 public and private
member high schools, more than 90% of the high schools in
Illinois. The IHSA’s Board of Directors is comprised of ten
principals from its member high schools who have the final
authority on the overall operations and rules; an Executive
Director of the IHSA oversees the 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 published criteria the
Executive Director consults when evaluating such requests.
The Executive Director’s ruling on an accommodation request
can be appealed to the ten‐member Board, which will hold a
hearing with the student‐athlete and other relevant parties.
The IHSA maintains an “Accommodation Policy for
Students with Disabilities,” which provides:
It is the policy of the IHSA to provide students
with disabilities full and equal opportunities to
be integrated in IHSA interscholastic sports and
activities whenever possible. IHSA recognizes
and adopts the definition of disability as provided
within the [ADA]. The IHSA will not
discriminate against students with disabilities
on the basis of disability in its services, programs,
or activities.
4 No. 17‐2456
In this vein, the IHSA has implemented events and divisions
within particular sports for student‐athletes with disabilities,
such as a para‐ambulatory division at swim meets, and a
wheelchair division at track and field meets.
However, the IHSA does not have a para‐ambulatory
division for runners like A.H. in the track and field meets it
regulates. While the IHSA does not organize or regulate
individual school meets throughout the track and field season,
it does manage the two most important track meets: the
Sectional meet and the State championship meet. In order to
qualify for the State championship meet (“State”), a runner
must place first or second in their event, or attain a particular
qualifying time at the Sectional meet. Runners who compete at
State can achieve points for their team, which are accumulated
to determine which team wins the overall State championship.
The IHSA does not preclude any runner from participating at
Sectionals, as individual track and field teams determine who
runs in the events. In fact, A.H. ran the 1600 meter race for his
team at Sectionals in the Spring of 2017.
By design, the State qualifying times established by the
IHSA at the Sectional meet preclude thousands of able‐bodied
runners from qualifying for State each year. Approximately
10% of all runners on IHSA‐member track and field teams
qualify for State.
A.H. cannot attain any of the qualifying times for State, and
it is undisputed that world record holders in the T‐36 classification
would be unable to achieve any of the qualifying times.
Thus, on September 26, 2015, A.H., on an individual basis,
submitted three accommodation requests to the IHSA: (1) that
No. 17‐2456 5
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. A.H. suggested in the first accommodation request
that IHSA adopt the Louisiana High School Athletic Association
(LHSAA) qualifying times for para‐ambulatory runners.
A.H. has recorded personal best times in the 100, 200, 400, and
800 that would qualify him for State under the LHSAA
qualifying times.
On October 8, 2015, the Executive Director granted A.H.’s
third request for a modified starting block; however, he denied
the first two requests, finding that they were not reasonable
but that A.H. “currently has the same opportunity to compete
in track and field as his nondisabled peers.”
The Executive Director relied on guidance from the U.S.
Department of Education Office of Civil Rights, which noted
in a letter to school officials that students with disabilities must
be provided access to extracurricular activities, but that schools
were under no obligation to create separate or different
activities for the disabled.
On October 25, 2015, A.H. appealed the Executive Director’s
ruling. The Board held a hearing on December 14, 2015,
and sustained the Executive Director’s decision to deny the
requests. The Board noted that A.H. was already part of the
team, and that being a part of the team was a greater intangible
benefit than participating at State. Moreover, the Board
emphasized that the IHSA’s goal is to integrate disabled
6 No. 17‐2456
athletes with able‐bodied athletes rather than separating them.
Finally, the Board concluded that granting A.H.’s request
would provide him an unfair competitive advantage because
he would have a greater opportunity to advance to State and
earn points for his team.
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. The complaint 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.
After discovery, the district court granted summary
judgment in favor of the IHSA. The court found that A.H.
could not show that the alleged discrimination had occurred
on the basis or by reason of his disability. The court also
concluded that even if A.H. had presented such evidence, his
accommodation requests were not reasonable, as a matter of
law, because they would fundamentally alter the nature of the
IHSA’s track and field competitions.
II. DISCUSSION
We review a district court’s grant of summary judgment
de novo. Steimel v. Wernert, 823 F.3d 902, 910 (7th Cir. 2016).
