SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE INDIANA HIGH SCHOOL ATHLETIC ASSOCIATION
UNDER THE AMERICANS WITH DISABILITIES ACT
D.J. # 202-26-86

1. BACKGROUND
   1. The Parties to this Agreement are the United States of America and the Indiana High School Athletic Association, Inc. (IHSAA), based in Indianapolis, Indiana.
   2. In January 2018, the United States Department of Justice (Department) initiated an investigation of IHSAA, a private entity that regulates, supervises and administers interschool athletic activities among its member schools and establishes statewide standards for eligibility, competition, and sportsmanship for its member schools.
   3. The Department initiated its investigation in response to a complaint that the IHSAA would not reasonably modify its rules regarding minimum course enrollment as necessary to allow a ninth-grade child with multiple disabilities (Complainant) to compete interscholastically on a high school swim team.  Before high school, Complainant participated on a recreational swim team.  When she entered Rochester High School (Rochester), she wanted to join the swim team to compete interscholastically for Rochester.
   4. Competing interscholastically for Rochester is subject to IHSAA Scholarship Rule 18-1, which requires a student on a high school diploma track to attend school for at least 70% of the maximum number of full credit subjects each day.  At Rochester, a diploma track student therefore has to take a minimum of five full credit subjects.
   5. Complainant’s school-mandated specialized education program requires some home-based instruction.  This requirement limited her time at school to three full credit subjects per day, four days a week.  Complainant did not meet the requirements of Rule 18, and was therefore prohibited from competing interscholastically on Rochester’s swim team.
   6. Since 2010, the IHSAA has had a Risks and Competition Committee (Committee) and an IHSAA Risk and Competition Committee and Accommodation Policy (Accommodation Policy) whereby students can apply (Application) to the Committee and obtain an accommodation from any IHSAA Rule including Rule 18.  Under the Accommodation Policy, the Committee determines: (i) whether an individual has a disability within the meaning of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.; (ii) whether an accommodation is necessary for the individual to participate; and (iii) what accommodation, if any, could or should be granted after considering the essential elements of the sport or competition.
   7. Upon learning that Complainant would be prohibited from competing, Complainant’s parent emailed IHSAA’s Assistant Commissioner, explained that Complainant’s school-mandated special education program restricted her time at school due to her disability, and that to deny her access to the swim team would deprive her of many of the same opportunities and experiences enjoyed by her peers.
   8. IHSAA’s Assistant Commissioner responded that Rochester’s administration had correctly applied IHSAA Rule 18-8, which permits special education students on non-diploma tracks making satisfactory progress on their IEP goals to meet IHSAA’s academic standards contained in Rule 18-1.  Complainant, however, is a diploma track student, so Rule 18-8 did not apply.  The Assistant Commissioner advised Complainant’s parent to meet with Rochester staff to discuss scheduling additional classes so that she could meet the requirement of Rule 18-1.  The Assistant Commissioner did not mention IHSAA’s Accommodation Policy to Complainant’s parent.
   9. Complainant was thus prohibited from participating on the swim team during ninth grade.  This denied Complainant an opportunity to be involved in her community and to participate in an activity with her peers, which she desires.  The denial made Complainant feel sad, excluded, and disappointed that she was prevented from swimming with her peers, including a former swim teammate who was in twelfth grade and graduated in spring of 2018.
   10. In January 2018, after the Department opened its investigation of this matter, the IHSAA sent Rochester information about the Committee and the Accommodation Policy, along with a blank Application, and encouraged Rochester to have Complainant and her parents complete the Application and submit it to the Committee.
   11. On February 18, 2018, Complainant submitted the Application to the Committee.  On February 26, 2018, the Committee granted Complainant an accommodation and waived Rule 18 for Complainant, thereby making Complainant academically eligible for interscholastic competition at Rochester.
   12. The Parties agree that IHSAA is a private entity.  The Department alleges that IHSAA operates a place of public accommodation within the meaning of Title III of the ADA.  42 U.S.C. §§ 12181(7) and 12182(a).  IHSAA denies that it is covered under Title III of the ADA and alleges that it is covered under Title II of the ADA.  Under Title II, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.  42 U.S.C. § 12132; 28 C.F.R. § 35.130.
   13. Discrimination includes a public accommodation’s failure to make reasonable modifications in policies, practices, or procedures when necessary to afford its goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.  It is also discriminatory to deny an individual, on the basis of a disability, the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the public accommodation.  42 U.S.C. § 12182(b)(1)(A); 28 C.F.R. § 36.202.
