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A.H. v. Illinois High School Association

United States District Court, N.D. Illinois, Eastern Division

July 7, 2017

A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, Plaintiff,


          John J. Tharp, Jr. United States District Judge.

         Plaintiff A.H. is a high school runner with cerebral palsy. Although he competes as a member of his school's track team during the regular season, he has sued the Illinois High School Association ("IHSA"), which runs the state track and field championship and other events, seeking two accommodations for his disability: that IHSA establish realistic qualifying times for para-ambulatory athletes to compete in the state finals and that IHSA establish a para-ambulatory division in its annual 5K "Road Race" event. IHSA has moved for summary judgment. Although there are some preliminary issues to address, the principal dispute between the parties is whether A.H.'s requested accommodations are reasonable. The reasonableness of accommodations for disabilities is often a fact question, but here the question can be resolved as a matter of law, both because there is no evidence from which to infer that A.H. could meet the required performance standards were he not disabled and because a public entity need not lower its qualifying standards to facilitate participation by the disabled. His related claim that IHSA's denial of his accommodation requests deprived him of equal protection also fails because IHSA's position is rational, not arbitrary, and is not the product of discriminatory animus. Accordingly, and as more fully set forth below, IHSA is (with one minor exception) entitled to summary judgment.


         On summary judgment, the Court "must construe all facts and reasonable inferences in favor of the nonmoving party." Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1074 (7th Cir. 2016), cert, denied sub nom. Citizens for Appropriate Rural Roads, Inc. v. Foxx, 137 S.Ct. 310 (2016). Only IHSA has moved for summary judgment so all facts are interpreted, and all inferences drawn, in A.H.'s favor. The facts summarized below are undisputed unless otherwise noted. The Court did not consider the portions of the expert report deemed inadmissible later in this opinion. See Poulter v. Cottrell, Inc., 50 F.Supp.3d 953, 955 (N.D. Ill. 2014).

         Plaintiff A.H. is a high school student at Evanston Township High School in Evanston, Illinois. Def's Statement of Material Facts ("DSOF") ¶ 1, ECF No. 156. Since his freshman year, A.H. has been a member of his school's swim, track, and cross-country teams. Id. at ¶ 89. During his three years of high school, A.H. has missed fewer than five track and cross-country practices and has never missed a meet. Id. at ¶ 90. A.H.'s coach has made him feel welcome "to the best of [his] ability" and A.H. is accepted and respected by his teammates and coaches. Id. at ¶ 94-95. A.H. has received awards for his leadership and determination from his track coach. Id. at ¶ 100.

         A.H.'s athletic participation is noteworthy in light of the fact that he has physical disabilities, including spastic quadriplegia related to cerebral palsy. Pl.'s Statement of Additional Facts ("PSOF") ¶ 1, ECF No. 168. Due to his disabilities, A.H. has a limited range of motion in his hips, knees, and ankles as well as an abnormal gait pattern and involuntary movement. Id. at ¶¶ 2-4. These disabilities adversely affect the basic mechanics of running, which require an athlete to balance, flex, extend, and propel his body by coordinating the movements of all four limbs. Id. For example, A.H. cannot push off on his toes in the way that an able-bodied runner would. Id. at¶ 5.

         In addition to competing on the high school track team, A.H. frequently participates in adaptive sports against other individuals with disabilities. DSOF ¶ 116. A.H. competes both locally and nationally in these competitions, including the 2016 U.S. Paralympic Trials. Id.; PSOF ¶ 9. Within the disabled athletic community, A.H. is seen as an "elite" and "up and coming" athlete who may well compete internationally in the future. PSOF ¶¶ 8, 10.

         Despite these achievements, A.H. has never been able to compete in the state finals for track, a competition sponsored and managed by defendant IHSA.[1] Id. at ¶ 6. IHSA does not offer a division for athletes with disabilities in track unless they use a wheelchair. Id. at ¶ 20. In contrast, IHSA allows both wheelchair athletes and para-ambulatory athletes (including A.H.) to compete in a disability division in swimming. Id. Disabled swimmers and wheelchair track participants are able to earn points for their teams that contribute to a "Combined State Championship" award (which is open only to schools which have disabled athletes competing). Id. at ¶ 19.

