In the
United States Court of Appeals
For the Seventh Circuit
No. 96-3450
NICHOLAS KNAPP,
Plaintiff-Appellee,
v.
NORTHWESTERN UNIVERSITY, an Illinois
not-for-profit corporation, and RICK TAYLOR,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 6454--James B. Zagel, Judge.
ARGUED NOVEMBER 7, 1996--DECIDED NOVEMBER 22, 1996
Before BAUER, DIANE P. WOOD, and EVANS,
Circuit Judges.
EVANS, Circuit Judge. Nicholas Knapp wants to play
NCAA basketball for Northwestern University--so badly
that he is willing to face an increased risk of death to
do so. Knapp is a competent, intelligent adult capable of
assessing whether playing intercollegiate basketball is
worth the risk to his heart and possible death, and to him
the risk is acceptable. Usually, competent, intelligent
adults are allowed to make such decisions. This is especial-
ly true when, as here, the individual's family approves
of the decision and the individual and his parents are
willing to sign liability waivers regarding the worst-case
scenario should it occur.
Northwestern, however, refuses to allow Knapp to play
on or even practice with its men's basketball team. Knapp,
currently a sophomore at Northwestern, has the basket-
ball skills to play at the intercollegiate level, but he has
never taken the court for his team. Although Northwestern
does not restrict him from playing pick-up basketball
games, using recreational facilities on campus, or exert-
ing himself physically on his own, the university disquali-
fied Knapp from playing on its intercollegiate basketball
team. The issue in this case boils down to whether the
school--because of sec. 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. sec. 794--will be forced to let Knapp
don a purple uniform and take the floor as a member of
Northwestern's basketball team.
Prior to his senior year of high school Knapp was rated
among the best basketball players in Illinois. He was re-
cruited by numerous universities, including Northwestern.
At the end of Knapp's junior year at Peoria's Woodruff
High School, Northwestern orally offered him an athletic
scholarship to play basketball. Knapp orally accepted the
offer.
A few weeks into his senior year, Knapp suffered sud-
den cardiac death--meaning his heart stopped--during a
pick-up basketball game. Paramedics used cardiopulmonary
resuscitation, defibrillation (i.e., electric shocks), and in-
jections of drugs to bring Knapp back to life. A few weeks
later, doctors implanted an internal cardioverter-defibril-
lator in Knapp's abdomen. The device detects heart ar-
rhythmia and delivers a shock to convert the abnormal
heart rhythm back to normal. In other words, if Knapp's
heart stops again the device is supposed to restart it.
On the day following his sudden cardiac death, North-
western informed Knapp and his family that whatever the
ultimate medical decision, Northwestern would honor its
commitment for a scholarship. Seven weeks after his col-
lapse Knapp signed a national letter of intent to attend
Northwestern.
Knapp did not play basketball during his senior year
in high school, but he was always a superb student, and
in June 1995 he graduated as the valedictorian of his class.
In September 1995 he enrolled as a Northwestern student.
On November 7, 1995, Dr. Howard Sweeney, North-
western's head team physician, declared Knapp ineligible
to participate on Northwestern's men's basketball team
for the 1995-96 school year./1 Dr. Sweeney based his deci-
sion on Knapp's medical records in which several treating
physicians recommended that Knapp not play competitive
basketball, the report of team physician Dr. Mark Gardner
following a physical examination of Knapp, published
guidelines and recommendations following two national
medical conferences known as the Bethesda Conferences/2
regarding eligibility of athletes with cardiovascular abnor-
malities, and recommendations of physicians with whom
Dr. Gardner and Dr. Sweeney consulted. After the basket-
ball season ended, Northwestern and the Big Ten declared
Knapp permanently medically ineligible to play basketball.
Northwestern's athletic director, Rick Taylor, later con-
firmed that Northwestern will never voluntarily let Knapp
play intercollegiate basketball as a Wildcat.
As a result, Knapp has never practiced with the North-
western team nor played in a college game. His scholarship
nevertheless continues and he attends practices (though
he is not allowed to do anything but watch, apparently).
He also receives other benefits afforded to athletes (such
as tutoring, counseling, and training table), in addition to
the full range of academic and nonacademic offerings the
university provides to all students.
On the same day Dr. Sweeney declared him ineligible,
Knapp filed a complaint in federal district court asserting
that Northwestern's actions violated the Rehabilitation
Act. The suit sought declaratory relief, preliminary and
permanent injunctive relief, and compensatory damages.
Knapp's undisputed goal is to force Northwestern to allow
him to play varsity basketball.
In May 1996 Northwestern filed a motion for summary
judgment, and Knapp thereafter requested a permanent
injunction. The district court held a hearing on September
6, 1996, solely to determine whether Knapp presently is
medically eligible to play intercollegiate basketball.
