Wake Forest Law Review

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.