Class v. Towson Univ., No. 15-1811 (4th Cir. 2015)
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Plaintiff collapsed with exertional heatstroke while practicing as a member of the Towson University football team. Plaintiff was in a coma for nine days, almost died, and suffered multi-organ failure, requiring a liver a transplant and numerous additional surgeries. Plaintiff subsequently recovered and pursued his plan to return to playing football. However, the Team Physician, a board-certified sports medicine doctor, concluded that allowing plaintiff to participate in the football program at the University presented an unacceptable risk of serious reinjury or death. Plaintiff filed suit against the University, alleging that its decision to exclude him from the football program amounted to a violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. 701 et seq. The district court entered judgment against the University. The court reversed, concluding that plaintiff was not “otherwise qualified” to participate fully in the University’s football program because the University reasonably applied its Return-to-Play Policy. The court was required to give deference to the University's judgment. The court did not reach the University's challenge to the district court's evidentiary rulings.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1811 GAVIN CLASS, Plaintiff - Appellee, v. TOWSON UNIVERSITY, Defendant - Appellant. -----------------------------------AMERICAN MEDICAL SOCIETY FOR SPORTS MEDICINE; MARYLAND ATHLETIC TRAINERS ASSOCIATION; NATIONAL ATHLETIC TRAINERS’ ASSOCIATION, INC.; NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Amici Supporting Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:15-cv-01544-RDB) Argued: September 16, 2015 Decided: November 13, 2015 Before NIEMEYER, KEENAN, and WYNN, Circuit Judges. Reversed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan joined. Judge Wynn wrote an opinion concurring in part and dissenting in part. ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Steven M. Klepper, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellee. ON BRIEF: Brian E. Frosh, Attorney General of Maryland, Kathleen E. Wherthey, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Andrew M. Dansicker, LAW OFFICE OF ANDREW M. DANSICKER, LLC, Hunt Valley, Maryland, for Appellee. Mitchell Y. Mirviss, VENABLE LLP, Baltimore, Maryland, for Amici American Medical Society for Sports Medicine, Maryland Athletic Trainers Association, and National Athletic Trainers’ Association, Inc. Philip S. Goldberg, William C. Martucci, Washington, D.C., William C. Odle, Corby W. Jones, SHOOK, HARDY & BACON, L.L.P., Kansas City, Missouri, for Amicus National Collegiate Athletic Association. 2 NIEMEYER, Circuit Judge: On August 12, 2013, as the temperature in Baltimore reached 91°F, Gavin Class, a Towson University student, collapsed with exertional heatstroke while practicing as a member of the Towson University football Trauma Unit at team. the He University was of transported Maryland to the Medical Shock Center in Baltimore, where he remained in a coma for nine days and almost died. He suffered multi-organ failure, requiring a liver transplant and numerous additional surgeries. Following a protracted recovery involving a high level of perseverance, Class returned to classes at Towson University in January 2014 and thereafter pursued his plan to return to NCAA Division I football. however, Towson Applying University its refused “Return-to-Play to clear Class Policy,” to play because the Team Physician, a board-certified sports medicine doctor, concluded football program reinjury or that allowing presented death. The Class an to participate unacceptable Return-to-Play risk in the serious gave Policy of Towson University’s Team Physician “final authority” over the issue. Class alleging commenced that its this decision action to against exclude him Towson from University, the football program amounted to a violation of Title II of the Americans with Disabilities Rehabilitation Act. Act (“ADA”) and Section 504 of the He alleged that his inability to regulate 3 his body temperature and his susceptibility to heatstroke constituted a “disability,” as defined by those Acts, and that he was qualified to play intercollegiate football if Towson University agreed to his proposed accommodations. Following a one-day with bench trial, the district court agreed Class, concluding that Class’ proposed accommodations were reasonable and that Towson University Rehabilitation Act. had violated the ADA and the The court entered judgment against Towson University, issuing a permanent injunction prohibiting it from violating those Acts. On appeal, Towson University contends that the district court erred in concluding (1) that Class was disabled as the term is defined by the Acts and (2) that Class was “otherwise qualified” for the football program with the accommodations he proposed. It also challenges several evidentiary rulings made by the district court during trial. For the reasons given herein, we reverse court’s judgment, vacating its injunction. the district While we recognize that the question of whether Class had a disability, as defined by the Acts, is a close one, we nonetheless conclude that Class was not “otherwise qualified” to participate fully in Towson University’s football program because the University reasonably applied its Return-to-Play Policy. Giving deference to Towson University’s judgment, as we are required to do, we uphold its 4 determination. Towson In view of these conclusions, we do not reach University’s challenge to the district court’s evidentiary rulings. I After Class played NCAA Division III football at the University of Rochester for two years, he transferred to Towson University to play Division I football. And, in early August 2013, Towson University’s football coach informed Class that he had won a starting position as an offensive guard. later, however, on August 12, 2013, Class Two days collapsed during drills from an exertional heatstroke and was taken to the Shock Trauma Unit at Class’ the heatstroke University resulted in of Maryland multi-organ Medical failure, liver failure, necessitating a liver transplant. Center. including According to Dr. William R. Hutson, Class’ treating physician, without the transplant, “there is no question that [Class] would have died.” Class was in a coma for nine days and endured more than a dozen other surgical procedures. months, receiving He was hospitalized for nearly two intensive medical care that included chemotherapy to treat post-transplant complications. Class still suffers from the effects of his medical trauma. As a result of the liver transplant, he has a weakened abdominal wall, which places his internal organs at risk of injury. 5 He must take immunosuppressive medications, which increase his risk of infection. heatstroke. And he is at a heightened risk of subsequent Class’ physicians have also cautioned that any lengthy and future surgeries would be more complicated. After grueling leaving recovery progressed over the hospital, process. a beginning to run. six-month Class Initially period began a unable from using to stand, he a walker to In January 2014, he resumed classes as a student at Towson University and began training in pursuit of his hope of returning to playing football. While conditioning on his own, Class expressed his wish to rejoin the team for the 2015-16 football season. As with any student-athlete seeking to return to play from injury, Towson University’s athletic staff directed Class’ request to play to the Team Physician, Dr. Kari E. Kindschi. Dr. Kindschi was the Medical Director of the Arnold Palmer SportsHealth Center for Sports Memorial Hospital in Baltimore. Dr. Kindschi Towson served University as and the Injuries MedStar Union Under a preexisting contract, Medical the at head Director Team of Athletics Physician for at the University’s 19 Division I teams, including its football team. Four other services to MedStar Towson physicians were University’s also engaged student-athletes, to provide and those physicians oversaw the three athletic trainers assigned to the 6 football team. In the fall of 2014, Dr. 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 Towson University’s football program. They reached this conclusion after Dr. 