Summary judgment is appropriate if the moving party shows
there is “no genuine dispute as to any material fact,” and that
he is entitled to summary judgment as a matter of law. Fed. R.
Civ. P. 56(a).
No. 17‐2456 7
The relevant provisions and implementing regulations of
the Rehabilitation Act and the ADA are “materially identical.”
Steimel, 823 F.3d at 909 (quoting Bruggeman ex. rel. Bruggeman
v. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003)). As a result,
“courts construe and apply them in a consistent manner,” and
our evaluation of A.H.’s claims under both require the same
analysis. Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599,
607 (7th Cir. 2004).
The Rehabilitation Act and the ADA provide expansive
protections from discrimination for individuals with disabilities.
Section 504 of the Rehabilitation Act provides that no
disabled individuals “shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance … .”
29 U.S.C. § 794(a). The Rehabilitation Act’s prohibition on
disability discrimination was greatly expanded by the ADA.
Titles II and III of the ADA expand protections against discrimination
for disabled individuals in any public entity, as well as
places of public accommodation. See 42 U.S.C. § 12132 (no
disabled individuals “shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.”); 42 U.S.C.
§ 12182(a) (“No individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations
of any place of public accommodation … .”).
Both the Rehabilitation Act and the ADA state that discrimination
against disabled individuals is prohibited “on the
8 No. 17‐2456
basis of” or “by reason of” their disability. While the statutory
language suggests that proof of disability discrimination
requires intent, the statutes, corresponding regulations, and the
Supreme Court have made clear that other methods of proving
disability discrimination are available.
In particular, Title III of the ADA contains a specific
provision imposing a duty to provide reasonable accommodations
to disabled individuals. See 42 U.S.C. § 12182(b)(2)(A)(ii)
(“discrimination includes … a failure to make reasonable
modifications in policies, practices, or procedures … .”). While
Title II and Section 504 of the Rehabilitation Act lack such
specific reasonable accommodation language, their corresponding
regulations employ language indicating that entities
must provide reasonable accommodations to the disabled. See
28 C.F.R. § 35.130(b)(7)(i); 28 C.F.R. § 41.53. Moreover, 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 defendantʹs rule
disproportionally impacts disabled people.” Washington v. Ind.
High Sch. Athletic Assʹn, Inc., 181 F.3d 840, 847 (7th Cir. 1999).
A.H. seeks the creation of a para‐ambulatory division, with
qualifying time standards that are better suited for runners like
No. 17‐2456 9
him, at the Sectional and State championship meet, as well as
the Road Race. That is a request that the IHSA make a reasonable
accommodation, and that is where we concentrate our
analysis.
A. Proof of But‐For Causation
We have consistently held that the statutory language in
both the Rehabilitation Act and the ADA requires proof of
causation. Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465
F.3d 737, 752 (7th Cir. 2006). As noted above, both statutes
prohibit discrimination against individuals “by reason of” the
disability, or “on the basis of” the disability. This language
requires A.H. to prove “that, ‘but for’ his disability, he would
have been able to access the services or benefits desired.” Id. at
754 (citing Washington, 181 F.3d at 849).
The parties dispute the “benefit desired” by A.H., which
ultimately impacts how the but‐for causation test is employed.
A.H. argues that the district court erred in finding that the
benefit A.H. desires is to qualify for State. Rather, according to
A.H., all he actually seeks is a meaningful opportunity to qualify
for State. Thus, A.H. argues that the district court incorrectly
held that in order to survive summary judgment, he had to
“adduce evidence sufficient to create a material dispute of fact
as to whether but for his disability, he would be among the
elite 10% of non‐disabled runners who qualify for the state
finals.” A.H. by Holzmueller v. Ill. High Sch. Assʹn, No. 16‐CV‐
1959, 2017 WL 2907840, at *10 (N.D. Ill. July 7, 2017).
We applied the but‐for causation test in an analogous
disability discrimination context in Washington v. Indiana High
School Athletic Association, 181 F.3d at 848–49. In that case, a
10 No. 17‐2456
student‐athlete with an undiagnosed learning disability
dropped out of high school during his sophomore year
following repeated failures, but re‐enrolled at a different high
school one year later where he played basketball. Id. at 842.
