pageok
pageok
pageok
Isn't This What People Were Worrying About Following PGA v. Martin?

[UPDATE: Commenters suggest that, according to other press accounts, the wheelchair-bound student is simply allowed to run at the same time as the others, but not in competition with them; I'm off to teach now, but I hope to look into this further — that would raise less serious problems than requiring that she be allowed to compete.]

[FURTHER UPDATE: Press accounts and the accounts in the comments, including references to the injunction, are ambiguous. I'm reminded again of something I noted in the post, but should have acted on rather than just noting — be careful relying on a press account of a court order, and wait instead, if possible, until you can see the court order. I still can't find it online, but I'm trying to track it down; in the meantime, if anyone has the text of the order, please e-mail it to me at volokh at law.ucla.edu. Thanks!] [STILL FURTHER UPDATE: Got the order and some supporting documents, hope to get to the bottom of this soon.]

The AP reports:

A federal judge has issued a preliminary injunction against a school district that will allow a wheelchair athlete to run at track events at the same time as her able-bodied teammates. [EV: Other press accounts make clear that "run" here means "ride a wheelchair."]

Tatyana McFadden, 16, won two medals at the 2004 Paralympics in Athens and is a student at Atholton High School in Columbia. The Howard County school system had allowed her to practice with the track team, but ruled she must compete in separate wheelchair events.

That meant she mostly competes by herself ....

But on Monday, U.S. District Judge Andre M. Davis granted McFadden's request for a preliminary injunction against the school system ....

McFadden's claims were based on the Rehabilitation Act, which prohibits exclusion of persons with disabilities from programs and activities that receive federal funds, the law center said....

I'm not an expert on the Rehabilitation Act (or the Americans With Disabilities Act, which was involved in the Casey Martin case); and I couldn't find the opinion on LEXIS and WESTLAW yet, so I should issue the usual caution about the possible errors in press accounts.

Nonetheless, how can it make sense to have wheelchair racers racing against foot racers? Even if Martin was rightly decided, and the requirement that one walk rather than riding from hole to hole while playing golf isn't really essential to golf, surely the requirement that one run rather than riding is essential to racing, no? You wouldn't have foot racers racing against bicyclists, unicyclists, or swimmers; these are just different sports. And if the response is that it's logically impossible to tell whether they're different sports or not, then that cuts in favor of the dissent in Martin, and against any disability law interference with the rules established by sporting event organizers.

Thanks to Tom Elia (The New Editor) for the pointer.

Anderson (mail) (www):
Assuming that she'll finish in last place, little harm done ... but definitely a misapplication of the law.

Now, what if she had legs a la Steve Austin?
4.19.2006 3:56pm
Riccardo Schiaffino (mail) (www):
Anderson:

You cannot assume that at all - in marathon events, for example, wheelchair athletes have much faster times than runners (for example Ernst Van Dyk was the wheelchair champion for the 6th year in a row at the Boston Marathon with a time 1:25:27 - i.e. 42' less than the faster runner.
4.19.2006 4:10pm
Bingisser (mail):
Actually, in the distance events, wheelchair athletes are not significantly behind other athletes. At most small high school competitions, I dod not think this should be a big problem. High school track meets are informal most of the time. I don't know how correct the press report is, but it is likely this would only apply to the smaller competitions. I would find it hard to believe that she was allowed to compete in post-season competitions. If this is the holding, it makes sense. It is hard to race alone. If the competition doesn't really matter, then let her race with the others.

The best solution is one used among masters athletes. There are several distinct age-group categories and it takes way too much time to run each age-group separately at each competition. Furthermore, many athletes would have to compete alone. As a solution, meets let the athletes compete together, but then will divide their results after the competition into the age group categories. So, while the 70 year old may place third in the competition, he would be listed as first in the results if he finished the first among his age group category (this can also be seen in maratahon results-note than many marathons allow wheelchair racers to compete with the other athletes).
4.19.2006 4:14pm
Mike BUSL07 (mail) (www):
The broader point, Anderson, is that organizers should be free to promulgate whatever rules they like, as long as those rules are evenly applied. Trying to make competitive sports "inclusive" is an oxymoron. Sports, by their very nature exclude those who lack the ability to excel at them, be it due to poor work ethic, the wrong genes, or a tragic disability.
4.19.2006 4:17pm
Rob M. (mail):
I feel sorry for the girl. I can't quite understand why she brought this case. It would seem lose-lose for her. Either she competes in events where she is destined to lose, or in events where as Riccardo notes she may have an unfair advantage. In either case she is setting herself up for ridicule.

It would be interesting to see how far this slippery slope actually goes. What if instead of a wheelchair she wanted to ride a horse (or a cow, depending whether or not her state believes them to be motor vehicles)? If she competes in events in which a wheelchair potentially imparts an unfair advantage would other athletes be allowed to use wheelchairs too?
4.19.2006 4:28pm
SLS 1L:
Perhaps the judge is trying to criticize PGA v. Martin via redudctio ad absurdum?
4.19.2006 4:29pm
Freder Frederson (mail):
Actually, in the distance events, wheelchair athletes are not significantly behind other athletes.

Behind? In every race I run (I run 10Ks and an occaisional 10 miler recreationally), the wheelchair racers always go first because they are much faster than the race leaders and certainly faster than pokey old me. This makes no sense at all.
4.19.2006 4:35pm
msk (mail):
Some schools have "adopt a disability" days when people who have never used a wheelchair or white cane can spend a whole day on campus navigating their usual route with borrowed equipment. That suggests renting equipment and recruiting extra wheelchair users (disability optional) to supply practice for any sport in which a fulltime wheelchair-using student expresses an interest.

Creating special volunteer programs is very much beside the legal point raised by this case. It's only an idea school districts might try if they hope to avoid similar lawsuits.
4.19.2006 4:40pm
frankcross (mail):
If you read the Washington Post report, this does not describe the judge's ruling. The plaintiff does not believe the judge required this, but the school is taking that interpretation (perhaps out of the reductio ad absurdum theory)
4.19.2006 4:40pm
TJ (mail):
You wouldn't have foot racers racing against bicyclists, unicyclists, or swimmers...

I don't want to live in a world where unicyclists can't race swimmers and foot racers.
4.19.2006 4:42pm
FC Copier (mail):
"Assuming that she'll finish in last place, little harm done..." Whether or not she's competitive is irrelevant to the question of whether or not riding on a wheelchair is fundamentally the same as running down the track. The problem, as I see it, is the well-intentioned desire to make her the "same" as other students.

The law has clearly taken a track to level the playing field for those with disabilities. These efforts, however, can never change the unfortunate and uncomfortable fact that people are fundamentally different. The reason that competition is compelling is precisely because someone is going to win.

Athletic competitions have been a fairly reliable haven from the political correctness because nature (or God or Providence) has been the sorting mechanism to determine who will be competitive. The kind of discrimination that causes inefficiency in society is not the natural differences that make us unique, rather it is the discrimination based on non-relevant characteristics. Very few would argue that a radio station should be legally compelled to employ a person with a serious speech impediment simply because that person wants to be a radio talk show host.

If Tatyana can't meet the minimum requirements for competition, it is fundamentally unfair to the other competitors to allow her to compete with different equipment. It is sad that she can't run. I wish I were as smart as David Bernstein. Some things we just can't have.
4.19.2006 4:44pm
Steve:
The press account is unclear, but the implication seems to be that she is NOT going to be racing "against" the other athletes, in the sense that she would be declared the winner of the footrace if she finished first. She is still competing in the wheelchair event, it seems to me, they are just letting her race at the same time as the other racers rather than making her run a solitary wheelchair race after everyone else is done.

I'm not sure of the legal standard that applies, but it doesn't seem to disadvantage the other racers at all.
4.19.2006 4:45pm
bcn (mail):
This looks like the same story that they had on the news here a little while ago. As far as I remember from the interviews, all she wanted was the opportunity to 'run' at the same time as her teamates. She was not part of the event. She practices as part of the team and wanted to 'run' events even if she did not count.

When I fist saw the story I thought is was strange to have them all race against each other, but it was clear on the TV that she wanted to be on the track and not competing. I felt that they could have come up with a reasonalbe accomidation for this request.

Overall this is not a big deal, but it is certainly a step down the slippery slope.

BCN
4.19.2006 4:49pm
Steve:
From a prior story on the lawsuit:

Tatyana McFadden, who won two medals at the 2004 Paralympics in Athens, doesn't expect to compete against others on the field, but does want to be on the track at the same time. McFadden, who has spina bifida, earned a silver and bronze medal in the 100 and 200 meters in Athens...

"We're not asking her to compete against these people, we're asking for her to be a part of the team and run on the track," says Tatyana's mother, Deborah McFadden.

Lauren Young of the Maryland Disability Law Center, which filed a federal suit on McFadden's behalf, says that means McFadden mostly competes by herself.

"No money, she's not asking for money, she's not asking to be scored competitively against other student-athletes. She's saying she doesn't need that, but she just wants to be included," says Young.
4.19.2006 4:50pm
David Matthews (mail):
Steve said:

"She is still competing in the wheelchair event, it seems to me, they are just letting her race at the same time as the other racers rather than making her run a solitary wheelchair race after everyone else is done."

That's what I got from it, too. I used to help organize track meets, and we did this all the time when we had single competitors from a particular category (no wheelchairs, in my experience). It saves time and keeps the competitor from getting all self-conscious -- no one wants EVERYONE to be looking at them while they plod alone around the track. Assuming that it can be done in a way such that they don't run into each other, I don't think it's at all a stretch to see this sort of accomodation to be required in public school (taxpayer funded) events.
4.19.2006 4:51pm
JohnAnnArbor:
I ran high school track in Michigan. We weren't even allowed to wear rings or any other jewelry. A wheelchair out on the track with runners is downright dangerous to all concerned. I would refuse to run in a race like that.

