(i) imposed eligibility criteria that tended to screen out an individual with a disability, or (ii) failed to make reasonable modifications in policies, practices, or procedures, which were necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. If a plaintiff establishes a prima facie case of discrimination by demonstrating either (i) or (ii), the burden then shifts to the defendant to show that, without the use of such eligibility criteria, or by making such modifications, the nature of the good, service, facility, privilege, advantage, or accommodation offered by the defendant would be fundamentally altered.
While NCAA bylaw 18.104.22.168.4, which expressly excludes special education courses from the definition of "core course," may, when viewed in isolation, appear to "screen out or tend to screen out" persons on the basis of their disability, this one bylaw must be viewed in the context of the NCAA bylaws and procedures as a whole. Indeed, the NCAA bylaws, themselves, provide for two alternate avenues by which a learning disabled student who has taken numerous special education courses, that would not otherwise qualify as "core courses," may obtain the status of a "qualifier."
First, the bylaws provide that courses for the learning disabled may fulfill the core-curriculum requirements if the student's high school principal demonstrates 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 22.214.171.124.4).
Second, the bylaws also authorize the NCAA to grant a waiver of the initial 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 126.96.36.199; Karpinski Aff. P28). While prior to August 1996, such a waiver request could be initiated only at the request of an NCAA member institution, effective August 14, 1996, an individual with a learning disability such as Bowers may seek the waiver on his own behalf. (N.T. 7/22/97, p. 153).
In fact, Plaintiff has availed himself of both alternate avenues in hopes of attaining the status of "qualifier." After the Clearinghouse first noted that Bowers had taken several special education courses which would ordinarily not count as courses under Bylaw 188.8.131.52.4, the Clearinghouse requested additional information from Palmyra on specific course designations that appeared on Plaintiff's transcript. After receiving some information about the courses from the school, the Clearinghouse again requested more specific course information and clarification from Palmyra. (Karpinski Aff. P26).
In June 1996, Clearinghouse staff reviewed the additional course information that had been provided by Palmyra High School, and based on this additional information, qualified three courses completed by Plaintiff as "core courses." The Clearinghouse then advised Palmyra that many of the submitted courses "remained questioned" and the Clearinghouse needed additional information about the courses in the form of a table of contents and syllabus for each of the courses. Without receiving any additional information, the Clearinghouse's final Initial Eligibility Certification Report noted that Plaintiff had not met the "core course" requirements necessary to obtain the status of a "qualifier." (Karpinski Aff. P27).
Prior to the preliminary injunction hearing in this matter, I instructed the NCAA to consider Bowers's application for a waiver of the initial eligibility requirements pursuant to NCAA Bylaw 184.108.40.206 on an expedited basis. Every waiver request, submitted by or on behalf of a learning disabled student is considered by the NCAA Council Subcommittee on Initial-Eligibility. In considering a waiver application, the Subcommittee evaluates each submission on a case-by-case basis, and looks at the student's overall record during his or her high school career to ascertain if it is sufficiently strong to predict the likelihood of the student's academic success in the first year of college.
In Bowers's case, the Subcommittee considered Bowers's "Clearinghouse file," affidavits from Michael Bowers and Dori Levy, and Bowers's transcript from his first semester at Temple University. (Ex. D-6). The Subcommittee also reviewed his Individual Education Program ("IEP") to gain further information about Bowers's disability and to determine whether the courses in dispute were specifically listed by the student's high school IEP Team as courses necessary to address his disability.
Although Bowers argues that it was improper for the Subcommittee to "second guess" his learning disability diagnosis, the record reveals that the Subcommittee accepted Bowers's diagnosis and disregarded a letter from Dr. Robert Colson, an outside consultant, which questioned Bowers's diagnosis as learning disabled. (N.T. 7/23/97, p. 178). Bowers's initial IEP, formulated in 1992, indicated that Bowers planned to attend a Community College after graduation from Palmyra. (N.T. 7/22/97, p. 203; Ex. P-1c). However, Bowers's 1994 IEP revealed that he hoped to attend a college or university. (N.T. 7/22/97, pp. 203-204; Ex. P-1d).
The Subcommittee considered all the materials submitted by Bowers in support of his waiver application. The Subcommittee credited only four more of Bowers's courses as "core courses," and unanimously concluded that Bowers would not be able to succeed academically during his first year of college, while also confronting the demands of competitive intercollegiate athletics. (N.T. 7/22/97, p. 188; N.T. 7/23/97, p. 179).
By filing this lawsuit, Plaintiff is essentially seeking a "second bite" at the waiver which the NCAA has already denied him. In his complaint and accompanying motion for preliminary injunctive relief, Plaintiff asks this Court to order the NCAA to consider all of his special education courses, regardless of their level or content, as "core courses" within the meaning of the bylaws. By doing so, Plaintiff seeks a virtual elimination of the "core course" requirement, rather than merely the "modification" or "accommodation" required by the ADA, which the NCAA already provides.
To count all of Bowers's special education courses as "core courses," without regard to their level or content would require the NCAA to abandon its eligibility requirements. While the ADA requires "evenhanded treatment" of individuals with disabilities, it does not require "affirmative action." Sandison v. Michigan High School Athletic Association, 64 F.3d 1026, 1031 (6th Cir. 1995).