Presented with conflicting evidence, the district court
found Knapp medically eligible and Northwestern in viola-
tion of the Rehabilitation Act. After subsequent hearings
on the issue of reasonable accommodation, the district
court denied Northwestern's motion for summary judgment
and entered a permanent injunction prohibiting North-
western from excluding Knapp from playing on its basket-
ball team for any reason related to his cardiac condition.
The district court's decision was based on the affidavit
of Knapp and the testimony and affidavits of two experts
presented by Northwestern and three experts presented
by Knapp. All the experts agreed Knapp had suffered sud-
den cardiac death due to ventricular fibrillation; even with
the internal defibrillator, playing intercollegiate basket-
ball places Knapp at a higher risk for suffering another
event of sudden cardiac death compared to other male col-
lege basketball players; the internal defibrillator has never
been tested under the conditions of intercollegiate basket-
ball; and no person currently plays or has ever played
college or professional basketball after suffering sudden
cardiac death and having a defibrillator implanted. North-
western's experts, cardiologists who participated in at
least one of the Bethesda conferences, testified that play-
ing intercollegiate basketball significantly and unacceptably
increases Knapp's risk of death. At least one of North-
western's experts stated that individuals with internal de-
fibrillators should not play intercollegiate basketball.
Knapp's expert cardiologists, one of whom, Dr. Lawrence
Rink, is Knapp's treating cardiologist and an Indiana Uni-
versity basketball team physician, testified that although
Knapp is at an increased risk for sudden cardiac death,
that risk, especially with the internal defibrillator in place,
is insubstantial or at least acceptable.
After tasting defeat in the district court, Northwestern
filed an emergency notice of appeal on September 27,
1996. It also sought a stay of enforcement of the injunction. We
expedited the proceedings, granted the stay pend-
ing this decision, and heard oral arguments on November
7, 1996, ironically one year to the day after Dr. Sweeney
first declared that Knapp could not play basketball for
Northwestern.
We review the district court's grant of a permanent in-
junction for abuse of discretion. United States v. Kaun,
827 F.2d 1144, 1148 (7th Cir. 1987). Factual determina-
tions are reviewed under a clearly erroneous standard and
legal conclusions are given de novo review. A factual or
legal error may be sufficient to establish an abuse of dis-
cretion. Id. Interpretation of the Rehabilitation Act
presents legal questions calling for de novo review.
The Rehabilitation Act, which is the sole basis for
Knapp's claim, ensures that
[n]o otherwise qualified individual with a disability
in the United States, as defined in section 7(8) [29
USCS sec. 706(8)], shall, solely by reason of her or his
disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimina-
tion under any program or activity receiving Federal
financial assistance . . . .
29 U.S.C. sec. 794(a). To prevail on his claim for discrimina-
tion under the Act, Knapp must prove that: (1) he is dis-
abled as defined by the Act; (2) he is otherwise qualified
for the position sought; (3) he has been excluded from the
position solely because of his disability; and (4) the posi-
tion exists as part of a program or activity receiving fed-
eral financial assistance. Byrne v. Board of Educ., School
of West Allis-West Milwaukee, 979 F.2d 560, 563 (7th Cir.
1992). Northwestern does not dispute that it receives fed-
eral financial assistance and that it has excluded Knapp
from its intercollegiate basketball program solely because
of his cardiac condition, so our focus is on whether Knapp
is an "otherwise qualified individual with a disability."
To show that he is disabled under the terms of the Act,
Knapp must prove that he
(i) has a physical . . . impairment which substantially
limits one or more of [his] major life activities, (ii)
has a record of such an impairment, or (iii) is re-
garded as having such an impairment.
29 U.S.C. sec. 706(8)(B). Knapp satisfies the first element of
part (i) of this definition. A cardiovascular problem consti-
tutes a physical impairment under sec. 706(8)(B). 34 C.F.R.
sec. 104.3(j)(2)(i)(A); 45 C.F.R. sec. 84.3(j)(2)(i)(A).
Northwestern does not dispute this fact, but it instead zeros in
on the second element of the disability definition: whether play-
ing intercollegiate basketball is part of a major life ac-
tivity and, if so, whether its diagnosis of Knapp's cardiac
condition substantially limits Knapp in that activity.
In determining whether a particular individual has a dis-
ability as defined in the Rehabilitation Act, the regulations
promulgated by the Department of Health and Human
Services/3 with the oversight and approval of Congress are
of significant assistance. School Bd. of Nassau County,
Fla. v. Arline, 480 U.S. 273, 279 (1987); Byrne, 979 F.2d
at 563. Those regulations define "major life activities" as
basic functions of life "such as caring for one's self, per-
forming manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 34 C.F.R. sec.
