case_cite">61 F.3d 278

Shannon Richey FAULKNER, individually and on behalf of all
others similarly situated, Plaintiff-Appellee,
and
The United States of America, Plaintiff-Intervenor,
v.
THE CITADEL, the Military College of South Carolina,
Defendants-Appellants,
and
James E. Jones, Jr., et al., the State of South Carolina,
and the Board of Visitors of The Citadel, the
Military College of South Carolina, Defendants.

No. 95-2472.

United States Court of Appeals,
Fourth Circuit.

Aug. 9, 1995.

ORDER

The Citadel's emergency motion for stay pending appeal is denied. Entered by direction of Judge Hall, with the concurrence of Judge Niemeyer. Judge Hamilton would grant the motion for the reasons separately stated in the attached dissenting opinion.

HAMILTON, Circuit Judge, dissenting:

In the face of Faulkner's refusal to submit complete information for a routine medical evaluation, and her apparent inability to meet the physical requirements for admission to the Corps of Cadets, I would stay her admission to the Corps of Cadets until she provides the necessary information to demonstrate her physical fitness for entering the Corps of Cadets. I would assume that this information, as requested by the routine forms, could be supplied forthwith and the evaluation could likewise be completed forthwith, which would afford a prompt determination of her physical fitness for joining the Corps of Cadets. Until this medical evaluation has demonstrated Faulkner's physical fitness to enter the Corps of Cadets, she, like any other prospective cadet at The Citadel, should not be permitted to join the Corps of Cadets.

In the absence of such a medical evaluation, I assume those waiving this requirement are prepared to accept the responsibility and consequences of Faulkner's suffering a serious injury if, in fact, she is not physically fit and qualified to undertake the rigorous training program of the Corps of Cadets. This is a responsibility I do not choose to share.

For the foregoing reasons I would stay Faulkner's admission to the Corps of Cadets pending completion of the requisite medical evaluation demonstrating her physical fitness for joining the Corps of Cadets.

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