Wake Forest Law Review

By Sarah Saint

On April 8, 2016, the Fourth Circuit released its published opinion in the civil case of S.B. v. Board of Education of Harford. S.B., a student with disabilities who attend Aberdeen High School in Harford County, Maryland, by and through his mother, A.L., sued the Harford County Board of Education (the “Board”), alleging that the Board violated § 504 of the Rehabilitation Act by allowing other students to bully and harass S.B. because of his disability. S.B.’s stepfather, T.L., who is a teacher and athletic director at Aberdeen High School, sued in his own right, alleging that the Board violated § 504 by retaliating against him for advocating for S.B. The Fourth Circuit affirmed the district court’s grant of summary judgment to the Board, ruling that neither S.B. nor T.L. provided evidence for their claims.

Facts Presented in the Light Most Favorable to S.B. and T.L.

S.B.’s disabilities included Attention Deficit Hyperactivity Disorder, weak visual-spatial ability, and a nonverbal learning disability. During high school, S.B.’s classmates severely bullied him, insulting him with homophobic slurs, sexually harassing him, physically threatening him, and calling him racist names. S.B.’s parents reported these incidents to the school, which investigated each incident. The school regularly disciplined the offenders and assigned a paraeducator to follow S.B. during school to monitor his safety. Nevertheless, this was not to A.L. and T.L.’s liking, and S.B.’s parents eventually began publicly criticizing the school’s efforts to protect S.B in November 2012.

Around the same time, the school denied T.L. the opportunity to complete a practicum for his master’s degree program at Aberdeen High School. Then, in the spring 2013, the school did not give T.L. tickets to a scholarship banquet for student-athletes and informed him that he would not be teaching the summer physical education classes that year, though he had taught it the previous years.

In April 2013, A.L. and T.L. filed the original complaint. In October 2013, T.L. raised concerns at a parents’ forum about the lack of harassment reporting forms available at the high school.

Despite the bullying, S.B. graduated Aberdeen High School on time in June 2014. He consistently achieved passing grades throughout high school and began taking classes at Harford Community College after graduation.

Procedural History

In June 2013, S.B. and his parents amended their complaints to allege violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The claims were premised on the fact that the defendants had discriminated against S.B. on his disability by failing to prevent student-on-student bullying and harassment and had retaliated against S.B.’s parents when they advocated for S.B.

In September 2013, the district court dismissed all the individual defendants and S.B.’s claims under §§ 1983 and 1985. A.L. also voluntarily dismissed her retaliation claim. Before the district court at trial and before the Fourth Circuit on appeal were S.B.’s claim of disability-based discrimination in violation of § 504 and the ADA and T.L.’s claim of retaliation under § 504.

After substantial discovery, in April 2015, the district court granted summary judgment to the Board because there was not evidence to support S.B.’s and T.L.’s claims. For one, there was no evidence in the record that the Board had acted with bad faith, gross misjudgment or deliberate indifference in responding to the harassment. Additionally, there was no evidence of a causal link between T.L. advocating for S.B. and any action taken by the Board.

Standard of Review

The Fourth Circuit reviewed the district court’s decision de novo. Summary judgment is proper when there is no genuine dispute to any material fact and the movant is entitled to a judgment as a matter of law. Fact are viewed and inferences are drawn in the light most favorable to the non-moving party, here S.B. and T.L. If no reasonably jury could find for the non-moving party, the appellate court will affirm a grant for a motion for summary judgment.

Fourth Circuit Adopted Davis Standard of Deliberate Indifference for § 504 Claims

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). S.B. claimed that he was subjected to years of sustained and pervasive student-on-student harassment and bullying based on his disability. By the Board failing to prevent the harassment, S.B. alleged that the Board engaged in disability-based discrimination prohibited by § 504.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed a similar claim under Title IX, which provides for similar protections as § 504 but for gender instead of disability. The Court held in Davis that a school could only be liable for student-on-student harassment when it was “deliberately indifferent” to known acts of such harassment. A negligent failure to learn of or react to student-on-student harassment does not subject a school to liability–only “deliberate indifference to known acts of harassment.” Id. at 642–43.