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 literature. Dr. participate in physicians; Kindschi “no did, contact and reviewed however, clear conditioning in medical Class [a] to cool environment.” The August 2014 heat tolerance test was conducted by the Korey Stringer Connecticut Institute, that heat illness. researches a center issues at related the University of to heatstroke and The Institute was founded in the wake of the death of Korey Stringer, an All-Pro offensive lineman in the National Football League who died after suffering a heatstroke. The Institute conducted a “low intensity” heat tolerance test on Class and found that, in an environment of 104°F with 40% humidity, Class was “un-able to sustain low intensity exercise in a hot environment for 70 minutes.” While the test required that Class maintain a rectal temperature of 101.3°F or lower for 7 two hours, he exceeded that temperature just over halfway into the two-hour test. After Class continued to train, Towson University again engaged the Korey Stringer Institute to conduct another “low intensity” heat tolerance test on Class on February 6, 2015, using the same conditions and standards as were used in the first test. This time, Class completed the test, having had a rectal temperature of no higher than 101.2°F. The Institute concluded: At this point we suggest that you only exercise in cool environments ranging from low to high intensity (including football practices), and only low to moderate intensity in warmer environments. We strongly suggest having a second test done prior to any intense conditioning that is done in a warm to hot environment. This would be done in order to determine your body’s response to high exercise intensity coupled with heat exposure, most likely before returning to practice in August. The report included restrictions and conditions for Class’ continued progress. Thereafter, Dr. 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.” She made her judgment after again reviewing Class’ medical records, including both the Institute’s August 2014 and February 2015 tests, as well as a letter from Dr. 8 Hutson, team, the lead concluding collegiate treating that football protection.” professionals She at physician Class . . . also MedStar was “at with on his acceptable risk appropriate consulted Union liver-transplant with Memorial to play padding and other Hospital medical and representatives of Towson University’s Athletic Department. with Dr. Kindschi noted that the test conditions for the February 2015 heat tolerance test did not adequately mimic the conditions that Class “would face playing competitive football” and that Class had not passed any test wearing the specialized padding recommended to protect his liver and the standard football gear, including the pads and helmet required for playing football. Consistent practices, with Towson NCAA University requirements applied a and written national best 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. The Policy provided in relevant part: A Towson University Team Physician or his/her designee, in consultation with a Towson University certified athletic trainer, has the final authority in deciding if and when an injured student-athlete may return to practice or competition. A studentathlete’s private physician DOES NOT have any jurisdiction as to the participation status of the student-athlete. Any student-athlete seen by a physician other than the Towson University Team Physician must return to the Sports medicine clinic 9 for follow-up and final participation status. clearance prior to active (Emphasis added). After Class obtained counsel, who made a formal demand for Class to be fully reinstated in the football program, Towson University formally responded with a letter dated May 4, 2015, stating that, based on its Return-to-Play Policy, it was denying Class’ request. The letter stated: [T]he University, with the advice of the MedStar medical professionals in its athletic department, has determined that while Mr. Class has made admirable strides in his recovery, he is unable to return to playing football safely and that no reasonable accommodation can be made to adequately protect him from potentially devastating health effects. * * * The sports medicine professionals believe that the risk of serious injury or death as a result of another heat stroke is too great to clear Mr. Class to play. As I am sure you are aware, Mr. Class’s prior heat stroke led to a cascade of devastating complications, including multi-organ failure, which resulted not only in the need for a liver transplant, but also in a very complicated hospital course, several additional surgeries due to wound infections, and post-transplant lymphoproliferative disease that required chemotherapy. Most importantly, Mr. Class remains at risk for another heat stroke. His prior severe heat stroke is a significant risk factor for future heat illness. While some of his current transplant-related medical risks can be minimized with measures such as abdominal padding and medications, Mr. Class’s risk of heat stroke is not capable of adequate prevention with any reasonable restriction or accommodation. Routine temperature monitoring alone would not adequately provide for his safety, and the sports medicine professionals cannot fashion a reasonable or practical 10 precaution that would adequately protect Mr. Class from another serious heat related illness. The individuals involved in this decision agree that it would be irresponsible to permit Mr. Class to be exposed to another potentially catastrophic event. A few weeks later, Class commenced this action against Towson University, alleging that its decision to exclude him from the football program violated the ADA and the Rehabilitation Act and seeking an injunction “to allow [him] to fully participate” in the program. 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 alleged that he undertook his recovery process “to become the first person to come back from exertional heatstroke and a liver transplant to play football.” He proposed various accommodations, based on the Korey Stringer Institute’s suggestions, which, he contended, were “reasonable accommodations which could be performed by Towson with minimal cost or disruption to the football program.” He claimed that Towson University’s refusal to allow him to participate in football with these accommodations discriminated against him by reason of his disability. 11 Following continued the training, commencement the Korey of this Stringer action Institute and Class’ conducted third heat tolerance test of Class on June 19, 2015. a This was a “moderate intensity” test that required Class, in an environment of 104°F with 40% humidity, to maintain a rectal temperature of 103.1°F reported or lower that for Class a period was of able one to hour. maintain The the Institute specified temperature for 50 minutes, but, unlike the prior test reports, the June 2015 report did not specify what rectal temperature was reached at any point during the test. Rather, it stated: While there was not a plateau in your rectal body temperature, your rate of rise was low enough to allow you to complete 50 minutes of exercise with an expected body temperature for individuals exercising in the heat. The only limiting factor to completing 60 minutes of exercise was muscular fatigue, which is expected for your fitness, sport and physical make up. The report concluded, “Given your previous tests it is very encouraging to see that you have been able to make predictable and significant improvements in you ability to handle exercise in the heat. You have made sizeable gains, and it is important to maintain the gains you have made and continue to spend time maintaining and improving your fitness.” The report stated that Class could “fully participate with regularly scheduled football practices,” subject to five conditions -- which it “strongly recommended.” As detailed further conditions were that Class: 12 in the report, the five (1) [c]ontinue outside; (2) [c]ontinue to follow the acclimatization guidelines; (3) [m]onitor [his] body temperature when performing new/unique exercise or conditioning sessions; (4) [m]onitor [his] fluid needs and match his fluid losses; and (5) [conduct] [a]ll exercise progression . . . at the discretion and direct observation of a medical professional. At the bench to perform trial in this conditioning mandated case, the workouts NCAA heat Institute’s Chief Operating Officer, Dr. Douglas J. Casa, a certified athletic trainer who holds a Ph.D. in exercise physiology, testified that the temperature monitoring condition (condition 3) in the June 2015 test report could be accomplished by using a “CorTemp” system, which would require Class to ingest a small electronic device that would track his internal body temperature and communicate the readings through a low-frequency radio waves to a nearby handheld monitor. As Dr. Casa explained, the system would require that the monitor be positioned near Class for 3 to 5 seconds every 5 to 10 minutes, which would provide data with sufficient frequency to allow Class to cease physical activity before his internal temperature reached the dangerous level at which a heatstroke could occur. Dr. Kindschi testified, however, that the Institute’s June 2015 test did not alter her professional judgment as it did not 13 clear Class “to return to football” but only to “a progression of activities” that would require monitoring and a follow-up. She expressed concern about data omitted from the Institute’s June report that appeared in the prior two reports. Finally, she continued to note that the June test was not conducted under conditions that mimicked actual football practice and games and in an environment reflecting Baltimore’s heat and humidity. Following the one-day bench trial, the district court found that Class had a disability within the meaning of the ADA and the Rehabilitation Act because “both [his status] as a transplant recipient and victim of heat stroke . . . seriously affected major life activities.” 