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.

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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.