The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0241p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
ZAMARIA METCALF,
│
Plaintiff-Appellant, │
│
v. > No. 25-1963
│
│
STATE OF MICHIGAN; ENNIS CENTER FOR CHILDREN │
INC.; PATRICIA NEITMAN; ASHLEY CURTIS; │
STEPHANIE MILLER; ASHLEIGH BROTHERSON, nka │
Ashleigh LaPointe, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:21-cv-12242—Shalina D. Kumar, District Judge.
Argued: June 4, 2026
Decided and Filed: August 24, 2026
Before: STRANCH, BUSH, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Collin H. Nyeholt, LAW OFFICES OF CASEY D. CONKLIN, PLC, Okemos,
Michigan, for Appellant. Marissa Wiesen, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for State of Michigan Appellees. ON BRIEF: Collin H.
Nyeholt, LAW OFFICES OF CASEY D. CONKLIN, PLC, Okemos, Michigan, for Appellant.
Marissa Wiesen, Erin E. Harrington, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for State of Michigan Appellees. Matthew T. Wise, GORDON & REES,
Bloomfield Hills, Michigan, for Appellees Ennis Center for Children, Inc., Ashley Curtis, and
Stephanie Miller.
No. 25-1963 Metcalf v. Michigan, et al. Page 2
_________________
OPINION
_________________
BLOOMEKATZ, Circuit Judge. Zamaria Metcalf, a quadriplegic confined to a
wheelchair, applied to be a foster parent in Michigan. The state determined that she was
physically incapable of providing the necessary care to foster children because of her disability
and administratively closed her application. Metcalf sued, alleging this closure amounted to
unlawful disability discrimination. As Metcalf demonstrates, categorically precluding
individuals with severe physical disabilities from being foster parents may violate the Americans
with Disabilities Act and the Rehabilitation Act, since these laws require an individualized
assessment of whether, with a reasonable accommodation, an applicant can fulfill their parenting
responsibilities. But Metcalf’s proposed accommodation to meet the physical needs of any
potential foster children was unreasonable, so we affirm the district court’s grant of summary
judgment to the defendants.
BACKGROUND
I. Metcalf’s Background
More than twenty years ago, a car accident tragically paralyzed Zamaria Metcalf from the
neck down. Today, she retains only slight mobility in her left arm and moves through daily life
with the aid of a powered wheelchair.
Given her significant physical limitations, Metcalf relies on a network of formal and
informal care. She has full-time aides that assist her with all day-to-day physical activities.
Because Michigan’s no-fault insurance pays for these aides, they are limited to helping Metcalf
and “should not be assisting any other person.” Friedman Dep., R. 60-8, PageID 1385. Family
and friends also provide Metcalf with care through informal arrangements—there are no
contracts, set wages, firm schedules, or formal documentation of any kind. Instead, she gives
them “gifts” of varying amounts of money. Metcalf Dep., R. 60-9, PageID 1445.
No. 25-1963 Metcalf v. Michigan, et al. Page 3
With this formal and informal network of caregivers, Metcalf has served as a primary
caretaker for multiple children. Notwithstanding her disability, Metcalf’s niece and nephew each
lived with her for several years. Her nephew testified that Metcalf was a “great parent” and that
he was better off living with her than with his own mother. Michael Metcalf Dep., R. 60-6,
PageID 1341. Child Protective Services even once placed children in her home as part of a
safety plan. During these periods of time, her full-time, paid aides sometimes drove the children
around or cooked meals for them, even though these tasks exceeded the scope of Metcalf’s
insurance coverage. Her friends and family helped with the children as well.
Though she faces physical challenges, no one has questioned Metcalf’s mental or
emotional ability to be a foster parent. Instead, the record reflects that she was an active
participant in the lives of the children who had lived with her previously. She played with them,
imposed discipline, provided emotional guidance, initiated medical care, and generally ensured
the children were taken care of. In other words, she performed the mental and emotional tasks
one would expect of a parental figure. As Metcalf explained, though she cannot physically
perform certain tasks, she can still “watch over a child” and “supervise them.” Metcalf Dep.,
R. 60-9, PageID 1427. And for those physical tasks she cannot do herself, she “can instruct
those things to be done” and “watch over and make sure that [they’re] done appropriately.” Id.
