Bowers v. National Collegiate Athletic Association, Act, Inc., Civil Action No. 97-2600 (D. N.J. 11/2/2000), Civil Action No. 97-2600.

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: Stephen M. Orlofsky
• Parties: MICHAEL BOWERS, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, INC., NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, UNIVERSITY OF IOWA, AMERICAN INTERNATIONAL COLLEGE, Defendants.
• Docket Number: Civil Action No. 97-2600.
• Decision Date: 02 November 2000

Page 1

MICHAEL BOWERS, Plaintiff,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, INC., NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, UNIVERSITY OF IOWA, AMERICAN INTERNATIONAL COLLEGE, Defendants. Civil Action No. 97-2600. United States District Court, D. New Jersey. November 2, 2000.

Barbara E. Ransom, Esq., Public Interest Law Center of Philadelphia, Philadelphia, PA, Attorneys for Plaintiff.

Penelope A. Boyd, Esq., Atrium Executive Center, Mount Laurel, NJ, Attorneys for Plaintiff.

Richard L. Bazelon, Esq., Bazelon & Less, Sagemore Corporate Center, Marlton, NJ, Attorneys for Plaintiff.

Michael Bowers, Charles J. Vinicombe, Esq., J. Freedley Hunsicker, Jr., Esq., John Schultz, Esq., Julianne Peck, Esq., Amy E. Pizzutillo, Esq., Drinker, Biddle & Shanley LLP, Princeton, NJ, Attorneys for Defendant, National Collegiate Athletic Association,

Robert A. Burgoyne, Esq., Karen M. Moran, Esq., Fulbright & Jaworski LLP, Washington, DC, Nicholas M. Kouletsis, Esq., Pepper Hamilton, LLP, Cherry Hill, NJ, Attorneys for Defendants, ACT, Inc. and NCAA Initial-Eligibility Clearinghouse.

Mark Schantz, Esq., Andrew Ives, Esq., Office of the General Counsel, Iowa City, IA,

Thomas J. Miller, Esq., Attorney General, Gordon E. Allen, Esq. Deputy Attorney General, Office of the Iowa Attorney General, Des Moines, IA

William O. Perkins, Jr., Esq., Jersey City, NJ

Margulies, Wind, Herrington & Knopf, P.C. Jersey City, NJ, Attorneys for Defendant, University of Iowa.

John B. Langel, Esq., Abigail L. Flitter, Esq., Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA, Attorneys for Defendant, Temple University of the Commonwealth System of Higher Education.

Thomas C. Hart, Esq., Ruprecht & Hart, LLP, Millburn, NJ, Attorneys for Defendant, American International College.

OPINION

STEPHEN M. ORLOFSKY, District Judge.

This hotly contested case presents difficult legal questions in an area of the law that has become fertile ground for civil rights litigation: the applicability of laws prohibiting disability-based discrimination to the practices of the National Collegiate Athletic Association ("NCAA"). In this case, Plaintiff Michael Bowers ("Bowers") has sued the NCAA under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., section 504 of the Rehabilitation Act ("ACT"), 29 U.S.C. § 794(a), and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Among other claims, Bowers alleges that the NCAA discriminates against the learning disabled through initial eligibility requirements that govern whether a student may participate in intercollegiate college athletics. Many of the legal issues raised in this case are difficult and present no obvious resolution. Some of those challenging issues include: (1) Whether Bowers may seek injunctive relief although he has already enrolled in college; (2) Whether money damages are available under the Rehabilitation Act; (3) Whether the NCAA is a place of public accommodation under the ADA; (4) Whether the NCAA's eligibility requirements are "necessary" under ADA analysis; (5) Whether the NCAA's waiver review process is a reasonable accommodation for Bowers; (6) Whether Bowers is an otherwise qualified individual; (7) Whether the NCAA is a recipient of federal funding under the Rehabilitation Act; and (8) Whether the NJLAD is applicable when an individual seeks access to a public accommodation outside of New Jersey.

Bowers specifically targets the NCAA's regulations that prohibit first-year college students from participating in Division I and Division II athletic programs if they failed as high school students to complete a core academic curriculum specified by the NCAA. The NCAA requires high school students to complete thirteen "core courses" in subject areas including English, mathematics, and the social and physical sciences before they may be declared "qualifiers," student-athletes permitted to practice and compete as members of intercollegiate teams and to receive college athletic scholarships.¹ Bowers, who suffers from a learning disability, completed a number of classes in high school that were designated special education classes. The NCAA ruled that these classes did not satisfy its core course requirement and declared Bowers, who was a high school standout in football, a "nonqualifier." Bowers alleges that the NCAA discriminated against him because of his disability in declaring him ineligible to participate in intercollegiate athletics as a college freshman.