1 “[A]lternatively,” the court held, “Class clearly qualifie[d] as an individual with a record of a protected disability under 42 U.S.C. § 12102(1)(B).” court determined that Towson University had The discriminated against Class on the basis of this disability by refusing to provide the requested accommodations, particularly the abdominal padding and internal temperature found to be reasonable. monitoring, which the court By judgment dated July 17, 2015, the 1 The district court’s conclusion that Class was disabled “as a transplant recipient” is not an issue presented to us. In his complaint, Class alleged only that his “inability to regulate his body temperature and susceptibility to heat stroke” characterized his disability. Moreover, Towson University has acknowledged that only the “heatstroke and the related issues with that” motivated its decision not to clear Class for participation in its football program. 14 court permanently enjoined Towson University “from violating [Class’] rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation [Act] by prohibiting him from participating in from concerns medical the University’s related to football his program status as a resulting transplant recipient and heat stroke victim.” From the appeal. By judgment order entered, dated July Towson 28, University 2015, we filed granted this Towson University’s motion to stay the district court’s judgment, and on August 6, 2015, we granted Class’ motion to order an expedited appellate schedule. II Towson University contends first that the district court erred in finding that Class, as a “victim of heat stroke,” is disabled within the meaning of the ADA. 2 Recognizing that “disability,” as defined by the Act, means a “physical or mental impairment that substantially limits 2 one or more major life Class brought this action under both the ADA and the Rehabilitation Act. For convenience of discussion, however, we discuss the issues only under the ADA, as the standards that we apply are the same for both Acts. See Halpern v. Wake Forest Univ. Health Sciences, 669 F.3d 454, 461 (4th Cir. 2012) (citing Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005)). While the Acts differ with respect to causation, see Baird ex. rel. Baird v. Rose, 192 F.3d 462, 468-70 (4th Cir. 1999), that is not at issue here. Under the Rehabilitation Act, the plaintiff must also establish that the defendant received federal funds, see 29 U.S.C. § 794(a), but that also is not at issue here. 15 activities,” 42 U.S.C. § 12102(1)(A), Towson University argues that Class did not “present any evidence that his impaired ability to thermoregulate affects a major life activity or that thermoregulation itself is a major bodily function.” It reasons that Class’ increased risk of reoccurrence of heatstroke as a result of his original heatstroke “does not establish that he has a disability because that increased risk is just that -- a risk; it does not substantially limit either a ‘major life activity’ or ‘the operation of a major bodily function.’” While Towson University acknowledges that an impairment that is episodic or in remission would qualify as a disability if it substantially limits a major life activity “when active,” 42 U.S.C. § 12102(4)(D), the University contends that Class’ limitations remission. on thermoregulation are not episodic or in It asserts that “Mr. Class makes no claim that he still suffers any such impairments or that such impairments are likely to return. . . . The only activity as to which Mr. Class claims any current, actual or potential impairment is the one at heart of this suit: playing intercollegiate football.” And that, it suggests, is clearly not a major life activity. See, e.g., Knapp v. Northwestern Univ., 101 F.3d 473, 480 (7th Cir. 1996) (“Playing intercollegiate basketball obviously is not in and of itself a major life activity, 16 as it is not a basic function of life on the same level as walking, breathing, and speaking”). Class contends that he has never football is a major life activity. asserted that playing Rather, he contends that the question is whether his impairment, “when active,” substantially limits a major life activity, himself, or lifting objects. such as walking, caring for He reasons: The evidence at trial indicated that Class may be at an increased risk of a reoccurrence of heat stroke as a result of his original injury -- or in other words, that Class’ disabilities are currently in remission. If Class had a recurrence of heat stroke -- the very thing the accommodations are designed to prevent -- he would be unable to engage in “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). That is all the law now requires. (Internal quotation marks and citation omitted). The statutory requirements for showing disability are not disputed. An individual has a disability under the ADA when he “(A) [has] a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) [has] a record of such an impairment; or (C) [is] regarded as having such an impairment.” 42 U.S.C. § 12102(1). Class rests his claims on subsections (A) and (B). A “major life activity” is in turn defined to include (1) basic tasks that are part of everyday living, such as “caring 17 for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, § 12102(2)(A) standing, In Supreme Court’s strict list); and U.S.C. “operation of a major bodily function,” id. § 12102(2)(B). the nonexhaustive 42 the to a lifting,” (2) response (providing [and] construction of this provision, which had indicated that a temporary impairment could not be a disability, see Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198-99 (2002), Congress enacted the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. That Act provides that the term “disability” must be “construed in favor of broad coverage of individuals under [the ADA], to the maximum extent § 12102(4)(A). permitted by [the ADA].” 42 U.S.C. Overturning Toyota, the ADA Amendments Act also provides that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Relying playing on football thermoregulate, dormant. the Id. § 12102(4)(D) (emphasis added). ADA could Amendments incite activating a Act, Class his impaired condition that argues ability is that to otherwise Of course, when active, the condition would clearly limit the major life activities of walking, lifting, and caring for oneself, as occurred during heatstroke. 18 Class’ 2013 exertional The unanswered question in Class’ argument is whether the statutory term “when active” must imply an activation of the impairment prompted by normal life conditions. Class’ limitation on thermoregulation can In this case, become active only under the extreme exertion of a prolonged and demanding football practice or game in high heat and humidity. anyone could include the suffer heatstroke. possibility of If In such conditions, “when activation active” under any were to condition, however extreme, it would encompass a broad range of limitations or impairments that would “disability” under the ADA. of disability, the drastically expand the scope of For example, with such a definition inability of one mountain climber to oxygenate as well as another climber at very high altitudes, such as during an ascent of Mt. Everest, could be considered a disability. While a closer analysis might find it difficult to extend the definition of disability to cover a condition that becomes active only under extreme conditions, far beyond the scope of normal daily living, we need not engage in that novel analysis in this case in light of our following conclusion that Class is not “otherwise qualified” to participate in Towson University’s football program with accommodations. For the same reason, we need “a not address impairment.” whether Class has 42 U.S.C. § 12102(1)(B). 19 record of such an III As noted, Class must also carry the burden of showing that he is “otherwise qualified” to participate in Towson University’s football program by establishing “(1) that he could satisfy the essential eligibility requirements of the program . . . and (2) if not, whether ‘any reasonable accommodation by [Towson University] requirements.” would enable’ [him] to meet these Halpern v. Wake Forest Univ. Health Sciences, 669 F.3d at 454, 462 (4th Cir. 2012) (quoting Tyndall v. Nat’l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994). context of postsecondary education, a disabled In the person is qualified if he shows that he “meets the academic and technical standards [school’s] requisite to education admission program or or participation activity.” 45 in the C.F.R. § 84.3(l)(3); see also 42 U.S.C. § 12131(2); Knapp, 101 F.3d at 482. “The term ‘technical standards’ refers to all nonacademic admissions criteria that are essential to participation in the program in question.” Southeastern Cmty. Coll. v. Davis, 442 U.S. (quoting 397, 406 (1979) original regulations). an explanatory note to the And a nonacademic eligibility criterion is essential if it “‘bear[s] more than a marginal relationship to the [program] at issue.’” Halpern, 669 F.3d at 462 (quoting Tyndall, 31 F.3d at 213). 