The opinion of the court was delivered by: ORLOFSKY
ORLOFSKY, District Judge:
Plaintiff, Michael Bowers, has moved for a preliminary injunction pursuant to Fed. R. Civ. P. 65. Jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331, 1343. The principal issue raised by Plaintiff's motion, an issue of first impression in this Circuit, is whether Plaintiff, who is "learning disabled," can show a reasonable likelihood that he will succeed on his claim that his classification by the National Collegiate Athletic Association ("NCAA") as a "nonqualifier" within the meaning of the NCAA bylaws, constitutes illegal disability-based discrimination in violation of the Americans with Disabilities Act. 42 U.S.C. §§ 12101, et seq.1
A. The NCAA Bylaws and the Certification Process
The National Collegiate Athletic Association ("NCAA") is a private unincorporated association comprised of approximately 1200 colleges and universities. (Karpinski Aff. P 2; N.T. 7/23/97, pp. 146-147). The general policies of the NCAA are established by its members at annual conventions. (Karpinski Aff. P 3). The NCAA Constitution, Bylaws and other governing legislation are set forth in the NCAA Manual, which is published annually and distributed to all member institutions. (Exhibit D-1).
The NCAA bylaws require, among other things, that all NCAA member institutions establish minimum academic eligibility standards for all prospective students who wish to participate in intercollegiate athletics at the institution and receive athletic scholarships from the institution during their freshman year. The eligibility requirements are designed to assure proper emphasis on educational objectives, to promote competitive equity among institutions and to prevent exploitation of student athletes. (Karpinski Aff. P 6; N.T. 7/22/97, p. 171; N.T. 7/23/97, pp. 151-152). In furtherance of these goals, the NCAA requires that any prospective student who wishes to participate in intercollegiate athletics at a member institution and receive athletic scholarships from the member institution during his or her freshman year be certified as a "qualifier" by the NCAA Initial Eligibility Clearinghouse (the "Clearinghouse").
(Ex. D-1, Bylaws 14.01.1, 14.02.9).
In order to be certified as a "qualifier," NCAA bylaws provide that a student must graduate from high school, pass at least thirteen classes in what the NCAA defines as a "core course," with a minimum grade-point average that varies based on the strength of the student's standardized test score. (Ex. D-1). The NCAA bylaws define "core course" as a recognized academic course that offers fundamental instructional components in a specified area of study. (Ex. D-1, Bylaw 184.108.40.206.1).
The definition of "core course" contained in the NCAA bylaws expressly excludes courses taught below the high school's regular academic instructional level, including remedial, special education or compensatory courses, regardless of the content of the course. (Ex. D-1, Bylaw 220.127.116.11.4). The bylaws do provide, however, that special education courses for the learning disabled may fulfill the core-curriculum requirements if the student's high school principal submits a written statement to the NCAA indicating that students in such classes are expected to acquire the same knowledge, both quantitatively and qualitatively, as students in other core courses. (Ex. D-1, Bylaw 18.104.22.168.4). The same required core courses and grade point average must nevertheless be achieved by a learning disabled student.
In determining whether a particular course constitutes a "core course" within the meaning of the NCAA bylaws, the Clearinghouse first looks to the high school's "48-H Renewal Form" on which each high school is asked to list all courses which school officials believe meet the NCAA "core course" requirements. (Ex. P-2 to P-6; N.T. 7/21/97, p.71). If a particular course is not listed on the school's "48-H Renewal Form," the Clearinghouse may nevertheless approve the course if the school has submitted sufficient documentation establishing that the course deserves "core" status.
In the event the Clearinghouse determines that a particular student should not be certified as a "qualifier," the bylaws further authorize the NCAA to grant a waiver of the academic eligibility requirements "based on objective evidence that demonstrate circumstances in which a student's overall academic record warrants the waiver of the normal application" of the requirements. (Ex. D-1, Bylaw 22.214.171.124). Waiver requests are considered by the NCAA Council Subcommittee on Initial-Eligibility Waivers (the "Subcommittee"). Generally, the Subcommittee will review any materials that the student wishes to submit in support of his or her application for a waiver. (Ex. D-5). In the case of a student seeking a waiver based on a learning disability, or a "LD Waiver," the Subcommittee will review, among other things, the student's Individual Education Program ("IEP"), as well as the content of the "non-core" courses taken by a student. (N.T. 7/23/97, pp. 191-192).
