Bowers v. National Collegiate Athletic Ass'n

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

2-1-2007

Bowers v. Natl Collegiate

Precedential or Non-Precedential: Precedential

Docket No. 05-2426

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 05-2262, 05-2268, 05-2269 and 05-2426

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

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 97-cv-02600)

District Judge: Honorable Jerome B. Simandle

Argued September 11, 2006

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

(Filed: February 1, 2007)

A. Richard Feldman (Argued)

Richard L. Bazelon

Noah H. Charlson

Bazelon, Less & Feldman

1515 Market Street, 7th Floor

Philadelphia, PA 19102

Barbara E. Ransom

Public Interest Law Center

of Philadelphia

125 South 9th Street, Suite 700

Philadelphia, PA 19107

Attorneys for Kathleen Bowers

*

The Honorable Myron H. Bright, United States Circuit

Judge for the Eighth Circuit, sitting by designation.

2

Barbara W. Mather (Argued)

Christopher J. Huber

Pepper Hamilton

18th and Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

Attorneys for Barbara E. Ransom

Daniel Segal

Michele D. Hangley

Hangley, Aronchick, Segal & Pudlin

One Logan Square, 27th Floor

Philadelphia, PA 19103

Attorneys for Richard L. Bazelon

Jessica D. Silver

Sarah E. Harrington (Argued)

U.S. Department of Justice

Civil Rights Division/Appellate Section

P.O. Box 14403

Ben Franklin Station

Washington, DC 20044-4403

Attorneys for United States of America

John B. Langel (Argued)

Shannon D. Farmer

Ballard, Spahr, Andrews & Ingersoll

1735 Market Street, 51st Floor

Philadelphia, PA 19103

Attorneys for Temple University

3

J. Freedley Hunsicker, Jr. (Argued)

Drinker, Biddle & Reath

18th and Cherry Streets

One Logan Square

Philadelphia, PA 19103

Attorneys for National Collegiate

Athletic Association

Jack J. Wind

Margulies, Wind & Herrington

15 Exchange Place, Suite 510

Jersey City, NJ 07302

Gordon E. Allen

Mark Hunacek (Argued)

Office of Attorney General of Iowa

1305 East Walnut Street

Hoover State Office Building, 2nd Floor

Des Moines, IA 50319

Attorneys for University of Iowa

OPINION OF THE COURT

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

4

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

5

(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 III”); Bowers v. NCAA, 130 F.

Supp. 2d 610 (D.N.J. Feb. 2, 2001) (“Bowers IV”); Bowers v.

NCAA, No. 97-2600, 2001 WL 1850089 (D.N.J. Feb. 6, 2001)

(“Bowers V”); Bowers v. NCAA, No. 97-2600, 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, No. 97-2600 (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.

1

Bowers’ IQ testing placed him in the above-average

range; however, his specific learning disability affected his

organization and processing skills. These deficiencies meant

Bowers needed extra time to take tests, required help with study

habits and organizational skills, and performed better in small

group settings. Of the 24 classes Bowers took in high school,

only three were in a regular academic setting.

6

§§ 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

2

Bowers lettered three years as a varsity football player,

was first team “All Freedom Team” (conference wide team), and

was first team “All South Jersey” and second team “All South

Jersey” his junior and senior seasons respectively.

7

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 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,

8

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

3

Nonqualifier status also prohibits a student athlete from

having any contact with an institutions’s athletic team, including

attending team meetings, access to the training staff, weight

room activities, and team meals.

9

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

List with a 3.63 GPA. Despite these promising developments,

by the Fall 1997 semester, Bowers’ academic and personal life

had apparently begun to deteriorate. His grades declined during

the Fall 1997 semester and he began treatment for depression,

taking antidepressant medication prescribed by his family

physician. In addition, by this time Bowers had begun abusing

painkillers such as Percocet, Hydrocodone, and Tylenol with

codeine that had originally been prescribed to him between Fall

1996 and 1997 to manage pain associated with a back injury.

By the Spring 1998 semester, he had stopped attending classes.

Although he enrolled for classes in the Fall 1998 semester,

Bowers did not attend them and eventually dropped out of

school altogether.

From the Fall of 1998 until mid-2001, Bowers was in and

out of drug treatment and mental health programs and, in April

1999, was hospitalized after attempting to commit suicide. In

2002, however, Bowers showed some signs of recovery. He

matriculated at American International College for the Spring

2002 semester, earned good grades, and participated in the

spring football conditioning program in anticipation of joining

the team for the fall semester. Sadly, any recovery efforts ended

abruptly on June 2, 2002, when Bowers, home from school for

the summer, died of an apparent drug overdose.

10

B. Procedural History

While we have already explored the prior proceedings in

this case at some length in a previous appeal, 346 F.3d 402 at

408-10, we are obliged to once again carefully wade into the

thicket to disentangle the issues before us. To be thorough, we

review the entire proceedings; for the sake of brevity and clarity,

however, we describe in detail only those aspects of the prior

proceedings immediately relevant to our analysis.

On May 23, 1997, following his Spring 1997 semester at

Temple, Bowers filed a complaint in the United States District

Court for the District of New Jersey alleging, inter alia, that the

NCAA and ACT/Clearinghouse had violated Titles II and III of

the Americans with Disabilities Act of 1990 (“ADA”), 42

U.S.C. §§ 12132, 12182, and Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a), in their treatment of him. After

the District Court denied Bowers’ motion for a preliminary

injunction, Bowers I, 974 F. Supp. 459, he filed an amended

complaint joining Temple, the University of Iowa, and

American International College as defendants and adding state

law claims under the New Jersey Law Against Discrimination

(“NJLAD”), N.J. Stat. Ann. §§ 10:5-1 ! 10:5-49.

Defendants filed a motion to dismiss, or in the

alternative, a motion for summary judgment. The District Court

dismissed the ADA claim against ACT/Clearinghouse because

there was no evidence that it owned, leased, or operated a place

of public accommodation, as required under Title III.4 Bowers

4

Title III of the ADA, 42 U.S.C. § 12181 et seq.,

prohibits discrimination against the disabled in the full and equal

11

II, 9 F. Supp. 2d at 481-83 (quoting 42 U.S.C. § 12182(a)). It

also dismissed a Sherman Act claim against all of the

Defendants on the basis of our opinion in Smith v. NCAA, 139

F.3d 180 (3d Cir. 1998), in which we held that “eligibility rules

are not related to the NCAA’s commercial or business

activities” because “rather than intending to provide the NCAA

with a commercial advantage, the eligibility rules primarily seek

to ensure fair competition in intercollegiate athletics.” Id. at

185. The District Court denied the motion in all other respects.

Thereafter, the parties engaged in discovery. Defendants

then filed a motion for summary judgment. In a lengthy

published opinion dated November 2, 2000, the Court granted

summary judgment in favor of ACT/Clearinghouse on Bowers’

Rehabilitation Act claim, finding that the record was clear that

ACT/Clearinghouse did not receive federal funds. Bowers III,

118 F. Supp. 2d 494. The District Court also granted summary

judgment in favor of ACT/Clearinghouse on Bowers’ breach of

contract claim.5 It denied summary judgment in all other

respects. In doing so, the Court rejected the argument of

Temple and the University of Iowa that they had stopped

recruiting Bowers for nondiscriminatory reasons, i.e., because

he was undersized and not skilled enough to be a Division I

enjoyment of public accommodations, 42 U.S.C. § 12182(a),

and public transportation services, 42 U.S.C. § 12184(a).

5

The last remaining claim against ACT/Clearinghouse

under the NJLAD was dismissed on August 6, 2001. Bowers

VII, 151 F. Supp. 2d at 543.

12

lineman, finding that there were material issues of fact as to why

the schools stopped recruiting him. Id. at 512-13.

On February 2, 2001, the District Court granted the

NCAA’s motion for reconsideration and granted summary

judgment in favor of the NCAA and American International

College on Bowers’ Title III ADA claim. Bowers IV, 130 F.

Supp. 2d 610. The Court concluded that Bowers was not

entitled to injunctive relief because NCAA rules permitted

partial qualifiers to gain a fourth year of eligibility.6 As a result,

since Bowers no longer had standing to seek injunctive relief –

the only form of relief available under Title III – the Court

dismissed his claim. Id. at 614.7 A few days later, the District

Court issued an opinion and order allowing Bowers to file a

second amended complaint to: (1) clarify that he sought non-

injunctive relief against Temple and the University of Iowa

under the Rehabilitation Act and the ADA; and (2) to add three

state law claims against the University of Iowa for promissory

estoppel, equitable estoppel, and fraud. Bowers V, 2001 WL

1850089, at *3. The claims against the University of Iowa were

6

Consequently, Bowers’ period of potential eligibility

was not any shorter than the period would have been had he

been deemed an initial qualifier. Bowers’ inability to gain a

fourth year of eligibility was the sole basis upon which the

District Court had previously determined that Bowers had

standing to seek injunctive relief. Id. at 614.

7

The Court also dismissed any claims for injunctive relief

that Bowers could otherwise assert against the Defendants under

the Rehabilitation Act. Id.

13

permitted to be added without prejudice to enable the University

to develop an evidentiary record to support its argument that it

was an “arm of the state” and thus entitled to Eleventh

Amendment immunity. Following that discovery, on July 3,

2001, the District Court issued a decision finding that the

University of Iowa was not an arm of the state and not entitled

to sovereign immunity. Bowers VI, 2001 WL 1772801.

Another matter had arisen in the case involving third-

party contribution. After the District Court’s November 2000

summary judgment order, Temple filed a third-party complaint

seeking contribution for any monetary liability it might have to

Bowers from Delaware State University (“Delaware State”),

University of Massachusetts-Amherst (“UMass-Amherst”), and

University of Memphis (“Memphis”), schools that also had

allegedly recruited Bowers. The third-party defendants brought

motions to dismiss the complaint, arguing: (1) neither Title II

of the ADA nor Section 504 of the Rehabilitation Act

contemplate an award for contribution; (2) the universities had

Eleventh Amendment immunity; and (3) Congress’s purported

abrogation and waiver of immunity in Title II of the ADA was

unconstitutional.

On November 7, 2001, the District Court ruled on the

third-party motions. Bowers VIII, 171 F. Supp. 2d 389. It

granted in part and denied in part Memphis’s motion, finding

that Memphis was an arm of the State of Tennessee for Eleventh

Amendment purposes and so Temple’s contribution claim under

the NJLAD state law claim against Memphis was barred by the

doctrine of sovereign immunity. However, as to the federal

claims, it found (1) there is a right of contribution under Title II

of the ADA and Section 504 of the Rehabilitation Act,

14

(2) Congress validly abrogated Tennessee’s Eleventh

Amendment immunity under Title II of the ADA, and

(3) Tennessee waived its Eleventh Amendment immunity under

the Rehabilitation Act by accepting federal funds. The District

Court did not make any other dispositive rulings on Eleventh

Amendment issues, but instead ordered UMass-Amherst and

Delaware State to submit additional briefing on these issues and

granted Temple an opportunity to reply to this briefing.