The Fourth Circuit, in alignment with most other federal courts who have reached this issue, decided that the same reasoning the Davis Court applied to Title IX also applies to § 504 claims arising from student-on-student harassment or bullying because of the statutory parallels. Schools must be on notice of the student-on-student harassment and act with deliberate indifference in order to be held liable for it.

The Fourth Circuit rejected S.B.’s argument that the Fourth Circuit had already adopted a different standard for § 504 liability in 1998: that a school can be liable if the school acted with bad faith or gross misjudgment. The 1998 case that S.B. cited in support of this theory–Sellers v. School Board of City of Manassas, 141 F.3d 524 (4th Cir. 1998)–did not involve school liability for student-on-student misconduct but a school’s own direct conduct. When a school allegedly violates § 504 through it’s own conduct, such as failing to provide a free appropriate public education, the bad faith or gross misjudgment standard applies. However, Sellers said nothing about school liability for student-on-student harassment. Accordingly, the Fourth Circuit found that it is guided by Davis and not Sellers.

S.B.’s Claim of Disability Discrimination in Violation of § 504

To succeed on a § 504 student-on-student harassment claim, a plaintiff must show that he was an individual with a disability; that he was harassed by other students because of his disability; that the disability-based harassment was sufficiently severe, pervasive, and objective offensive that it effectively deprived him of access to educational benefits and opportunities at school; and that the school knew about the disability-based student-on-student harassment and was deliberately indifferent to it.

The Fourth Circuit agreed with the district court that S.B. could not establish that the student-on-student harassment was based on his disability. It was more likely that S.B. was bullied because of his race, which is not actionable conduct under § 504. Further, the Fourth Circuit agreed with the district court that S.B. and his parents never informed the Board that he was being bullied because of his disability, only that he was being bullied. S.B. alleged that the school should have known that the harassment was based on his disability, but the Supreme Court expressly rejected such a standard in Davis.

Finally, the Fourth Circuit agreed with the district court that the Board was not deliberately indifferent under Davis, which is a high standard that requires an official decision by the school no to remedy the student-on-student harassment. The response to the harassment must be clearly unreasonable in light of the known circumstances. Because the school investigated every single incident of harassment of which it was informed, disciplined the offenders, and assigned a paraeducator to accompany S.B., the school acted reasonably. School administrators are entitled to substantial deference when they execute a disciplinary response to student-on-student bullying or harassment, so requests from parents for stronger discipline is not enough to make the school’s chosen actions clearly unreasonable. The Fourth Circuit decided that no reasonable juror could find that the school was less than fully responsive to S.B.’s situation.

T.L.’s Claim of Retaliation in Violation of § 504

Because there was no direct evidence of retaliation, T.L. had to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework to make a prima facie case of retaliation by showing (1) that he engaged in protected activity, (2) that the Board took an adverse action against him, and (3) that the adverse action was causally connected to his protected activity. The Board did not dispute that T.L. engaged in a protected activity, advocating for S.B., a student with disabilities. The Fourth Circuit found that the Board’s decision not to rehire T.L. to teach the summer physical education class was a materially adverse action. Nevertheless, the Fourth Circuit agreed with the district court that no reasonable jury could find the necessary causal connection between the Board’s adverse action and T.L.’s protected activity. The Board proffered the legitimate, non-retaliatory reason for its decision that they needed one male and one female physical education teacher for the summer, and that another male had more experience than T.L. T.L. attempted to rely on the temporal proximity between the reassignment and the protected activity to show the causal connection, but timing alone cannot defeat summary judgment once an employer offered a legitimate, non-retaliatory reason.

Conclusion

Because the Fourth Circuit agreed with the district court that no reasonable juror could find that the school was deliberately indifferent to the student-on-student harassment of S.B. and no reasonable juror could find that there was a causal connection between T.L.’s protected activity and the adverse action against him, the Fourth Circuit affirmed the judgment of the district court granting the Board’s motion for summary judgment.

By Sarah Saint

On March 4, 2016, the Fourth Circuit issued a publish opinion in Gentry v. East West Partners Club Management Company, Inc., a civil case in which Plaintiff Judith Gentry (“Gentry”) sued her former employer East West Partners Club Management Company, Inc. (“East West”) and manager Jay Manner (“Manner”) for wrongful termination in violation of the Americans with Disability Act (“ADA”) in addition to other state and federal law claims. On appeal, Gentry challenges the district court’s jury instructions and the damages award. The Fourth Circuit found no reversible error, and thus affirmed the district court’s judgment.