Although the bylaws preclude a student who neither obtains "qualifier" status, nor obtains a waiver of the initial eligibility requirements, from participating in intercollegiate athletics and receiving an athletic scholarship during the freshman year, the bylaws do not preclude such a student from receiving academic or need-based financial aid or from participating in athletics and receiving athletic scholarship funds from a member institution during his or her remaining college years.
Michael Bowers is presently a freshman at Temple University in Philadelphia, Pennsylvania. (N.T. 7/23/97, p. 306). From the time Bowers was in second grade, until his graduation from Palmyra High School in Palmyra, New Jersey, in June 1996, he received special education and related services to accommodate a learning disability. (Ex. P-24c). Many of the courses that Bowers took while enrolled at Palmyra High School ("Palmyra") were special education courses, labeled as "SE." (N.T. 7/21/97, p. 217).
Notwithstanding Bowers's learning disability, he is by all accounts a talented football player. Bowers was on the Palmyra High School football team during all four years that he was enrolled at Palmyra. (N.T. 7/23/97, pp. 256-257). As such, in September 1995, Bowers submitted an application and student release form to the Clearinghouse, seeking certification as a "qualifier" in order to participate in athletics and receive an athletic scholarship from an NCAA member institution during his freshman year of college. (Ex. P-1f).
The Clearinghouse first began to review Bowers's certification status in April 1996. (Ex. D-6, p. 54). Upon reviewing Bowers's application and high school transcript, the Clearinghouse noted that on his transcript, several courses taken by Bowers had certain letter designations after them, indicating that such courses were special education courses. (Ex. D-6, p. 54). The Clearinghouse then noted that none of the special education courses taken by Bowers was listed on Palmyra's 48-H Renewal Form. (Exs. P2-P5). The Clearinghouse requested additional information and documentation from Palmyra on these specific courses in order for it to consider these courses "core courses" within the meaning of the NCAA bylaws. (Ex. D-6, p. 54).
Although both Ms. Goldman and Ms. Dori Levy, Director of Special Services for Palmyra Public Schools, sent the Clearinghouse additional information regarding some of the special education courses taken by Bowers, the Clearinghouse never received all of the information it sought. (Ex. D-6, p.54). In fact, in her letter to the Clearinghouse, Ms. Levy also informed the Clearinghouse that there was no equivalent regular education course for the English CA course that Bowers has taken. (Ex. P-24c). Ms. Levy also noted in her May 17, 1996, letter to the Clearinghouse that the Biology I SE and Biology II SE courses that Bowers had taken were the equivalent of one regular education biology course. She also indicated that Bowers's English DC and English Comp. C courses combined together to form the equivalent of one regular education English course. (Ex. P-24c).
In June 1996, based on the information that it had received from Palmyra, the Clearinghouse concluded that only three special education courses taken by Bowers qualified as "core courses." The Clearinghouse again advised Palmyra that many of the submitted courses "remained questioned" and that the Clearinghouse needed additional information about the courses in the form of tables of contents and syllabi for each course. (Exs. P-7, D-6, p. 55, and D-16). In July 1996, without receiving any additional information, the Clearinghouse's Final Certification Report classified Bowers as a "nonqualifier," noting that Plaintiff had met only three of the requisite thirteen "core course" requirements. (Exs. P-1h, Ex. D-6, p.55).
As a result of his "nonqualifier" classification, Bowers is neither eligible to play intercollegiate football for an NCAA member institution during his freshman year, nor eligible to receive an athletic scholarship from a member institution in his freshman year. Nevertheless, Bowers enrolled at Temple University, an ...