Tatum v. National Collegiate Athletic Ass'n

• Decision Date: 23 January 1998
• Docket Number: No. 4:97CV2592-DJS.,4:97CV2592-DJS.
• Citation: 992 F.Supp. 1114
• Parties: Justin TATUM, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and St. Louis University, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

992 F.Supp. 1114

Justin TATUM, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and St. Louis University, Defendants.

No. 4:97CV2592-DJS.

United States District Court, E.D. Missouri, Eastern Division.

January 23, 1998.

COPYRIGHT MATERIAL OMITTED

William A. Hellmich, Kurt A. Hentz, John N. Borbonus, III, John T. Banjak, King and Koster, St. Louis, MO, for Justin Tatum.

Frank N. Gundlach, Armstrong and Teasdale, St. Louis, MO, Linda Salfrank, Swanson and Midgley, Kansas City, MO, for National Collegiate Athletic Ass'n.

Ian P. Cooper, Peper and Martin, St. Louis, MO, for St. Louis University.

Edwin B. Brzezinski, Sr., Asst. U.S. Atty., St. Louis, MO, for U.S.

ORDER

STOHR, District Judge.

On December 30, 1997, plaintiff filed a complaint and motion for temporary restraining order against defendants National Collegiate Athletic Association ("NCAA") and St. Louis University ("SLU") alleging that the NCAA discriminated against him on the basis of his disability when it refused to recognize a nonstandard, untimed ACT score for purposes of determining whether he was eligible to participate in Division I intercollegiate athletics.¹ In the Spring of his senior year of high school, based on a diagnosis of generalized anxiety disorder with a specific phobia related to testing, plaintiff was permitted to take the American College Test ("ACT") in a nonstandard format. Plaintiff argues that the NCAA's failure to recognize the scores from these nonstandard tests violates Title III of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.

The Court heard arguments on December 30, 1997 and issued an order denying plaintiff's motion for temporary restraining order on January 2, 1998. This matter is now before the Court on plaintiff's request for preliminary injunction. Although plaintiff has not filed a written motion for preliminary injunction, plaintiff's complaint requests preliminary injunctive relief. The Court heard evidence from the parties on January 14, 16, and 20, 1998.

I. Facts

The following facts are undisputed. Plaintiff is an 18-year-old freshman student enrolled at St. Louis University. Defendant St. Louis University ("SLU") offered plaintiff a full athletic scholarship to play basketball with the contingency that plaintiff attain "qualifier" status from the NCAA. In order to be certified as a "qualifier," a student-athlete must graduate from high school, pass at least thirteen identified high school "core courses" and achieve a score on either the ACT or SAT² which when viewed in conjunction with the athlete's grade point average ("GPA") in the identified core courses satisfies the NCAA's sliding scale contained in the NCAA Bylaw 14.3.1.1.1. In June of 1997, plaintiff graduated from Christian Brothers College High School ("CBC") where he received a GPA of 2.269 in his core courses. With that GPA, the sliding scale provides that a student must attain a score of 77 or higher on the ACT to be eligible to participate in Division I intercollegiate athletics.

Plaintiff has a history throughout his school years of performing better on daily class work assignments than on major exams or standardized tests. Plaintiff began attending CBC during his sophomore year in high school and this pattern continued. However, plaintiff admits that he did not truly dedicate himself to his studies until his junior year in high school. By the middle of his junior year, plaintiff's guidance counselor, Tom Farishon, noted his difficulty with test taking and approached plaintiff who indicated that he felt distracted and nervous when testing. Subsequently, Farishon spoke with some of his teachers about the problem. After discussions with Farishon, plaintiff's math, history and Spanish teachers allowed him extra time in which to complete tests. At that time, no formal documentation of these accommodations was made. Plaintiff admits that he rarely used the offered extended time and felt that he did not need extra time when he was well prepared.

Also during his junior year, plaintiff began taking the ACT under standard conditions. Plaintiff received aid from several outside sources in his preparation for the standardized test. By the fall of his senior year, it was apparent that plaintiff had failed to achieve a score which would qualify him to participate in Division I intercollegiate athletics under the NCAA Bylaws. Concerned with the possible loss of plaintiff's scholarship offer, Farishon recommended that plaintiff be evaluated for potential disabilities. Upon Farishon's suggestion, plaintiff's mother arranged an appointment for an evaluation of plaintiff for possible learning disabilities at the St. Louis University's Psychological Services Center.

