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October 6, 1982


The opinion of the court was delivered by: HUYETT


 Following a hearing on plaintiffs' motion for a preliminary injunction, I make these findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 1. The plaintiffs are Richard William Grube (Richard), a minor, and his father, Richard Wallace Grube (Mr. Grube), and his step-mother, Linda Grube. (Complaint)

 2. The student is enrolled in his senior year at Freedom High School in the Bethlehem Area School District (School District). (Stipulation para. 2)

 3. The defendant Bethlehem Area School District is the recipient of federal funds, and meets the definition of recipient as defined under 29 U.S.C. § 794 also known as § 504 of the Rehabilitation Act of 1973. (Stipulation para. 1)

 4. Richard is a vigorous, athletically inclined high school student whose only physical problem is the absence of his right kidney which was removed when he was 2 years of age as a result of a congenital malformation. (Stipulation para. 3)

 5. The kidney which was removed was a non-functioning unit and had been so since birth. (Testimony of Mr. Grube)

 6. Richard's remaining kidney is healthy and fully compensates for the one he lost. (Testimony of Dr. Moyer)

 7. Richard has participated in football since the age of eight. He has also engaged in other athletics such as skiing, tennis, baseball and wrestling. (Testimony of Mr. Grube; Richard)

 8. Richard has played football as a member of his school's team in ninth, tenth, and eleventh grades. (Testimony of Richard; Stipulation para. 4)

 9. Richard has also been a member of his school's wrestling team. (Testimony of Richard)

 10. Richard was selected to be a member of his school's varsity football team for this year. He was awarded first string positions with the offensive and defensive squads. (Testimony of Mr. Grube; Richard)

 11. Richard prepared this summer to participate in the team. He attended team work-outs. He joined in pre-season team exercises which included physical contact. (Testimony of Mr. Grube; Richard)

 12. A few days before the first scrimmage, Richard was informed that he had been declared ineligible for the team by the Superintendent of Schools because he lacks one kidney. (Testimony of Mr. Grube; Richard; Dr. LaFrankin; Stipulation para. 5)

 13. Richard is qualified by virtue of athletic ability to play on his school's varsity football team. (Testimony of Mr. Grube; Richard; Mr. Villani; Dr. LaFrankin)

 14. Richard was barred from the football team solely as a result of his lack of one kidney. (Testimony of Dr. Delp; Dr. LaFrankin)

 15. In order for Richard to play football, there is no affirmative action required on behalf of the defendant school district regarding any modification of the rules and regulations of the game or the need for the defendant school district to purchase any special equipment for Richard. (Stipulation para. 10)

 16. No substantial adjustments will be necessitated to the existing football program by the defendant school district should Richard play football. (Stipulation para. 11)

 17. Richard's participation as a member of the team will not lower the standards of the team as a whole in relationship to the other schools against whom they play. (Stipulation para. 12)

 18. Richard's handicap would not impede other players' participation in football. (Stipulation para. 13)

 19. Richard's prior participation in interscholastic football while a student at Freedom High School did not necessitate any adjustment to the game of football or of the training of the participating students. (Stipulation para. 21)

 20. Richard and Mr. Grube have agreed to sign a written release accepting all legal and financial responsibility in the event of a football injury. (Stipulation para. 8)

 22. The injury occurred when Richard rolled over the helmet of another player. He was unaware of the injury until after the game when blood appeared in his urine. (Testimony of Richard)

 23. Richard was admitted to the hospital overnight for observation only. The condition remedied itself without medical intervention. (Testimony of Mr. Grube; Richard)

 24. During his hospitalization, Richard was attended by a Dr. Lennart, a specialist in urology. Dr. Lennart did not advise Richard to give up football. He stated that it was up to Richard to decide. (Testimony of Richard)

 25. Since it was Richard's decision to continue to participate in football, Dr. Lennart referred him to Lehigh University to secure appropriate protective equipment. (Testimony of Richard)

 26. Working with members of the athletic department at Lehigh University and a manufacturer of protective equipment in Texas, Richard obtained a protective "flack jacket" specially designed to protect the ribs and kidneys during football at a cost of $400. (Testimony of Mr. Grube; Richard; Dr. Moyer; Stipulation para. 6)

 27. Richard has worn this protective device each time he has practiced with the team during the summer training of the 1982 football season. (Stipulation para. 7)

 28. After the injury in the 1981 season, Richard sat out the few remaining games. This was the result of a decision of the coaches, and not a ...

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