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October 7, 1996

NORTHWESTERN UNIVERSITY, an Illinois not-for-profit corporation, and RICK TAYLOR, Defendants.

James B. Zagel, United States District Judge

The opinion of the court was delivered by: ZAGEL

Nicholas Knapp has moved for an injunction that would allow him to play basketball for Northwestern University. Northwestern in turn has moved for summary judgment on Knapp's claim under the Rehabilitation Act. I have already ruled on the merits of these claims in this case in two separate rulings. This is a consolidation of those opinions.

 On September 19, 1994, Nicholas 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.

 Two hearings were held in this courtroom in which a number of cardiologists testified regarding Knapp's present condition, his risk of future injury and the type of reasonable accommodation necessary. The cardiologists were evenly split on their conclusions as to whether he should play, but they were largely in agreement on the substance of the medical science applicable to Nicholas Knapp and his heart.


 A party seeking a permanent injunction must establish that (1) he has succeeded on the merits, (2) no adequate remedy at law exists, (3) irreparable harm will arise absent injunctive relief, (4) the balance of harms favors entry of an injunction, and (5) the entry of the injunction will not harm the public interest. Smith Barney, Harris Upham & Co., Inc. v. St. Pierre, 1993 U.S. Dist. LEXIS 18649, 1994 WL 11600, *3 (N.D. Ill. 1994).

 Rehabilitation Act

 Section 504(a) of the Rehabilitation Act of 1973 protects "otherwise qualified individual[s]" from discrimination on account of disability. 29 U.S.C. § 794(a). The purpose of the Act is to provide even-handed treatment of qualified disabled 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, (2) he is "otherwise qualified" for the program sought, (3) he is excluded from the program solely because of the disability, and (4) the program from which he is excluded is part of a federally funded program. Byrne v. Board of Educ., School of West Allis-West Milwaukee, 979 F.2d 560, 563 (7th Cir. 1992).

 In deciding a case under the Rehabilitation Act the rational basis test is not applicable. Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1383-84 (10th Cir. 1981). 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. Id. at 1384. The inquiry is whether the University has, in fact, discriminated on the basis of handicap. Id.

 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.

 (1) The Rehabilitation Act defines a "disabled" individual as a person who has a physical impairment that substantially limits one or more of his major life activities. 29 U.S.C. § 706(8)(B). Whether a person is "disabled" within the meaning of the Act should be determined on a case by case basis. Byrne, 979 F.2d at 565. There is no question that Northwestern regards Knapp as having a permanent cardiovascular impairment constituting a physical impairment under the Act. However, Northwestern argues that intercollegiate basketball is not a "substantial life activity" and that Knapp has not been "substantially limited" in participating in the sport.

 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. See, e.g., Pahulu, 897 F. Supp. at 1391-92. 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 ...

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