The Indiana High School Athletic Association had an “eight
semester rule,” by which athletes could only compete in sport
competitions spanning the eight semesters after they started
their freshman year. Id. As a result of dropping out for over a
year, the eight semester rule prohibited the student‐athlete
from playing at his new high school during his junior year. Id.
In evaluating the causation analysis in Washington, we stated
that the student‐athlete “must establish that, but for his
learning disability, he would have been eligible to play sports
in his junior year.” Id. at 849. In finding causation, we concluded
that but‐for his learning disability, he would not have
dropped out of school, and thus, the normal operation of the
eight semester rule would have made him eligible to play
basketball. Id.
We disagree with A.H. The benefit he desires is to qualify
for State. A.H. already has an opportunity to participate and
run in the Sectional meet, but his disability impacts his ability
to achieve the qualifying times necessary to qualify. A.H.
wants the IHSA to establish different qualifying times for paraambulatory
runners that will allow him to qualify for State.
Thus, in order to establish causation, A.H. has to prove that
but‐for his physical disability, the normal operation of the
qualifying times would have allowed him to qualify for State.
A.H. cannot meet this standard. Unlike the eight semester
rule in Washington, which excluded the student‐athlete based
on the passage of time, the IHSA qualifying time standards are
No. 17‐2456 11
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.
A.H. points to the fact that not even the world record
holders in his T‐36 classification can meet the IHSA’s qualifying
times. However, the causation analysis depends on
whether he would qualify for State if he were not disabled. The
fact that A.H. does not have a chance to qualify as a disabled
runner does not establish that the qualifying standards set by
the IHSA are the but‐for cause of his failure to qualify for State.
While A.H. is a gifted runner given his disability, A.H. has
not established that, were he not disabled, he would be among
the 10% of track and field athletes that qualify for State each
year.
B. Reasonable Accommodation
Even if A.H. had adduced evidence that but‐for his disability,
he would qualify for State or medal in the Road Race, his
claim would fail because his requested accommodations are
unreasonable as a matter of law. “Whether a requested
12 No. 17‐2456
accommodation is reasonable or not is a highly fact‐specific
inquiry and requires balancing the needs of the parties.”
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d
775, 784 (7th Cir. 2002). However, an accommodation is
unreasonable if it imposes significant financial or administrative
costs, or it fundamentally alters the nature of the program
or service. Id.; see also 28 C.F.R. § 35.130(b)(7)(i) (“A public
entity shall make reasonable modifications … unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity.”).
A.H. stresses that adopting his accommodations would not
impose such financial or administrative burdens. He points to
the fact that the IHSA already has separate divisions in track
and field for female runners, wheelchair athletes, and runners
from smaller schools. However, the IHSA has never claimed
that creating a para‐ambulatory division would be burdensome
in this way. Instead, the IHSA argues that implementing
A.H.’s proposed accommodations would fundamentally alter
the nature of the State championship track competition and
Road Race because they would guarantee A.H. increased
participation and success. In other words, A.H.’s lower
qualifying time standards would undermine the competitiveness
of the State championship meet and the Road Race. A.H.
counters that he is not seeking lower time standards for all
runners, but rather the creation of a para‐ambulatory division.
The fact that A.H.’s proposed accommodations would not
affect the qualifying times of able‐bodied runners is of no
consequence. The creation of a new division would lower the
No. 17‐2456 13
current qualifying times and make it easier for certain runners
to qualify for State or medal in the Road Race.
The Supreme Court and this Court have recognized that
lowering particular eligibility or qualifying requirements
established by an entity can be substantial modifications that
are unreasonable. In Southeastern Community College v. Davis,
the Supreme Court found that a deaf nurse’s request to only
participate in academic courses, and bypass clinical courses
that she would be unable to perform safely, would constitute
a fundamental alteration of a nursing program. 442 U.S. 397,
407–10 (1979); see also Knapp v. Northwestern Univ., 101 F.3d 473,
482 (7th Cir. 1996) (“Legitimate physical qualifications may in
fact be essential to participation in particular programs.”). The
Court in Davis held that Section 504 of the Rehabilitation Act
does not require a school “to lower or to effect substantial
modifications of standards to accommodate a handicapped
person.” Id. at 413. In light of Davis, this Court found in
Brookhart v. Illinois State Board of Education, 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. 697 F.2d 179, 183–84 (7th Cir. 1983).
