Number range CHAPTER

FAITH S. HOCHBERG

United States Attorney

LOUIS J. BIZZARRI

Assistant U.S. Attorney

Mitchell S. Cohen U.S. Courthouse

4th & Cooper Street, Room 2070

Camden, New Jersey 08101

\(609\) 757-5412

LB-3903

ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH

L. IRENE BOWEN

PHILIP L. BREEN

DANIEL W. SUTHERLAND

Attorneys, Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

DS-6223

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MICHAEL BOWERS ) HON. STEPHEN M. ORLOFSKY

)

Plaintiff, )

)

v\. ) CIVIL ACTION NO. 97-2600

)

THE NATIONAL COLLEGIATE )

ATHLETIC ASSOCIATION, et al., )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

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**UNITED STATES' MEMORANDUM OF LAW AS AMICUS CURIAE**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

[INTRODUCTION]{.underline}

On May 23, 1997, Michael Bowers, an individual with a learning
disability, filed suit alleging that the National Collegiate Athletic
Association (NCAA) violated title III of the Americans with Disabilities
Act (ADA), and other statutes, when it declared him ineligible to
participate in athletics during his first two semesters of college. Mr.
Bowers sought a preliminary injunction, but the court denied the motion
for a preliminary injunction on August 14, 1997. [Bowers v. National
Collegiate Athletic Association, et al.]{.underline}, Civil Action No.
97- 2600 (D.N.J., Aug. 14, 1997).

On September 29, 1997, the NCAA filed a pleading titled, \"Defendant
NCAA's Motion to Dismiss or, in the Alternative, for Summary
Judgment."[^1] The Motion to Dismiss argues that Mr. Bowers' complaint
fails to state a claim under the ADA because the NCAA is not a public
accommodation under title III and because the NCAA does not discriminate
against student-athletes with learning disabilities in violation of
title III.[^2]

The United States has been granted leave to participate as
[amicus]{.underline} [curiae]{.underline} on these two issues. The
United States urges the Court to allow Mr. Bowers the opportunity to
develop evidence that the NCAA operates places of public accommodation
and that the NCAA's initial- eligibility requirements discriminate
against students with learning disabilities.

# ARGUMENT

> **I. Legal standards applicable to the motion to dismiss or for
> summary judgment.**

The NCAA filed its motion to dismiss under Federal Rule of Civil
Procedure 12. The NCAA labels the motion in the alternative as a motion
for summary judgment under Federal Rule of Civil Procedure 56,
apparently because many of its arguments are premised on evidence
outside the Complaint. Under both rules, the NCAA must meet a high
standard of proof.

In ruling on the motion to dismiss, this Court should accept the factual
allegations in the Complaint as true.[^3] [Hishon v. King &
Spaulding]{.underline}, 467 U.S. 69, 73 (1983). The Court must then
determine if those factual allegations, or any set of facts that are
consistent with those allegations and might be developed during the
discovery process, could justify a court granting relief.
[Id.]{.underline} "\[A\] complaint should not be dismissed for failure
to state a claim unless itappears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief." [Conley v. Gibson]{.underline}, 355 U.S. 41, 45-46 (1957). At
such an early stage in the proceedings, courts are reluctant to
foreclose the possibility that a plaintiff could develop facts that
would sustain a theory of liability. [See]{.underline},
[e.g.]{.underline}, [Carparts Distribution Center v. Automotive
Wholesaler\'s Association of New England]{.underline}, 37 F.3d 12, 20
(1st Cir. 1994)("\[w\]e think at this stage it is unwise to go beyond
the *possibility* that the plaintiff may be able to develop some kind of
claim under Title III even though this may be a less promising vehicle
in the present case than Title I").

