Skip to main content

Advertisement

SpringerLink
Log in

The fundamental nature of sport: disability, discrimination and sport in Holzmueller v. Illinois High School Association

  • Article
  • Published:
The International Sports Law Journal Aims and scope Submit manuscript

Abstract

Despite events such as the Paralympics, global games, and Special Olympics, sport is generally structured in a way that provides limited or no categories for people with disability to take part in a fair contest. The exclusion of children with disability from sporting opportunities result from the approach that sport is fixed and has a traditional structure, designed to identify the most able at certain activities. It is therefore often accepted that sport is simply something that children with disability may not be able to take part in. This article examines the appeal case of Holzmueller v Illinois High School Association, in which a High School track and field athlete challenged the structures of an athletics competition that did not provide separate categories for athletes with disability, other than wheelchair events. While the case is specific to the United States it represents a useful example of the complexities in the discrimination of children with disability when it comes to sport. By analysing Holzmueller using critical disability theory, this article demonstrates the challenge the law—statute and the judicial interpretation of it, has in preventing discrimination against people with disability in competitive sport.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others

Notes

  1. See Beacom et al. 2016; English et al. 2020; Kearney et al. 2019.

  2. Hodge and Runswick-Cole 2013; Darcy S et al. 2016; Giese and Ruin 2016.

  3. Darcy and Dowse 2013; Australian Sports Commission and University of Technology 2010; Giese and Ruin 2016.

  4. Fair’ is a contested term and attracts debate. The term ‘fair’ is used in this article on the basis that the traditional or historical basis of sport has colloquially been considered ‘fair’. There is an argument that no sport can ever be fair: Jones 2014; Nixon 2007; Greely 2004.

  5. See Nixon 2007; Le Clair 2011; Greely 2004.

  6. See Hodge and Runswick-Cole 2013; Darcy S et al. 2016.

  7. Darcy S et al 2013; Australian Sports Commission and University of Technology 2010; Hodge and Runswick-Cole 2013; Darcy S et al. 2013.

  8. Id.

  9. See § 794a The Rehabilitation Act, 29 U.S.C. 2020, § 12132, § 12182a, 12182b2Aii, The Americans with Disabilities Act 42 U.S.C. 1990.

  10. Pearce 2017.

  11. Fay and Wolff 2009.

  12. Id. p. 236-7.

  13. Heck and Block 2019; Pearce 2017; Hodge and Runswick-Cole 2013; Darcy S et al 2016.

  14. Id.

  15. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456.

  16. While there are other cases that deal with discrimination in sport, this case is instructive because the dissenting judgment highlights a different perspective to the treatment of people with disability and provides for a clear application of the Critical Disability Theory lens to the problem.

  17. The law in the United States is not specific to children, however, the impact of the legislation on children is the focus of this article.

  18. For explanation of CDT see Pothier and Devlin 2006; Hosking 2008

  19. See Pothier and Devlin 2006.

  20. A.H. was a minor at the time, and a senior at Evanston Township High School, and a member of the school’s track and field team.

  21. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 2. A.H.’s classification of T-36 was issued to him as part of the Paralympic classification system, that is relatively universally applied in athletics contests and accepted as providing people with certain disabilities a category in which to compete with other competitors who have similar impairments that affect their functioning.

  22. Classification categorises people with disability into some groups of some disabilities, to provide them with a fair opportunity to compete.

  23. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 4.

  24. Id., 4.

  25. See § 794a The Rehabilitation Act, 29 U.S.C. 2020, § 12132, § 12182a; The Americans with Disabilities Act 42 U.S.C. 1990.

  26. In the 100m, 200m, 400m and 800m.

  27. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 5.

  28. Original decision at 29.

  29. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456,, 3. The Court did not discuss nor decide the adequacy of the organisation’s Accommodation Policy for Students with Disabilities, or whether that had been complied with by the ISHA, in the circumstances.

  30. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 5.