Metcalf’s passion for childcare led her to follow in the footsteps of her mother and aunt
and apply to become a foster parent. The application process, however, proved fraught.
II. Foster Parent Application Process
The Division of Child Welfare Licensing (DCWL), housed within the Michigan
Department of Health and Human Services (MDHHS), oversees the license application process
for foster care homes and parents in Michigan. Michigan law authorizes MDHHS to investigate,
via private agencies, the backgrounds of prospective foster parents. Following these
investigations, the private agencies issue recommendations to MDHHS regarding the applicants’
suitability. See Mich. Comp. Laws § 722.115. Defendant Ennis Center is one such private
agency.
No. 25-1963 Metcalf v. Michigan, et al. Page 4
Metcalf applied for a license to be a foster parent through the Ennis Center. In her
application, Metcalf identified herself as the sole caretaker and requested to foster up to three
children between the ages of four and eighteen. She then successfully completed the first few
steps of the application process, including an orientation and a required background check.
The subsequent steps did not go as smoothly. Michigan law requires prospective foster
parents to obtain a “medical statement,” signed by a physician, attesting that each member of the
applicant’s household “does not have a known condition that would affect the care of a foster
child.” Id. § 722.115(3) (emphasis added). Metcalf asked her physician of over fifteen years,
Dr. Neil Friedman, to examine her and fill out the form. Dr. Friedman agreed to do so. On the
state’s medical statement form, he wrote that Metcalf “is paralyzed from [the] shoulders down.
She has no functional use of arms or legs.” Licensing R., R. 60-3, PageID 1235. Crucially, he
also checked “yes” to whether there were “any physical or mental factors that would jeopardize
the physical or mental welfare of any child placed in” Metcalf’s care. Id. He likewise checked
“yes” to whether Metcalf “suffer[ed] from an illness including a communicable disease that
would be detrimental to the care of a foster child . . . ?” and “yes” to whether Metcalf had “any
physical, behavioral or emotional problems that would be detrimental to a foster child/adoptive
child placed in the home?” Id. The medical statement form did not provide specific space for
Dr. Friedman to address the possibility of assistance for Metcalf. And neither the form nor the
Ennis Center asked whether assistance would alleviate his concerns.
In a deposition, Dr. Friedman detailed his thinking when filling out the form. He
explained that since Metcalf “cannot even care for herself,” he did not believe she was
“physically capable of caring for another person.” Friedman Dep., R. 60-8, PageID 1386. He
therefore thought it would be “inappropriate” for someone with Metcalf’s physical limitations to
ever foster a child. Id. at PageID 1392. Yet Dr. Friedman also testified that Metcalf could
“possibl[y]” be a foster parent if she paid for additional assistance with the physical tasks
childcare requires. Id. at PageID 1387. He emphasized, though, that Metcalf would need to pay
for this care out of her own pocket since it would be inappropriate for her to rely on the aides
prescribed for her own care and paid for by the state of Michigan for assistance with childcare
tasks.
No. 25-1963 Metcalf v. Michigan, et al. Page 5
Following Dr. Friedman’s medical assessment, defendant Ashley Curtis, an employee of
the Ennis Center, reviewed Metcalf’s application. Curtis conducted two home visits and
conversed several times with Metcalf. Dr. Friedman’s assessment, combined with these
experiences, led Curtis to recommend denying Metcalf’s application. She concluded that
granting Metcalf a foster license would violate four regulatory provisions: (1) Metcalf did not
“[d]emonstrate an understanding of the care which must be provided to the children served by
the agency,” Mich. Admin. Code r. 400.9201(d) (2019); (2) she was not “of such physical,
mental, and emotional health to assure appropriate care of children,” id. at r. 400.9201(h) (2019);
(3) she was not “of responsible character,” and “suitable and able to meet the needs of children
and provide for their care, supervision, and protection,” id. at r. 400.9201(j) (2019); and (4) she
was not “in a state of physical, mental, and emotional health that [would] not impair the care of a
foster child,” id. at r. 400.9202(1)(b) (2019). Defendant Stephanie Miller, Curtis’s supervisor,
cosigned Curtis’s recommendation to deny Metcalf’s application.