104.3(j)(2)(ii); 45 C.F.R. sec. 84.3(j)(2)(ii). Regulations
regarding equal employment opportunities under the Americans with
Disabilities Act, 42 U.S.C. sec. 12101 et seq., adopt the same
term and definition and an interpretive note provides a bit more
guidance: " 'Major life activities' are those basic activities
that the average person in the general population can per-
form with little or no difficulty." 29 C.F.R. pt. 1630, app.
sec. 1630.2.
The regulations promulgated pursuant to the Rehabilita-
tion Act do not define "substantial limitation," and this
is not an oversight. In commentary following the regula-
tions, both the Department of Education and the Depart-
ment of Health and Human Services acknowledge "the
lack of any definition in the proposed regulation of the
phrase 'substantially limits.' The Department does not
believe that a definition of this term is possible at this
time." 34 C.F.R. pt. 104, app. A, subpt. A(3); 45 C.F.R.
pt. 84, app. A, subpt. A(3). "The court must ask 'whether
the particular impairment constitutes for the particular
person a significant barrier to [a major life activity].' "
Byrne, 979 F.2d at 565 (quoting Forrisi v. Bowen, 794
F.2d 931, 933 (4th Cir. 1986)).
This case is difficult because it does not fit neatly under
the Rehabilitation Act. The "disability" Knapp claims is
the basis for discrimination against him is not a continu-
ing one like blindness or deafness. At any given moment
in time when Knapp's heart is functioning properly his
disability does not affect him. He is truly disabled only
when his heart stops, which may or may not happen to
him again. The disability regarding which Northwestern
allegedly discriminates, therefore, actually is the greater
risk of harm for Knapp than the risk faced by other male
college basketball players. In addition, other impairments
usually do not have as severe a result as is possible in
this case. A person who is deaf, for instance, will not sud-
denly die on the basketball court because of that disabili-
ty. Here, Knapp's disability is all or nothing. Finally, be-
cause Knapp's disability affects one of the most central
organs of the body, his disability to some extent affects
all major life activities--if his heart stops, he will not
breathe, see, speak, walk, learn, or work. Once again it
is all or nothing--either his heart is functioning and no
major life activities are limited at that moment, or it has
stopped and the most major life activity of all--living--
has been affected.
In any event, the parties here have framed their argu-
ments as involving solely the major life activity of learn-
ing. Knapp contends that playing an intercollegiate sport
is an integral part of his major life activity of learning
and that his education will be substantially limited if he
cannot play on the team. He states that he does not be-
lieve he can obtain confidence, dedication, leadership,
perseverance, discipline, and teamwork in any better way.
The district court agreed with him, determining that for
Knapp, playing on the Northwestern basketball team was
part of the major life activity of learning and that he was
substantially limited from such learning by the university.
In their arguments, the parties have separated "substan-
tially limited" and "major life activities" into two indepen-
dent criteria. We do not believe that such a complete
separation should be made, at least in regard to learning
and working. A comment on this point by the Sixth Cir-
cuit is insightful:
The court in [citation omitted] treated "substantially
limiting" and "major life activity" as distinct stat-
utory qualifications. [Citation omitted.] However, at
least with respect to the major life activity of "work-
ing", they constitute an inseparable whole. An impair-
ment that affects only a narrow range of jobs can
be regarded either as not reaching a major life activ-
ity or as not substantially limiting one.
Jasany v. United States Postal Service, 755 F.2d 1244,
1249 n.3 (6th Cir. 1985). We think this same interrelation-
ship applies regarding learning. If playing NCAA basket-
ball reaches a major life activity, then it is likely that
deprivation of that activity would, for the individual basket-
ball player, be a substantial limitation. Likewise, if play-
ing intercollegiate basketball does not reach the status of
major life activity, then it is most likely that deprivation
will not be a substantial limitation.
We do not think that the definition of "major life ac-
tivity" can be as particularized as Knapp wants it to be.
Playing intercollegiate basketball obviously is not in and
of itself a major life activity, as it is not a basic function
of life on the same level as walking, breathing, and speak-
ing. Not everyone gets to go to college, let alone play
intercollegiate sports. We acknowledge that intercollegiate
sports can be an important part of the college learning
experience for both athletes and many cheering
students--especially at a Big Ten school. Knapp has indicated
that such is the case for him. But not every student thinks
so. Numerous college students graduate each year hav-
ing neither participated in nor attended an intercollegiate
sporting event. Their sheepskins are no less valuable be-
cause of the lack of intercollegiate sports in their lives.
Not playing intercollegiate sports does not mean they
have not learned. Playing or enjoying intercollegiate
sports therefore cannot be held out as a necessary part
of learning for all students.
A few cases, none of them binding on us, have consid-
ered school team sports a major life activity in and of
themselves. See Pahulu v. University of Kansas, 897 F.
