NYT on Accommodating Scholastic Athletes with Disabilities

See this story, which begins:

Some disabled students are experiencing their own Oscar Pistorius moments — not by breaking barriers in the Olympic Games, but by battling sports officials over whether and how disabled athletes should be accommodated in competitions with able-bodied athletes.

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High schools and youth sports organizations throughout the country are grappling with similarly unusual challenges in finding ways to accommodate students with disabilities.
Should a starting light be used rather than a starting gun for a deaf athlete? Should a swimmer with one arm be allowed to touch the wall with his head instead of his hand? Should a track athlete in a wheelchair be allowed to use arm strength rather than leg muscles to propel toward the finish line? 

Federal laws have long provided guidance on what students with disabilities are legally entitled to during the school day. But what constitutes reasonable accommodation or equal opportunity under the law has become widely debated when it comes to after-school sports.

DOJ: Illinois High School Association is a Public Accommodation Covered by the ADA

A couple of weeks ago, the Department of Justice filed this statement of interest in Illinois ex rel. Madigan v. Illinois High School Association, a case about which I have blogged before.  The statement of interest argues that the IHSA is a public accommodation that is subject to the requirements of Title III of the ADA.  Here is the crucial analysis:

A “public accommodation” under the statute is “a private entity that owns, leases (or leases to), or operates a place of public accommodation.” 28 C.F.R. § 36.104; 42 U.S.C. § 12181(7). The Department’s 1991 regulatory guidance confirms that it is the private entity — the “public accommodation” — that is subject to title III’s requirements: “The term ‘public accommodation[ ]’ . . . is reserved by the final rule for the private entity that owns, leases (or leases to), or operates a place of public accommodation. It is the public accommodation, and not the place of public accommodation, that is subject to the regulation’s nondiscrimination requirements.” 28 C.F.R. pt. 36, App. C (concerning the definitions at 28 C.F.R. § 36.104). 

Application of this standard to Plaintiffs’ claims demonstrates that IHSA is subject to title III. IHSA asserts that it is not a “public entity.” Mem. Supp. Mot. Dismiss at 11-2. If that assertion is correct, see supra note 2, then it necessarily follows that IHSA qualifies as a “private entity” for purposes of title III. See 42 U.S.C. § 12181 (6) (defining “private entity” for purposes of title III as “any entity other than a public entity (as defined in section 12131(1))”). In addition, IHSA does not dispute that its activities affect commerce. Finally, IHSA operates “places of public accommodation” — specifically, the facilities in which the association’s meets and tournaments are held, including the gymnasiums, arenas, courts, pools, tracks, stadiums, and other venues open to the public. Compl. ¶ 38. Title III explicitly identifies such facilities as places of public accommodation when owned, leased, or operated by a private entity whose operations affect commerce. See 42 U.S.C. § 12181(7)(C), (D), (J), and (L) (listing, as places of public accommodation: elementary, secondary, undergraduate, or other places of education; gymnasiums, or other places of exercise or recreation; stadiums or other places of exhibition entertainment; and/or other places of public gathering). 

IHSA asserts that because it is “not a physical structure” and is “merely an organization that sanctions and promotes athletic events,” it is not required to comply with title III. Def.’s Mem. Supp. Mot. Dismiss at 13; Rep. at 7. IHSA cites Brown v. 1995 Tenet Paraamerica Bicycle Challenge, 959 F. Supp. 496 (N.D. Ill. 1997) for this proposition. Brown is materially different from the case at bar. Brown — involving a bicyclist who was denied participation in a cross country bicycle tour because he refused to wear a helmet — turned on whether roads upon which a cycling tour occurred could themselves be considered “places of public accommodation” to bring the organizer within title III coverage. Id. A road, without more, is not a “place of public accommodation” under title III. See 28 C.F.R. § 36.104 (“facility” definition). Brown did not plead sufficient facts for title III coverage of the organizing group because he did not show that the places in which it operated — the roads — were analogous to the twelve categories of places of public accommodation listed in title III, and he did not allege that he was denied access to a service at a place. See 959 F. Supp. at 499. In contrast, the gymnasiums, stadiums, and other athletic facilities that IHSA operates are undoubtedly places of public accommodation, and plaintiffs allege denial of participation in them. 