         Selected by his coach, A.H. ran the 1600 meter race at the spring 2017 sectional competition (which is a qualifying race for the state championship) against able-bodied athletes, but he did not run fast enough to qualify for the state finals according to the metrics used for able-bodied runners. DSOF ¶¶ 112, 113. A.H. finished last in that race, almost a minute and a half behind the next fastest runner. PSOF ¶ 12. It is undisputed that even the world record holders for runners with A.H.'s disability classification would not meet IHSA's qualifying times to compete at the state track meet. Id. at ¶ 18.

         On or about September 26, 2015, A.H. made three requests to IHSA regarding its track program: 1) that he be allowed to use a modified starting block, 2) that IHSA create qualifying time standards[2] for para-ambulatory athletes for the state finals, [3] and 3) that IHSA create a para-ambulatory division in the annual Road Race[4] event.[5] DSOF ¶ 62. Only the latter two requests are at issue in this case, because IHSA's Executive Director granted the request permitting A.H. to use a modified starting block. Id. at ¶ 66. On October 8, 2015, IHSA's Executive Director (Dr. Hickman) denied A.H.'s request for different time standards and the new para-ambulatory division. Id.

         A few words are necessary at this point about IHSA. IHSA is a not-for-profit[6] which organizes interscholastic athletic events throughout the state for high school students. DSOF ¶¶ 2, 4. Illinois high schools that meet the criteria of IHSA membership may elect to join IHSA as long as they follow its terms and conditions, bylaws, and constitution. Id. at ¶ 8. Over 90% of Illinois high schools are members of IHSA. PSOF ¶ 13. IHSA's board comprises 10 principals from member schools. DSOF ¶ 9. IHSA's Executive Director has the authority to decide "all matters concerning eligibility, accommodation requests . . . and make modifications or impose penalties where appropriate." Id. at ¶ 22. IHSA does not have a template or published set of criteria for adjudicating accommodation requests. Id. at ¶ 24. A dissatisfied party may appeal the Executive Director's action to the IHSA Board, which will hold a hearing and then decide whether to affirm or alter the Executive Director's decision. DSOF ¶ 26-27.

         On October 25, 2015, A.H. appealed the denial of his accommodation requests to the IHSA Board, which scheduled a hearing for December 14, 2015. DSOF ¶ 76. After the hearing, the Board affirmed the Executive Director's decision, reasoning that A.H. was already participating in his school's track team and that he had the opportunity to participate even if he was unlikely to win. Id. at ¶ 77-79. Individual board members expressed that granting A.H.'s requested accommodations would give him an unfair competitive advantage compared to able-bodied students because he would have a greater opportunity to advance to state from the sectional competition given the much smaller number of competitors he would face. See Id. at ¶ 84. Following the Board's denial of his appeal, A.H. filed this suit on February 4, 2016. IHSA has moved for summary judgment on all counts and moved to bar A.H.'s expert.


         A.H. brings claims for injunctive relief under Section 504(a) of the Rehabilitation Act (29 U.S.C. § 794(a)), Title II of the Americans with Disabilities Act ("ADA") (42 U.S.C. § 12132), Title III of the ADA (42 U.S.C. § 12182(a)), and the Equal Protection Clauses of the Illinois and federal constitutions. MSA has moved for summary judgment on the various claims and additionally moved to bar A.H.'s expert's testimony. Summary judgment, of course, is only appropriate if the moving party (IHSA) shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Spurling v. C&MFine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). The Court addresses the Daubert motion first, so that what constitutes the record on summary judgment is clear, and then addresses IHSA's arguments for summary judgment.[7]

         I. Daubert Challenge

         IHSA moves to bar the testimony of Keri Serota, A.H.'s expert, under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The admissibility of Serota's opinions is largely academic in view of the Court's conclusion that the antidiscrimination statutes do not require IHSA to provide the principal accommodations A.H. seeks, but not entirely. Serota has offered opinions bearing on safety accommodations in connection with the Road Race. As discussed infra, the grant of summary judgment in IHSA's favor does not extend to the question of those modifications and Serota's opinions on that question remain relevant. Accordingly, IHSA's Daubert challenge to Serota's opinions must still be addressed.[8]

         Under Rule 702, this Court allows testimony of an expert witness whose "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue" if the expert's testimony is based on sufficient facts or data and is the product of reliable principles and methods which were reliably applied. See Fed. R. Evid. 702. The Court's gatekeeping function applies to both scientific explanations as well as "skill- or experience-based observation." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999). Here, IHSA raises two arguments why Serota's opinions should not be considered: that she lacks adequate knowledge of the facts of this case, and that Serota's methodology is unreliable because she failed to explain how she reached her conclusions.

