Doe v. Rhode Island Interscholastic League

137 F.4th 34

• Court: Court of Appeals for the First Circuit
• Decided: May 16, 2025
• Docket: 24-1619
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1619

JAMES DOE, Individually and as Natural Parent and Next Friend of John Doe; and JANE DOE, Individually and as Natural Parent and Next Friend of John Doe,

Plaintiffs, Appellees,

v.

RHODE ISLAND INTERSCHOLASTIC LEAGUE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Gelpí, Lynch, and Howard, Circuit Judges.

Amy B. Yarbro, with whom Jessica M. Savino and Morrison Mahoney LLP were on brief, for appellant.

Scott R. Eldridge, Erika L. Giroux, and Miller, Canfield, Paddock & Stone, PLC on brief for The Michigan High School Athletic Association, amicus curiae.

Bennett L. Cohen, Russell S. Jones, Jr., and Polsinelli PC on brief for National Federation of State High School Associations, amicus curiae.

James A. Ruggieri and Higgins, Cavanagh & Cooney, LLP on brief for Pennsylvania Interscholastic Athletic Association, Inc., amicus curiae. Kevin W. Stone, Jr., with whom Robert Clark Corrente and Whelan Corrente & Flanders LLP were on brief, for appellees.

Mark C. Hadden on brief for Disability Rights Rhode Island, amicus curiae.

May 16, 2025 HOWARD, Circuit Judge. After repeating his freshman

year of high school, plaintiffs-appellees' son John Doe asked the

Rhode Island Interscholastic League ("the League") to waive its

eight-semester limit on participation in interscholastic athletics

so that he could continue to play competitive sports in his senior

year. Doe asserted that such a waiver was a necessary and

reasonable accommodation under Titles II and III of the Americans

with Disabilities Act ("ADA") for his several psychological

disabilities. After the League refused, Doe obtained a permanent

injunction allowing him to play through the end of the 2024-2025

academic year. Because Doe's ineligibility under the League's

rules is unrelated to his disability, and allowing him to play in

violation thereof would fundamentally alter the League's

interscholastic athletics program, we vacate the district court's

injunction.

I.

To the extent that they align with the record, we draw

the facts from the district court's opinion. See Dudley v.

Hannaford Bros. Co., 333 F.3d 299, 301 (1st Cir. 2003).

A.

Competitive extracurricular athletics demand

considerable coordination among participating schools and their

teams. Nationally, about ninety percent of high schools belong to

an athletics association in their state, each of which promulgates

- 3 - the rules and regulations critical to managing this necessarily

collaborative endeavor among its member-schools. In Rhode Island,

this work is done by the League, a non-profit body made up of

public, private, and parochial high schools that voluntarily opt

into membership. More than seventy high schools in Rhode Island

participate, collectively offering athletics programs in thirty

sports. Much like its counterparts in neighboring states, as

described in its mission statement, the League exists to centrally

"supervise and administer" these "athletic programs, contests, and

schedules" across the participating schools and thereby provide

"governance and leadership" for those programs. The League aims

to do so in accordance with governing values such as "fair play

and honorable competition" as well as "good sportsmanship and

ethical conduct." Among its many subsidiary objectives, the League

specifically aims to "promote even competition and maximum

participation" across Rhode Island's high school sports programs.

Consistent with this mission, member-schools rely on the

League to "formulate minimum uniform and equitable standards of

eligibility that must be met by students" to participate in their

athletics programs. This centralized governance model helps to

ensure that competition between the member-schools' teams is

"fundamentally fair and equitable" and that the member-schools

enjoy a "harmonious relationship" notwithstanding their

competitive posture. The League's eligibility requirements

- 4 - provide that students must enroll in the school for which they

play (with exceptions for those at certain technical schools and

qualifying home schools), be enrolled in or have completed the

ninth grade, be younger than nineteen years of age as of September

1 of the relevant academic year, maintain passing marks in at least

sixty percent of their contemporaneous courseload, and complete a

"pre-participation athletic physical." Relevant here, the League

has an Eight-Semester Rule ("the Rule"), which limits the duration

of students' eligibility: "Once a student enters the 9th grade,

whether in a junior high school or a four-year high school, that

student is limited to eight (8) consecutive semesters of

eligibility and automatically becomes ineligible for athletic

competition four years from the date of entry into the ninth

grade."

Students who are ineligible according to the League's

rules may request a waiver, which the rules describe as

"exceptional and extraordinary relief." The review process that

the League provides for such waivers is tripartite. First, the

League's Executive Director makes an initial determination on

whether to grant a requested waiver. Next, if the Executive

Director issues "[a] negative decision," that decision may be

appealed to the League's Waiver Request Hearing Committee ("Waiver

Committee"), which consists of four high school administrators and

the "Chairperson" of the League's Principals' Committee on

- 5 - Athletics ("Principals' Committee"). "A majority vote of the

members present" at one of the Waiver Committee's triannual

hearings is required to decide an appeal. Finally, a decision by

the Waiver Committee may be appealed again to the Principals'

Committee itself, which, "[i]n extenuating circumstances, which

would cause undue hardship," may waive an eligibility rule if

approved "by 60% of the members of the [Committee] present and

voting."

