MARY DOE ; JOHN DOE , by and through his next friend, Mary Doe v. Liberty Lobby, Inc., 477 U.S. 242, 252 1986 . As pointed out in

12 Doe, et al. v. Woodford County
Bd. of Educ., et al.
No. 99-5369
Appellee’s Br. at 20. Nothing more is reported. When asked
at his deposition if he had reason to believe that other players
heard this conversation, John replied, “I really don’t know
. . . . There were a few others out there, but I’m not sure if
they heard. Possibly.” John Doe Dep. at 17; J.A. at 450. John
further admitted that he had not asked any of the other players
if they had overheard the conversation as well. John Doe
Dep. at 17-18; J.A. at 450-51. We find this to be insufficient
evidence as a matter of law that anyone else heard the
conversation.
For these reasons, we find there was no violation of John
Doe’s rights under the Act. Any disclosure is protected by the
exceptions under the Act. Moreover, there is no proof that
anyone other than John Doe, Chapman, and Gibson were
aware of the conversation concerning John Doe’s medical
status. We therefore affirm the district court’s grant of
summary judgment on plaintiff’s Family Education Rights
and Privacy Act claim.
IV. Plaintiff’s Due Process Claim
Lastly, since we find that John Doe has suffered no
deprivation of his rights under § 504 of the Rehabilitation
Act, the ADA, or the Family Education Rights and Privacy
Act, we agree with the court below that John suffered no
violation of his due process rights as guaranteed by the
Fourteenth Amendment.
* * *
Based on the foregoing reasons, we agree with the district
court that there are no genuine issues of material fact and that
defendants are entitled to judgment as a matter of law.
Defendants actions did not violate John Doe’s civil rights
under § 504 of the Rehabilitation Act, the ADA, or the Family
Education Rights and Privacy Act. We, therefore, AFFIRM
the judgment of the district court.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0176P (6th Cir.)
File Name: 00a0176p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M ARY DOE ; J OHN DOE , by
and through his next friend,
Mary Doe,
Plaintiffs-Appellants,
v.
W OODFORD C OUNTY BOARD
OF EDUCATION ; W ILLIAM S.
FOLEY , Dr., Chairperson and
his successor, in his official
capacity as member of the
Woodford County Board of
Education; AMBROSE
W ILSON , IV, and his
successor, in his official
capacity as member of the
Woodford County Board of
Education; M ARGIE
C LEVELAND , and her
successor, in her official
capacity as member of the
Woodford County Board of
Education; DAVID M OORE ,
and his successor, in his
official capacity as member of
;>

No. 99-5369

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2 Doe, et al. v. Woodford County
Bd. of Educ., et al.
No. 99-5369
the Woodford County Board
of Education; P. T. VANCE ,
and his successor, in his
official capacity as member of
the Woodford County Board
of Education; C HARLES L.
DOWLER, Dr., in his
individual capacity, and his
successor, in his official
capacity as Superintendent of
the Woodford County Public
Schools; C ORLIA LOGSDON ,
and her successor, in her
official capacity as Section
504 and ADA Coordinator for
the Woodford County Public
Schools; R OY C HAPMAN , in
his individual capacity, as
Principal, Woodford County
Middle School; M IKE
BURKICH , in his individual
capacity, as Principal,
Woodford County Middle
School; GENE KIRK, in his
individual capacity, and his
successor, in his official
capacity as Head Basketball
Coach, Woodford County
High School; BOBBY GIBSON ,
in his individual capacity, and
his successor, in his official
capacity as Assistant
Basketball Coach, Woodford

No. 99-5369 Doe, et al. v. Woodford County
Bd. of Educ., et al.
11
including “other school officials, including teachers within
the educational institution . . .,” who have been determined to
have a legitimate educational interest in the child. 20 U.S.C.
§ 1232g(b)(1)(A). An educational institution also “may
disclose personally identifiable information from an
educational record to appropriate parties” if it is necessary to
protect the health or safety of the student or others. 34 C.F.R.
§ 99.36. While “personally identifiable information” is
narrowly defined by the Act’s regulations as including only
the student’s name, parent’s name, the student’s or parent’s
address, social security number, or other information that
would make the student’s identity easily traceable, and may
not include a suggestion to review a student’s medical records
on file with the school, the exception does reveal Congress’
intention to allow disclosure when there are genuine health or
safety concerns for the student or others. See 34 C.F.R.
§ 99.3.
Plaintiff argues the fact that John and other basketball
players heard Chapman’s “disclosure of information”
effectively rules out any argument that the conversation is
covered by any exceptions. We find based on the record that
plaintiff fails to provide anything more than a scintilla of
evidence to support the claim that other players overheard the
conversation. In reviewing grants of summary judgment, “the
mere existence of a scintilla of evidence” in support of the
plaintiff’s position is insufficient to overturn a grant of
summary judgment. There must be evidence on which a jury
could reasonably find for the plaintiff. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). As pointed out in
defendant’s brief, the following is what John testified as
overhearing:
Chapman: What about [John Doe]?
Gibson: What about him?
Chapman: Well, you might want to check his medical
records to see if everything is okay to play.

