U.S. Department of Justice. ADA Home Page.
http://www.usdoj.gov/crt/ada/adahom1.htm
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Reasonable Accommodations for Swimmers with a Disability
The November 2002 issue of Swimming World featured an article about Hunter Scott, a 14 year-old boy with a left leg above-knee amputation. The article focused on the Scott family's legal action under the Americans with Disabilities Act (ADA) for the right to use a swim fin in competition. Hunter competes in a summer league where competition is conducted under USA Swimming rules, which do not permit the use of assistive devices. Editor Phil Whitten invited responses on this issue. I appreciate this opportunity to offer my perspective that swim fins and other assistive devices should not be allowed in competition. Under the ADA, places of exercise are required to make reasonable accommodations to permit access and participation by persons with a disability. Consistent with this provision of the ADA, USA Swimming has made tremendous strides to facilitate inclusion of swimmers with a disability. The governance structure includes an Adapted Swimming Committee. Guidelines for officiating swimmers with a disability are published in the USA Swimming rule book. How-to include educational brochures have been developed for swimmers and parents, coaches, officials, meet and safety directors, and local swimming committees. Recognition programs for swimmers with a disability include American records, the Scholastic All-American program, the Trischa Zorn Award and publicity of accomplishments. Swimmers with a disability are members of USA Swimming clubs across the country, and they are included in LSC meets, as well as some zone and sectional meets. To ensure opportunity for championship-level competition, USA Swimming conducts an annual long course disability championship meet. These accommodations have enabled access and participation by swimmers who are blind; swimmers who are deaf; swimmers with physical disabilities such as amputations, cerebral palsy, spinal cord injury and dwarfism; and swimmers with cognitive disabilities such as mental retardation, severe learning disabilities and autism spectrum disorders. Some of the participants in USA Swimming programs have very severe disabilities. A case in point is Jennifer Johnson, winner of the 2002 Trischa Zorn Award. Jennifer has severe athetoid cerebral palsy with coordination problems in both arms and legs that cause her to use an electric wheelchair for transportation, and she "speaks" using a communication board. Jennifer is a member of Peninsula Aquatics of San Diego. She practices daily with swimmers who do not have disability and she competes regularly in San Diego-Imperial meets, without the use of assistive devices. Jennifer and the San Diego swimming community have proven beyond doubt that USA Swimming programs can accommodate even those swimmers with the most severe disability. However, in the Georgia case, Hunter Scott requested further accommodation, specifically the right to use a swim fin in competition. The article by John Lohn suggested that Hunter needs the swim fin to "compete on level ground," achieve "the necessary balance for competition in freestyle and butterfly," and "allow him to kick with his right leg." According to Lohn, "the Scott family attempted to clarify that the flipper did not provide an advantage, nor did it act as a flotation device." Based upon these arguments, I believe that Hunter and his family are underestimating his ability and potential. Other swimmers with single-leg amputations compete at elite levels without the use of a swim fin. For example:
If Jarrett, Miki, and Natalie can succeed in competition with "able-bodied" swimmers and without fins or other assistive devices, perhaps Hunter can, too. Hunter may benefit from more training and coaching to develop better stroke technique and conditioning; more education in mental skills such as goal-setting, imagery and focusing that facilitate good performances in swimming; and continued support from his coaches and family. On the other hand, Hunter does not have control over height, muscle fiber types or other genetically-determined characteristics that contribute to swimming ability. The reason that Hunter needs to use a swim fin probably has more to do with one or some of these factors than his disability. It is difficult to argue for the swim fin accommodation in light of the accomplishments of other swimmers with similar disability. In fact, depending upon the skills of the swimmer, swim fins are likely to provide an unfair advantage over swimmers who do not have a disability because fins contribute to added propulsion. Hunter's legal arguments probably are based upon individual assessment, a provision of the ADA in which qualifications to participate and need for reasonable accommodations are determined on an individual basis. The ADA provisions related to individual assessment require that each person with a disability be treated as an individual case and not as a category of disability. It is unclear from John Lohn's article whether anyone did, in fact, conduct an individual assessment of Hunter's need to use the swim fin. However, the accomplishments of swimmers such as Jarrett, Miki and Natalie suggest that if an individual assessment is conducted, it should focus on a wide variety of factors that cause variance in swimming performances. Reasonable accommodations should be made only for disability-related factors, not lack of training, coaching, etc The ADA requires reasonable accommodations, but not to the extent of fundamental alterations to an activity or service. In my opinion, allowing fins and other assistive devices in competition represents a fundamental alteration of the sport of competitive swimming. Although assistive devices are useful adjuncts to training that allow the swimmer to isolate parts of the body for stroke technique or strength work, they are "artificial" methods of improving performance in competition that provide an unfair advantage to the user. Swimmers should earn achievements such as best times, records, rankings and awards through attention to stroke technique, intensive conditioning, effective use of mental skills, good nutrition, etc.—not from the use of assistive equipment. In this respect, the Hunter Scott case is quite different from the court decision which allowed Casey Martin to use a golf cart during PGA competition. The equipment/golf cart enables Casey to travel between holes, not to actually perform the skills of golfing. In contrast, using a fin causes a fundamental change in swimming competition. The use of assistive equipment in competition subverts the purpose of the ADA by extending the use of reasonable accommodations to winning, not just to situations where access or participation is compromised. There seems to be no doubt that Hunter Scott wanted the opportunity to win, or at least to advance to a higher level of competition. As Lohn commented, "All the Scott family wanted was the chance for Hunter to compete in the division championships with the aid of his flipper." The purpose of ADA is to provide access to the opportunities needed to achieve a productive and fulfilling life. ADA cannot and should not guarantee success in any achievement domain. Non-discrimination is a fundamental premise of the ADA. Allowing the use of assistive devices in competition actually contributes to rather than reduces discrimination. One outcome of equipment use is lowered expectations. The athlete may become reliant on the equipment, may come to believe that success is only possible with the use of equipment, and may, therefore, never develop skills to her/his full potential. Coaches who have limited expectations may not challenge the swimmer to acquire the optimal stroke technique and conditioning needed for success in the sport. And a swimming community with low expectations for swimmers with a disability may not provide the competitions, training camps, sports medicine services, travel opportunities, etc., that are afforded to swimmers who do not have disabilities. Lowered expectations are the antithesis of sport and competition, and swimmers with a disability are the big losers in this scenario. Furthermore, the swimmer with a disability who relies upon assistive equipment may develop a lower self-concept simply because she/he does not perform the sport in the same manner as other swimmers. The athlete may also lose respect from members of the swimming community, especially from teammates who may attribute performances to the equipment rather than to the athlete. Swimmers with a disability prefer to be recognized for their abilities, not their disabilities. I strongly encourage USA Swimming and other aquatic governing bodies to remain firm in the stance that assistive devices should not be allowed in swimming competition. Such equipment simply does not represent a reasonable accommodation for swimmers with a disability in competition. Jarrett Perry, 15
Mikhaila Rutherford, 14
Natalie du Toit, 19
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