B.

John Doe has been a student-athlete since elementary

school. He began playing basketball as early as the second grade,

and by the third or fourth grade, he picked up baseball, both of

which he continued to play in middle school. In the seventh and

eighth grades, Doe added flag football to the mix as well.

Doe enrolled at a parochial high school in Rhode Island

as a freshman in the fall of 2020. The COVID-19 pandemic delayed

the high-school phase of Doe's athletic career, as the parochial

school did not offer extracurricular sports that fall. Like many

at that time, Doe's parents lamented the resulting lack of

"camaraderie and connectedness to the community" and that Doe "felt

really disconnected." As the pandemic abated, however, Doe's

athletic career resumed; later that academic year, he played

"abbreviated" seasons of basketball, football, and track. Doe

also performed well academically at the parochial school,

- 6 - averaging eighty-nine percent grading in his freshman year.

Nonetheless, he began to meet with a tutor to mitigate some

shortcomings in his performance identified by his teachers.

The next academic year, 2021-2022, to get "the benefit

of community, more personalized attention, . . . more structure,

and a little more independence," as well as an in-person learning

experience, Doe's parents transferred Doe to an out-of-state

boarding school. In doing so, Doe's parents elected to enroll him

as a freshman at the boarding school, "reclassifying" him such

that he repeated the ninth grade. This decision was advised by

their boarding-school consultant to ensure that Doe would "have a

full four-year experience at the boarding school" with the benefit

of "a little more maturity and preparation" for its academic rigor.

In his reprised freshman year there, Doe played a sport every

season: football in the fall, basketball in the winter, and

lacrosse in the spring.

Doe ended the 2021-2022 academic year at the boarding

school with strong grades overall. Even so, according to him and

his father, Doe struggled socially and academically, earned lower

grades than he had at the parochial school, lost a significant

amount of weight, and began to exhibit symptoms of a depressive

disorder. The following summer, Doe was diagnosed with anxiety,

depression, Attention-Deficit/Hyperactivity Disorder ("ADHD"),

and several other learning disorders. Doe's parents elected to

- 7 - transfer Doe back to Rhode Island, this time to a different private

school than the one he attended in the 2020-2021 academic year.

Because by this point Doe had only completed his "freshman" year,

albeit twice (at the parochial school and again at the boarding

school), he began the 2022-2023 academic year as a sophomore. He

also received an Individual Support Plan ("ISP") and other academic

accommodations that fall (such as, e.g., being afforded extended

time on standardized tests). His wellbeing improved at the private

school, where he played varsity football and basketball that fall

and winter, respectively.

During the summer of 2022, in conversations with the

private school's athletics director shortly before Doe enrolled,

Doe's parents became aware of the Rule and its applicability to

Doe. By the Rule's terms, Doe would be ineligible to play sports

in his senior year at the private school, as he had entered the

ninth grade at a member-school of the League (the parochial school)

in the fall of 2020 and would complete eight consecutive semesters

from that point as of the spring of 2024, the end of his junior

year at the new private school. Also a member-school of the

League, the private school was subject to the Rule and therefore

prohibited from allowing Doe to play competitive sports in what

would amount to his fifth year of high school.

In March 2023, Doe's parents formally requested an

eligibility waiver of the Rule from the League "for his senior

- 8 - year, the 2024-2025 academic year." In a letter from their

attorney, Doe's parents styled the request as one for a reasonable

accommodation under the ADA, asserting that "[his] disabilities

are the sole reason for the request," and that "if [he] did not

have the undiagnosed learning disabilities, he would have been

able to stay at [the parochial school] or another [Rhode Island]

school and there would be no need for a waiver." In support of

their request, Doe's parents appended written statements from Doe

and themselves, a letter from his tutor, a psychoeducational

evaluation report, his report cards from the three schools he had

attended, and various transfer application materials.1

The Waiver Committee held a hearing in April 2023, during

which they heard testimony from Doe, both of his parents, their

attorney, and the private school's athletics director. In addition

to the documents submitted with the waiver request, the Waiver

Committee reviewed Doe's submitted medical records, his ISP, and

letters from his psychiatrist and the private school's Director of

Wellness. A few days later, the Waiver Committee issued a decision

1 The League does not contest on appeal that Doe was disabled as of the time he submitted this waiver request. It does point out, however, that Doe's learning disability did not prevent him from playing sports and that, at least in his initial years of high school, it apparently did not prevent him from getting good grades either. For instance, the records from the boarding school show that he finished the year with three "honors with commendation" grades, two "high pass with commendation" grades, one "high pass" grade, and one "satisfactory" grade.

- 9 - unanimously denying Doe's request, concluding that "the

documentation and testimony presented did not establish an

academic or athletic hardship to perform a waiver" of the Rule.