Contrary to IHSA’s argument, this case does not raise a question of the coverage of public accommodations that do not occupy a physical space, such as online-only stores. Plaintiffs have, indeed, alleged that IHSA operates — and controls student athletes’ access to — the sectional and state tournaments held in various physical gymnasiums, stadiums, and other arenas across the state. See Compl. ¶¶ 7, 13, 29-32. Accordingly, IHSA falls squarely within title III’s coverage and is subject to the requirements of title III. 

Illinois AG to Sue High School Athletic Association Over Lack of Competition Standards for Athletes with Disabilities

See this story from the Chicago Tribune.  It begins:

Paralyzed from the waist down, 16-year-old Mary Kate Callahan relies solely on upper-body strength to power through the water in the 200-meter freestyle, her favorite race. 

Accustomed to overcoming obstacles, Callahan is now fighting for the chance to swim in the state championship during the next school year. 

The Fenwick High School student has been denied the opportunity to compete with her team because the Illinois High School Association lacks athletic competition standards for students with disabilities, according to a complaint drafted by the Illinois attorney general's office.

MHSAA Proposes Age Limit Waiver for Student-Athletes with Disabilities

See this story, which begins:

For the first time in a couple years, Dean Dompierre is in complete agreement with the Michigan High School Athletic Association. 

Dompierre was pleased with the language in the proposed amendment to the MHSAA constitution that would provide studentswith disabilities to exceed the 19-year-old age limit to participate in athletics. 

“I think the MHSAA leadership did an excellent job of wording it,” he said. “It’s pretty much what we’ve been asking for at least these last two proposals. It’s not limited to just one disability. It’s broad enough to cover anyone who meets the criteria. Yet it’s restrictive enough to make it difficult, if not impossible, for someone to abuse it.”

ADA Challenge to Requirement that Blind Runners Wear "Black-Out Glasses" in Triathlon

See this story from CNN, which begins:

A legally blind athlete is suing three triathlon groups over a rule that makes him and other vision-impaired runners wear blackout glasses -- leaving them temporarily sightless -- in a controversial effort to "level the playing field.'' 

The lawsuit was filed Wednesday in U.S. District Court for the Eastern District of Michigan by Aaron Scheidies, a 30-year-old athlete. Scheidies says the rule violates the Americans with Disabilities Act of 1990. 

Having a legally blind person compete in the running portion of a triathlon with blackout glasses "poses substantial danger to not only the competitor but those around them,'' the complaint says.

As I read the article, the folks who host the triathlon rank blind competitors separately from all other competitors.  They require anyone with limited vision who wishes to be ranked in the blind category to wear black-out glasses so that everyone ranked in that category has the same level of vision.  (Again, that's just my understanding from reading the article and complaint.  I'd be interested to hear more if my understanding is wrong.)  What's not clear to me from the article and complaint is whether Scheidies wants to be ranked in the blind category, despite his residual vision, without wearing the black-out glasses, or whether the triathlon administrators will totally bar him from the race if he does not wear those glasses.  If it's the latter, that would seem pretty clearly to be a violation of the law.  If it's the former, the case is much harder, even though the policy would still seem to me an ignorant one that should be abandoned.

Looby on High School Athletes with Disabilities and the ADA

Just out: James P. Looby, Reasonable Accommodations for High School Athletes with Disabilities: Preserving Sports While Providing Access for All, 19 Sports Law. J. 227 (2012).

Gatlin Loses in 11th Circuit; Won't Run in Trials

See this story, which I picked up from Bashman. When I get a copy of the Eleventh Circuit's order, I'll post it.

Judge: Gaitlin Should be Allowed to Run at Olympic Trials

See this article by that title. An excerpt:

A Florida federal judge says barred sprinter Justin Gatlin should be allowed to compete at the U.S. Olympic track and field trials.

U.S. District Judge Lacey A. Collier's temporary restraining order is only in effect for 10 days, and the trials don't begin until June 27 in Eugene, Ore.

* * *

Gatlin's complaint alleged that penalizing him for a 2001 doping violation, which involved medication he was taking for attention deficit disorder, violates the Americans with Disabilit[ies] Act.

Two weeks ago, the Court of Arbitration for Sport upheld a four-year doping ban against the reigning Olympic 100-meter gold medalist. Gatlin asked CAS to rescind the 2001 doping violation -- his first of two -- which he had hoped would reduce his
penalty to a two-year ban, allowing him to compete at trials.