   14. The Department alleges that IHSAA violated Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12182, by failing to reasonably modify its rules as necessary to afford Complainant the opportunity to participate on her high school swim team.  The IHSAA denies that it violated the ADA.
   15. The Department is authorized to investigate alleged violations of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against in violation of the Act and such discrimination raises an issue of general public importance.  42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 36.503, 36.506.
   16. The United States and IHSAA agree that it is in the Parties’ best interests, and the United States believes that it is in the public interest, to resolve this matter on mutually agreeable terms.  The Parties have therefore voluntarily entered into this Agreement, as set forth below.
2. ACTIONS TO BE TAKEN BY IHSAA
   17. IHSAA will comply with the requirements of the ADA and will not discriminate against any individual on the basis of disability with regard to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of IHSAA.  42 U.S.C. § 12182; 28 C.F.R. § 36.201.  IHSAA will make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford students with disabilities an opportunity to participate, unless the modifications would fundamentally alter the nature of its services.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
   18. ADA Coordinator.  Within fifteen (15) days, IHSAA will designate an ADA Coordinator who will be responsible for overseeing, managing, and coordinating IHSAA’s obligations set forth in this Agreement.  The ADA Coordinator will be authorized to receive and review requests for reasonable modifications, including waiver(s) to or accommodation(s) of IHSAA Rules.  Effective immediately, the ADA Coordinator’s contact information will be posted on IHSAA’s websites, currently www.ihsaa.org and https://myihsaa.net.
   19. IHSAA ADA Accommodation Policies, Practices and Procedures.  Effective immediately, IHSAA will amend its policies and practices to reflect the requirements set forth in this Paragraph and in the Accommodation Policy at Attachment B. 
   1. Information explaining how to request a waiver to or accommodation of IHSAA Rules will be posted on IHSAA’s public website, currently, www.ihsaa.org, as well as on IHSAA’s members-only website, https://myIHSAA.net.
   2. The Committee will make individualized determinations based on the specific facts of each request for a waiver or accommodation. 
   3. The Accommodation Policy shall provide for the following procedure:
   1. Within seven (7) business days of receiving a request for an accommodation, the IHSAA, through the Committee, will adhere to the following procedures for considering the request:
   1. Grant the request;
   2. Make a narrowly tailored request for more information about the request and, within ten (10) days of receiving the information, grant or deny the request; or
   3. Deny the request.
   2. IHSAA will document each reason why additional information is needed  and its reason for a denial to the applicant; IHSAA will provide such documentation to the United States consistent with the requirements of Paragraph 23, below. 
   20. ADA Training. Within 90 days, IHSAA will, through the ADA Coordinator, provide ADA Training (Training) to any IHSAA staff member who may receive a request by an individual with a disability (or on behalf of an individual with a disability) for an accommodation or waiver through the Accommodation Policy and its procedures.  The Training will be provided annually for the term of this Agreement.  IHSAA must obtain the United States’ approval of the training materials, which will not be unreasonably withheld.
   1. The Training will address the requirements of the ADA, as set forth in its Accommodation Policy, including:
   1. IHSAA’s nondiscrimination obligations under the ADA, as well as the revised Accommodation Policy requirements; and
   2. An overview of the terms and obligations of this Agreement (IHSAA will provide a copy of this Agreement to each training participant).
   2. The Training will be conducted live by the ADA Coordinator who may utilize webinars and videos, with an opportunity for IHSAA staff to pose questions to the ADA Coordinator during the training.
   1. For persons who must receive Training pursuant to this Agreement, but who did not receive Training on its designated annual date required under this Agreement, IHSAA will provide Training (which need not be live, and may include a video or recorded webinar of the most recent live Training) to such persons within thirty (30) days after the individual’s affiliation with IHSAA or within thirty (30) days of their return to IHSAA (for instance, from leave).
   2. For each session of the Training conducted under this Agreement, IHSAA will maintain attendance logs reflecting the date of the Training, names and titles of attendees, and the attendees’ signatures.  IHSAA will provide the United States with the attendance logs reflecting the Trainings that it has conducted pursuant to this Agreement pursuant to the reporting requirements set forth in Paragraph 23.
3. INDIVIDUAL RELIEF