What's next? Motorized wheelchairs if the disabled person is unable to use their arms?
4.19.2006 4:55pm
Dave Hardy (mail) (www):
I suppose speed would depend on the surface. On a hard surface, advantage probably to the wheelchair, on a broken one (crushed rock, sand) advantage to the runner.

It is amusing to see these standards extended to sports, and the controversy that ensues -- I suppose it suggests what we really hold important.
4.19.2006 4:59pm
Joe7 (mail):
I agree with JohnAnnArbor; I ran track in high school (terribly I might add, though I did letter in the mile walk, virtue of nobody else doing it.) To allow a wheelchair on the track at the same time as the runners would be extremely dangerous.

On the other hand, I might even pay to watch this girl race on my old high school cinder track.
4.19.2006 5:11pm
Anderson (mail) (www):
The broader point, Anderson, is that organizers should be free to promulgate whatever rules they like, as long as those rules are evenly applied.

I guess this is why I said it was "definitely a misapplication of the law"?
4.19.2006 5:13pm
Mike BUSL07 (mail) (www):
My bad, I'm just too used to disagreeing with you. My knee jerked. :)
4.19.2006 5:14pm
Bryan DB:
Prof. Volokh,
I believe you have overstated the problem.
The story says: "run at track events at the same time as..."
You said "racing against."

Those are not the same.
Wheelchair athletes often compete "at the same time as" other athletes, but they do not compete "against" other athletes (witness the recent Boston marathon).

My interpretation of the story is that the girl would like someone on the track at the same time as she competes so that she can feel the spirit of competition and perhaps increase her performance.
4.19.2006 5:22pm
Alex R:
Those who thought that the Judge's ruling (and the family's request) was that she be allowed to run her event at the same time -- but not against -- the able-bodied runners seem to be correct. But that's not what the athletic officials are doing...

Yesterday's story said "Tatyana McFadden, 16, a sophomore at Atholton High School in Columbia, will be allowed on the track at the same time as the other competitors but will be scored separately under a preliminary injunction granted yesterday in Baltimore by U.S. District Court Judge Andre M. Davis."

But today we read: "Mike Williams, Howard County's coordinator of athletics, acknowledged that Atholton sophomore Tatyana McFadden's times in distance events are likely to be much better than students competing on foot, but decided to allow her to accrue points for her team to comply with a federal judge's ruling. The move surprised McFadden and her mother, Deborah, who filed suit last month with hopes of merely competing at the same time as other runners, not directly against them."

Whether this is a case of a stupid judge, or a stupid athletic official, is unclear...
4.19.2006 5:24pm
Hoosier:
Alex R—

I'm often the slowest mind on this board, since I'm not a lawyer. What's your guess? Is the official stupid? Worried about further legal action?

In academia—my industry—we end up doing a lot of stupid things administratively for fear of lawsuits if we don't. This is especially true if a student claims a disability. We just try to be as careful as possible. (Often, this isn't in the best interest of the student, but the parents get involved in order to "protect" the "interests" of the student. So we're chicken.)

Hoosier
4.19.2006 5:29pm
Alex R:
My guess? My guess is that some athletic official is passive-aggressively responding to a court decision that annoys him by intentionally misconstruing it as asking more than it really does... :-)

But what do I know? I'm not a lawyer either...
4.19.2006 5:40pm
Anderson (mail) (www):
My knee jerked. :)

One of the many negative health consequences of blogs. Both of mine are twitchy.
4.19.2006 5:43pm
Frank Drackmann (mail):
Those wheelchairs suck on the high hurdles and pole vault though.
4.19.2006 5:50pm
Mike BUSL07 (mail) (www):

Those wheelchairs suck on the high hurdles and pole vault though.

Zing! I was waiting for that, but lacked the chutzpah to go there myself.
4.19.2006 5:52pm
Govman (mail):
And if the response is that it's logically impossible to tell whether they're different sports or not, then that cuts in favor of the dissent in Martin, and against any disability law interference with the rules established by sporting event organizers.

I have tended to notice, that most real life experience tends to cut in favor of the Justice writing the dissent in Martin.
4.19.2006 5:54pm
Brennan:
According to the order the judge entered, the school district and its agents are forbidden to prohibit the plaintiff's "participation in track events with non-disabled students in interscholastic track meets sponsored by or held in Howard County and from excluding her from participation in racing events otherwise available to students on the Atholton Raiders track team."

That doesn't sound to me like she is just allowed on the track at the same time as the official race; she now has the (temporary for now) right to "participat[e] in" any event she chooses. That sure sounds like full participation in the event, not merely simultaneous performance.

As another former track runner, I would also join those expressing concern about the safety of racing against somebody riding a machine (insert mental image of pod racer scene from Phantom Menace here). I find it very hard to believe that a wheelchair athlete can maneuver as well as a person on foot - if I trip and fall, the wheelchair right behind me probably can't jump over me or hop to the side, right? Maybe I'm wrong about this, of course, as I admit I've never competed directly against a wheelchair athlete.
4.19.2006 5:55pm
chris (mail):
The elephant in the living room not being discussed here is how completely absurd it is that you can't run a freaking track meet without having to accomodate the disabled. I'm sorry the poor girl is in a wheelchair. But the idea that the world has to accomodate her at all when it comes to competing in a sporting event is simply ludicrous.
4.19.2006 6:00pm
Houston Lawyer:
As I recall track meets, they involve your fastest and strongest. This generally left me out, being neither fast nor strong. That is not unfair.

The ADA has been counterproductive. The percentage of disabled in the workforce has not increased since it was enacted. It also makes a person's disability someone else's problem. It should go.
4.19.2006 6:06pm
John Armstrong (mail):
Back in the long, long ago I went to Atholton. This story really surprises me because ten years ago the Howard County Public School System would do everything possible to please "disadvantaged minorities". I'll avoid sounding whiny here with specifics.

Basically, if this were 1996 then McFadden would have been all but forced to compete alongside everyone else as the officials caused themselves spinal injuries patting themselves so hard on the back for being so tolerant and understanding. How times change.
4.19.2006 6:13pm
Brennan:
Pole vault is a field event, so she'd have to go back to the court for permission to use her Wile-E.-Coyote-style Acme jetpack in that event. Anything goes for the running events, though. If the girl is smart, she'll ditch the wheelchair for a motorcycle - the order doesn't specify what equipment she can use - and win every event. She'll make varsity for sure.


(Mostly kidding.)
4.19.2006 6:16pm
DFrancis:
Not all ADA cases are taken to this legal extreme. I don't think it is reasonable for public university professors to be able to speak into the whiteboard and provide no mechanism for a deaf student to capture what was said. I have heard first-hand accounts of professors whose department heads had to be hit over the head with the ADA before they would agree to provide lecture notes or allow tape recordings (to later have transcripts made) when an uncorrectably deaf student enrolled in their class.
4.19.2006 6:25pm
JosephSlater (mail):
The material in this thread doesn't give anywhere near enough specific information to make this case some sort of referendum on the ADA, or make it a symbol-of-the-ADA-in-microcosm. But since we're talking about that ....

While it is true, sadly, that the employment levels of folks with disabilities has risen only from 34% to 35% in the past 20 years, the "failure" of the ADA might be that it doesn't provide enough protections, rather than providing too many. Plaintiffs do worse in ADA cases than in practically any other kind of civil suit.

An ABA survey of cases decided in 2003 found that employers won ADA claims in federal courts 97.3% of the time. Employers won 100% of ADA cases in all circuits but the Second (97.4%), Fifth (93.8%); Sixth (93.3%) and Eighth (91.4%).

So, generally speaking, I'm not sure the problem with the ADA is that it's over-reaching. And I'm looking forward to reports on cases in which a plaintiff lost, at least arguably unfairly. Because that would be much more representative of what ADA litigation actually looks like.
4.19.2006 6:40pm
Mike BUSL07 (mail) (www):
The big problem I have with the ADA is that those rights it extends to disabled folks generally have a corresponding cost which is not borne by society at large, but carried instead by particular employers and their consumers. I don't mean a chair-ramp at the courthouse - obviously the taxpayers pay for that. But a chair ramp at a private business, if it is a good idea, should not be paid for by that business exclusively. Let the voters put their money where their mouth is, without imposing morality on third parties at no cost to themselves.
4.19.2006 6:47pm
Steve:
To me, the accomodation requested in this case is rather trivial, and it's a pity the school district forced the plaintiff to go to federal court to obtain something they could have easily given to her with no harm to anyone.