After reviewing Curtis’s investigative report and recommendation, defendant Patricia
Neitman (then Director of DCWL) informed Metcalf in February 2020 that DCWL was
administratively closing her application. Importantly, and contrary to Metcalf’s assertions, the
record indisputably demonstrates that DCWL did not deny her application. Had that occurred,
Michigan law would allow DCWL to bar Metcalf from reapplying to be a foster parent for five
years. See Mich. Comp. Laws § 722.125(4). But, as Michigan confirmed at oral argument, since
Neitman administratively closed Metcalf’s application, she may reapply at any time or provide
DCWL with information rebutting the Ennis Center’s recommendation without starting the
process over.
III. Current Proceedings
Metcalf brought this lawsuit against the State of Michigan, Neitman, and Ashleigh
LaPointe (current Director of DCWL) (collectively, the “State Defendants”), as well as the Ennis
Center, Curtis, and Miller (collectively, the “Ennis Defendants”), challenging the closure of her
foster parent application. She raised three primary claims: first, that the defendants
discriminated against her in violation of Title II of the Americans with Disabilities Act (ADA)
and Section 504 of the Rehabilitation Act; second, that two Michigan laws facially violate the
No. 25-1963 Metcalf v. Michigan, et al. Page 6
ADA and Rehabilitation Act; and third, that Neitman and the Ennis Defendants violated the
Equal Protection Clause by treating her differently because of her disability. See 42 U.S.C.
§ 12101 et seq. (ADA); 29 U.S.C. § 794 (Section 504); U.S. Const. amend. XIV; 42 U.S.C.
§ 1983.
Following discovery, the parties cross-moved for summary judgment. The district court
granted the defendants’ motions on all counts and denied Metcalf’s. Metcalf timely appealed.
ANALYSIS
We review summary judgment decisions de novo. Power & Tel. Supply Co. v. SunTrust
Banks, Inc., 447 F.3d 923, 932 (6th Cir. 2006). In reviewing the district court’s grant of
summary judgment for the defendants, we draw all reasonable inferences in favor of Metcalf. Id.
Thus, we will grant summary judgment if, when examining the record as a whole, there is no
dispute of material fact, and the defendants are entitled to judgment as a matter of law. Id.; Fed.
R. Civ. P. 56(c). Because even making every inference in Metcalf’s favor, we affirm the district
court’s grant of summary judgment for the defendants, we need not consider Metcalf’s request
for summary judgment. Gen. Teamsters Sales & Serv. & Indus. Union Loc. No. 654 v. Active
Transp. Co., 172 F.3d 872, at *4 n.11 (6th Cir. 1999) (unpublished table decision).
Before turning to the merits of Metcalf’s claims, we first consider a discovery dispute.
We next explain why the State Defendants are entitled to sovereign immunity on many of their
claims. Then we turn to Metcalf’s as-applied discrimination claims under the ADA and
Rehabilitation Act, her facial challenges under those statutes, and her Equal Protection claim.
I. Discovery Dispute
Metcalf contends that the district court improperly considered a declaration from
Neitman and an affidavit from Curtis in granting summary judgment for the defendants. She
argues that it was improper for the court to rely on this testimony because it was filed alongside
the defendants’ motion for summary judgment and never previously disclosed to her. We review
the district court’s discovery determination for an abuse of discretion and, after examination, find
none. Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015).
No. 25-1963 Metcalf v. Michigan, et al. Page 7
This discovery dispute implicates two rules regarding what parties must disclose to the
opposing parties and the consequences for failing to do so. During discovery, the parties often
exchange information and respond to the other’s written questions, called interrogatories.
Rule 26(e) of the Federal Rules of Civil Procedure requires parties to continually supplement
their responses to interrogatories as they learn new information. If they fail to supplement their
responses, Rule 37 bars them from later relying on the information that they should have
provided under Rule 26(e).
Metcalf asserts that the defendants violated Rule 26(e) by not updating their interrogatory
responses with the testimony contained in the Neitman declaration and Curtis affidavit. During
discovery, Metcalf served, for example, an interrogatory asking the State Defendants to state
“any and all of the reasons” MDHHS closed her license application. State Defs.’ Resp. to
Interrogs., R. 60-4, PageID 1272. The State Defendants objected to this interrogatory on various
grounds, then directed Metcalf to various documents they had already disclosed. Metcalf
contends that the Neitman declaration and Curtis affidavit were responsive to this and other
interrogatories, and because the defendants never supplemented their responses under Rule 26(e)
with this testimony, Rule 37 bars the defendants from using it to support their motion for
summary judgment.