Summary judgment is appropriate only when the evidence fails to
demonstrate that there is a genuine issue of material fact, and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ.
Proc. 56(c).[^4] Mr. Bowers can establish that there is a genuine issue
of material fact if he provides sufficient evidence that would allow a
reasonable jury to find for him at trial. [Anderson v. Liberty
Lobby]{.underline}, 477 U.S. 242, 248 (1986). The court must determine
"whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law." [Id.]{.underline} at 251-2. When evaluating
the evidence presented by Mr. Bowers, the court must give him the
benefit of all reasonable inferences. [Bray v. Marriott
Hotels]{.underline}, 110 F.3d 986, 989 (3rd Cir. 1997).

> **II. Mr. Bowers should be given the opportunity to develop evidence
> that the National Collegiate Athletic Association operates places of
> public accommodation.**
>
> **A. Title III of the Americans with Disabilities Act should be
> interpreted broadly.**

The Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, is the
most extensive civil rights legislation to pass Congress since the Civil
Rights Act of 1964. Its purpose is to provide \"a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.\" 42 U.S.C. § 12101(b)(1). The
ADA\'s coverage is accordingly broad, prohibiting discrimination on the
basis of disability in employment, state and local government programs
and services, transportation systems, telecommunications, commercial
facilities, and the provision of goods and services offered to the
public by private businesses.

Under well-established canons of statutory construction, remedial
legislation should not be given a narrow or limited construction but
rather should be liberally construed. [Butler v. National Collegiate
Athletic Association]{.underline}, No. C96-1656, slip op. at 8 (W.D.
Wash., Nov. 8, 1996), [citing]{.underline} [Tcherepnin v.
Knight]{.underline}, 389 U.S. 332, 336 (1967)(a copy is attached as
Exhibit A). This principle of statutory construction is especially true
of civil rights legislation, and has been applied repeatedly to the
Americans with Disabilities Act. [See]{.underline}, [e.g.]{.underline},
[Kinney]{.underline} v. [Yerusalim]{.underline}, 812 F. Supp. 547, 551
(E.D. Pa.), [aff\'d]{.underline} 9 F.3d 1067 (3d Cir. 1993), [cert.
denied]{.underline} [sub]{.underline} [nom.]{.underline}
[Hoskins]{.underline} v. [Kinney]{.underline}, 114 S. Ct. 1545 (1994);
[Niece v. Fitzner]{.underline}, 922 F. Supp. 1208, 1218-19 (E.D. Mich.
1996).

This action involves title III of the ADA, which prohibits
disability-based discrimination by private entities who own, lease (or
lease to), or operate a place of public accommodation. 42 U.S.C. §
12182(a); 28 C.F.R02. The Prea. § 36.2mble to the implementing
regulation provides, \"The coverage is quite extensive and would include
. . . any other entity that owns, leases, leases to, or operates a place
of public accommodation, even if the operation is only for a short
time.\" 28 C.F.R. Part 36, Appendix B at 593.[^5]

B.  **Title III of the Americans with Disabilities Act covers private
    entities that own, lease (or lease to), or operate places of public
    accommodation.**

Mr. Bowers argues that the NCAA is a private entity that operates places
of public accommodation. This argument turns on the understanding of
three terms. First is whether the NCAA is a \"private entity.\" All
parties concede that the NCAA meets this definition.

Second is the meaning of the word \"operates.\" Neither the ADA nor the
regulations define the word \"operates.\" When a word is not defined by
statute, courts \"normally construe it in accord with its ordinary or
natural meaning.\" [Smith v. United States]{.underline}, 113 S. Ct.
2050, 2054 (1993). In the context intended by the statute, \"operates\"
means to control, manage, administer, or regulate.[^6] A federal court
in Connecticut defined "operate" in the context of title III of the ADA
as \"managing and controlling\[.\]\" [Dennin v. Connecticut
Interscholastic Athletic Conf.]{.underline}, 913 F.Supp. 663, 670 (D.
Conn. 1996), [vacated as moot]{.underline}, 94 F.3d 96 (2d Cir. 1996). A
federal court in California held that the word \"implies a requirement
of control over the place providing services\" subject to title III.
[Aikins v. St. Helena Hospital]{.underline}, 843 F.Supp. 1329, 1335
(N.D. Cal. 1994). A federal district court in Ohio held that "operate"
means that the person or entity \"is in a