20 In determining whether an educational institution’s eligibility requirement is essential and whether it has been met, we accord a measure professional judgment. of deference to the school’s See Halpern, 669 F.3d at 462-63 (citing Supreme Court cases “[i]n the context of due-process challenges” and several overwhelmingly cases in extended which some “our level sister of circuits deference to have schools’ professional judgments regarding students’ qualifications when addressing disability discrimination claims”); see also Davis v. Univ. of N.C., 263 F.3d 95, 102 (4th Cir. 2001) (explaining in dicta that in the context of academic eligibility requirements and disability challenges, this court “generally accord[s] great deference to a school’s determination of the qualifications of a hopeful student”). Of course, in according deference, we still must take special care to ensure that eligibility requirements do not “disguise truly discriminatory requirements.” Halpern, 669 F.3d at 463 (internal quotation marks and citation omitted). Towson University contends that satisfying its Return-toPlay Policy, which requires clearance by the Team Physician, is an essential eligibility requirement for participation in its football program (as well as other athletic programs), reflecting the need that participation in athletics be conducted in a healthy and safe manner. Applying such a health-and-safety requirement does not seem to be controversial in this case or in 21 many others. See, e.g., Knapp, 101 F.3d at 483 (“[A]lthough blanket exclusions are physical requirements generally are proper” unacceptable, to ensure the legitimate health and safety of student-athletes (citing Southeastern Cmty. Coll., 442 U.S. at 407)); cf. Halpern, 669 F.3d at 463 (holding that professionalism was an essential requirement of a medical school program in part because “inappropriate and disruptive behavior by physicians increases adverse patient outcomes”); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265-66 (4th Cir. 1995) (determining, based on Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273 (1987), that an HIV-positive medical resident was not otherwise qualified because he posed a significant transmitting the infectious disease to others). risk of Analogously, the Supreme Court has held that employers may consider the risk a potential employee’s disability poses to determining whether he is qualified for a job. himself in See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84-86 (2002). Unlike with many other educational activities, risk is an inherent element of athletic programs. physical The NCAA, as amicus, explains that decisions about the impact of health and safety risks on players “are made daily” concerning a host of “medical conditions[,] such as concussion, cervical trauma, cardiac arrest, knee injuries, and more.” Team Physician final clearance 22 authority, a spine Granting the policy that is consistent with NCAA guidelines and national best practices, is a fair and reasonable manner for Towson University to coordinate these essential determinations for the unique and dynamic medical profiles of its several hundred student-athletes. this policy does not completely safeguard against While possible discrimination, it helps to ensure that the physician’s ethical and professional imperative to care for the best interests of student-athletes concerns or motivations, including those that could be discriminatory. Cf. Arline, 480 trumps U.S. at other 287-88 university (explaining that an “otherwise qualified” inquiry must be guided by “facts, based on reasonable medical judgments given the state of medical knowledge, about . . . the nature of the risk” posed by an individual’s participation in the program). Accordingly, we conclude that Towson University’s requirement that a student-athlete obtain the Team Physician’s clearance before returning from essential eligibility requirement. injury is legitimately an Class does not appear to dispute this. Nor does he contend that he is able, without accommodation, to football program. participate healthily and safely in the Rather, he contends that the Team Physician’s decision to reject his proposed accommodations to allow him to play football healthily and safely was unreasonable because, as he argues: 23 [The Team Physician] has been practicing medicine for five years and admittedly has no expertise (and virtually no experience) in dealing with heat stroke. She never explained why it would be unsafe for Class to return to the football field. She merely stated that she was concerned about his ability to thermoregulate, that she was concerned that he had a propensity for heat stroke, that any future heat stroke could be catastrophic, and that she consulted unidentified colleagues at MedStar (without claiming any heat stroke expertise on their part). She acknowledged that she was not aware of any scientific literature or research that supported her opinion. * * * In other words, [the Team Physician’s] medical opinion was based on her feelings, not on any medical or scientific evidence. The dispositive question, therefore, is whether the Team Physician’s opinion “individualized, was reasonably medical evidence.” this question, derivatively, deference. reasonable we i.e., and made, -- based Knapp, 101 F.3d at 485. give Towson the Team Physician’s University’s decision whether upon it was competent And in resolving decision -- a -- measure and of See Halpern, 669 F.3d at 462-63; Davis, 263 F.3d at 102; Knapp, 101 F.3d at 484; Doe, 50 F.3d at 1266. Nonetheless, when considering whether the decision is reasonable, we must be satisfied that it was consistent with the University’s statutory obligations to provide reasonable pretext for illegal discrimination. 463; Knapp, 101 F.3d at 483. accommodations and not a See Halpern, 669 F.3d at Stated otherwise, in evaluating reasonableness, we must determine whether the Team Physician’s 24 decision and, derivatively, Towson University’s decision (1) was a good-faith application of its policy to protect the health and safety of student-athletes, University’s statutory (2) was obligations in compliance to provide with the reasonable accommodations, and (3) was not a disguise for discrimination under the ADA or the Rehabilitation Act. Because the record here indicates that Dr. Kindschi and Towson University applied the Return-to-Play Policy in good-faith and that the decision not to fully reinstate Class was not simply a pretext for unlawful discrimination, we focus on whether Dr. Kindschi and Towson University reasonably considered Class’ proposed accommodations. Class proposes six accommodations, which, he argues, would satisfy Towson participation “qualified” University’s in under Specifically, he the need football Towson proposes for program University’s the his use of healthy and safe thus render him and Return-to-Play padding to Policy. protect his abdominal wall and the implementation of the five conditions listed in the Korey Stringer Institute’s June 2015 test report, two of which challenged (1) unreasonable: are the condition temperature be closely monitored exercise be done at the by that University Class’ as internal and (2) the condition that all discretion observation of a medical professional. 25 Towson and under the direct In particular, Towson University contends that these proposed accommodations (1) would impose undue financial and administrative burdens; (2) would not effectively require Class’ fundamental program. is reduce risk changes of in heatstroke; the nature and of (3) the would football The relevant cases indeed note that an accommodation unreasonable administrative if it burdens,” “imposes Halpern, undue 669 F.3d financial at 464 and (quoting Arline, 408 U.S. at 287 n.17); or if there is a high likelihood that the accommodation would not effectively allow the disabled individual to meet the eligibility requirements, Halpern, 669 F.3d at 465 (holding that “the indefinite duration and uncertain likelihood of success of [plaintiff’s] proposed accommodation renders it unreasonable”); or if it “requires ‘a fundamental alteration in the nature of [the] program,’” Arline, 480 U.S. at 287 n.17 (alteration in original) (quoting Southeastern Cmty. Coll., 442 U.S. at 410 (explaining that an accommodation whereby a nursing student would take only academic classes and no clinical courses would fundamentally alter the nurse training program)). Towson accommodations administrative University’s would burden contention impose is not an well that undue developed the requested financial in the and record, although the University did present evidence that its football trainers are not qualified to implement the CorTemp temperature 26 monitoring system, suggesting that Class’ proposed accommodation would require additional the expense personnel. of training Moreover, them as a and even matter of hiring possible administrative burden, we have difficulty understanding how the temperature monitoring system Class proposed could function in the context offensive of a football lineman, such game, as particularly Class. During for a football starting games, athletic trainers, such as the trainer who would be designated to monitor Class accommodations, every are not 5 to 10 allowed minutes to under his participate huddles unless a timeout has been called. proposed in football Moreover, portions of football games are often played without huddles, and offensive drives routinely take more than 5 to 10 minutes on a real-time clock. Indeed, they often take more than 5 to 10 minutes on a game clock. And, if a reading indicated an at-risk internal body temperature, Class would have to be removed from the game for an indefinite period of time sufficient to let him cool down. The coach would be denied his starting offensive guard and Class would be denied his wish to play. Nonetheless, we cannot conclude on this sparse record that the district court erred in rejecting Towson University’s challenge on the ground that the accommodation would administrative burdens. 