Supp. 1387 (D. Kan. 1995) (intercollegiate football may be
a major life activity); see also Sandison v. Michigan High
School Athletic Ass'n, Inc., 863 F. Supp. 483, 489 (E.D.
Mich. 1994) (participation on the cross-country and track
teams an important and integral part of education and
a major life activity), rev'd on other grounds, 64 F.3d 1026
(6th Cir. 1995). In other cases involving school athletics,
whether they constituted part of the major life activity
of learning is not even discussed. See Grube v. Bethlehem
Area Sch. Dist., 550 F. Supp. 418 (E.D. Pa. 1982) (disabil-
ity assumed, so major life activity not discussed); see also
Wright v. Columbia Univ., 520 F. Supp. 789 (E.D. Pa.
1981) (parties did not dispute that player was disabled).
Because intercollegiate athletics may be one part of the
major life activity of learning for certain students, the par-
ties here have framed the analysis of what constitutes a
major life activity into a choice between a subjective test
or an objective test--whether we look at what constitutes
learning for Nick Knapp or what constitutes learning in
general for the average person. The Rehabilitation Act
and the regulations promulgated under it give little guid-
ance regarding whether the determination of what consti-
tutes a major life activity turns on an objective or sub-
jective standard./4 And while we have previously said that
whether a person is disabled is "an individualized inquiry,
best suited to a case-by-case determination," we have also
indicated that "the definition of 'major life activity' in the
regulations 'cannot be interpreted to include working at
the specific job of one's choice,' " Byrne, 979 F.2d at 565.
Other courts have been across the board on whether the
test is objective or subjective. Compare Pahulu, 897 F.
Supp. at 1393 ("for Pahulu, intercollegiate football may
be a major life activity, i.e., learning"), and Sandison, 863
F. Supp. at 489 (participation on high school teams is "as
to them a major life activity"), with Welsh v. City of
Tulsa, Okla., 977 F.2d 1415, 1417 (10th Cir. 1992) (major
life activity of working does not necessarily mean work-
ing at the job of one's choice).
We decline to define the major life activity of learning
in such a way that the Act applies whenever someone
wants to play intercollegiate athletics. A "major life ac-
tivity," as defined in the regulations, is a basic function
of life "such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learn-
ing, and working." 34 C.F.R. sec. 104.3(j)(2)(ii); 45 C.F.R.
sec. 84.3(j)(2)(ii). These are basic functions, not more specific
ones such as being an astronaut, working as a firefighter,
driving a race car, or learning by playing Big Ten basket-
ball.
However, major life activities are defined in a more in-
dividualized manner during the "substantial limitation"
analysis, where, according to Byrne, 979 F.2d at 565, we
look at whether the particular impairment constitutes a
significant barrier for the particular person. What impair-
ment will significantly impede learning for a person ob-
taining her third doctorate is not the same as one which
would affect the average tenth grader's ability to learn.
But any narrowing of what constitutes learning for a par-
ticular individual occurs within reasonable limits--coverage
of the Rehabilitation Act is not open-ended or based on
every dream or desire that a person may have. Not every
impairment that affects an individual's major life activities
is a substantially limiting impairment. The key obviously
is the extent to which the impairment restricts the major
life activity. Roth v. Lutheran General Hospital, 57 F.3d
1446, 1454 (7th Cir. 1995). For that individual, "[t]he im-
pairment must limit [learning] generally." Byrne, 979 F.2d
at 565. Just as "[i]t is well established that an inability
to perform a particular job for a particular employer is
not sufficient to establish a handicap [in regard to work-
ing]," the inability to engage in a particular activity for
a particular university is not sufficient to establish a dis-
ability in regard to education. Id.; see Heilweil v. Mt. Sinai
Hosp., 32 F.3d 718 (2d Cir. 1994) (no disability because
asthmatic condition did not substantially limit breathing
or working except while in one room of building), cert.
denied, 115 S. Ct. 1095 (1995); Welsh, 977 F.2d at 1419
(sincere desire to become a firefighter does not mean in-
ability to become one due to sensory deprivation in fingers
substantially limits ability to work); Daley v. Koch, 892
F.2d 212, 215 (2d Cir. 1989) (being declared unsuitable for
particular position of police officer not substantial limita-
tion of major life activity). An impairment that interferes
with an individual's ability to perform a particular func-
tion, but does not significantly decrease that individual's
ability to obtain a satisfactory education otherwise, does
not substantially limit the major life activity of learning.
Welsh, 977 F.2d at 1418.
