Gavin Class v. Towson University

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:15-cv-01544-RDB. [999698562]. [15-1811]

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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.

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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.

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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
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his

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body

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temperature

and

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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
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determination.
Towson

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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

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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
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team.

In

the

fall

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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

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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.

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Hutson,
team,

the

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lead

concluding

collegiate

treating
that

football

protection.”
professionals

She
at

physician

Class
.

.

was
.

also

MedStar

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“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

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for follow-up and final
participation status.

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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
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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.

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Following
continued

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the

training,

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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

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(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

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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
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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.
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court

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permanently

enjoined

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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.
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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

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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

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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

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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

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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

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In

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determining

Pg: 21 of 54

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

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many others.

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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

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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:
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[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

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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

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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

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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

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But

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Towson

University’s

Pg: 28 of 54

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

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Second,
indicate

Filed: 11/13/2015

the

that

Korey

the

thermoregulate

tolerance

test.

Stringer

heatstroke

demonstrably abated.
to

Pg: 29 of 54

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

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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

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question

temperature

of

whether

monitoring

Pg: 31 of 54

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

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Dr.

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Kindschi’s

concerns

Pg: 32 of 54

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.

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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

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“practice,”
And

no

was

one

conducted

Filed: 11/13/2015

filled

disputed

against

with
that

the

Pg: 34 of 54

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

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deference

Filed: 11/13/2015

to

a

qualifications).

school’s

Pg: 35 of 54

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

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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

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U.S.

Doc: 60

661,

Filed: 11/13/2015

682-83

(2001)

Pg: 37 of 54

(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

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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

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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

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eligibility
program.

Filed: 11/13/2015

requirements

for

Pg: 40 of 54

.

.

.

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.
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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.
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has

Filed: 11/13/2015

held

professional

that

judgment

a

Pg: 42 of 54

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

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decision.

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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.

§

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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

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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

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“medical

Filed: 11/13/2015

determinations

of

Pg: 46 of 54

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.
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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
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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
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to be more “persuasive.”
1544,

2015

WL

Pg: 49 of 54

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

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In

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holding

aspects

of

otherwise,
the

Pg: 50 of 54

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

Appeal: 15-1811

of

a

Doc: 60

Filed: 11/13/2015

collegiate

lineman

Pg: 51 of 54

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

Appeal: 15-1811

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Filed: 11/13/2015

CorTemp system was in use.
player’s
degree

internal

in

a

In fact, Dr. Casa testified that a

temperature

five

to

Pg: 52 of 54

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.
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Pg: 53 of 54

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

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Appeal: 15-1811

“proud

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to

tell

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his

story.”

Pg: 54 of 54

Ante,

at

37.

respectfully concur in part and dissent in part.

54

Accordingly,

I