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10 Doe, et al. v. Woodford County
Bd. of Educ., et al.
No. 99-5369
defendants faced potential liability from other students and
parents if they allowed John to play on the team and another
student accidently became exposed to John’s contagious
condition. Under the circumstances, defendants acted quite
appropriately when they placed John on “hold” status over a
brief three week period while defendants decided how they
should proceed. According to principal Burkich’s
memorandum dated November 11, 1996, it appears that after
careful consideration and weighing of all options, defendants
decided to allow John to participate fully on the team with no
further restrictions. It is at this time John, by his own
volition, chose to no longer remain a member of the team.
We therefore find no violation of John’s rights as secured by
the Rehabilitation Act or the ADA and affirm the grant of
summary judgment for the defendants. We pretermit any
issue concerning exhaustion of administrative remedies under
the Rehabilitation Act and the ADA. The district court did
not reach this issue, and we have chosen to review the district
court’s decision on the merits.
III. Plaintiff’s § 1983 action for violation of the Family
Education Rights and Privacy Act
The Family Education Rights and Privacy Act, 20 U.S.C.
§ 1232g, also referred to commonly as the Buckley
Amendment, protects educational records or personally
identifiable information from improper disclosure. The
pertinent provision reads:
No funds shall be made available under any applicable
program to any education agency or institution which has
a policy or practice of permitting the release of education
records (or personally identifiable information . . . ) of
students without the written consent of their parents to
any individual, agency, or organization . . . .
20 U.S.C. § 1232g(b)(1).
Nonetheless, there are exceptions which allow disclosure
without written consent to certain people, among these
No. 99-5369 Doe, et al. v. Woodford County
Bd. of Educ., et al.
3
*The Honorable Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
County High School,
Defendants-Appellees.

1
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 97-00105—Henry R. Wilhoit, Jr., Chief District Judge.
Argued: May 4, 2000
Decided and Filed: May 26, 2000
Before: MERRITT, CLAY, and CUDAHY*, Circuit
Judges.
_________________
COUNSEL
ARGUED: Edward E. Dove, Lexington, Kentucky, for
Appellants. Robert L. Chenoweth, CHENOWETH LAW
OFFICE, Frankfort, Kentucky, for Appellee. ON BRIEF:
Edward E. Dove, Lexington, Kentucky, for Appellants.
Robert L. Chenoweth, Patricia Todd Bausch, CHENOWETH
LAW OFFICE, Frankfort, Kentucky, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Plaintiff, Mary Doe, on behalf
of her son John Doe, charges that defendants, Woodford
County Board of Education, individual members of the board,
and individual principals/teachers, violated § 504 of the