Doe appealed the decision to the Principals' Committee.

The Principals' Committee held another hearing in August 2023, at

which the same individuals testified and the same exhibits were

submitted as before the Waiver Committee, with the addition of

another letter from Doe's psychiatrist, a letter from his primary

care physician, and documentation of his standardized testing

accommodations. The Principals' Committee unanimously affirmed

the denial of the waiver in September 2023, agreeing with the

Waiver Committee that "the documentation and testimony presented

did not establish an academic or athletic hardship to support a

waiver" of the Rule.

C.

Following the League's denial, Doe filed this action in

the District of Rhode Island in October 2023. The complaint

alleged that the League's refusal to grant Doe a waiver of the

Rule violated Titles II and III of the ADA. Doe sought declaratory

relief and an injunction to prevent the League from enforcing the

Rule against him. Following a brief discovery period and written

submissions, the district court held a hearing on Doe's motion for

injunctive relief in April 2024.

- 10 - Shortly thereafter, the district court issued an order

granting the permanent injunction, concluding that all four

factors considered in deciding whether to grant one -- actual

success on the merits, irreparable harm, the balance of equities,

and the public interest -- weighed in Doe's favor. Doe v. R.I.

Interscholastic League, 735 F. Supp. 3d 99, 108-18 (D.R.I. 2024).

Relevant here, the district court limited its analysis of the

merits to the elements of an ADA claim disputed by the parties:

whether Title II applied to the League, whether Doe's waiver denial

was caused by his disability, and whether his requested

accommodation was reasonable. Id. at 110. As to the first, the

district court -- reasoning by analogy to other courts'

application of Title II to athletics associations in other

states -- concluded that the League is an "instrumentality of the

state" and thus a "public entity" subject to Title II. Id. at

110-11. Next, the district court found that even though Doe's

disability was not the cause of his transfer to the out-of-state

boarding school, it was the cause of his second transfer from there

to the second Rhode Island private school. Id. at 111-13. Doe's

disability was therefore the but-for cause of his waiver's denial,

according to the district court, since "he would have completed

his time at the boarding school and played sports through his

senior year" "[h]ad [he] not been suffering from anxiety,

depression, and ADHD, among other impairments." Id. at 113.

- 11 - Finally, the district court reasoned that the waiver of the Rule

that Doe sought was "a reasonable accommodation because doing so

is necessary to afford [him] access to competitive sports" and the

League did not show that it was either an "essential aspect" or a

"'peripheral' rule" that disadvantaged other students. Id. at

113-16 (quoting PGA Tour, Inc. v. Martin, 532 U.S. 661, 682-83

(2001)). Finding that a waiver would be a reasonable accommodation

under both Titles II and III, the district court granted Doe's

request for a permanent injunction permitting him to play

competitive sports in contravention of the Rule during his fifth

year of high school. Id. at 118.

The League appeals.

II.

"A district court's decision to grant a permanent

injunction involves factual, legal, and discretionary components.

We therefore apply different standards of review[.]" Esso Standard

Oil Co. v. López-Freytes, 522 F.3d 136, 142 (1st Cir. 2008). While

"questions of law are reviewed de novo," "the scope of the

injunction is reviewed for abuse of discretion," id., and

"[f]actual findings are reviewed for clear error," Healey v.

Spencer, 765 F.3d 65, 73 (1st Cir. 2014). In other words, we will

only vacate a district court's injunctive relief on factual grounds

where the record does not support a necessary factual finding made

- 12 - by the district court. See Contour Design, Inc. v. Chance Mold

Steel Co., 693 F.3d 102, 109-12 (1st Cir. 2012).

For a district court to grant a permanent injunction,

the plaintiff must show (1) "actual success on the merits of its

claims;" (2) that he/she "would be irreparably injured in the

absence of injunctive relief;" (3) that the harm suffered "from

the defendant's conduct would exceed the harm to the defendant

accruing from the issuance of an injunction;" and (4) that "the

public interest would not be adversely affected by an injunction."

United States v. Mass. Water Res. Auth., 256 F.3d 36, 51 n.15 (1st

Cir. 2001). On appeal, the League rests its challenge on the first

prong, as to the actual merits of Doe's claims. We limit our

review accordingly.

In his complaint, Doe alleged that the League violated

both Titles II and III of the ADA by "denying [his] request for a

waiver of the Eight-Semester Rule," which he asserts is a

"reasonable accommodation" for his disability.2 Titles II and III

respectively provide for claims premised on a failure of a public

entity (Title II) or place of public accommodation (Title III) to

make reasonable accommodations for the plaintiff's disability. To

2 While the League contested Title II's application to it below, see Doe, 735 F. Supp. 3d at 110-11, for purposes of this appeal it does not dispute the district court's finding that Title II applies, so we assume the same.

- 13 - bring a reasonable-accommodation claim under Title II, a plaintiff

must establish:

(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.

Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000)

(citing 42 U.S.C. § 12132). Title II defines a "qualified

individual with a disability" as:

an individual with a disability who, with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2). Under Title III, meanwhile, a

reasonable-accommodation plaintiff must make the "six-part

showing" that:

he comes within the protections of the ADA as a person with a disability . . . [;] that the defendant's establishment is subject to the mandates of Title III as a place of public accommodation . . . [;] that the defendant has a discriminatory policy or practice in effect; that he (the plaintiff) requested a reasonable modification in the policy or practice which, if granted, would have afforded him access . . . ; that the requested modification -- or a modification like it -- was necessary to afford that access; and that the defendant nonetheless refused to modify the policy or practice.

- 14 - Dudley, 333 F.3d at 307 (citing 42 U.S.C. §§ 12102(2), 12181(7),

12182(b)(2)(A)(ii)).

Although Titles II and III differ in respects not germane

to this appeal, the standards for the overlapping elements of

reasonable-accommodation claims under them are the same. See Mary

Jo C. v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 153 (2d Cir.

2013) (noting that courts "apply[] [the] same standard in Title

III case[s] as under Title II" for reasonable-accommodation

claims). We thus analyze Doe's claims under the two sections in

tandem, referring to them collectively as his

"reasonable-accommodation claim."

Relevant here, both Titles II and III require that the

plaintiff show (1) a causal nexus between his disability and his

exclusion by the defendant and (2) that the accommodation he sought

for his disability was reasonable. See Parker, 225 F.3d at 5;

Dudley, 333 F.3d at 307. We consider each in turn, concluding

that Doe's claim fails on both accounts.3

3The parties dispute whether the district court found the Rule facially violative of the ADA in light of the district court's comment in a footnote that "the Rule does not appear to comply with the ADA" and that the "face and application of the waiver rules appear flawed." See Doe, 735 F. Supp. 3d at 113 n.14 (emphasis added). Given Doe's specification in his complaint that "the Eight-Semester Rule is facially non-discriminatory"; the complaint's assertions only that the Rule "is unlawful, discriminatory, and violative" "as applied"; the district court's acknowledgment at the motion hearing that "the complaint is very specific that it is an as-applied challenge and not a facial challenge"; and the court's preface in its opinion that Doe alleged

- 15 - A.

Titles II and III employ different statutory language to

describe their requisite causation standards: Title II prohibits

discrimination "by reason of" disability, 42 U.S.C. § 12132, and

Title III bans discrimination "on the basis of" disability, id.

§ 12182(a). Under both Title II and Title III, the burden is on

the plaintiff to show that the disability is the cause-in-fact, or

"but-for" cause, of the plaintiff's exclusion.4 See Finley v.

an as-applied challenge, see id. at 108, we read this footnote to contain the district court's passing observation, not a holding on which its imposition of the injunction relied. See Mun. of San Juan v. Rullan, 318 F.3d 26, 28-29 (1st Cir. 2003) (discussing treatment of a "district court's editorial comments" as "mere dicta").

To the extent that the district court meant to find that the Rule facially violates the ADA, we disagree. As the Supreme Court has held, a facial challenge lies only where a plaintiff "'establish[es] that no set of circumstances exists under which the [law] would be valid,' or he shows that the law lacks a 'plainly legitimate sweep.'" Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024) (alterations in original) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008)). Doe has not made such a showing here. Indeed, like the age restriction that confronted the Sixth Circuit in Sandison v. Michigan High School Athletic Association, 64 F.3d 1026, 1032-33 (6th Cir. 1995), the League's Rule is facially neutral and applies equally to both disabled and non-disabled individuals, as does the League's waiver process. Moreover, there is no evidence in the record that application of either has had a disparate impact, and the Rule does not impose additional criteria making it more difficult for disabled persons to obtain waivers or other accommodations.

4 We note that other circuits have also treated the standards as equivalent. See McPherson v. Mich. High Sch. Athletic Ass'n, 119 F.3d 453, 459-61 (6th Cir. 1997); A.H. by Holzmueller v. Ill. High Sch. Ass'n, 881 F.3d 587, 592-93 (7th Cir. 2018).

- 16 - Huss, 102 F.4th 789, 823 (6th Cir. 2024) ("[T]he plaintiff must

prove that his disability caused the defendant's discriminatory

behavior -- the "but-for" cause for ADA claims . . . ."); Crane v.

Utah Dep't of Corr., 15 F.4th 1296, 1313 (10th Cir. 2021)

("We . . . join[] our sibling circuits in holding the ADA merely

requires the plaintiff's disability be a but-for cause (i.e., 'by

reason of') of the discrimination . . . ."); Haberle v. Troxell,

885 F.3d 170, 179 (3d Cir. 2018) ("[I]f the arrestee's disability

was a 'but for' cause of the deprivation or harm he suffered, then

the fourth element of an ADA claim has been met."); Wis. Comm.

Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 755 (7th Cir.

