Kampmeier v. Nyquist

Decision Date15 April 1977
Docket NumberD,No. 509,509
Citation553 F.2d 296
PartiesJack A. KAMPMEIER et al., Appellants, v. Ewald NYQUIST, in his capacity as Commissioner of Education, et al., Appellees. ocket 76-7383.
CourtU.S. Court of Appeals — Second Circuit

Edward H. Fox, Rochester, N. Y. (Paul J. Yesawich, III, Rochester, N. Y., on the brief, of counsel to the Genesee Valley Chapter, New York Civil Liberties Union), for appellants.

Lawrence W. Reich, Albany, N. Y. (Robert D. Stone, Albany, N. Y., on the brief), for appellees Nyquist and Soucy.

Thomas W. Sullivan, Rochester, N. Y. (Sullivan, Gough, Skipworth, Summers & Smith, Rochester, N. Y., on the brief), for appellees Harris, Bent, and Hibschman in his capacity as Superintendent.

Bruce E. Hansen, Rochester, N. Y. (Harter, Secrest & Emery, Rochester, N. Y., on the brief), for appellees Andrews, Burns, Farnsworth, Hosenfeld, Kolb, Lundy, McGavern, Pitler, and Skawski.

Before LUMBARD and OAKES, Circuit Judges, and BRYAN, District Judge. *

LUMBARD, Circuit Judge:

Two junior high school students, each with vision in only one eye, and their parents, appeal from an order by Judge Burke in the Western District of New York denying their motion for a preliminary injunction against public school authorities in Pittsford and Canandaigua, New York, who have refused to allow the students to participate in contact sports at school. Plaintiffs contend that the school system's prohibition on participation by one-eyed students in contact sports violates section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and also deprives them of their fourteenth amendment right to equal protection of the law. Having considered the possible irreparable consequences that may flow from whichever decision the court should choose to make, we conclude that the appellants have not made a sufficient factual showing of likely success of the merits to warrant preliminary relief. Accordingly, we affirm the order of the district court.

In their complaint filed on April 14, 1976, plaintiffs alleged the following: Margaret Kampmeier has a congenital cataract in one eye. As of the beginning of her seventh-grade year in 1975, she was one of the best athletes in her class. Her parents have provided her with protective glasses which have industrial quality safety lenses, wire mesh side shields, and extended ear pieces. The Kampmeiers have also announced their willingness to release the school and its employees from liability for any athletics injury to Margaret's good eye. 1 Steven Genecco is a grade ahead of Margaret. He has been virtually blind in one eye since an injury at age six. Prior to the 1975-76 school year, he had been allowed to participate in all school sports. During 1975 he participated in interscholastic basketball and a community association football league as well as the regular school physical education program. On recommendation by a school physician, each child has now been prohibited from participating in any contact sports at school, solely because of lack of vision in one eye. 2

In response to plaintiffs' motion for a preliminary injunction, the defendants submitted affidavits explaining that under regulations promulgated by the New York State Commissioner of Education, 8 N.Y.C.R.R. § 135.4(c)(7)(i)(h), approval from the school medical officer is required before any student may be allowed to participate in interscholastic athletics. Pamphlets distributed to school officials by the Commissioner list blindness in one eye as a disqualifying condition for participation in contact sports, but not noncontact sports. 3 The lists of disqualifications are advisory only: "(t)hese guidelines . . . are only guidelines and are not absolute mandates for the school physician." 4 "Some of the disqualifying conditions listed are subject to evaluation by the responsible physician with respect to anticipated risks, the otherwise athletic fitness of the candidate, special protective preventive measures that might be utilized, and the nature of the supervisory control." 5 In Matter of Spitaleri, 11 Ed.Dept.Rep. 84 (1972), petition for review dismissed (Sup.Ct., Albany County Special Term, June 15, 1973) (Mahoney, J.), the Commissioner of Education ruled that a school physician's determination against participation in contact sports by a one-eyed child is not reviewable.

Letters from physicians who had examined the children were submitted. Their opinions were divided. 6

After oral argument based on the foregoing record, Judge Burke on July 28 denied plaintiffs' preliminary injunction motion. He found that plaintiffs had failed to show that they would suffer irreparable harm or that they were likely to succeed on the merits.

The standard for issuance of a preliminary injunction is whether there has been "a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1358 (2d Cir. 1976); Sonesta Int'l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973) (emphasis in original). Ordinarily, the grant or denial of a preliminary injunction by a district court is reviewable only for abuse of discretion. See Triebwasser & Katz v. American Tel. & Tel. Co., supra. However, when as here the district court makes no detailed findings in support of his decision, we must engage in a somewhat more searching review. Cf. Small v. Kiley, No. 76-6162 (2d Cir. March 9, 1977).

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:

No otherwise qualified handicapped individual . . . 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.

In Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977), the court held that handicapped persons have private rights of action under § 504. Although the circumstances were somewhat different, the reasoning in that opinion is fairly persuasive here. Accord, Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976). Thus, we think it probable that the plaintiffs do have standing to sue; 7 they are the people in the best position to enforce § 504, which is designed specifically for their protection. 8 See generally Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

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