  31. Id.

  32. Id p. 6.

  33. § 794a The Rehabilitation Act, 29 U.S.C. 2020

  34. § 12132, § 12182a, The Americans with Disabilities Act 42 U.S.C. 1990

  35. The Rehabilitation Act, 29 U.S.C., 2020

  36. The Americans with Disabilities Act 42 U.S.C. 1990.

  37. See Epstein 2012 p.245; PGA Tour, Inc. v. Martin, 532 U.S.

  38. This is more encapsulating than the law in Australia, see The Disability Discrimination Act 1992 C’th, s28 3. 2020 and the United Kingdom see The Disability Discrimination Act 1995 and the Equality Act 2010, and the Sports Council Equality Group, UK Equality Standard Resource Pack Guidance for sports organisations Produced May 2012, Updated February 2014.

  39. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 16 C 1959, p. 29.

  40. Author’s emphasis.

  41. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p. 22.

  42. Pothier and Devlin 2006.

  43. Pothier and Devlin 2006; Campbell 2009a, b; Goodley 2013.

  44. For example, see Minich 2016.

  45. Pothier and Devlin 2006;

  46. Pothier and Devlin 2006; McKenna 1997; Eldridge v. British Columbia A.G. [1997] 3 S.C.R. 624, 689; Shakespeare and Michalko 2003.

  47. Goodley 2013; Meekosha and Shuttleworth 2009 p. 49.

  48. Fredman 2011, p. 25.

  49. This is the social model of disability, an accepted perspective from which to consider the treatment of a person without disability.

  50. Michalos 2014; Gillies 2014; Pothier and Devlin 2006; Hosking 2008. For explanation of the interactional model see Mitra 2018.

  51. Oliver 2013.

  52. Hodge and Runswick-Cole 2013;

  53. § 794a 29 U.S.C.; § 12132 42 U.S.C.

  54. Id.

  55. § 12182a 42 U.S.C.

  56. Id.

  57. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 7-9.

  58. Id. p. 10.

  59. Id.

  60. Id. p.13-14.

  61. Id. p.16-17.

  62. Id. p.18.

  63. § 794a 29 U.S.C.

  64. § 12132 42 U.S.C.

  65. 29 U.S.C. § 794a of the RA.

  66. 42 U.S.C. § 12182b2Aii.

  67. 42 U.S.C. § 12182a of the ADA.

  68. See Pothier and Devlin 2006; Goodley 2013.

  69. 29 U.S.C. § 794a of the RA; 42 U.S.C. § 12132 of the ADA; 42 U.S.C. § 12182a of the ADA.

  70. 42 U.S.C. § 12182b2Aii.

  71. 29 U.S.C. § 794a of the RA; 42 U.S.C. § 12132 of the ADA; 42 U.S.C. § 12182a of the ADA.

  72. See for example, Retief and Letsosa 2018, p.4738; Peers D 2012; Goodwin and Peers D 2012; Series, 2015, p. 1590.

  73. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 19.

  74. Id.

  75. Id p. 17.

  76. See for example, Kidd and Donnelly 2000 p. 139; Shin 2017.

  77. Shin 2017.

  78. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 6-11.

  79. Id. p.11.

  80. Id. p. 9-10.

  81. Washington v. Indiana High School Athletic Association, 181 F.3d p.848–49.

  82. Id.p. 18.

  83. See. § 12182b2Ai 42 U.S.C.; in Australia, indirect discrimination, see the Disability Discrimination Act 1992 C’th, s 6.

  84. https://www.afb.org/blindness-and-low-vision/your-rights/section-504-legal-foundations-right-accessible-information; 29 U.S.C. § 794a of the RA; Tyler v. City of Manhattan, 857 F.Supp. 800 D. Kan. 1994

  85. Davis 2017 p. 4.

  86. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456,18.

  87. Id.

  88. Id.

  89. Id p.19.

  90. § 35.130b7i 28 Code of Federal Regulations; C.F.R.

  91. Id. An exception to an alteration being required to limit discrimination, exclusion, or being treated differently.

  92. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 12.

  93. 532 U.S. 661 2001.

  94. Id .p. 682–83.

  95. Id.

  96. Id. p.14.

  97. 532 U.S. 661 2001, 682-83. for example, referring to a fundamental alteration being ‘a peripheral change that gives a disabled athlete an advantage over others’

  98. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, 20.

  99. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p.15.

  100. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p.13.

  101. See Peers, 2012; Peers and Goodwin 2011.

  102. See Nixon 2007; Shin 2017.

  103. CAS 2018/0/5794 Mokgadi Caster Semenya v. International Association of Athletics Federations; CAS 2018/0/5798 Athletics South Africa v. International Association of Athletics Federations.

