good morning your honor davey ryle for plaintiff allan age may please the court the district court order must be reversed when congress passed the eighty a it required that all reasonable accommodations should be granted and it so to integrate individuals with disabilities into the mainstream of american life now the reason wellness of an accommodation is generally an intensely fact specific inquiry which is why summary judgment is really appropriate i'd like to outline briefly the key undisputed fact first the accommodations that age requested were a separate division and time standards to be used for para ambulatory athletes at the sectional and state meets and he requested a separate division for the state road rates i had just say has conceded repeatedly that it would pose no administrative or financial burdens to grant the combination  requesting only the same treatment that i just say affords to able bodied boys and girls from different types of schools to wheelchair athletes and to swimmers with physical disabilities indeed at least eight other states already involved in the set up was set up so first the reason most of an accommodation is granted on an individual basis so it's not strictly speaking part of the inquiry how many students would in the state i understand that he's among the top story actually in this country but do you have any idea about where he would be in the state of illinois yes as you mentioned the record is that he is a top athlete and in the in the country and the letter from the great lakes the dept of sports association which is that essay one fifty five explains that age is probably the best high school athlete of his class in the state of illinois i'm not going to back to the question of how many physically disabled students this accommodation would potentially benefit  had just a website says that for wheelchair track which we think is a good sort of compare it or there have in this past year there were six boys and nine girls who participated and  track for the wheelchair division and first one meaning they're divided by gender at the same way that able bodied students are divided by gender so some additional data points on number of the great lakes adaptive sports association letter again i say one fifty six says that illinois has one of the highest concentration of athletes paramilitary athletes in the whole country and a fifty state survey shows that on average five students are participating in other  states finally we know that at least one other student has already been tonight an accommodation request there's a article in the chicago tribune which is and the record i say i want twelve which references the story of a girl with  report our expert appliance but that i have to say i saw an increase in participation when they created both the swimming division and the real church activision and we think it's like it is reasonable to think that even though age is the only boy  as was currently requested such an accommodations there are a number of students who would participate if it was created because your individual inquiry argue imply that the i a could say we can accommodate athletes with international paralympic classifications of teeth thirty five but not t thirty eight so the i just say there are a number of ways in which the ai is that they could implement a paramilitary division and they have some discretion in doing so so a number of states eight states already have such divisions and they've structured their competitions in similar although different ways so one option that i could implement is to say that we have one division for pair ambulatory athletes and we have one time standard for all such athletes who don't use wheelchairs so this is the way that louisiana washington colorado and california have all implemented their divisions and actual time slots them into how many pieces with the  able to split hairs can it say that not only need to accommodate someone with an i p c of t thirty six who has cerebral palsy wanted opens the door must start are accommodating every small subdivision of the bill of these so to be clear what we're asking for is one division that would apply to all pair and military athletes and and the time standard that is reasonable for that umbrella group ing of athletes and i have to say has already implemented separate time standards that are appropriate for subgroups of individuals for able bodied girls and boys from different classes of schools for wheelchair athletes and for swimming first students with disabilities so we think that they have ample experience in implementing separate divisions with time standards for a group of individuals where there is possibly a range of abilities within that group and we don't think that i have to say it would be required to split hairs down to the level of i p c classification in the division and we're just requesting one division and in terms of what the reasonable time standard is the there are a number of different states that have different standards that i just they could look to i just say already has experience giving different time standards to different sets of students and i have to say has conceded for pete that because it has this experience and because of the nature of track which is specific it's not a it's not a team sport in the way that creating a separate wheelchair basketball division would impose burdens i hit i h s a has said specifically it would really be not burdensome for them to implement this new division they just don't want to now like just sort of bottom line we're talking about a classification o another word all he asks i take it is to compete with he's here those that are similarly situated for a shot at say already treats essentially all other groups of students which is allowing groups of students to participate with people of their peer group with time standards that are reasonable for that group of students to allow them to participate  runners like age and runners who can run don't use a wheelchair but who have physical disabilities that means that their bodies work