                                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.
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.




                               2
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       team.      He       was    transported         to    the       Shock

Trauma Unit         at   the   University          of    Maryland      Medical      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.        Applying       its       “Return-to-Play           Policy,”

however,       Towson    University       refused          to    clear     Class        to       play

because the Team Physician, a board-certified sports medicine

doctor,    concluded        that     allowing       Class       to    participate           in   the

football       program      presented     an       unacceptable          risk      of       serious

reinjury       or    death.        The   Return-to-Play              Policy     gave        Towson

University’s Team Physician “final authority” over the issue.

       Class    commenced       this     action          against      Towson       University,

alleging   that       its     decision   to        exclude      him    from     the     football

program amounted to a violation of Title II of the Americans

with    Disabilities           Act     (“ADA”)          and     Section       504       of       the

Rehabilitation Act.             He alleged that his inability to regulate

                                               3
his    body    temperature        and    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      bench     trial,    the    district    court     agreed       with   Class,

concluding that Class’ proposed accommodations were reasonable

and    that    Towson     University       had     violated    the     ADA    and    the

Rehabilitation Act.             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      the    district

court’s judgment, vacating its injunction.                    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

                                            4
determination.        In view of these conclusions, we do not reach

Towson     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.                           Two days

later,    however,    on     August   12,       2013,    Class    collapsed     during

drills from an exertional heatstroke and was taken to the Shock

Trauma    Unit   at    the    University        of    Maryland     Medical    Center.

Class’    heatstroke    resulted      in       multi-organ      failure,     including

liver failure, necessitating a liver transplant.                      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.            He was hospitalized for nearly two

months,     receiving        intensive         medical     care     that     included

chemotherapy to treat post-transplant complications.

     Class still suffers from the effects of his medical trauma.

As a result of the liver transplant, he has a weakened abdominal

wall, which places his internal organs at risk of injury.                            He


                                           5
must take immunosuppressive medications, which increase his risk

of infection.          And he is at a heightened risk of subsequent

heatstroke.          Class’     physicians       have    also    cautioned            that    any

future surgeries would be more complicated.

       After    leaving       the     hospital,     Class      began    a        lengthy      and

grueling       recovery       process.       Initially         unable       to    stand,       he

progressed      over     a    six-month      period     from     using       a    walker      to

beginning to run.              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      Injuries      at        MedStar         Union

Memorial Hospital in Baltimore.                   Under a preexisting contract,

Dr.    Kindschi      served     as    the   Medical     Director       of    Athletics         at

Towson     University          and    the    head       Team     Physician            for     the

University’s 19 Division I teams, including its football team.

Four    other       MedStar    physicians        were   also     engaged         to    provide

services       to    Towson     University’s       student-athletes,              and       those

physicians oversaw the three athletic trainers assigned to the

                                             6
football   team.          In   the     fall     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               physicians;          and    reviewed           medical

literature.         Dr.        Kindschi         did,    however,          clear    Class     to

participate       in      “no        contact         conditioning          in      [a]     cool

environment.”

     The August 2014 heat tolerance test was conducted by the

Korey    Stringer       Institute,          a    center        at    the    University       of

Connecticut      that     researches        issues      related       to    heatstroke       and

heat illness.          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



                                                7
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.


                                        8
Hutson,       the    lead    treating          physician        on    his    liver-transplant

team,    concluding         that       Class       was   “at   acceptable       risk    to   play

collegiate          football       .     .     .     with      appropriate       padding      and

protection.”                She        also        consulted         with      other     medical

professionals         at     MedStar          Union      Memorial       Hospital       and   with

representatives of Towson University’s Athletic Department.                                  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         with        NCAA        requirements        and     national      best

practices,      Towson       University            applied     a     written   Return-to-Play

Policy, which provided that the University’s Team Physician has

the final and autonomous authority in deciding if and when an

injured student-athlete may return to practice or competition.

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 student-
      athlete’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


                                                    9
     for follow-up and final       clearance   prior   to   active
     participation status.

(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
                                   10
        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.