Gentry’s Injury and Termination

Prior to termination, Gentry was an executive housekeeper at the Maggie Valley Club and Resort (“the Club”). East West managed the Club through Manner. In July 2007, Gentry fell at work and injured her left foot and ankle. She received treatment and surgery, and eventually returned to work in January 2009, though still experiencing pain. In January 2010, her doctor determined that, under North Carolina workers’ compensation guidelines, Gentry had a 30 percent permanent physical impairment and may need further surgery.

When the Club’s insurance carrier offered to settle Gentry’s workers’ compensation claim, Gentry declined and expressed concerns that she would be terminated if she accepted. According to the insurance adjuster, Manner was surprised to learn of these fears, describing Gentry as a “great worker” who did “a great job,” and that he intended to make layoffs due to financial difficulties. Manner denied making these statements. Manner, on the other hand, stated that the insurance adjuster felt extorted by Gentry and that she expected Gentry to make another claim against the Club. The insurance adjuster also denied these statements. Nevertheless, Manner relayed his version of the conversation to the officers of the Club and East West. Gentry’s workers’ compensation claim was settled at mediation in November 2010.

In December 2010, Gentry was terminated. The Defendants claim that the termination was part of a restructuring plan to consolidate management positions due to financial difficulties. Gentry was fired along with two other department heads. All but three housekeeping employees had been terminated. Gentry, on the other hand, alleged that one of the executives told her Manner terminated Gentry because of the “issues with [her] ankle.” The Equal Employment Opportunity Commission (“EEOC”) investigator also confirmed that the executive thought Manner terminated Gentry due to her disability. The executive denied ever making such statements.

Procedural History

Gentry sued the Club and East West for (1) disability discrimination under the ADA and North Carolina common law; (2) sex discrimination under Title VII and North Carolina common law; and (3) retaliation against Gentry for pursuing a workers’ compensation claim, in violation of North Carolina common law. Gentry also sued East West and Manner for tortiously interfering with her employment contract with the Club. The jury found for Gentry on the workers’ compensation retaliation claim and the tortious interference claim. The jury found for the Defendants on all other claims.

On appeal, first, Gentry argued that the district court incorrectly instructed the jury on the causation standard and the definition of disability under the ADA. Second, she argued that the district court erred in refusing to admit certain evidence. Third, Gentry argued that she is entitled to a new trial on damages for claims on which she prevailed.

Standard of Review for Jury Instructions

Challenges to jury instructions are reviewed for abuse of discretion. Jury instructions are viewed in their totality to determine if they adequately informed the jury without misleading or confusing the jury or prejudicing one of the parties. Whether jury instructions were correct statements of law are reviewed de novo. Jury instructions will not be set aside unless they seriously prejudice the objecting party.

ADA Causation Standard

Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a). The district court instructed that Gentry had to prove that her disability was the but-for cause of her termination. Gentry argued that this was in error and that the district court should have instructed that Gentry had to prove that her disability was a motivating factor for her termination. The Fourth Circuit determined that the ADA’s text requires a “but-for” causation standard, and thus the district court did not err in applying a “but-for” causation standard to Gentry’s ADA claim.

Title VII allows for employees to establish actionable disability discrimination under the motivating factor causation standard. The Fourth Circuit pointed to the 1991 amendment to the Civil Rights Act of 1964 providing for this, codifying the Price Waterhouse v. Hopkins decision that first established the motivating factor standard for Title VII cases. However, in Gross v. FBL Financial Services, Inc., the Supreme Court determined that the motivating factor causation standard does not apply to the Age Discrimination in Employment Act (“ADEA”) because Congress did not amend the ADEA when it amended Title VII. The Fourth Circuit determined that the ADA, too, does not allow employees to establish actionable disability discrimination under the motivating factor causation standard, following the reasoning in Gross and joining the Sixth and Seventh Circuits. The few cross-references in the ADA to Title VII do not incorporate the motivating factor standard, contrary to Gentry’s contentions. Using the legislative history and the plain language of the ADA, the Fourth Circuit determined that the language of the ADA requires that “on the basis of” unequivocally means but-for causation.

