CHICAGO (CN) – At oral arguments Monday, the Seventh Circuit was critical of the Illinois High School Association’s refusal to create a para-ambulatory division that would allow disabled students to compete in track and field events against their disabled peers.
A.H. is a high school student with cerebral palsy who is a very high-achieving athlete within the disabled athletic community. He participated in the 2016 U.S. Paralympic trials, and may well compete internationally in the future.
While he is a hard-working member of his high school track team, his disability means that he can never compete on the same level as his able-bodied peers.
A.H. petitioned the Illinois High School Association, or IHSA, to establish a para-ambulatory division and set “realistic qualifying times” to allow a para-ambulatory athlete to compete under different standards than non-disabled athletes.
The IHSA currently has eight different standards for various groups of students, including different genders. This would also allow para-ambulatory athletes to compete in their own races against disabled peers in sectional and state finals races.
The IHSA has already established a track and field division for wheelchair-bound students, as well as a disabled swimming division.
However, the association denied A.H.’s request.
Through his father, A.H. sued the IHSA under the Americans with Disabilities Act, arguing it cannot legally deny his request for a reasonable accommodation.
A federal judge granted summary judgment to the IHSA in July, writing that “it is an unfortunate fact of athletic life (and life in general, for that matter) that hard work is no guarantee of competitive success.” (Parentheses in original.)
But the Seventh Circuit was far more sympathetic to A.H.’s situation at oral arguments on Monday.
The boy’s attorney, Devi Rao with Jenner & Block, told the three-judge panel that IHSA has admitted it will suffer no burden by granting AH’s request.
“IHSA has said specifically it would not be burdensome for it to create such a division – it just doesn’t want to,” Rao said.
Judge Michael Kanne asked how many students would benefit from a para-ambulatory division.
Rao said the numbers of students who might participate in a para-ambulatory program can only be guessed as many disabled students do not participate in sports because there is no program specifically for them.
“It’s an if-you-build-it-they-will-come situation,” Rao said.
However, eight other states have voluntarily established a para-ambulatory track and field division, she told the court.
IHSA’s attorney, Craig Unrath with Heyl Royster, told the panel, “Nothing in the [Americans with Disabilities Act] requires the association to make this accommodation.”
Judge Ilana Rovner was immediately hostile to his argument.
“But where is the harm here. I don’t get it,” she said.
Unrath said that the IHSA is a membership organization, and no school has ever requested it create a para-ambulatory division. He said such a request would be considered, but the law does not require the IHSA to establish one.
“These students don’t get involved in running because they have no chance in advancing,” Rovner told Unrath.
Unrath disagreed, saying, “I take umbrage when you say that a disabled student gets no benefit from participating in their own track and field team.”
Rovner retorted, “You can take all the umbrage you want, I said nothing of the sort.”
She acknowledged that simply participating in an athletic sport has its own benefits.
“Of course, but they never get a chance to win,” Rovner said. “It is impossible.”
“My heart goes out to you having to argue this view of life,” she told Umbrath, clearly finding his argument hard-hearted.
Umbrath admitted that perhaps the association should create a para-ambulatory division, but reiterated that the question is whether, as a matter of law, it must.
“What we’re dealing with here is discretion,” Umbrath said.
Rovner told him, “Illinois is living in the Dark Age,” at which Umbrath sought escape, saying, “Your Honor, I see my time is up.”
“You’re saved by the bell!” Judge Kanne told him.
Judge William Bauer rounded out the panel.
The court is expected to issue an opinion in the case within three months.