Metcalf is wrong for several reasons. First, to the extent that Metcalf now contends the
defendants’ objections were “nonsensical” or “cookie-cutter,” Appellant Br. at 15, she ignores
that the defendants did respond to many of her interrogatories and identified Neitman and Curtis
in their initial disclosures. Second, Metcalf never sought to depose Neitman or Curtis through
four years of litigation. The defendants disclosed at the outset that both Neitman and Curtis
would have information relevant to MDHHS’s decision not to grant Metcalf’s application. And
the documents the State Defendants identified in response to Metcalf’s interrogatories included
Curtis’s recommendation and Neitman’s letter. Indeed, Metcalf had already named Neitman and
Curtis in her lawsuit. Despite having knowledge and an opportunity to take their testimony,
Metcalf never did. So she cannot fairly complain about the district court relying on their
testimony. Third, the defendants did not create the documents until mere days before they
moved for summary judgment, long after discovery had concluded. It is difficult to fault the
No. 25-1963 Metcalf v. Michigan, et al. Page 8
defendants for failing to produce documents that did not even exist while discovery was ongoing,
much less when Metcalf declined to pursue the discovery tools at her disposal to obtain the
contested information. See Muhammad v. Deutsche Bank Nat’l Tr. Co., No. 21-6243, 2023 WL
3067756, at *4 (6th Cir. Apr. 25, 2023).
Metcalf’s reliance on Gipson v. Vought Aircraft Industries is unavailing. There, Gipson’s
initial disclosures named a specific individual who was likely to have discoverable knowledge.
387 F. App’x 548, 551 (6th Cir. 2010). When Vought propounded an interrogatory seeking a
description of that knowledge, Gipson did not meaningfully elaborate on what that individual
knew. Id. Then, at the summary judgment stage, Gipson introduced an affidavit from the named
individual that contained information that would have been responsive to Vought’s initial
interrogatory. Id. at 552. The district court granted Vought’s motion to strike portions of the
affidavit. Id. We affirmed, holding that the additional information contained in the affidavit was
not properly before the district court because it had been notarized two months before the close
of discovery. Id. at 554–55. But here, unlike in Gipson, the defendants objected to Metcalf’s
interrogatories. See id. at 551–52. The contested documents in this case also did not exist until
well after the close of discovery, unlike in Gipson. See id. at 554.
Thus, the district court did not abuse its discretion in considering the Neitman declaration
and Curtis affidavit, and we will also consider those documents as part of the record.
II. Sovereign Immunity
Before turning to each of Metcalf’s claims, we first address the State Defendants’
threshold defense: sovereign immunity. The State Defendants contend that they are entitled to
sovereign immunity on all claims except for Metcalf’s Rehabilitation Act claim and her request
for prospective injunctive relief against LaPointe. See U.S. Const. amend. XI. Metcalf does not
dispute the applicability of sovereign immunity, nor should she, as the State Defendants are
correct. Sovereign immunity bars ADA Title II claims against states, their agencies, and their
officials when those claims sound in equal protection and are based on heightened scrutiny.
Babcock v. Michigan, 812 F.3d 531, 534 (6th Cir. 2016). Sovereign immunity also protects
states, their agencies, and their officials (when sued in their official capacity) from suits for
No. 25-1963 Metcalf v. Michigan, et al. Page 9
damages arising under 42 U.S.C. § 1983, such as Metcalf’s Equal Protection claim. Cady v.
Arenac County, 574 F.3d 334, 342 (6th Cir. 2009).
After applying sovereign immunity, Metcalf’s appeal narrows, but it still continues on
several fronts. Sovereign immunity does not dispense of any claims against the Ennis
Defendants. Nor does it dispense of the Rehabilitation Act claims against the State Defendants.
See 42 U.S.C. § 2000d-7 (explicitly abrogating sovereign immunity for Section 504 claims).
Finally, sovereign immunity does not bar Metcalf’s request for prospective injunctive relief
against state officials. See Ex parte Young, 209 U.S. 123, 159 (1908); Charlton-Perkins v. Univ.
of Cincinnati, --- F.4th ----, 2026 WL 2254577, at *8 (6th Cir. Aug. 5, 2026). Metcalf would
have us enjoin enforcement of state law against her future attempts to obtain a foster license.