                                            11
      Following      the    commencement          of     this       action    and     Class’

continued       training,    the    Korey    Stringer         Institute      conducted      a

third heat tolerance test of Class on June 19, 2015.                           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    or    lower    for   a   period       of     one   hour.      The       Institute

reported    that      Class     was    able        to     maintain      the        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        in    the    report,       the   five

conditions were that Class:

                                            12
       (1)     [c]ontinue      to    perform         conditioning         workouts
               outside;

       (2)    [c]ontinue to follow the                 mandated      NCAA      heat
              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   trial    in    this     case,   the    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


                                               13
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).”                        The

court     determined     that     Towson     University   had    discriminated

against Class on the basis of this disability by refusing to

provide the requested accommodations, particularly the abdominal

padding    and   internal    temperature      monitoring,     which   the   court

found to be reasonable.           By judgment dated July 17, 2015, the


      1The 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.
                                       14
court      permanently      enjoined       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    the    University’s         football           program     resulting

from    medical      concerns     related       to    his     status       as   a    transplant

recipient and heat stroke victim.”

       From   the     judgment        entered,       Towson    University            filed    this

appeal.        By    order      dated    July     28,      2015,      we    granted      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         one      or    more      major    life

       2
       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.
                                             15
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        on        thermoregulation        are     not        episodic           or    in

remission.         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,     as    it    is    not     a    basic



                                               16
function of life on the same level as walking, breathing, and

speaking”).

     Class    contends   that   he    has    never      asserted    that   playing

football is a major life activity.            Rather, he contends that the

question is whether his impairment, “when active,” substantially

limits   a   major   life   activity,       such   as    walking,    caring   for

himself, or lifting objects.         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


                                      17
for oneself, performing manual tasks, seeing, hearing, eating,

sleeping,        walking,        standing,            [and]        lifting,”           42    U.S.C.

§ 12102(2)(A)       (providing         a    nonexhaustive               list);     and      (2)    the

“operation of a major bodily function,” id. § 12102(2)(B).                                          In

response    to    the        Supreme   Court’s         strict       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        permitted            by    [the        ADA].”         42    U.S.C.

§ 12102(4)(A).          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.”            Id. § 12102(4)(D) (emphasis added).

      Relying      on    the     ADA       Amendments            Act,     Class    argues         that

playing     football           could       incite          his     impaired         ability         to

thermoregulate,          activating          a     condition            that      is     otherwise

dormant.       Of course, when active, the condition would clearly

limit the major life activities of walking, lifting, and caring

for   oneself,          as     occurred          during          Class’     2013       exertional

heatstroke.



                                                 18
       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.                        In this case,

Class’    limitation    on   thermoregulation          can    become    active      only

under the extreme exertion of a prolonged and demanding football

practice or game in high heat and humidity.                   In such conditions,

anyone    could   suffer     heatstroke.          If    “when    active”      were   to

include    the    possibility    of    activation        under    any       condition,

however extreme, it would encompass a broad range of limitations

or   impairments     that    would    drastically        expand       the   scope    of

“disability” under the ADA.           For example, with such a definition

of     disability,   the     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    not   address   whether      Class    has      “a    record    of    such    an

impairment.”      42 U.S.C. § 12102(1)(B).

                                       19
                                          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]         would     enable’          [him]     to     meet        these

requirements.”         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).                               In the

context     of    postsecondary         education,         a     disabled    person       is

qualified if he shows that he “meets the academic and technical

standards      requisite     to    admission          or       participation       in    the

[school’s]       education       program        or    activity.”            45      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.    397,     406   (1979)     (quoting      an    explanatory         note     to    the

original regulations).            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
       In    determining         whether    an      educational        institution’s

eligibility requirement is essential and whether it has been

met,    we   accord    a     measure       of    deference      to     the     school’s

professional judgment.            See Halpern, 669 F.3d at 462-63 (citing

Supreme Court cases “[i]n the context of due-process challenges”

and    several    cases      in     which       “our     sister      circuits     have

overwhelmingly     extended        some    level    of     deference    to    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-to-

Play 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
many others.       See, e.g., Knapp, 101 F.3d at 483 (“[A]lthough

blanket     exclusions       are     generally      unacceptable,             legitimate

physical    requirements       are   proper”       to    ensure       the    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       risk     of

transmitting the infectious disease to others).                             Analogously,

the Supreme Court has held that employers may consider the risk

a   potential      employee’s        disability          poses        to     himself     in

determining whether he is qualified for a job.                               See Chevron

U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84-86 (2002).

