United States District Court, N.D. Illinois, Eastern Division
A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, Plaintiff,
ILLINOIS HIGH SCHOOL ASSOCIATION, Defendant.
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
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.
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).
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.
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.
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.
these achievements, A.H. has never been able to compete in
the state finals for track, a competition sponsored and
managed by defendant IHSA. 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
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.
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 for para-ambulatory athletes for the state
finals,  and 3) that IHSA create a para-ambulatory
division in the annual Road Race event. 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
words are necessary at this point about IHSA. IHSA is a
not-for-profit 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.
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
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.
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.
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.
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").
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).
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.
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
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.
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
Case or Controversy
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 ...