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accommodations. " Moreover, as cited by
the court, an " accommodation will be
deemed unreasonable if it would (1) fundamentally alter the nature of the service,
program, or activity, or (2) impose an undue hardship on the operation of the program. " 28 C.F.R. § § 35.130(b)(7), 41.53.
Under the circumstances of this case,
the federal appeals court found S.S. had
failed to allege sufficient facts to suggest
that " Defendants could have made reasonable accommodation for Plaintiff S.S.'s
disability. " Specifically, the court found
S.S. could not show that " she was otherwise qualified to meet all of the swim team
program's requirements. " In so doing, the
court acknowledged that " [a]n essential
requirement of a swim team participation
is that the swimmer must be able to swim
when called upon to do so. " In this particular instance, although S.S. was able to
swim, the federal district court found S.S.
was " unable to remain in the pool or enter
the pool when called upon by the swim
team coach " :
S.S. needed to exit the pool multiple
times during swim practices...Plaintiff
S.S. needed to exit the pool during two
swim team events, a time trial and a
swim meet. These incidents substantially interfered with Plaintiff S.S.'s ability to
swim when called upon to do so.

Further, the court found S.S. had not alleged any facts which would suggest that
defendants " could have made reasonable accommodations for Plaintiff S.S.'s

disability. " On the contrary, under the circumstances of this case, the court found
" [t]here is no reasonable accommodation
that a swim team coach could make for an
athlete who is suddenly and sporadically
afraid of the water and thus has to exit the
pool during practices and competitions. "
Plaintiffs allege that the anxiety attacks
that Plaintiff S.S. experienced in swimming pools induced in her a fear of
drowning. Plaintiffs further allege that,
due to this fear, they requested the accommodation of permitting Plaintiff S.S.
to exit the pool for indeterminate periods of time-on unannounced
occasions during practices and swim
competitions-to calm her nerves,
without being kicked off of the team.

Because " one of the essential requirements of swim team members is the ability
to enter, and remain in, the pool when required by the coach during practices and
competitions, " the court found " [t]o require
otherwise would fundamentally change
the nature of the swim team and thus be
unreasonable. " In so doing, the court noted that there were no facts suggesting that
" there was anything about Whitesboro
High School Girls' Swim Team practices
and competitions that differs from typical
such practices and competitions. " On the
contrary, the court found swim teams and
coaches typically require swimmers to:
(1) remain in the pool for extended periods of time during practice to gain
stamina and endurance, and (2) enter,

and remain in, the pool at the command of a starter during competitions,
subjecting themselves to disqualification if they fail to do so.

Moreover, in this particular instance,
the court found the following accommodations requested by S.S. had already
been provided by defendants:
Plaintiffs allege that the accommodation
they requested of Defendants was that
Plaintiff S.S. be permitted to exit the pool
for indeterminate periods of time-on
unannounced occasions during practices and swim competitions-to calm her
nerves, without being kicked off of the
team. Similarly, Plaintiffs argue in their
opposition papers that the accommodation sought was simply to allow Plaintiff
S.S. to get out of the pool in the event of
an anxiety episode.

In so doing, the court noted that there
were no alleged facts " suggesting that
there was any occasion when Plaintiff
S.S. was not allowed to get out of the pool "
when she experienced an anxiety attack.
Further, despite S.S.'s claims that she " experienced criticism and threats of being
kicked off the team " whenever she got out
of the pool, the court found S.S. had never
been " kicked off the team. " On the contrary, the court found S.S. had " quit the
team when she left school at some point
during the semester. "
Having found that S.S. had been provided requested accommodations and/or
she was not otherwise qualified to perform the essential functions of a swim
team member (i.e., staying in the pool),
the federal district court concluded that
S.S. had failed to allege sufficient facts to
support a claim of discrimination under
the ADA. As a result, the federal district
court dismissed S.S.'s lawsuit.
JAMES C. KOZLOWSKI, J.D., PH.D. ,
is an attorney and associate professor in
the School of Recreation, Health, and
Tourism at George Mason University in
Manassas, Virginia. Email: jkozlows@gmu.
edu. Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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