       Unlike   with    many   other      educational         activities,       physical

risk is an inherent element of athletic programs.                           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     clearance        authority,        a   policy    that     is

                                          22
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.                               While

this     policy   does      not   completely        safeguard        against      possible

discrimination, it helps to ensure that the physician’s ethical

and professional imperative to care for the best interests of

student-athletes            trumps      other           university        concerns        or

motivations, including those that could be discriminatory.                                Cf.

Arline,     480   U.S.      at    287-88    (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     injury     is    legitimately          an

essential eligibility requirement.                      Class does not appear to

dispute this.         Nor does he contend that he is able, without

accommodation,        to     participate      healthily        and     safely      in     the

football program.           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:

                                            23
       [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         was   reasonable        --    i.e.,    whether      it    was

“individualized,        reasonably        made,       and   based    upon    competent

medical evidence.”            Knapp, 101 F.3d at 485.               And in resolving

this   question,      we   give     the   Team    Physician’s       decision      --    and

derivatively,        Towson    University’s        decision     --    a     measure     of

deference.    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        accommodations        and   not    a

pretext for illegal discrimination.                    See Halpern, 669 F.3d at

463; Knapp, 101 F.3d at 483.                Stated otherwise, in evaluating

reasonableness, we must determine whether the Team Physician’s

                                           24
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 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         University’s       need      for     his      healthy     and    safe

participation          in    the    football          program      and    thus     render   him

“qualified”          under    Towson       University’s         Return-to-Play         Policy.

Specifically,         he     proposes      the    use    of    padding      to   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        are     challenged         by      Towson      University       as

unreasonable:                (1)     the    condition           that      Class’       internal

temperature be closely monitored                      and (2) the condition that all

exercise        be    done     at    the    discretion          and      under   the     direct

observation of a medical professional.                             In particular, Towson

                                                 25
University contends that these proposed accommodations (1) would

impose undue financial and administrative burdens; (2) would not

effectively      reduce    Class’      risk       of     heatstroke;       and    (3)   would

require    fundamental         changes       in    the       nature   of    the    football

program.       The relevant cases indeed note that an accommodation

is     unreasonable        if     it      “imposes            undue    financial          and

administrative        burdens,”       Halpern,         669    F.3d    at    464    (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        University’s        contention            that    the        requested

accommodations          would        impose         an       undue     financial          and

administrative        burden    is     not    well       developed     in    the    record,

although the University did present evidence that its football

trainers are not qualified to implement the CorTemp temperature

                                             26
monitoring system, suggesting that Class’ proposed accommodation

would    require       the    expense     of     training        them    and    even   hiring

additional       personnel.          Moreover,         as    a     matter       of   possible

administrative burden, we have difficulty understanding how the

temperature monitoring system Class proposed could function in

the    context    of    a    football      game,      particularly        for    a   starting

offensive       lineman,      such   as     Class.           During      football      games,

athletic trainers, such as the trainer who would be designated

to    monitor    Class       every   5    to     10   minutes      under       his   proposed

accommodations,         are    not   allowed          to    participate         in   football

huddles unless a timeout has been called.                         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      impose       undue     financial      and

administrative burdens.



                                               27
       But    Towson        University’s      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         eliminate        the    risk    of    a    second     catastrophic

heatstroke,          Dr.      Kindschi        concluded        that      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.                       It is not our role to

agree    or       disagree    with    Dr.    Kindschi’s       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.                We conclude that it was.

       First,       Class     himself      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       of    heat    stroke    as   a    result     of   his

original injury.”            (Emphasis added).