position of authority\" to make decisions that are allegedly
discriminatory under title III. [Howe v. Hull]{.underline}, 873 F.Supp
72, 77 (N.D. Ohio 1994). In applying the ADA specifically to the NCAA,
one federal court held that the NCAA "operates" athletic facilities
because it "exercises control" over those facilities; another federal
court held that the NCAA "operates" athletic facilities because it
"regulates" their use. [Ganden v. National Collegiate Athletic
Association]{.underline}, No. 96C-6953, 1996 W.L. 680000 at \*11 (N.D.
Ill., Nov. 21, 1996); [Butler v. National Collegiate Athletic
Association]{.underline}, slip op. at 9. As the Preamble to the
implementing regulation explains, a private entity may "operate" a
facility even if its relationship to the place of public accommodation
is for only a limited period of time. 28 C.F.R. Part 36, Appendix B at
593. [See]{.underline} [also]{.underline} [Ganden v. National Collegiate
Athletic Association]{.underline}, 1996 W.L. 680000 at \*11.

Third, the phrase \"places of public accommodation\" is defined in title
III through a list of illustrative facilities, including:

> \* a \... stadium, or other place of exhibition of entertainment;
>
> \* an auditorium, convention center . . . or other place of public
> gathering; and,
>
> \* a gymnasium . . . or other place of exercise of recreation.

42 U.S.C. §§ 12181(7)(C), (D) and (L).

The statute's focus is not on whether the place of public accommodation
at which the individual with a disability is subject to discriminatory
treatment is a facility that is owned by a private or public entity. The
Preamble to the regulation provides, \"It is the public accommodation,
and not the place of public accommodation, that is subject to the
regulation\'s nondiscrimination requirement.\" 28 C.F.R. Part 36,
Appendix B at 587.

Even if a state or local government owns the facility at which a person
with a disability experiences discrimination, title III nevertheless
applies when a private entity operates that facility. [See]{.underline}
The Americans with Disabilities Act, Title III Technical Assistance
Manual, \"Covering Public Accommodations and Commercial Facilities,\" at
7-8 (Nov. 1993)(a copy of the relevant section is attached as Exhibit
B).[^7] The Technical Assistance Manual demonstrates this principle
through several illustrative fact patterns. [Id]{.underline}.[^8] [See
also]{.underline}, [Butler v. National Collegiate Athletic
Association]{.underline}, slip op. at 7 ("the nature of the place is
determined by who owns, leases, or operates the place"); [Ganden v.
National Collegiate Athletic Association]{.underline}, 1996 WL 680000 at
\* 11 ("Title III proscribes discrimination committed by private
entities in their management of public accommodations\.... Parties may
not escape the requirements of the ADA through multiple ownership or
management of a facility"); [Dennin v. Connecticut Interscholastic
Athletic Conf.]{.underline}, 913 F.Supp. at 670 (\"\[t\]he fact that
some of these facilities might be owned by a public entity, i.e., a
public school, does not affect the conclusion that CIAC 'operates' the
facilities for purposes of athletic competition\").

C.  **The factual allegations in the Complaint, if accepted as true,
    support the claim that the NCAA is a private entity that operates
    places of public accommodation.**

The legal determination of whether the NCAA is a private entity that
owns, leases, or operates places of public accommodation involves a
factual inquiry into the relationship between the NCAA and various
places of public accommodation. [Butler v. National Collegiate Athletic
Association]{.underline}, slip op. at 8-9. Mr. Bowers' Complaint
contains the following factual allegations concerning the relationship
of the NCAA to places of public accommodation such as stadiums,
coliseums, arenas, gymnasiums, athletic training facilities, and
educational institutions:

> ¶ 10: The NCAA identifies itself as an "arm or extension of its member
> universities;" it is the predominant governing body in college sports
> generating an annual income in the hundreds of millions dollars while
> maintaining a tax-free status as an educational institution.
>
> ¶ 12: The NCAA transacts business in the Federal District of New
> Jersey and has activities in New Jersey which are continuous and
> substantial. These,include the determination of whether
> student-athletes in this District are eligible to participate in
> intercollegiate athletics and receive athletic scholarships, the
> sanctioning of intercollegiate athletic events, the collection of
> assessments from colleges and universities in this District and the
> execution of contracts.
>
> ¶ 18: The NCAA exercises substantial control over the operation of the
> sports facilities used in intercollegiate athletics. This operational
> control includes such matters as the selection of sites and dates for
> sports events, size of fields, ticket and seating arrangements, use of
> dining facilities; campus housing and room and board; use of athletic
> facilities; playing rules in athletic facilities; etc. (See NCAA
> Bylaws (1995-96) §§ 11.02.3.3; 11.3.4.4; 11.6.1.4; 13.7.5.2; 13.8.2.1;
> 13.8.2.2; 13.8.2.3; 13.8.2.4; 13.9.1; 15.2.2; 16.2; 16.5; Article 17;
> 21.5.1.5.2; 21.6.1.5; 30.2.1.4; 30.2.2; 30.9.11; 31.1.3; 31.1.6;
> 31.1.11; 31.3.1).
>
> ¶ 25: The NCAA establishes the initial eligibility standards for
> student athlete prospects for all NCAA member schools. The absence of
> initial eligibility status prevents students athletes from
> participating in intercollegiate sports programs and from receiving
> athletic scholarships at Division I and Division II schools.
>
> ¶ 97: Defendant NCAA requires that students be certified as a
> "qualifier" by ACT's NCAA Clearinghouse in order to participate fully
> in intercollegiate athletics at a Division I or Division II member
> school.
>
> ¶ 135: Under NCAA rules, Plaintiff as a "non-qualifier" is ineligible
> to compete in intercollegiate football, practice or condition with
> "qualifiers," or receive any athletic scholarship monies. (NCAA Bylaw
> § 14.3.2.2).
>
> ¶ 151: Temple University, University of Iowa and American are places
> of public accommodation within the meaning of Title III of the ADA,
> which reaches "secondary, undergraduate, or postgraduate private
> school\[s\]" and the "gymnasium, health spa, bowling alley, golf
> course, or other place of exercise or recreation" of such places of
> public accommodation. 42 USC §12181(7)(J) and (L).
>
> ¶ 153: Defendant NCAA "operates" and "leases" places of public
> accommodation and exercises control over the operations of the
> nation's colleges and universities such that it fulfills the "operates
> public accommodations" requirement of Title III.
>
> ¶ 155: Defendant NCAA enters into agreements with public entities and
> member institutions that would constitute "leasing" the facility, thus
> satisfying not only the "operates" but the "leases" provision of the
> "public accommodations" section of Title III.

These factual allegations, if proven and combined with a sound legal
interpretation of the terms of the statute, would present a compelling
case that the NCAA is a private entity that operates places of public
accommodation under title III. Mr. Bowers alleges that the NCAA
exercises control over several places of public accommodation, including
sites such as "stadiums" and "auditoriums" where sporting events are
held, and athletic training facilities such as "gymnasiums" and "other
places of exercise or recreation." [See]{.underline} 42 U.S.C. §§
12181(7)(C), (D) and (L). Mr. Bowers also alleges that the NCAA leases
sites where sporting events are held when it hosts various competitions.
[See]{.underline} 42 U.S.C. § 12182(a).

> **D. The limited evidence already available shows that there are
> genuine issues of material fact regarding whether the NCAA operates
> places of public accommodation.**

The NCAA asks the Court to consider not only the factual allegations in
the Complaint but also additional evidence. At this early stage of the
proceedings, there is a limited amount of evidence to supplement the
factual allegations in the Complaint. The facts currently available to
Mr. Bowers are only a small subset of what will be available once
discovery is conducted. After Mr. Bowers has the opportunity to discover
documents concerning the NCAA\'s relationship with various places of
public accommodation, it is likely that his position will be
significantly strengthened.