2006) ("Framed by our cases as a causation inquiry, this element

is satisfied only when the plaintiff shows that, 'but for' his

disability, he would have been able to access the services or

benefits desired.").5

The Supreme Court has recently reaffirmed, in

unequivocal terms, the longstanding principle that a given

condition or event is only a but-for cause of a subsequent outcome

when the condition or event is a necessary step to produce that

Indeed, other circuits have concluded the same with respect 5

to Title I, which contains a similar turn of phrase. See 42 U.S.C. § 12112(a) ("No covered entity shall discriminate against a qualified individual on the basis of disability" (emphasis added)); Akridge v. Alfa Ins. Cos., 93 F.4th 1181, 1192 (11th Cir. 2024) (collecting cases in the Second, Fourth, Ninth, and Eleventh Circuits).

- 17 - outcome. Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020); see

also But-For Cause, Black's Law Dictionary (12th ed. 2024) ("The

cause without which the event could not have occurred."); cf. Med.

Marijuana, Inc. v. Horn, 145 S. Ct. 931, 945 (U.S. Apr. 2, 2025)

("Time and again, we have reiterated that . . . 'by reason of'

language demands 'some direct relation between the injury asserted

and the injurious conduct alleged.' The key word is 'direct';

foreseeability does not cut it." (citation omitted) (quoting

Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992))). Of

course, a causal chain may consist of a sequence of necessary

conditions or events, resulting in multiple but-for causes, and a

but-for causation standard can therefore be "sweeping" by virtue

of the many causes that it encompasses. Bostock, 590 U.S. at

656-57. Nonetheless, not all factors that may affect an outcome

are but-for causes; others, such as "motivating factor[s]," do not

count. See id. To distinguish which is which, the Supreme Court

has articulated a clear test: if the elimination of the event at

issue from the sequence of events would prevent the outcome

altogether, it is a but-for cause. Id. "In other words, a but-for

test directs us to change one thing at a time and see if the

outcome changes. If it does, we have found a but-for cause." Id.

at 656.

Here, the League based its denial of Doe's request for

a waiver of the Rule on its stated conclusion that his

- 18 - ineligibility was not because of his disability, but because he

voluntarily chose to repeat the ninth grade.6 The League argues

that, as such, Doe failed to establish the but-for causation

required under Titles II and III. To the contrary, the district

court reasoned that Doe established a "causal connection between

[his] disability and his inability to meet the requirements of the

Rule" because "[b]ut for his learning disability and related

conditions, [he] would not have transferred from the out-of-state

boarding school back to the Rhode Island private school" where he

again became subject to its restriction. Doe, 735 F. Supp. 3d at

113. On this record, however, we cannot agree with the district

court's conclusion that Doe's disability was a but-for cause of

his "inability to meet the requirements" of the Rule. See id.

We are mindful that a district court's findings of

factual causation underlying its injunctive relief are subject to

clear-error review. See Contour Design, 693 F.3d at 112. As to

Doe's first transfer, the district court considered his strong

academic performance at the parochial school, his application

The Waiver Committee considered and discussed the letter 6

from Doe's counsel stating that Doe sought a disability waiver based on his learning disability, and the Waiver and Principals' Committees' decisions both referred to it. Their use of the term "hardship" rather than "disability" is of no moment, and we do not share the district court's view that the Committees' word choice suggests that it "impose[d] additional criteria" beyond that permitted by the ADA. See Doe, 735 F. Supp. 3d at 113 n.14.

- 19 - materials to the boarding school, and his father's admissions that

"what drove the parents' decision to transfer [Doe] was the lack

of sports in the fall due to the pandemic, the lack of 'camaraderie

and connectedness in the community,' the limited communication

among [Doe] and his friends, and the implementation of remote

learning." Doe, 735 F. Supp. 3d at 112. The district court

further drew on testimony by Doe's father that Doe was reclassified

as a freshman upon arriving at the boarding school "so that he

could have a full four-year experience and receive the benefits of

having a little more maturity and preparation for what is a pretty

rigorous academic environment" to conclude that Doe "did not repeat

freshman year because of his learning disabilities." Id. (cleaned

up). We agree with the district court that this evidence

demonstrates that Doe's reclassification upon his first transfer

was unrelated to his disability.

Where we do identify clear error, however, is in the

conclusion that Doe's second transfer constituted a but-for cause

of Doe's ineligibility to play sports in his senior year at a

League member-school in Rhode Island. Of course, it is a

reasonable inference from the evidence that Doe did not "f[all]

under the jurisdiction of the League and its Eight-Semester Rule"

and thereby "face" his ineligibility until he transferred back

into the League's jurisdiction. See id. at 113. However, his

ineligibility to play sports in his rescheduled senior year at a

- 20 - member-school materialized as soon as he reclassified as a freshman

at the boarding school back in 2021 and thereby committed himself

to completing his senior year during his fifth year of high school,

regardless of where he did so. His subsequent choice to return to

a League member-school, regardless of the reason, had no bearing

on that result because by then, Doe's ineligibility to play within

the League during his senior year had already been cast in

concrete. In other words, the "outcome" -- Doe's ineligibility in

his fifth year of high school under the League's rules -- would

not "change" if the fact of his disability were removed from the

sequence of events. It is therefore not a but-for cause of his

ineligibility. See Bostock, 590 U.S. at 656.