27 impose undue financial and But Towson University’s contention that the requested accommodations are not reasonable because they (1) would not effectively satisfy Towson University’s safety concerns and (2) would require fundamental changes in the nature of its football program has merit. We address each reason in order. A On the issue of whether the requested accommodations would effectively heatstroke, eliminate Dr. the risk Kindschi of a concluded second that catastrophic Class’ full participation in the football program, even with the proposed accommodations, would unacceptably expose him to the risk of another heatstroke that could be fatal. agree or disagree with Dr. Kindschi’s It is not our role to opinion or to weigh whether her evaluation is more persuasive than another doctor’s. Rather, we are to determine whether her professional judgment was supported by the record. First, Class himself We conclude that it was. claims that he suffers from an “inability to regulate his body temperature and susceptibility to heat stroke.” Similarly, the district court found that “the evidence at trial indicated that Class may be at an increased risk of a reoccurrence original injury.” of heat stroke (Emphasis added). 28 as a result of his Second, indicate the that Korey the heatstroke demonstrably abated. to thermoregulate tolerance test. Stringer Institute’s risk test really has reports not been The first report shows that Class failed adequately The second during and a third “low intensity” reports show heat that he passed, although he did so with several substantial caveats and conditions related sufficiently. to his inability to thermoregulate His second test was another “low intensity” test, and Class’ performance prompted the Institute to recommend that Class limit any high intensity exercise (including football) to “cool environments.” It “strongly suggest[ed]” that Class undergo a third test before engaging in “intense conditioning that is done in a warm to hot environment.” In his third and final test, which was of “moderate intensity,” Class was able to perform for only 50 minutes of the scheduled 60-minute test. The Institute reported that Class had “made sizeable gains,” but that it was important that, while engaging in any intense exercise, he be directly supervised by a “medical professional” and have his internal temperature closely monitored. Third, all of the Korey Stringer Institute tests were conducted while Class was wearing shorts and a “light T-shirt” and not uniform, while wearing football pads, standard and a football helmet, gear, and the protective padding required to protect his liver. 29 including a specialized Dr. Casa, the Director of the Institute, conceded that test conditions did not replicate football conditions. And he also conceded that the relative humidity under which the tests were conducted did not replicate Baltimore’s average humidity in August -- the tests were conducted in 40% humidity while Baltimore’s average August humidity was shown to be around 70%. Fourth, compromised wall, an Class’ August physical ongoing 2013 condition, requirement heatstroke including to take a left him thinner medications, increased susceptibility to a future fatal heatstroke. with a abdominal and an Relying on Class’ medical records, Dr. Kindschi described the medical reasons for Class’ compromised condition: His initial heatstroke was nearly fatal. He had multi-organ failure and dysfunction which led to fulminant necrosis of his liver, requiring transplant. He had a very complicated postoperative course that included multiple surgeries for wound dehiscences and infections. He had kidney failure that required intervention. He had a hemothorax. He had persistently elevated liver enzymes after discharge. And he had post-transplant lymphoproliferative disease which required chemotherapy. She concluded by stating that Class’ prior heatstroke was “a risk factor for future heat illness,” a conclusion that was not disputed and that the district court found. On this record, it is clear that Dr. Kindschi’s judgment that Class could not play football without the risk of serious injury or death was well supported. 30 That conclusion leaves only the question temperature of whether monitoring Dr. Kindschi’s accommodation opinion would not that the sufficiently reduce this risk was reasonable. Dr. Kindschi considered the proposed accommodation to monitor Class’ internal body temperature throughout his football activity and concluded that it would not adequately meet the needs of health and safety. She explained that she had concerns “about the reliability of where the [electronic heat] sensor [was] in the GI system,” noting that digestion is “a fairly individualized and even day-to-day process.” She explained that such unreliability would be compounded by the difficulty “of figur[ing] out two-a-day practices with one CorTemp sensor.” She stated that she would not feel comfortable having Towson University’s without a trainers physician monitor present, Class’ stating internal that such temperature a role was “beyond their scope.” And she concluded that the monitoring program, implemented, even if well would “meaningful risk of catastrophic reinjury.” not eliminate the Dr. Kindschi stated that, in making her decision, she had considered the serious risk of injury or death in the context of the potential problems in administering decision was the “very monitoring difficult” “considerable thought.” 31 system, and was conceding made that only the after Dr. Kindschi’s concerns were supported by Dr. Casa’s testimony, which explained in detail how the monitoring system would be carried out. After explaining that Class’ internal body temperature would be monitored by an electronic sensor that Class ingested, emitting a low-level electronic signal from his intestinal tract, he described how a monitor would have to be placed near Class to receive the signal and obtain the readings. The person holding the monitor would have to hold it near Class for 3 to 5 seconds every 5 to 10 minutes, requiring either that the person holding the monitor go onto the football field into the huddle or that Class go to the sidelines. As Dr. Casa explained: So just during normal, when he’s flipping out of certain drills, you know, if he’s rotating around, a manager can be sitting there where the person’s holding the water bottles; and he could check him as people rotate through. If there’s specific, you know, designated rest breaks, then obviously someone can just come behind him. Dr. Casa also testified Kindschi’s concerns. to caveats that reiterated As he testified: Now, there are a few caveats. You have to ingest [the electronic sensor] a certain number of hours beforehand so that it’s out of the stomach and into the intestines to allow for more accurate measures. You obviously have to have a new pill when the other pill has been passed. You have to have the receiver and a small amount of training to make sure you can utilize the device. * * 32 * Dr. You’d probably have a manager or someone assigned to checking the temperature every time there’s a break or every time it’s convenient, every five or ten minutes, and then the specific instructions from the athletic trainer that every time a measure is taken, that is communicated to the athletic trainer. . . . I mean my particular recommendations would be if they reached 103[°F] I would give them a break, use particular bodycooling strategies and use hydration. And then when it went back down under 102[°F], I would let ‘em return to activity. Finally, and perhaps most importantly, the internal temperature monitoring could not ensure that Class would not suffer from another heatstroke while playing or practicing. The monitoring would only facilitate the discretionary decision of whether it practice. was necessary to remove him from the game or This would not guarantee that his removal would, in fact, be sufficiently early. In any event, removing him from the activity would deny Class the very participation that he seeks by the accommodation. He could not play as the coach might need if playing were to raise his internal temperature to a dangerous level, which itself would be an individualized threshold, would not be known with any certainty, and would be predicted