Following briefing, the District Court subsequently held

that: (1) Eleventh Amendment immunity barred Temple’s

claims for contribution against UMass-Amherst pursuant to

NJLAD; (2) UMass-Amherst was not immune from contribution

claims asserted under the ADA and Rehabilitation Act;

(3) dismissal without prejudice was warranted with respect to

claims for contribution under the NJLAD against Delaware

State; (4) a stay pending Memphis’s appeal from denial of

sovereign immunity defenses was mandated; and (5) a

certification for immediate, interlocutory appeal was warranted

with respect to the Court’s determination that a general right of

contribution existed under the ADA and Rehabilitation Act.

Bowers IX, 188 F. Supp. 2d 473.

On appeal, we did not reach the Eleventh Amendment

issue, but rather concluded that there was not a right to

contribution under Section 504 of the Rehabilitation Act and

Title II of the ADA. 346 F.3d at 433. Even more importantly,

for purposes of our present appeal, we rejected the University of

Iowa’s argument that we had pendent appellate jurisdiction to

consider its untimely appeal of the District Court’s Eleventh

Amendment ruling. Id. at 412. We noted, however, that we

likely would have to consider the Eleventh Amendment

15

argument eventually, but not until after a final judgment. Id.

n.8.

The District Court had stayed all matters while the case

was on appeal.8 When the case returned from appeal, the parties

thereafter engaged in further discovery heading toward a

contemplated October 2004 trial date. On May 3, 2004, the

parties entered into a confidentiality stipulation and protective

order for plaintiff to disclose Michael Bowers’ medical records.9

On May 11, 2004, the scheduled date of Kathleen Bowers’

deposition, attorneys for Bowers provided to Defendants for the

first time some of Michael Bowers’ medical records. Because

these records showed for the first time that he had a preexisting

drug condition that was not disclosed to Defendants, the District

Court entered a series of orders directing Michael Bowers’

medical providers to release all of his medical records. Upon

release of these records, the full extent of Bowers’ substance

abuse and substance abuse treatment became apparent.

8

During that period, two significant events occurred.

First, as already related, Michael Bowers died on June 2, 2002,

as a result of an apparent cocaine and heroin overdose. This was

the first indication to Defendants that Bowers had any kind of

drug problem. Second, the original district judge retired from

the bench. The case was reassigned to District Judge Simandle,

who inherited the procedural morass at the eleventh hour and

was confronted with the difficult question of how to deal with

the consequences of Bowers’ non-disclosures.

9

At this point in the dispute, the NCAA, Temple, and the

University of Iowa remained as Defendants.

16

Thereafter, on October 15, 2004, Temple moved for sanctions,

arguing that the case should be dismissed with prejudice as a

sanction for Bowers’ concealment of substance abuse and

substance abuse treatment. It also moved for summary

judgment, arguing that Bowers was not a qualified individual

with a disability as a result of his drug use. The NCAA and the

University of Iowa joined the motions.

The parties did not dispute that Bowers and attorneys for

Bowers had failed to disclose information regarding Michael

Bowers’ substance abuse and his depression to Defendants until

May 2004, nearly two years following his death. However,

attorneys for Bowers argued that the discovery requests were

narrow and they were therefore not required to seasonably

amend them under Federal Rule of Civil Procedure 26(e)(2) to

disclose treatment for alcoholism or depression. The District

Court rejected this argument, and determined that Bowers’

failure to disclose the information in a timely fashion was a

willful one, in bad faith, and that it irreparably prejudiced

Temple’s ability to prepare a defense to Bowers’ claims.

Bowers X, No. 97-2600 (D.N.J. March 21, 2005).

The District Court further concluded that evidence of

Michael Bowers’ drug use was relevant not only to the issue of

damages, but also to questions of liability. Consequently, the

District Court entered a sanctions order pursuant to Federal

Rules of Civil Procedure 37(c)(1) and 37(b)(2)(B). This

sanctions order impaired Bowers’ case in critical fashion. First,

it precluded her from using any previously concealed

information to support her claim that Defendants were liable for

Michael Bowers’ drug abuse and depression. Second, they

precluded her from opposing Defendants’ claim that Michael

17

Bowers’ drug abuse rendered him unqualified to participate in

intercollegiate athletics at all relevant times, which as a practical

matter meant Defendants would be immune from liability.10 See

Order granting Motion for Joinder, granting Motion for

Sanctions & granting Motion for Summary Judgment,

No. 97-2600 (Simandle, J.) (March 21, 2005).

The District Court then considered Temple’s renewed

motion for summary judgment in light of the sanctions it

imposed and concluded that Bowers was not a “qualified

individual with a disability” under the ADA nor “otherwise

qualified” under the Rehabilitation Act because his “drug use

made him ineligible to compete for Temple or any other

school.” Bowers X, No. 97-2600, at 37-38. The Court granted

the motion for joinder of the remaining Defendants and

dismissed Bowers’ case against all Defendants. The District

Court did not reach the University of Iowa’s motion for

reconsideration on Eleventh Amendment grounds, dismissing

the claim as moot.

Four parties filed timely appeals. Bowers filed an appeal

from: (1) the March 21, 2005 Order granting defendant

Temple’s motion for sanctions against Bowers and Defendants’

motion for summary judgment; and (2) the June 8, 1998 order

10

To bring a claim under the ADA, a plaintiff must

demonstrate she was “otherwise qualified” at the time of the

allegedly unlawful discrimination. By precluding her from

challenging Defendants’ assertion that Michael Bowers was

“unqualified” at the time of the allegedly unlawful

discrimination, the sanctions thus effectively crippled Bowers’

ability to establish a necessary element of her claim.

18

which dismissed with prejudice her Sherman Act claims with

respect to all Defendants.11 Bowers’ attorneys, Barbara E.

Ransom and Richard L. Bazelon, each separately filed an appeal

from the sanctions portion of the March 21, 2005 order. Finally,

the University of Iowa filed a cross-appeal from: (1) the

March 21, 2005 order of the District Court dismissing as moot

its renewed motion for summary judgment based on sovereign

11

Bowers has waived this portion of her appeal, failing to

formally present or even mention in passing the District Court’s

dismissal of her Sherman Act claims as an issue in her brief.

See Federal Rule of Appellate Procedure 28; see also Canady v.

Crestar Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997)

(finding issue specified in notice of appeal but not mentioned in

appellate brief was deemed waived); Williams v. Chater, 87

F.3d 702, 706 (5th Cir. 1996) (holding issues raised in notice of

appeal but not briefed are deemed waived); Cumberland Farms,

Inc. v. Montague Econ. Dev. and Indus. Corp., 78 F.3d 10, 12

n.1 (1st Cir. 1996) (holding appellant waived issue raised in

notice of appeal when it was not referred to in brief); Tilson v.

Forrest City Police Dep’t, 28 F.3d 802, 806 n.8 (8th Cir. 1994)

(holding appellant waived issues that it raised in notice of appeal

but failed to brief on appeal). However, we note that even if this

issue were not waived, our decision in Smith, 139 F.3d at 185

(“[E]ligibility rules are not related to the NCAA’s commercial

or business activities” because “rather than intending to provide

the NCAA with a commercial advantage, the eligibility rules

primarily seek to ensure fair competition in intercollegiate

athletics.”), clearly precludes Bowers from sustaining Sherman

Act claims in this case.

19

immunity; and (2) the July 3, 2001 order denying it immunity

from Bowers’ ADA, Rehabilitation Act, and NJLAD claims.

The District Court had jurisdiction under 28 U.S.C.

§§ 1331, 1337, 1343, and 42 U.S.C. §§ 12133, 12188, based on

the federal claims asserted by Bowers. The District Court had

supplemental jurisdiction over Bowers’ state-law claims,

pursuant to 28 U.S.C. § 1367. We have jurisdiction under 28

U.S.C. § 1291 to hear this appeal from the final order of the

District Court entering summary judgment on all claims.

II. ANALYSIS

A. The District Court’s Grant of Summary Judgment

We begin our analysis with the issue of summary

judgment because our disposition of this issue will help clarify

our subsequent discussion of the preclusion sanctions ordered in

this case. Our standard of review on an appeal from a grant of

summary judgment is plenary, Dowling v. City of Phila., 855

F.2d 136, 141 (3d Cir. 1988), applying the same standard the

District Court was required to apply. Olson v. Gen. Elec.

Astrospace, 101 F.3d 947, 951 (3d Cir. 1996) (citations

omitted). That standard is provided by Federal Rule of Civil

Procedure 56(c), which directs that summary judgment may be

granted only when “there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law.” In following this directive, we must take the

facts in the light most favorable to the nonmoving party,

Bowers, and draw all reasonable inferences in her favor.

McCarthy v. Recordex Serv., Inc., 80 F.3d 842, 847 (3d Cir.

1996).

20

The District Court’s summary judgment analysis in this

case was fundamentally flawed in that it failed to focus on the

correct time frame with respect to Defendants’ liability. We

have clearly stated that the determination of whether a person

was a “qualified individual with a disability” for the purposes of

an ADA claim12 is not made from the time the lawsuit was filed

or any other later time period, but from the point at which the

alleged discriminatory decision was made. Turner v. Hershey

Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006); Gaul v.

Lucent Techs., 134 F.3d 576, 580; see also Bates v. Long Island

R.R. Co., 997 F.2d 1028, 1035 (2d Cir. 1993). In this case, the

allegedly discriminatory conduct occurred over the course of the

Fall 1995-96 school year, during which time Bowers was

deemed to be a nonqualifier and the defendant universities in

this case allegedly stopped recruiting him for that reason.13

12

Although the language of the ADA and Rehabilitation

Act differs, the standards for determining liability under the two

statutes are identical. McDonald v. Pa. Dep’t of Pub. Welfare,

62 F.3d 92, 94 (3d Cir. 1995) (“Whether suit is filed under the

Rehabilitation Act or under the Disabilities Act, the substantive

standards for determining liability are the same.”) (citation

omitted). Similarly, we have held that the NJLAD relies on the

same analytical framework as the ADA. Gaul v. Lucent Techs.,

Inc., 134 F.3d 576, 580 (3d Cir. 1998).