Now if it's true that one cannot safely permit a wheelchair rider to race at the same time as other racers, that would change the analysis, but I'm quite confident that point would have been made to the federal court. I think some of the commentors who assume there is no way to accomodate the plaintiff safely are being a bit too narrow in their thinking.
4.19.2006 6:50pm
Paul Johnson (mail):
Here's a cut-and-paste from the actual order granting preliminary injunction (sure looks like she has to be permitted actual participation in the events, not just "running at the same time"):

ORDERED, that Plaintiff's Motion for Preliminary injunction be and hereby is,

GRANTED; and it is further
ORDERED, that Defendants Howard County Public Schools and Howard County Board of Education. Dr. Sydney Cousins, Joshua M. Kaufman. Diane Mikulis, Patricia S. Gordon, Mary Kay Sigaty. and Courtney Watson, and their agents, officers, employees, and all others acting in concert with them, be and hereby are preliminarily enjoined from prohibiting Plaintiff's participation in track events with non-disabled students in interscholastic track meets sponsored by or held in Howard County and from excluding her from participation in racing events otherwise available to students on the Atholton Raiders track team, due to her disability, in violation of Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794, et seq.
4.19.2006 6:58pm
Riccardo Schiaffino (mail) (www):
I wrote an earlier comment to mention that someone on a wheelchair would not necessarily run slower than smeone on foot (but at least in certain events might actually run faster).
I agree that a wheelchair running on the track at the same time as athletes on foot may constitute a hazard for the participants.
However, I'm disgusted by the many juvenile remarks bandied about: people suggesting that she may use a horse, or a cow or a motorcycle to run in her envents.
While unfortunately confined to a wheelchair, this is a real athlete: how many medals have you guys won at the olympics? She did. If you think that the athletes taking part in the parolympics are not athletes, have a look at the competitions, some time, then think again.
4.19.2006 7:05pm
Frank Drackmann (mail):
Wouldn't golf be a better sport? They already have a handicap.
4.19.2006 7:07pm
Mike BUSL07 (mail) (www):
Riccardo, no one is saying that a wheel-chair "runner" is *less* of an athlete than someone who runs on two feet. Surely the physical outlay, training intensity and requisite mental toughness are comparable. It is also true that racing in a wheelchair is a different sport. Putting aside the risk posed by a wheelchair on a 400 m track, organizers should be permitted to draw rules for athletic events without court intervention.
4.19.2006 7:10pm
Brennan:
Riccardo Schiaffino -
For the record, I have won no Olympic medals. (It is entirely possible, maybe even likely, that I could have won gold had I been permitted to compensate for my flat feet and bad back by competing in a wheelchair.)

Whether you go around a track on two feet or a wheelchair, you're an athlete if you're trying to win or improve each time you go out there. I don't doubt for a second that this girl is an athlete. But that's a different issue than whether this ruling (or the underlying law applied to this context) is silly. Athletic competition, which is predicated on revealing differences in physical (or physical/mental) capacity, requires adhering to rules that define the contest and thereby isolate the physical ability being tested. Seeing whether this girl can wheel herself around as fast as other girls can run might be interesting, but its not a sporting competition by the normal understanding, because it is not at all obvious that the same physical ability is being tested.
4.19.2006 7:29pm
Trade Monkey (mail) (www):
The question is not whether a wheelchair athlete is similar to a non-wheelchair athelete. Rahter is a wheelchair qualitatively comparable to legs when racing?
4.19.2006 7:30pm
frankcross (mail):
MikeBUSL07, would you extend your theory to other laws? That the government bear the costs of CPSC rules making consumer products safer? That the government bear the costs of preventing fraud? That the government bear the costs of hiring women (if it requires a new bathroom)?
4.19.2006 7:41pm
R. G. Lacsamana (mail):
Whoever issued this ruling either must have stretched the law to ridiculous proportions, or does not have any common sense. This case should never have reached a court of law, but knowing the judicial activism in our justice system, nothing surprises me anymore. I think I'm going to call Bill O'Reilly tonight to start a movement for recall of this judge.
4.19.2006 7:47pm
Mike BUSL07 (mail) (www):
frankcross, the short answer, is "yes," absolutely. Obviously it's not an unqualified "yes," particularly where shifting the cost out on the taxpayer has the effect of increasing it by virtue of the government's lower institutional capability to pay those costs, but where we are talking about $100 spent by Joe Co., or $100 by the government, the government should foot that bill.
4.19.2006 7:53pm
Mike BUSL07 (mail) (www):
wow, that's a really awkward sentence. (i'm outlining and brain-dead). hopefully you can parse it out, and if not, i'll rewrite it.
4.19.2006 7:54pm
Frank Drackmann (mail):
Pete "Lefty" Gray played Centerfield for the 1945 St.Louis Browns despite having had his right arm amputated after a train accident as a child.
4.19.2006 8:07pm
Tinhorn (mail):

If the competition doesn't really matter, then let her race with the others.


Huh? What does "really matter" mean? In some sense virtually every competition really matters and in another sense virtually none does. Do we really want to tell kids who have their hearts set on meaningfully competing that it's OK for there to be a wheelchair racer because "your competition doesn't really matter"?
4.19.2006 8:15pm
frankcross (mail):
I think I know what you're saying and I don't think you mean it. E.g., that the government should pay all firms accountant costs, because we have laws against financial statement fraud.

And I think you can figure out one good economic reason why. Many firms would naturally hire accountants, in their self interest, as many firms would install ramps to gain customers. If, however, the government had to pay for legal compliance, these companies would claim otherwise and refuse to make these changes, shifting their costs to the government.
4.19.2006 8:36pm
Daniel Chapman (mail):
And Jim Abbott was a professional pitcher with only one hand. He wasn't given a prosthetic, and he held the mitt under his left shoulder so he could slip it onto his throwing hand immediately after throwing.

He was definitely an athlete, but he had to compensate for his disability without special equipment in order to compete.
4.19.2006 8:46pm
Jason Fliegel (mail):
OK, I pulled the actual motion for a preliminary injunction &the order. Those of you with Pacer and/or Lexis Courtlink access can do so as well; the case number is 1:06-cv-00648-AMD. I've already forwarded this info to Prof. Volokh, so I suspect he may be back at some point with an update or a new post, but meanwhile, it's worth noting a few things:

1) The Court simply entered a modified version of the proposed order submitted by the Plaintiff. There was no court opinion analyzing the issue.

2) The Defendants' opposition was pretty lacking. They literally submitted a one page response stating that they admitted certain paragraph's in the Plaintiff's motion for an injunction, denied others, and admitted in part and denied in part still others. They did not engage in any legal analysis whatsoever.

3) The Plaintiff's submission seems like a pretty straightforward motion for an injunction. Her memo in support points out that the school system touts the great benefits of participation in the athletics program (irreparable harm to her by being denied participation). Then it points out that she already practices with the team -- letting her compete alongside them will not cost the Defendants any money, and that her participation in practices has not been problematic (lack of harm to Defendants). Then it walks through the elements of the Rehabilitation Act -- a) she has a disability; b) she is otherwise qualified to participate in the activity; and c) she was excluded on the basis of her disability (likelihood of success). Finally, the memo makes a public interest argument -- the elimination of discrimination.

This seems like a pretty solid motion for a preliminary injunction, and given that it was apparently basically unopposed -- subject to the caveat that the hearing transcript is not online, so maybe the Defendants did a better job opposing the injunction at the hearing -- it doesn't particularly surprise me that the injunction was granted.
4.19.2006 8:47pm
Jim Rhoads (mail):
Having read the order, I do not believe it meets the specificity requirement for injunctive relief contained in FRCP 65(d) because the "participation" is not really defined. As noted by prior posters, "participation" could mean competing in the 100 meter "race" as the sole wheel chair entry along with but not in competition with others who were competing in the race as runners. Or it could mean participation by competing with the runners.

Note, this is a interscholastic competition. Does the law require other schools enter a wheelchair participant?

BTW, Frank, Pete Gray competed because he was good enough to be payed to do so. He still had to catch, throw and bat just like the other 17 players on the field. He didn't get points added to his batting average for batting with one arm. Nor did pitchers have to refrain from throwing sliders or fastballs to him.

Were I the lawyer advising the school, I would ask the judge for clarification. If he says his order means the latter, I would immediately appeal.
4.19.2006 8:50pm
Mike BUSL07 (mail) (www):
frank, first, distinguish compliance with the tax code, which is imposed, by definition, on all taxpayers, with the ADA, which in seeking to secure a benefit for the disabled imposes the associated costs on other selected group of individuals. I'm not saying that the government should subsidize each instance of compliance with its laws. What I'm saying is that where the government is trying to protect a particular group by increasing the costs of services or goods provided by another group, it should cover the difference.

Practically speaking, I of course agree with you that there is no way to tell when a business would install a ramp on its own, and when it would not. But this ambiguity does not compel a resolution against the business anymore than it compels the opposite resolution.
4.19.2006 8:50pm
Jason Fliegel (mail):
Steve said:

Now if it's true that one cannot safely permit a wheelchair rider to race at the same time as other racers, that would change the analysis, but I'm quite confident that point would have been made to the federal court. I think some of the commentors who assume there is no way to accomodate the plaintiff safely are being a bit too narrow in their thinking.


Just to highlight something I glossed over above, Plaintiff did allege that she practiced on the track with the team, and this allegation was not rebutted. It's hard to see how it can be safe for her to be on the track with the team during practices, but not during competitions.
4.19.2006 8:50pm
JohnAnnArbor:
It's hard to see how it can be safe for her to be on the track with the team during practices, but not during competitions.

You're wrong. Practice is mostly training and running for strength; rarely is it actually racing teammates in mock races. Track meets are a different animal, with people running VERY close to each other with specific rules. If that wheelchair suddenly swerved or stopped in front of a runner (hitting the curb, for example) the trailing runner would very likely be injured and would definitely be out of the race. Would all the metal edges be filed off? How about a runner falling into her and getting her hand caught in the spokes?

The whole thing is silly. Wheelchair racing is one sport, running another.
4.19.2006 9:00pm
frankcross (mail):
I agree with Jim Rhoads.

I still want Mike to explain if he believes that the government should bear all the accounting costs of corporate America because of a law to protect one group (investors) against another group (managers)
4.19.2006 9:32pm
Mike BUSL07 (mail) (www):
frank,

if you are talking about SOX, that's a very big, stinky and convoluted can of worms. you'll probably not be surprised to hear that I don't think there should be a SOX, largely because as it is, it is predicated on the fallacy that independent oversight can be achieved by putting outside directors in charge. but that's another story.
4.19.2006 9:35pm
Hans Gruber (www):
"Perhaps the judge is trying to criticize PGA v. Martin via redudctio ad absurdum?"

No, PGA v. Martin already reached the absurd.
4.19.2006 9:57pm
frankcross (mail):
I'm not talking about SoX, I'm just talking about the law that prohibits making false financial statements. Section 10(b) for example.