only as a discretionary medical judgment that could prove to be wrong. On this record, Class’ claim that Dr. Kindschi’s decision had no medical disagree purporting with to support her is simply judgment, support his untenable. even return, 33 his at While expert’s least to he may testimony football “practice,” And no was one conducted filled disputed against with that the serious the caveats and monitoring continuous and precautions. effort would be heightened risk of heatstroke and the reality that numerous athletes had died or suffered serious injury from it -- including Class himself. Indeed, Dr. Casa conceded that over a recent 9-year period, 29 athletes had died from heatstroke in the United States. As noted, the standard for assessing Dr. Kindschi’s judgment not to clear Class for return to football under Towson University’s Return-to-Play Policy is not whether we share that judgment or whether she had a better judgment than some other doctor. Rather, the standard is whether her judgment was reasonable -- i.e., whether it was individualized to Class, was reasonably made, and was based on competent medical evidence. When applying that standard, we conclude that Dr. Kindschi’s decision was supported by legitimate health and safety concerns, manifested by the medical records, which were not eliminated by the proposed monitoring system. Therefore, we conclude that her decision was not unreasonable. Courts medical are “particularly ineffectiveness ill-equipped” of proposed evaluate the accommodations in safeguarding against significant health risks. to Davis, 263 F.3d at 102 (quoting Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 (1978)) (explaining that courts generally accord 34 deference to a qualifications). school’s judgment regarding admissions In this case, the district court did not show deference to Towson University but engaged in its own evaluation of the effectiveness of the proposed accommodations. so, it applied the wrong standard and analysis. 669 F.3d 463 (noting that courts are In doing See Halpern, “at a comparative disadvantage in determining” technical eligibility standards); Knapp, 101 F.3d at 485 (explaining that “it will be the rare case regarding substitute participation its judgment in athletics for that of where the a court school’s may team physicians”); Doe, 50 F.3d at 1266 (explaining that the court was “reluctant” to “substitute [its] judgment for that of [the university],” from the bottom, we despite Centers agree potentially for Disease with the conflicting Control Seventh and recommendations Prevention). Circuit’s articulation Knapp regarding the courts’ role in such issues. On the same facts, another team physician at another university, reviewing the same medical history, physical evaluation, and medical recommendations, might reasonably decide that [Class] met the physical qualifications for playing on an intercollegiate [football] team. Simply put, all universities need not evaluate risk the same way. What we say in this case is that if substantial evidence supports the decision-maker . . . that decision must be respected. 35 in As the Knapp court stated: 101 F.3d at 485. At B While it is sufficient in evaluating the reasonableness of a proposed University accommodation also to contends rely that on the only one factor, temperature Towson monitoring and medical supervision proposed by Class would fundamentally alter the nature of its football program. Class’ proposed We agree. accommodations would require Towson 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 football under the circumstances. The relevant accommodation, as stated by the Korey Stringer Institute’s report, requires that “[a]ll exercise progression should be done at the discretion and direct observation of a medical professional.” (Emphasis added). it such would not be possible to implement an Yet accommodation without upending the critical role of the Team Physician and her subordinates and impinging on the ongoing professional medical discretion she Physician’s is role retained is an to exercise. “essential Because aspect” of the the Team football program for many of the same reasons the University’s healthand-safety clearance requirement, fundamental Class’ requirement proposed alteration in is an essential modification the nature of would the eligibility constitute program. a See Halpern, 669 F.3d at 464 (citing PGA Tour, Inc. v. Martin, 532 36 U.S. 661, 682-83 (2001) (examining a rule’s purpose and importance to the program to determine if it is an essential aspect, such that a change to the rule would fundamentally alter the program)). For judgment these and, reasons, we find derivatively, Towson that the Team University’s Physician’s judgment to reject Class’ proposed accommodations were not unreasonable in the context of the risks. IV Gavin Class is a courageous man of substantial character, which is much to be admired. to validate his He understandably has been seeking determination and perseverance to return to intercollegiate football and “to become the first person to come back from exertional heatstroke and a liver transplant to play football.” While we hold that Towson University acted reasonably in response to the health risks posed by Class’ full participation in its football program, we nonetheless believe that Class has accomplishments. achieved a substantial victory with his He can be proud to tell his story. REVERSED 37 WYNN, Circuit Judge, concurring in part and dissenting in part: Towson University (“Towson”) decided that Gavin Class, a student who had suffered a serious heatstroke, could no longer safely participate in its Division I football program. Class challenged this decision under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. The key question we must answer is what level of deference the district court should have applied in evaluating whether Towson discriminated against Class on account of his alleged disability. The majority opinion and I agree that the district court applied the wrong standard in evaluating Towson’s decision. The Team too Physician’s medical determination that Class faced great a risk of serious injury or death to fully participate in Towson’s football program was entitled to some deference. all agree Kindschi’s that the opinion district to court determine should if it have was reviewed We Dr. individualized, reasonably made, and based upon competent medical evidence. In my view, however, the touchstone of this inquiry should be the objective reasonableness of the university’s decision—not the subjective good faith of the Team Physician, as the majority opinion suggests. Further, I cannot support applying the appropriate standard for the first time here on appeal. Instead, the proper course of action is to remand the case, so that the district court may 38 make factual findings in accordance with the correct standard of deference. Therefore, I respectfully concur in part and dissent in part. I. At the heart of this case is the appropriate level of deference that we should accord to Towson’s decision that Class could no longer safely participate in its football program. I thus address that issue first. Class’s claims arise under two similar provisions of law: the ADA and the Rehabilitation Act. Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of public entity.” the the services, programs, 42 U.S.C. § 12132. Rehabilitation Act imposes or activities of a the Similarly, Section 504 of same prohibition on “any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). 1 Under the ADA, a disabled person is otherwise qualified to participate in disability who, rules, policies, a program with or or if he is without practices, 1 “an individual reasonable . . . with modifications meets the a to essential As the majority opinion notes, the ADA and the Rehabilitation Act are essentially the same in all aspects relevant to this opinion. See ante, at 15 n.2. Accordingly, for the sake of simplicity, I refer solely to the ADA in some portions of this opinion. 39 eligibility program. requirements for . . . participation in” that 42 U.S.C. § 12131(2); see 45 C.F.R. § 84.3(l)(3), (4) (stating a nearly identical standard applicable to Rehabilitation Act claims). In my view, the essential eligibility requirement at issue here is the ability to play football without an unacceptable risk to the player’s health and safety. Med. Sys. Corp., 50 F.3d 1261, 1265 See Doe v. Univ. of Md. (4th Cir. 1995) (“[A]n individual is not otherwise qualified if he poses a significant risk to the health or safety of others.”). I therefore disagree with the majority opinion’s conclusion that “Towson University’s requirement that a student-athlete obtain the Team Physician’s clearance before returning essential eligibility from injury requirement.” is Ante, legitimately at 23. It an is inconsistent with the ADA to elevate the unilateral approval of the entity accused of discrimination to the status of an essential eligibility requirement, as the majority opinion does here. 2 Dr. Kindschi determined whether Class met the pertinent essential eligibility requirement—Class’s 2 ability to play For example, in Halpern v. Wake Forest University Health Sciences, 669 F.3d 454, 463 (4th Cir. 2012), the Court found that professionalism was an essential eligibility requirement for participation in a medical school program. The Court, however, did not frame the eligibility requirement as the medical school’s decision that a student was professional, but instead looked to whether the student in fact possessed that trait. 