                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
12   Doe, et al. v. Woodford County               No. 99-5369                  Pursuant to Sixth Circuit Rule 206
     Bd. of Educ., et al.                                              ELECTRONIC CITATION: 2000 FED App. 0176P (6th Cir.)
                                                                                   File Name: 00a0176p.06

Appellee’s Br. at 20. Nothing more is reported. When asked
at his deposition if he had reason to believe that other players   UNITED STATES COURT OF APPEALS
heard this conversation, John replied, “I really don’t know
. . . . There were a few others out there, but I’m not sure if                     FOR THE SIXTH CIRCUIT
they heard. Possibly.” John Doe Dep. at 17; J.A. at 450. John                        _________________
further admitted that he had not asked any of the other players
if they had overheard the conversation as well. John Doe
                                                                                                     ;
Dep. at 17-18; J.A. at 450-51. We find this to be insufficient
                                                                                                      
evidence as a matter of law that anyone else heard the             MARY DOE; JOHN DOE, by
                                                                                                      
conversation.                                                      and through his next friend,
                                                                                                      
                                                                   Mary Doe,
                                                                                                      
   For these reasons, we find there was no violation of John                                               No. 99-5369
                                                                            Plaintiffs-Appellants,
                                                                                                      
Doe’s rights under the Act. Any disclosure is protected by the
                                                                                                       >
                                                                                                      
exceptions under the Act. Moreover, there is no proof that
                                                                              v.
                                                                                                      
anyone other than John Doe, Chapman, and Gibson were

                                                                                                      
aware of the conversation concerning John Doe’s medical

                                                                                                      
status. We therefore affirm the district court’s grant of          WOODFORD COUNTY BOARD
                                                                                                      
summary judgment on plaintiff’s Family Education Rights            OF EDUCATION; WILLIAM S.

                                                                                                      
and Privacy Act claim.
                                                                   FOLEY, Dr., Chairperson and
                                                                   his successor, in his official     
                                                                                                      
            IV. Plaintiff’s Due Process Claim

                                                                                                      
                                                                   capacity as member of the
  Lastly, since we find that John Doe has suffered no
                                                                                                      
                                                                   Woodford County Board of
deprivation of his rights under § 504 of the Rehabilitation
                                                                                                      
                                                                   Education; AMBROSE
Act, the ADA, or the Family Education Rights and Privacy
                                                                                                      
Act, we agree with the court below that John suffered no           WILSON, IV, and his
                                                                                                      
violation of his due process rights as guaranteed by the           successor, in his official
Fourteenth Amendment.                                              capacity as member of the          
                                                                                                      
                                                                                                      
                                                                   Woodford County Board of
                           * * *
                                                                                                      
                                                                   Education; MARGIE
                                                                                                      
  Based on the foregoing reasons, we agree with the district       CLEVELAND, and her
                                                                                                      
court that there are no genuine issues of material fact and that   successor, in her official
                                                                                                      
defendants are entitled to judgment as a matter of law.            capacity as member of the
                                                                                                      
Defendants actions did not violate John Doe’s civil rights
                                                                                                      
                                                                   Woodford County Board of
under § 504 of the Rehabilitation Act, the ADA, or the Family
                                                                                                      
                                                                   Education; DAVID MOORE,
Education Rights and Privacy Act. We, therefore, AFFIRM
                                                                                                      
the judgment of the district court.                                and his successor, in his
                                                                                                      
                                                                   official capacity as member of


                                                                                               1
2    Doe, et al. v. Woodford County    No. 99-5369   No. 99-5369             Doe, et al. v. Woodford County       11
     Bd. of Educ., et al.                                                                  Bd. of Educ., et al.