13

The NCAA itself recognized that the relevant time

frame for determining whether Bowers was qualified to be a

Division I football player was 1995-96. See Letter from NCAA

Counsel to U.S. Magistrate Judge Rosen (May 26, 2004) (“The

issue . . . is whether there was disability discrimination . . . that

21

The District Court had previously correctly identified

Bowers’ claims as stemming from alleged unlawful

discrimination taking place in 1995-96. In its November 2000

summary judgment opinion, Bowers III, 118 F. Supp. 2d 494,

the District Court recognized that the case turned on whether

Bowers was discriminated against in 1995-96, when Bowers

was a high-school senior and then a college freshman. Id. at 499

(“Bowers has . . . sued Temple University, the University of

Iowa, and American International College 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 non-qualifier.”); id.

(“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.”).

Situating Bowers’ claims in Fall 1995-96 and taking all

reasonable inferences in Bowers’ favor as the nonmoving party,

we find there is a genuine issue of material fact as to whether

Bowers was a “qualified individual with a disability” or

“otherwise qualified,” under the ADA and Rehabilitation Act,

respectively. Furthermore, Michael Bowers’ drug abuse does

not preclude Bowers’ claims. The evidence of any substance

abuse in 1995-96 is minimal. Bowers apparently tried marijuana

for the first time in 1991 at age 13 but appeared to use the drug

infrequently. His last reported marijuana use was in July 1998,

at which point he reported he had shared a “joint” five times

occurred in 1995-1996, when under the NCAA rules Bowers

was deemed a ‘non-qualifier.’”) (emphasis in original).

22

over the past year.14 There is no evidence that Bowers was

taking any other illicit drugs in 1995-96. Bowers told

counselors at Seabrook House that drugs did not become a

problem for him until 1998. Dr. Carol Roberts, an expert

retained by Bowers, stated in her report that: “In describing his

own plunge into depression and addiction, Michael told me that

in high school he had stayed away from drugs because he

needed to be in top physical condition to play sports. He

graduated in 1996, and at the end of 1998 while he was at

Temple, he tried snorting cocaine with a friend.” The record

does indicate that Bowers began taking painkillers in Fall 1996.

However, while Bowers acknowledged that he eventually

became addicted to these painkillers, he began taking them on

prescription, and after he was already denied initial eligibility

and after recruiting efforts has ceased. Furthermore, there is no

indication that he would have failed an NCAA drug test for

ingesting prescription drugs. See NCAA policy 31.2.3.2.

All of the substance abuse evidence cited by the District

Court, with the exception of the inconclusive marijuana-use

evidence, pertained to the use of those substances after 1995-96,

at which point Bowers’ substance abuse was irrelevant for

purposes of establishing liability in this case. In addition,

Defendants’ argument that Bowers was unqualified at the

relevant time frame as a result of his drug abuse rests on the

erroneous assumption that Defendants could have used evidence

14

Temple’s own counsel admitted at oral argument that

there was no evidence that Michael Bowers used marijuana in

his last year of high school, when he was seeking initial

eligibility. (App. 275).

23

of Bowers’ drug abuse as an after-the-fact justification for their

allegedly discriminatory conduct. It is clear that the Defendants

were completely unaware of Bowers’ drug abuse at the time the

allegedly unlawful discrimination took place in 1995-96 as well

as during the time Bowers was at Temple. Indeed, that fact is

the very source of the controversy with respect to the sanctions

in this case. In turn, the Defendants “could not have been

motivated by knowledge [they] did not have,” McKennon v.

Nashville Banner Publishing Co., 513 U.S. 352, 360 (1995), and

thus cannot now claim that Bowers was deemed a nonqualifier

because of his drug abuse. See also Mardell v. Harleysville Life

Ins. Co., 65 F.3d 1072 (3d Cir. 1995) (applying McKennon in

unlawful discrimination context and holding after-acquired

evidence of misconduct is relevant to damages but does not bar

liability).

Thus, taking all reasonable inferences in Bowers’ favor,

we find genuine issues of material fact remain as to whether

Bowers was a “qualified individual with a disability” at the

relevant time period for establishing liability. The Defendants

are therefore not entitled to judgment as a matter of law and,

accordingly, we will reverse the District Court’s grant of

summary judgment.

B. The District Court’s Imposition of Preclusion Sanctions

Because we have concluded that the District Court’s

summary judgment analysis was erroneous for reasons

independent of the order of sanctions in this case, we need not

review the sanctions order under the standard set forth in Poulis

v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984)

(setting forth a test to determine when a trial court’s dismissal

of a case pursuant to preclusion sanctions constitutes an abuse

24

of discretion).15 In this case, unlike in Poulis, the District Court

did not specifically impose dismissal of the case as a sanction.

Thus, based on our summary judgment ruling, even if the

sanctions orders were entirely upheld, this would not result in a

de facto dismissal of the case. However, we find that certain

aspects of the District Court’s preclusion sanctions analysis rest

on the same erroneous assumption as its summary judgment

analysis – namely, that Bowers’ alleged drug abuse was relevant

for purposes of determining liability in 1995-96. For this

reason, as well as others discussed more fully below, we reverse,

in part, the sanctions imposed.

The decision to impose sanctions for discovery violations

and any determination as to what sanctions are appropriate are

matters generally entrusted to the discretion of the district court.

National Hockey League v. Metropolitan Hockey Club, 427 U.S.

639 (1976) (per curiam). We therefore review a district court’s

decision to impose preclusion sanctions for abuse of discretion.

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.

1995). While this standard of review is deferential, a district

15

In Poulis, we set forth six factors to be balanced in

deciding whether to dismiss a case as a sanction: (1) the extent

of the party’s personal responsibility; (2) the prejudice to the

adversary caused by the failure to meet scheduling orders and

respond to discovery; (3) a history of dilatoriness; (4) whether

the conduct of the party or the attorney was willful or in bad

faith; (5) the effectiveness of sanctions other than dismissal,

which entails an analysis of alternative sanctions; and (6) the

meritoriousness of the claim or defense. Poulis v. State Farm

Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

25

court abuses its discretion in imposing sanctions when it

“base[s] its ruling on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

The District Court found that Bowers and her attorneys

had failed to fulfill their duty under Federal Rule of Civil

Procedure 26(e) to supplement responses to discovery requests

throughout the course of litigation.16 More specifically, it found

16

Rule 26(e) provides as follows:

(e) Supplementation of Disclosures and

Responses. A party who has made a disclosure

under subdivision (a) or responded to a request

for discovery with a disclosure or response is

under a duty to supplement or correct the

disclosure or response to include information

thereafter acquired if ordered by the court or in

the following circumstances:

(1) A party is under a duty to supplement at

appropriate intervals its disclosures under

subdivision (a) if the party learns that in some

material respect the information disclosed is

incomplete or incorrect and if the additional or

corrective information has not otherwise been

made known to the other parties during the

discovery process or in writing. . . .

(2) A party is under a duty seasonably to amend a

prior response to an interrogatory, request for

production, or request for admission if the party

learns that the response is in some material

26

that Bowers and her attorneys had willfully and in bad faith

concealed from defense counsel evidence of Bowers’ escalating

substance abuse and substance abuse treatment. Therefore, in

order to review this finding, it will be necessary to revisit the

history of Bowers’ substance abuse and depression treatment.

As the District Court correctly perceived, “the history of

Plaintiff's drug use is complex and convoluted but nevertheless

central to the issues [in this case].” Bowers X, No. 97-2600, at

9.

Bowers tried marijuana for the first time in 1991 at age

13. It is unclear from the record how often he used it thereafter,

but his last reported use, as already stated, infra, was in July

1998, at which point his use of that substance appeared to be

intermittent. Between September 1996 and March 1997, after

hurting his back lifting weights, Bowers was prescribed at least

nineteen different painkillers, including Percocet, Hydrocodone,

and Tylenol with codeine, to which he would eventually become

addicted. By August 1998, Bowers had begun using heroin and

cocaine. Approximately two months later, in October of the

same year, he first began to seek help for his substance abuse,

entering an intensive two-week inpatient drug rehabilitation

program at Seabrook House. Located in Bridgeton, New Jersey,

Seabrook House is a prominent inpatient drug and alcohol

rehabilitation center.

respect incomplete or incorrect and if the

additional or corrective information has not

otherwise been made known to the other parties

during the discovery process or in writing.

Fed. R. of Civ. P. 26(e).

27

Following his inpatient program at Seabrook House,

Bowers attended a daily outpatient drug treatment program, also

administered by Seabrook House at a separate facility in Cherry

Hill, N.J.. This program included therapy sessions with a non-

physician drug counselor and a drug treatment program with a

physician, Dr. Lance Gooberman, who, from June 4, 1999 until

Bowers’ death, treated him for his drug addiction with an

experimental drug treatment program. Bowers also received

inpatient treatment at Rancocas Hospital for bipolar disorder and

polysubstance abuse from November 5, 1999 to November 26,

1999. In addition, Dr. Alan Rosenweig treated Bowers for

depression and anxiety from December 7, 1999 to May 29,

2001, during which time Bowers was hospitalized after

attempting to commit suicide. Bowers then underwent inpatient

drug treatment on at least two more occasions at two separate

facilities – at Bergen Regional Medical Center from March 10,

2000 to March 14, 2000, and at Zurbrugg Hospital in October

2000, followed by daily outpatient treatment from October 2000

until December 2001.

On August 7, 1998, Defendants served a set of

interrogatories on Bowers, including Interrogatory 15, which

asked Bowers to “[i]dentify all physicians or physical therapists

who have treated or evaluated you from September 1, 1996

through the present date” and to “describe in detail the reason

for that treatment.” On October 28, 1998, in response to

Interrogatory 15, Bowers identified two physicians who treated

him during that time frame: Dr. Zeon Switenko (his family

physician) and Dr. Benjamin Smolenski (an orthopedist).

Bowers, who had just completed his two-week inpatient stay at

Seabrook, did not mention that stay or indicate that any

physicians treated him during his time there. Nor did he

28

supplement his answer to Interrogatory 15 at any time

throughout the course of the litigation to reference, at the very

least, Drs. Gooberman and Rosenweig.17

Interrogatory 19 of the August 7, 1998 interrogatories

requested that Bowers, “with respect to damages . . . describe in

detail each element of that relief; state all facts that provide the

basis of that relief, including the amount, if any; and identify all

documents relating or referring to each component of that relief,

. . . and identify every individual with knowledge of the facts

relating to those alleged damages or other relief.” Bowers

responded to Interrogatory 19 (under an objection), stating that

he sought consequential damages for loss of scholarship and loss

of career opportunities in the amount of $150,000.00, and

compensatory damages for pain and suffering and emotional

distress in the amount of $500,000.00. Additionally, Bowers

stated that he could not compute punitive damages at that stage

in the discovery process. Bowers did not identify any of the

physicians who had treated him as “individuals with knowledge

of the facts relating to those alleged damages or other relief.”