ADA Definition of Disability

The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).

The district court instructed the jury that an impairment substantially limits a major life activity “if it prevents or significantly restricts a person from performing the activity.” However, EEOC regulations now provide that an impairment does not need to prevent or significantly restrict a major life activity in order to be substantially limiting.

Because Gentry did not initially object to the district court’s instruction, the standard of review is plain error, which requires Gentry to establish that the district court erred, that the error was plain, and that the error probably affected the outcome of the trial. The Fourth Circuit determined that Gentry failed to establish that the error probably affected the outcome of the trial, and thus affirmed the district court’s definition of disability jury instructions. Gentry could not prove that the jury believed her injury was less severe than the jury instruction required. Instead, there was substantial evidence Gentry was terminated for other reasons. In so concluding, the Fourth Circuit considered that Gentry was terminated more than three years after her injury, that no one complained of her ability to do her job, and that her only evidence that she was terminated due to her disability was the disputed statements of Manner.

The district court also instructed the jury that a “regarded as” disability is actionable if “a perception that [Gentry] was disabled, was the ‘but for’ reason that [Defendants] . . . terminate[d] her employment.” The Fourth Circuit  could not see how Gentry was prejudiced by the jury instruction because the jury would have been instructed to find for Gentry if they believed Manner’s alleged statements. Accordingly, the Fourth Circuit found no abuse of discretion and no serious prejudice to Gentry that would warrant vacating the verdict.

Finally, the district court instructed the jury regarding the “record of” disability, to which Gentry also objected. However, because Gentry did not object to the instructions at trial and did not explain how the language affected her case, the Fourth Circuit could not find that the district court erred or otherwise abused its discretion.

State Law Claims and Damages Awards

For the state law claims, the district court instructed the jury that it could award damages for back pay, front pay, emotional pain and suffering, and nominal damages; and that Gentry had to mitigate her damages by seeking and accepting similar employment and that it could reduce the damages award based on what she could have earned. The jury awarded Gentry $10,000 against East West for workers compensation retaliation and $5,000 against East West and Manner each for tortious interference. Gentry argued on appeal that the trial court erred in denying her motion to introduce evidence of East West’s insurance coverage and indemnification and in denying her motion for a new trial on damages.

Gentry argued that the damages award was minimized by the Defendants’ belaboring of their poor financial conditions and the impression that a large award would be overly burdensome. Further, she argued that she should have been allowed to dispel this impression by presenting evidence of East West’s liability insurance and its indemnification agreement with the Club.

Evidentiary rulings are reviewed for abuse of discretion. Rulings will only be overturned if they are arbitrary and irrational. The Fourth Circuit found no such basis for overturning the district court’s decision.

The Defendants’ evidence of their financial status was relevant in their defense that they did not terminate Gentry because of her disability but rather because of their financial situation. Further, Gentry did not sufficiently show how the evidence of the financial troubles would show that the Defendants could not pay a damages award. Finally, the district court instructed the jury to award Gentry “fair compensation” and did not reference the Defendants’ ability to pay.

Gentry also argued that she is entitled to a new trial on damages because the damage award was inadequate and that the jury found that Gentry failed to mitigate her damages against the clear weight of the evidence.

Motions for new trial are reviewed for abuse of discretion, which is a high standard because the district court is in the position to hear from the witnesses and has a perspective an appellate court can not match. The crucial inquiry is whether an error occurred in the conduct of the trial that was so grievous as to have rendered the trial unfair. Gentry did not meet this substantial burden because she could not assert with certainty the reasons for the jury’s decision on damages. Further, she could not assert that the clear weight of the evidence showed that she properly mitigated her damages. Accordingly, the Fourth Circuit affirmed the district court’s denial of Gentry’s motion for a new trial.

Conclusion

The Fourth Circuit affirmed the judgment of the district court on all the issues Gentry raised on appeal.

By Taylor Ey

Today, the Fourth Circuit issued its published opinion, affirming the district court’s decision in the civil case of National Federation of the Blind v. Lamone. This case arose under Maryland statutory law governing absentee voting, and Plaintiffs (The National Federation of the Blind and individual Maryland voters) alleged that the Maryland absentee voting process violates Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.  Defendants were Linda Lamone, Maryland’s State Administrator of Elections, and the five members of Maryland’s State Board of Elections (Board).