                                                    including “other school officials, including teachers within
                                   
 the Woodford County Board                           the educational institution . . .,” who have been determined to
                                   
 of Education; P. T. VANCE,                          have a legitimate educational interest in the child. 20 U.S.C.
                                   
 and his successor, in his                           § 1232g(b)(1)(A). An educational institution also “may
                                   
 official capacity as member of                      disclose personally identifiable information from an
                                                    educational record to appropriate parties” if it is necessary to
                                   
 the Woodford County Board
                                                     protect the health or safety of the student or others. 34 C.F.R.
                                   
 of Education; CHARLES L.
                                                     § 99.36. While “personally identifiable information” is
                                   
 DOWLER, Dr., in his                                 narrowly defined by the Act’s regulations as including only
                                   
 individual capacity, and his                        the student’s name, parent’s name, the student’s or parent’s
                                   
 successor, in his official                          address, social security number, or other information that
                                   
 capacity as Superintendent of                       would make the student’s identity easily traceable, and may
                                                    not include a suggestion to review a student’s medical records
                                   
 the Woodford County Public
                                                     on file with the school, the exception does reveal Congress’
                                   
 Schools; CORLIA LOGSDON,                            intention to allow disclosure when there are genuine health or
                                   
 and her successor, in her                           safety concerns for the student or others. See 34 C.F.R.
                                   
 official capacity as Section                        § 99.3.
 504 and ADA Coordinator for       
                                   
                                                       Plaintiff argues the fact that John and other basketball
                                   
 the Woodford County Public
                                                     players heard Chapman’s “disclosure of information”
                                   
 Schools; ROY CHAPMAN, in                            effectively rules out any argument that the conversation is
                                   
 his individual capacity, as                         covered by any exceptions. We find based on the record that
                                   
 Principal, Woodford County                          plaintiff fails to provide anything more than a scintilla of
                                   
 Middle School; MIKE                                 evidence to support the claim that other players overheard the
                                   
 BURKICH, in his individual                          conversation. In reviewing grants of summary judgment, “the
                                   
                                                     mere existence of a scintilla of evidence” in support of the
                                   
 capacity, as Principal,
                                                     plaintiff’s position is insufficient to overturn a grant of
                                   
 Woodford County Middle                              summary judgment. There must be evidence on which a jury
                                   
 School; GENE KIRK, in his                           could reasonably find for the plaintiff. Anderson v. Liberty
                                   
 individual capacity, and his                        Lobby, Inc., 477 U.S. 242, 252 (1986). As pointed out in
                                   
 successor, in his official                          defendant’s brief, the following is what John testified as
                                   
                                                     overhearing:
                                   
 capacity as Head Basketball

                                   
 Coach, Woodford County                                  Chapman: What about [John Doe]?
                                   
 High School; BOBBY GIBSON,
                                   
 in his individual capacity, and                         Gibson:     What about him?
                                   
 his successor, in his official
                                   
 capacity as Assistant                                   Chapman: Well, you might want to check his medical
                                                                  records to see if everything is okay to play.
 Basketball Coach, Woodford
10   Doe, et al. v. Woodford County              No. 99-5369      No. 99-5369                Doe, et al. v. Woodford County             3
     Bd. of Educ., et al.                                                                                  Bd. of Educ., et al.