Defendants’ First Request for Production of Documents also

served on August 7, 1998, requested that Bowers produce “[a]ll

documents identified in your answers to the interrogatories of all

defendants in this litigation.” Bowers did not produce any

documents related to his treatment for substance abuse.

17

The standard instructions to the interrogatories stated

that the interrogatories were “continuing and any information

secured subsequent to the filing of [the] answers, which would

have been includable in the answers had it been known or

available, is to be supplied by supplemental answers.”

29

Bowers testified at his November 30, 1998 deposition

that he became depressed after he was denied initial eligibility

by ACT/Clearinghouse, and that he was prescribed two

antidepressant medications by his physician, Dr. Switenko.

Bowers was then asked: “Other than Dr. Switenko has any

other physician treated you for depression?” Bowers answered

“No.” He was then asked if he had “ever seen another physician

other than Dr. Switenko for treatment of anxiety?” Bowers

answered “No” to that question as well. At his January 11, 1999

deposition, Bowers also denied receiving any treatment for

depression since November 1998. Bowers did not disclose his

stay at Seabrook or any subsequent treatment. Bowers also

testified in his March 1999 deposition that he was unaware why

he did not take any exams in the Fall 1998 semester, despite the

fact that he had been recently discharged from inpatient drug

treatment at Seabrook.

As already stated, Defendants claim that Bowers willfully

failed to comply with discovery requests in violation of Rule

26(e). Important to note, however, is that the discovery requests

in this case did not request information regarding Bowers’ drug

and alcohol addiction. Neither did Defendants make any

explicit request for Bowers’ medical records until March 15,

2004. Consequently, we believe there is some merit to Bowers’

argument that she had no duty to turn over that information prior

to an explicit request. We recognize that modern discovery

rules, particularly Rules 26 and 37, were enacted to prevent civil

trials in the federal courts from being “carried on in the dark.”

Hickman v. Taylor, 329 U.S. 495, 500 (1947); see United States

v. Procter & Gamble Co., 356 U.S. 677, 682-83 (1958)

(“Modern instruments of discovery . . . together with pretrial

procedures make trial less a game of blind man’s bluff and more

30

a fair contest . . . .”). However, we agree with Bowers that the

duty of supplementation under Rule26(e)(2) “does not require

that a party volunteer information that was not encompassed

within the scope of an earlier discovery request.” Polec v.

Northwestern Airlines, Inc., 86 F.3d 498, 539 (6th Cir. 1996).

However, the interrogatories do plainly request

information on “all physicians or physical therapists that have

treated [Michael Bowers].” The District Court was clearly

correct in finding that the failure by Bowers and attorneys for

Bowers to turn over information regarding his subsequent

treatments with physicians for drug addiction from Fall 1998

until his death was willful and in bad faith. Bowers did not

disclose any of the doctors that treated him at Seabrook, Bergen

Regional Medical Center, or Zurbrugg Hospital. Nor did he

disclose that he had been treated by Drs. Gooberman and

Rosenweig. It is simply inconceivable that Bowers and counsel

for Bowers could not have recognized their obligation to

disclose treatment by these physicians given the clarity of

Defendants’ discovery request for the information on “all

physicians.”

Moreover, the disclosure of this treatment clearly would

have led to discoverable information. It is virtually certain that

Defendants would have learned of Bowers’ drug use had he

disclosed his treatment with Dr. Gooberman. Dr. Gooberman

was well-known for prescribing a controversial subcutaneous

“pellet treatment” program for patients suffering from severe

heroin addictions. In fact, Gooberman’s office letterhead states

clearly that he specializes in “addiction medicine.” While

Bowers is correct that Defendants did not explicitly ask for

medical records or information about possible drug addiction,

31

had Bowers complied with her discovery obligations,

Defendants might have learned about Bowers’ drug use as early

as October 1998. Indeed, following that crucial thread of

information, Defendants would have been able to uncover

Bowers’ past drug use prior to his death and depose him on the

subject.18 Instead, that opportunity eluded them for four years

as Bowers failed to disclose his course of substance abuse

treatment with multiple physicians. Allowing any information

regarding Bowers’ substance abuse to be introduced

posthumously by Bowers for her own advantage would thus be

patently unfair to Defendants, who were clearly blind-sided by

that evidence. As a result, we find the District Court did not

abuse its discretion in issuing preclusion sanctions with respect

to Bowers’ drug use.

However, we find it was an abuse of discretion for the

District Court to preclude Bowers from introducing any

evidence of his depression. Unlike Bowers’ drug problems,

which would have been readily revealed had he disclosed his

treatment with Dr. Gooberman, Defendants were not blind-sided

by evidence that Bowers had suffered from depression. Bowers

was forthright about his depression from the outset. Bowers’

initial Rule 26 disclosures requested “punitive damages for the

18

We reluctantly agree with Bowers that there is scant

evidence in the record as to whether Michael Bowers was

treated by any physicians at Seabrook, Bergen Medical Center,

or Zurbrugg Hospital. However, we find it difficult to imagine

that Bowers was not treated by a single physician during his

multiple inpatient hospital stays, including one for an attempted

suicide.

32

pain and suffering that [sic] the trauma of not being able to

achieve his goal to play college football and the advantages that

ensue therefrom . . . .” Bowers responded to Defendants’

interrogatory requests that he sought consequential damages

from loss of scholarship and career opportunities in the amount

of $150,000.00, and compensatory damages for pain and

suffering and emotional distress in the amount of $500,000.00.

Temple recognized this damage claim to be based upon Bowers’

depression, noting that in Bowers’ Rule 26 disclosures

“[p]rincipally, he claimed to have been suffering from

depression.” Mem. of Law in Supp. of Mot. for Sanctions of

Def. Temple University at 3. Defendants’ consolidated brief

further acknowledges that Defendants were previously aware of

Bowers’ depression. Consol. Br. for Appellees at 14 (“Bowers

limited his emotional distress claims solely to depression from

not being able to play NCAA Division I football.”). Defendants

also recognized in their consolidated brief that they had

“focused on [Bowers’] claim of depression during his

January 11, 1999 deposition,” and that “depression was the only

emotional harm he identified under repeated questioning.” Id.

at 15, 18.

While Bowers’ depression certainly may have become

aggravated by and intertwined with his drug abuse at some

point, we believe the two can be disentangled for purposes of

establishing damages in this case. Indeed, Bowers’ depression

has been a centerpiece of his claims for damages from the

inception of this case, long before the clear onset of any

substance abuse problems. Consequently, we conclude the

District Court’s blanket preclusion of evidence related to

depression reflects a “clearly erroneous assessment of the

evidence in record” and was thus an abuse of discretion. Cooter

33

& Gell, 496 U.S. at 405. We will therefore affirm the sanctions

order of the District Court only insofar as it precludes Bowers,

in proving damages, from using evidence of his drug abuse and

drug abuse-related depression.

Furthermore, we reverse the sanctions order insofar as it

precludes Bowers from opposing Defendants’ claim that

Michael Bowers’ drug abuse rendered him unqualified to

participate in a program of intercollegiate athletics at all relevant

times. That aspect of the sanctions order, again, reflects a

failure on the part of the District Court to correctly focus on the

time frame of 1995-96 as the relevant time period for evaluating

the claims in this case. As elaborated more fully in our

discussion of the District Court’s summary judgment analysis,

infra Part II.A, 1995-96 is the time period in which the NCAA

allegedly unlawfully discriminated against Bowers by denying

him initial eligibility. This is also the time period during which

Bowers alleges the university Defendants participated in that

allegedly unlawful discrimination. This is therefore the relevant

time frame for purposes of establishing liability.

The District Court’s failure to focus on this period led to

a clearly erroneous assessment of the relevance of Bowers’ post-

1995-96 drug abuse and concealment of that abuse. The Court

concluded that “evidence of record thus shows that Michael

Bowers’ pattern of substance abuse involving painkillers, heroin

and other drugs, originally hidden, precluded his participation in

intercollegiate athletics at all relevant times.” Bowers X, No.

97-2600, at 41. However, at the relevant time for purposes of

establishing Defendants’ liability, 1995-96, the record is devoid

of any evidence that Bowers was addicted to painkillers or had

begun using cocaine and heroin. There is no evidence that this

34

drug abuse began until after the relevant time period – after

Bowers had been denied initial eligibility and after the

university Defendants had stopped recruiting him.19 Thus, the

District Court’s conclusion that Bowers’ drug abuse was

relevant to the issue of liability is clearly erroneous and we

reverse that part of its order precluding Bowers from opposing

Defendants’ claim that Michael Bowers’ drug abuse rendered

him presumptively unqualified in Fall 1995-96.

C. Separate Appeal of Attorneys for Bowers with Respect

to Sanctions Order

As a threshold matter, we must determine whether

attorneys for Bowers have standing to appeal the sanctions order

in this case. Standing is the “irreducible constitutional

minimum” necessary to make a justiciable “case” or

“controversy” under Article III, § 2. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). The sanctions order in this

case clearly granted Temple’s sanctions motion against Bowers,

but did not impose any additional monetary or disciplinary

19

In addition, the Defendants’ argument that they were

substantially prejudiced by this concealment with respect to

defending against liability is undermined by the logic of

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,

360 (1995) (finding employer could not have been motivated by

knowledge it did not have and claim that an employee was fired

for a nondiscriminatory reason), and Mardell v. Harleysville Life

Ins. Co., 65 F.3d 1072 (3d Cir. 1995) (applying McKennon in

unlawful discrimination context and holding after-acquired

evidence of misconduct is relevant to damages but does not bar

liability).

35

sanctions on Bowers’ attorneys beyond factual findings and

language in the actual order that the conduct of those attorneys

merited sanctions. Defendants argue that because the District

Court did not impose any monetary penalty directly against

counsel, but rather limited the sanction to precluding plaintiff

from introducing and challenging certain evidence that was

withheld under Rule 37, attorneys for Bowers have not suffered

a cognizable “injury” to establish Article III standing. Id.