40 football without an unacceptable risk to his health and safety; her determination itself was not the essential eligibility requirement. 3 With the appropriate essential eligibility requirement in mind, I turn to the standard that the district court should have applied in evaluating Dr. Kindschi’s opinion. My review of the relevant ADA and Rehabilitation Act case law convinces me that Dr. Kindschi’s opinion should have been reviewed for objective reasonableness, in contrast to the majority opinion’s more subjective approach. The majority opinion relies heavily on Halpern, in which a student with anxiety disorder dismiss him Attention challenged from the unprofessional behavior. this Court Deficit afforded his Hyperactivity school medical school’s for and an decision to repeatedly 669 F.3d at 456–57. “great Disorder respect” to exhibiting In that case, the school’s “professional judgments” regarding the student’s qualifications to continue in the Doctor of Medicine program. Id. at 463. In doing so, we noted that in the due process context, “the Supreme 3 In fact, the majority opinion’s own analysis betrays its claim that Dr. Kindschi’s approval was an essential requirement for the program. Class admitted that Towson did not grant him clearance to play. This admission alone would defeat his claim if the clearance decision itself was an essential eligibility requirement, as the majority opinion purports. The majority opinion, however, did not end its analysis there—perhaps realizing that such a circular requirement does not comport with the ADA. 41 Court has held professional that judgment a court should defer regarding a student’s professional qualifications.” to a school’s academic or Id. at 462–63 (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985), and Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 (1978)). This particularly deference ill-equipped was to warranted evaluate “because academic courts are performance.” Id. at 463 (quoting Davis v. Univ. of N.C., 263 F.3d 95, 102 (4th Cir. 2001)); see also Horowitz, 435 U.S. at 92. The majority opinion cited Halpern throughout its opinion, without recognizing that Halpern is readily distinguishable from this case. Halpern involved a determination of academic qualifications, which is different in kind from a determination of physical determined that through necessarily discretion. at 90. to qualifications. science, involve Academic but some eligibility through level individual of is not judgments subjectivity and See Ewing, 474 U.S. at 225 n.11; Horowitz, 435 U.S. Academic eligibility decisions are “not readily adapted the procedural tools of judicial or administrative decisionmaking” because there are few objective standards for the courts to apply. Horowitz, 435 U.S. at 90. In contrast, courts can assess medical determinations with an objective test that looks to the medical facts 42 supporting the entity’s decision. See Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288 (1987); Doe, 50 F.3d at 1265. In Arline, whether a for public instance, school the Supreme violated Court Section considered 504 of the Rehabilitation Act—one of the same provisions relied upon by Class—when it discharged tuberculosis. a teacher 480 U.S. at 275–76. who suffered from The Court held that to determine whether the teacher posed a significant risk to the health and safety of others, the district court must make [findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk . . . , (b) the duration of the risk . . . , (c) the severity of the risk . . . and (d) the probabilities the disease will be transmitted. Id. at 288 essential (alteration to handicapped the in original). Rehabilitation individuals from Congress years passed after the the ADA, Act’s deprivations stereotypes, or unfounded fear.” Three Such an “goal inquiry is of based protecting on prejudice, Id. at 287. Supreme which Court expressly decided provides Arline, that an employer can decide that a disabled individual is unqualified if he or she “pose[s] a direct threat to the health or safety of other individuals in the workplace.” Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 103(b), 104 Stat. 327, 334 (1990) (codified 43 as amended at 42 U.S.C. § 12113(b)). Congress has incorporated similar “direct threat” provisions in other Rehabilitation Act. sections of the ADA and in the See 42 U.S.C. § 12182(b)(3) (applying to places of public accommodation under Title III of the ADA); 29 U.S.C. § 705(20)(D) (excluding those who “constitute a direct threat to the health or safety of other individuals” from the definition of “individual with a disability” under the Rehabilitation Act). In a case arising out of the direct threat provision of Title III of the ADA, Bragdon v. Abbott, 524 U.S. 624 (1998), a dentist refused to provide his standard services to a patient because she was infected with the human immunodeficiency virus. Id. at 628–29. The Supreme Court considered whether it owed deference to the dentist’s determination that the patient posed a direct threat to his health and safety, particularly in light of the fact that he was a health care professional. The Supreme Court held that it “should assess Id. at 648. the objective reasonableness of the views of health care professionals without deferring to their individual judgments.” added). Id. at 650 (emphasis The Court explained: As a health care professional, petitioner had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession. His belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability. 44 Id. at 649 (emphasis added). In the employment context, a similar standard applies when an employer decides whether a disabled employee poses a direct threat to his or her own health and safety. 1630.2(r). In such cases, the employer See 29 C.F.R. § must perform an individualized assessment of the employee’s ability to safely perform the job, “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” Inc. v. Echazabal, standard). Several determinations for 536 U.S. Id.; see also Chevron U.S.A. 73, employment “objective Supreme Court did in Bragdon. 86 cases (2002) have (applying reviewed reasonableness,” just this medical as the See, e.g., Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 484 (5th Cir. 2006); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 31–32 (1st Cir. 2002); Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir. 2000). The Seventh Circuit applied a similar objective evidence standard in Knapp v. Northwestern University, 101 F.3d 473, 485– 86 (7th Cir. 1996), a case on all fours with this one. Knapp, the Seventh Circuit considered whether In Northwestern University violated the Rehabilitation Act by banning a student from playing varsity basketball because he had a potentially fatal heart defect. Id. at 476. 45 The Seventh Circuit held that “medical determinations of this sort are best left to team doctors and universities as long as they are made with reason and rationality and with full regard to possible and reasonable accommodations.” of this Id. at 484. nature, exclusion “the or reasonably medical evidence.” need to court’s place disqualification individualized, Notably, The court explained that in cases made, is of conclusion. ensure an and that individual based upon the was competent Id. at 485. Northwestern University’s “the right decision” Id. be to Indeed, determination or physicians the only might did not reasonable reasonably reach different medical conclusions, and “all universities need not evaluate risk the same way.” Id. The Seventh Circuit simply ensured that the university’s opinion was “based on objective evidence,” id. at 486, with an eye to the Arline factors regarding determinations made in medical risk cases, id. at 485 (quoting Arline, 480 U.S. at 287–88). 4 The Knapp court adopted the correct approach to eligibility decisions in university athletics. The majority opinion purports to adopt the Knapp standard, and to the extent that it does, I concur. However, the majority opinion underemphasizes the need for such decisions to be based on objective evidence 4 Knapp was decided before Bragdon and thus did not rely upon Bragdon’s objective reasonableness language. 46 and supported by competent medical knowledge. also Bragdon, 524 U.S. at 649–50. Id. at 486; see The majority opinion instead considers whether Towson’s decision not to allow Class to play football “was a good-faith application” of Towson’s Return-toPlay policy, which implies that the subjective intent of the Team Physician is a key factor. Ante, at 25. But just as the Supreme Court made clear in Bragdon, subjective good faith will not relieve objectively Towson of liability reasonable. 