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4 Doe, et al. v. Woodford County
Bd. of Educ., et al.
No. 99-5369
Rehabilitation Act, 29 U.S.C. § 794, Title II of the Americans
with Disabilities Act, 42 U.S.C. § 12132, the Family
Education Rights and Privacy Act, 20 U.S.C. § 1232g, as well
as due process rights when defendants placed John Doe, a
member of the Woodford County High School junior varsity
basketball team, on “hold” status pending the receipt of a
medical clearance from his doctor. John Doe is a hemophiliac
and a carrier of the hepatitis B virus. The district court
granted defendants’ motion for summary judgment on all of
plaintiff’s claims. Plaintiff now appeals, and upon review we
affirm the judgment of the district court.
I. Facts
John Doe was diagnosed with hemophilia when he was four
months old, and at the age of five, it was determined that he
suffered from hepatitis B. Despite John’s illness, he has
participated in athletics throughout his life without incident.
In 1996, while a freshman at Woodford County High School,
he became a member of the school’s ninth grade junior varsity
basketball team. The school had adopted a “no-cut” policy
for ninth graders wishing to play on the team. In other words,
any ninth grader wishing to play on the junior varsity team
was automatically selected to be a member. John therefore
began practicing with the team.
On the afternoon of October 20, 1996, a few days after the
team began practicing, defendant Roy Chapman, principal of
Woodford County Middle School, noticed John in the gym
practicing with the team. Chapman, who was aware of John’s
medical condition, approached Bobby Gibson, the team’s
coach and suggested to Gibson that he check John’s medical
records on file with the school to see if it was appropriate for
him to play. According to John, he overheard this
conversation between Chapman and Gibson and alleges other
players heard the conversation as well. This allegation serves
ground for plaintiff’s Family Education Rights and Privacy
Act violation.
No. 99-5369 Doe, et al. v. Woodford County
Bd. of Educ., et al.
9
safety of others that cannot be eliminated by a
modification of policies, practices, or procedures or by
the provision of auxiliary aids or services.” Id.
Montalvo, 167 F.3d at 876. In determining such a threat,
citing 28 C.F.R. § 36.208(c) as well as Arline, 480 U.S. at
287-288, the Montalvo court held that one cannot rely on
stereotypes or generalizations about the effects of a disability
to determine if a disability poses a threat, but rather must
make individual assessments based on reasonable judgment
relying on current medical knowledge or objective evidence.
Montalvo, 167 F.3d at 876. Under these guidelines, we find
that defendants in this case were indeed attempting to make
such a determination. Defendants never actually removed
John Doe from the junior varsity basketball team, but simply
placed him on “hold” status while they waited for medical
direction as to how to proceed. It is entirely reasonable for
defendants to be concerned and arguably were obligated to be
concerned with limiting risk of exposure of any contagion to
others as well as limiting any injury that John may suffer. In
an effort to ensure that John’s participation in practice would
not pose a threat to the safety and well being of John as well
as other players, the school requested plaintiff to present some
objective medical evidence to that effect. After receiving a
very general letter from John Doe’s doctor, defendants asked
for a more definitive statement as to the safety of John’s
participation on the team. For purposes of liability, it does
not matter that defendants eventually determined, according
to its inter-office memorandum, that John should be allowed
to fully participate on the basketball team. Rather,
defendants, during this “hold” status period, were simply
trying to balance the need of protecting the public health with
John’s rights not to be treated differently due to his disability.
The facts of this case suggest that defendants were in a
catch-22 situation. On one hand, defendants had to be aware
of possibly infringing upon John’s civil rights under the
Rehabilitation Act and the ADA if they excluded John from
participation on the basketball team. On the other hand,

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8 Doe, et al. v. Woodford County
Bd. of Educ., et al.
No. 99-5369
other basketball teams without incident. Additionally,
defendants admit that its junior varsity basketball program
was operating under a “no cut” policy, meaning that any ninth
grade student wishing to play was selected. Nonetheless, as
an exception, a disabled person may not be “otherwise
qualified” under both acts, and thus may be excluded from
participation in a program, if his or her participation is a
direct threat to the health and safety of others. See Sch. Bd. of
Nassau County v. Arline, 480 U.S. 273, 287-88, 107 S. Ct.
1123, 94 L. Ed. 2d 307, (1987) (setting forth criteria for
determining, under § 504 of the Rehabilitation Act, if a
tubercular teacher posed a significant risk to the school
community) (direct threat exception later codified in 42
U.S.C. § 12182(b)(3)). We find that defendants were
attempting to make such a determination when they placed
John on “hold” status and that they may not be found liable
for discrimination during this interim period.
The Fourth Circuit in Montalvo v. Radcliffe, 167 F.3d 873
(4th Cir. 1999), discusses the direct threat exception in the
context of Title III of the ADA, but its discussion is relevant
for our purposes. In that case the Fourth Circuit, finding that
a disabled child posed a threat to the health and safety of
others, held that defendant did not violate the ADA when it
excluded a child carrying the human immunodeficiency virus
(HIV) from a traditional Japanese style martial arts school
where the risks for bloody, though minor, injuries were high.
See Montalvo, 167 F.3d at 874-75. That court found:
Recognizing that the need to protect public health may
at times outweigh the rights of disabled individuals,
Congress created a narrow exception to this broad
prohibition against discrimination based on disability in
places of public accommodation. Thus, a place of public
accommodation is entitled to exclude a disabled
individual from participating in its program “where such
individual poses a direct threat to the health and safety of
others.” 42 U.S.C. § 12182(b)(3). The Act defines
“direct threat” as “a significant risk to the health and
No. 99-5369 Doe, et al. v. Woodford County
Bd. of Educ., et al.
5
The following day, Gibson checked John’s school medical
records and discovered a counselor’s physical form stating
that the student “[s]hould not engage in activities which
would put him at increased risk for physical injury.” On the
back of this form, Gibson read that John suffered from
hemophilia and hepatitis B. Gibson then met with his overall
supervisor, defendant Mike Burkich, principal of the high
school, and sought advice concerning John’s condition and
his participation on the basketball team. Burkich instructed
Gibson to place John’s status as a player on “hold” and seek
medical direction and clearance for physical activities from
John’s doctor. Shortly after the decision was made to place
John on “hold” status, Gibson informed John that he could
not practice with the team and offered John the opportunity to
be the team’s manager.
After John’s mother learned of what occurred, a meeting
was held on October 26, 1996, between John’s mother, Mary
Doe, Coach Gibson, and the school’s counselor, Allyson
Lusby, concerning his “hold’ status with the team. Mary Doe
offered to provide the school with any documentation needed
to allow John to play on the school’s team. The meeting
ended with an understanding that John would be allowed to
play, but the school needed something from a medical
professional indicating that it would be safe for John to play.
John then returned to practice, but was told to sit on the
sidelines for certain drills. Later in the week, he was again
removed from practice and asked again about becoming the
team’s manager.
Another meeting was held between Mary Doe and school
officials October 30, 1996, this time with Gibson, Lusby,
Principal Burkich, and defendant Gene Kirk, head basketball
coach for the high school. They discussed the possible risks
presented by John’s afflictions, and the officials decided that
John would continue to be placed on “hold” status until they
received a statement from a medical doctor on whether it was
appropriate for John to fully participate on the team. The
officials noted that John’s membership on the team was never