We have previously stated that “an attorney subjected to

a sanction may appeal.” Bartels v. Sports Arena Employees

Local 137, 838 F.2d 101, 104 (3d Cir. 1988). However, a

review of the case law on this question reveals some

disagreement among the courts of appeals as to whether and

when a court’s statement in a judicial opinion amounts to a

sanction “affecting an attorney’s professional reputation” and

thus “impos[ing] a legally sufficient injury to support appellate

jurisdiction.” Butler v. Biocore Med. Techs., Inc., 348 F.3d

1163, 1167-68 (10th Cir. 2003). Most courts agree that mere

judicial criticism is insufficient to constitute a sanction. United

States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000); Williams

v. United States, 156 F.3d 86, 90 (1st Cir. 1998); Bolte v. Home

Ins. Co., 744 F.2d 572, 573 (7th Cir. 1984).

In addition, courts are in near complete agreement that an

order rising to the level of a public reprimand is a sanction. See

Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988)

(noting ability to issue a formal reprimand of attorney for

violating Federal Rule of Criminal Procedure); Talao, 222 F.3d

at 1138 (equating formal finding with public reprimand and

sanction); Williams, 156 F.3d at 91, 92 (“Words alone may

suffice [as sanctions] if they are expressly identified as a

36

reprimand.”); Walker v. City of Mesquite, Tx., 129 F.3d 831, 832

(5th Cir. 1997) (finding appealable sanction where attorneys

were “reprimanded sternly and found guilty of blatant

misconduct”); United States v. Horn, 29 F.3d 754, 758 n.1 (1st

Cir. 1994); see also Fed. R. Civ. P. 11(c)(2) (providing, inter

alia, that sanctions may consist of “directives of a nonmonetary

nature”). The reason for the courts’ consensus is that a public

reprimand carries with it the formal censure of the court and

may, in many cases, have more of an adverse effect upon an

attorney than a minimal monetary sanction. See, e.g., Precision

Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1353

(Fed. Cir. 2003). Only the Seventh Circuit has clearly held that

a public reprimand not accompanied by a monetary sanction is

non-appealable. Clark Equip. Co. v. Lift Parts Mfg. Co., Inc.,

972 F.2d 817, 820 (7th Cir. 1992) (“[W]e have already decided

that an attorney may not appeal from an order that finds

misconduct but does not result in monetary liability, despite the

potential reputational effects.”).

There is more substantial disagreement among the courts,

however, as to whether a factual finding in an opinion that an

attorney has engaged in improper conduct is in itself a sanction,

or whether the court must enter an explicit order that the conduct

is sanctionable. Compare Precision Specialty Metals, Inc., 315

F.3d at 1353 (stating fact that reprimand not explicitly contained

in separate order was not determinative in whether the court has

entered a formal reprimand), and Walker, 129 F.3d at 832

(factual finding of misconduct alone sufficient to constitute

sanction), and Sullivan v. Comm. on Admissions and

Grievances, 395 F.2d 954, 956 (D.C. Cir. 1967) (same), with

Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1199 (9th Cir.

1999) (stating that a factual finding in an opinion that “merely

37

serves to justify the imposition of a sanction is not an

independent sanction”); Williams, 156 F.3d at 90 (same); The

Baker Group, L.C. v. Burlington Northern and Santa Fe Ry. Co.,

451 F.3d 484 (8th Cir. 2006).20 We need not examine that

dichotomy in great detail in this case because both the order and

opinion issued by the District Court in this case explicitly stated

that the Court was sanctioning not only Bowers but also her

attorneys.

The sanctions order entered by the District Court states,

in pertinent part, as follows:

It is this 21st day of March, 2005 hereby

20

The First Circuit’s approach (adopted by the Ninth) in

determining whether nonmonetary verbal admonitions constitute

a sanction focuses on whether the judicial criticism is expressly

designated in the order as a formal reprimand:

Let us be perfectly clear. Sanctions are not

limited to monetary imposts. Words alone may

suffice if they are expressly identified as a

reprimand. But critical comments made in the

course of a trial court’s wonted functions – say,

factfinding or opinion writing, do not constitute a

sanction and provide no independent basis for an

appeal.

Williams v. United States, 156 F.3d 86, 92 (1st Cir. 1998); see

also Weissman v. Quail Lodge, Inc., 179 F.3d 1194 (9th Cir.

1999) (stating that a disparaging comment that merely serves to

justify the imposition of a sanctions order is not an independent

sanction).

38

ORDERED that Defendant Temple University’s

motion for sanctions against Plaintiff and

Plaintiff’s counsel Barbara E. Ransom, Esq. and

Richard L. Bazelon, Esq. [Docket Item No. 301-1]

shall be, and hereby is, GRANTED;

Order granting Motion for Joinder, granting Motion for

Sanctions & granting Motion for Summary Judgment, No.

97-2600 (March 21, 2005) (emphasis added).

In addition, on several occasions in its opinion, the

District Court made findings that these attorneys wilfully failed

to disclose information to Defendants in bad faith, concluding

that “the actions of Plaintiff’s counsel rise above a mere lack of

due diligence, to the level of bad faith.” Bowers X, No.

97-2600, at 32.

We find the weight of authority supports a finding that

the repeated, explicit public reprimand of the attorneys in this

case constitutes an appealable sanction. See Young v. City of

Providence, 404 F.3d 33, 38 (1st Cir. 2005) (finding a sanction

where the district court explicitly imposed “the sanction of

public reprimand”); Precision Specialty Metals, Inc., 315 F.3d

at 1352-53. In similar cases, courts have concluded that express

findings that a party violated a particular rule of civil procedure

constituted a sanction. See Young, 404 F.3d at 38 (finding

sanction where the district court stated that attorney violated

Rule 11); Precision Specialty Metals, Inc., 315 F.3d at 1352-53

(same); Butler, 348 F.3d at 1168 (explicit finding that attorney

violated state ethical rule was a sanction); Talao, 222 F.3d at

1138 (same); Walker, 129 F.3d at 832 (same). The order here

clearly rose above mere judicial criticism. The District Court

concluded not only that the attorneys violated Rule 26(e), but

39

also entered a public reprimand by explicitly granting the

sanctions motion against Bowers’ attorneys. For these reasons,

we agree with attorneys for Bowers that the sanctions order in

this case is an appealable order.

We also agree that the District Court violated the

procedural due process rights of attorneys for Bowers in this

case. “Whenever the district court imposes sanctions on an

attorney, it must at a minimum, afford the attorney notice and

opportunity to be heard.” Weissman, 179 F.3d at 1198 (finding

that the district court violated attorney’s due process rights by

failing to give him notice and an opportunity to be heard prior

to sanctioning him); see also In re Ruffalo, 390 U.S. 544, 550

(1968) (stating that attorneys subject to disciplinary proceedings

are entitled to procedural due process protections, including fair

notice of charges). It is clear that attorneys for Bowers had no

notice whatsoever that the District Court was contemplating

entering sanctions against them prior to the hearing on Temple’s

motion. Temple’s original sanctions motion requested sanctions

against plaintiff, not plaintiff’s counsel,21 and the purpose of the

hearing was to determine whether sanctions imposed against

plaintiff were warranted. Until the District Court’s opinion and

order was filed, attorneys for Bowers had no idea that the Court

was even considering levying sanctions against them. Under

these facts, the District Court violated these attorneys’ rights to

procedural due process.

Accordingly, we reverse the sanctions order of the

District Court issued against attorneys for Bowers and remand

21

The sanctions motion stated that Temple “hereby moves

for sanctions against plaintiff Kathleen Bowers.”

40

to give the attorneys an opportunity to be heard before any

further sanction is entered.

D. The University of Iowa’s Eleventh Amendment

Sovereign Immunity Challenge22

At the outset, we must state that it is clear that the

University of Iowa is not entitled to Eleventh Amendment

immunity as to its Rehabilitation Act claims. The University of

Iowa’s argument with respect to that claim has been foreclosed

by our decision in Koslow v. Commonwealth of Pennsylvania,

302 F.3d 161, 168-76 (3d Cir. 2002), in which we held that a

state program or activity that accepts federal funds waives its

Eleventh Amendment immunity to Rehabilitation Act claims.

In this case, the University of Iowa clearly “concedes it and its

students receive federal funds for purposes of Section 504.” Br.

22

We should clarify that Temple does not raise this issue.

We also note that in our previous dismissal of the University of

Iowa’s appeal from the District Court’s order of July 3, 2001,

we reserved judgment on the University of Iowa’s immunity

claims. Bowers v. NCAA, 346 F.3d 402, 412 n.8 (3d Cir. 2003).

Specifically, we recognized that “depending on the future course

of this litigation we may have to entertain Iowa’s Eleventh

Amendment arguments following final judgment.” Id. The

District Court’s March 21, 2005 order is a final judgment for

purposes of 28 U.S.C. § 1291 and we exercise jurisdiction

accordingly. However, as the District Court’s opinion and order

of March 21, 2005, did not address the University of Iowa’s

sovereign immunity claim on the merits, we consider the Court’s

July 3, 2001 decision on the merits as a touchstone for our own

analysis.

41

for Appellee/Cross Appellant University of Iowa at 6. Thus,

even if the University is an arm of the state, it has waived its

Eleventh Amendment immunity for Rehabilitation Act claims,

and Bowers’ Rehabilitation Act claim will remain. As a result,

we will focus our analysis on the issue of whether the University

of Iowa is an “arm of the state” of Iowa for the remaining state

law claims and the Title II ADA claim.

The Eleventh Amendment to the United States

Constitution provides: “The Judicial power of the United States

shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. Although the language

of the Eleventh Amendment refers only to “States,” the Supreme

Court has held that the immunity extends to entities that are

considered arms of the state. See Regents of the Univ. of

California v. Doe, 519 U.S. 425, 429 (1997); Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).

A state entity is properly characterized as an arm of the

state and thus “entitled to immunity from suit in a federal court

under the eleventh amendment when a judgment against it

‘would have essentially the same practical consequences as a

judgment against the State itself.’” Fitchik v. N.J. Transit Rail

Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (quoting

Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,

440 U.S. 391, 401 (1979)). We have adopted a three-part test to

apply in order to determine whether an entity is an arm of the

state for Eleventh Amendment purposes. That test examines the

following three elements: (1) whether the payment of the

judgment would come from the state; (2) what status the entity

42

has under state law; and (3) what degree of autonomy the entity

has. Febres v. Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir.

2006) (citing Fitchik, 873 F.2d at 659).23

In the past, we have afforded some prominence to the

first factor, the so-called “funding prong,” i.e., whether payment

comes from the state treasury. Fitchik, 873 F.2d at 659

(“Although no single Urbano factor is dispositive, the most

important is whether any judgment would be paid from the state

treasury.”) (citing Urbano v. Bd. of Managers, 415 F.2d 247 (3d

Cir.1969)) . More recently, however, in Benn v. First Judicial

Dist. of Pa., 426 F.3d 233 (3d Cir. 2005), we held that “we can

no longer ascribe primacy to the first factor,” concluding that it

was relegated “to the status of one factor co-equal with others in

the immunity analysis.” Id. at 239-40.24 Accordingly, each of

23

We refer to these three factors as the “Fitchik factors.”