         As an initial matter, it bears noting that IHSA does not dispute that Ms. Serota is qualified by her experience to issue opinions in this sort of case. She has a master's degree in "adapted physical education" as well as a bachelor's degree in kinesiology and physical education teaching (all from Indiana University). See Serota C.V., ECF No. 164 Ex. 1 at 46. She has worked in adaptive sports (that is to say, sports for people with disabilities) since August 2004. Id. at 46-47'. She currently coordinates accommodations for disabled athletes in the Chicago Marathon and trains disabled athletes through the first USA Triathlon-sanctioned Paratriathlon Club. Id. at 46. In her previous position, she planned events for para-ambulatory athletes as the Program Director for the Great Lakes Adaptive Sports Association. Id. She has also previously served as an expert witness in a similar case against IHSA. Id. Thus, the Court finds that Serota is qualified by her experience as an expert in adaptive sports and sports accommodations and that her testimony might assist the Court in determining the reasonableness of A.H.'s requested accommodations. See Lees v. Carthage College, 714 F.3d 516, 521 (7th Cir. 2013) ("Essentially, the district court must make the following inquiries before admitting expert testimony: First, the expert must be qualified by knowledge, skill, experience, training, or education; second, the proposed expert testimony must assist the trier of fact in determining a relevant fact at issue in the case").

         IHSA's first challenge, based on Rule 702(b)'s requirement that an expert rely on "sufficient facts or data" is clearly misguided. IHSA is certainly correct that an expert must rely on more than "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. As other courts have noted, the "sufficient facts or data" requirement is a somewhat Gordian one - an expert must "take into account all of those facts which are necessary to support [her] findings, not just some of them, and [she] cannot conveniently disregard contrary evidence, " but a party "cannot disqualify the other side's expert simply by disputing the facts upon which [she] relied." Jerid Enterprises, LLC v. Lloyd's London, No. 3:10-CV-435 JD, 2012 WL 6115673, at *4 (N.D. Ind. Dec. 10, 2012); see also United States v. Scott, No. 3:11-CR-104 JD, 2013 WL 252247, at *4 (N.D. Ind. Jan. 23, 2013).

         Here, Serota relied on a large and diverse array of information. Her report contains over 15 pages of detailed factual allegations with citations to depositions and other materials. Serota cited 113 documents that she considered while formulating the report, including the complaint, the audio file of A.H.'s accommodation hearing, various IHSA policies and meeting minutes, and a dozen depositions. See List of Materials Consulted, ECF No. 164-2 at 101-104. IHSA objects that Serota testified that she considered the para-ambulatory world record time rather than A.H.'s personal race times in forming her opinions, but this is clearly a mere dispute over the facts on which she should have relied (also, given that there is no contention A.H. can run faster than the world record holder, it doesn't matter which time Serota used to demonstrate the existing qualifying times are very unlikely to be met by an athlete with A.H.'s disability). Similarly, IHSA points to a number of occasions in Serota's deposition when she acknowledged that she is not an attorney and was not knowledgeable regarding the relationship between Title II of the ADA and the Rehabilitation Act or what title of the ADA was at issue. Serota isn't a lawyer, and it would not have been proper for her to opine on legal issues even if she were. The facts necessary for her opinions are those about A.H.'s physical ability to compete in high school track events, the accommodations he requested, and IHSA's decision. Tellingly, IHSA does not argue Serota ignored or failed to consult relevant facts about those issues. Thus, the Court finds Serota has considered sufficient facts in forming her opinions.