                                                                                                            
defendants faced potential liability from other students and
                                                                                                            
parents if they allowed John to play on the team and another       County High School,
                                                                                                           1
student accidently became exposed to John’s contagious                    Defendants-Appellees.
condition. Under the circumstances, defendants acted quite
appropriately when they placed John on “hold” status over a              Appeal from the United States District Court
brief three week period while defendants decided how they             for the Eastern District of Kentucky at Lexington.
should proceed.         According to principal Burkich’s          No. 97-00105—Henry R. Wilhoit, Jr., Chief District Judge.
memorandum dated November 11, 1996, it appears that after
careful consideration and weighing of all options, defendants                           Argued: May 4, 2000
decided to allow John to participate fully on the team with no
further restrictions. It is at this time John, by his own                        Decided and Filed: May 26, 2000
volition, chose to no longer remain a member of the team.
We therefore find no violation of John’s rights as secured by         Before: MERRITT, CLAY, and CUDAHY*, Circuit
the Rehabilitation Act or the ADA and affirm the grant of                               Judges.
summary judgment for the defendants. We pretermit any
issue concerning exhaustion of administrative remedies under                             _________________
the Rehabilitation Act and the ADA. The district court did
not reach this issue, and we have chosen to review the district                               COUNSEL
court’s decision on the merits.
                                                                  ARGUED: Edward E. Dove, Lexington, Kentucky, for
III. Plaintiff’s § 1983 action for violation of the Family        Appellants. Robert L. Chenoweth, CHENOWETH LAW
           Education Rights and Privacy Act                       OFFICE, Frankfort, Kentucky, for Appellee. ON BRIEF:
                                                                  Edward E. Dove, Lexington, Kentucky, for Appellants.
  The Family Education Rights and Privacy Act, 20 U.S.C.          Robert L. Chenoweth, Patricia Todd Bausch, CHENOWETH
§ 1232g, also referred to commonly as the Buckley                 LAW OFFICE, Frankfort, Kentucky, for Appellee.
Amendment, protects educational records or personally
identifiable information from improper disclosure. The                                   _________________
pertinent provision reads:
                                                                                             OPINION
  No funds shall be made available under any applicable                                  _________________
  program to any education agency or institution which has
  a policy or practice of permitting the release of education       MERRITT, Circuit Judge. Plaintiff, Mary Doe, on behalf
  records (or personally identifiable information . . . ) of      of her son John Doe, charges that defendants, Woodford
  students without the written consent of their parents to        County Board of Education, individual members of the board,
  any individual, agency, or organization . . . .                 and individual principals/teachers, violated § 504 of the
20 U.S.C. § 1232g(b)(1).
  Nonetheless, there are exceptions which allow disclosure            *
                                                                       The Honorable Richard D. Cudahy, Circuit Judge of the United
without written consent to certain people, among these            States Court of Appeals for the Seventh Circuit, sitting by designation.
4    Doe, et al. v. Woodford County               No. 99-5369      No. 99-5369              Doe, et al. v. Woodford County         9
     Bd. of Educ., et al.                                                                                 Bd. of Educ., et al.

Rehabilitation Act, 29 U.S.C. § 794, Title II of the Americans       safety of others that cannot be eliminated by a
with Disabilities Act, 42 U.S.C. § 12132, the Family                 modification of policies, practices, or procedures or by
Education Rights and Privacy Act, 20 U.S.C. § 1232g, as well         the provision of auxiliary aids or services.” Id.
as due process rights when defendants placed John Doe, a
member of the Woodford County High School junior varsity           Montalvo, 167 F.3d at 876. In determining such a threat,
basketball team, on “hold” status pending the receipt of a         citing 28 C.F.R. § 36.208(c) as well as Arline, 480 U.S. at
medical clearance from his doctor. John Doe is a hemophiliac       287-288, the Montalvo court held that one cannot rely on
and a carrier of the hepatitis B virus. The district court         stereotypes or generalizations about the effects of a disability
granted defendants’ motion for summary judgment on all of          to determine if a disability poses a threat, but rather must
plaintiff’s claims. Plaintiff now appeals, and upon review we      make individual assessments based on reasonable judgment
affirm the judgment of the district court.                         relying on current medical knowledge or objective evidence.
                                                                   Montalvo, 167 F.3d at 876. Under these guidelines, we find
                           I. Facts                                that defendants in this case were indeed attempting to make
                                                                   such a determination. Defendants never actually removed
  John Doe was diagnosed with hemophilia when he was four          John Doe from the junior varsity basketball team, but simply
months old, and at the age of five, it was determined that he      placed him on “hold” status while they waited for medical
suffered from hepatitis B. Despite John’s illness, he has          direction as to how to proceed. It is entirely reasonable for
participated in athletics throughout his life without incident.    defendants to be concerned and arguably were obligated to be
In 1996, while a freshman at Woodford County High School,          concerned with limiting risk of exposure of any contagion to
he became a member of the school’s ninth grade junior varsity      others as well as limiting any injury that John may suffer. In
basketball team. The school had adopted a “no-cut” policy          an effort to ensure that John’s participation in practice would
for ninth graders wishing to play on the team. In other words,     not pose a threat to the safety and well being of John as well
any ninth grader wishing to play on the junior varsity team        as other players, the school requested plaintiff to present some
was automatically selected to be a member. John therefore          objective medical evidence to that effect. After receiving a
began practicing with the team.                                    very general letter from John Doe’s doctor, defendants asked
                                                                   for a more definitive statement as to the safety of John’s
  On the afternoon of October 20, 1996, a few days after the       participation on the team. For purposes of liability, it does
team began practicing, defendant Roy Chapman, principal of         not matter that defendants eventually determined, according
Woodford County Middle School, noticed John in the gym             to its inter-office memorandum, that John should be allowed
practicing with the team. Chapman, who was aware of John’s         to fully participate on the basketball team. Rather,
medical condition, approached Bobby Gibson, the team’s             defendants, during this “hold” status period, were simply
coach and suggested to Gibson that he check John’s medical         trying to balance the need of protecting the public health with
records on file with the school to see if it was appropriate for   John’s rights not to be treated differently due to his disability.
him to play. According to John, he overheard this
conversation between Chapman and Gibson and alleges other            The facts of this case suggest that defendants were in a
players heard the conversation as well. This allegation serves     catch-22 situation. On one hand, defendants had to be aware
ground for plaintiff’s Family Education Rights and Privacy         of possibly infringing upon John’s civil rights under the
Act violation.                                                     Rehabilitation Act and the ADA if they excluded John from
                                                                   participation on the basketball team. On the other hand,
8      Doe, et al. v. Woodford County               No. 99-5369     No. 99-5369             Doe, et al. v. Woodford County       5
       Bd. of Educ., et al.                                                                               Bd. of Educ., et al.