Subsequently, in February of 1997, plaintiff was evaluated by a doctoral candidate, Mark Bender, under the supervision of Dr. Paul Handal, a licensed psychologist. Bender concluded that plaintiff did not have a learning disability and instead recommended tutoring and therapy. Additionally, Bender noted that, "[u]nfortunately, [plaintiff] has not historically shown to have a strong commitment to his academic performance." Bender further noted plaintiff's academic concerns and his difficulty managing school work, basketball and ACT preparation. Bender also concluded that plaintiff did not have any psychological disorder and instead, needed to spend more time on his studies.

A copy of Bender's report was sent to Farishon who in turn reviewed it with another CBC guidance counselor, Helen Friedel, who had studied learning disabilities extensively. Friedel had concerns with the contents of the report and believed that it raised serious questions. Consequently, Friedel recommended that plaintiff be re-evaluated by a different psychologist. Plaintiff's mother was also dissatisfied with the Bender report.

When Bender reviewed his findings with plaintiff's mother, she indicated to both Bender, and later to his supervisor, Dr. Handal, that she believed her son's problem to be test taking anxiety. In response to plaintiff's mother's request, Bender performed three additional psychological tests on plaintiff and composed a second report which concluded that plaintiff did not suffer from a learning disability or test taking anxiety. Upon completion of the second report, Bender notified plaintiff's mother who said she did not wish to see the results. The report was never released to anyone else and remained in the Psychological Services Center's files. The contents of the revised report did not surface until the commencement of the present litigation.

During the Spring semester of plaintiff's senior year, approximately one month after Mr. Bender had conducted his evaluation, plaintiff was evaluated by Dr. Judith A. Tindall, a licensed psychologist. After reviewing the report written by Mr. Bender, conducting several psychological tests, and interviewing plaintiff, his mother, and his counselor, Dr. Tindall concluded that plaintiff suffered from generalized anxiety disorder and a specific phobia related to test taking, diagnoses recognized in the American Psychiatric Association's Diagnostic and Statistical Manual, 4th edition ("DSM-IV"). Pursuant to her diagnosis, Dr. Tindall's recommendations included that plaintiff be permitted to take tests in an untimed fashion, allowing him to take breaks. Dr. Tindall also recommended that test questions be read to plaintiff, enabling him to utilize his auditory strengths.

Based on Dr. Tindall's diagnosis, plaintiff then applied to take the ACT under the aforementioned special nonstandard conditions. Plaintiff's applications for nonstandard tests were approved on three occasions and plaintiff took the ACT untimed in May, August, and October of 1997. Prior to his diagnosis by Dr. Tindall, plaintiff had also taken the ACT under the standard conditions.

The NCAA Bylaws permit a student-athlete to combine his best scores on each of the four subparts of the ACT from more than one testing date to arrive at a qualifying score. If the NCAA were to recognize plaintiff's scores from the nonstandard tests, the first time that plaintiff achieved a sufficient composite score was after the October 1997 nonstandard test session. Plaintiff's performance on some of his nonstandard tests was very similar to his performance under the standard conditions. However, if the nonstandard results were recognized, plaintiff's composite score would be 79, two points higher than the score required by the sliding scale.

The NCAA's policy relating to the acceptance of untimed tests is contained in Bylaw 14.3.1.4.3 and provides:

Nonstandard Test Administration. The Academi cs/Eligibility/Compliance Cabinet may approve the use of scores achieved during a nonstandard administration of the SAT or ACT for learning-disabled or handicapped students. A student who takes a nonstandard SAT or ACT still must achieve the minimum required test score; however, the test does not have to be administered on a national testing date.

(emphasis added). According to the NCAA policy, upon submission of nonstandard scores, the NCAA forwards all documentation to its consultant on learning disabilities, Dr. Donald Deschler. In this case, Dr. Deschler concluded that because plaintiff did not have a learning disability or a physical disability, his nonstandard scores would not be accepted, although he recognized plaintiff's test-taking problems. Upon the NCAA's request, Friedel, CBC's guidance counselor specializing in learning disabilities, composed an Individualized Education Plan ("IEP") for plaintiff incorporating the recommendations that had been made by Dr. Tindall and also documenting accommodations that CBC had made available to plaintiff in the past. The IEP was created after plaintiff had graduated from CBC and did not purport to comply with state or federal guidelines. Friedel indicated that it was merely intended to serve as a memorialization of the accommodations pla...