21. IHSAA will continue to provide reasonable modifications, by providing waivers to or accommodations of its Rules, including Rule 18 regarding the minimum course enrollment, to allow Complainant to participate in interscholastic competition in IHSAA recognized sports at an IHSAA member school.
22. IHSAA will pay seven thousand five hundred ($7,500) dollars to Complainant within fifteen (15) days of receiving Complainant’s signed copy of the attached release (Attachment A).  IHSAA will provide written notification to counsel for the United States, including a copy of the check, when it has completed the actions described in this Paragraph.
4. REPORTING REQUIREMENTS
23. IHSAA will provide the following information in electronic format to the United States:
1. Within ninety (90) days, and every nine (9) months thereafter for the term of this Agreement, IHSAA will submit a report in electronic format to the United States detailing IHSAA’s compliance with this Agreement, including the requirements identified in Paragraphs 17-22.
2. Each report will include the IHSAA’s reason(s) for denying a specific request for a waiver to or accommodation of an IHSAA Rule, as set forth in Paragraph 19.
3. Unless otherwise instructed by the United States, all notices and reports that IHSAA is required to send to the United States under this Agreement will be sent electronically to: Charlotte Lanvers at charlotte.lanvers@usdoj.gov.
5. ENFORCEMENT AND MISCELLANEOUS PROVISIONS
24. Effective Date: The Effective Date of this Agreement is the date of the last signature below.  All periods specified in this Agreement will run from the Effective Date, unless otherwise specified.
25. Term: The duration of this Agreement will be three (3) years from the Effective Date.
26. Consideration: In consideration for this Agreement, the United States will take no further enforcement action related to the facts in Paragraphs 1-11, except as provided in Paragraphs 27-28.  The Parties agree and acknowledge that this consideration is adequate and sufficient.
27. Enforcement: The United States may review compliance with this Agreement at any time.  IHSAA will cooperate fully with the United States’ efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with reasonably requested information.  If the United States believes that IHSAA has failed to comply with any requirement of this Agreement or that any requirement has been violated, the United States will notify IHSAA in writing and the Parties will attempt to resolve the issue in good faith.  If the Parties are unable to reach a satisfactory conclusion within thirty (30) days of the date the United States notifies IHSAA, the United States may file a civil action in federal district court to enforce the terms of this Agreement, or take any other action to enforce the ADA.
28. Non-Waiver: Failure by the United States to enforce any provision of this Agreement will not be construed as a waiver of its right to enforce any provision of this Agreement.
29. Modifications: Any modification of this Agreement requires the written consent of the Parties; provided that, the United States and IHSAA may agree in writing to extend the applicable deadlines specified in this Agreement.  With regard to any of the deadlines specified in this Agreement, IHSAA will notify the United States at least ten (10) business days before any deadline of an anticipated inability to meet the deadline and the reasons why, and will request an extension of time to a specific date.  The United States will not unreasonably deny requested extensions made in good faith and following IHSAA’s due diligence to meet such a requirement.
30. Counterparts: This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same Agreement.  Facsimile or electronic signatures are acceptable.
31. Severability: If any provision of this Agreement is determined to be invalid, unenforceable, or otherwise contrary to applicable law, such provision will be deemed restated to reflect as nearly as possible and to the fullest extent permitted by applicable law its original intent and will not, in any event, affect any other provisions, all of which will remain valid and enforceable to the fullest extent permitted by applicable law.
32. Other Violations: This Agreement is not intended to remedy any potential violations of the ADA or any other law, other than those specifically addressed by this Agreement in Paragraphs 1-11.  Nothing in this Agreement will preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Agreement.
33. Entire Agreement: This Agreement, including Attachments A and B, contains the entire agreement between the United States and IHSAA concerning the subject matter described in Paragraphs 1-11, and no other statement, promise, or agreement, either written or oral, made by any party or agent of any party, that is not contained in this Agreement, and concerns the subject matter described in Paragraphs 1-11, will be enforceable.
34. Binding Nature of Agreement: This Agreement will be binding on IHSAA and its subsidiaries, agents, employees, officers, and contractors.  In the event that IHSAA seeks to transfer or assign all or part of its interest in any service covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the website or online services, then as a condition of transfer or sale, IHSAA will obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
35. Authority: The signatories below for IHSAA represent that they have the authority to bind IHSAA to the terms of this Agreement.