My point is that capitalism plays by certain baseline rules. One of those is that fraud is illegal, and businesses must bear the costs of compliance. The ADA says that another one of those baseline rules is nondiscrimination and reasonable accommodation. You can debate whether that should be a baseline rule, but there is no reason why the government should subsidize compliance with such a rule.
4.19.2006 10:20pm
Mike BUSL07 (mail) (www):
frank, if you are arguing from the position that ADA and 10(b) are both law, then sure, you are right. But you are right - we <i>can</i> debate whether either, or both, should be "baseline" rules. There is a huge distinction between prohibiting tortious conduct, or relaxing the plaintiff's burden on one hand, and compelling persons who are not acting culpably in the first place to incur costs for the purpose of accomodating a specific group that a majority of taxpayers apparently believe should be accomodated.
4.19.2006 11:42pm
frankcross (mail):
Ok, then we are agreed that the government need not compensate business for compliance with these baseline rules and the only question is whether the ADA should be such a rule.

I think popular majorities are a pretty good decision rule for determining the rules of the game, especially when the majorities are so bipartisan as in the ADA. And I don't think the basic law is too onerous. I.e., the cost of installing a ramp is not great and at least partially compensated by more business.

As to whether extensions such as Martin are wise, I would not argue. But such are very rare, as ADA plaintiffs win a remarkably tiny percenage of the time.
4.19.2006 11:52pm
Mike BUSL07 (mail) (www):
K frank. thanks for making my 14 hours of outlining today a bit less oppressive. good night.
4.20.2006 12:02am
silverpie:
There's also a difference by event. In the 100m, where the race is in a straight line, the danger would be minimal. In the 200 and 400, also run in lanes, you might have to require she be given the outside lane (thinking that an under-turn is more likely than an over-turn). But once you get into the longer races, where there are no lanes, the safety issues become more severe, especially as distances increase to the point of her potentially lapping the field.
4.20.2006 12:12am
Lev:
Could she use the "greek" attachment for her chariot wheels?
4.20.2006 12:44am
Dick King:
There's a business I frequent which occupies rented warehouse space, where the front door is six feet above the ground. They have a set of stairs, of course, and they also have a rather extensive and expensive wheelchair ramp that has a hairpin turn to fit in the required space. It must have cost beaucoup bucks. They also have carefully engineered handicapped stalls in the restrooms and all that stuff.

"What kind of business is it?", you may ask...

It's an indoor rock climbing center. I'm sure they get lots of wheelchair traffic. I suppose it's possible that they get in an occasional disabled climber's mother or some such, but ya gotta admit it's worth a chuckle.

-dk
4.20.2006 1:24am
Alarum (mail):
This seems like a perfectly reasonable request. She isn't asking to be scored against the other marathon runners. She isn't asking to compete against them with totally different circumstances. She's simply asking to be accepted as a fellow athlete, a fellow racer. That seems perfectly reasonable. When I was on a swim team I used to practice with girls, older people, and younger people, people I would never be competatively scored with. Didn't mean I couldn't swim with them, joke with them, tell them good job after their race now, did it? It must get awfully lonely practicing alone, day in, day out, competing without the noise of crowds, or people cheering, or banners. Why shouldn't she be able to experience that, even if she doesn't get timed with the rest of the people?

I think this is a classic case of overreaction to simplistic media reporting. The media is horrible at getting the facts straight in issues like these.

DK - a simple solution that the Rock Gym might have looked into would be a wheelchair lift. Those can often go around $3-3.5 grand, not superbly pricy, and they satisfy any legal requirement for low-traffic wheelchair mobility. If, of course, the company chose to build an expensive walkway with hairpin turns instead of fully exploring their options, well, certainly the legal system of the US is not responsible for human stupidity and lousy research.
4.20.2006 2:59am
Can't find a good name:
Good news. The school system decided not to score Tatyana McFadden as though she were winning the race on two legs, but rather to score her as the winner of wheelchair events which simply happened to be taking place simultaneously with the running events. See here. Also, apparently the competitors were able to avoid any collisions which we were concerned might occur.
4.20.2006 4:17am
Public_Defender (mail):
Professor,

Couldn't UCLA spring for a Pacer account? If not, you can do it yourself. For 8 cents a page you can have access to any non-sealed filing in any federal court with electronic filing (including the one that issued this decision).
4.20.2006 6:09am
TC (mail):
This is just silly.

A court is requiring the schools to let her use the track while other events are going on? A court is requiring the school to basically add a sport for one person to "compete" in?

The schools had already allowed her to use the track:
Before Wednesday, McFadden had been forced to compete in separate wheelchair events at high school meets. The result was that she wheeled around the track by herself — a circumstance she termed "embarrassing."

McFadden and her mother, Deborah, sued the school system in federal court in Baltimore, and on Monday, Judge Andre Davis issued a temporary injunction permitting her to race at the same time as runners for the rest of the school year.

...and now the judge holds the school responsible because other wheelchair athletes chose not to compete.


Wheelchair-racing and running track are different events.
4.20.2006 9:33am
nrein1 (mail):
From the press accounts I read weeks ago and can no longer find, quoting her, all she wanted was to compete next to, not against other athletes. Here point being a perfectly reasonable one, it is not as much fun to race by yourself. Also as anyone who has ever done track knows you go faster when you are running against other people.

As to the safety factor, they have wheelchair races on normal tracks with lots of wheel chairs. I don't understand how they can stay in lanes, but apparently they do. I would imagine one wheel chair would be safer then lots of wheel chairs.
4.20.2006 9:38am
nrein1 (mail):
The final answer, from today's Post

School officials interpreted the ruling to mean McFadden should be required to compete against peers and earn points for her team based upon her finish against the other athletes.

But McFadden, her mother and their attorney, Lauren Young of the Maryland Disability Law Center, expressed dismay at that approach, saying McFadden had sought permission to compete only at the same time as other runners, not directly against them.

In a 12:50 p.m. conference call yesterday, participants on both sides said Davis clarified his ruling.

Davis said McFadden would compete in a separate wheelchair event that would take place alongside able-bodied competitors, according to Deborah McFadden and Mike Williams, coordinator of athletics for the school system. The winner of the other race would still receive five points toward the team's overall score, and McFadden would receive one point for every event she completed up to four events, as she did before.



TC, the court did not force the school to add a sport, it forced them to make reasonable accomondations. Whne I ran track, occasionally throwers relays would be added (nothing so interesting as shot putter trying to sprint 400 meters) those were extra events, like wheel chair racing, that were scored. In this case since she is the only wheel chair competitor in each event, for winning the race she can only earn one point. If some other school put up another athlete she would get two for winning and so forth.
4.20.2006 9:49am
Volohackh (mail):
Some schools have "adopt a disability" days when people who have never used a wheelchair or white cane can spend a whole day on campus navigating their usual route with borrowed equipment.

Hey, if UCLA can accomodate a mentally retarded law professor, why not?
4.20.2006 9:50am
Some Guy (mail):
Guess who appointed the judge! Thank God Democrats will not be appointing Federal judges again for at least twenty years.
4.20.2006 10:15am
Per Son:
Now don't most of you feel a bit silly given that you all jumped the gun and blabbed on before knowing all of the facts. Read today's Washington Post and you'll see that there will not be any mixed running and wheelchair races at the same time.
4.20.2006 10:37am
Bruce Hayden (mail) (www):
On a slightly different note, this is going to be ever more an issue, above and beyond the ADA aspect. Glenn Reynolds yesterday (TCS) or so had an article on modern 6 million dollar men. He talked about real organ replacement. But probably before that, we have artificial limbs, and they are getting good enough that they are verging on giving those with them an unfair advantage over normal humans in, for example, track events.

One of the things that is making this ever more of an issue is that the number of amputees as a result of the wars in Iraq and Afganistan seem to be up, esp. in comparison with the number of deaths. The troops' body armor is so good that there are many many who survive who wouldn't have even 10 years ago. But the armor often leaves limbs exposed, and, as a result, people who would have died in a previous war, are now coming home missing limbs.

I read a great article last week about a (now) Army major who lost a leg in combat. He worked himself back up to take another tour over there, and is back now, heading up an amputee program at Walter Reed (I believe). Picture showed him with two other GIs shooting electronic M-16s. The caption indicated that the three of them had two real legs among them. These guys are losing legs, getting artificial ones, and then going out running to get them ready to go back into combat.
4.20.2006 10:47am
Adam Scales (mail):
First, let's hear it again for the power of the internet to bring a variety of facts and perspectives to bear on this.

I am unpersuaded by the "nuanced" argument that it is reasonable to require the school permit simultaneous "races". I would also like to address the issue of externalizing compliance costs to private actors.

While legally successful, I think it was both a strategic and intellectual error for disability advocates to rely on a "rights" conception for accomodation arguments. Rights talk works superbly when no one can point to a substantive difference between the claiming individual and everyone else (race), or can persuasively argue that the distinction can be remedied without fundamentally changing the character of the activity (modifying firefighters rules for carrying victims to accomodate women, Title IX).

The minority of supporters on this thread should ask themselves why, 16 years after enactment, so few people find their arguments persuasive. I was struck by the data presented on legal challenges under the ADA; I suspect that EEOC compliance manuals and other risk-averse proactive conduct suggest a different picture, but I think it is interesting that almost no one I know who isn't a disability law professor actually believes that a person in a wheelchair is just the same, for any potentially-regulable activity, as an unimpaired one. Objecting even to the term "unimpaired", these hardy few insist that our entire society must change the definition, execution and even the very meaning of a whole range of activities under the peculiarly elastic rubric of "reasonable accomodation."

The plaintiff here wanted to avoid the "stigma" of racing alone. Does this mean that if the school can find even a single competitor, her supporters on this thread will be satisfied? Perhaps. But other supporters will then question why she can't be judged alongside her unimpaired competitors - after all, they're all running at the same time, which sounds like a competitive race.

