Law & Policy: Governing Bodies
- 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?"
- Athletic Trainer Bill Passes in House, Moves to Senate
by Stuart Goldman September 2016
Athletic trainers and sports medicine professionals are closer to receiving liability insurance protection while providing care to their athletes out of state.
- Judge: Unseal USA Gymnastics Abuse Records
by Jason Scott August 2016
A judge in Georgia ruled Monday that files held by USA Gymnastics regarding sexual abuse complaints against coaches should be made public.
- Wis. School District Sues Over Realignment
by Jason Scott July 2016
A southeastern Wisconsin school district filed a lawsuit against the Wisconsin Interscholastic Athletic Association (WIAA) over a realignment proposal that is set to take effect for the 2017-2018 school year.
- Top NCAA Tourney Seed to Choose Opening-Round Site
by Jason Scott July 2016
Beginning this upcoming season, the No. 1 overall seed in the NCAA basketball tournament will be able to choose the location of its first- and second-round games, giving the top seed an even greater competitive advantage.
- Letter Calls on NCAA to Act on Abuse Allegations
by Jason Scott June 2016
In an open letter to the NCAA, a lawyer representing a former assistant gymnastics coach at Penn State calls for deeper NCAA investigations into allegations of abuse.
- Report: Baylor Board of Regents Mulling Briles Comeback
by Jason Scott June 2016
According to multiple reports, Art Briles may not be done at Baylor after all.
- High School Coach Cleared in 29-Year-Old Player Case
by Jason Scott May 2016
A Canadian high school basketball coach was cleared of any wrongdoing in the case of the 29-year-old South Sudanese native who starred on his team.
- Beach Volleyball to Become Official HS Sport in Florida
by Jason Scott April 2016
Beginning in the spring of 2017, beach volleyball will become an official high school sport in the state of Florida.
- NBA Could Approve Jersey Ads for 2017-'18 Season
by Jason Scott April 2016
A vote among NBA owners scheduled to take place this week may allow for advertisements on NBA jerseys, according to ESPN.