Attachment A: RELEASE OF CLAIMS FORM

Unites States v. Indiana High School Athletics Association  
DJ No. 202-26-86

For and in consideration of the remedial relief made by Indiana High School Athletics Association (IHSAA), under the provisions of the Settlement Agreement entered into by, and between, the United States and IHSAA regarding DJ No. 202-26-86:

I, _________________________________, on behalf of my minor daughter, Complainant, hereby release and forever discharge IHSAA, and its current, past, and future officials, employees, agents, successors, assigns, and administrators, of and from any legal and equitable claims, actions, causes of action, suits, controversies, damages, and demands whatsoever that I had, now have, or hereafter may have arising out of the facts identified or allegations made in Paragraphs 1-11 of the Settlement Agreement.

This Release constitutes the entire agreement between me and IHSAA without exception or exclusion. This Release will be considered null and void in the event that IHSAA fails to offer the relief provided for in Paragraph 22 of the Settlement Agreement.

I have read this Release and understand the contents thereof and I execute this Release of my own free act and deed. I also acknowledge that a copy of the Settlement Agreement has been made available to me.

Signed this _______day of ______________________, 2019.

 

_____________________________________________
Signature

 

_____________________________________________
Print Name

 

_____________________________________________
Address

Attachment B: IHSAA Risk and Competition Committee and Accommodation Policy

PURPOSE: The IHSAA promotes the use of uniform standards (i) for all interscholastic competitions and (ii) for students’ academic eligibility for interscholastic participation and conditions participation upon the adherence to the interscholastic sports rules and the competition rules for each sport recognized by the IHSAA.  At the same time, the IHSAA recognizes the legal obligation to reasonably accommodate individuals with disabilities.  The Risk and Competition Committee shall consider and evaluate requests for accommodations made by and on behalf of an individual with a disability(ies), such as an exemption from or modification of the IHSAA interscholastic sports rule or the competition rules, due to the individual’s physical or mental disabilities.

COMPOSITION OF COMMITTEE: The Committee shall include at least three individuals, including the IHSAA Commissioner who shall be the Chair of the Risk and Competition Committee.  The Chair shall appoint members to the Committee, who may include IHSAA staff, legal counsel, member school personnel, sports-specific experts and medical professionals. 

PUBLICATION AND DISSEMINATION TO THE MEMBERSHIP AND INTERSCHOLASTIC PARTICIPANTS AND PROSPECTIVE PARTICIPANTS.  This Policy, which explains how to request an accommodation, and provides the identity and contact information of the Chair, shall be disseminated to the IHSAA membership and to interscholastic participants and prospective participants through its posting on the IHSAA’s public website (currently www.ihsaa.org) and the IHSAA’s member’s only website (currently https://myIHSAA.net).

PROCEDURE FOR REQUESTING AN ACCOMMODATION.  A request for an accommodation shall be considered on a case-by-case basis and shall be decided based on the specific facts of each request.  A request for an accommodation due to disability(ies) shall be directed to the Committee, through the IHSAA Commissioner, and should include the following information: (i) the individual’s name; (ii) the individual’s contact information; (iii) details of the specific accommodation requested; (iv) the reason for the accommodation; (v) information and documentation which support the request; and (vi) a release/waiver of privacy/confidentiality signed by the individual or the individual’s parent/guardian who is requesting the accommodation in order to permit a narrowly tailored review of the personal and medical records. 

PROCEDURE FOR CONSIDERING REQUEST FOR AN ACCOMMODATION:

1. Within seven (7) business days of receiving a request for an accommodation, the Risk and Competition Committee Chair will adhere to the following procedures for considering the request:
1. Grant the request;
2. Make a narrowly tailored request for more information about the request,  document each reason why additional information is needed, and within ten (10) days of receiving the information, grant or deny the request; or
3. Deny the request.
2. The Committee shall consider the information provided and it shall make a determination as to whether to grant an accommodation.  If the Committee denies the request, it shall document each reason for the denial. 
3. If an individual is dissatisfied with an adverse decision of this Committee, the individual may seek review to the IHSAA Review Committee under Rule 17.