Bowers has also sued Temple University ("Temple"), the University of Iowa ("Iowa"), and American International College ("AIC") for discrimination on the ground that these schools stopped recruiting Bowers to play football when they concluded that his learning disability would likely result in the NCAA declaring him a nonqualifier. Similarly, Bowers has sued ACT, Inc. and the NCAA Initial-Eligibility Clearinghouse ("ACT/Clearinghouse"). The Clearinghouse, which is operated by ACT, is responsible for making eligibility determinations pursuant to the NCAA's regulations. Bowers has also alleged a breach of contract claim against ACT/Clearinghouse, to whom Bowers paid an $18.00 fee for the processing of his eligibility materials. A complete discussion of the factual and procedural background in this case can be found in two prior opinions of this Court. See Bowers v. NCAA, 974 F. Supp. 459 (D.N.J. 1997) (Orlofsky, J.) (Bowers I); Bowers v. NCAA, 9 F. Supp.2d 460 (D.N.J. 1998) (Orlofsky, J.) (Bowers II). The Court exercises jurisdiction in this case pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

As my discussion below indicates, I have concluded, among other things, that: (1) Bowers is still suffering from the adverse effects of the NCAA's regulations in a way which confers standing to seek injunctive relief; (2) Money damages are available under the Rehabilitation Act if intentional discrimination is alleged; (3) The NCAA is a place of public accommodation under the ADA; (4) There is insufficient evidence in the summary judgment record to allow me to determine as a matter of law that the NCAA's eligibility requirements are "necessary" within the meaning of the ADA; (5) The waiver review process undertaken by the NCAA on behalf of Bowers was not a reasonable accommodation; (6) There are still genuine issues of material fact regarding whether Bowers is an otherwise qualified individual; (7) The NCAA is not entitled to summary judgment on its claim that it is not a recipient of federal funding under the Rehabilitation Act; and (8) There is insufficient evidence in the summary judgment record for me to determine whether the NJLAD is applicable when an individual seeks access to a public accommodation outside of New Jersey.

Accordingly, for the reasons set forth below, the motions of the NCAA, AIC, Temple and Iowa for summary judgment on Count I (ADA) will be denied; the motions for summary judgment of the NCAA, Temple, Iowa and AIC on Count II (Rehabilitation Act) will be denied; the motion of ACT/Clearinghouse for summary judgment on Count II (Rehabilitation Act) will be granted; the motions for summary judgment of the NCAA and ACT/Clearinghouse on Count IV (NJLAD) will be denied without prejudice; and ACT/Clearinghouse's motion for summary judgment on Count VI (Breach of Contract) will be granted. Additionally, I will deny the motions for summary judgment on the issues of standing and the recoverability of damages, with the exception that I will grant summary judgment on the issue that certain damages sought by Bowers are too speculative. Also, I will defer my decision regarding whether Bowers may recover compensatory damages against Temple and Iowa until Bowers's pending motion to amend his First Amended Complaint is resolved.

II. PRELIMINARY MATTERS

A. Standing to Seek Injunctive Relief

Bowers seeks a wide range of equitable relief.² If granted, the relief sought would restore Bowers to the position he would have been in had he been declared a "qualifier" in his senior year of high school³ and would also require the NCAA, ACT and the Clearinghouse to make certain programmatic changes to the way in which freshman eligibility is determined.⁴ First Amended Compl. at 24, 28-29. Iowa, AIC, Temple, and the NCAA assert that Bowers does not have standing to seek such equitable relief and that developments in the case since it was filed render Bowers's claims for injunctive relief moot. NCAA Mem. Supp. Summ. J. at 18-22. Not surprisingly, Bowers disagrees. Pl.'s Resp. to Mots. Summ. J. at 36-40.

As the United States Supreme Court has previously noted: "It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). "The 'irreducible constitutional minimum of standing' has three parts: injury in fact (a concrete harm suffered by the plaintiff that is actual or imminent), causation, and redressibility." Doe v. National Bd. of Med. Examiners, 199 F.3d 146, 152 (3d Cir. 1999) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560(1992)). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561. Consequently, a plaintiff faced with a motion for summary judgment cannot rest on mere allegations to defeat such a motion but must set forth, by affidavit or other evidence, specific facts which for the purposes of the summary judgment motion will be taken to be true. Id. Evidence that the plaintiff suffered some past exposure to illegal conduct will not in itself show a present case or controversy warranting injunctive relief "'if unaccompanied by any continuing, present adverse effects.'" Lyons, 461 U.S. at 102 (quoting O'Shea v. Littleton, 414 U.S. 488...