                                             28
       Second,      the        Korey        Stringer       Institute’s            test     reports

indicate     that        the     heatstroke             risk       really     has        not    been

demonstrably abated.              The first report shows that Class failed

to    thermoregulate           adequately         during       a    “low    intensity”          heat

tolerance    test.         The    second          and    third      reports       show    that    he

passed, although he did so with several substantial caveats and

conditions         related        to        his        inability       to      thermoregulate

sufficiently.        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   while       wearing        standard         football      gear,        including      a

uniform,     football          pads,     and      a     helmet,      and    the      specialized

protective padding required to protect his liver.                                 Dr. Casa, the

                                                  29
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,    Class’    August   2013      heatstroke     left   him   with   a

compromised    physical   condition,        including   a   thinner    abdominal

wall,   an    ongoing    requirement    to     take     medications,     and    an

increased susceptibility to a future fatal heatstroke.                   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.            That conclusion leaves only


                                       30
the    question        of   whether     Dr.       Kindschi’s       opinion       that    the

temperature        monitoring       accommodation          would     not    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          trainers      monitor       Class’      internal       temperature

without     a    physician        present,    stating       that    such     a   role    was

“beyond their scope.”               And she concluded that the monitoring

program,    even       if   well    implemented,          would    not     eliminate     the

“meaningful risk of catastrophic reinjury.”                        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         the    monitoring       system,       conceding      that    the

decision        was    “very      difficult”        and     was     made     only       after

“considerable thought.”



                                             31
      Dr.    Kindschi’s   concerns        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       to        caveats   that    reiterated   Dr.

Kindschi’s concerns.      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
      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 body-
      cooling 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    was    necessary      to    remove        him       from     the    game    or

practice.       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     support    is    simply          untenable.           While    he    may

disagree     with      her    judgment,          even     his        expert’s       testimony

purporting      to     support    his       return,        at        least    to     football

                                            33
“practice,”       was   filled      with        serious      caveats    and     precautions.

And   no    one    disputed         that    the        monitoring       effort       would   be

conducted      against        the    continuous             and   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      are   “particularly             ill-equipped”         to    evaluate       the

medical      ineffectiveness               of         proposed        accommodations         in

safeguarding against significant health risks.                           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
deference       to     a     school’s         judgment           regarding          admissions

qualifications).           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.                                 In doing

so, it applied the wrong standard and analysis.                                See Halpern,

669    F.3d    463    (noting      that       courts       are     “at     a       comparative

disadvantage in determining” technical eligibility standards);

Knapp, 101 F.3d at 485 (explaining that “it will be the rare

case   regarding      participation       in        athletics      where       a    court   may

substitute      its      judgment       for        that     of    the     school’s          team

physicians”); Doe, 50 F.3d at 1266 (explaining that the court

was “reluctant” to “substitute [its] judgment for that of [the

university],”        despite      potentially        conflicting         recommendations

from   the     Centers      for   Disease      Control       and     Prevention).            At

bottom,   we    agree      with   the    Seventh          Circuit’s      articulation        in

Knapp regarding the courts’ role in such issues.                               As the Knapp

court stated:

       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.

101 F.3d at 485.




                                              35
                                                  B

       While it is sufficient in evaluating the reasonableness of

a    proposed   accommodation              to    rely       on    only      one      factor,    Towson

University      also       contends        that       the    temperature            monitoring     and

medical supervision proposed by Class would fundamentally alter

the nature of its football program.                         We agree.

       Class’      proposed           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).          Yet

it   would   not      be    possible        to    implement             such    an    accommodation

without upending the critical role of the Team Physician and her

subordinates and impinging on the ongoing professional medical

discretion      she    is     retained           to    exercise.               Because      the   Team

Physician’s      role       is    an       “essential            aspect”       of     the     football

program for many of the same reasons the University’s health-

and-safety      clearance         requirement           is        an    essential       eligibility

requirement,       Class’        proposed         modification              would     constitute    a

fundamental      alteration           in    the        nature          of   the     program.       See

Halpern, 669 F.3d at 464 (citing PGA Tour, Inc. v. Martin, 532

                                                  36
U.S.    661,    682-83      (2001)    (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   these     reasons,      we       find     that       the    Team     Physician’s

judgment     and,    derivatively,            Towson    University’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.                  He understandably has been seeking

to   validate    his    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     achieved         a     substantial             victory    with     his

accomplishments.        He can be proud to tell his story.

