Upholding our Innate Freedoms
Inclusion for Disabled Athletes
Evanston Township High School senior Aaron Holzmueller is an elite three-sport athlete who loves to run. He’s never missed a track meet in his high school career, but he’s going to miss one: the Illinois High School Association’s (IHSA) championship state meet. And he’ll miss it not because he lacks drive, dedication or athleticism, but because he has cerebral palsy, and the IHSA won’t accommodate him by creating a separate division for disabled athletes—for now.
“I will continue to fight for what is right, and what is right is that all high school athletes be allowed to compete,” Aaron said. “Disabled runners should have the same opportunities as any other athlete to try their hardest to make it to the state final competition.”
With Jenner & Block’s pro bono assistance, Aaron has advocated for his para-ambulatory peer athletes by accessing the legal system. In September 2015, he asked IHSA to establish separate qualifying times for certain races in its track program for para-ambulatory athletes. He also asked IHSA to create a para-ambulatory division for the Road Race, a 5-K race open to high school students across Illinois.
IHSA’s executive director denied his requests in October 2015, and the IHSA board affirmed the decision two months later. With Jenner & Block’s pro bono assistance led by Partner Louis Fogel, he then filed a lawsuit in federal court seeking injunctive relief. In July 2017, the district court granted summary judgment in favor of IHSA. Aaron appealed to the Seventh US Circuit Court of Appeals, and Partner Devi Rao argued the case in November 2017. Unfortunately, the Seventh Circuit’s majority affirmed the district court’s decision in early February 2018.
According to Louis, the result was frustrating particularly because other states have adopted state-qualifying time standards for para-ambulatory athletes that could similarly be adopted in Illinois. There are organizations in Illinois that “would be happy to” partner with IHSA to help develop those standards, he said. “All Aaron wanted was a meaningful opportunity to compete and although time may be running out for him as a senior, he has the opportunity to help other people down the road. Sometimes being the pioneer, you lay the foundation for people that come after you to enjoy the benefits,” Louis said.
Aaron’s parents agree. “We are grateful that Jenner & Block is helping us give voice to an important issue. This is a case all about inclusion and how we treat each other,” said Roberta “Birdy” Holzmueller. “We are so very proud of Aaron that he has the courage of his convictions.”
While Aaron and his team are considering their options moving forward, the issue remains in debate.
Although the Seventh Circuit affirmed the lower court’s decision, the court was divided, and Judge Ilana Rovner issued a strong dissent in the opinion. Allowing disabled athletes to compete in a separate division would no more undermine the competitive nature of the track-and-field program than does the current practice of allowing wheelchair athletes and male and female athletes to compete in separate divisions, Rovner wrote in her dissent.
“[T]he reality is that running a designated course and distance in the shortest period of time is not the essential nature of a track or road race,” she wrote. “It is running that race in the shortest period of time as compared to one’s peer group.”
Under IHSA’s reasoning, she wrote, either the separate divisions for wheelchair athletes and male and female athletes should not have been created, or the fundamental nature of the program has already been altered.
Also, allowing runners from smaller schools to compete in a separate division gives them an advantage—a smaller pool of competitors and, therefore, a greater likelihood of taking part in the state championship—for reasons not based on “immutable physical characteristics,” Rovner wrote.
Jenner & Block has a long history of advocating for disabled athletes, having represented Scot Hollenbeck in the 1980s in the first case in the country concerning the right for disabled students to compete on their school teams. Scot is an American wheelchair racer who competed at the Olympic and Paralympic level. He became a paraplegic at age 14 after being hit by a van while bicycling to swim practice.
While attending Rochelle Township High School in Rochelle, Illinois, he was a member of the school’s track-and-field team. As a sophomore, he was allowed to race in a wheelchair division. As the only wheeler, he often raced in mixed heats with runners; the wheeler and runner heats were scored separately. For his last two years of high school, however, the school barred him from competing in mixed heats with runners because of purported safety issues. Despite the fact that Scot trained every day with the runners in mixed practices, he was deemed “unsafe” during competition.
In 1987, with pro bono assistance from Jenner & Block and lead trial lawyers Partner Terri Mascherin and former partner Michael Brohman, Scot filed his historic, first-of-its-kind lawsuit against the school system. In late 1988, after he had graduated from the school, a federal judge ruled that school officials had violated his civil rights, as provided for in the Rehabilitation Act of 1973, by not allowing him to present his case. The judge did not rule on whether high school wheelchair athletes should be able to compete alongside or against their able-bodied peers.
