Wednesday, May 16, 2007

McFadden v. Grasmick, et al. (Maryland U.S.D.C.) (Approved for Publication)

Filed May 12, 2007--Opinion and Order by Judge Andre M. Davis.

This is an action brought pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., and 42 U.S.C. § 1983, seeking declaratory and injunctive relief in respect to the manner in which defendants, state educational officials and their agents and designees, operate the statewide system of track and field competition in Maryland.

Paralyzed from below her waist, McFadden uses a wheelchair for mobility and, by all accounts, is a world class and Olympic wheelchair racer competing in several events. She contends that defendants unlawfully discriminate against her, as a student athlete who uses a wheelchair, because their rules and protocols for assigning team points in statewide track and field competition preclude her from earning points for her team. She, therefore, seeks a preliminary injunction forbidding defendants from declining to award her one point for the successful completion of her events at the 2007 Spring Tournament.

Based in part on a February 2007 report, a plan for 12 wheelchair racing events were added to the 2007 Spring Tournament. Each wheeler may compete in up to four events, the same limit applicable to non-wheelers. The plan provides that all of the wheelchair races will be conducted on a statewide basis rather than on a class basis. In other words, the 188 secondary schools in Maryland are divided into four classes based on the number of students attending a school. Except in wheelchair race events, a student/team competes only against students in their class. Wheelchair racers (there are only three in the state) compete as a "class" without earning points for his or her team. Defendants defend their decision to assign no team points for the wheelchair races as fully consistent with policy regarding "new team events." When a "new team event" is added to state-sanctioned tournaments, the results of such event do not earn team points in the determination of team championship until high schools representing at least 40% of the jurisdictions in a particular class participate in that event during the regular and post season.

Before a preliminary injunction will issue, four factors must be evaluated: (1) the likelihood of irreperable harm to the plaintiff if the preliminary injunction is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that plaintiff will succeed on the merits; and (4) the public interest. The Court found an extraordinarily close balance of harms between McFadden and the defendants.

However, the Court reasoned, based on the third factor, that the likelihood of McFadden's success on the merits of her claims is sufficiently attenuated that the extraordinary remedy of a preliminary injunction was not justified. McFadden's claims were brought under the ADA and the Rehabilitation Act, for which success requires establishment of a prima facie case by showing that (1) she has a disability, (2) she is otherwise qualified to receive the benefits of a public service program or activity, and (3) she was excluded from participation in or denied the benefits of such service, program or activity, or otherwise discriminated against, on the basis of her disability. The Court found McFadden satisifed the first two elements. However, McFadden expressly agreed that, at the bottom, this is a discrimination case. As to the likelihood of success on the merits, therefore, the dispositive issue is whether McFadden will be able to show at trial that she is being treated less favorably on account of her disability, i.e., whether the constraints on McFadden's ability to earn points for her team differ in any material, legally cognizable way from the constraints on the opportunity of similarly situated students. That answer was "no."

The essence of unlawful discrimination is disparate treatment of two similarly situated individuals on the basis of a prohibited characteristic. As mentioned above, defendants award team points only when schools representing 40% of the students in a particular class participate in any event. Thus, given the limited participation in wheelchair racing at the statewide competiton (again, there are three), McFadden is treated no differently than is any student at any school who participates in any event with insufficient participation. Even though Howard County is the only jurisdiction offering varsity wheelchair racing, and even though only two schools in Howard County have competitors in wheelchair racing, defendants will count all of Howard County's 12 secondary schools toward the 40% minimum needed to elevate wheelchair racing to an event for which team points are awarded.

In sum, it is not likely that, upon a full review of the merits of McFadden's claims, the court will be pursuaded that it is discriminatory under the disability rights statutes for defendants to maintain a difference in the opportunity of wheelchair racers, in contrast to non-wheelchair racers, to earn points for teams, where all but a small number of teams are significantly under-represented in the distinct class of competitors of which McFadden is the sole member: wheelers. Accordingly, McFadden's request for preliminary injunction does not satisfy the long-standing criteria applicable to such efforts and the motion is denied.

The full opinion is available in PDF.

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