This case is largely indistinguishable from others in

which plaintiff-students have exhausted their time to play

competitive sports in high school for reasons unrelated to their

disabilities, foreclosing their reasonable-accommodation claims

for lack of a causal link. See, e.g., Rhodes v. Ohio High Sch.

Athletic Ass'n, 939 F. Supp. 584, 592 (N.D. Ohio 1996) (finding

that student's disability did not cause his repetition of freshman

year upon transferring schools and therefore did not cause his

ineligibility under an eight-semester rule); cf. Pritchard v. Fla.

High Sch. Athletic Ass'n, 371 F. Supp. 3d 1081, 1084, 1087-88 (M.D.

Fla. 2019) (finding that student, who "already completed four

consecutive years" in high school athletics, did not show that his

- 21 - repetition of the tenth grade upon his disability-driven transfer

caused his subsequent ineligibility under four-year rule). As in

these cases, we look to whether the student's disability was the

but-for cause of the student's ineligibility under the program's

governing rules, not whether the disability motivated the student

to seek a waiver of these rules despite unrelated grounds for

ineligibility. To hold otherwise would permit a student to

circumvent non-disability-related ineligibility under a program's

rules by simply citing a disability as his/her motivation to

participate, even if his/her ineligibility bears no relationship

to the disability. Such a result would deprive the ADA's causation

requirement of meaning.7

For his part, Doe argues that in the absence of a waiver,

his disability prevents him from "play[ing] sports in his senior

year" because, essentially, his disability prevented him from

7 To reach the opposite result, Doe and the district court rely on the Seventh Circuit's decision in Washington v. Indiana High School Athletic Association, 181 F.3d 840 (7th Cir. 1999), and the District of Connecticut's decision in Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 94 F.3d 96 (D. Conn. 1996). We are unswayed by these outlier cases. The Seventh Circuit has declined to apply the Washington rule to highly similar facts, see A.H., 881 F.3d at 594, and no other circuit has cited its causation analysis approvingly. Similarly, while the Second Circuit dismissed the suit in Dennin as moot without reaching the merits and has not revisited its analysis of the rule at issue, see 94 F.3d 96, 100-02 (2d Cir. 1996), other district courts have found the opposite as to similar rules in the Second Circuit. See Reaves v. Mills, 904 F. Supp. 120, 120-22 (W.D.N.Y. 1995); Marshall v. N.Y. State Pub. High Sch. Athletic Ass'n, 290 F. Supp. 3d 187, 207-13 (W.D.N.Y. 2017).

- 22 - reaching his senior year at the out-of-state boarding school, where

he would have played sports each year if he had remained there for

four years. But this argument manipulates the terminology for

academic classifications to obscure the simple semester count

underlying his ineligibility. Doe's disability did not prevent

him from playing sports during his fourth year at a member-school

of the League. To the contrary, if Doe had remained within the

League's jurisdiction upon his first transfer and done so without

reclassifying, his "senior" year would have occurred in his fourth

year of high school regardless of his disability, and the Rule

thus would not have prevented him from playing in his "senior"

year. Rather, Doe seeks to play sports for a fifth year under the

League's jurisdiction, even though, as the district court found,

his choice to reclassify and thereby delay his "senior" year to

his fifth year of high school had nothing to do with his

disability. The ADA does not provide the runway for gamesmanship

that a contrary holding here would seem to countenance.

In sum, we identify clear error in the district court's

consideration of subsequent events to Doe's first transfer in

analyzing the cause of his ineligibility. Stripped of that

consideration, Doe's reasonable-accommodation claim fails for his

inability to establish the requisite causation under the ADA.

- 23 - B.

Even if Doe could establish a causal link between his

disability and the denial of his waiver request, his

reasonable-accommodation claim fails for another reason: the

accommodation he seeks, waiving the Eight-Semester Rule despite

having had an opportunity to play high school sports for eight

semesters, would constitute a "fundamental alteration" of the

League's athletics program.

Under Titles II and III, a defendant need not grant a

requested accommodation where it would "fundamentally alter the

nature" of the activity.8 Kiman, 451 F.3d at 283 (Title II);

Martin, 532 U.S. at 682 (Title III). In Martin, the Supreme Court

articulated two ways that requested modifications of the rules

governing a competitive sport could amount to fundamental

alterations. 532 U.S. at 682-83. First, a requested modification

8 A fundamental-alteration defense under Titles II and III is akin to, but distinct from, an undue-burden defense. See Sosa v. Mass. Dep't of Corr., 80 F.4th 15, 32-33 (1st Cir. 2023). Because a defendant may overcome a reasonable-accommodation claim based on either, we examine Doe's proposed accommodation through the fundamental-alteration lens applied by the district court.