Because learning through playing intercollegiate basket-
ball is only one part of the education available to Knapp
at Northwestern, even under a subjective standard, Knapp's
ability to learn is not substantially limited. Knapp's scholar-
ship continues, allowing him access to all academic and--
except for intercollegiate basketball--all nonacademic ser-
vices and activities available to other Northwestern stu-
dents, in addition to all other services available to scholar-
ship athletes. Although perhaps not as great a learning
experience as actually playing, it is even possible that
Knapp may "learn" through the basketball team in a role
other than as a player./5 Knapp is an intelligent student
and athlete, and the inability to play intercollegiate basket-
ball at Northwestern/6 forecloses only a small portion of
his collegiate opportunities. Like the firefighter in Welsh,
who did not show that his education and training limited
him to being a firefighter, Welsh, 977 F.2d at 1419, Knapp
has not shown that his education and training limit him
to do nothing but play basketball. The fact that Knapp's
goal of playing intercollegiate basketball is frustrated does
not substantially limit his education. The Rehabilitation
Act does not guarantee an individual the exact educational
experience that he may desire, just a fair one. Conse-
quently, we hold that Knapp as a matter of law is not
disabled within the meaning of the Rehabilitation Act.
Even if we were inclined to find Knapp disabled under
the Rehabilitation Act, he would still come up short
because we also hold as a matter of law that he is not,
under the statute, "otherwise qualified" to play intercol-
legiate basketball at Northwestern. A qualified disabled
person, with respect to postsecondary education services,
is a "person who meets the academic and technical standards
requisite to admission or participation in the [school's]
education program or activity." 34 C.F.R. sec. 104.3(k)(3); 45
C.F.R. sec. 84.3(k)(3). An explanatory note to the regulations
states that the term "technical standards" means "all non-
academic admissions criteria that are essential to participa-
tion in the program in question." 34 C.F.R. pt. 104, app.
A, subpt. A(5); 45 C.F.R. pt. 84, app. A, subpt. A(5).
Section 794 does not compel educational institutions to
disregard the disabilities of disabled persons. Southeastern
Community College v. Davis, 442 U.S. 397, 405 (1979).
It requires only that an "otherwise qualified" disabled
person not be excluded from participation in a federally
funded program solely because of the disability. Id. In
other words, although a disability is not a permissible
ground for assuming an inability to function in a particular
context, the disability is not thrown out when considering
if the person is qualified for the position sought. Id. at
405-6. "An otherwise qualified person is one who is able
to meet all of a program's requirements in spite of his
handicap," id. at 406, with reasonable accommodation, see
Arline, 480 U.S. 287-88 n.17 ("when a handicapped person
is not able to perform the essential functions of the job,
the court must also consider whether any reasonable accommodation
by the employer would enable the handicapped
person to perform those functions").
Legitimate physical qualifications may in fact be essen-
tial to participation in particular programs. Southeastern,
442 U.S. at 407.
Paragraph (k) of sec. 84.3 defines the term "qualified
handicapped/7 person." Throughout the regulation, this
term is used instead of the statutory term "other-
wise qualified handicapped person." The Department
believes that the omission of the word "otherwise"
is necessary in order to comport with the intent of
the statute because, read literally, "otherwise" quali-
fied handicapped persons include persons who are
qualified except for their handicap, rather than in
spite of their handicap. Under such a literal reading,
a blind person possessing all the qualifications for
driving a bus except sight could be said to be "other-
wise qualified" for the job of driving. Clearly, such
a result was not intended by Congress. In all other
respects, the terms "qualified" and "otherwise quali-
fied" are intended to be interchangeable.
45 C.F.R. pt. 84, app. A, subpt. A(5); 34 C.F.R. pt. 104,
app. A, subpt. A(5). Although blanket exclusions are gen-
erally unacceptable, legitimate physical requirements are
proper. See Southeastern, 442 U.S. at 407; Davis v. Meese,
692 F. Supp. 505, 517 (E.D. Pa. 1988), aff'd, 865 F.2d 592
(3d Cir. 1989).
A significant risk of personal physical injury can dis-
qualify a person from a position if the risk cannot be
eliminated. Chiari v. City of League City, 920 F.2d 311,
317 (5th Cir. 1991). But more than merely an elevated
risk of injury is required before disqualification is appro-
priate. Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.
1985). Any physical qualification based on risk of future
injury must be examined with special care if the Rehabili-
tation Act is not to be circumvented, since almost all dis-
abled individuals are at a greater risk of injury. Bentivegna
v. United States Dept. of Labor, 694 F.2d 619, 622 (9th
Cir. 1982).
In Mantolete, the Ninth Circuit addressed the standard
to apply in determining if an individual is otherwise physi-
cally qualified to perform an activity when the possibility
of future injury exists:
[I]n some cases, a job requirement that screens out
qualified handicapped individuals on the basis of possi-
ble future injury is necessary. However, we hold that
in order to exclude such individuals, there must be
a showing of a reasonable probability of substantial
harm. Such a determination cannot be based merely
on an employer's subjective evaluation or, except in
cases of a most apparent nature, merely on medical
reports. The question is whether, in light of the in-
dividual's work history and medical history, employ-
ment of that individual would pose a reasonable
probability of substantial harm.
