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In a 2-1 decision, a Chicago federal appeals panel upheld a lower court's finding that a physically disabled Evanston High School athlete can’t use federal disability law to force the Illinois High School Association to lower standards for track and cross-country events.

The Feb. 2 ruling was penned by Senior Judge William Bauer, with agreement from Circuit Judge Michael Kanne, of the U.S. Court of Appeals for the Seventh Circuit. Circuit Judge Ilana Rovner dissented, disputing the majority view the athlete wants a leg up on able-bodied runners, but rather seeks only a chance to reach the top.

In 2016, Keith Holzmueller filed for an injunction on behalf of his teenaged son, identified as A.H. in court documents, against the IHSA. Holzmueller alleged the association violated the U.S. Rehabilitation Act, the U.S. Americans with Disabilities Act and the equal protection clauses of the U.S. and Illinois constitutions. The Bloomington-headquartered IHSA organizes and administers state athletic competitions for almost all high schools in Illinois.

A.H. is now a senior at Evanston High School who has physical disabilities, caused by cerebral palsy, according to the lawsuit. A.H. takes part in local track and cross-country, but cannot participate in state meets, because he cannot attain the same qualifying times required of non-disabled contestants.

A.H. alleged the IHSA discriminates against him and other similarly handicapped athletes. He demanded the IHSA set different qualifying times for runners such as himself. IHSA declined to do so, arguing in its motion to dismiss that, “A.H. has the same opportunity to compete . . . as his nondisabled peers" and IHSA “does not believe that his disability entitles him to accommodations which would better assure his chances for victory.”

U.S. District Judge John Tharp Jr. dismissed the suit in summer 2017, finding the IHSA has to guarantee A.H.'s opportunity to compete, but not to give him an advantage over non-disabled competitors when qualifying for state meets.

Appeals Judge Bauer agreed with Tharp.

“Qualifying time standards are designed to make the individual races extremely competitive, purposely excluding a great majority of runners from reaching state. The demanding qualifying times established by the IHSA exclude the able-bodied and disabled runners alike. The qualifying times ensure the state championship meet is reserved for the best and fastest runners,” Bauer reasoned.

Bauer went on to say there is no reason to believe runners like A.H. are unable to qualify simply because they are disabled, adding the accommodation sought by A.H. would “undermine” and “fundamentally alter the essential nature” of competition.

Judge Rovner disagreed, saying the issue has been wrongly framed – A.H. does not seek an edge on non-disabled runners, but only a chance to reach state finals, which the current setup denies him.

“A non‐disabled runner who has the magic mix of drive, determination, ability to train, good coaching, resources, genetic make‐up, and luck has the opportunity, albeit small, to make it to the state finals. A.H.’s chance of advancing to finals is zero. No matter how much drive, determination, good coaching, ability to train, resources, and luck he has, he can never compete in a state finals race - a fact that is the result of his physical disability,” Rovner concluded.

Rovner wondered if A.H. “had been born in an entirely different body, one that did not have cerebral palsy, would he be in the top 10 percent of runners? How can we know what his body would have been like but for his disability.”

Rover pointed out A.H might very well qualify for state competition, if not for his disability, because he has managed to “outperform” some able-bodied runners.

“It seems likely that he is just the kind of athlete that would make it to the state finals,” Rovner maintained.

As far as A.H.'s demand “altering the fundamental nature” of competition, Rovner said the IHSA has already made such alterations with its separate categories for females, wheelchair athletes and runners from smaller schools. None of these categories “strip” contests of their prestige or identity, or devalue the achievements of other competitors.

Holzmueller has been represented by the Chicago firm of Jenner & Block.

The IHSA has been defended by the Chicago, Peoria and Champaign offices of the Chicago-based firm of Heyl, Royster, Voelker & Allen.

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Jenner & Block LLP U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois




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