That is well within the scope of the Ex parte Young actions endorsed by our precedents. Cf.
Charlton-Perkins, 2026 WL 2254577, at *12 (injunction unavailable when there was “no future
action to enjoin”).1
With these limits, we turn to Metcalf’s discrimination claims.
III. As-Applied ADA and Rehabilitation Act Claims
Metcalf’s central claim is that the defendants discriminated against her based on her
disability by rejecting her application to be a foster parent because she is quadriplegic. Metcalf
acknowledges that her quadriplegia prevents her from performing certain physical tasks required
of caregivers. But she maintains that her network of formal and informal aides could provide the
necessary support and function as a reasonable accommodation. As she describes her plan to
parent, she is the “brains of her operation,” while her aides “act as her hands.” Second Am.
Compl., R. 42, PageID 719. Because the defendants rejected this accommodation, she contends
that they discriminated against her in violation of Title II of the ADA and Section 504 of the
Rehabilitation Act. See 42 U.S.C. § 12132 (Title II); 29 U.S.C. § 794(a) (Section 504).
1Metcalf also requests an injunction “from future violations of [her] rights by continuing to exclude her . . .
from access to the Michigan foster care licensing system by reason of her . . . disability.” Second Am. Compl.,
R. 42, PageID 732. Because Metcalf argues that the application of Michigan law is excluding her from the foster
licensing system, we read this requested injunction to be identical to the requested injunction listed above.
No. 25-1963 Metcalf v. Michigan, et al. Page 10
We disagree, however, that Metcalf offered a reasonable accommodation for providing
physical assistance to foster children. As the defendants confirm, Metcalf may be able to
demonstrate that she is qualified to be a foster parent by securing sufficient dedicated help to
provide physical support for potential foster children. But the record shows that she has not
secured that help or even proffered a plan to do so. Thus, based on this record, the defendants
are entitled to summary judgment on Metcalf’s as-applied ADA and Rehabilitation Act claims.
Because the ADA and Rehabilitation Act claims have similar elements, we evaluate them
together (with the caveat that sovereign immunity shields the State Defendants from some of the
ADA claims, as explained above). See Knox County v. M.Q., 62 F.4th 978, 1000 (6th Cir. 2023).
To succeed under either statute, Metcalf must satisfy three elements. First, that she has a
disability, an element not contested here given her quadriplegia. See Finley v. Huss, 102 F.4th
789, 820 (6th Cir. 2024). Second, that she is “otherwise qualified” to be a foster parent, either
with or without a reasonable accommodation. Kaltenberger v. Ohio Coll. of Podiatric Med., 162
F.3d 432, 435 (6th Cir. 1998). Third, that the defendants rejected her application because of her
disability, which she can establish by showing that the defendants failed to provide a reasonable
accommodation. See Finley, 102 F.4th at 820.2 Here, the inquiry turns on whether her proposed
accommodation was reasonable—which matters for both the second and third elements—so we
focus our analysis on that question.
A. Accommodation Request
Metcalf must first establish that she requested an accommodation, but the defendants say
she did not. See Smith v. Henderson, 376 F.3d 529, 535–36 (6th Cir. 2004). Even if she did not
directly make a request, however, it is enough that the defendants knew or should have known
that Metcalf sought accommodation. See id. The record reflects that Metcalf satisfied that
standard. Given Metcalf’s physical limitations, it was not a question that she would need
assistance in caring for foster children. Recognizing that, Metcalf “ask[ed] the Ennis Center”
whether her aides would need to take foster care classes or only take CPR and first aid classes
(foster parent requirements that Metcalf cannot physically perform). Metcalf Dep., R. 60-9,
2Rehabilitation Act claims also require the program to receive federal funding, see Gohl v. Livonia Pub.
Schs. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016), an element not contested by the defendants.
No. 25-1963 Metcalf v. Michigan, et al. Page 11
PageID 1441–42. She also asked if her aides would “need to be, you know, certified” since they
would be “assisting [her] with the children.” Id. Indeed, Neitman inquired into whether
Metcalf’s aides could assist with children in the home, demonstrating that Neitman understood
Metcalf would be relying on them as an accommodation. Given this record, we conclude that
Metcalf sufficiently requested an accommodation so that she could receive a foster care license.