. . . .
In applying this standard, an employer must gather
all relevant information regarding the applicant's
work history and medical history, and independently
assess both the probability and severity of potential
injury. This involves, of course, a case-by-case analysis
of the applicant and the particular job.
767 F.2d at 1422; see Chiari, 920 F.2d at 317 (disabled
person not qualified for job if there is genuine substan-
tial risk that worker could be injured or could injure
others and employer cannot modify job to eliminate risk).
We agree this is the appropriate standard. We now turn,
however, to who should make such an assessment.
In this case, the severity of the potential injury is as
high as it could be--death. In regard to the probability
of injury, Dr. John H. McAnulty, one of Knapp's experts,
testified at the injunction hearing that the annual risk of
death to Knapp as a result of his cardiac condition under
a worst-case scenario is 2.4 percent and that playing inter-
collegiate basketball would elevate this annual risk to 2.93
percent, or 1 in 34. In other words, if 34 Nick Knapps
played basketball for a year, chances are one would die.
Dr. Brian Olshansky, another expert for Knapp, put Knapp's
risk of death for the 1996-97 basketball season at no
greater than 1 in 100. These estimates took into account
Knapp's internal defibrillator, apparently the only "accom-
modation" possible for Knapp's condition. Although the
doctors indicated that these numbers were merely esti-
mates, all agreed that the risk to Knapp is higher than
to the average male collegiate basketball player. Knapp's
experts believed it was an acceptable level of risk.
Northwestern's experts agreed with the school's team
doctors that Knapp's participation in competitive Big Ten
basketball presented an unacceptable level of risk. Accord-
ing to Dr. Barry J. Maron, one of Northwestern's experts,
based on a 10-year study, the risk of nontraumatic death
for the average male college basketball player is 1 in
28,818. Dr. Maron further testified that participation in
intercollegiate basketball significantly increases Knapp's
risk of death, although he believed the precise risk could
not be quantified. Dr. Douglas J. Zipes agreed. According
to both Drs. Zipes and Maron, the most important fact
in assessing Knapp's current risk of sudden cardiac death
while playing intercollegiate basketball is the fact that
his previous sudden cardiac death was induced by play-
ing basketball.
Knapp's and Northwestern's experts disagreed on the
effect of the passage of time on the likelihood that Knapp
would suffer another sudden cardiac death. Almost all ex-
perts agreed that the internal defibrillator had never been
tested under conditions like an intercollegiate basketball
game or practice and that it was unclear whether the
device would actual work under the stress and physical
conditions of a high-intensity sport. Dr. Olshansky, though,
indicated that biweekly "interrogations" of the defibrillator
would minimize the risk of its failure. Knapp has had his
defibrillator checked on a regular basis and has had no
problems with it.
The district court judge in this case believed that in
the face of conflicting opinion evidence regarding risk, and
the fact that no scientific data existed to quantify that
risk, the decision on whether Knapp should play falls in
the lap of the court:
We have nothing more exotic here than highly quali-
fied experts, in agreement on all the basic scientific
principles and differing only in their medical judg-
ment on the final question. . . . All possess the educa-
tion, training and experience required to become ex-
perts and none disputes the expertise of the others.
The range of disagreement is extremely narrow, con-
fined only to the dimensions of the risk of recurrence
and the effect of the passage of time on that risk.
. . . [M]y task is to consider all the opinions and
determine which are most persuasive. It is what the
trial of disputes such as this will sometimes require.
It might have been better to have left the choice to
a panel of physicians, but Congress left it with the
courts and the random assignment of this case has
left it here with me.
. . . I again find the opinions of Drs. McAnulty,
Rink and Olshansky to be persuasive and I find that
the risk to Nicholas Knapp of a repeat episode is not
substantial.
We disagree with the district court's legal determina-
tion that such decisions are to be made by the courts and
believe instead that 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. In
cases such as ours, where Northwestern has examined
both Knapp and his medical records, has considered his
medical history and the relation between his prior sudden
cardiac death and the possibility of future occurrences,
has considered the severity of the potential injury, and
has rationally and reasonably reviewed consensus medical
opinions or recommendations in the pertinent field--regard-
less whether conflicting medical opinions exist--the univer-
sity has the right to determine that an individual is not
otherwise medically qualified to play without violating the
Rehabilitation Act. The place of the court in such cases
is to make sure that the decision-maker has reasonably
considered and relied upon sufficient evidence specific to
the individual and the potential injury, not to determine
on its own which evidence it believes is more persuasive.
Other courts have held the same. In Pahulu, for in-
stance, an intercollegiate football player presented testi-
mony of three specialists in an attempt to show that his
risk of permanent neurological injury was no greater than
any other player's and that the University of Kansas de-
clared him physically ineligible based on misconceptions.
