Controversial D.Md. Decision on Wheelchair Athletics

As reported here and here, a couple of days ago Judge Davis of the U.S. District Court for the District of Maryland issued a preliminary injunction that requires the Howard County Public Schools to allow Tatyana McFadden, who uses a wheelchair and is a member of her high school track team, to compete in track events at the same time as her teammates (though not actually to compete against non-wheelchair athletes).

Eugene Volokh sees this case as possibly the reductio ad absurdum of PGA Tour v. Martin. Eugene writes:

how can it make sense to have wheelchair racers racing against foot racers? Even if Martin was rightly decided, and the requirement that one walk rather than riding from hole to hole while playing golf isn't really essential to golf, surely the requirement that one run rather than riding is essential to racing, no? You wouldn't have foot racers racing against bicyclists, unicyclists, or swimmers; these are just different sports. And if the response is that it's logically impossible to tell whether they're different sports or not, then that cuts in favor of the dissent in Martin, and against any disability law interference with the rules established by sporting event organizers.

But I don't see the big deal. (I guess I should disclose that I wrote an amicus brief in Martin on Casey Martin's side.) I've read the PI and the motion papers. This order doesn't require the school to have McFadden compete against racers who are on foot -- that really would be comparing incommensurables. It requires the school to let McFadden compete at the same time as others -- and not relegate her, as the school had, to going around the track by herself.

One of the points I tried to make in my Martin amicus brief -- really in a damage-control way -- was that scholastic sports are different from high-level professional sports like the one in which Casey Martin was participating. Scholastic sports do not aim just to choose a victor according to a specified set of rules; they serve educational and participatory functions as well. So it should rightfully be easier for a plaintiff like McFadden to show an accommodation is reasonable than it wast for Casey Martin (who, after all, won his case). Some change even to outcome-affecting rules might be appropriate as a disability accommodation in scholastic sports, even if it wouldn't be appropriate in high-level professional sports.

But here even the Martin issue doesn't arise. McFadden wasn't asking for any change in the rules of the sport, for her or anyone else. She was just asking for the opportunity to run her races while her teammates ran theirs. The order just said the school couldn't shut her out and segregate her, not that it had to let her race against students on foot (races she'd surely win -- compare the wheelchair and on-foot times for any marathon).