The Supreme Court’s decision in PGA Tour v. Martin is
illustrative of a fundamental alteration of a sporting event. 532
U.S. 661 (2001). In that case, the Court noted that a fundamental
alteration occurs either through a significant change that
affects all athletes alike, but alters an essential aspect of the
game; or, through a peripheral change that gives a disabled
athlete an advantage over others. Id. at 682–83. The Court
found that allowing a disabled golfer to use a golf cart between
14 No. 17‐2456
his shots, instead of adhering to the walking‐rule, would not
fundamentally alter the nature of the game since “the essence
of the game has been shotmaking.” Id. at 683–85. Instead, the
accommodation would allow the golfer “the chance to qualify
for, and compete in, the athletic events [offered] to those
members of the public who have the skill and desire to enter.”
Id. at 690.
That is not the case here. The essential nature of a track and
field race is to run a designated distance in the shortest time
possible. The IHSA’s time standards, which govern which
runners can qualify for the State championship, underscore the
essence of the sport: one must run as fast as possible to achieve
the predetermined times. According to the IHSA, the qualifying
time standards ensure a certain level of competition and
maintain a necessary scarcity of opportunity. To lower the
qualifying times for State by creating a new division of runners
would fundamentally alter the essential nature of the Sectional
and State track and field meets, as well as the Road Race.
Moreover, as the Court noted in Martin, the golfer there had
the skills to compete in golf’s most elite tournaments. See id. at
667–68 (noting that the golfer qualified for the PGA Tour in
1999, finished in the top 10 in six events, and finished second
twice and third once). The Court approved an accommodation
request that did not confer a competitive advantage on the
golfer. Id. at 690. A.H. concedes that his disability affects his
running skills and his ability to compete with able‐bodied
runners at the Sectional meet. In his accommodation request to
the IHSA, A.H. proposed adopting the LHSAA qualifying
times for the para‐ambulatory division, all of which A.H. has
easily accomplished and would assure that A.H. qualifies for
No. 17‐2456 15
State. A.H. clearly seeks an accommodation that would make
him competitive and allow him to achieve results he currently
cannot achieve.
The Rehabilitation Act and the ADA do not require the
IHSA to alter the fundamental nature of their track and field
events. Therefore, A.H.’s accommodation requests are unreasonable
as a matter of law.
A.H. currently has the opportunity to compete in the
Sectionals meet in order to qualify for State, as well as an
opportunity to compete for a medal in the Road Race. The
IHSA guarantees A.H. this equality of opportunity, and by all
accounts, A.H., his teammates, and coaches have benefitted
tremendously from his participation on the track and field
team. However, the IHSA is not required under federal law to
guarantee A.H. the results he desires from those opportunities.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of the IHSA.
16 No. 17‐2456
ROVNER, Circuit Judge, dissenting. By any estimation,
A.H. is a dedicated and accomplished athlete. He has participated
in the U.S. Paralympic trials, has competed in state
finals in swimming, has never missed a track meet, and has
never finished a cross‐country race in last place despite the
fact that he is disabled but competing against able‐bodied
runners. A.H. has cerebral palsy, however, and therefore his
body limits his ability to reach the highest levels of athletic
performance no matter his level of skill, determination, or
resources. A.H. will never have the times needed to qualify
for the Illinois state final track competitions. No one with his
disability will. But given his elite status as a paraambulatory
athlete, he might well be (and likely is) in the
top 10% of para‐ambulatory runners and thus could qualify
for state finals were there such a division. He has requested
that the Illinois High School Association (IHSA) create one,
but it has declined to do so. Many other states have divisions
for para‐ambulatory runners and the International Paralympic
Committee has already created a system of classification
for various impairments, so the IHSA would not need to
create qualification standards from scratch and it concedes
that there is no financial impediment to creating a new division.
The majority has decided that the question as to
whether or not the IHSA must provide him with such a reasonable
accommodation will not go before a trier of fact; that
is, that it is unreasonable as a matter of law.
