The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The plaintiffs have brought suit against the defendant, the Illinois High School Association ("IHSA"), seeking injunctive relief to prevent what they view as unlawful discrimination under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Titles II and III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12132 & 12182. IHSA has now moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the court denies the motion.
The plaintiffs, the Office of the Attorney General ("Attorney General") and Joanne Callahan on behalf of M.K., seek an injunction against IHSA that would require IHSA to adopt policies and procedures to allow student athletes with disabilities the chance to compete in IHSA-sanctioned events and competitions. According to the complaint, IHSA includes 98% of Illinois public and private high schools, and these schools rely on IHSA to organize and administer their state championship meets. IHSA regulates all of the interscholastic activities in which its member schools engage: for instance, it establishes the eligibility criteria for student athletes, determines which member schools can compete in competitions, sets the times and dates during which interscholastic activities can be held, establishes scoring rules and qualifying standards for student athletes, and regulates the qualifications of coaches and officials. IHSA holds state championship competitions at ticketed venues that are open to the public, such as high school, college, or minor league stadiums. There are no other organizations that run state high school championships, so students competing as part of their high school teams must compete in IHSA-sanctioned state championships. The public high schools that are members of IHSA must be supported by public taxation, and must be recognized by the Illinois State Board of Education. IHSA itself is a recipient of federal financial assistance under the Rehabilitation Act.
IHSA has not promulgated rules that would permit athletes with disabilities to score points in interscholastic meets-in fact, according to the plaintiffs, IHSA has explicitly refused to do so-and its regulations prohibit member schools from setting their own standards or scoring systems for athletes with disabilities. As a result, students who have disabilities that prevent them from meeting existing state qualifying standards are denied the opportunity to compete in IHSA-run state championship meets. Yet IHSA itself has provided different qualifying standards for state championship meets based on gender, school size, and geography, which has resulted in multiple qualifying standards for state championship meets in every event within a sport.
Although the complaint describes a number of other disabled students,*fn1 the primary focus here is upon the specifics of M.K.'s experience. M.K. is a sixteen-year-old student at Fenwick High School who has physical disabilities, including lower-limb paralysis. She is substantially limited in one or more major life activities, including walking, bending, and standing; as a result, she requires the full-time use of a wheelchair. M.K. has been swimming with her high school team since her freshman year, and her high school permits her to participate in local interscholastic track and swim meets; in fact, M.K.'s swimming times place her among the top adaptive high school swimmers in the state. But M.K.'s disability prevents her from meeting the qualifying standards that IHSA has set for students without disabilities, and so she is presently unable to earn points for her team in these competitions. As a result, M.K. is excluded from participating in championship meets on behalf of Fenwick High School. M.K. wants the opportunity to qualify for the state championship meets in swimming and track and to earn points for her team during the 2012-2013 sports season.
This is not the first time the issue has been raised with IHSA. According to the complaint, representatives from the Great Lakes Adaptive Sports Association met with M.K., Fenwick High School personnel, and IHSA to discuss including athletes with disabilities in the state track and swimming championships. IHSA was presented with a written proposal requesting that IHSA modify its policies to include qualifying times for students with disabilities and include one exhibition heat for swimmers with disabilities at the state swimming championship, but IHSA did not respond to the proposal. In the spring of 2012, the Attorney General also met with IHSA in an attempt to resolve these issues. The Attorney General proposed that IHSA set up exhibition heats for wheelchair racers and allow these athletes to compete in the shot put and discus as a "first step" while the parties continued to discuss long-term goals for including athletes with disabilities in interscholastic sports. IHSA's Executive Director expressed concern that IHSA would be exposed to liability if it opened up one sport but not others, but indicated that the proposal was reasonable. Instead of responding to that proposal, however, IHSA ultimately filed suit against the Attorney General.*fn2
The plaintiffs responded by filing their own lawsuit in this court. They claim that IHSA has discriminated against M.K. and other students with disabilities in violation of the ADA and the Rehabilitation Act by failing to provide them with the full and equal opportunity to participate in sports in an integrated setting despite the fact that these students are qualified to do so. They further allege that IHSA has violated federal law by failing to conduct a proper individualized assessment of the ability of M.K. and other students with disabilities to participate, failing to engage in the interactive process to determine if any reasonable accommodations or modifications are required, failing to provide any reasonable accommodations or modifications, failing to provide any appeal or grievance opportunities, and otherwise failing to comply with the ADA and the Rehabilitation Act. IHSA has now moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that IHSA (1) does not receive any federal funding as required under the Rehabilitation Act, (2) is not a "public entity" as required under Title II of the ADA, and (3) is not a "place of public accommodation" as required under Title III of the ADA. In addition to the plaintiffs' opposition, the Department of Justice's Civil Rights Division ("the DOJ") has also filed a "Statement of Interest" under 28 U.S.C. § 517, and argues that IHSA operates as a place of public accommodation and falls squarely within the coverage of Title III. The court addresses each issue in turn.
Under Federal Rule of Civil Procedure 12(b)(6), the defendant may seek to dismiss the case if the plaintiff "fail[s] to state a claim upon which relief can be granted." The court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. Stayart v. Yahoo! Inc., 623 F.3d 436, 438 (7th Cir. 2010). But although Federal Rule of Civil Procedure 8(a) requires that the complaint contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," nonetheless the complaint must include "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 566 U.S. 662 (2009) (noting that while Rule 8 does not require detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). The relevant question is whether the complaint includes enough factual allegations to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, to survive a motion to dismiss post-Twombly, "'the plaintiff must give enough details about the subject-matter of the case to present a story that holds together,' and the question the court should ask is 'could these things have happened, not did they happen.'" Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir. 2011) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010)).
IHSA has moved to dismiss on three grounds, each of which is relevant to a single count. The court begins with Count I, in which the plaintiffs allege that IHSA violated Section 504 of the Rehabilitation Act.
A. The Rehabilitation Act
Section 504 of the Rehabilitation Act provides, in relevant part, that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to ...