Had I been the school official responsible, I might well have found a way to let her appear at the same time. But I cannot accept the principle, embedded in the ADA, that it is DISCRIMINATION not to do so. I know not how disability advocates maintain with a straight face that such cases are even in the same (ADA-compliant) ballpark with our society's shameful history of denying opportunites to people who could do the (job/sport/vote) as well as anyone else, perhaps better. This girl cannot. She can do something else really well, and should be recognized for that. Separately, not equally.

When I was a law clerk, we heard challenges to ADA claims regarding sidewalks and "curb cuts" - the little ramps that blend the sidewalk into the street. These are much more common now, obviously, and they are a great idea. They are also much more expensive than anyone realized. In the record was a letter from Bob Dole, and his fellow co-sponsor of the ADA insisting that they never intended for these costs to be visited on municipalities (it would not have been difficult to spend th entire roadbuilding budget on this task, if ordered).

I was struck by that. As a citizen, I'm willing to pay for things that I would not insist that private actors pay for themselves. In theory, "reasonable accomodation" could respond fluidly to distinguish a shopping plaza from a rock-climbing gym. But that process is distorted when the accomodation is elevated to the status of a right. How does one compromise on rights? This is why the issue of locating costs has resonance. Civil rights measures probably pay for themselves, in that they remove non-economic transaction costs (the taste for discrimination), leaving everyone, including the regulated party, better off. This is much more unevenly true for ADA measures, since there are many very expensive accomodations that serve a handful of people, and do not result in efficiencies for the actor. Efficiency is not the only policy argument one can think of, but disability advocates need to come down from the Ivory Tower now and then to figure out why they are not winning hearts and minds (nor perceptibly improving disabled employment figures in an economy that has expanded robustly since the ADA's enactment)
4.20.2006 10:48am
nrein1 (mail):
All this talk about whether it is reasonable for the school to be forced to accomodate the girl, I think is ignoring the basic point, what harm is there in allowing the girl to compete next to, not against, other athletes? The only reasonable argument is a safety one, but it seems to me from reading the article in todays post that this is not a reasonable one. This women apparently has no trouble going around people or staying in her lane. It does not cost the school any money, nor does it put anyone else at a competitive disadvantage.
4.20.2006 11:06am
Philistine (mail):
I think it likely she was looking for issues beyond stigma--but also was concerned about effective training.

She is a world-class wheelchair athlete, but her actual competitions against other wheelchair athletes in high school is effectively nil.

Racing in a meet is a different experience then practice, and is important in training.

FWIW, from what I saw from another story her times in relation to non-wheelchair runners vary, depending on the distance. For instance, her 100 meter time (for which she won a silver medal at Athens in the paralympics) was 16.69 seconds (only .3 seconds off the world record time). This is probably 3-4 seconds slower than a competitive female high-school 100-meter dash runner (which is a huge margin in the 100-meter dash).

Conversely, in the 800 meter, her best time is 2:00. Probably about 15 seonds faster than anyone she is likely to meet in a high-school race (the U.S. Girl's high-school record is 2:00).

The school had the opportunity to articulate any actual safety issue, and apparently declined.

If there's no real safety issue, what's the problem?

--Philistine
4.20.2006 11:20am
Fawn Liebowitz:
There's a lot of uninformed commentary here (but some fairly well informed also, such as nrein's). Here are some things that should be kept in mind --

Tatyana McFadden is a world class athlete, not some poor diabled kid looking for special treatment to make her feel like she can be just like anyone else. She's also a high school student who wants an opportunity to be part of her school's athletic program, and to participate with her teammates. Training and competing solo isn't the same as training and competing with teammates. McFadden isn't looking for the school system to ignore legitimate concerns, such as safety, and she hasn't suggested that she be permitted to compete without restrictions (requiring an open lane betweeen her and the nearest other athlete is a something they would likely be ok with). And, of course, she's not suggesting that she actually be in competition against other athletes who don't have the benefit of wheels (for some of the more seriously uninformed, McFadden's times aren't slower than other athletes -- they're faster, and the advantage provided by her wheels increases as the distance of the event gets longer). Think of her events as being held simultaneously with a heat of another event of the same distance.

The initial position of the school system was an arbitrary rejection of McFadden's opportunity to compete on the track at the same time as other athletes, without any meaningful attempt to find a way to reconcile her interests with those of the school system. McFadden had already been training with other athletes on her team in circumstances not much different than what she was hoping to achieve in interscholastic competition -- the restriction had only been imposed on her participation in meets, so it's hard for the school system to make the argument that allowing McFadden to participate with other athletes impairs their ability to apply prudent saftety policies.

This policy result that will likely be produced by this case isn't just going to benefit McFadden. Of course, it benefits the community at large (policies calling for inclusion of disabled persons do indeed benefit all of us -- as a society we certainly are better with someone like McFadden participating than without). But there's an obvious benefit for those directly involved -- the athletes she trains and competes with (if you don't think having a world class wheelchair athlete setting a fast pace in an 800m or 1600m race will cause the runners to run faster times, then you should compare the other athletes times with McFadden and without).

It's unfortunate that a federal court order is required to accomplish a compromise that should have been a matter of common sense -- it's likely that the school officials feared that a policy decision made by them in favor of McFadden now would tie their hands in future situations, perhaps exposing themselves or the school system to liability should an accident involving a disabled athlete (whether McFadden or someone else) occur at some time in the future. I would suggest that the common sense approach to accommodating disabled persons, at least where local governmental agencies are concerned, be laws protecting those agencies and their officials from lawsuits arising from their actions taken to accommodate disabled persons (different from the present approach in which federal law mandates the accommodation). In McFadden's case, the accommodation would likely have been available without judicial intervention had such protection been available.
4.20.2006 11:35am
anonymous22:
We should keep our heads on straight here: the idea of a wheelchair athlete racing against a non-wheelchair athlete is UTTERLY ABSURD-- so all the "training benefits" and such that the last poster speaks of are also UTTERLY ABSURD-- even if the last poster wants to characterize this as a reasonable compromise or whatever. And given limited school budgets, if its a choice between sponsoring only non-disabled athletes and having an athletics program VS. having to shut down athletics programs because of the high cost of building costly wheelchair-accessible track facilities, the choice should be obvious.
4.20.2006 12:00pm
nrein1 (mail):
anonymous 22, do you care to articulate why this is UTTERLY ABSURD, or do you just like screaming? By the way, if you had been following along you have realized that this costs no money. Tracks are already wheelchair accesable. As to the sponsoring athletes thing, I am not sure where you are going as a wheel chair athlete uses the same amount of expenses as every single other member of the team of which there is normally as many as want to particpate.

One more time, this girl is not racing against non wheelchair athletes, she is racing with them. There is a difference.
4.20.2006 12:11pm
Fawn Liebowitz:
Anonymous22 is among the most uninformed of the commenters here. McFadden's events are simultaneous with the regular events of the same distance, but she isn't really competing with non-wheelchair athletes. I didn't refer to training benefits, but to improved times by having a faster pace set for a race -- it's not absurd, it's a fact (although not the best reason to allow McFadden to participate). Budgetary constraints? Track and field is a low-budget sport already, and McFadden's participation doesn't increase the cost of the sport -- she needs no special equipment that she doesn't provide herself (her wheelchair), unless you're referring to a lift to help her board a school bus to travel to meets at other schools (but that's there anyway -- not just for her). Reasonable safety precautions, such as putting a lane between her and the nearest runner, don't cost anything but the time it may take to add a heat to the event (less than 10 minutes for the longest event she participates in).

Look, it's generally a bad idea to have a federal law that gives someone like McFadden a right to sue the school system to allow her to participate, but it's a worse idea to leave school officials open to liability for an accident that might be alleged to be caused by reasonable efforts to include McFadden in athletic competition. The fear of liability and the possibility of having to defend a frivolous suit is the reason why school officials didn't make the accommodation on their own instead of waiting for a federal judge to tell them they had to do so. Understand this: the McFadden case is really about local officials getting cover from a federal judge, not about any dispute as to what the policy should be. The parties went through the motions so the federal court would have jurisdiction over a "case or controversy," but as to policy, there really isn't any meaningful disagreement. That's what has happened here -- those of you, including anonymous22, who think that the County officials really wanted to keep McFadden off the track need to look at this a bit more carefully.
4.20.2006 12:29pm
Brennan:
Fawn Liebowitz – You suggest that McFadden “hasn't suggested that she be permitted to compete without restrictions” and that “she's not suggesting that she actually be in competition against other athletes who don't have the benefit of wheels.” Given the text of the original order entered by the Court (albeit later modified as reported in the Washington Post), I’m not sure you’re right about this. But let’s assume that’s the case. What if she had sought the right to compete and place against the unwheeled? Would that be an appropriate/desirable result? From the tone of your comments, I’d guess you’d say no – but, if this case was correctly decided, why not?

On the pacing point, I’d have to say that seems pretty unlikely to me. While I have never raced on a track with a wheelchair athlete, I have paced and been paced in track races. With some simplification, the most useful pacing is (1) done at a constant pace that quickly puts the paced runners on target for the desired time, (2) allows the paced runners to draft the pacer, and (3) allows the paced runners to remain “in contact” with the pacer. (“In contact” is a flexible idea, but in most distance events on the track, a useful pacer will be no more than a stride or so in front.) My understanding is that the speed profile of a wheelchair racer would make useful pacing unlikely. A wheelchair racer would almost certainly start much slower than a runner with a predicted similar finish time, then speed up to a higher peak speed. Thus, no constant pace and no “contact.” Looking at wheelchair racers, I also find it difficult to imagine that there would be as much useful drafting for the paced runner. Also, to put this in context with McFadden's times, my experience is that having someone in the race running ten or twenty seconds faster than the other competitors rarely helps the slower folks much.
4.20.2006 1:25pm
John Noble (mail):
This is not PGA v. Martin, and it is not about the ADA. As Paul Johnson points out above, the injunction issued pursuant to Rehabilitation Act of 1973, 29 U.S.C. 794: "No 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 discrimination under any program or activity receiving Federal financial assistance...."