Scot went on to graduate from the University of Illinois, attending on a sports scholarship. After graduation, Scot competed in four consecutive Summer Paralympics Finals from 1992 to 2004, winning a total of two gold and three silver medals in wheelchair racing events.
Failure to Provide Eye Exams
During his time at Stateville Correctional Center between 2006 and 2012, our client never received a comprehensive eye examination despite raising complaints about problems with his vision and headaches. The six-year delay in diagnosing and treating his glaucoma caused severe damage to his visual fields. He sought damages against Wexford Health Sources, Inc. and a former Wexford employee for inadequate and untimely medical care. At summary judgment, the firm team contended that Wexford’s failure to offer glaucoma testing to inmates at routine intervals recommended by Wexford’s own written guidelines, or any regular interval consistent with professional standards of care, created a serious risk of harm to inmates like our client. In May 2017, the team reached a very favorable settlement, the terms of which are restricted from publication by a protective order. The team included Partners Robert Byman and Jennifer Senior, Associate Roni Cohen and Senior Paralegal Theresa Busch.
Denied Adequate Medical CARE
Our client, Robert Holleman, has celiac disease. As an inmate at Wabash Valley Correctional Facility, he was provided for years with a satisfactory diet. But when he was temporarily transferred to Indiana’s Lake County Jail, he notified the jail that he needed a gluten-free diet. When he arrived at Lake County Jail, the medical director prescribed him a “restricted diet,” which consisted of an unidentifiable porridge-like mix. Holleman ate the mix and became violently ill. It was clear to him that the mix contained gluten, but when he complained to jail employees and asked for gluten-free food, he was repeatedly rebuffed. He chose to stop eating any food and go hungry rather than poison himself. Eventually, Holleman visited the infirmary. There, he met with the medical director and complained that he was suffering from symptoms consistent with celiac disease, but the medical director never modified his diet. Shortly after returning to Wabash, Holleman, appearing pro se, filed suit against the medical director as well as the Lake County sheriff and Lake County Jail food services director. In response, the medical director submitted a declaration to the court in which he stated that he did not determine meal menus, that the jail’s “restricted diet” was gluten-free, and that he never saw Holleman in the infirmary with complaints of celiac disease. As a pro se plaintiff, Holleman was unable to conduct discovery needed to refute the medical director’s declaration. The court granted the medical director’s motion for summary judgment and dismissed him from the case. Months later, District Court Judge Philip Simon appointed Partners Keri Holleb Hotaling and Anthony Borich to represent Holleman. The court allowed additional discovery. Through an in-depth investigation, the team uncovered the true story, including that the medical director rewrote some of the jail’s medical policies. The jail’s “restricted diet” consisted of a so-called Global Nutritional Mix that in fact contained gluten and had never been marketed as a gluten-free food. The team also discovered that, contrary to his declaration to the court, the medical director did determine meal menus, the jail’s restricted diet was not gluten-free, and Holleman did visit the medical director in the infirmary with complaints of celiac disease. Armed with those discoveries, Associate Daniel Epstein drafted a motion for reconsideration of the medical director’s dismissal. Anthony presented oral argument on the motion. The team prevailed. The court found: “[T]he issue in this case involves more than just ‘newly discovered evidence.’ It involves [the medical director] making misleading, inaccurate, and perhaps even false statements in his earlier declaration that led me to believe that certain facts were true, when it is now clear that they are not.” Ultimately, the sheriff, food services director, and the medical director entered into settlements with Holleman, the terms of which are confidential. Holleman said: “It isn’t often that prisoners find lawyers like you, who believe in their client’s case and who work for them as you did for me. Without you, I am sure that my case would have had a different result.” Associate Charles Carlin, Paralegal Wendy Belcher, and former associate Alisa Finelli, also provided important contributions throughout the case.