24

That holding was necessitated by the Supreme Court’s

decision in Regents of the University of California v. Doe, in

which the Court stated that whether an entity is an arm of the

state for Eleventh Amendment purposes is not merely a

“formalistic question of ultimately financial liability.” 519 U.S.

425, 431 (1997). The relevant inquiry is “the entity’s potential

legal liability, rather than its ability or inability to require a third

party to reimburse it, or to discharge the liability in the first

instance.” Id. See also Fed. Mar. Comm’n v. S.C. State Ports

Auth., 535 U.S. 743, 765 (2002) (“While state sovereign

immunity serves the important function of shielding state

treasuries . . . the doctrine’s central purpose is to accord the

States the respect owed them as joint sovereigns.”).

43

the factors must be considered equally in this case in assessing

whether the University of Iowa is an arm of the state for

Eleventh Amendment purposes.25

Whether a public university is entitled to Eleventh

Amendment immunity is a fact-intensive review that calls for

individualized determinations. Although we have held in the

past that the Pennsylvania System of Higher Education was

entitled to Eleventh Amendment immunity, Skehan v. State

System of Higher Educ., 815 F.2d 244 (3d Cir. 1987), we have

also held that Rutgers, the State University of New Jersey, was

not. Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1312

(3d Cir. 1987). With this in mind, we proceed to examine each

of the Fitchik factors with respect to the particular relationship

between the State of Iowa and the University of Iowa.

1. The State of Iowa is not obligated to pay a

judgment against the University

The funding prong of Fitchik requires us to determine

whether the payment of any judgment against the University of

Iowa would come from the public treasury of the State of Iowa,

i.e., whether the State is legally liable to pay the judgment. See

Regents of the Univ. of Ca. v. Doe, 519 U.S. at 431. In making

this determination, we “consider as a critical factor whether any

judgment rendered against the entity would ultimately come out

of state funds.” Edelman v. Jordan, 415 U.S. 651, 668 (1974).

The District Court determined that the first factor weighed

25

The party asserting that it is entitled to sovereign

immunity has the burden of production and persuasion. Christy

v. Pa. Turnpike Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995).

44

against affording the University immunity because: (1) the State

of Iowa was not the predominant source of the funds for the

University, as only 21% of the University’s funding came from

the State; (2) the State did not proclaim itself legally obligated

to assume responsibility for the University; and (3) the

University maintained its own funding sources independent

from the state treasury. Bowers VI, 2001 WL 1772801, at *3.

The University argues that it will be required to pay

indirectly any judgment against it because the State of Iowa will

be required to increase appropriations to the University to

compensate for the judgment. The appropriate question to ask,

however, is whether the State is obligated to pay or reimburse

the University for its debts. See, e.g., Hess v. Port Authority

Trans-Hudson Corp., 513 U.S. 30, 51 (1994) (“If the

expenditures of the enterprise exceed receipts, is the State in fact

obligated to bear and pay the resulting indebtedness of the

enterprise?”). As we recently explained in Febres in rejecting

a similar indirect liability argument, if a State is not under a

legal obligation to satisfy a judgment, then any increase in

expenditures in the face of an adverse judgment is considered a

voluntary or discretionary subsidy not entitled to Eleventh

Amendment protections. Febres, 445 F.3d at 234. See also

Fitchik, 873 F.2d at 661 (noting that New Jersey law provided

that any increase in transit agency’s state appropriation as a

result of a judgment against the agency was deemed

discretionary action by the State); Kovats, 822 F.2d at 1309

(stating that under state law, Rutgers retained sole discretion

45

over its accounts and New Jersey law explicitly insulated itself

from any liability on obligations running against Rutgers).26

The University of Iowa argued before the District Court

that Iowa Code § 8.32 demonstrates that the State of Iowa is

obligated to pay for any outlay of funds necessary to pay

Bowers’ judgment. That section states that “[a]ll appropriations

made to any department or establishment of the government as

receive or collect moneys available for expenditure by them

under present laws, are declared to be in addition to such

repayment receipts, and such appropriations are to be available

as and to the extent that such receipts are insufficient to meet the

costs of administration, operation, and maintenance, or public

improvements of such departments.” Iowa Code § 8.32.

Translating this code into plainer English, the University of

Iowa has argued that § 8.32 merely reveals that state

appropriations are available to meet expenditures when the

receipts are insufficient. The District Court, however,

determined that the code section does “not reveal an obligation

on the part of the state beyond that which has already been

appropriated” because the section “merely establishes that the

26

Our focus can be distinguished from Brine v. Univ. of

Iowa, 90 F.3d 271, 275 (8th Cir. 1996) (holding University of

Iowa entitled to immunity) and Van Pilsum v. Iowa State Univ.

of Sci. and Tech., 863 F. Supp. 935 (S.D. Iowa 1994) (holding

Iowa State entitled to immunity), in which the courts considered

the effect of a judgment on the state treasury, including whether

it would cause the State to increase expenditures. As we follow

a different approach, those cases are inapposite with respect to

the funding prong.

46

state appropriations previously allocated are available after an

entity has exhausted the revenues it receives from non-state

sources.” Bowers VI, 2001 WL 1772801, at *3. We find that

interpretation is plausible, although the code section is not

entirely clear. However, we do not believe any further tortured

parsing of the language of § 8.32 will be productive and we

resist “convert[ing] the inquiry into a formalistic question of

ultimate financial liability.” Regents of the Univ. of Cal. v. Doe,

519 U.S. at 431.

Therefore, while we find the first Fitchik funding factor

may tilt the scale against immunity because statutory language

does not clearly obligate the State of Iowa to pay the

University’s debts, it is certainly not dispositive of the ultimate

outcome in our analysis.

2. The University is considered an arm of the state

under Iowa state law

The second Fitchik factor requires that we focus on

whether the State itself considers the entity an arm of the state.

Under the second factor, we look to how state law treats the

entity generally; whether the entity can sue or be sued in its own

right, whether the entity is separately incorporated, and whether

the entity is immune from state taxation. Febres, 445 F.3d at

230.

This second factor clearly weighs in favor of immunity.

The University was created under the Iowa state constitution, it

is the only constitutionally created university in the State, and it

47

has not been separately incorporated by the State.27 The Iowa

Constitution further provides that the “educational and school

funds and lands[] shall be under the control and management of

the General Assembly of this State.” Iowa Const. Art. IX, 2d.

§ 1. University real estate is owned in the State’s name and the

University is unable to buy or transfer real estate without the

express permission of a State Executive Council. Iowa Code

§ 262.9. Most importantly, Iowa state law considers the

University to be a state agency. Sindlinger v. Iowa St. Bd. of

Regents, 503 N.W. 2d 387 (Iowa 1993). Compare Febres, 445

F.3d at 233 (noting that N.J. state law generally treated school

boards as separate political subdivisions) with Benn, 426 F.3d at

233 (stating that under the Pennsylvania Supreme Court’s

interpretation of the state constitution, county judicial districts

are state entities).

In addition, although the University may bring suit in its

own name, it may do so only through the State Attorney

General’s Office, which also is obligated to defend the

University from suit. Iowa Code § 13.2. Furthermore, unlike

New Jersey’s tort claims act, which applies to New Jersey

counties and municipalities as well, see Fitchik, 873 F.2d at 663,

Iowa has separate tort claims acts for the State (Iowa Code ch.

699) and political subdivisions (Iowa Code ch. 670).

27

Article IX, Section 11 of the Iowa Constitution states

that “The State University shall be established at one place

without branches at any other place, and the University fund

shall be applied to that Institution and no else.” Iowa Const.

Art. IX, § 11.

48

These facts sufficiently establish that the University of

Iowa is considered an arm of the state by the State of Iowa.

3. The University’s autonomy is constrained by state

authority

The final Fitchik factor focuses on the degree of

independence from state control an entity exercises. The Board

of Regents of the University of Iowa is tightly constrained by

state authority. The Board of Regents, which governs the

University of Iowa and all other state universities, consists of

nine members, each appointed by the governor for a six-year

term (with the restriction that no more than five may be from the

same political party). Iowa Code. § 262.1, .2, .7. The governor

of Iowa is entitled to remove a member of the board for cause

with the approval of a majority of the senate, Iowa Code

§ 262.5, and the governor may suspend a board member when

the general assembly is not in session. Iowa Code § 262.5.

Board expenses are reimbursed by the state director of revenue,

Iowa Code § 262.29, who must report to the governor the

amount paid in services and expenses of officers and employees

of the board. Iowa Code § 262.22. The Board’s powers are

further regulated by Iowa Code § 262.9, which governs, inter

alia, the Board’s procurement specifications of certain types of

materials (e.g., the department of natural resources must review

the Board’s procurement specifications to ensure that the Board

purchases recyclable materials and soybean-based inks), the

University’s acquisition and disposal of real estate, the

University’s ability to accept and administer trusts, and the

number of University meetings and locations that may be held.

The Board may only acquire or transfer real estate with the

approval of the State Executive Council, which consists of the

49

Governor, State Auditor, State Treasurer, Secretary of State, and

Secretary of Agriculture. Iowa Code § 262.9(7). Contra

Fitchik, 873 F.2d at 663 (noting that under New Jersey law the

New Jersey Transit was able to purchase and sell property

without any state governmental oversight). The Board is

authorized to secure patents and copyrights from students,

instructors and officials, but they must become the property of

the State. Iowa Code § 262.9(11). Biennially, the Board is

required to give an expenditures report to the governor and the

legislature and to submit a biennial budget. Iowa Code

§ 262.26. In addition, the University is required to hire a budget

analyst to serve as a liaison between the State Department of

Management and the University in preparing the budget, Iowa

Code § 8.29, and is required to report monthly expenditures and

receipts of funds to the state director of revenue and finance.

In light of these facts, is it apparent that the University of

Iowa is tightly controlled by the State of Iowa.28 Therefore, we

find the autonomy factor weighs in favor of Eleventh

Amendment immunity.