It is the foundation of the "mainstreaming" of handicapped kids in public schools. The fight is usually over the placement of disruptive kids diagnosed with ADHD, or mentally retarded children, in regular classrooms for the advantages of socialization over isolation. This is about as easy a case, and as inexpensive a solution, as you are going to find under a law that often requires school districts to pay for the placement of kids in expensive private schools to settle the claim.
4.20.2006 1:37pm
Mike BUSL07 (mail) (www):

shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...

Then again, you do have that word "solely" in there. I don't know how the courts interpreted this language, but it seems that when (and IF) you have a risk that the disabled person will inadvertently injure other participants, the act does not compel inclusion.

I know it's been said here that she has been able to stay out of people's way, and if that's the case, then by all means let her in. Having run track in college, I have my doubts, especially with respect to mid-distance races, where people break lanes, but still go fast enough not to have great control on turns. This could be a particular problem during the indoor season.
4.20.2006 2:25pm
Jason Fliegel (mail):
Brennan, you misread the Washington Post article. The judge did not modify the order. Rather, the school system originally read the order very broadly and later adopted a narrower reading that agreed with the narrow reading the Plaintiff took all along.

I'll also note that McFadden brought her suit under the Rehabilitation Act (not the ADA, as many keep implying or saying). One of the elements of a claim under the Rehabilitation Act is tha McFadden be otherwise qualified to participate in the activity notwithstanding her handicap. The Supreme Court has held that "[a]n otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). It's pretty clear that if McFadden had been trying to compete against the other racers, her claim would fail under the Rehabilitation Act. But she wasn't arguing that the program was the 400-meter dash. She was arguing that the program was the school's track and field program. Given that she just wanted to compete alongside the other students in the track and field program, and given that there are such things as wheelchair races, it doesn't seem at all unreasonable that the court held that she has a sufficient likelihood of success on a Rehabilitation Act claim to prevail on a motion for a preliminary injunction.
4.20.2006 2:33pm
TC (mail):

TC, the court did not force the school to add a sport, it forced them to make reasonable accomondations. Whne I ran track, occasionally throwers relays would be added (nothing so interesting as shot putter trying to sprint 400 meters) those were extra events, like wheel chair racing, that were scored. In this case since she is the only wheel chair competitor in each event, for winning the race she can only earn one point. If some other school put up another athlete she would get two for winning and so forth.

But the court did require them to add a sport. Wheelchair racing and running track are different sports. Apparently, the high school currently does not have any wheelchair racing events, so a judge ordered them to allow this girl to wheel around the track at the same time track events were going on.

Nothing in the Rehabilitation Act should require schools to add sports to accommodate disabled, even if they are world-class athletes.
4.20.2006 2:39pm
Rational Actor (mail):
Thank you, Professor Volokh, for providing this opportunity to demonstrate how happy highly-educated people are to state their views on matters of which they know next to nothing. It strikes me that the vast majority of people who post here should take a step back and do some basic research on an issue before posting their views.
Of course, that would dramatically reduce the entertainment value.
4.20.2006 2:41pm
Fawn Liebowitz:
Brennan, there's no point speculating about what ifs that aren't at issue here. Tatyana isn't seeking to compete against runners; she only wants to participate with them -- the first runner to cross the finish line in a heat of a 1600m race that also include's Tatyana's event wins that heat, even though it's highly unlikely that that runner will finish ahead of Tatyana. The pacing issue was a minor point, but applicable here (maybe not generally where wheelchair athletes are concerned, but Tatyana's participation is helping at least some of her teammates -- certainly not by drafting, perhaps only by inspiration, which is pretty close to pacing).

John Noble is right in that this is not PGA v. Martin. Most significantly because PGA v. Martin involved opposing parties who actually disagreed on what they wanted the court to do. Just think of what the position the County would have been in had the court ruled in the County's favor -- there would have been yet another round of litigation of course, with the County in the unenviable position of having unfettered discretion to say "no" to Tatyana. That would have made the policy decision one that carried some risk of liability for saying "yes." The lawyers who are commenting here from the perspective of ADA analysis need to step back from their adversarial roles for a moment and consider what the County -- more particularly, the elected or appointed officials acting on behalf of the County -- want to do in this situation. The job of the County's lawyers here is to achieve for their client -- those County officials -- the ability to implement their chosen policy with minimal risk of harm or liability.

See my last comment -- it's hard to worry too much about this case being "correctly decided" or even whether it's going to have any precedential value. It's real purpose is to give cover to local officials who are concerned about protecting the school system from liability while at the same time permitting Tatyana and any others similarly situated to participate in interscholastic sports. Of course, no official will admit as much, but the proof will be seen over time, as no further judicial action on this matter is taken (or at least nothing significant). The McFaddens now have what they want; so do the school officials -- there's no one suggesting that reasonable safety precautions can't be taken, there's no requirement being imposed that costs money (now that the litigation is essentially over), and acquiescing in the reasonable demands of a personally appealing 16-year old girl who happens to be a world class athlete is a politically wise position. The fact that a federal court order is consistent with those demands means that letting Tatyana or another wheelchair athlete compete on the same track at the same time as runners won't ever be considered negligent in itself in the event (God forbid) an athlete is injured in an accident involving a wheelchair athlete in a Howard County HS track meet. It's too bad the federal courts had to be involved in order to allow policy-makers to follow their common sense, the popular sentiment and general inclinations. Blame lawyers in general for that problem, but credit the lawyers involved in this case for moving this issue through the courts relatively quickly and inexpensively to arrive at a point that gives the policy-makers the flexibility they should have had all along.
4.20.2006 2:53pm
Mike BUSL07 (mail) (www):
Rational Actor, you seem actually surprised that a comment section on a law blog goes beyond the point initially addressed, and invites non-expert opinion. First time on the internet? At any rate, you might want to stick to law review articles if this isn't to your liking.
4.20.2006 2:54pm
Fawn Liebowitz:
Uggh. Preview is my friend.

"Just think of what the position the County would have been in had the court ruled in the County's favor -- there would have been yet another round of litigation of course, with the County, IF IT PREVAILED, BEING in the unenviable position of having unfettered discretion to say "no" to Tatyana."
4.20.2006 2:56pm
Fawn Liebowitz:
Mike BUSL07, I assumed that Rational Actor was referring to the many comments that have included arguments which depend on the facts being much different than the facts that exist and have been reported. You chide him for his supposed surprise at finding that the confidence of lawyers (as a group) in the correctness of their own conclusions far exceeds said lawyers' competence to draw such conclusions. It seemed to me that he was more amused than surprised (Rational Actor is probably a lawyer himself, or perhaps he plays one on TV).
4.20.2006 3:07pm
Mike BUSL07 (mail) (www):
Fawn, that's what I took him to mean as well, and judging by that moniker he is probably Perry Mason. It's just that, for better or worse, if you look at any given VC thread, people abandon facts at will and debate hypos that they find more interesting. I think most people who debated the ADA realize that it doesn't apply to this case. We just like talking about it more. And RA was being self-righteous, which tends to get under my skin.
4.20.2006 3:15pm
Steve:
You'd have to look a long time before you found someone who actually argues that a wheelchair racer should be permitted to compete against foot racers and win the gold medal; but that doesn't stop some people from seizing any opportunity to rail against this strawman of a position, as if the world were full of politically correct liberals who actually urge that result.
4.20.2006 3:26pm
Brennan:
"there's point speculating about what ifs that aren't at issue here"

But, but ... that's no fun! Speculating about what ifs is the point!! This case is effectively over (barring an appeal) - it's what this decision says about how future cases, perhaps with some different facts, might come out that caused Prof Volokh to post this and all of us to comment.

Jason Fliegel suggests that the relevant program McFadden was seeking to join (by arguing that she was "otherwise qualified" for it under the Rehabilitation Act) was the track and field program, not the 400m dash (or any other particular event). I don't get this argument. She did want to compete in the 400 (and the 800 and the 1600), even though they were not wheelchair races; she specifically did not want to compete in a wheelchair-only race. She was already permitted to be on the team and compete; her beef was that it was no fun out on the track by herself. It seems obvious to me therefore that the correct "programs" for the Rehab Act analysis are the event she was excluded from and was suing about, i.e., footraces.

So how can somebody who can't run be "otherwise qualified" to run in a footrace?
4.20.2006 3:53pm
Fawn Liebowitz:
From ground level, it's kind of funny to think of this case as being controversial. The strength of opinions expressed in the virtual "here" (in the comments section on VC) and the level of publicity given to this case by the media far outweigh the degree to which the policy question is a controversy in the actual "here" (i.e., within the community primarily affected). McFadden is someone that people here (the actual "here") cheer for -- but of course, without abandoning our concern that the safety of our kids is fully considered. The general realization that school officials are indeed addressing those concerns while figuring out how to accommodate McFadden takes all of the hot air out of the supposed controversy. Of course, the McFaddens themselves are and have been very concerned and somewhat outspoken about Tatyana's opportunity to participate, but they've been responsible in their demands and, importantly, they've been well-represented. On the County side, good sense also seems to have carried the day -- it seems that the interest of school officials has been to make sure that the issue was given a hearing that resulted in a position clear enough to guide the County in making its policy, preferably without imposing significant costs on the County and without denying Tatyana the opportunity she sought (Imagine that -- responsible local government!). That interest seems to have been fully met, and the McFaddens are also satisfied with the result. Complaints such as those written here are barely heard (if at all) in the part of the real world that this case affects.

