37. Based upon the language in Dr. Lennart's last letter, a telephone conversation with Dr. Lennart, a consultation with another school physician in the school district, Dr. Delp recommended that Richard be barred from playing football. (Testimony of Dr. Delp)
38. The other school physician contacted, Dr. Hemmerlie, is not a specialist in urology or sports medicine. (Testimony of Dr. Delp)
39. Dr. Delp conducted no medical research relating to the alleged risk to Richard of playing football. (Testimony of Dr. Delp)
40. Dr. Delp's relevant clinical experience is as follows: in 12 years as a school and team physician he knows of no case where a football injury resulted in permanent kidney injury or excision of a kidney. Dr. Hemmerlie's experience was comparable. There was no evidence that Dr. Lennart informed them of such case histories. (Testimony of Dr. Delp)
41. Dr. Delp is not familiar with the protective equipment used by the student. (Testimony of Dr. Delp)
42. Without any research or clinical foundation, Dr. Delp concluded it was "highly risky" for Richard to participate in football. The risk was not specifically identified to Richard or his father. Dr. Delp now maintains that there is a risk of deceleration injury. (Testimony of Dr. Delp)
43. Dr. Moyer is a medical doctor who is board certified in orthopedic surgery. He is the director of the well-respected Sports Medicine Clinic at Temple University. (Testimony of Dr. Moyer)
44. Dr. Moyer examined Richard in preparation for his testimony at the preliminary injunction hearing. He concluded that Richard is in good general health and that his remaining kidney is healthy. (Testimony of Dr. Moyer)
45. Dr. Moyer is familiar with the protective equipment used by Richard. In his opinion, this equipment virtually eliminates any danger of injury from a direct blow to the kidney. Further, in his opinion, there is no injury likely to result to the kidney from deceleration. (Testimony of Dr. Moyer)
46. Dr. Moyer has treated other individuals who lack a kidney and play football. Dr. Moyer treats members of all area professional teams. His associates at the Sports Medicine Clinic whom he consulted with regard to Richard have 20 years of experience in treating members of all area football teams. Dr. Moyer knows of no football injury that has caused significant, permanent damage to a kidney or resulted in excision of a kidney. (Testimony of Dr. Moyer)
47. Dr. Moyer researched the instances of kidney damage from football. He discovered no patients with significant kidney damage from football. There are none who had to have a kidney removed. (Testimony of Dr. Moyer)
48. In Dr. Moyer's professional opinion, Richard can safely play football. The risk of catastrophic injury to his remaining kidney is minute, almost nil. (Testimony of Dr. Moyer)
49. In the extremely unlikely event of a catastrophic injury, Richard's options would be dialysis or kidney transplant. (Testimony of Dr. Moyer)
50. In Dr. Moyer's opinion, Dr. Lennart's statement in his last letter relating to an alleged hazard to Richard and Dr. Delp's and Dr. Hemmerlie's recommendations based thereon, are emotional and not medical judgments. (Testimony of Dr. Moyer)
51. Richard has demonstrated diligence and responsibility in his pursuit of athletic achievement by training on his own as well as part of the team. (Testimony of Richard; Mr. Grube)
52. Richard has demonstrated his reliability by assisting in the care of younger family members. (Testimony of Mr. Grube)
53. Richard has demonstrated responsibility by part-time employment to pay his expenses including the cost of the protective equipment he uses to play football. (Testimony of Richard; Mr. Grube)
54. Richard's mother and father consider him a mature individual. (Testimony of Mr. Grube; Mrs. Williams)
55. Richard is 17 years old and will reach the age of majority in 7 months. (Testimony of Richard)
56. Richard knows that in the event that he loses the use of his remaining kidney, he would have to depend on dialysis. He knows two persons who are on dialysis. He has discussed with at least one of them what dialysis entails. He understands the catastrophic consequences of the loss of his remaining kidney. (Testimony of Richard)
57. Richard is a mature individual. He is well-informed regarding his condition and the consequences of the loss of his remaining kidney. He is capable of making a rational judgment with respect to whether to play football. (Testimony of Richard; Findings of Fact 51-56)
58. In playing football, there are other serious life threatening injuries which may equally befall Richard or any other member of the team. (Stipulation para. 15)
