The opinion of the court was delivered by: ZAGEL
On September 19, 1994, Knapp's heart stopped and he collapsed following a pick-up basketball game in his high school gym. Knapp was revived by paramedics using cardiopulmonary resuscitation and electronic defibrillation. Knapp was then hospitalized and diagnosed as having suffered sudden cardiac death caused by primary ventricular fibrillation. Knapp claims he suffered a ventricular fibrillation following an episode of syncope. On October 3, 1994, Knapp had an automatic cardioverter defibrillator implanted in his abdomen to attempt to restart his heart in the event of another cardiac arrest. The defibrillator's purpose is to recognize certain heart arrhythmias and provide programmed therapy to restore any such heart arrhythmias to normal.
On November 9, 1994, Knapp signed a National Letter of Intent to attend Northwestern on an athletic scholarship to play basketball. Northwestern was aware of Knapp's heart condition at the time of the signing When Knapp began Northwestern in the fall of 1995, Dr. Howard Sweeney, the head physician for Northwestern's Basketball team, concluded that Knapp was not medically eligible to participate in intercollegiate basketball based upon Knapp's medical records, published medical guidelines, and recommendations of other physicians he consulted. Knapp continues to be a member of the team and continues to receive his scholarship, but he is not able to practice or compete with the team. Knapp wishes to play basketball for Northwestern and sues under the Rehabilitation Act.
At a hearing in this Court on September 6, 1996, four cardiologists testified as to Knapp's condition and his risk of future injury. They were evenly split on their conclusions as to whether he might play, but they were largely in agreement on the substance of the medical science applicable to Nicholas Knapp and his heart.
Section 504 (a) of the Rehabilitation Act of 1973 protects "otherwise qualified individuals" from discrimination on account of disability. The purpose of the Act is to provide an "even handed treatment of qualified handicapped persons" and to prevent discrimination based on a perceived "inability to function in a particular context." In order to make out a prima facie case of discrimination under the Rehabilitation Act, Knapp must demonstrate that (1) he is a "disabled" individual within the meaning of the Act, (2) he is "otherwise qualified" for the position sought, (3) he is excluded from the position solely because of the disability, and (4) the position from which he is excluded is part of a federally funded program.
In deciding a case under the Rehabilitation Act the rational basis test is not applicable. The statute by its very terms does not provide that a recipient of federal financial assistance may discriminate against an individual on the basis of a handicap, even if there is a rational basis for so discriminating. The inquiry is whether the University has, in fact, discriminated on the basis of handicap.
Northwestern admits that it receives federal financial assistance and that it has disqualified Knapp from playing solely because of his cardiovascular impairment. Thus, the only remaining issues are whether Knapp is "disabled' within the meaning of the statute and whether he is "otherwise qualified" to play intercollegiate basketball.
(a) The district courts, and these are the only courts that have addressed the issues, are split over whether participation in sports is a "major life activity." See Pahulu v. University of Kansas, 897 F. Supp. 1387 (D. Kan. 1995). The federal regulations define "major life activities" as "functions such as caring for one's sell, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." What constitutes a major life activity must be determined on an individual basis, so a plaintiff need only prove that a particular function is a major life activity as to him.
Intercollegiate sports play a major role in a student's education and learning process. This has been recognized by several courts that have found physical education and participation in athletic activities on college campuses to be an important part of the educational process. The regulations promulgated pursuant to the Rehabilitation Act support this viewpoint by prohibiting universities from discriminating against qualified disabled athletes who are to have an equal opportunity for participation in intercollegiate athletics. The regulations specifically state that "in providing... athletics...to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers...intercollegiate...athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities." 34 C.F.R. § 104.47.
While the issue is not free from doubt, I find that intercollegiate sports competition may constitute a major life activity. I find, without doubt, that it is for Nicholas Knapp. It is clear that competitive basketball has played a substantial role in Knapp's education and learning process as he has learned valuable life skills and character traits. As Knapp stated in his affidavit, "my participation in competitive basketball has provided me and could continue to provide me with a unique experience that I have not encountered in any other extracurricular activity in which I have been involved or in which I could possibly become involved. Among other things, competitive basketball has helped to instill in me the following character traits: confidence, dedication, leadership, teamwork, discipline, perseverance, patience, the ability to set priorities, the ability to compete, goal-setting and the ability to take coaching, direction and criticism.... Competitive basketball has also given me recognition in the community, and provided me with the opportunity to meet new people.... Competitive basketball has also supplied me with a meaningful outlet for intense physical exercise and an enjoyment and happiness that cannot be duplicated in an open gym or intramural setting." Because competitive basketball is an important and integral part of Knapp's education and learning experience, I find that intercollegiate basketball is a major life activity for him.
(b) Northwestern argues that exclusion from participation in a single extracurricular activity is not a substantial limitation because he can engage in other activities that would provide him with the same educational benefits such as playing an instrument in the school band or orchestra. I do not disagree that participation in the band or orchestra may give a student who has trained for years on a particular instrument an educational experience similar to that of intercollegiate athletics. However, the law is not satisfied by telling a student who has trained for years to play basketball that the student can now play in the school band or orchestra instead and receive the same educational experience. It also undermines the purpose of the Rehabilitation Act not to allow a disabled individual to pursue his chosen field perhaps (particularly so when that field is chosen without knowing of the disability). Furthermore, there are relatively few, if any, activities that demand the same level of teamwork, precision and discipline as an intercollegiate sport to which a person can transfer particular skills.
For this reason, it would probably not be enough for Northwestern to say that Knapp would be permitted to play baseball or golf.
Northwestern also argues that because Knapp continues to receive his scholarship, still has a role with the team, and is given access to all the benefits given other team members except the ability to play, he is not "substantially limited." Northwestern misses the mark. It is the activity of practice and competition that constitutes a large part of the learning experience for Knapp. Being able to attend games and travel with the team does not make up for not being able to practice with the team and have a reasonable chance to play in games. It is the playing of basketball that teaches discipline, teamwork, and perseverance. These traits are not developed by ...