Law & Policy: Governing Bodies
- UW Student-Athletes Tweet for Change
by Courtney Cameron November 2016
On Monday, University of Wisconsin student-athletes took to twitter in a campaign to raise awareness of the problems inherent in a system that they say lauds the athlete and dismisses the student. According to ESPN, a score of UW football players as well as celebrated basketball player Nigel Hayes have shared a statement that earnestly asks for respect and understanding. The athletes are calling on university officials to take a stand, address head-on the issues that student-athletes of color face daily on college campuses around the United States and take the initiative to effect real change.
- Big Ten’s Friday Night Turf Invasion
by Emily Attwood November 2016
Tuesday’s Big Ten announcement that it will add six prime-time Friday games to its schedule has been met with strong reactions from football fans and athletics administrators, and not many are excited about the decision. From high school associations who see the Friday night games as an invasion of their turf to member colleges who view the games as a logistics nightmare — not to mention the general fan opinion that the move represents an egregious money grab — the reactions have been swift and loud.
- Wisconsin AD: Noose Incident to Bring Policy Changes
by Paul Steinbach November 2016
University of Wisconsin athletic director Barry Alvarez indicated Wednesday that stadium policy will change in the wake of an incident involving fans in costume at the Badgers’ home football game Oct. 29 against Nebraska. One fan wore masks depicting U.S. president Barack Obama and presidential candidate Hillary Clinton while also wearing a striped prison suit and a noose around his neck. A second fan, dressed as presidential candidate Donald Trump, held the end of the rope.
- LHSAA Suspends Coaches, Vacates Wins for HS Team
by Courtney Cameron October 2016
After receiving an anonymous tip concerning the eligibility of several student-athletes on the Belaire High School football team, the Louisiana High School Athletic Association conducted an investigation which resulted in both disciplinary and administrative probation. The consequences include a $2,000 fine, suspensions for two coaches and five retroactive forfeits for the Belaire Bengals.
- Report: Louisville to Receive Notice of Allegations
by Jason Scott October 2016
The University of Louisville basketball program is expected to receive a notice of allegations from the NCAA stemming from a yearlong investigation into an alleged prostitution scandal.
- Player’s ‘Broke Athlete’ Sign Drives Discussion
by Jason Scott October 2016
University of Wisconsin basketball star Nigel Hayes made waves when he appeared on ESPN’s College GameDay program Saturday with a sign soliciting donations to a Venmo account.
- Nevada State Senate Approves $1.4B for Raiders Stadium
by Courtney Cameron October 2016
With the Nevada state legislature making quick decisions concerning funding for a new stadium for the Oakland Raiders, owner Mark Davis may have to follow through on his promise to move the team to Las Vegas. Following a designated public forum at the state capitol on Tuesday, the Nevada Senate voted 16-5 in approval of a $1.4 billion public funding package to build the Raiders a new home stadium and convention center in Las Vegas.
- FHSAA Ruling on Puerto Rican Players Could Have Wider Impact
by Jason Scott September 2016
A decision regarding the eligibility of Puerto Rican high school baseball players in Florida could have unintended consequences for athletes across the state.
- NBA, NBPA Preparing for Anthem Protests
by Jason Scott September 2016
Colin Kaepernick’s continued demonstration during the national anthem has picked up momentum. Beyond other NFL players, the protests have picked up supporters at the high school level and have even crossed into other sports.
- What Constitutes Reasonable Para-Athlete Accommodation?
by John Wolohan September 2016
This article appeared in the September issue of Athletic Business. Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.
Twenty-five years after the passage of the Americans with Disabilities Act (ADA), high school athletic associations and individual schools are still grappling with the law and its impact on prep sports. A good example of the dilemmas these groups face when addressing the issue of para-athletes competing in high school sports is K.L. v. Missouri State High School Activities Association, 2016 U.S. Dist. LEXIS 47621.