This is not to say that Titles II and III are identical as to the undue-burden analysis, however. Title II provides for a formal undue burden defense, see Toledo v. Sánchez, 454 F.3d 24, 32 (1st Cir. 2006), while Title III does not (except in limited circumstances involving the provision of "auxiliary aids and services," 42 U.S.C. § 12182(b)(2)(A)(iii)), although considerations of burdensomeness can factor into the reasonableness analysis, see Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 154 (1st Cir. 1998).

- 24 - that "alter[s] such an essential aspect of the game . . . that it

would be unacceptable even if it affected all competitors equally"

could constitute a fundamental alteration. Id. at 682. Second,

"a less significant change that has only a peripheral impact on

the game itself" but nonetheless gives the player with a disability

"an advantage over others" that "fundamentally alter[s] the

character of the competition" may be sufficient. Id. at 681-82.

Here, the district court concluded that the Rule is not an

"essential aspect" of competition in the League. Doe, 735

F. Supp. 3d at 114-16. Even affording appropriate deference to

this finding by the district court, see Contour Design, 693 F.3d

at 112, this was error.9

The record compels the conclusion that the Rule is

essential to competitive high school sports in Rhode Island and

that Doe's requested accommodation constitutes a fundamental

alteration to the League's interscholastic athletics program. The

League's mission is "to provide educational opportunities for

students through interscholastic athletics." In service of this

mission, the League describes the purpose of its rules as, inter

alia, to "promote even competition and maximum participation."

The district court went on to analyze whether, as a 9

"peripheral rule," the Rule unfairly advantages Doe or his team over others or otherwise upsets competition in the League. Id. at 116. Concluding that the Rule is essential to the League's activities, however, we do not reach this question.

- 25 - Relatedly, counsel for the League emphasized at the district

court's motion hearing that, in addition to promoting "harmony"

between different high schools, the Rule serves the purpose of

"preventing displacement" -- that is, preventing abnormally older

students from depriving their younger peers of opportunities to

play that they would otherwise enjoy. And indeed, the League's

articulations of the Rule's purpose correspond with the rationale

for eligibility rules promulgated by the National Federation of

State High School Associations ("NFHS"), of which the League is a

member. In its handbook, which provides template rules and

guidance to state-level associations like the League, the NFHS

states that:

A maximum participation requirement promotes harmony and fair competition among member schools by maintaining equality of eligibility. Each student is afforded the same number of semesters of athletics eligibility, which increases the number of students who will have an opportunity to participate in interscholastic athletics.

National Federation of State High School Associations, 2023-24

NFHS Handbook 21 (2023), https://www.nfhs.org/media/7212441/2023-

24-nfhs-handbook_w-cover.pdf [https://perma.cc/F89P-VUTC]. Read

in light of this guidance, the League's Rule displays paramount

attention to its mission to "provide educational opportunities" to

the "maximum" number of students possible, since as a simple matter

of arithmetic, its constraint on any single student's eligibility

- 26 - to a finite number of playing opportunities enables more students

to receive those opportunities.10 Without the Rule, a student in

a ninth or tenth semester of high school could consume the playing

time otherwise available to students on the same team, as well as

truncate the seasons of other teams that lack the same maturity

advantage, directly undermining the League's pedagogical mission.11

The Sixth Circuit considered a nearly identical set of

circumstances in McPherson v. Michigan High School Athletic

Association, 119 F.3d 453, 461-63 (6th Cir. 1997). There, the

plaintiff sought a waiver of a similar eight-semester limitation

from Michigan's analogue to the League, asserting that he should

10District courts in other circuits have identified the same core purposes in similar eight-semester rules. See Starego v. N.J. State Interscholastic Athletic Ass'n, 970 F. Supp. 2d 303, 306 (D.N.J. 2013); Marshall, 290 F. Supp. 3d at 211.

11 We emphasize the significance of the distinction between this "aspect" of the League's program, which performs a quasi-educational purpose, with that of the PGA Tour's golf tournaments in Martin, which do not. See generally Martin, 532 U.S. at 682-88. In Martin, the Supreme Court examined the requirement that players walk between holes in light of the "fundamental character of the game of golf" -- in other words, the extent to which that walking requirement interfered with "shotmaking," the "essence of the game." Id. at 683. Here, the district court incorrectly narrowed the fundamental-alteration inquiry. In Martin, the Supreme Court focused on the rules of play for the game of golf because the proposed accommodation narrowly applied to those rules. See 532 U.S. at 682-85. By contrast, here, the proposed accommodation implicates the League's rules for the whole of its interscholastic athletics program and must be analyzed in light of the objectives served by that program writ large, not merely the objectives of the individual sports that it facilitates.