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6 Doe, et al. v. Woodford County
Bd. of Educ., et al.
No. 99-5369
terminated; rather John would simply not be allowed to
participate fully in practice until receipt of a medical
statement authorizing his participation.
On November 1, 1996, coach Gibson received a facsimile
from Dr. Ardis Hoven, a physician who was treating John’s
hepatitis condition. His letter stated as follows:
Mr. [John Doe] has been under my care at the Lexington
Clinic and his mother has requested a letter regarding his
status regarding basketball [sic].
I have some reservations about [John’s] health but I think
overall, he is capable of playing basketball. He does
have hemophilia which is going to put him at some risk
for difficulties. Your consideration regarding this matter
is greatly appreciated.
Unsatisfied with the vagueness and generality of this letter,
Coach Gibson continued John’s “hold” status until more was
learned about how to proceed. Then on November 11, 1996,
principal Burkich sent an interoffice memorandum to coach
Kirk, instructing Kirk to treat John like all other players,
despite his medical condition, and to allow John to practice
with the team immediately. John or his mother did not
receive any notice of this memorandum.
Unhappy with how the school was handling his situation
and his concerns about being treated differently than other
student athletes, John decided that he no longer wanted to
play for the junior varsity team. Learning of her son’s
decision, Mary Doe organized a final meeting between herself
and school officials on November 12, 1996, to express her
dismay with how the school had handled her son’s situation
and hopefully point out the deficiencies the school had in
dealing with the kinds of problems presented by a student
with these types of disabilities. Mary Doe then informed
school officials of John’s decision to no longer play
basketball for the junior varsity team. Neither Mary nor John
No. 99-5369 Doe, et al. v. Woodford County
Bd. of Educ., et al.
7
were ever informed of Burkich’s November 11 memorandum.
Plaintiff then filed this lawsuit.
II. Plaintiff’s claims for violation of § 504 of the
Rehabilitation Act and Title II of the ADA
Plaintiff alleges that defendants violated § 504 of the
Rehabilitation Act and Title II of the Americans with
Disabilities Act. Section 504 provides that “no otherwise
qualified individual with a disability... shall, solely by reason
of her or his disability be excluded, from 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. § 794. Similarly, Title II of the ADA
provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. Federal courts,
including the Sixth Circuit, have held that because the
purpose, scope, and governing standards of the “acts are
largely the same, cases construing one statute are instructive
in construing the other.” McPherson v. Michigan High
School Athletic Ass’n, Inc., 119 F.3d 453, 460 (6th Cir. 1997).
As a result we will discuss plaintiff’s Rehabilitation Act claim
and plaintiff’s ADA claim together.
At first glance, it appears that John is an “otherwise
qualified” disabled person under § 504 of the Rehabilitation
Act and Title II of the ADA. To be qualified under each act,
the plaintiff must simply show that he or she is qualified to
perform the function with or without reasonable
accommodation by the defendant. See Burns v. City of
Columbus, 91 F.3d 836, 841 (6th Cir. 1996); Monette v.
Electronic Data Systems Corp., 90 F.3d.1173, 1178 (6th Cir.
1996). Plaintiff throughout discovery has argued that John is
qualified to play on the basketball team without
accommodation, and there has been no challenge to evidence
presented by the plaintiff regarding his past participation on

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