K.L., a student at Troy-Buchanan High School (TBHS) in Troy, Mo., was born with a venous malformation involving her left leg — a condition, known as "Bockenheimer's Syndrome," that required the surgical removal of her left leg above the knee in 2011. This has not slowed her down, however. K.L. is still very active in athletics and is returning for her fourth year as a member of the TBHS track team, using a racing chair in 100-, 200- and 400-meter events. In addition, she competes in sled hockey and triathlon at the regional and national levels with other para-athletes.
Despite K.L.'s active participation in high school track, Missouri State High School Activities Association (MSHSAA) rules do not allow K.L. or her team to earn any team points for her results. K.L. petitioned the MSHSAA to award her and her team points when she competes against all high schools — with and without para-athletes — arguing that her inability to earn team points "sometimes" made her feel that she is "not a part of the team" and "excluded."
SEVEN IN 25,000
In rejecting her request, the MSHSAA argued that adoption of K.L.'s demands to create new district, sectional and state championship competition for adaptive events in which para-athletes compete head-to-head — including creation of new operating standards, new qualifying standards, new point scoring against teams without para-athletes and new meet management requirements — would fundamentally alter the MSHSAA track and field program. In support of this conclusion, MSHSAA stated that approximately 25,000 students currently participate in MSHSAA track and field competition. Of this number, only seven students statewide — four females and three males — sought participation in adaptive events for para-athletes for the 2015-16 track and field season.
In seeking a court order forcing the MSHSAA to change its current rules and scoring system, K.L. claimed that the current rules and system violated both Section 504 of the Rehabilitation Act and Title II of the ADA. Because the rights under the ADA are the same as under the Rehabilitation Act, the courts apply the same principles to both laws. The Rehabilitation Act states that: "No otherwise qualified handicapped individual in the United States, ... shall solely by reason of his handicap, be excluded from 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).
In determining if someone is otherwise qualified for an activity, the courts have held that while an organization is not required to make fundamental or substantial modifications to accommodate an individual's disability, it may be required to make reasonable ones. K.L. alleged that MSHSAA denied her benefits of its programs and activities "by refusing to make reasonable modifications to its track and field program."
WHAT IS REASONABLE?
In rejecting K.L.'s arguments, the court found that by definition, accommodations are not reasonable if they impose undue financial and administrative burdens or if they require a fundamental alteration in the nature of the program. Not only was K.L. seeking to earn team points, but to have those points assessed against teams that do not have any para-athletes in their school or on their team. The court held that K.L.'s requested modifications would constitute "affirmative action" relief — not cognizable under Section 504 or Title II of the ADA — to create new operating standards, new qualifying standards, new point scoring and new state championship competition for K.L. that do not currently exist.
In particular, the court found that K.L. and her team would be afforded unequal and preferential treatment against teams without para-athletes who will have their accomplishments altered by an unfair and inequitable distribution of points they have no chance to earn without para-athletes. The court found that if K.L's high school team had been advantaged with 40 points from four first-place finishes as the only competitor in four events during these state track meets, her team would have been advantaged over teams without para-athletes and elevated from 50th to 5th place in 2013, from 23rd to 3rd place in 2014 and from 34th to 6th place in 2015.
As more para-athletes seek to compete in high school sports, the court's decision in K.L. v. Missouri State High School Activities Association provides a number of important lessons to schools and state athletic associations. First, it is important to note that under the ADA and Section 504 of the Rehabilitation Act organizations must make reasonable modifications to their rules to accommodate individuals with disabilities. What is reasonable is a question for the courts, but as long as the requested accommodations do not require fundamental modifications, organizations should be willing to alter programs to accommodate individuals with disabilities.
Second, what might seem unreasonable in one situation today might be reasonable in another. For example, if instead of seven para-athletes, there were 700 statewide, the court would more than likely have found the modifications requested to be reasonable. Therefore, it is essential that organizations conduct a case-by-case review when developing and operating fair and equitable statewide programs.
Attorney John Wolohan is a professor of sports law in the David B. Falk College for Sport and Human Dynamics and College of Law at Syracuse University.
This article originally appeared in the September 2016 issue of Athletic Business with the title "Is high school para-athlete's accommodation request reasonable?"