By Taylor Anderson
On November 13, 2015, the Fourth Circuit issued its published opinion regarding the civil case Class v. Towson Univ. The appellant, Towson University (“University”), appealed the district court’s judgment for appellee Gavin Class (“Class”), issuing a permanent injunction prohibiting the University from violating Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. The Fourth Circuit reversed the district court’s judgment and vacated its injunction because the University reasonably applied its Return-to-Play Policy when determining Class was not “otherwise qualified” to participate fully in the University’s football program.
Class Loses Spot on Football Team
In early August 2013, the University’s football coach informed Class that he had won a starting position as offensive guard. Two days later, however, on August 12, 2013, Class collapsed during drills from an exertional heatstroke and was taken to the Trauma Unit at the University of Maryland Medical Center. Class’ heatstroke resulted in multi-organ failure, including liver failure, necessitating a liver transplant. Additionally, Class was in a coma for nine days and endured more than a dozen other surgical procedures. He was hospitalized for nearly two months, receiving intensive medical care that included chemotherapy to treat post-transplant complications. Class still suffers from the effects of his medical trauma and he is at a heightened risk of subsequent heatstroke.
In January 2014, Class resumed classes as a student at the University and began a lengthy and grueling recovery process. Class expressed his wish to rejoin the team for the 2015-16 football season. The University’s athletic staff directed Class’ request to play to the Team Physician, Dr. Karl E. Kindschi (“Kindschi”).
In the fall of 2014, Kindschi and the physicians on the MedStar medical review team, all of whom were board certified in sports medicine, unanimously concluded that Class could not safely participate fully in the University’s football program. They reached this conclusion after Kindschi conducted a physical examination of Class; reviewed his medical records and his medical history; reviewed the results of a heat tolerance test conducted on August 21, 2014; consulted Class’ liver-transplant physicians; and reviewed medical literature.
The August 2014 heat tolerance test was conducted by the Korey Stringer Institute (“Institute”), a center that researches issues related to heatstroke and heat illness. The Institute first conducted a “low intensity” heat tolerance test on Class and found that Class was unable to complete the test. Class continued to train and on February 6, 2015, the Institute conducted another “low intensity” heat tolerance test on Class. On this second test, Class’ results improved, but the Institute still included restrictions and conditions for Class. After this latter heat tolerance test, Kindschi again refused to clear Class for participation in the football program because he had not shown that he had “sufficient heat tolerance to handle competitive football practices, including scrimmages, and play outdoors in seasonal heat.”
Consistent with NCAA requirements and national best practice, the University applied a written Return-to-Play Policy, which provided that the University’s Team Physician has the final and autonomous authority in deciding if and when an injured student-athlete may return to practice or competition.
A few weeks later, Class commenced this action against the University, alleging that its decision to exclude him from the football program violated the ADA and the Rehabilitation Act. In his complaint, Class alleged that he was disabled in that his “inability to regulate his body temperature and susceptibility to heat stroke substantially limit major life activities, including regulating body temperature, walking, standing and running, when he experiences a heat stroke,” but that he could fully return to football with reasonable accommodations. He claimed that the University’s refusal to allow him to participate in football with these accommodations discriminated against him by reason of his disability.
Following a one-day bench trial, the district court found that Class had a disability within the meaning of the ADA and the Rehabilitation Act. The court determined that the University had discriminated against Class on the basis of his disability by refusing to provide the requested accommodations, particularly an abdominal padding and internal temperature monitoring system that Class requested. On July 17, 2015, the court issued an injunction against the University preventing the University from violating Class’ rights under the ADA and Rehabilitation Act. From the judgment entered, the University appealed to the Fourth Circuit.
Class Not “Otherwise Qualified” to Participate
The main issue before the Fourth Circuit was whether Class was “otherwise qualified” to participate in the University’s football program. In the Fourth Circuit, Class had to show that he was “otherwise qualified” to participate in the University’s football program by establishing (1) that he satisfied the essential eligibility requirements of the program and (2) if not, there were reasonable accommodations that the University could have implemented to enable him to meet the requirements.
(1) Class Did Not Satisfy Essential Eligibility Requirements
When determining whether an educational institution’s eligibility requirement is essential and whether it has been met, the Fourth Circuit accords a measure of deference to the school’s professional judgment. The Fourth Circuit found that the University’s Return-to-Play policy is a legitimate and essential eligibility requirement for participation in its football program and concluded that because Class did not obtain Kindschi’s clearance to return to play under this policy, Class did not satisfy the essential eligibility requirements of the football program.
(2) No Reasonable Accommodations for the University to Implement
Next, the Fourth Circuit considered whether there were reasonable accommodations that the University could have implemented to enable Class to meet the requirements. Class proposed the three accommodations at issue, which were (1) the use of padding to protect Class’ abdominal wall, (2) that Class’ internal temperature be closely monitored in five to ten minute intervals during exercise, and (3) the condition that all exercise be done at the discretion and under the direct observation of the medical professional. In determining this reasonableness, the Fourth Circuit stated that it must determine whether the Team Physician’s decision and, derivatively, the University’s decision was a good-faith application of its policy to protect the safety of student athletes.
The University contended that the requested accommodations are not reasonable because they (1) would not effectively satisfy the University’s safety concerns and (2) would require fundamental changes in the nature of its football program.
Turning to whether the accommodations would effectively satisfy the University’s safety concerns, the Fourth Circuit found that so long as Kindschi’s professional judgment on the accommodations was supported by the record, Kindschi’s professional judgment would prevail. Since Kindschi believed that the accommodations would not satisfy the University’s safety concerns and her position was supported by the record, the Fourth Circuit concluded that Kindschi’s judgment as to the accommodations was not unreasonable.
The Fourth Circuit also determined Class’ proposed accommodations were unreasonable because they would require fundamental changes in the nature of the University’s football program. In particular, the Fourth Circuit held that Class’ proposed accommodations required the University’s Team Physician to allow Class to play football and supervise his participation when, in her medical judgment, she has concluded that he should not be playing at all. Also, during games and practices, it would be unreasonable to have the Team Physician standing on the sidelines waiting to monitor Class’ internal temperature every five to ten minutes, especially since in some games according to the rules of football, the game would not pause for periods extended well beyond that time.
Because Class failed to show that the Team Physician’s judgment and the University’s judgment to reject Class’ proposed accommodations were unreasonable in the context of the risks, the Fourth Circuit reversed the decision of the district court entering judgment in favor of Class.
One judge wrote a dissenting opinion. The dissenting judge believed that the majority incorrectly focused on the subjective good faith of the Team Physician. Instead, the dissenting judge believed that this inquiry should be based on the objective reasonableness of the university’s decision.