in ways that are different from their able bodied classmates a number of other states have already implemented  such divisions and there's no evidence in the record that there are any floodgates problems or or problems with other folks coming out of coming out and requesting additional divisions outside of that para ambulatory umbrella group which is what we're asking for here i think one of the considerations owner is with this very small number so in terms of the number of students who might actually benefit a couple of points so one is you might think that the number of students who participate in wheelchair track would be low or physics or swimmers with physical disabilities would be low but in fact those numbers as i mentioned before are around ten students of each gender participating in the separate division is those separate division which i just say has already deemed to be at each school level is really run by the individual school but we know that in twenty seventeen there were six boys and nine girls who participated in wheelchair track and made it just one additional point before i pass it down and reserve the remainder of my time which is that it is true that in any individual meet there may be only one student in a disability class participating in this new division but the way that the remedy that we've asked for is that in order to advance to the state finals that student would need to be required to meet the time standard it's not the case as an able bodied able bodied division if you're up one or two of his track team an inspiration to both disabled and able bodied athletes alike he embodies everything that the i ha h s a hopes to achieve through its athletic programs and the association should create a separate division and suppertime standards for para ambulatory athletes the question before this court is whether it must do so and must do so now that's the issue before this court nothing in the a b in the americans with disability act requires the association to make this accommodation and why did you make the accommodations for  those in wheelchairs and in swimming me in wheelchair then what where is the harm here  as a matter of fact the high school socit sion regularly communicates with the department of justice and the office of civil rights and they have uniformly and consistently advised the i h s say that they need written create new activities or programs specifically for disabled student athletes they do use their own discretion now it's important there is one key here is that the i h s a is governed by two things one its mission statement and the second is by its member schools when its member schools come together and say we want this accommodation we want wheelchair competition we want para ambulatory swimming events with separates time standards they're going to get it but that hasn't happened in this case no high school associate no high school in illinois no association member has ever requested a separate division for para ambulatory athletes and that includes evanson township high school a right now we have just one individual the plaintiff in this case who has requested this this division and what uk part of the reason that there are so few competitors is because of the longstanding policy to not have separate standards for para ambulatory students these students don't get involved in running because they have no chance of advancing doesn't act that is meaningless if a h were not physically disabled he would have statistically discriminatory i know it is not your honor and first off first of all i would i take umbrage when you suggest that a disabled athlete obtains no benefit from participation in his own track and field team benefit for a disabled student athlete to participate on a high school athletic team they learn life lessons they learn course they do but they never ever ever have a required to make this new division under the eighty eight or should it and there are two completely separate questions how should it should it perhaps and it may very well do so membership its membership asked for wheelchair accommodation divisions and they obtained it in this particular case no member high school has ever request over to the high school requested no nor if they did if they did that would be one we would certainly want to look at other high school members to find out if they support other ronnie against themselves room and that's that's the problem we have in this case now the goal of the i say is to integrate disabled and able bodied athletes to work together on the same team what purpose is served by having a separate division with one participant particularly in a track race what purpose is served it played if is asking for a once you open it up just like everything else in life just like everything else in life that can be true that can be true but that's speculative now there have been numbers of a number of you is every bit as speculative if not more snow i mean how does it harm any other athlete to have an extra you've already admitted that it would be a matter of costs it it it i'm you know can i tell you something my heart goes out to you having to argue this view of life i understand that you have to this is your client honor it's not just my client it's supreme court precedent whether this should be done is an ethical question that i'm certain that the board members of the i h s say have strongly considered that the issue before this court is not whether they should or shouldn't it's whether they are required to do so under the a d f is there evidence in the record that there was a law arge increase in par ambulatory athletes in swimming after the i a e a tests a change the standards to allow for power and in the tory time qualifications it's right there in the record and this comes down to the argument that if you build it they will come and sometimes that is true and sometimes it is not to let me let me ask you what the experience has been in those states which have permitted  amatory some of them have been met with success others not others they've they've had no