524 if U.S. at its decision not Following 649–50. was the guidance of the cases interpreting the direct threat provisions, we should take a rigorous look at the medical basis and objective reasonableness of Towson’s decision, in light of thencurrent medical knowledge. See Echazabal, 536 U.S. at 86; Bragdon, 524 U.S. at 649; Arline, 480 U.S. at 288. Having an objective standard is particularly important to avoid the paternalism toward disabled individuals that the ADA is intended to combat. with disabilities discrimination, policies.”); 42 U.S.C. § 12101(a)(5) (“[I]ndividuals continually including Echazabal, paternalism in Paternalism is its . 536 sights particularly encounter . . U.S. various overprotective at 85 forms of rules and (“Congress had when it passed likely to emerge the in ADA.”). questions involving the health and safety of disabled individuals. While universities might subjectively mean well when they find that it 47 is too risky for a disabled person to participate in athletics, that good-faith intention could mask paternalism and stereotypes about those with disabilities. As stated in Knapp, the law “prohibits authorities from deciding without significant medical support that certain activities are too risky for a disabled person. Decisions of this sort cannot rest on paternalistic concerns.” 101 F.3d at 485–86. In sum, I agree with the majority opinion that Towson’s decision should be accorded deference, as long as its conclusion was reasonable, individualized, based on competent medical knowledge, and consistent with Towson’s statutory duty to make reasonable accommodations for disabled students. Such a review requires the court to take a close look at the objective medical evidence supporting the university’s views, and not just the good-faith intention of the university medical staff. Deference in this context is emphatically not a rubber stamp, but rather a willingness to respect the university’s judgment if it is medically and objectively reasonable. II. The majority opinion correctly concludes that the district court failed to apply the correct standard. Instead of assessing Dr. Kindschi’s opinion for objective reasonableness, the district court weighed the testimony of Dr. Kindschi against the testimony of Drs. Casa and Hutson, and found Class’s experts 48 to be more “persuasive.” 1544, 2015 WL Class v. Towson Univ., No. RDB-15- 4423501, at *8 (D. Md. July 17, 2015). In substituting Towson’s judgment with its own, the district court erred. The majority opinion chose to apply the deferential standard to this case, for the first time, on appeal. I, on the other hand, would remand the case to the district court. When the district court applies the wrong legal standard, the best course is generally to remand the case and allow “the trier of fact to re-examine the record in light of the proper legal standard.” Kelley v. S. Pac. Co., 419 U.S. 318, 332 (1974); see also Humphrey v. Humphrey, 434 F.3d 243, 247 (4th Cir. 2006). Only when “the record permits only one resolution of the factual issue” is remand unnecessary. Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982); see also Humphrey, 434 F.3d at 248 (providing as an example that “an appellate court may resolve the case without inevitably produce the standard”). When this remanding same case is if outcome viewed the under in its evidence the would correct entirety, the record does not compel a conclusion either way regarding whether Dr. Kindschi’s decision was individualized, reasonably made, and based upon competent medical evidence. appropriate route to take. 49 Remand is, thus, the In holding aspects of otherwise, the the factual majority opinion record. bends Two key particular mischaracterizations illustrate my concern. First, the majority opinion mischaracterizes the results of heat-tolerance testing conducted by the Korey Stringer Institute (“Institute”). Institute’s really has results as The “test not majority reports been support indicate demonstrably for opinion Dr. concludes that abated” Kindschi’s and the heatstroke the that risk cites decision not Class to return to Towson’s football program. However, expert in Dr. Casa, the of the looked heatstroke, head Institute at these same the to test allow Ante, at 29. and test a leading results and found that Class’s performance was “stellar” and “better than almost any athlete [he] would even pull off the streets.” 302. J.A. Relying upon the test results, Dr. Casa concluded that “without question” it was reasonably participate in Towson’s football program. safe for Class to J.A. 297. Towson sought out the Institute to measure Class’s ability to thermoregulate, and Towson paid for the three tests that the Institute conducted. The third test, performed in June 2015, was the key test for assessing Class’s ability to return to football, since the Institute designed the test to “mimic [the] intensity of what would happen during a football practice” in a hot environment. J.A. 302. By calculating the typical exertion 50 of a collegiate lineman during a preseason practice, the Institute determined that Class would successfully complete the test by running 1.6 miles in nineteen minutes. If Class wished to do more than this, the test would continue for “up to a 1 hour duration.” J.A. 600. Class decisively passed this test and “did demonstrate the ability to thermoregulate.” J.A. 601. In fact, he was able to run 4.25 miles in fifty minutes, meaning he completed “2.7 times (265%) the estimated workload necessary for the defined passing requirements.” reason Class did not complete sixty J.A. 601. minutes of muscle fatigue, not a failure to thermoregulate. The only exercise was Nonetheless, in summarizing the results of this test, the majority opinion simply states that “Class was able to minutes of the scheduled 60-minute test.” perform for only Ante, at 29. 50 This implies that Class failed the test—which he did not—and that he failed because he could not thermoregulate—which is untrue. Second, the majority opinion mischaracterizes the record to create factual support for Dr. Kindschi’s conclusion that the CorTemp system could not prevent Class from suffering another heatstroke. Under the standard we adopt today, Dr. Kindschi’s conclusion must be supported by “competent medical evidence.” Ante, at 24 (quoting Knapp, 101 F.3d at 485). pointed to no literature supporting her medical Dr. Kindschi conclusions, including her claim that a player could still overheat while the 51 CorTemp system was in use. player’s degree internal in a In fact, Dr. Casa testified that a temperature five to ten could minute only go period, up and by about Class one could be removed from play and cooled down before reaching temperatures that are “anywhere near a heatstroke.” J.A. 311. Dr. Casa recommended that Class be cooled down if he reached an internal temperature of 103 degrees Fahrenheit, threshold was very conservative. any medical discount evidence the of noted that this Dr. Kindschi did not point to supporting conclusion but Dr. her Casa, decision a to leading completely heat-illness expert. The majority opinion also notes that dozens of athletes have died from heatstroke, and cites this fact as support for Dr. Kindschi’s conclusion that Class would not be safe. at 34. has Ante, However, there is no evidence in the record that anyone ever suffered heatstroke while being monitored with the CorTemp system, which is used by numerous universities and NFL teams. As Dr. Casa testified: “[i]f he’s using the system, actually, [Class] would be the safest person on the football field because he’s the one person who then could not overheat during practice.” supporting her J.A. 310. opinion, the Without record any does medical not evidence compel the conclusion that Dr. Kindschi’s opinion on the effectiveness of the CorTemp system was objectively reasonable. 52 In pointing out the majority opinion’s mischaracterizations of the record, I do not mean to suggest that Dr. Kindschi’s opinion was not objectively reasonable. merely underscore that the record Perhaps it was. is less clear than I the majority opinion portrays and does not compel the conclusion that Dr. Kindschi’s determination should be upheld. Therefore, the proper remedy is to vacate and remand this case to the district court decision was for consideration individualized, of whether objectively Dr. Kindschi’s reasonable, and supported by competent medical evidence. III. In sum, the majority opinion aptly recognizes that Gavin Class is “a courageous man of substantial character, which is much to be admired.” Ante, at 37. And I agree with the majority opinion that the district court failed to apply the proper standard when assessing Dr. Kindschi’s decision. But the majority opinion places too great an emphasis on Dr. Kindschi’s subjective intent, and not enough emphasis on the objective majority reasonableness opinion makes of her medical opinion. And, its own factual findings instead the of remanding to allow the district court to make factual findings under the correct standard in the first instance. For those reasons, I believe Gavin Class is entitled to more than being 53 “proud to tell his story.” Ante, at 37. respectfully concur in part and dissent in part. 54 Accordingly, I
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