B. Reasonable Accommodation
We must next consider whether Metcalf’s proposed accommodation was reasonable. An
accommodation is unreasonable under the ADA and Rehabilitation Act if it “would
fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i);
see Jones v. City of Monroe, 341 F.3d 474, 480 (6th Cir. 2003), abrogated on other grounds by,
Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc); McPherson v.
Mich. High Sch. Athletic Ass’n, 119 F.3d 453, 459–61, 463 (6th Cir. 1997) (en banc) (applying
the same framework to Rehabilitation Act claims).3 In applying this standard, we must
undertake an “individualized inquiry,” asking whether Metcalf’s specific accommodation request
would “fundamentally alter” the licensure scheme for foster parents. PGA Tour, Inc. v. Martin,
532 U.S. 661, 688 (2001).
The defendants carry both the burden of production and the burden of persuasion in
establishing that Metcalf’s network of aides would fundamentally alter the scheme and thus was
not a reasonable accommodation that would allow her to serve as a foster parent. Hindel v.
Husted, 875 F.3d 344, 348 (6th Cir. 2017). They advance two reasons why Metcalf’s plan was
unreasonable. First, they contend that Metcalf’s aides would need to themselves get licensed as
foster parents to satisfy the licensure scheme. Second, they contend that Metcalf’s existing
network of aides did not make her properly prepared to meet all of a foster child’s physical
needs. Although the defendants’ first rationale is unpersuasive, their second one convinces us
that Metcalf’s proposed accommodation is not reasonable.
3The defendants do not argue Metcalf’s proposed accommodation is unreasonable for other reasons, and
thus we consider only whether the accommodation would fundamentally alter the state’s scheme.
No. 25-1963 Metcalf v. Michigan, et al. Page 12
Separate Licensure. The defendants contend that Metcalf’s accommodation request is
not reasonable because her aides would need to be separately licensed as co-foster parents given
that they would be performing nearly all of the necessary physical caregiving tasks. The district
court agreed with the defendants. It reasoned that since “both [Metcalf] and her aides would all
play necessary roles in rendering childcare,” both she and her aides “must meet foster parent
licensure standards.” D. Ct. Op., R. 79, PageID 2241.
We are not persuaded, however, that her aides would need separate licensure. The state
defendants have not demonstrated on this record that Michigan’s foster-parent scheme actually
requires secondary caregivers who assist with childcare to be separately licensed. And if the
scheme singled out Metcalf because of her quadriplegia, we would have serious questions about
its lawfulness.
Start with the record. The defendants rely on Curtis’s testimony that “[i]f Ms. Metcalf
intended to have her aides assist her with caring [for] the foster children, then each aide would
have been required to apply and be accepted as licensed foster parents.” Curtis Aff., R. 63-3,
PageID 1529, ¶ 24. But the foster-care scheme does not require all persons in a household with a
foster child to be licensed. Instead, under Rule 400.9205, licensing agencies may certify
members of a licensee’s household without licensing them as separate foster parents. See Mich.
Admin. Code r. 400.9205. Neitman herself testified that DCWL “assessed whether Metcalf could
safely provide care with her individual aid[e]s,” and concluded that “without additional
information about the aid[e]s, including background checks,” Metcalf’s home was not an
appropriate place for foster children. Neitman Decl., R. 65-2, PageID 1930–31, ¶ 9. Thus, it is
not clear that Neitman thought Metcalf’s aides would need to be separately licensed rather than
approved under Rule 400.9205. Moreover, Metcalf testified that she asked the Ennis Center “do
[the aides] need to be, you know, certified”? Metcalf Dep., R. 60-9, PageID 1441. While
Metcalf does not say what the Center’s response to this query was, crediting her testimony and
considering the rest of the record, it is reasonable to infer that the defendants said her aides
would not need to be licensed.
The defendants bear the burden of production in showing that Metcalf’s aides would need
to be separately licensed as foster parents. See Hindel, 875 F.3d at 348. Yet they have not
No. 25-1963 Metcalf v. Michigan, et al. Page 13
shown that other in-home help who devote similar time and care to children must be separately
licensed, such as a nanny or live-in au pair for a traveling businessperson. Nor have they
explained, if Metcalf intends to rely on a number of aides and assistants as she has in the past,
how many of them must be licensed as co-parents.
