Bowers v. National Collegiate Athletic Ass'n, 05-2262.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Fisher
• Citation: 475 F.3d 524
• Parties: Kathleen BOWERS, Appellant, No. 05-2269 v. The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, as an Association and a Representative of its Member Schools, a/k/a NCAA; Temple University; University of Iowa *Barbara E. Ransom, Appellant, No. 05-2262 *Richard L. Bazelon, Appellant, No. 05-2268 *(Pursuant to FRAP 12(a)) University of Iowa, Appellant, No. 05-2426.
• Docket Number: No. 05-2426.,No. 05-2262.,No. 05-2269.,No. 05-2268.,05-2262.,05-2268.,05-2269.,05-2426.
• Decision Date: 01 February 2007

475 F.3d 524 Kathleen BOWERS, Appellant, No. 05-2269
v.
The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, as an Association and a Representative of its Member Schools, a/k/a NCAA; Temple University; University of Iowa
*Barbara E. Ransom, Appellant, No. 05-2262
*Richard L. Bazelon, Appellant, No. 05-2268
*(Pursuant to FRAP 12(a))
University of Iowa, Appellant, No. 05-2426. No. 05-2262. No. 05-2268. No. 05-2269. No. 05-2426. United States Court of Appeals, Third Circuit. Argued September 11, 2006. Filed February 1, 2007.

[475 F.3d 527]

A. Richard Feldman (Argued), Richard L. Bazelon, Noah H. Charlson, Bazelon, Less & Feldman, Barbara E. Ransom, Public Interest Law Center of Philadelphia, Philadelphia, PA, Attorneys for Kathleen Bowers.

[475 F.3d 528]

Barbara W. Mather (Argued), Christopher J. Huber, Pepper Hamilton, Philadelphia, PA, Attorneys for Barbara E. Ransom.

Daniel Segal, Michele D. Hangley, Hangley, Aronchick, Segal & Pudlin, Philadelphia, PA, Attorneys for Richard L. Bazelon.

Jessica D. Silver, Sarah E. Harrington (Argued), U.S. Department of Justice, Civil Rights Division/Appellate Section, Washington, DC, Attorneys for United States of America.

John B. Langel (Argued), Shannon D. Farmer, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA, Attorneys for Temple University.

J. Freedley Hunsicker, Jr. (Argued), Drinker, Biddle & Reath, Philadelphia, PA, Attorneys for National Collegiate Athletic Association.

Jack J. Wind, Margulies, Wind & Herrington, Jersey City, NJ, Gordon E. Allen, Mark Hunacek (Argued), Office of Attorney General of Iowa, Des Moines, IA, Attorneys for University of Iowa.

Before: FUENTES, FISHER and BRIGHT,^* Circuit Judges.

FISHER, Circuit Judge.

This case arises out of a high school athlete's claims that the National Collegiate Athletic Association ("NCAA") and several related institutions subjected him to unlawful discrimination based on his learning disability. During the course of the proceedings, plaintiff Michael Bowers met an untimely death and his mother Kathleen Bowers has been substituted for him. As a matter of convenience, throughout this opinion the plaintiff-appellant will be referred to simply as "Bowers." In this consolidated appeal, Bowers alleges the District Court abused its discretion by entering preclusion sanctions against her based on its finding that she and her attorneys committed discovery violations in bad faith. She further argues the District Court erred when it granted the Defendants' motion for summary judgment, which relied in large part on the preclusion sanctions imposed. Attorneys for Bowers each appeal separately from the sanctions order with respect to their reputations, arguing the District Court's failure to provide them with notice and an opportunity to be heard on the issue amounted to a violation of procedural due process. Finally, the University of Iowa cross appeals from orders dismissing its motions asserting Eleventh Amendment immunity to Bowers' claims. For the reasons set forth in this opinion, we will reverse the District Court on its grant of summary judgment, and, in part, on its order of preclusion sanctions against Bowers and her attorneys, and find that the University of Iowa is an arm of the state for purposes of Eleventh Amendment immunity but that Congress validly abrogated sovereign immunity under Title II of the Americans with Disabilities Act.

I. BACKGROUND

A. Factual History

This protracted dispute, spanning nearly a decade thus far, has yielded eleven prior opinions, ten by the District Court and one by our own. See Bowers v. NCAA, 974 F.Supp. 459 (D.N.J.1997) ("Bowers I"); Bowers v. NCAA, 9 F.Supp.2d 460 (D.N.J. 1998) ("Bowers II"); Bowers v. NCAA, 118 F.Supp.2d 494 (D.N.J.2000) ("Bowers

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III"); Bowers v. NCAA, 130 F.Supp.2d 610 (D.N.J. Feb.2, 2001) ("Bowers IV"); Bowers v. NCAA, 2001 WL 1850089 (D.N.J. Feb.6, 2001) ("Bowers V"); Bowers v. NCAA, 2001 WL 1772801 (D.N.J. July 3, 2001) ("Bowers VI"); Bowers v. NCAA, 151 F.Supp.2d 526 (D.N.J. Aug.6, 2001) ("Bowers VII"); Bowers v. NCAA, 171 F.Supp.2d 389 (D.N.J. Nov.7, 2001) ("Bowers VIII"), rev'd in part by Bowers v. NCAA, 346 F.3d 402 (3d Cir.2003); Bowers v. NCAA, 188 F.Supp.2d 473 (D.N.J. 2002) ("Bowers IX"), rev'd in part, remanded by Bowers, 346 F.3d 402; Bowers v. NCAA, 2005 WL 5155198 (D.N.J. filed March 21, 2005) ("Bowers X") (dismissing the case). The underlying facts and events giving rise to the claims in this case are thus well documented.