The Kansas district court nevertheless found that "the
conclusion of the KU physicians, although conservative,
is reasonable and rational . . . and is supported by sub-
stantial competent evidence for which the court is unwill-
ing to substitute its judgment." Pahulu, 897 F. Supp. at
1394. We reject those cases intimating that a school's ra-
tional decision has no weight. See Poole v. South Plain-
field Bd. of Educ., 490 F. Supp. 948, 954 (D.N.J. 1980)
(school board incorrectly "insisted nonetheless in imposing
its own rational decision over the rational decision of the
Pooles").
In Arline, where a school teacher with tuberculosis was
fired and thereafter sued her employer under the Reha-
bilitation Act, the Supreme Court stated that an "other-
wise qualified" inquiry must be individualized and
should include
". . . facts, based on reasonable medical judg-
ments given the state of medical knowledge, about
(a) the nature of the risk . . . , (b) the duration
of the risk . . . , [and] (c) the severity of the
risk . . . ."
In making these findings, the courts normally should
defer to the reasonable medical judgments of public
health officials.
Arline, 480 U.S. at 287-88. The Court, however, refrained
from addressing the deferential weight of the medical
judgments of private physicians on which the employer
relied. Id. Although the Bethesda Conferences were not
convened by public health officials and such guidelines
should not substitute for individualized assessment of an
athlete's particular physical condition, the consensus recom-
mendations of several physicians in a certain field do carry
weight and support the Northwestern team doctors' indi-
vidualized assessment of Knapp.
We do not believe that, in cases where medical experts
disagree in their assessment of the extent of a real risk
of serious harm or death, Congress intended that the
courts--neutral arbiters but generally less skilled in
medicine than the experts involved--should make the final
medical decision. Instead, in the midst of conflicting ex-
pert testimony regarding the degree of serious risk of
harm or death, the court's place is to ensure that the ex-
clusion or disqualification of an individual was individual-
ized, reasonably made, and based upon competent medical
evidence. So long as these factors exist, it will be the rare
case regarding participation in athletics where a court may
substitute its judgment for that of the school's team physi-
cians.
In this case, the district court found that if
as a matter of law and fact, all that is required, as
Pahulu [cite omitted] holds, is that Northwestern
make a rational decision that Knapp's risk is substan-
tial based on reasonable evidence to which courts
must defer, then I find Northwestern has done this.
Because we hold today as a matter of law that a court
must allow Northwestern to make its own determinations
of substantial risk and severity of injury if they are based
on reliable evidence, the district court's order forcing North-
western to let Knapp play must be reversed.
We note further that the district court did not distin-
guish between the reasonableness of Northwestern's deci-
sion to exclude Knapp back in the 1995-96 season and the
reasonableness of its decision to bar him from playing this
year and the next two. Knapp contends that no proper
finding of reasonableness appears in the record because
the district court stated that the issue to be addressed
was Knapp's condition this fall rather than the rectitude
or irrectitude of Northwestern's actions. Dr. Sweeney's
and Dr. Gardner's bases for deeming Knapp ineligible in
1995-96 do appear in the record, however, and both tes-
tified regarding the present season that, based upon their
prior information and the newer testimony of Drs. Rink,
Olshansky, McAnulty, Maron, and Zipes, they still believed
Knapp remains at a substantial risk of death by playing
intercollegiate basketball.
In closing, we wish to make clear that we are not say-
ing Northwestern's decision necessarily is the right deci-
sion. We say only that it is not an illegal one under the
Rehabilitation Act. On the same facts, another team physi-
cian at another university, reviewing the same medical
history, physical evaluation, and medical recommendations,
might reasonably decide that Knapp met the physical quali-
fications for playing on an intercollegiate basketball 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--here Northwestern--
that decision must be respected.
Section 794 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. Knapp, who is an adult,
is not in need of paternalistic decisions regarding his
health, and his parents--more entitled to be paternalistic
toward him than Northwestern--approve of his decision.
See Wright at 794 (Columbia's decision not to allow stu-
dent with sight in only one eye to play football "contrary
to the express wishes of his parents who, together with
their son, have reached a rational decision concerning the
risk involved"). In regard to cases involving risk of future
injury, a school's perception of the threat of such injury
cannot be based on unfounded fears or stereotypes; it must
be based on objective evidence. Chiari, 920 F.2d at 317.
But here, where Northwestern acted rationally and reason-
ably rather than paternalistically, no Rehabilitation Act
violation has occurred. The Rehabilitation Act "is carefully
structured to replace . . . reflexive actions to actual or
perceived handicaps with actions based on reasoned and
medically sound judgments . . . ." Arline, 480 U.S. at
284-85.