If the defendants instead mean that Metcalf’s quadriplegia categorically barred her from
being a solo foster parent, that could violate the ADA’s requirement that the government make
an “individualized inquiry” into a person’s disability accommodation request. PGA Tour, 532
U.S. at 688. Indeed, at oral argument, the government conceded that a quadriplegic could
plausibly qualify as a solo foster parent. Thus, the district court erred in determining that the
defendants met their burden to show that allowing Metcalf’s aides to assist her in providing care
without being separately licensed would fundamentally alter the licensing scheme.
Metcalf’s Patchwork of Assistance. Although we reject the defendants’ argument that
each of Metcalf’s aides would need to be separately licensed as foster parents, we agree with
their second reason for rejecting Metcalf’s accommodation request: Metcalf had not secured—
nor even promised to secure—supplemental care that would reliably provide the type of full-time
physical assistance needed for her to care for foster children. Because Metcalf’s proffered
accommodation would have required the state to effectively waive fundamental rules related to
the safety of foster children, see Mich. Admin. Code r. 400.9201(d), (h), (j) (2019); id. r. 9202(b)
(2019), her request was not reasonable. See PGA Tour, 532 U.S. at 689; see also Tri-Cities
Holdings LLC v. Tenn. Admin. Procs. Div., 726 F. App’x 298, 316 (6th Cir. 2018).
The defendants demonstrated that Metcalf’s patchwork of formal and informal assistance
did not provide adequate assurance that she could meet her foster parent responsibilities.
Consider first her full-time, paid aides. As mentioned, the government presented unrebutted
testimony that Metcalf’s no-fault insurance did not allow these caretakers to assist any other
person; insurance covered the cost of meeting Metcalf’s physical needs only. See Mich. Comp.
Laws § 500.3107(1)(a). Metcalf did not plan to increase these aides’ pay if she were to foster a
child. Quite the opposite, she minimized how much fostering children could increase their
responsibilities, surmising that it would not add a significant burden given that they already
cooked, cleaned, and transported her. And even assuming Metcalf would supplement their pay,
No. 25-1963 Metcalf v. Michigan, et al. Page 14
there is no evidence in the record that these aides were “willing to undertake physical caregiving
responsibilities for foster children in addition to assisting Metcalf.” D. Ct. Op., R. 79, PageID
2237. The district court alerted Metcalf to these concerns at the motion to dismiss stage,
explaining that “one critical factual issue,” which “may be decisive,” was whether her insurance-
provided aides were “willing and able to take on childcare duties.” D. Ct. Op. on MTD, R. 23,
PageID 234 n.2. But at summary judgment, the record does not demonstrate that Metcalf had
secured—or even could secure—the assistance of her full-time, paid aides to meet the physical
needs of a foster child.
Metcalf’s informal network of support likewise does not provide assurance that Metcalf
could meet the physical needs of foster children. The record shows that Metcalf’s supplemental
care amounted to a loose network of over twenty different friends and family members. She paid
these care providers through informal gifts, with undefined pay scales, no firm schedule, and no
documentation. We do not discount the value that informal networks play in raising children.
But we agree with the defendants that placing foster children in Metcalf’s care without more
concrete assurance that Metcalf could reliably meet the physical needs of foster children would
“fundamentally alter” the licensure system and is, therefore, not a reasonable accommodation.
28 C.F.R. § 35.130(b)(7)(i).
Metcalf is not precluded from supplementing her application with a more comprehensive
third-party assistance plan showing that she can properly physically care for foster children with
appropriate help. But, based on this record, we affirm the district court’s grant of summary
judgment for the defendants on Metcalf’s claim that rejecting her application violated the ADA
and the Rehabilitation Act.
IV. Facial Challenge
In addition to challenging the rejection of her application specifically, Metcalf also
contends that two provisions of Michigan law governing foster care licensure facially
discriminate against people who have disabilities, in violation of the ADA and the Rehabilitation
Act. She points first to a Michigan law that prohibits foster parent licensure unless “each
member of the household” can show that “he or she does not have a known condition that would
No. 25-1963 Metcalf v. Michigan, et al. Page 15
affect the care of a foster child.” Mich. Comp. Laws § 722.115(3). Next, Metcalf emphasizes
that, by law, DCWL must exclude an applicant if they do not “[h]ave the physical, mental, and
emotional health to ensure appropriate care of children.” Mich. Admin. Code r. 400.9201(1)(d).