other basketball teams without incident. Additionally,                 The following day, Gibson checked John’s school medical
defendants admit that its junior varsity basketball program         records and discovered a counselor’s physical form stating
was operating under a “no cut” policy, meaning that any ninth       that the student “[s]hould not engage in activities which
grade student wishing to play was selected. Nonetheless, as         would put him at increased risk for physical injury.” On the
an exception, a disabled person may not be “otherwise               back of this form, Gibson read that John suffered from
qualified” under both acts, and thus may be excluded from           hemophilia and hepatitis B. Gibson then met with his overall
participation in a program, if his or her participation is a        supervisor, defendant Mike Burkich, principal of the high
direct threat to the health and safety of others. See Sch. Bd. of   school, and sought advice concerning John’s condition and
Nassau County v. Arline, 480 U.S. 273, 287-88, 107 S. Ct.           his participation on the basketball team. Burkich instructed
1123, 94 L. Ed. 2d 307, (1987) (setting forth criteria for          Gibson to place John’s status as a player on “hold” and seek
determining, under § 504 of the Rehabilitation Act, if a            medical direction and clearance for physical activities from
tubercular teacher posed a significant risk to the school           John’s doctor. Shortly after the decision was made to place
community) (direct threat exception later codified in 42            John on “hold” status, Gibson informed John that he could
U.S.C. § 12182(b)(3)). We find that defendants were                 not practice with the team and offered John the opportunity to
attempting to make such a determination when they placed            be the team’s manager.
John on “hold” status and that they may not be found liable
for discrimination during this interim period.                        After John’s mother learned of what occurred, a meeting
                                                                    was held on October 26, 1996, between John’s mother, Mary
  The Fourth Circuit in Montalvo v. Radcliffe, 167 F.3d 873         Doe, Coach Gibson, and the school’s counselor, Allyson
(4th Cir. 1999), discusses the direct threat exception in the       Lusby, concerning his “hold’ status with the team. Mary Doe
context of Title III of the ADA, but its discussion is relevant     offered to provide the school with any documentation needed
for our purposes. In that case the Fourth Circuit, finding that     to allow John to play on the school’s team. The meeting
a disabled child posed a threat to the health and safety of         ended with an understanding that John would be allowed to
others, held that defendant did not violate the ADA when it         play, but the school needed something from a medical
excluded a child carrying the human immunodeficiency virus          professional indicating that it would be safe for John to play.
(HIV) from a traditional Japanese style martial arts school         John then returned to practice, but was told to sit on the
where the risks for bloody, though minor, injuries were high.       sidelines for certain drills. Later in the week, he was again
See Montalvo, 167 F.3d at 874-75. That court found:                 removed from practice and asked again about becoming the
                                                                    team’s manager.
      Recognizing that the need to protect public health may
    at times outweigh the rights of disabled individuals,             Another meeting was held between Mary Doe and school
    Congress created a narrow exception to this broad               officials October 30, 1996, this time with Gibson, Lusby,
    prohibition against discrimination based on disability in       Principal Burkich, and defendant Gene Kirk, head basketball
    places of public accommodation. Thus, a place of public         coach for the high school. They discussed the possible risks
    accommodation is entitled to exclude a disabled                 presented by John’s afflictions, and the officials decided that
    individual from participating in its program “where such        John would continue to be placed on “hold” status until they
    individual poses a direct threat to the health and safety of    received a statement from a medical doctor on whether it was
    others.” 42 U.S.C. § 12182(b)(3). The Act defines               appropriate for John to fully participate on the team. The
    “direct threat” as “a significant risk to the health and        officials noted that John’s membership on the team was never
6      Doe, et al. v. Woodford County              No. 99-5369   No. 99-5369              Doe, et al. v. Woodford County        7
       Bd. of Educ., et al.                                                                             Bd. of Educ., et al.