Indeed, the ADA "does not require the NCAA to simply abandon its eligibility requirements, but only to make reasonable modifications to them." Ganden v. NCAA, 1996 U.S. Dist. LEXIS 17368, No. 96-6953, 1996 WL 680000, *16 (N.D. Ill. Nov. 21, 1996). Under the ADA, a requested modification is unreasonable if it "would 'fundamentally alter' the nature of the privilege or accommodation to which [a plaintiff] has been denied access." Id. at *14. Simply requiring a reduction in the essential eligibility standards is not a reasonable modification. Pottgen v. Missouri State High School Activities Ass'n, 40 F.3d 926, 931 (8th Cir. 1994).
Eligibility requirements are "essential" or necessary" when they are reasonably necessary to accomplish the purposes of a program. Sandison, 64 F.3d at 1034-1035; Pottgen, 40 F.3d at 929. The basic purpose of the NCAA is to maintain intercollegiate athletics as an integral part of the educational program and to assure that those individuals representing an institution in intercollegiate athletics competition maintain satisfactory progress in their education. (Bylaw 1.3). By enacting the initial eligibility requirements, the NCAA seeks to:
(1) insure that student-athletes are representative of the college community and recruited solely for athletics; (2) insure that a student athlete is academically prepared to succeed at college; and (3) preserve amateurism in intercollegiate sports.
Ganden, 1996 U.S. Dist. LEXIS 17368, 1996 WL 680000, *14.
Moreover, the core course requirement serves "the dual interest of insuring the integrity of [a student's] GPA and independently insuring that the student has covered the minimum subject matter required for college." Id. at *15. Thus, the NCAA initial eligibility criteria are essentially minimum requirements which assure that freshman student-athletes are sufficiently able to handle college academic work, along with the demands of participating in intercollegiate athletics during their first year of college.
In finding the NCAA "core course" definition essential to the NCAA's provision of the privilege of participation in the NCAA's intercollegiate athletic program, the court in Ganden stated that:
While Title III may require the NCAA to count courses as "core" even if they are not substantively identical to approved "core courses," it does not require the NCAA to count courses with little substantive similarity. Whatever skills such a course may provide to the student, they cannot be said to substitute for earlier "core courses." Similarly grades from such courses do not provide valid indications of the student's academic potential.
Id. at *15.
I agree with the court in Ganden in finding that a complete abandonment of the "core course" requirement would fundamentally alter the nature of the privilege of participation in the NCAA's intercollegiate athletic program. Although the bylaws provide that special education courses will not ordinarily count as "core courses," I find that by providing that 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, as well as by authorizing the NCAA Council to waive the initial academic eligibility requirements on a case-by-case basis, the bylaws provide for individualized consideration which is a more than adequate reasonable accommodation for students with learning disabilities.
Only seven of Bowers's high school courses qualified as core courses within the meaning of the NCAA bylaws. I find that Bowers failed to satisfy the initial eligibility requirements because he failed to meet the NCAA's core course requirement, not because of his learning disability. The ADA is meant to provide a remedy for those who have been victimized by illegal disability-based discrimination -- it is not meant to provide a remedy for every individual who has been screened out by eligibility criteria for whatever reason.
For the foregoing reasons, I find that Plaintiff has not shown a likelihood of success in establishing that the NCAA bylaws as a whole impose eligibility criteria that tend to screen out individuals with a learning disability. Thus, I find that Plaintiff has failed to establish a reasonable likelihood that he will succeed on his discrimination claim under the ADA. Accordingly, Plaintiff's motion for a preliminary injunction will be denied.
This Court will enter an appropriate order.
Dated: August 14, 1997
STEPHEN M. ORLOFSKY
United States District Judge
This matter having come before the Court on Plaintiff's application for a preliminary injunction pursuant to Fed. R. Civ. P. 65, Barbara E. Ransom, Esq., of the Public Interest Law Center of Philadelphia, Richard L. Bazelon, Esq., of Bazelon & Less, and Penelope A. Boyd, Esq., appearing on behalf of Plaintiff, Michael Bowers, J. Freedley Hunsicker, Esq., and John F. Schultz, Esq., of Drinker, Biddle & Reath, LLP, appearing on behalf of Defendants, The National Collegiate Athletic Association and Cedric W. Dempsey, and Nicholas M. Kouletsis, Esq., of Pepper Hamilton & Sheetz, LLP, and Robert A. Burgoyne, Esq., of Fulbright & Jaworski, LLP, appearing on behalf of Defendants, NCAA Initial Eligibility Clearinghouse and Calvin Symons; and,
The Court having considered the written submissions of the parties filed in support of, and in opposition to Plaintiff's application, the testimony of witnesses and the exhibits at the preliminary injunction hearing conducted in this case on July 21, 22 and 23, 1997, and the post-hearing submissions of the parties;
For the reasons set forth in this Court's Opinion filed concurrently with this Order;
IT IS HEREBY ORDERED on this 14th day of August, 1997, that Plaintiff's application for a preliminary injunction is denied; and,
IT IS HEREBY FURTHER ORDERED that within ten (10) days of the date of this Order, counsel for the parties shall contact this Court to schedule a telephone conference call in this case to establish a briefing schedule for the filing of dispositive motions.
STEPHEN M. ORLOFSKY
United States District Judge