Our client suffered from mental health issues, and his life rapidly unraveled after a series of negative encounters with the Chicago Police Department. Troubles started when our client, who identifies as LGBT, was celebrating his birthday at a local bar and was beaten by a group of people. Police were called to the scene and our client tried to file a complaint, but no officer took his complaint. Our client then tried to lodge a complaint at a police station. Instead of accepting the complaint, an officer threatened violence and degraded the client. Our client eventually succeeded in filing his complaint. His case was assigned to a detective who failed to investigate the complaint. When the client persisted in requesting that the detective investigate his complaint, the detective taunted him, called him derogatory names, arrested the client and placed him in jail. Due to the trauma from the police encounters, our client became agitated and delusional to the point of losing his job and becoming homeless. The firm filed an amended 11-count complaint and aggressively pursued discovery. Eventually, they secured a settlement with the city that allowed the client to get off the street and back on his feet. The team included Partner Joel Pelz, Associate Elin Park, Staff Attorney Anthony Nguyen and Paralegal Cheryl Kras.
Fighting for the Right to Serve America in the Armed Forces
In July 2017, President Trump tweeted that the United States would not accept transgender individuals to serve in the armed forces. Several legal challenges ensued. One of those challenges was Jane Doe, et al. v. Donald J. Trump, et al. In that case, a firm team filed an amicus brief on behalf of medical, mental health and other health care organizations supporting the plaintiffs.
In October of that year, US District Judge Colleen Kollar-Kotelly ruled that Trump’s directive could not be enforced while the case worked its way through the courts. In her 76-page opinion, the judge cited the firm’s brief when she wrote that “transgender individuals have immutable and distinguishing characteristics that make them a discernable class. As a class, transgender individuals have suffered, and continue to suffer, severe persecution and discrimination.”
In her ruling, the judge said that the government had not proven that national defense was at risk. “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all,” she wrote. “In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”
In December 2017, the Department of Justice withdrew its legal challenges to several federal court rulings that challenged Trump’s decree. As of January 1, 2018, the Department of Defense began accessing transgender applicants for military service.
Meaningful Disability Benefits
Disabled and unable to work, our pro bono client tried for many years to receive disability benefits. She had worked with other lawyers without success, as her case progressed to a second appeal. When Partner and Litigation Chair Craig Martin accepted a court appointment to represent the client, he saw that the record included extensive details of her medical history, which could be used to establish that the findings by the administrative law judge were unreasonable. He and Associate Elin Park persuasively argued before Judge Thomas Durkin of the US District Court for the Northern District of Illinois that the client should be awarded disability benefits without further delay and that it was unnecessary to remand the case for further administrative proceedings. Judge Durkin agreed. In a rare win of its kind, the court reversed the decision of the administrative law judge, who had twice denied the claims, finding that our client was incapable of working and was entitled to benefits. “This was a challenging case that, by no means, had a clear outcome,” Craig said. “A strong record coupled with the strength of our argument truly carried the day,” said Elin, who explained that the client’s award included many years of much-needed back payments of disability benefits.
Diversity Visa Lottery Winners
We are representing diversity visa lottery winners from countries subject to the Trump Administration’s travel ban, which barred their entry into the United States. These individuals were selected to receive diversity visas, but the State Department refused to process their visa applications on account of the travel ban. We are arguing that the relevant statute distinguishes between the issuance of visas, on one hand, and physical entry into the United States, on the other hand. We contend that the travel ban, which was focused on entry, did not authorize the State Department to suspend the issuance of visas. The case is currently pending. The team consists of Partners Max Minzner and Matthew Price.
OUT OF SOLITUDE
Every 30 to 90 days, inmates in solitary confinement have their placements reviewed to determine if continued isolation is necessary. For 10 years, client Aaron Isby received the same two-sentence review: “Your status has been reviewed and there are no changes recommended to the Southern Regional Director at this time. Your current Department‐wide Administrative segregation status shall remain in effect unless otherwise rescinded by the Southern Regional Director.” Isby filed suit against various prison employees, claiming his prolonged placement in solitary confinement violated his Eighth Amendment protections against cruel and unusual punishment and his Fourteenth Amendment rights under the Due Process Clause. The Seventh Circuit affirmed the district court’s decision that his isolation did not constitute an Eighth Amendment violation, but the court reversed summary judgment on Isby’s due process claims. Given his lengthy solitary confinement, and the total absence of any individualized explanation for the reasons justifying the segregation, the court found that there was a genuine dispute of fact as to whether the standard for placing Isby in solitary confinement was non-pretextual and met constitutional due process standards. Our firm team was led by Partner Ishan Bhabha, and Partner Barry Levenstam worked with Ishan on the brief; Senior Paralegal Cheryl Olson and Paralegal Mary Frances Patston also provided invaluable assistance.