For these reasons, the district court's grant of the
permanent injunction and denial of Northwestern's motion
for summary judgment are reversed and the case is re-
manded with instructions to enter summary judgment in
favor of Northwestern.
REVERSED.
FOOTNOTES
/1
Northwestern's Presidential Directive on Self-Regulation
of Intercollegiate Athletics, the Big Ten Conference's
Handbook Agreements for Men's Programs, and the
NCAA's Constitution and Sports Medicine Handbook all
give the team physician sole responsibility to decide
whether a student is medically eligible to compete on the
basketball team.
/2
Two national medical conferences were held in
Bethesda, Maryland, for the specific purpose of
establishing prudent consensus recommendations among
cardiologists and sports medicine physicians regarding the
eligibility of athletes with cardiovascular abnormalities to
compete in sports. The first, known as the 16th Bethesda
Conference, was held in 1984 and titled "Cardiovascular
Abnormalities in the Athlete: Recommendations Regar-
ding Eligibility for Competition." The consensus recom-
mendations from that conference were published in the
Journal of the American College of Cardiology in
December 1985. The second, known as the 26th Bethesda
Conference and titled "Recommendations for Determin-
ing Eligibility for Competition in Athletes with Car-
diovascular Abnormalities," was held in January 1994. The
consensus recommendations of that conference were
published in the Journal of the American College of Car-
diology in October 1994.
The 26th Bethesda Conference's task force on ar-
rhythmias addressed conditions like Knapp's and implanted
cardioverter-defibrillators. This task force recommended
that athletes with ventricular fibrillation "that result in
cardiac arrest in the presence or absence of structural
heart disease cannot participate in any moderate or high
intensity competitive sports." 24 Journal of the American
College of Cardiology 845, 897 (1994). "For athletes with
implantable defibrillators . . . all moderate and high in-
tensity sports are contraindicated." Id.
/3
For the most part, the regulations implementing the
Rehabilitation Act promulgated by the Department of
Health and Human Services are identical to those pro-
mulgated by the Department of Education. Compare 45
C.F.R. pt. 84 with 34 C.F.R. pt. 104. We cite to both.
/4
Knapp argues that because the regulations contain pro-
hibitions against discrimination in postsecondary athletics,
including intercollegiate teams, it follows that such
athletics constitute a major life activity. That is not the
case. Such regulations have no effect on the phrase
"otherwise qualified with a disability," but rather on the
portion of 29 U.S.C. sec. 794(a) discussing a "program or ac-
tivity." For instance, 34 C.F.R. sec. 104.43(a) and 45 C.F.R.
sec. 84.43(a) provide that
[n]o qualified handicapped student shall, on the basis
of handicap, be excluded from participation in, be
denied the benefits of, or otherwise be subjected to
discrimination under any . . . athletics, . . . other
extracurricular, or other postsecondary education program or
activity to which this subpart applies[;]
and 34 C.F.R. sec. 104.47(a) and 45 C.F.R. sec. 84.47(a) state
that
[i]n providing physical education courses and athletics
and similar programs and activities to any of its
students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient
that offers physical education courses or that operates
or sponsors intercollegiate, club, or intramural
athletics shall provide to qualified handicapped
students an equal opportunity for participation in these
activities.
These regulations apply only after it is determined that
the individual is disabled and qualified.
/5
Although the present situation appears not to be an
ideal learning setting, it is possible that in the future
Knapp may be allowed more of a role where he will gain
knowledge and experience through his participation with
the team other than as a player. In the face of Knapp's
affidavit, though, we find somewhat disingenuous North-
western's assertion that Knapp currently is given an op-
portunity to participate in the basketball program. Knapp
indicates that he must attend each practice and game, but
he just sits on the bench doing nothing. At practices he
is not allowed to do anything but watch. If these facts
are true, and Northwestern has not argued that they are
not, Knapp is not currently being afforded much of an
opportunity for true participation--even nonplaying
"participation"--on the team.
/6
Some may wonder why Knapp, if he wants to play
basketball so badly, does not just transfer to another
school where he is guaranteed the opportunity to play for
a team. That thought assumes all colleges and universities
are interchangeable, which we decline to believe is true.
Outside of basketball, Knapp may very well feel that Nor-
thwestern provides for him the best setting academical-
ly, socially, geographically, and otherwise. Nevertheless,
Knapp has offered no evidence that there are no other
schools to which he could transfer where he would be
allowed to play. Northwestern is not the only place where
Knapp may obtain an education, which confirms that
denial of the right to play basketball at Northwestern is
not a denial of his general ability to learn at the college
level.
/7
The Rehabilitation Act was amended in 1992 to replace
the term "handicap" with the word "disability."
Rehabilitation Act Amendments of 1992, Pub. L. No.
102-569, 106 Stat. 4360. The regulations have not caught
up.