  104. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456,p. 14

  105. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p. 13.

  106. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p.13; Southeastern Community College v. Davis 442 U.S. 397, 407–10 1979.

  107. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p.13.

  108. A deaf nurse who cannot safely administer patient care is not otherwise qualified, even with an accommodation, for the job. Southeastern Community College v. Davis 442 U.S. 397, 406 1979. Nor are students who cannot meet minimum academic requirements in a particular programme, with or without a reasonable accommodation. Khan, 2018 WL 416838, at 2; Brookhart v. Ill. State Bd. of Educ., 697 F.2d 179, 184 7th Cir. 1983.

  109. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 17‐2456, p.22.

  110. Id. p.19.

  111. Id. p. 20.

  112. 532 U.S. 661 2001,p. 682-83.

  113. Id. p.690

  114. Id. p. 683-85.

  115. A.H., a minor, by his father and next friend, KEITH HOLZMUELLER, v. ILLINOIS HIGH SCHOOL ASSOCIATION, No. 16 C 1959, p.33.

Reference List

  • Americans with Disabilities Act of 1990, 42 U.S.C

  • Australian Sports Commission and the University of Technology, Sydney (2010) Participation and non-participation of people with disability in sport and active recreation

  • Beacom A, French L, Kendall S (2016) Reframing impairment? Continuity and change in media representations of disability through the paralympic games. Int J Sport Commun 9(1):42–62

    Article  Google Scholar 

  • Campbell F (2009) Contours of Ableism: The Production of Disability and Abledness. Palgrave Macmillan, London

    Book  Google Scholar 

  • Campbell FK (2012) Contours of ableism. Palgrave Macmillan, London

    Google Scholar 

  • Clair Le, Jill M (2011) Global organizational change in sport and the shifting meaning of disability. Sport Soc 14(9):1072–1093

    Article  Google Scholar 

  • Code of Federal Regulations (U.S.)

  • Dagkas S, Armour K (eds) (2011) Inclusion and exclusion through youth sport. Routledge, New York

    Google Scholar 

  • Darcy S, Dowse L (2013) In search of a level playing field–the constraints and benefits of sport participation for people with intellectual disability. Disab Soc 28(3):393–407

    Article  Google Scholar 

  • Darcy S, Lock D, Taylor T (2017) Enabling inclusive sport participation: effects of disability and support needs on constraints to sport participation. Leis Sci 39(1):20–41

    Article  Google Scholar 

  • Davis L (2017) Beginning with disability: a primer. Taylor & Francis, New York

    Book  Google Scholar 

  • Disability Discrimination Act (C’th) 1992

  • Disability Discrimination Act 1995 (c.50) (U.K)

  • English P, Kean B, Pearce S, Peters T, Kirby K, Calder A (2020) Masters of your fate and the captains of your soul: media representations of the 2018 Invictus Games. Sport Soc. https://doi.org/10.1080/17430437.2020.1738394

    Article  Google Scholar 

  • Epstein Adam (2012) Sports law. South-Western Cengage Learning, Boulevard

    Google Scholar 

  • Equality Act 2010 (c.15) (U.K)

  • Fay T, Wolff E (2009) Disability in sport in the twenty-first century: creating a new sport opportunity spectrum. B Univ Int L J 27:231

  • Fiona Campbell (2009) Contours of ableism: territories, objects, disability and desire. Palgrave Macmillan, London

    Google Scholar 

  • Fredman S (2011) Discrimination Law. Oxford Press, Oxford

    Google Scholar 

  • Giese M, Ruin S (2018) Forgotten bodies–an examination of physical education from the perspective of ableism. Sport Soc 21(1):152–165

    Article  Google Scholar 

  • Gillies, Jennifer, Alzheimer Societies of Kitchener-Waterloo and Cambridge, ON, Canada

  • Goodley D (2013) Dis/entangling critical disability studies. Disab Soc 28(5):631–644

    Article  Google Scholar 

  • Goodwin DL, Peers D (2012) Disability, sport and inclusion; Inclusion and exclusion through youth sport. pp. 186-202

  • Greely HT (2004) Disabilities, enhancements, and the meaningsof sports. Stanf Law Policy Rev 15:99