The outcome of this case depends on who has correctly
framed the issue. According to A.H., he was required to adduce
evidence sufficient 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. According to the
IHSA, A.H. was required to adduce evidence sufficient to
No. 17‐2456 17
create a material dispute of fact as to whether but for his disability,
he would be among the elite 10% of runners who qualify
for the state finals.
The majority agrees with IHSA’s framing and concludes
that the benefit that A.H. desires is not merely to have a
meaningful opportunity to qualify for state finals, but to actually
qualify for those finals. This cannot be so. To understand
why, it might be helpful to suppose that this case had
occurred prior to the enactment of Title IX in 1972, and rather
than being disabled, the plaintiff was a female athlete
who could not participate in the heretofore (in this hypothetical)
all‐male state finals. If such a female athlete filed a lawsuit
seeking to have a separate category for female runners
with different qualifying times, she would not have been
asking to be guaranteed a spot in the state finals, but rather
she would be asking to have the same opportunity to participate
as her male peers. Perhaps the female runner is in the
top percentile of all female runners, and yet her best times
are still shy of the qualifying times for men. Although it is
true that new qualifying times for female runners might
mean that she is very likely to qualify for the state finals, that
does not mean that her lawsuit automatically becomes one
in which she is asking to qualify for state finals. She should
not be punished merely because her hard work and good
fortune have placed her in the top percentage of female runners—
the very group likely to make it to state finals. In fact,
any female would have standing to file a lawsuit asking for a
female division such that she might have the opportunity to
participate in a statewide competition.
A.H. has filed this lawsuit not because he wants to be
guaranteed a spot at the state finals, but because he desires
18 No. 17‐2456
the same opportunity to qualify for finals as any other runner.
It is true that the state final competition is an elite event
in which only approximately ten percent of non‐disabled
runners qualify, but a non‐disabled runner who has the
magic mix of drive, determination, ability to train, good
coaching, resources, genetic make‐up, and luck has the opportunity,
albeit small, to make it to the state finals. A.H.’s
chance of advancing to finals is zero. No matter how much
drive, determination, good coaching, ability to train, resources,
and luck he has, he can never compete in a state finals
race—a fact that is the result of his physical disability.
The female runner in my example does not need to
demonstrate that but for the fact that she was born female,
she would have a chance to make the qualifying time for the
state finals. It is the opportunity to try that she is missing.
Likewise, A.H. does not have to demonstrate that but for his
disability he would meet the qualifying standards for the
state finals. The current program denies him a meaningful
opportunity to try. How could any athlete ever demonstrate
that but for his disability he would qualify for state finals?
Had A.H. been born in an entirely different body, one that
did not have cerebral palsy, would he be in the top 10% of
runners? How can we know what his body would have been
like but for his disability. Would it have been more muscular?
Would his heart have been stronger? Would he be taller,
with longer legs? This is an absurd pursuit. And, in fact, if
this were the correct standard, the question as to whether he
would have qualified for the state finals but for his disability
would be a factual one for the jury, and one that might likely
be answered in the affirmative. After all, despite A.H.’s disability,
he manages to outperform even some able‐bodied
runners. And given his drive, determination, and dedication,
No. 17‐2456 19
it seems likely that he is just the kind of athlete that would
make it to the state finals. But trying to imagine a world in
which A.H. is not disabled, is not a fruitful exercise, nor is it
something a court can determine as a matter of law.
In any case, there is no guarantee that any runner will
make it to finals. Even the most elite runners can have a bad
day. Sometimes runners trip and fall, sometimes they fall ill
with viruses, sometimes an unknown up‐and‐coming
youngster emerges out of the pack and surpasses them.
What is fruitful and can be determined, however, is whether
disabled runners have the same opportunities as any other
athlete to try their hardest to make it to the state final competition.