So, sure, argue about the what ifs, but try to keep in mind that not everyone will be pleased to see the reasonable demands of a real 16-year old kid and her family, as well as the prudent, if somewhat overly skittish, response of local government officials, being carelessly misrepresented for the sake of argument as entertainment.
4.20.2006 4:15pm
Fawn Liebowitz:
Brennan, following up on the pacing question, here's a quote a Baltimore Sun reporter got from an athlete who ran in McFadden's heat of the 1600m yesterday:

"It was fine," said Wilson, who ran a season's best 5 minutes, 38 seconds for second place. "She wasn't in my way at all, and at the end, when she came past me, I felt like it was another runner, so I sped up a little bit. I was happy. No problem at all. It was fine. She kind of left me and it was only in my last lap that I saw her again. She pushed me a little at the end, I guess."

Note that the "second place" quoted in the article was really a first place, since McFadden's time isn't compared with those of the runners. The reporter probably could have been more accurate on this point.
4.20.2006 4:28pm
JRDickens (mail):
Great...

I guess this means my discrimination suit can move forward against the NCAA now. I have always felt that I was discriminated against because they wouldn't let me play basketball at a major university. Of course the fact that I am 5'8" tall should not be held against me. Also neither should the fact that I can't jump or shoot worth a darn. It's just not any fun practicing those things all alone by myself.

I don't really have to compete with them, I can just run up and down the court at the same time the game was going on.

Fawn....didn't you die back in 1963?
4.20.2006 4:31pm
Fawn Liebowitz:
The kiln explosion didn't quite finish me off, JR.

Actually, it's not your height that's keeping you out of college hoops. Get some game and they might let you play.

Tatyana's situation is a bit different than that, don't you think?
4.20.2006 4:39pm
Jason Fliegel (mail):
Jason Fliegel suggests that the relevant program McFadden was seeking to join (by arguing that she was "otherwise qualified" for it under the Rehabilitation Act) was the track and field program, not the 400m dash (or any other particular event). I don't get this argument. She did want to compete in the 400 (and the 800 and the 1600), even though they were not wheelchair races; she specifically did not want to compete in a wheelchair-only race. She was already permitted to be on the team and compete; her beef was that it was no fun out on the track by herself. It seems obvious to me therefore that the correct "programs" for the Rehab Act analysis are the event she was excluded from and was suing about, i.e., footraces.

To be absolutely clear about this, McFadden's motion frames the issue as whether she is otherwise qualified to participate in Howard County Public Schools interscholastic athletic programs. She does not focus on particular track and field events, or even particular sports. And events have shown that she was in no way seeking to participate in the 400, at least not the same 400 foot race in which the non-disabled athletes were participating. Rather, she was seeking to be treated the same as the other student athletes.
4.20.2006 4:51pm
TC (mail):

To be absolutely clear about this, McFadden's motion frames the issue as whether she is otherwise qualified to participate in Howard County Public Schools interscholastic athletic programs. She does not focus on particular track and field events, or even particular sports. And events have shown that she was in no way seeking to participate in the 400, at least not the same 400 foot race in which the non-disabled athletes were participating. Rather, she was seeking to be treated the same as the other student athletes.


How can one be "otherwise qualified to participate in Howard County Public Schools interscholastic athletic programs" if one does not specify what sport they are otherwise qualified to participate in?

Is there an interscholastic sports catch-all that does, or at least should, allow people who are athletes to participate in the generic interscholastic athletic program, even if they aren't qualified to participate in an established program?
4.20.2006 5:06pm
neutral:
I do not believe it was all injury tort protection exercise. It simply would not be effective.

Let's assume for the sake of argument that a foot runner is seriously injured in a race with Tatyana due to a collision with her wheelchair and sues the school board for negligence. They respond "but the court sanctioned it". So what? They never told the court it could be dangerous, so court had no way to even get safety concerns into its considerations. This only proves plaintiff's point: that they were negligent by failing to foresee how dangerous a situation they create.

I hope this never happens, though, and best luck to Tatyana.
4.20.2006 5:17pm
Hoosier:
Fawn Liebowitz--

I have fairly severe ADD.

Your long posts are causing me concentration problems. Might you break them down into mini-posts of, say, one or two sentences? I think this is a reasonable accomodation.

Glad to see you've recovered from the kiln explosion, btw! (Smiley Face and Hugs)
4.20.2006 5:31pm
Steve:
The fact that the school district had to let her race because of the injunction might not be an absolute defense to a tort action, but it would certainly be relevant. I do think the school was being over-cautious by requiring this whole thing to go to federal court in the first place, though. You could hypothetically be sued for serving baked beans at lunch, but that doesn't mean you should spend money on a collusive lawsuit just to get a federal judge to require you to serve baked beans.
4.20.2006 5:31pm
JRDickens (mail):
Fawn,

But your fiance'......never mind.

Actually her situation is a bit different. But not completely. Some of the posters here are right....we are talking 2 different sports. It's like me being upset because I am a world class soccer player but they won't let me play American football.
4.20.2006 5:41pm
JosephSlater (mail):
First, for what it's worth, Rehab Act rules and ADA rules are fairly similar in this context.

Second, Mike BUSL07, I think Rational Actor was making a good point, but for something he doesn't say explicitly (and this is now my spin, for which nobody else is responsible).

People weren't just spinning off random hypos in this thread, quite a few people were assuming the most radical result in order to support pre-conceived notions of how awfully intrusive and just plain weirdly pro-plaintiff the ADA is. Even after being told that the case was not what was being portrayed, there were still a series of snidely misinformed comments.

That's why I tried to post, early on, "gee guys, defendants win 97% of ADA cases, so this all might not be as horrible as you think." But some are more interested in Stories Right-Wingers Tell Themselves About Anti-Discrimination Law than they are the actual reality.
4.20.2006 5:45pm
Fawn Liebowitz:
neutral, once you acknowledge that the preference of everyone involved was to permit Tatyana's participation, it becomes clear that the issue is primarily about tort liability protection, and secondarily about other burdens on the school system, notably, possible impairment of the integrity of athletic competition, and imposition of economic costs. Minimize the litigation risks and the other burdens sufficiently, and there's no controversy because then, each party gets what he or she wants.

A collision between a runner and a wheelchair athlete is reasonably forseeable. The most obvious way to prevent this from happening is to exclude wheelchair athletes from the track during a runners' heat. Because all other precautions are less effective, exclusion is really the only one that school officials could have confidence in if exclusion is a precaution permitted to them. Having the judge issue an order that says federal law prohibits exclusion solves almost the entire problem (it leaves a relatively obvious range of other precautions, perhaps leaving an open lane between a wheelchair athlete and a runner or maybe just an informal determination by meet officials of a wheelchair athlete's ability to control his or her wheelchair). Either or both could be considered more than enough to provide the school system the assurance it needs on the liability issue and also the issue of economic cost. The issue of integrity of competition was solved by the conference call clarifying the order's effect -- that is, wheelchair events are held simultaneously with running events, but are scored separately. We've heard the last of this case, I think.
4.20.2006 5:52pm
Fawn Liebowitz:
Steve, you're spot on. I'm sure the McFaddens would agree. Problem is, though, once one overly timid school official gets his or her panties in a twist over the litigation risk, the game's on, and it's hard to stop without a judge's order because that official would be be called on to say "I told you so" as a witness for the plaintiff in any case involving a later accident. Collusive here is good, though. Vigorously contested would have been much more expensive and time consuming -- damaging to all concerned.
4.20.2006 6:00pm
neutral:
Fawn Liebowitz,

does it bother your theory at all that safety argument was not advanced by the school board? My point, which you did not address, was that "judge ordered" will not be a defence in a hypothetical future injury lawsuit simply because judge was not told about injury potential. It was not up to the judge to explore all these possibilities when working on a preliminary injunction. Is it at all possible that outcome would be different if school board advanced safety argument? That's how the hypothetical injury plaintiff will corner them: they never gave safety a passing thought, and if they did, they wouldn't have been in a position to have to hold this race in the first place.
4.20.2006 6:51pm
nrein1 (mail):
<blockquote>
Some of the posters here are right....we are talking 2 different sports. It's like me being upset because I am a world class soccer player but they won't let me play American football.
</blockquote>

I complete disagree. The hurdles is different from the 1500, but are they two sports? No. Is the breast stroke a different sport than the bitterfly? A wheelchair event is not a different sport than a 100 meters with no wheelchairs.

What it comes down to for me, is the question of by allowing McFadden to compete in the same heats as able bodied athletes is anything fundamental being changed for anyone else. The answer to me is a clear no. I can't understand why anyone would argue against this being a good result.
4.20.2006 8:43pm
David M. Nieporent (www):
What it comes down to for me, is the question of by allowing McFadden to compete in the same heats as able bodied athletes is anything fundamental being changed for anyone else. The answer to me is a clear no. I can't understand why anyone would argue against this being a good result.
There may be nothing wrong with letting her roll at the same time as the people running. What the argument is over is whether she should have some legal right to do so.


You'd have to look a long time before you found someone who actually argues that a wheelchair racer should be permitted to compete against foot racers and win the gold medal; but that doesn't stop some people from seizing any opportunity to rail against this strawman of a position, as if the world were full of politically correct liberals who actually urge that result.
Please. Given the Casey Martin case, it's hardly a "strawman." It may be a reductio ad absurdum, but then, as Radley Balko points out, the problem is that we live in a post-reductio America.

Between those "politically correct liberals" and fee shifting statutes which incentivize these sorts of challenges, there's no reason to think someone won't argue that a wheelchair racer should be permitted to compete against foot racers. (That's no more absurd than the Casey Martin case.) After all, threats of lawsuits abounded when the College Board marked test scores to show who got special treatment because of their "disabilities," causing them to drop the asterisks.