    Google Scholar 

  • Heck S, Block ME (eds) (2019) Inclusive physical education around the world origins, cultures, practices. Routledge, New York

    Google Scholar 

  • Hodge N, Runswick-Cole K (2013) They never pass me the ball: exposing ableism through the leisure experiences of disabled children, young people and their families. Child Geogr 11(3):311–325

    Article  Google Scholar 

  • Hosking DL (2008) Critical disability theory. A paper presented at the 4th Biennial Disability Studies Conference at Lancaster University, UK

  • Jones C (2014) Disability and Sport. In: Torres CR (ed) The Bloomsbury Companion to the Philosophy of Sport. Bloomsbury, London

    Google Scholar 

  • Kearney S, Brittain I, Kipnis E (2019) “Superdisabilities” vs “disabilities”? Theorizing the role of ableism in (mis) representational mythology of disability in the marketplace. Consum Mark Cult 22(5–6):545–567

    Article  Google Scholar 

  • Kidd B, Donnelly P (2000) Human rights in sports. Int Rev Sociol Sport 35(3):131–139

    Article  Google Scholar 

  • Lucy S (2015) The development of disability rights under international law: from charity to human rights. Disab Soc 30(10):1590–1593

    Article  Google Scholar 

  • McKenna I (1997) Legal rights for persons with disabilities in Canada: can the impasse be resolved? Ott Law Rev 29:153–224

    Google Scholar 

  • Meekosha H, Shuttleworth R (2009) What’s so ‘critical’ about critical disability studies? Aust J Human Rights 15:47–75

    Article  Google Scholar 

  • Michalos AC (ed) (2014) Encyclopedia of Quality of Life and Well-Being Research. Springer, Dordrecht

    Google Scholar 

  • Minich JA (2016) Enabling whom? Critical disability studies now. Lateral 5(1):5–1

    Article  Google Scholar 

  • Mitra S (2018) The human development model of disability, health and wellbeing. Disability, health and human development. Palgrave Pivot, New York, pp 9–32

    Chapter  Google Scholar 

  • Nixon HL (2007) Constructing diverse sports opportunities for people with disabilities. J Sport Soc Issues 31:417–433

    Article  Google Scholar 

  • Oliver M (2013) The social model of disability: thirty years on. Disab Soc 28:1024–1026

    Article  Google Scholar 

  • Pearce S (2017) Disability discrimination in children’s sport. Altern Law Journal 42:143–148

    Article  Google Scholar 

  • Peers D (2012) Patients, athletes, freaks. J Sport Social Issues 36:295–316

    Article  Google Scholar 

  • Peers D, Goodwin D (2011) Disability, sport and inclusion. In: Dagkas S, kathleen A (eds) Inclusion and exclusion through youth sport. Routledge, New York

    Google Scholar 

  • Pothier D, Devlin R (2006) Critical disability theory: essays in philosophy, politics, and law. UBC Press, Vancouver

    Google Scholar 

  • Rehabilitation Act of 1973, 29 U.S.C (2020)

  • Retief M, Letšosa R (2018) Models of disability: a brief overview. HTS Teolog Stud/Theolo Stud 74(1):a4738

    Google Scholar 

  • Shakespeare T, Michalko R (2003) The difference that disability makes. Contem Sociol 3:195

    Article  Google Scholar 

  • Shin PS (2017) Sex and gender segregation in competitive sport: internal and external normative perspectives. Law Contem Prob 80:47

    Google Scholar 

  • Sports Council Equality Group, UK Equality Standard Resource Pack Guidance for sports organisations Produced May 2012, Updated February 2014

Download references

Funding

This research was not the subject of funding

Author information

Authors and Affiliations

  1. University of the Sunshine Coast, Sunshine Coast, Queensland, Australia

    Simone Pearce

Authors
  1. Simone Pearce
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Simone Pearce.

Ethics declarations

Conflicts of interest

The author declares that she has no conflict of interest.

Data availability and material

There is no data relied upon, and all material is publicly available.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Pearce, S. The fundamental nature of sport: disability, discrimination and sport in Holzmueller v. Illinois High School Association. Int Sports Law J 21, 74–93 (2021). https://doi.org/10.1007/s40318-020-00179-3

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s40318-020-00179-3

Keywords

Search

Navigation