4. Weighing the factors

Summing up, the first Fitchik factor weighs slightly

against immunity, while the second and third factors weigh

28

By contrast, in Kovats, the New Jersey governor had the

power to appoint some of the board members to Rutgers, and

there were only two limitations on the board’s operation of

University: the board had to comply with (1) state budget

appropriations; and (2) with state laws and regulations. Kovats,

822 F.2d at 1312.

50

heavily in favor of immunity. The District Court placed great

emphasis on the funding prong in accordance with our pre-Doe

jurisprudence. Under current precedent, however, we are

required to consider each of the factors equally when

determining whether an entity is entitled to Eleventh

Amendment immunity. Benn, 426 F.3d at 233.

In this case, we believe the overwhelming degree of state

involvement in the University of Iowa warrants a finding that

the University is an arm of the state. While the State of Iowa is

not clearly obligated by statute to increase expenditures to the

University as a result of an adverse judgment, there is a high

degree of state involvement in the affairs of the Board of

Regents and the University in general. In addition, under Iowa

law the University is clearly considered an arm of the State.

Accordingly, we find that the University of Iowa is entitled to

Eleventh Amendment immunity with respect to Bowers’ state

law tort claims.

E. Congress validly abrogated Eleventh Amendment

immunity under Title II of the Americans with

Disabilities Act.

Having determined that the University of Iowa is entitled

to sovereign immunity, we are required to consider the

applicability of that doctrine to Title II of the ADA. The United

States, as intervenor, reminds us that judicial restraint requires

us to “avoid reaching constitutional questions in advance of the

necessity of deciding them.” Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 445 (1988). In order to avoid

the constitutional question in this case, the United States

suggests we in effect prune away Bowers’ Title II claim, as

Section 504 of the Rehabilitation Act provides nearly identical

51

protection. While we do not disagree that the protections

afforded by Title II and Section 504 are substantially similar, see

Doe v. Cty. of Centre, 242 F.3d 437, 447 (3d Cir. 2001), we do

not believe that prudence in the form of constitutional avoidance

warrants abrogating Bowers’ right to bring a claim under Title

II. As our reversal of the District Court’s order of summary

judgment has revived Bowers’ Title II claim, we are squarely

presented with the constitutional question regarding that

statute’s purported abrogation of sovereign immunity. Thus,

prudential concerns notwithstanding, we feel obliged to enter the

fray. Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis,

J., concurring) (passing on a constitutional question is “a

necessity in the determination of [a] real, earnest, and vital

controversy between individuals”).

In order for Congress to validly abrogate state sovereign

immunity, Congress must: (1) unequivocally express its intent

to abrogate that immunity; and (2) act pursuant to a valid grant

of constitutional authority. Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 73 (2000). The first prong of this test is easily satisfied

in this case, as Title II of the ADA provides that “[a] State shall

not be immune under the eleventh amendment to the

Constitution of the United States from an action in [a] Federal

or State court of competent jurisdiction for a violation.” 42

U.S.C. § 12101(b)(4); see generally Board of Trustees of Univ.

of Ala. v. Garrett 531 U.S. 356 (2001) (finding that the above

statutory provision was an unequivocal expression of

Congressional intent to abrogate state sovereign immunity under

Title II). Our task then in this case is to determine whether

Congress exceeded its authority under § 5 of the Fourteenth

Amendment in purporting to abrogate state sovereign immunity

under Title II of the ADA with respect to public education.

52

“Congress can abrogate a State’s sovereign immunity

when it does so pursuant to a valid exercise of power under § 5

of the Fourteenth Amendment to enforce the substantive

guarantees of that Amendment.” Tennessee v. Lane, 541 U.S.

509, 518 (2004). Under this “broad enforcement power,” id.,

Congress may “enact so-called prophylactic legislation that

proscribes facially constitutional conduct, in order to prevent

and deter unconstitutional conduct.” Nevada Dept. of Human

Resources v. Hibbs, 538 U.S. 721, 727-28 (2003) (concluding

that the Family Medical Leave Act is a valid exercise of

Congress’s § 5 power to combat unconstitutional sex

discrimination). “When Congress seeks to remedy or prevent

unconstitutional discrimination, § 5 authorizes it to enact

prophylactic legislation proscribing practices that are

discriminatory in effect, if not in intent, to carry out the basic

objectives of the Equal Protection Clause.” Lane, 541 U.S. at

520. Thus, Congress’s § 5 authority can sweep in conduct that

may possibly be constitutional. See City of Boerne v. Flores,

521 U.S. 507, 518 (1997) (“Legislation which deters or

remedies constitutional violations can fall within the sweep of

Congress’ enforcement power even if in the process it prohibits

conduct which is not itself unconstitutional and intrudes into the

‘legislative spheres of autonomy previously reserved to the

States.’”) (citation omitted).

Although Congressional authority under § 5 is broad, it

is not unlimited. Lane, 541 U.S. at 520. The key limitation is

that Congressional action must not work “a substantial change

in the governing law.” City of Boerne, 521 U.S. at 519. In this

respect, the Supreme Court has established a “congruence and

proportionality” test: “Section 5 legislation is valid if it exhibits

‘a congruence and proportionality between the injury to be

53

prevented or remedied and the means adopted to that end.’”

Lane, 541 U.S. at 520 (quoting City of Boerne, 521 U.S. at 520).

The Court has enacted a three-step inquiry to determine whether

a particular statute satisfies the congruence and proportionality

test, which requires the parties to identify: (1) with some

precision the constitutional right at issue; (2) whether Congress

identified a history and pattern of unconstitutional

discrimination by the States against the disabled; and

(3) whether the rights and remedies created by the statute are

congruent and proportional to the constitutional rights it

purports to enforce and the record of constitutional violations

adduced by Congress. Garrett, 531 U.S. at 365, 368, 372-73.

For example, the purported abrogation of Title I of the

ADA failed that test in Garrett, in which the Court held that

there was not a pattern of constitutional violations with respect

to public employment. Congressional findings had focused on

discrimination in the private sector, and Title I’s broad remedial

scheme was insufficiently targeted to remedy unconstitutional

discrimination in public employment. See id. at 368-374. Thus,

the Court in Garrett held that the Eleventh Amendment bars

suits seeking money damages for state violations of Title I of the

ADA. The Court explicitly left open the question of whether

similar suits could be brought for money damages under Title II

of the ADA.29

29

The Court has also sustained other challenges to overly

broad and disproportional legislation that went beyond the scope

of § 5. City of Boerne v. Flores, 521 U.S. 507, 532 (1997)

(finding that Congress exceeded its § 5 authority in enacting

Religious Freedom Restoration Act of 1993); Florida Prepaid

54

That question was answered, to some degree, in Lane,

541 U.S. 509. Lane involved a suit by two paraplegic plaintiffs

who claimed that they were denied access to the state courts by

reason of their disabilities. In that case, the Court explained that

Title II was enacted “against a backdrop of pervasive unequal

treatment in the administration of state services and programs,

including systematic deprivations of fundamental rights.” Id. at

524. The Court referenced the numerous hearings held by

Congress in connection with enacting the ADA, which revealed

“that many individuals, in many States across the country, were

being excluded from courthouses and court proceedings by

reason of their disabilities.” Id. at 527. This evidence led

Congress to make an explicit finding that disability-based

discrimination persisted in access to public services and public

facilities. Id. at 529.

The Court then reviewed whether Title II was valid § 5

legislation with respect to the class of cases implicating the

accessibility of judicial services.30 As to that conduct, the Court

concluded that Title II was a congruent and proportional

response to remedy discrimination against disabled individuals

Postsecondary Ed. Expense Bd. v. College Savings Bank, 527

U.S. 627 (1999) (concluding that the Patent Remedy Act

implicated Article I concerns, not enforcement of the guarantees

of the Fourteenth Amendment).

30

The Court reviewed the congruence and proportionality

of Title II as applied to access to judicial services, not the

congruence and proportionality of Title II as a whole. Lane, 541

U.S. at 531.

55

in the administration of judicial services. Congress chose a

limited remedy to enforce Title II with respect to access to the

courts. States are required to take “reasonable measures” to

remove architectural and other barriers to accessibility, and, in

the case of older facilities in which structural changes would be

more difficult, states are able to adopt a variety of less costly

measures to ensure access to judicial services. Id. at 532. As a

result, the Court concluded that Title II’s affirmative obligation

to accommodate persons with disabilities in the administration

of justice was a reasonable prophylactic measure targeted to a

legitimate end.

Lane, however, revealed disagreement amongst members

of the Court as to whether Title II may subject States to money

damages for conduct that may in fact be constitutional. While

the majority opinion recognizes that Congress’s prophylactic

powers under § 5 may proscribe some conduct that is facially

constitutional to “prevent and deter unconstitutional conduct,”

Lane, 541 U.S. at 529, the dissenting Justices forcefully argued

that Congress’s § 5 powers extend only to remedy actual

constitutional violations. See id. at 547 (Rehnquist, C.J.,

dissenting), 559 (Scalia, J., dissenting) (“Nothing in § 5 allows

Congress to go beyond the provisions of the Fourteenth

Amendment to proscribe, prevent, or “remedy,” conduct that

does not itself violate any provision of the Fourteenth

Amendment.”) (emphasis in original). But see Constantine v.

The Rectors and Visitors of George Mason Univ., 411 F.3d 474,

490 (4th Cir. 2005) (“[T]he question is not whether Title II

exceeds the boundaries of the Fourteenth Amendment, but by

how much.”) (emphasis in original).

56

This dispute was held in abeyance in the Court’s decision

in United States v. Georgia, 126 S. Ct. 877 (2006). In Georgia,

a disabled inmate in a state prison brought a pro se action under

Title II of the ADA seeking money damages. The inmate

alleged that he was confined within a small cell 23 to 24 hours

per day, that he was unable to turn his wheelchair around in his

cell, and that he was not afforded adequate facilities to use the

toilet and shower without assistance, which often was denied.

In addition, he claimed that he was denied a number of essential

prison services as a result of his disability. Id. at 879. The

Court examined whether Title II of the ADA validly abrogated

state sovereign immunity with respect to the inmate’s claims. It

noted that the same conduct allegedly established the inmate’s

claims under both the Eighth Amendment and Title II. In this

respect, the Court agreed that “insofar as Title II creates a

private cause of action for damages against the States for

conduct that actually violates the Fourteenth Amendment,

Title II validly abrogates state sovereign immunity.” Id. at 882

(emphasis in original). Because it was unclear as to what extent

the conduct underlying the inmate’s constitutional claims also

violated Title II, the Court ordered the case remanded back to

the District Court for the inmate to amend his complaint. Id. at

882. The Court directed the lower court to (1) identify which

aspects of the State’s alleged conduct violated Title II;

(2) identify to what extent such misconduct also violated the

Fourteenth Amendment; and (3) insofar as such misconduct

violated Title II but did not violate the Fourteenth Amendment,

determine whether Congress’s purported abrogation of

sovereign immunity as to that class of conduct is nevertheless

valid. Id.