The motion for summary judgment is premature because as a general rule
summary judgment is not appropriate until the party opposing the motion
has been given an adequate opportunity to conduct discovery. [Reflectone
v. Farrand Optical Co.]{.underline}, 862 F.2d 841, 843 (11^th^ Cir.
1989)(however, a blanket prohibition of summary judgment motions prior
to discovery would not be appropriate). [See]{.underline}
[also]{.underline} [Celotex Corp. v. Catrett]{.underline}, 477 U.S. 317,
326 (1986) (summary judgment can be denied if the nonmoving party has
not had an opportunity to make full discovery).

The motion is also premature because the NCAA has not complied with
Local Rule 56.1, which requires a party moving for summary judgment to
submit a statement of material facts as to which there is no genuine
issue. The NCAA did not submit such a statement with its motion, and
therefore it is not entitled to summary judgment.

However, even based on the limited facts available, it is clear that
there are genuine issues of material fact regarding whether the NCAA
operates one or more places of public accommodation.

1\. The available evidence suggests that the NCAA \"operates\" stadiums
or other places or exhibition or entertainment, as well as auditoriums,
convention centers or other places of public gathering.

The NCAA controls, manages and administers athletic events held in
stadiums, auditoriums, convention centers and other places of
entertainment and public gathering. These athletic events range from
football \"bowl games\" to the NCAA basketball championship, from
women\'s gymnastics championships to men\'s swimming competitions. By
setting eligibility standards, the association regulates who can compete
in the stadiums, coliseums and other places of public gathering.

However, the NCAA controls more than just the people who are allowed to
compete. The NCAA carefully manages the stadiums, auditoriums,
convention centers, and other places of entertainment and public
gathering. For example, it controls which stadiums and coliseums will be
chosen for championship events. NCAA Executive Regulation 31.1.3.2,
1996-97 NCAA Manual at 490 (1996)(copies of all Executive Regulations
and Bylaws cited are attached as Exhibit C). The NCAA regulates the
ticket prices that the stadiums and coliseums may charge. NCAA Executive
Regulation 31.1.11. The NCAA controls the types of beverages the arenas
may sell. NCAA Executive Regulation 31.1.13 (prohibiting the sale of
alcohol). The NCAA controls the types of goods which vendors at the
coliseum may sell. NCAA Executive Regulation 31.6.2. It regulates the
profits which are earned from sales at concession stands. NCAA Executive
Regulation 31.4.2. The NCAA controls which members of the press will be
allowed to set up broadcast facilities at the stadiums. NCAA Executive
Regulation 31.6.4. On the most obvious level, the NCAA controls which
institutions are allowed to play in the stadiums and coliseums. NCAA
Executive Regulation 31.3.

NCAA Executive Regulation 31.1, \"*Administration* of NCAA
Championships,\" could be read, \"*Operation* of NCAA Championships.\"
The NCAA operates significant functions of these stadiums, coliseums,
and arenas for a limited, specific period of time. During the athletic
events sponsored by the NCAA, it exercises substantial control over the
operations of the stadiums, from its ticket windows to its concession
stands to its press passes.

> **2. The available evidence suggests that the NCAA \"operates\"
> gymnasiums or other places of exercise or recreation.**

The NCAA manages, administers and regulates the athletic training
facilities \-- gymnasiums and other places of exercise or recreation \--
used by member institutions. If Mr. Bowers is allowed to conduct
discovery, it is likely that he could produce evidence describing the
training facilities that large universities set aside for the use of
authorized athletes. [See]{.underline}, [e.g.]{.underline}, NCAA
Operating Bylaw 17.02.1.2(p)(permitting member institutions to reserve
their athletics facilities only for student-athletes). These training
facilities are likely to include weight rooms, practice fields, lap
pools, batting cages, exercise facilities with equipment to build
cardiovascular strength or recuperate from injuries, and facilities
where athletic trainers provide massage and other therapy.

