A student identified as A.H. was a senior at Evanston Township High School in Illinois and a gifted athlete, participating in swimming, cross country and track. He had been on the track team throughout high school and never missed a track meet. However, A.H. never qualified for the state track meet or the prestigious 5K Road Race. He was not fast enough.
That was probably because he had spastic quadriplegia related to cerebral palsy. While A.H. was considered an elite athlete in the disabled community and he competed in the U.S. Paralympic Trials in 2016, he was never going to qualify for the Illinois State Track Meet. We can be pretty sure about that. A.H.’s combination of disabilities put him in the T-36 category of disability. As the court noted, “world record holders in the T-36 classification would be unable to achieve any of the qualifying times” for the state track meet.
Illinois, like Texas, offers wheelchair events at the state meet. But A.H. did not compete in a wheelchair. He was a runner. In fact, he ran the 1600 meter race for his high school team at Sectionals and throughout his cross country career he had never finished last. That is pretty impressive. So the argument here was not about the student’s participation on the team. It was about making it to the State Track Meet.
A.H. requested three accommodations: 1) a modified starting block in short races; 2) creation of separate time standards for para-ambulatory athletes to qualify for the state meet; and 3) a separate division for para-ambulatory athletes in the state’s 5K Road Race. He got the modified starting block but was turned down on the other two requests.
The 7th Circuit held that A.H. was not entitled to separate time standards or a separate para-ambulatory division. The closest argument was over the separate division. The court noted that many states have such a division, but that does not mean that they have to. The court concluded that creating a separate division for athletes like A.H. would make it easier for him to qualify for the state meet. Thus it would give him an unfair advantage over other athletes. Therefore, it would be a “fundamental alteration” of the program. Key Quote:
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.
These are always difficult cases. There is a natural sympathy in favor of the student with a disability who wants to participate in athletics. This is balanced against a desire to ensure fair competition. Any accommodation that would guarantee a student’s success in athletics is probably “unreasonable.” There are no guarantees in athletic competition for anyone. Guaranteed success goes against the very nature of competition. That’s why it’s considered a “fundamental alteration.”
There was a strong dissent in this case. The dissenting judge did not perceive that A.H. was seeking guaranteed success, but rather, a chance to compete against similarly situated athletes. The dissenting judge pointed out that Illinois offered several separate divisions: boys competed only against boys; girls against girls; wheelchair athletes against those similarly situated. In fact, Illinois even offered a separate division for small schools. So this judge did not think it at all “unreasonable” for A.H. to have a separate division for athletes like himself.
The case of A.H. v. Illinois High School Association was decided by the 7th Circuit Court of Appeals on February 2, 2018. We found it at 881 F.3d 587 and 71 IDELR 121.
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Tomorrow: A principal wields “unilateral” power on Toolbox Tuesday!