                                                                                     REVERSED




                                              37
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    Physician’s    medical     determination      that        Class   faced   too

great a risk of serious injury or death to fully participate in

Towson’s football program was entitled to some deference.                          We

all    agree   that   the   district   court       should    have    reviewed     Dr.

Kindschi’s      opinion     to   determine    if     it     was    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
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       the   services,          programs,        or   activities     of    a

public entity.”         42 U.S.C. § 12132.                     Similarly, Section 504 of

the   Rehabilitation          Act    imposes         the    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    a    program       if    he       is    “an    individual    with       a

disability       who,   with        or   without          reasonable       modifications       to

rules,     policies,        or    practices,          .    .    .   meets    the    essential

      1 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
eligibility            requirements       for    .     .    .   participation           in”    that

program.          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.                         See Doe v. Univ. of Md.

Med.       Sys.    Corp.,    50    F.3d    1261,       1265     (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          from       injury     is     legitimately           an

essential         eligibility       requirement.”               Ante,       at    23.        It    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                 ability      to        play


       2
       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.
                                                 40
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   Attention     Deficit         Hyperactivity      Disorder    and   an

anxiety     disorder    challenged      his       medical    school’s    decision     to

dismiss      him    from      the    school        for      repeatedly      exhibiting

unprofessional behavior.             669 F.3d at 456–57.              In that case,

this       Court   afforded         “great        respect”     to     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.
                                            41
Court    has     held   that    a    court        should        defer     to    a    school’s

professional       judgment      regarding             a    student’s          academic    or

professional qualifications.”                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   deference      was     warranted         “because        courts   are

particularly       ill-equipped      to      evaluate         academic         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    qualifications.                Academic       eligibility         is   not

determined       through    science,      but         through    individual         judgments

that     necessarily       involve     some           level     of    subjectivity        and

discretion.       See Ewing, 474 U.S. at 225 n.11; Horowitz, 435 U.S.

at 90.       Academic eligibility decisions are “not readily adapted

to     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         supporting      the       entity’s



                                             42
decision.       See Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273,

288 (1987); Doe, 50 F.3d at 1265.

      In    Arline,      for     instance,         the    Supreme     Court        considered

whether     a        public     school        violated        Section       504      of     the

Rehabilitation Act—one of the same provisions relied upon by

Class—when       it      discharged          a      teacher     who      suffered           from

tuberculosis.          480 U.S. at 275–76.                 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       (alteration       in    original).         Such     an      inquiry     is

essential       to    the     Rehabilitation          Act’s    “goal        of     protecting

handicapped      individuals          from   deprivations       based       on     prejudice,

stereotypes, or unfounded fear.”                   Id. at 287.

      Three      years        after    the       Supreme    Court      decided       Arline,

Congress      passed     the     ADA,       which    expressly       provides        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      as    amended     at     42    U.S.C.    §


                                              43
12113(b)).      Congress has incorporated similar “direct threat”

provisions      in   other     sections       of    the     ADA    and     in    the

Rehabilitation Act.          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.                  Id. at 648.

The   Supreme   Court   held    that   it     “should     assess   the    objective

reasonableness of the views of health care professionals without

deferring to their individual judgments.”                 Id. at 650 (emphasis

added).   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
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.                       See 29 C.F.R. §

1630.2(r).        In   such    cases,      the   employer       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.”                 Id.; see also Chevron U.S.A.

Inc.   v.    Echazabal,     536   U.S.     73,    86     (2002)    (applying        this

standard).        Several     employment       cases     have     reviewed    medical

determinations      for     “objective     reasonableness,”          just    as      the

Supreme Court did in Bragdon.              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.                               In

Knapp,      the   Seventh     Circuit     considered      whether      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.        The Seventh Circuit held that

                                          45
“medical        determinations            of    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.”             Id. at 484.          The court explained that in cases

of   this       nature,          “the   court’s        place    is    to     ensure       that   the

exclusion            or      disqualification              of        an         individual       was

individualized,             reasonably          made,     and       based        upon     competent

medical evidence.”                Id. at 485.