The NCAA\'s controls over these athletic training facilities are
substantial. It regulates the conditions under which individuals who are
not enrolled in the school may use the facilities. NCAA Operating Bylaw
17.02.1.2(p). It directs that student-athletes can voluntarily choose to
work out in the gym or other place of exercise only under certain
conditions. NCAA Operating Bylaw 17.02.1.2(m). It regulates the
conditions under which members of the coaching staff can be in the
exercise facility while an athlete engages in a voluntary workout. NCAA
Operating Bylaw 17.02.1.2(q). It prohibits students from using tobacco
products while working out in the gym or other place of exercise. NCAA
Operating Bylaw 17.1.11. It regulates the number of days that
student-athletes are allowed to practice in the athletic facilities.
NCAA Operating Bylaws 17.02.13, 17.1.1 and 17.1.5. It regulates the
types of equipment that they may use while working out in the athletic
training facilities. NCAA Operating Bylaw 17.11.6. It controls the
conditions under which student-athletes may ask a coach for advice and
instruction on athletic training not conducted during the playing
season. NCAA Operating Bylaw 17.1.5.2.1. It establishes rules for the
types of \"conditioning activities\" which athletes can use. NCAA
Operating Bylaw 17.1.5.2.2.

The NCAA manages who can use the exercise facilities, how long they can
use those facilities, and what they can do while in the facilities.
Clearly, the evidence suggests that the NCAA \"operates\" the gymnasiums
or other places of exercise or recreation of its member institutions.

> **E. Relevant authorities support the conclusion that the NCAA is
> subject to title III.**

In [Butler v. National Collegiate Athletic Association]{.underline}, No.
C96-1656 (W.D. Wash., Nov. 8, 1996), a federal court held that a
University of Washington athlete with a learning disability who had been
declared academically ineligible had demonstrated "at least a reasonable
probability of ultimate success" on the argument that the NCAA is a
public accommodation under title III. The court entered a preliminary
injunction prohibiting the NCAA from declaring the student ineligible.
[Id.]{.underline} at 10. The court also denied the NCAA's motion to
dismiss, filed simultaneously with the motion for a preliminary
injunction. [Id.]{.underline} at 8-9.

In [Ganden v. National Collegiate Athletic Association]{.underline}, No.
96C-6953, 1996 WL 680000 (N.D. Ill., Nov. 21, 1996), the court agreed
with the reasoning in [Butler]{.underline} on title III's application to
the NCAA.[^9] The court held that Mr. Ganden's allegation that the NCAA
is closely affiliated with the athletic training facilities of its
member colleges was "a compelling argument." [Id.]{.underline} at \*10.
The court further held that "it is clear" that the NCAA controls more
than just gymnasiums and other training facilities; it also controls a
student's access to scholarships that would enable the student-athlete
to pay for a college education. [Id.]{.underline} The court also held
that it was "reasonably probable" that Mr. Ganden could establish that
the NCAA has a "significant degree of control" over athletic
competitions held in stadiums and other places of public gathering, as
well as over athletic training facilities, and therefore "operates"
places of public accommodation. [Id.]{.underline} at \*11.

[Butler]{.underline} and [Ganden]{.underline} are consistent with
[Dennin v. Connecticut Interscholastic Athletic Conf.]{.underline}, 913
F. Supp 663 (D. Conn. 1996), [vacated as moot]{.underline}, 94 F.3d 96
(2d Cir. 1996). In [Dennin]{.underline}, a student charged that the
state's athletic association, the Connecticut Interscholastic Athletic
Association (\"CIAC\"), violated the ADA when it declared him
ineligible.[^10] The court held that the CIAC had two major activities.
First, \"\[m\]ember schools delegate significant control and authority
to CIAC in regulating this athletic component of education.\"
[Id.]{.underline} at 670 Like the NCAA, the CIAC set rules for the types
of classes student-athletes should take, minimum grades they must
receive, and other facets of the student\'s academic life. Second,
\"CIAC sponsors athletic competitions and tournaments.\"
[Id.]{.underline} The sponsorship of competitions and tournaments
brought CIAC into a management role over coliseums where the events
arestaged. Therefore, the court held, \"By managing and controlling the
aforementioned, it 'operates' places of public accommodation, i.e., a
place of education, entertainment and/or recreation.\" [Id.]{.underline}
While the parallels between the CIAC and the NCAA are obvious, the role
of the NCAA is even more comprehensive than the state athletic
association. The holdings in [Butler]{.underline}, [Ganden]{.underline},
and [Dennin]{.underline} clearly suggest that, if discovery is allowed
to proceed, Mr. Bowers could develop sufficient facts to establish that
the NCAA is subject to title III.

