dissenting.
By any estimation, A.H. is a dedicated and accomplished athlete. He has participated in the U.S. Paralympic trials, has competed in state finals in swimming, has never missed a track meet, and has never finished a cross-country race in last place despite the fact that he is disabled but competing against able-bodied runners. AH. has cerebral palsy, however, and therefore his body limits his ability to reach the highest levels of athletic performance no matter his level of skill, determination, or resources. A.H. will never have the times needed to qualify for the Illinois state final track competitions. No one with his disability will. But given his elite status as a para-ambulatory athlete, he might well be (and likely is) in the top 10% of para-ambulatory runners and thus could qualify for state finals were there such a division. He has requested that the Illinois High School Association (IHSA) create one, but it has declined to do so. Many other states have divisions for para-ambulatory runners and the International Paralympic Committee has already created a system of classification for various impairments, so the IHSA would not need to create qualification standards from scratch and it concedes that there is no financial impediment to creating a new division. The majority has decided that the question as to whether or not the IHSA must provide him with such a reasonable accommodation will not go before a trier of fact; that is, that it is unreasonable as a matter of law.
The outcome of this case depends on. who has correctly framed the issue. According to A.H., he was required to adduce evidence sufficient to create a material dispute of fact as to whether but for his disability, he would have a meaningful opportunity to qualify for the state finals. According to the IHSA, A.H. was required to adduce evidence sufficient to create a material dispute of fact as to whether but for his disability, he would be among the elite 10% of runners who qualify for the state finals.
The majority agrees with IHSA’s framing and concludes that the benefit that A.H. desires is not merely to have a meaningful opportunity to qualify for state finals, but to actually qualify for those finals. This cannot be so. To understand why, it might be helpful to suppose that this case had occurred prior to the enactment of Title IX in 1972, and rather than being disabled, the plaintiff was a female athlete who could not participate in the heretofore (in this hypothetical) all-male state finals. If such a female athlete filed a lawsuit seeking to have a separate category for female runners with different qualifying times, she would not have been asking to be guaranteed a spot in the state finals, but rather she would be asking to have the same opportunity to participate as her male peers. Perhaps the female runner is in the top percentile of all female runners, and yet her best times are still shy of the qualifying times for men. Although it is true that new qualifying times for female runners might mean that she is very likely to qualify for the state finals, that does not mean that her lawsuit automatically becomes one in which she is asking to qualify for state finals. She should not be punished merely because her hard work and good fortune have placed her in the top percentage of female runners—the very group likely to make it to state finals. In fact, any female would have standing to file a lawsuit asking for a female division such that she might have the opportunity to participate in a statewide competition.
A.H. has filed this lawsuit not because he wants to be guaranteed a spot at the state finals, but because he desires the same opportunity to qualify for finals as any other runner. It is true that the state final competition is an elite event in which only approximately ten percent of non-disabled runners qualify, but a non-disabled runner who has the magic mix of drive, determination, ability to train, good coaching, resources, genetic make-up, and luck has the opportunity, albeit small, to make it to the state finals. A.H.’s chance of advancing to finals is zero. No matter how much drive, determination, good coaching, ability to train, resources, and luck he has, he can never compete in a state finals race—a fact that is the result of his physical disability.
The female runner in my example does not need to demonstrate that but for the fact that she was born female, she would have a chance to make the qualifying time for the state finals. It is the opportunity to try that she is missing. Likewise, A.H. does not have to demonstrate that but for his disability he would meet the qualifying standards for the state finals. The current program denies him a meaningful opportunity to try. How could any athlete ever demonstrate that but for his disability he would qualify for state finals? Had A.H. been born in an entirely different body, one that did not have cerebral palsy, would he be in the top 10% of runners? How can we know what his body would have been like but for his disability. Would it have been more muscular? Would his heart have been stronger? Would he be taller, with longer legs? This is an absurd pursuit. And, in fact, if this were the correct standard, the question as. to whether he would have qualified for the state finals but for his disability would be a factual one for the jury, and one that might likely be answered in the affirmative. After all, despite A.H.’s disability, he manages to outperform even some able-bodied runners. And given his drive, determination, and dedication, it seems likely that he is just the kind of athlete that would make it to the state finals. But trying to imagine a world in which A.H. is not disabled, is not a fruitful exercise, nor is it something a court can determine as a matter of law.
In any case, there is no guarantee that any runner will make it to finals. Even the most elite runners can have a bad day. Sometimes runners trip and fall, sometimes they fall ill with viruses, sometimes an unknown up-and-coming youngster emerges out of the- pack and surpasses them. What is fruitful and can be determined, however, is whether disabled runners have the same opportunities as any other athlete to try their hardest to make it to the state final competition.