- 27 - be permitted to play sports for his ninth and tenth semesters of

high school as a reasonable accommodation of his disability after

it caused him to repeat the eleventh grade. Id. at 455-56. The

Sixth Circuit vacated the district court's injunction in the

plaintiff's favor. Id. at 464. Drawing on its parallel prior

holding regarding age-based restrictions, the Sixth Circuit noted

that Michigan's eight-semester limitation is "necessary" because

its removal would, in part, "inject[] into competition students

older than the vast majority of other students." Id. at 462

(quoting Sandison v. Mich. High Sch. Athletic Ass'n, 64 F.3d 1026,

1035 (6th Cir. 1995)). The Sixth Circuit explained that this

distortion would raise many of the same concerns acknowledged and

dismissed by the district court here: ensuring competitive parity

by limiting "the level of athletic experience and range of skills

of the players in order to create a more even playing field" for

students, protecting students' safety by limiting their "size and

physical maturity," and avoiding "red-shirting." Compare id. at

461-62, with Doe, 735 F. Supp. 3d at 115. Perhaps most

importantly, the Sixth Circuit noted that waiving the limitation

would take from "players who observe the age-limit rule and the

eight-semester rule, presumably athletes of less maturity, a fair

opportunity to compete for playing time." McPherson, 119 F.3d at

461. Given the importance of these objectives in interscholastic

athletics, the Sixth Circuit reasoned, "[r]equiring a waiver of

- 28 - the eight-semester rule . . . would work a fundamental alteration

in Michigan high school sports programs." Id. at 462.

Faced with similar concerns here, we come to the same

conclusion as the Sixth Circuit and believe that granting Doe a

waiver of the Rule under these circumstances would fundamentally

alter the League's program in light of its mission. As in

McPherson, the League's eight-semester limitation is foundational

to the competitive parity that maximizes student participation in

high school sports in Rhode Island. See id. at 461-62. And, like

in Michigan, requiring the League to grant waivers to students on

the grounds present here would permit an unknown number of

students, so long as they satisfy the League's age restriction, to

leverage additional semesters' experience to the competitive

disadvantage of other students at their school and elsewhere in

the League. See id. Such a result would fundamentally undercut

the League's principal goal of maximizing the educational

opportunities available through interscholastic athletics to all

students.

Additionally, like the Sixth Circuit, we see "no

principled distinction between the nature and purpose" of this

Rule and age-based limitations on eligibility, which courts have

uniformly held to be an essential aspect of high school athletics

programs across the country. Id. at 461 (noting how age- and

grade-based restrictions work in tandem to achieve the same

- 29 - result); see Sandison, 64 F.3d at 1036-37; Pottgen v. Mo. State

High Sch. Activities Ass'n, 40 F.3d 926, 930-31 (8th Cir. 1994);

Reaves v. Mills, 904 F. Supp. 120, 123 (W.D.N.Y. 1995). We view

this case as part-and-parcel with those cases.

Finally, the essential nature of the eight-semester

limitation is further evidenced by the fact that, of the

thirty-four waivers of the Rule granted by the League in the last

ten years, not one permitted a student to play sports for more

than eight semesters. Rather, in every case, the student

requesting a waiver was prevented from playing anywhere for one or

more of their first eight semesters of high school due to

extenuating circumstances that precluded his/her attendance in

school.12 The students that benefitted from these waivers thus did

not gain the advantage of extra semesters' athletic training that

Doe did and therefore did not implicate the same risks to the

League's objectives as Doe's requested accommodation. And while

not dispositive, the League's consistent aversion to waiving the

The circumstances leading to these students' absences were, 12

in many cases, extreme. For example, one student was granted a waiver of the Rule because they were homeless "at times" and as a result too "sporadically enrolled" in school to participate during any prior semester. In another case, the League permitted a student to play beyond eight semesters because the student's sibling was murdered during the student's sophomore year, "resulting in severe mental issues" requiring "out-of-district placement to cope with his loss."

- 30 - Rule under circumstances like those here supports the conclusion

that the Rule is essential to the League's program.

Therefore, even affording the required deference to the

district court's "intensively fact-based inquiry" into whether an

individualized accommodation would constitute an essential aspect

of competition and therefore a fundamental alteration, Martin, 532

U.S. at 673 (quoting Martin v. PGA Tour, Inc., 204 F.3d 994, 1001

(9th Cir. 2000)), we conclude that its finding in the negative

here was clearly erroneous.13

III.

For the reasons stated, we conclude that Doe has not

established actual success on the merits of his

reasonable-accommodation claim. See Mass. Water Res. Auth., 256

F.3d at 51 n.15. We accordingly vacate the permanent injunction

and remand to the district court for further proceedings consistent

with this opinion. Costs to appellant.

13 We emphasize that Martin requires an analysis of whether the accommodation actually requested, not any requested accommodation under any circumstances, would work a fundamental alteration. See Martin, 532 U.S. at 683 ("We are not persuaded that a waiver of the walking rule for Martin would work a fundamental alteration in either [test]." (emphasis added)); see also A.H., 881 F.3d at 595-96 (holding that "A.H.'s accommodation requests are unreasonable" under Martin and that requested accommodation of "lower[ing] the qualifying times for State by creating a new division of runners would fundamentally alter the essential nature" of track-and-field meets).

- 31 -