57

Thus, we are required to determine in the first instance if

any aspect of the University’s alleged conduct forms the basis

for a Title II claim.31 In this case, the University allegedly

violated Title II when it refused to offer Bowers a scholarship on

the basis that he would not meet NCAA initial eligibility

standards. Title II prohibits a “qualified individual with a

disability” from being “excluded from participation in or be

denied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity” because of the individual’s disability. 42 U.S.C.

§ 12132. Bowers argues that the University of Iowa

discriminated against him because of his learning disability: but

for the fact that his learning disability precluded him from

taking the requisite number of core classes in high school, he

would have been given a scholarship by the University. Bowers

thus essentially states a claim under Title II that he was denied

access to a program at a public education institution because of

his disability.32

31

In Georgia, the Court remanded to the District Court for

this determination. 126 S. Ct. at 882. However, given the

procedural posture of this case, we find we are well situated to

make this determination ourselves. See Toledo v. Sanchez, 454

F.3d 24, 32 n.2 (1st Cir. 2006) (“[A]s this analysis simply

requires a legal determination under the standard set out in Fed.

R. Civ. P. 12(b)(6), and because a remand would further prolong

the lengthy course of this litigation, we will address these

questions.”).

32

To succeed on a claim under Title II, Bowers must

demonstrate: (1) he is a qualified individual; (2) with a

58

Under Georgia, we are required next to determine

whether the alleged misconduct in this case, denying a student

athlete eligibility to participate in intercollegiate athletics, also

violates the Fourteenth Amendment. Clearly, since the Supreme

Court has held that there is no fundamental right to public

education, San Antonio Indep. School Dist. v. Rodriguez, 411

U.S. 1, 35 (1973), there is no fundamental right to participate in

intercollegiate athletics, a component of public education.

Likewise, the Supreme Court has held that the disabled are not

a suspect class for purposes of an equal protection challenge.

City of Cleburne v. City of Cleburne Living Center, 473 U.S.

432, 439 (1985).33 Accordingly, we apply rational basis review

to the Defendants’ application of the NCAA rule to Bowers.

The NCAA rule (and the universities’ adoption and application

of the NCAA rule) easily passes muster under rational basis

review as the rule is designed to ensure that incoming student

athletes can handle the rigors of college academia while

engaging in intercollegiate athletics. See Bowers I, 974 F. Supp.

at 461 (noting the NCAA’s view that the requirements “are

disability; (3) he was excluded from participation in or denied

the benefits of the services, programs, or activities of a public

entity, or was subjected to discrimination by any such entity;

(4) by reason of his disability. Bowers III, 118 F. Supp. 2d at

510.

33

In the context of public education, the due process

clause may be implicated if a student is suspended or expelled

without notice or an opportunity to be heard. See Goss v. Lopez,

419 U.S. 565, 574 (1975). In this case, however, Bowers’

claims do not raise any procedural due process concerns.

59

designed to assure proper emphasis on educational objectives,

to promote competitive equity among institutions and to prevent

exploitation of student athletes”). The NCAA rule – requiring

student athletes to participate in certain basic core classes in

high school – is rationally related to the end it attempts to

achieve – ensuring that incoming student athletes are prepared

to balance academics and athletics. The rule does not target

disabled individuals per se, but rather also targets those student

athletes who have failed to satisfy their core course requirements

for other reasons, including sheer lack of effort. Consequently,

the rule does not create a caste system in which learning

disabled students can never qualify as student athletes. See City

of Cleburne, 473 U.S. at 450 (finding that zoning legislation

failed rational basis review because it demonstrated irrational

prejudice directed solely against the mentally retarded). Thus,

the NCAA rule and the university Defendants’ application of

that rule do not violate the Fourteenth Amendment. See also

Toledo, 454 F.3d at 33-34 (finding that a university’s actions in

failing to accommodate disabled student by allowing him, inter

alia, to arrive late to class and to extend deadlines for work, did

not establish constitutional violations).

Having determined that the alleged misconduct in this

case states a claim for violation of Title II but not the Fourteenth

Amendment, we arrive at the final step of Georgia’s tripartite

test. This step requires to determine whether Congress’s

purported abrogation of state sovereign immunity is nevertheless

valid.34 The right at issue in this case, as in Lane, is the right to

34

As already stated, in making this determination we seek

to identify: (1) with some precision the constitutional right at

60

be free from irrational disability discrimination. Lane, 541 U.S.

at 522. The Court in Lane concluded that Congress had clearly

identified a history and pattern of disability discrimination with

respect to public services. Id. at 526.35 Therefore there is only

issue; (2) whether Congress identified a history and pattern of

unconstitutional discrimination by the States against the disabled

with respect to public services; and (3) whether the rights and

remedies created by the statute are congruent and proportional

to the constitutional rights it purports to enforce and the record

of constitutional violations adduced by Congress. Garrett, 531

U.S. at 365, 368, 372-73.

35

The Court considered evidence of disability

discrimination in a variety of public services, not just limited to

access to the courts. See Lane, 541 U.S. at 523-26 (referencing

voting, serving as jurors, unjustified commitment, abuse and

neglect of young persons committed to state mental hospitals,

and irrational discrimination in zoning decisions). The Court

concluded that there was a documented “pattern of unequal

treatment in the administration of a wide range of public

services, programs, and activities, including the penal system,

public education, and voting.” Id. at 525 (emphasis added).

Subsequent decisions of the courts of appeals have recognized

that the second prong of the Boerne test was conclusively

established with respect to Title II by the Lane Court. See

Cochran v. Pinchak, 401 F.3d 184, 191 (3d Cir. 2005); see also

Constantine v. The Rectors and Visitors of George Mason

University, 411 F.3d 474, 487 (4th Cir. 2005) (“After Lane it is

settled that Title II was enacted in response to a pattern of

unconstitutional disability discrimination by States and nonstate

61

government entities with respect to the provision of public

services.”); Assoc. for Disabled Americans, Inc. v. Fla. Int’l

Univ., 405 F.3d 954, 958 (11th Cir. 2005). But see Toledo, 454

F.3d at 35 (“We believe the sounder approach is to focus the

entire City of Boerne test on the particular conduct of state

conduct at issue.”).

Disability discrimination has clearly been identified in

the context of public education. As the Government documents

extensively in its brief, there had been a long and sad history of

discrimination against students with learning disabilities prior to

the adoption of Title II of the ADA. (See Gov’ts Br. at 23-34.)

See also Lane, 541 U.S. at 525 n.12 (citing examples of state-

sanctioned public school discrimination); State ex rel. Beattie v.

Bd. of Educ. of City of Antigo, 172 N.W. 153 (Wis. 1919)

(justifying the exclusion of a child with cerebral palsy from

public school because he would “produc[e] a depressing and

nauseating effect” on other children). In concluding that

Congress was justified in enacting Title II with respect to public

education, the First Circuit stated the following:

In sum, the thirty years preceding the enactment

of the ADA evidence a widespread pattern of

states unconstitutionally excluding disabled

children from public education and irrationally

discriminating against disabled students within

schools. Faced with this record of persistent

unconstitutional state action, coupled with the

inability of earlier federal legislation to solve this

“difficult and intractable problem,” Congress was

justified in enacting prophylactic § 5 legislation in

response.

62

one difficult issue left at this point in the inquiry: the congruence

and proportionality of Title II with respect to public education.

We agree with the United States that “[a]s applied to

education, Title II is a congruent and proportional means of

preventing and remedying the unconstitutional discrimination

that Congress found to exist both in education and in other areas

of governmental services, many of which implicate fundamental

rights.” Br. for the United States at 36-37. The remedy chosen

by Congress in Title II in the area of public education is a

narrow one: access to education. Qualified individuals with a

disability may not be excluded from participating in public

education on the basis of their disability. Thus, states are free to

enact a myriad of laws relating to public education, including

laws that may negatively impact disabled students, so long as

those laws do not discriminate against students because of their

disabilities. Congress enacted Title II against the backdrop of

our regrettable national history in educating students with

disabilities. See infra note 35. As pointed out correctly by the

United States in its brief, our national history in educating

students with disabilities leaves much to be desired. In many

past instances, States have made educational decisions on the

basis of irrational misconceptions and stereotypes held about

disabled students. See Gov’ts Br. at 27-32 (documenting

various instances of exclusion and segregation of disabled

students). Given this regrettable past history, Title II is a

justifiable prophylactic measure to avoid the risk of

unconstitutional treatment of disabled students.

Toledo, 454 F.3d at 39 (citing Hibbs, 538 U.S. at 735).

63

Reported cases from the courts of appeals since the

Supreme Court’s decision in Georgia have likewise found that

Congressional abrogation of sovereign immunity with respect to

public education was valid. As the Fourth Circuit observed in

Constantine, Congress limited the scope of Title II in several

respects. First, the statute only protects “qualified individuals

with a disability.” Second, Title II permits States to limit

participation in their programs and activities for all other lawful

reasons. Third, Title II only requires States to make “reasonable

modifications” to accommodate the disabled, thus protecting the

States from having to compromise essential eligibility criteria

for public programs. Finally, States are able to make available

other accommodations if structural modifications of physical

structures are too burdensome. 411 F.3d at 488-89. For those

reasons, and against the backdrop of discrimination against

disabled students, the Constantine court concluded that Title II

was valid legislation as applied to public education. Id. at 490.

See also Toledo, 454 F.3d at 40 (“Title II’s prophylactic

measures are justified by the persistent pattern of exclusion and

irrational treatment of disabled students in public education,

coupled with the gravity of the harm worked by such

discrimination.”); Assoc. for Disabled Americans, Inc., 405 F.3d

at 959 (“Discrimination against disabled students in education

affects disabled persons’ future ability to exercise and

participate in the most basic rights and responsibilities of

citizenship, such as voting and participation in public programs

and services. The relief available under Title II of the ADA is

congruent and proportional to the injury and the means adopted

to remedy the injury.”).

64

Accordingly, we join several sister circuits in holding that

Congress acted within its Constitutional authority in abrogating

sovereign immunity under Title II of the ADA.

III. CONCLUSION

We agree with the District Court that this case has

become an ongoing saga. With this opinion, we have

contributed yet another episode to the saga, but it has not been

our intention to thicken the plot. With that in mind, we observe

that a central question has yet to be resolved: whether the

Defendants, in their treatment of Michael Bowers, in fact

violated anti-discrimination law. Consequently, we will reverse

the order of summary judgment and remand this matter to the

District Court for treatment in accordance with the rulings stated

herein.

65