       Notably,           Northwestern         University’s         determination          did   not

need       to   be        “the     right       decision”       or     the       only    reasonable

conclusion.            Id.         Indeed,      physicians          might       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.
                                                  46
and supported by competent medical knowledge.                           Id. at 486; see

also Bragdon, 524 U.S. at 649–50.                   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-to-

Play 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    Towson    of    liability          if        its    decision      was     not

objectively      reasonable.      524    U.S.       at     649–50.          Following       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 then-

current   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.           42 U.S.C. § 12101(a)(5) (“[I]ndividuals

with    disabilities       continually         encounter             various       forms    of

discrimination,       including     .    .      .    overprotective              rules     and

policies.”);       Echazabal,      536       U.S.         at     85     (“Congress          had

paternalism      in   its      sights     when           it      passed      the     ADA.”).

Paternalism      is   particularly       likely           to     emerge     in     questions

involving the health and safety of disabled individuals.                                  While

universities might subjectively mean well when they find that it

                                         47
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

                                        48
to be more “persuasive.”                Class v. Towson Univ., No. RDB-15-

1544,    2015    WL   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       remanding       if     the      evidence     would

inevitably       produce     the        same     outcome       under        the     correct

standard”).       When     this    case    is    viewed       in   its    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.                        Remand is, thus, the

appropriate route to take.




                                           49
       In    holding           otherwise,       the    majority       opinion           bends       key

aspects           of      the        factual          record.               Two         particular

mischaracterizations illustrate my concern.

       First, the majority opinion mischaracterizes the results of

heat-tolerance testing conducted by the Korey Stringer Institute

(“Institute”).                 The      majority      opinion        concludes          that        the

Institute’s            “test    reports     indicate         that    the    heatstroke            risk

really      has    not     been      demonstrably       abated”       and    cites          the   test

results      as    support        for    Dr.    Kindschi’s      decision          not       to    allow

Class to return to Towson’s football program.                                     Ante, at 29.

However,         Dr.    Casa,     the    head    of    the    Institute       and       a    leading

expert      in    heatstroke,          looked    at    these    same       test    results         and

found that Class’s performance was “stellar” and “better than

almost any athlete [he] would even pull off the streets.”                                          J.A.

302.     Relying upon the test results, Dr. Casa concluded that

“without         question”        it     was     reasonably         safe     for        Class       to

participate in Towson’s football program.                           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
of   a    collegiate      lineman    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.”                    J.A. 601.        The only

reason    Class    did   not   complete     sixty   minutes    of    exercise      was

muscle fatigue, not a failure to thermoregulate.                      Nonetheless,

in summarizing the results of this test, the majority opinion

simply    states     that   “Class    was    able   to    perform    for    only    50

minutes of the scheduled 60-minute test.”                  Ante, at 29.         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).                        Dr. Kindschi

pointed    to   no   literature      supporting     her   medical     conclusions,

including her claim that a player could still overheat while the

                                        51
CorTemp system was in use.                    In fact, Dr. Casa testified that a

player’s     internal        temperature          could   only     go     up    by    about    one

degree    in    a     five      to   ten     minute     period,     and    Class       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,         but    noted       that    this

threshold was very conservative.                       Dr. Kindschi did not point to

any   medical         evidence       supporting         her    decision        to    completely

discount       the    conclusion        of    Dr.      Casa,   a   leading          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.                                      Ante,

at 34.     However, there is no evidence in the record that anyone

has   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.”             J.A.      310.        Without     any    medical       evidence

supporting       her      opinion,         the      record       does     not       compel     the

conclusion that Dr. Kindschi’s opinion on the effectiveness of

the CorTemp system was objectively reasonable.

                                                  52
       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.                       Perhaps it was.             I

merely      underscore    that   the     record       is    less      clear    than     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    for   consideration        of       whether     Dr.     Kindschi’s

decision      was     individualized,          objectively            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     reasonableness      of     her    medical       opinion.          And,    the

majority     opinion     makes   its   own      factual       findings        instead    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



                                          53
“proud   to   tell   his   story.”    Ante,   at   37.   Accordingly,   I

respectfully concur in part and dissent in part.




                                     54