terminated; rather John would simply not be allowed to           were ever informed of Burkich’s November 11 memorandum.
participate fully in practice until receipt of a medical         Plaintiff then filed this lawsuit.
statement authorizing his participation.
                                                                     II. Plaintiff’s claims for violation of § 504 of the
  On November 1, 1996, coach Gibson received a facsimile                Rehabilitation Act and Title II of the ADA
from Dr. Ardis Hoven, a physician who was treating John’s
hepatitis condition. His letter stated as follows:                  Plaintiff alleges that defendants violated § 504 of the
                                                                 Rehabilitation Act and Title II of the Americans with
    Mr. [John Doe] has been under my care at the Lexington       Disabilities Act. Section 504 provides that “no otherwise
    Clinic and his mother has requested a letter regarding his   qualified individual with a disability... shall, solely by reason
    status regarding basketball [sic].                           of her or his disability be excluded, from participation in, be
    I have some reservations about [John’s] health but I think   denied the benefits of, or be subjected to discrimination under
    overall, he is capable of playing basketball. He does        any program or activity receiving Federal financial assistance
    have hemophilia which is going to put him at some risk       . . . .” 29 U.S.C. § 794. Similarly, Title II of the ADA
    for difficulties. Your consideration regarding this matter   provides that “no qualified individual with a disability shall,
    is greatly appreciated.                                      by reason of such disability, be excluded from participation in
                                                                 or be denied the benefits of the services, programs, or
Unsatisfied with the vagueness and generality of this letter,    activities of a public entity, or be subjected to discrimination
Coach Gibson continued John’s “hold” status until more was       by any such entity.” 42 U.S.C. § 12132. Federal courts,
learned about how to proceed. Then on November 11, 1996,         including the Sixth Circuit, have held that because the
principal Burkich sent an interoffice memorandum to coach        purpose, scope, and governing standards of the “acts are
Kirk, instructing Kirk to treat John like all other players,     largely the same, cases construing one statute are instructive
despite his medical condition, and to allow John to practice     in construing the other.” McPherson v. Michigan High
with the team immediately. John or his mother did not            School Athletic Ass’n, Inc., 119 F.3d 453, 460 (6th Cir. 1997).
receive any notice of this memorandum.                           As a result we will discuss plaintiff’s Rehabilitation Act claim
                                                                 and plaintiff’s ADA claim together.
  Unhappy with how the school was handling his situation
and his concerns about being treated differently than other        At first glance, it appears that John is an “otherwise
student athletes, John decided that he no longer wanted to       qualified” disabled person under § 504 of the Rehabilitation
play for the junior varsity team. Learning of her son’s          Act and Title II of the ADA. To be qualified under each act,
decision, Mary Doe organized a final meeting between herself     the plaintiff must simply show that he or she is qualified to
and school officials on November 12, 1996, to express her        perform the function with or without reasonable
dismay with how the school had handled her son’s situation       accommodation by the defendant. See Burns v. City of
and hopefully point out the deficiencies the school had in       Columbus, 91 F.3d 836, 841 (6th Cir. 1996); Monette v.
dealing with the kinds of problems presented by a student        Electronic Data Systems Corp., 90 F.3d.1173, 1178 (6th Cir.
with these types of disabilities. Mary Doe then informed         1996). Plaintiff throughout discovery has argued that John is
school officials of John’s decision to no longer play            qualified to play on the basketball team without
basketball for the junior varsity team. Neither Mary nor John    accommodation, and there has been no challenge to evidence
                                                                 presented by the plaintiff regarding his past participation on