■ The majority also concludes that even if A,H, adduced evidence that but for his disability he would qualify for state finals, his claim would fail because his requested accommodations are unreasonable as a matter of law. According to the majority, the creation of a new division would fundamentally alter the nature of the program or service by undermining the competitive nature of the state championship and road race. The majority states that “[t]he essential nature of a track and field race is to run a designated distance in the shortest time possible.” Ante at 595. “To lower the qualifying time standards for State by creating a new division of runners,” the majority reasons, “would fundamentally alter tile essential nature of the Sectional and State track and field meets, as well as the Road Race.” Id. But this is exactly what the IHSA did when it created separate divisions for female runners, wheelchair athletes, and runners from smaller schools.It lowered the qualifying standards for the state finals by creating a new division with different required qualifications. And if doing so altered the essential nature of the state finals and road race, then either those divisions should never have been created or the fundamental nature of.the program has already been modified. But the reality is that running a designated course and distance in the shortest period of time is not the essential nature of a track or road race. It is running that race in the shortest period of time as compared to one’s peer group. No one would think it fair if Usain Bolt signed up to compete-in the IHSA state finals despite the fact that he could surely run the designated course in the shortest period of time.
According to the majority’s reasoning, lowering qualifying standards “wohld undermine 'the competitiveness of the State championship meet and Road Race.” Ante at 594. I wholeheartedly reject the notion that allowing separate divisions for women and disabled persons somehow “undermines the competitiveness” of a sporting event or denigrates the accomplishments of elite male athletes. This is akin to saying that allowing women to run in Olympic track events, where the qualifying times are lower, “undermines the competitiveness” of the men’s Olympic track events. As A.H. argued, “under IHSA’s theory, allowing Serena Williams to play tennis at Wimbledon! or Katie Ladecky to swim at the Olympics would somehow ‘strip’ those competitions of their identity and prestige, devaluing the achievements of Roger Fed-erer and Michael Phelps.” Appellant’s brief at 32.
The separate divisions for smaller schools is particularly good evidence that creating new categories does not fundamentally alter the nature of the program or undermine the competitiveness of the championship. Wheelchair athletes and women, on average, take longer to complete the same races because of immutable physical characteristics. Smaller schools must pick runners from a smaller pool, but attendance at any particular school is merely the happenstance of geography. There is no physical or genetic reason that a runner from a small school' would not be able to run just as fast as a runner from a larger school. Instead, IHSA has created separate divisions for smaller schools for reasons other than just allowing the fastest runners in the state to compete—most likely to allow greater access to the finals for runners who might not otherwise have a meaningful chance to compete there. Moreover, in other ways as well, the IHSA has established a system that ensures not only that “the best and fastest” runners go to -finals, but that the opportunity is open more expansively. For example, each school may send only its top two runners to compete in each event at the sectional tournaments—the tournament through which runners qualify for the state fmals. A school with the top five runners in the state will have to leave three of those “best and fastest” runners behind so that other schools have the opportunity to send some students as well. If the essence of the competition was to have only the “best and fastest runners in Illinois” as the majority contends (ante at ■ 594),' then the IHSA would open the finals only to the top 10% of runners in the -state regardless of gender, ability, school size or sectional results.
The cases the majority cites only reinforce the well-established legal ■ concept that a person seeking a reasonable accommodation must be otherwise qualified, with or without accommodation, for the job, program, or service. See Khan v. Midwestern Univ., 879 F.3d 838, 841-42 (7th Cir. 2018) (noting that a pregnant medical student was not entitled to a reasonable accommodation if she was not otherwise qualified academically for the program). A deaf nurse who cannot safely administer patient care is not otherwise qualified, even with an accommodation, for the job. Se. Cmty. Coll v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Nor are students who cannot -meet minimum academic requirements in a particular program, with or without a reasonable accommodation. Khan, 879 F.3d at -; Brookhart v. Ill. State Bd. of Educ., 697 F.2d 179, 184 (7th Cir. 1983). Professional golfer Casey Martin, however, was otherwise qualified to play in a professional golf tournament provided his disability could be accommodated by using a golf cart to traverse the course. PGA Tour, Inc. v. Martin, 532 U.S. 661, 690, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). A.H. is otherwise qualified to run in a track event and the reasonable accommodation he requests will not change the nature of any other event or the competition as a whole.
Like any female athlete, wheelchair athlete, or athlete from a smaller school, A.H. would like the meaningful opportunity to compete against his peer group for a chance to qualify for the state finals. The success of any para-ambulatory athlete would in no way diminish the success of any other athlete or alter the fundamental nature of the competition. The majority offers no explanation, for why.-it, might. A.H. has more than earned this opportunity. I respectfully dissent.