That's why I tried to post, early on, "gee guys, defendants win 97% of ADA cases, so this all might not be as horrible as you think." But some are more interested in Stories Right-Wingers Tell Themselves About Anti-Discrimination Law than they are the actual reality.
You actually think your statistic, to the extent valid, is a defense of the ADA scheme? A law is so badly written that it encourages 32 meritless suits for every meritorious one, and you think this shows that it isn't horrible? Do you think that litigation is free? (Let's not even get into the costs of compliance with those infrequent pro-plaintiff decisions. And remember, the required accommodations always expand, never contract. Plaintiffs may lose ten cases in which they ask for a particular accommodation, but that doesn't mean they won't win the eleventh, or twelfth, or thirteenth. But once it's established that a particular accommodation is 'reasonable,' good luck trying to argue to the contrary in the future.)
4.21.2006 1:32am
Fawn Liebowitz:
neutral, the safety issue wasn't raised by the school system presumably because they understood that the McFaddens weren't asking for any relief that would significantly impair the school system's discretion to impose reasonable safety precautions. It was pretty clear that keeping a wheelchair athlete off the track while runners are on goes beyond what's reasonably required to insure safety, at least when there's only one wheelchair athlete. The school board wanted the order because they wanted to permit Tatyana to participate with runners but they didn't want to be second-guessed on the safety issues if an accident between a runner and a wheelchair athlete occurs at some time in the future.

This case shouldn't have any importance as a precedent, because the judge's order was made in the context of a school board decision that was apparently entirely arbitrary -- not supported by any reasoning whatsoever. You might be able to think of good reasons to do what the school board did, but that's not really the point, is it? The school board didn't attempt to justify its action with a reason. They clearly didn't want to "win" -- if winning meant keeping McFadden off the track with the runners. The school board's efforts were focused on making sure the order was clarified in a way that allowed them to follow the policy they really wanted, which is pretty much the same policy that McFadden was asking for. It's silly that it took litigation in federal court to get to that point, but it only takes one thick-skulled, unreasonable school official and one mention of "lawsuit" by the other side to get that ball rolling.
4.21.2006 10:24am
Steve:
there's no reason to think someone won't argue that a wheelchair racer should be permitted to compete against foot racers. (That's no more absurd than the Casey Martin case.)

It would obviously be more absurd than the Casey Martin case, unless the entire purpose of golf is to see who can travel between holes the fastest. There's a legitimate, fact-based argument - agree or disagree as you choose - that using mechanical means to travel around the golf course confers no substantial competitive advantage in terms of hitting the ball in the hole in the fewest strokes. There is no conceivable argument that racing in a wheelchair confers no competitive advantage.

You harm your credibility with exaggerations such as this one.
4.21.2006 1:02pm
David M. Nieporent (www):
It would obviously be more absurd than the Casey Martin case, unless the entire purpose of golf is to see who can travel between holes the fastest.
The entire purpose of golf is to see who can hit the ball into the holes in the fewest strokes while following the rules in the rulebook. Martin couldn't do that, but the court let him compete anyway. That is certainly a competitive advantage -- he did better than he would have done without the court's ruling.
4.21.2006 3:23pm
anonymous22:
1) Why does the school have to sponsor wheelchair racing in the first place? It has nothing to do with track and field except for the fact that it takes place using the same facilities: it is an entirely different sport. If I want to start a badminton team at my high school, can I force the school to accomodate me through a federal lawsuit provided it would cost nothing for school to install new equipment?

2) So Fawn keeps arguing, no, no, this is all reasonable because the parties are seeking an advisory opinion from a federal judge in order to avoid future lawsuits (although it is still unclear exactly how this injunction will prevent future liability on the part of the school board). So Fawn's defense of this facially absurd lawsuit is that to argue that it is in fact a meaningless sham. It is nauseating that our society has become so litigious that we can't do anything without a federal judge giving it the a-ok.
4.21.2006 6:20pm
Fawn Liebowitz:
David, this isn't the Casey Martin case. It's just a case of things spinning out of control after someone said "lawsuit" in response to thoughtless and arbitrary decision by middle-level or low-level school official(s). Plaintiff should have known that even a threat of litigation would remove the decision from an arena that would likely have produced the ultimate result within months, rather than years. That initial decision -- to keep the wheelchair heat of an event from taking place simultaneously with the runners' heat -- isn't even what the County wanted, which is apparent from the resolution of the litigation (not to mention the low-budget manner in which it was handled by the school system) once the decision was placed in the hands the appropriate officials. Of course, once the positions of the parties became public, there was no way for the County to back down gracefully without dealing itself a poor hand in any future negligence litigation over a wheelchair/runner collision. The County needed a way to put its initial position beyond its discretion. It was apparent that the County wanted the federal court order as much as the McFadden's did. The federal law happened to be a way out of an awkward situation, but it wasn't the reason for the dispute, nor was it the reason for the parties inability to resolve it in a more intelligent manner. There are arguments to be made on both sides of ADA, but this case is provides a poor context in which to make them. There's a reason why federal course have jurisdiction over "cases and controversies" -- hard cases might make bad law, but collusive cases are worse.
4.21.2006 6:31pm
Fawn Liebowitz:
Anonymous22, I've never defended the bringing of the lawsuit, only the policy facilitated by the cover that the court's order gave to the County. Understanding why the County wanted the order, on the one hand, and approving of its continued refusal to resolve the matter by agreement while at the same time demonstrating near-collusive passivity in facilitating the plaintiff's victory, on the other, are two very different things. Early on, I said that litigation in federal courts was a poor way to make policy in this situation. But even a blind squirrel finds a nut every now and then, I suppose, even if the route to said nut is a meandering, inefficient one.

Once the matter was removed from the hands of low-level but self-important official(s) who tripped up by pronouncing the initial arbitrary policy, the County's actions in this matter, especially its handling of the federal court case, were seemingly calculated to accomplish a policy objective (the ultimate result -- probably a good one) while spinelessly avoiding responsibility for it (something no one in the school system should be proud of). It's handing of this matter should be the subject of scrutiny. But, of course, that's not the story that's being reported.
4.21.2006 7:19pm
Fawn Liebowitz:
anonymous22, a point of yours that I didn't address in my previous reply: it's pretty obvious that the court order provides cover to the county. That doesn't mean absolute protection, but it means that a plaintiff has to attack the county's policies regarding wheelchair events in light of the federal mandate to permit the wheelchair athletes to be on the track at the same time as runners. So, instead of trying to persuade a jury that the forseeability of an accident means that separating wheelchair athletes from runners is the only prudent policy -- perhaps not that difficult after an injury-producing collision has occurred, a plaintiff has to persuade the jury that the other measures taken were, in light of the federal mandate, so insufficient as to amount to negligence. Without a burdensome interpretation of the ADA's mandate (helpfully provided in binding fashion by the federal court), not much more than the occurrence of an injury-producing collision is needed to shift the burden of proof to the County. With the federal court order, a prima facie case is much harder for a plaintiff to make, giving the County a better shot at not only prevailing, but also at keeping cases from getting to juries, which of course makes it less likely that anyone will take such a case on a contingency-fee basis. It made a lot of sense to get the order, at least once the County failed to more intelligently preempt the need for it. Much of the same sort of benefit could probably been achieved by a careful and reasoned policy determined by elected school board members that included an affirmatively stated policy to ensure compliance with ADA.
4.21.2006 7:37pm
Mr. Bingley (www):
Hmmm. It seems to me to me that it's awfully convenient for the supporters of this ruling that she's a 'world class athlete.' However, what is to prevent one of those poor folks who agonisingly pull themselves along on crutches and complete marathons in 24 hours or so from applying for relief under this? I'm sure it's no "fun" for them to be out there alone, either, so how does a school board deny them from 'competeing on the same track at the same time' as other athletes?
4.22.2006 12:37pm
msk (mail):
Days later, wish I'd just asked:

How much did the school district spend pressing this case through the courts? and how does that price tag compare to what they might have spent organizing some sort of school-sized wheelchair sports activity?

The legal principles always matter, but children move through schools more rapidly than the average lawsuit moves through court. So, if your district averages fewer than ten wheelchair users per year in the entire K-12 system who are interested in sports, how much legal expense can you reasonably take out of what might have been the sports, or art, or music budget?

Fighting Special Ed cases can cost 100 times what it might have cost to accommodate the student for the year or two in question.

More kids will want severe physical disabilities, if you give in to one of them??? A school child is different from an adult employee signing on to work for you for maybe 25 years, and different from a pro athlete who may see a million bucks on the line.

Is it good law to fight for years when each child is changing rapidly as time passes?

A psychogist would remind us we each compete against our personal best performances (every day of our lives). So anyone can "compete alone," in a sense. OTOH, a creative way to provide one more level playing field, might teach everyone something about adaptability. "We've got x to spend on sports for the whole district. Is there any way we can fund one extra program for three months?"

The essence of good sports programs is providing even competition if you can, but school sport programs include junior high ball players who may grow more than four inches in height during the school year, so are never quite familiar with the length of their own arms. Huge variations within teams in levels of strength or skill. Some off-years, even the Kentucky Derby can barely field ten horses who are closely comparable in abilities on that day.

School sports exist partly for the educational value of novel situations and promoting spirit. You properly exclude from public school sports only those who would be endangered by health problems, would endanger others by bad behavior, or the unfortunate ones who fall outside the year's maximum budget for uniforms/equipment, coaches and playing space.

Private, local expense-support for public school teams is growing common now, so a good faith effort to fund novel sports temporarily seems like a PTA project (cheaper than a lawsuit). Shows the district made a sincere, tangible effort to meet, or balance, the needs of their unique set of enrollees that year. All comers, within reason.

And, since we are talking about Special Ed here, it's an appropriate program to benefit the student, not entertainment for the parents, that the school must provide.
4.22.2006 3:54pm