         Next, IHSA alleges that Serota failed to provide any sort of analysis for her opinions. The Court need not accept Serota's conclusions ipse dixit - rather, she must explain how the facts considered relate to her conclusion. Zenith Elecs. Corp. v. WH-TVBroad. Corp., 395 F.3d 416, 420 (7th Cir. 2005). Serota summarized her opinions as that it is "irrational and unreasonable" for IHSA to not provide para-ambulatory athletes with separate time standards, opportunities to earn points, and a separate Road Race division. See Serota Report ¶ 12, ECF No. 164-1. She further opined that it would be a reasonable accommodation for IHSA to provide those opportunities. Id. at ¶ 13. Courts in this circuit have been unclear on whether an expert can testify as to the reasonableness of an accommodation under the ADA. Compare Fliss v. Movado Grp., Inc., No. 98 C 3383, 2000 WL 1154633, at *8 (N.D. Ill. Aug. 14, 2000) (allowing expert testimony by rehabilitation expert that plaintiff could have performed essential job functions with reasonable accommodation acceptable) with Walters v. Mayo Clinic Health Sys.-Eau Claire Hosp., Inc., No. 12-CV-804-WMC, 2014 WL 972959, at *5 (W.D. Wis. Mar. 12, 2014) (barring expert testimony where expert "lacks specialized knowledge as to how an employer would use the information in the form to determine a reasonable accommodation").

         In isolation, many of Serota's comments seem unsupported. For example, Serota described the IHSA Executive Director's testimony that creating separate time standards for athletes with physical disabilities would "hurt those athletes" and then simply noted "I disagree with these positions." Serota Report ¶ 77. Read alone, these sort of statements lack any of the methodological or experiential foundation required to be admissible under Daubert. On the other hand, Serota does provide analysis for other opinions. For example, Serota opined that "there are likely many non-wheel chair students with physical disabilities who are not involved in track because they are intimidated by the prospect of competing against able-bodied athletes" and then analogized to her experience of increased attendance among disabled swimmers once separate time standards were implemented. See Id. at ¶ 98. Similarly, in discussing the time standards, Serota analyzed a variety of systems used by other states and programs in order to explain how qualifying standards for disabled athletes could be implemented. See Id. at ¶ 111-114. She further explained, based on her experience with the Chicago Marathon, how and why a separate division could be implemented at the Road Race. See Id. at ¶ 132-134.

         "Expert testimony may not consist of nothing more that the "bottom line" supported solely by the witness's status as an expert." Poulter v. Cottrell, Inc., No. 12 C 01071, 2014 WL 5293595, at *4 (N.D. Ill. June 24, 2014) (citing Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748 (7th Cir. 2010)). Here, Serota repeatedly stated that she believes IHSA's actions were "unfair, " "unreasonable, " and "irrational." See, e.g., Serota Report ¶ 91. These are not proper topics for Serota to opine, especially as she has acknowledged she is not a lawyer or an expert on the ADA. She is, however, entitled to discuss whether the proposed accommodations were feasible and how they could be implemented based on her experience and research. Serota's profession is adapting sporting events to the needs of persons with disabilities and her insights into how other sports and states have implemented similar programs is useful to the Court. Therefore, the motion to bar Serota's testimony is granted in part and denied in part. In short: she may offer opinions about the feasibility of the accommodations that A.H. requested (as discussed further below, only the Road Race will be at issue) and the safety concerns regarding the Road Race, but her opinions about the legal reasonableness, fairness, or rationality of IHSA's denials of the requested accommodations will not be considered.

         II. Case or Controversy

         Initially, IHSA argues that there is no longer any case or controversy because A.H. competed in the spring 2017 1600 meter race at an IHSA sectional meet and A.H. did not register for the 2017 Road Race and there is "no evidence that A.H. intends to actually participate" in the Road Race. Def's Mem. at 6, ECF No. 155. This is, frankly, a silly argument that fundamentally misconstrues the nature of A.H.'s claim. A case is moot only if "a court's decision can no longer affect the rights of litigants in the case before them and simply would be an opinion advising what the law would be upon a hypothetical state of facts." Brown v. Bartholomew Consol. Sch. Corp.,442 F.3d 588, 596 (7th Cir. 2006) (internal quotation marks omitted). A defendant "carries a heavy burden when it argues that a plaintiffs claims are moot" and a plaintiffs statement that he intends to engage in an activity again can be sufficient. Edwards v. Ill. Bd. of Admissions,261 F.3d 723, 728 (7th Cir. 2001). Here, A.H.'s lawyers represented that he would like to compete in the 2018 Road Race, and that he did not compete in the 2017 Road Race (which occurred after briefing in this motion was complete) because of safety concerns that would be addressed by his proposed accommodation. See Pl.'s Resp. at 13, ECF No. 167; Serota Report ¶ 132 (opining Road Race is unsafe when disabled and non-disabled runners grouped together). Further, A.H.'s performance in the 1600 meter sectional race, for which there is no qualifying time and for which the school, not IHSA, determines who may run in each event, does not address his ...

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