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A modern tale: Ability and response ability

By Rick Burton and Norm O’Reilly

A lot of fairy tales start with the words, “Once upon a time.” It’s an immediate signal the stirring fable or cautionary tale to follow will provide a protagonist’s journey filled with near-insurmountable obstacles. Almost always, the hero saves the day.

 

Here’s hoping that premise holds up in the short bedtime story we’ve created about the NCAA and its obligations to student athletes with disabilities.

Once upon a time there was a strong and powerful association that represented all the fairest universities in the land. And unto those respective halls of knowledge and scholarly research, scores of young men and women traveled from their homes to live, learn, explore, and frolic at those institutions.

Many who entered these ivy-covered kingdoms came to look back on this time as the best days of their lives and at many of the nation’s castles, from August to June of every calendar year, there was mead for quaffing and weekly jousting matches.   

In fact, one specific subset of those entering these ivory-towered palaces came for the lure of those very athletic competitions. If these sojourners were good enough, they were showered with benefits including free or reduced tuition, room, board, clothing, elite coaching, and, sometimes, cash. Athletes, it seemed, were the fairest of the fair.

For many years, the kingdom was never challenged by outside threats but in 1972 a federal entity, a fire-breathing eagle, appeared before the association’s gates demanding that every kingdom receiving protective or lucrative benefits from the giant bird provide equal opportunities for women to participate in the jousting. Up to this point, only men had received preferential treatment.

The association’s lords grumbled at the eagle’s demands but after much wailing and gnashing of teeth, they eventually provided women opportunities to play many of the same games as the men. This made almost everyone happy (although there were still gross inequalities).

A year later, however, in 1973, the fire-breather came again to the fortress’s gates and demanded equality for competitors with impairments. This was called Section 504 of the 1973 Rehab Act (the eagle was very bureaucratic). Section 504 was implemented because the avian believed (in the words of law professor Samuel Bagenstos) that “society’s institutions and structures [had] been designed without people with disabilities in mind, and justice requires society make changes to include them fully in the life of the community.”

The castle lords were again not pleased because, in simple terms, Section 504 was the first disability civil rights law enacted to prohibit discrimination against people with disabilities in programs (i.e., universities) receiving federal financial assistance. This decree was ultimately disseminated across the land with the 1990 enactment of the Americans with Disabilities Act (later amended in 2008).

Back in 1973, the association was stunned by the eagle’s insouciance. Hadn’t the association’s efforts for women been enough? Where did the winged beast get off believing all were equal?

Section 504 (which later led to a “Dear Colleague” letter in 2013 — the eagle was often formal in addressing the kings and queens of the castles), was a problem. It would prove expensive. It wasn’t practical. The jousting competitions showed the palace could rake in large sums selling tickets, T-shirts and TV rights.

How could the royalty monetize wheelchair jousting or blindfolded quintains? The eagle was going too far. Wizardry and magic spells were needed.

What if, said one of the court’s jesters, we ignored the eagle? We’ll say (in public) that we’ll try, but the request is hard, and it will take a long time to speak clearly (wink, wink) with our distant, feudal lords. Perhaps, said the joker, if we stall long enough, the eagle will get distracted and go away.

Certainly, the lords believed, athletes with impairments will not rise in revolt or scale our walls. They are, after all, people with disabilities. Perhaps, if we play this right, we won’t have to do anything.

And so it went.

1973 became 1993 which became 2013 and while the Paralympics, a group not governed by the association, grew mightily in stature, the association continued ignoring the fire-breathing beast, which, just as had been hoped, had wandered off and gotten distracted fighting foreign wars.

The result? For nearly five decades, university enrollees with disabilities found few inclusive opportunities to join in the kingdom’s favorite events.

But lo, it came to pass that as the calendar year 2021 drew to a close, a movement, a murmur of dissent, was detected at the lip of the castle drawbridges. At the association’s fortress in Indianapolis (indeed a strange place for a fort), early warnings and demands were emerging from the athletes participating in the Paralympics. They were telling their university brothers and sisters to rise in rebellion.

The association, distracted by three scaly dragons known as NIL, Alston, and constitutional reform, was trapped inside its castle. It could not see a way to save the day. All around it, disabled athletes, the ones who’d been ignored for nearly 50 years, were lighting their torches and advancing.

We’ll stop our story here and ask all the children to close their eyes. But as you yawn, ready to fall asleep, do you see two riders approaching? Heroes riding to save the day? Perhaps they will be there in your dreams.

Rick Burton is the David B. Falk Professor of Sport Management at Syracuse University and former CMO of the U.S. Olympic Committee. Norm O’Reilly is the dean of the University of Maine’s Business School and partner consultant at the T1 Agency in Toronto.

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