participants sometimes it works and sometimes it doesn't  there is nothing no guarantee that it would that creating such a division now and being required to do so now will call in more para ambulatory athletes i would also like to point out one of the initial questions that show drove her raised which is we're dealing with a single division here she said well what about a chief thirty five would we have a separate division for t thirty opposing counsel said no we asked for one single division now keep in mind plaintiffs counsel is asking that her client having meaningful opportunity to compete a t thirty eight competing against t thirty five is not a meaningful opportunity to compete in fact when you look at it ninety percent of all able bodied athletes have no chance absolutely no chance of making it to this to the state finals do they have a meaningful opportunity to compete your honor what we're dealing with here is discretion is the association of allowed to make up its own mind based on the needs of its membership or is it required to create these accommodations by law let me go back there and you can answer the question as well that i ask you in  track made said occur throughout the year not section just regular track meet cereal what part is your association play other than rule making in those events to the finals they have to finish either first or second place i believe or meet a specific qualifying time but as far as are the run of the mill weekly or twice a week track meets its high schools would have you don't say yes or no with regard to pair amatory participants and that they could have their own separate division if they want the i'm not sure i that i'm not one hundred percent certain about my answer to that question so i would defer that to whatever it does make does make some difference because if the school wanted it and they weren't evident from joining it they could school themselves school itself along with their own of a particular factory could set up that i see no reason why they couldn't and i see no reason why they couldn't petition the it a patter ambulatory runner competing in his own race presents night there is safety in your competitive risk and the other run there in other words what difference will it make the top ten percent elite runner for the traditional races will still be in the top ten percent and keep their place in the meat they will not be affected in any manner by a separate ambulatory rates what is the harm to the runners what difference does it make if it is a substantial modification to the program if the program for the elite non disabled runners stays exactly this same i'm sure all of these arguments were you know made with the wheelchairs with this swimmers with  know in all the other states and the question that is around the the question is does the i h eight as say have the discretion to determine which events will be allowed and which will not or are they required in every case now you raise a perfect example when you mention the difference between a teeth thirty five and a t thirty eight week they've asked for a separate division limited to a single division is that going to satisfy everyone is things have worked out in california things have worked out in washington things have worked out in alabama things have worked out in the wee seattle and there are a few other states that i can't remember right now and each of those decisions were voluntary decisions by the high school associations themselves they were not required to to open up those divisions and this comes down to the essential point i'm trying to make you your honor so just briefly i'd like to emphasize that this case comes before your honor's on the summary on the ground of summary judgment where all of the facts need to be construed in our in the nonmoving party's favor that is an age where they have us as effectively shut out age from the same treatment that they give every other track participant which is being judged against his peers in a separate division with separate time standards for the district the accommodation we're requesting was unreasonable because the district courts seem to be construing what we're asking for as lowering the standards that apply even lean across the board but that's not the case here they have i just say has different standards eight of them currently across the board based on your classification and we're asking for standards for our client which are similar to the standards they set up for other students well let me get back  to the question i asked do you agree that the association is not required by statute or constitution to set up a division i don't agree the what priors is based on whether the accommodation is reasonable on the facts and here there is no burden there is no chance that age gains any competitive benefit over anyone else and the accommodation would not model modify a fundamental aspect of the sport where i have to say already acknowledges that in track you are judged on your ability to run based on your peer group of course the other way then the constitution and statutes require them to set up that division the constitution is not at issue here we're not appealing transfer drudges over as a matter of what the eighty requires we think on the specific facts in this case yes i have to say was required to grant are some additional requests because it wouldn't be burdensome for that and it wouldn't give age any competitive leg up and because it is essentially asking for a treatment like they have already given to other essential everyone else who participates in terms of what we have this was what you're putting council or you say he says that the judge determined that it wasn't required by statute and you're saying i guess that it is required yes so so to be clear the district court granted summary judgment as a matter of law and we think that was fundamentally in cracks and it was in fact required to at least we were we should have been able to go to trial on the question of whether become a nation was counsel the case will be taken under advisement