February 2016 - Parks & Recreation - 32

L AW R E V I E W

Otherwise Qualified?
Assuming Class was a " disabled individual " under the ADA based on
an inability to regulate his body temperature during exertion, the federal
appeals court noted that Class had to
prove that he was " otherwise qualified " to participate in Towson University's football program. Specifically,
Class would have to establish " (1) that
he could satisfy the essential eligibility requirements of the program and
(2) if not, whether any reasonable
accommodation by Towson University would enable him to meet these
requirements. "
Moreover, in conducting an " otherwise qualified " inquiry under the
ADA, the federal appeals court acknowledged it " 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. "
According to TU, requiring clearance by the team physician under its
return-to-play policy was an " essential
eligibility requirement for participation
in its football program. "
Further, in determining " whether
an educational institution's eligibility
requirement is essential and whether
it has been met, " the federal appeals
court would " accord a measure of
deference to the school's professional judgment. " As noted by the court,
the NCAA had filed an amicus (i.e.,
friend of the court) brief in this case
supporting TU's policy:
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 spine trauma, cardiac arrest, knee injuries and more. "
Granting the team physician final
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clearance authority, a policy that is
consistent with NCAA guidelines
and national best practices, is a fair
and reasonable manner for Towson
University to coordinate these essential determinations for the unique
and dynamic medical profiles of its
several hundred student-athletes.
Accordingly, the federal appeals
court concluded, " Towson University's
requirement that a student-athlete obtain the team physician's clearance before returning from injury is legitimately an essential eligibility requirement. "
In general, Class did not dispute that
the required medical clearance was a
legitimate and essential eligibility requirement. However, Class contended
" the team physician's medical opinion
was based on her feelings, not on any
medical or scientific evidence. " In so
doing, Class claimed the team physician had " virtually no experience in
dealing with heatstroke " and " never
explained why it would be unsafe for
Class to return to the football field. "
As characterized by Class, the team
physician " merely stated that she was
concerned about his ability to thermoregulate, that she was concerned that
he had a propensity for heatstroke,
that any future heatstroke could be
catastrophic. " Class claimed the team
physician " acknowledged that she was
not aware of any scientific literature or
research that supported her opinion. "
Good Faith Medical Decision
According to the federal appeals court,
the specific issue within the context of
the ADA was " whether the team physician's opinion was reasonable - i.e.,
whether it was individualized, reasonably made and based upon competent
medical evidence. " In resolving this
issue, the court acknowledged that it
would " give the team physician's decision - and derivatively, Towson

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University's decision - a measure of
deference. " That being said, in " considering whether the decision is reasonable, " the court further noted that it
" must be satisfied that it was consistent
with the university's statutory obligations to provide reasonable accommodations and not a pretext for illegal discrimination " prohibited by the ADA.
In evaluating reasonableness, we
must determine whether the team
physician's 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, (2) was in compliance
with the university's statutory obligations to provide reasonable accommodations and (3) was not a disguise for
discrimination under the ADA...
In the opinion of the court, a review
of the record in this case indicated " 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. " Accordingly, the court focused its attention
on " whether Dr. Kindschi and Towson University reasonably considered
Class' proposed accommodations. "
Unreasonable Accommodations?
As cited by the court, Class had
proposed accommodations that he
claimed " would satisfy Towson University's need for his healthy and
safe participation in the football program. " Accordingly, Class contended
the requested accommodations were
reasonable within the context of the
ADA and would " render him 'qualified' under Towson University's return-to-play policy. " In addition to the
" use of padding to protect his abdominal wall, " weakened by multiple surgeries, Class proposed the following
accommodations:
February 2016 - Parks & Recreation

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