These two provisions, she contends, mean that Michigan law prohibits any disabled person
whose condition would “affect” a child’s care from being a foster parent, or even living in a
home with foster children, regardless of the size or impact of that effect.
Metcalf has not met the high bar of showing that these provisions are facially
discriminatory. Laws are facially invalid only if they are discriminatory “‘in all of [their]
applications.’” City of Los Angeles v. Patel, 576 U.S. 409, 418–19 (2015) (quoting Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). DCWL has issued foster
licenses to people with disabilities, meaning that it does not interpret the provisions to bar
anyone and everyone with a disability from receiving a foster care license. So it does not
preclude people with disabilities, no matter how little their “known condition” would “affect”
caring for the child, from being foster parents. Nor does DCWL violate the ADA or
Rehabilitation Act each time it applies these provisions. There are some cases, as here, where an
applicant has a severe disability and has not proposed a reasonable accommodation. And there
may be cases where an individual’s disability cannot be accommodated in a way to “ensure
appropriate care of children.” Mich. Admin. Code r. 400.9201(1)(d). Rejecting a foster care
license in those circumstances does not violate the ADA or Rehabilitation Act. Because the
provisions have not been discriminatory in all their applications, her facial challenges fail.
Metcalf’s counterargument is unavailing. She argues that evidence of other disabled
people nevertheless receiving foster care licenses means only that they were fortunate, “even
though the law says they are not eligible.” Appellant Br. at 30. True, the laws are not artfully
worded. But we can examine how Michigan has applied its laws in evaluating a facial challenge.
And Michigan has awarded other people with disabilities foster care licenses. Similarly,
MDHHS has declined to foreclose the possibility that Metcalf herself could be qualified in the
future, even considering her quadriplegia. We will not interpret these provisions as so
unyielding as to violate federal law, especially when Michigan itself does not.
No. 25-1963 Metcalf v. Michigan, et al. Page 16
V. Equal Protection
Beyond her statutory claims, Metcalf argues that Neitman and the Ennis Defendants
violated her Equal Protection rights by discriminating against her based on her disability. See
U.S. Const. amend. XIV. For this claim, she must first demonstrate “disparate treatment.”
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). She has. The
Ennis Defendants’ recommendation, which the State Defendants relied on to close Metcalf’s
application, was based on Metcalf’s “physical examination documentation” and the home visits.
Licensing R., R. 60-3, PageID 1254. The physical examination form listed Metcalf’s
quadriplegia as its only explanation for why she was not medically capable of caring for
children. And Dr. Friedman testified that Metcalf’s disability was the sole reason for the
conclusions in his evaluation. Metcalf’s application would not have been closed if she were not
disabled.
Whether this disparate treatment amounts to unconstitutional discrimination, however, is
a different inquiry. Disparate treatment based on an individual’s disability is subjected to
rational basis review. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366–68 (2001).
So the disparate treatment is unconstitutional only if it was “unrelated to the achievement of any
combination of [] legitimate purposes.” Scarbrough, 470 F.3d at 261 (citation modified).
Because the defendants’ actions were rationally related to the legitimate purpose of ensuring safe
homes for foster children, they are entitled to summary judgment on Metcalf’s Equal Protection
claim.
To the extent that Metcalf argues that the defendants’ actions were motivated by animus,
the record does not support that assertion. Cf. id. For example, Metcalf testified that Curtis
helped her throughout the process and encouraged her to apply. Neitman additionally
administratively closed her application rather than denying it outright, allowing for the
possibility of a future application. We will not impute animus given this record.
In sum, based on this record, the defendants are entitled to summary judgment on all of
Metcalf’s claims. As the defendants assure us, if Metcalf or another individual with physical
No. 25-1963 Metcalf v. Michigan, et al. Page 17
limitations presents a sufficiently comprehensive plan for assistance, the physical limitations
alone will not be a sufficient basis for preventing that person from becoming a foster parent.
CONCLUSION
We affirm the district court’s grant of summary judgment to the defendants on all of
Metcalf’s claims.