The majority also concludes that even if A.H. adduced
evidence that but for his disability he would qualify for state
finals, his claim would fail because his requested accommodations
are unreasonable as a matter of law. According to
the majority, the creation of a new division would fundamentally
alter the nature of the program or service by undermining
the competitive nature of the state championship
and road race. The majority states that “[t]he essential nature
of a track and field race is to run a designated distance in the
shortest time possible.” Ante at 14. “To lower the qualifying
time standards for State by creating a new division of runners,”
the majority reasons, “would fundamentally alter the
essential nature of the Sectional and State track and field
meets, as well as the Road Race.” Id. But this is exactly what
the IHSA did when it created separate divisions for female
runners, wheelchair athletes, and runners from smaller
schools. It lowered the qualifying standards for the state finals
by creating a new division with different required quali20
No. 17‐2456
fications. And if doing so altered the essential nature of the
state finals and road race, then either those divisions should
never have been created or the fundamental nature of the
program has already been modified. But the reality is that
running a designated course and distance in the shortest period
of time is not the essential nature of a track or road race.
It is running that race in the shortest period of time as compared
to one’s peer group. No one would think it fair if Usain
Bolt signed up to compete in the IHSA state finals despite
the fact that he could surely run the designated course in the
shortest period of time.
According to the majority’s reasoning, lowering qualifying
standards “would undermine the competitiveness of the
State championship meet and Road Race.” Ante at 12. I
wholeheartedly reject the notion that allowing separate divisions
for women and disabled persons somehow “undermines
the competitiveness” of a sporting event or denigrates
the accomplishments of elite male athletes. 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 A.H. 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.” Appellant’s brief at 32.
The separate divisions for smaller schools is particularly
good evidence that creating new categories does not fundamentally
alter the nature of the program or undermine the
competitiveness of the championship. Wheelchair athletes
and women, on average, take longer to complete the same
No. 17‐2456 21
races because of immutable physical characteristics. Smaller
schools must pick runners from a smaller pool, but attendance
at any particular school is merely the happenstance of
geography. There is no physical or genetic reason that a
runner from a small school would not be able to run just as
fast as a runner from a larger school. Instead, IHSA has created
separate divisions for smaller schools for reasons other
than just allowing the fastest runners in the state to compete—
most likely to allow greater access to the finals for
runners who might not otherwise have a meaningful chance
to compete there. Moreover, in other ways as well, the IHSA
has established a system that ensures not only that “the best
and fastest” runners go to finals, but that the opportunity is
open more expansively. For example, each school may send
only its top two runners to compete in each event at the sectional
tournaments—the tournament through which runners
qualify for the state finals. A school with the top five runners
in the state will have to leave three of those “best and fastest”
runners behind so that other schools have the opportunity
to send some students as well. If the essence of the
competition was to have only the “best and fastest runners
in Illinois” as the majority contends (ante at 11), then the
IHSA would open the finals only to the top 10% of runners
in the state regardless of gender, ability, school size or sectional
results.
The cases the majority cites only reinforce the wellestablished
legal concept that a person seeking a reasonable
accommodation must be otherwise qualified, with or without
accommodation, for the job, program, or service. See
Khan v. Midwestern Univ., No. 17‐1055, 2018 WL 416838, at *2
(7th Cir. Jan. 16, 2018) (noting that a pregnant medical student
was not entitled to a reasonable accommodation if she
22 No. 17‐2456
was not otherwise qualified academically for the program).
A deaf nurse who cannot safely administer patient care is
not otherwise qualified, even with an accommodation, for
the job. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Nor
are students who cannot meet minimum academic requirements
in a particular program, with or without a reasonable
accommodation. Khan, 2018 WL 416838, at *2; Brookhart v. Ill.
State Bd. of Educ., 697 F.2d 179, 184 (7th Cir. 1983). Professional
golfer Casey Martin, however, was otherwise qualified
to play in a professional golf tournament provided his
disability could be accommodated by using a golf cart to
traverse the course. PGA Tour, Inc. v. Martin, 532 U.S. 661,
690 (2001). A.H. is otherwise qualified to run in a track event
and the reasonable accommodation he requests will not
change the nature of any other event or the competition as a
whole.
Like any female athlete, wheelchair athlete, or athlete
from a smaller school, A.H. would like the meaningful opportunity
to compete against his peer group for a chance to
qualify for the state finals. The success of any paraambulatory
athlete would in no way diminish the success of
any other athlete or alter the fundamental nature of the
competition. The majority offers no explanation for why it
might. A.H. has more than earned this opportunity. I respectfully
dissent.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

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