59. There are less than seven games remaining in the team's schedule for this season. (Testimony of Mr. Grube; Richard)
60. Richard is a collegiate caliber athlete. (Testimony of Mr. Grube)
61. Mr. Grube supports himself, four children and his wife on a salary of less than $400 per week. The combined balance of the Grubes' checking and savings accounts is less than $400. The Grubes' home was purchased in 1979 for $59,000 and has a first mortgage lien with a principal balance of approximately $58,000. The Grubes have no other substantial assets. (Testimony of Mr. Grube; Stipulation of counsel at trial)
Before me is plaintiffs' request for a preliminary injunction. In order to prevail, the plaintiffs must show a strong likelihood of success on the merits, that immediate, irreparable harm will result if the preliminary injunction does not issue, that the grant of the injunction will not substantially harm other parties, and that the public interest favors granting the injunction. A.O. Smith Corp. v. F.T.C., 530 F.2d 515 (3d Cir. 1976).
The plaintiffs' complaint presents two legal theories. First, they assert that Richard has been discriminated against in violation of the Rehabilitation Act of 1973 (Act) § 504. 29 U.S.C.A. § 706(7) (Supp. 1981). Secondly, they assert that he has been deprived of his fourteenth amendment right to equal protection giving rise to an action under 42 U.S.C. § 1983. At the preliminary injunction hearing, plaintiffs acknowledged that they rely primarily upon the Rehabilitation Act. I turn to the law applicable to a claim of discrimination under the Act and consider whether plaintiffs have shown a likelihood of success on the merits of this claim.
Section 504 of the Act as amended provides: "No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C.A. § 794 (Supp. 1981). In interpreting this section, the Supreme Court has held that an "otherwise qualified" person "is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979). The Court interpreted § 504 as follows:
Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate. Instead, it requires only that an "otherwise qualified handicapped individual" not be excluded from participation in a federally funded program "solely by reason of his handicap," indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.
Id. at 405.
Three lower courts have addressed the import of § 504 in contexts similar to the present case. In Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977), the Court of Appeals for the Second Circuit considered an appeal from the denial of a preliminary injunction sought on behalf of children with one eye who were barred from participation in their school's contact sports programs. The school's decision to bar the children was based upon the opinion of the school physician. The medical evidence the children introduced to refute the school physician's opinion was equivocal. Referring to the school's reliance on the opinion of the school physician, the court stated: "The plaintiffs have presented little evidence -- medical, statistical or otherwise -- which would cast doubt on the substantiality of this rationale." Noting that the equities in the case were very close, the court concluded that this absence of evidence was fatal to plaintiffs' claim. On the evidence presented, it could not be said that the school district lacked "substantial justification" for its action.
In Poole v. South Plainfield Board of Education, 490 F. Supp. 948 (D. N.J. 1980), the plaintiff was a high school student with one kidney who was barred from his school's wrestling team. Before the court were the defendant's motions to dismiss for lack of subject matter jurisdiction and in the alternative, for judgment on the pleadings. The court denied both motions because on the facts as assumed in the opinion, the plaintiff had demonstrated a right to recovery. The school system's medical director advised the system that it was inadvisable to permit a student with one kidney to participate in contact sports. The student refuted this opinion with medical opinions by his own experts. It was apparent to the court that both the school system physician and the Board itself were making a philosophical and not a medical judgment. The court stated:
The Board of Education decided that it was part of its function to protect its students against rational judgments reached by themselves and their parents. In effect, the Board's decision stands the doctrine of in loco parentis on its head. Traditionally, this doctrine has meant that a school system must act "in place of the parent" when the parents are absent.