After a three-day bench trial, the district court ruled in favor of Plaintiffs, and made three legal conclusions that were the subject of this appeal.  There were three issues before the Fourth Circuit: (1) whether Plaintiffs were denied meaningful access to absentee voting in violation of the ADA and the Rehabilitation Act; (2) whether the online ballot marking tool (online tool) is a reasonable remedial modification; and (3) whether requiring Defendants to allow use of the online tool fundamentally alters Maryland’s voting process.

Plaintiffs Were Denied Meaningful Access to Absentee Voting

The first issue was whether Plaintiffs were denied benefits of a public service, program, or activity on the basis of their disability.  In this case, Maryland state elections are a public activity within the meaning of the ADA and Rehabilitation Act. More specifically, Maryland offers its voters the opportunity to vote by absentee ballot.  Marylanders may obtain an absentee ballot by mail, fax, or electronic download.  The electronic download must be printed, marked by hand, and signed and returned in hardcopy.  To facilitate the electronic absentee balloting process, Maryland has been developing an online ballot marking tool.  The online tool was of particular interest to Plaintiffs who, because of their blindness, often need assistance to cast their votes in elections.  The online tool has not been certified as is required under Maryland law, and thus cannot be used by disabled individuals such as Plaintiffs until it is certified, but it has been found to be a reasonably secure tool.

The Fourth Circuit concluded that the scope of the public program at question was Maryland’s absentee program, rejecting Defendants’ argument that the scope should include Maryland’s entire voting program.  The Court reasoned that the Supreme Court has cautioned against defining the program in question too broadly as that practice will avoid the discriminatory effects, and because Maryland allows any voter to use absentee voting, it is reasonable to limit the scope to Maryland’s absentee voting program.

Additionally, the Court rejected Defendants’ argument that Plaintiffs have no right to vote without assistance.  The ADA requires that Plaintiffs are provided “an opportunity to participate . . . equal to that afforded others.”  See 28 C.F.R. § 35.130(b)(1)(ii) (providing guidance from the Attorney General and the Department of Justice to implement Title II’s mandate against discriminatory acts, whose power was specifically granted by Congress).  Because voting is a fundamentally public activity, and Congress passed the ADA to protect disabled individuals from discrimination, Maryland failed to protect its citizens, Plaintiffs, from discrimination when it effectively required them to rely on others to vote by absentee ballot.  Thus, the Fourth Circuit affirmed the district court’s conclusion that Plaintiffs were denied meaningful access to absentee voting.

The Online Tool Was a Reasonable Remedial Modification

Even though the ADA protects disabled individuals from discrimination based on their disability, the ADA does not go so far as to require a public entity to make unreasonable modifications to accommodate individuals.  Therefore, plaintiffs must propose reasonable modifications to the challenged programs that will allow them meaningful access.  In this case, Plaintiffs could point to the already developed online tool as a reasonable modification, if implemented, that would make absentee voting reasonably accessible.  The district court found that this was a reasonable modification, and because the record supported its decision, the Fourth Circuit affirmed on that issue.

Requiring Defendants to Use the Online Tool Does Not Fundamentally Alter Maryland’s Voting Process

Finally, Defendants asserted a fundamental alteration defense.  To prevail, Defendants had the burden to show that the requested modification, the online tool, would be a fundamental alteration to the program, absentee voting.  Defendants argued that the certification process is fundamental to Maryland voting.  However, the Court classified that argument as merely procedural, rather than substantive to voting, and it was not persuaded.  The district court found that the online tool was reasonably secure and had been used without incident in previous elections (it was used in 2012 before the certification requirement was implemented).  Thus, the Fourth Circuit did not disturb the district court’s conclusions on this issue because they were supported by the record as a whole.

The Fourth Circuit Affirmed the District Court

Because the record supported the conclusions of the district court on all three issues, the Fourth Circuit affirmed.  The Court also noted that, although Maryland did not show any animus in denying its citizens meaningful access to absentee voting, the ADA does not require a showing of animus.  Instead, the ADA seeks to provide broad protections for individuals with disabilities, and where individuals have been deprived of their right to participate, public entities will be required to make reasonable accommodations.

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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.

Judgment Reversed

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.