Michael Bowers was a talented high school athlete with a learning disability. This learning disability was identified early on in his schooling as a "perceptual impairment" affecting his ability to achieve in spite of intellectual ability and interfering with his reading and writing skills.¹ Pursuant to the Individuals with Disabilities Education Act ("IDEA"), 42 U.S.C. §§ 1400 et seq., Bowers had an Individualized Education Program ("IEP") prepared for him by a team of state-certified psychologists and professional educators. Bowers' IEP provided for him to take the majority of his classes in a special education setting, and allowed him to take untimed standardized tests.

Bowers' difficulties in the classroom contrasted sharply with his prowess on the gridiron. As a high school football player in Palmyra, New Jersey, Bowers was recognized locally and regionally for his athletic achievements.² At some point between his junior and senior years, these achievements began to attract attention more widely from recruiters for prestigious college football programs around the country. Numerous schools, including the University of Iowa and Temple University ("Temple"), the two university Defendants in this case, contacted Bowers to explore the possibility of recruiting him. Throughout the recruiting process, Bowers received hundreds of recruitment-related letters and phone calls and was personally visited by numerous college recruiters. The institutions expressing an interest in Bowers were members of the National Collegiate Athletic Association ("NCAA"), the premier governing body of intercollegiate athletics in the United States.

The NCAA includes over 1,200 educational institutions grouped into different divisions determining the "scope of the athletic program, the level of competition, and the amount of financial aid distributable through its athletic program." Bowers II, 9 F.Supp.2d at 467. One of the NCAA's primary functions with respect to high school athletes is to determine whether an incoming college freshman will be academically eligible to participate in intercollegiate athletics. The NCAA has described the academic eligibility requirements as "designed to assure proper emphasis on educational objectives, to promote competitive equity among institutions

475 F.3d 530

and to prevent exploitation of student athletes." Bowers I, 974 F.Supp. at 466.

The eligibility determination depends on several factors, including whether the athlete graduated from high school, the athlete's high school grade point average ("GPA") in thirteen required "core courses," and the athlete's Scholastic Aptitude Test ("SAT") scores. The NCAA's definition of core courses specifically excludes special education classes taught below the high school's regular academic instruction level. (NCAA Bylaw 14.3.1.3). NCAA bylaws do provide, however, that special education courses for the learning disabled may satisfy the core course requirement 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. (NCAA Bylaw 14.3.1.3.4). NCAA bylaws also provide for a waiver of eligibility requirements if the applicant submits objective evidence that demonstrates "circumstances in which a student's overall academic record warrants the waiver of the normal application of the requirements." (NCAA Bylaw 14.3.1.7). The NCAA contracts with ACT, Inc. to run the NCAA Initial-Eligibility Clearinghouse ("ACT/Clearinghouse"), which, as its name suggests, determines whether potential student athletes are initially eligible to participate in college sports pursuant to NCAA regulations. ACT/Clearinghouse reviews applications submitted by prospective athletes and places an athlete into one of three categories: (a) qualifier, (b) partial qualifier, or (c) nonqualifier.

On September 13, 1995, Bowers submitted his application to ACT/Clearinghouse and after a series of correspondences with Bowers' high school throughout the 1995-96 school year, ACT/Clearinghouse issued its final certification report officially determining that Bowers was a nonqualifier for two primary reasons: (1) his special education courses did not satisfy the NCAA's core course requirement; and (2) he took an untimed SAT exam, and his application lacked documentation required to accept such untimed standardized test scores. Bowers II, 9 F.Supp.2d at 469. Bowers alleges that this designation as a nonqualifier had extremely severe negative consequences. He lost the opportunity to receive an athletic scholarship, and was prohibited from practicing with or competing for any Division I or II football team his freshman year.³ Even before Bowers was designated as a nonqualifier, Bowers alleges that Defendants University of Iowa and Temple discriminated against him upon learning of his special education curriculum, anticipating that he would be designated a nonqualifier by the NCAA as a result of that curriculum. Id. at 469-70. After Bowers was officially designated as such, all recruiting efforts ended. Id. at 470.

Bowers nonetheless enrolled as a commuter student at Temple for the Fall 1996 semester. He did not take any classes at that time, however, because he was scheduled to undergo back surgery. Bowers did begin taking classes in the Spring 1997 semester, however, and did very well, making the Dean's...