Cases outside the context of athletic associations also support the
proposition that the NCAA operates places of public accommodation. In
[Howe v. Hull]{.underline}, 873 F.Supp. 72 (N.D. Ohio 1994), the court
held that a single physician \"operated\" a hospital. Although the
physician was not an employee of the hospital, as the on-call admitting
physician he had the authority and discretion to admit individuals
seeking medical attention. The physician in this case refused to admit
an individual infected with the HIV virus. The court held that the
physician operated the public accommodation because he was \"in a
position of authority\" to make decisions which are

allegedly discriminatory under title III. [Id.]{.underline} at 77.
[See]{.underline} [also]{.underline} [Aikins v. St. Helena
Hospital]{.underline}, 843 F. Supp. 1329 (N.D. Cal. 1994)(a physician
would operate a hospital if he had control over the provision of
services, although in this case the physician had no authority to
arrange a sign language interpreter for the spouse of a patient).[^11]
Similarly, the NCAA is in a position of authority over a number of
places of public accommodation \-- it is in a position of authority to
set the standards for admitting individuals into colleges and
universities, into gymnasiums and training facilities, and into stadiums
and coliseums.

> **F. Contrary authorities do not justify a motion to dismiss on the
> grounds that title III is inapplicable to the NCAA.**

In addition to the [Butler]{.underline} and [Ganden]{.underline} courts,
one other federal court has ruled on whether the NCAA is subject to
title III of the ADA. A federal court in Arizona denied a motion for a

preliminary injunction because the student could not establish a
likelihood of success on the merits of the argument that the NCAA is
covered by title III.[^12] [Johannesen v. National Collegiate Athletic
Association]{.underline}, No. Civ. 96-197 (D. Ariz., filed May 3,
1996)(a copy is attached as Exhibit D). The court held that, \"The
Johannesen's claims relate to access to facilities operated by \[Arizona
State University\], which is a public, not private entity.\"
[Id.]{.underline} at 7. The court relied on [Sandison v. Michigan High
School Athletic Association]{.underline}, 64 F.3d 1026 (6th Cir. 1995),
which held that a state association was not subject to title III because
the facilities where its member institutions played games were on public
school grounds and public parks.

[Johannesen]{.underline} and [Sandison]{.underline} should not be
applied in this case. First, neither opinion gave title III the broad
interpretation that sound principles of construction require. Second,
the courts in both cases did not focus on the correct entity. It is not
the place of public accommodation that is the focus; rather, the entity
that \"owns, leases (or leases to), or operates\" the place of public
accommodation is the focus. [Butler v. National Collegiate Athletic
Association]{.underline}, slip op. at 6. As the Department of Justice\'s
Technical Assistance Manual makes clear, activity at a publicly-owned
facility can be subject to title III if that facility is operated or
leased by a private entity. Title III Technical Assistance Manual at
7-8.[^13] The question is not where Mr. Bowers will participate in
football practices or play in football games, but whether the private
entity in operational control of the eligibility decision manages one or
more places of public accommodation. As the court in
[Dennin]{.underline} put it, \"\[t\]he fact that some of these
facilities might be

owned by a public entity, i.e., a public school, does not affect the
conclusion that CIAC 'operates' the facilities for purposes of athletic
competition.\" [Dennin v. Connecticut Interscholastic Athletic
Conf.]{.underline}, 913 F.Supp. at 670.[^14]

Third, the distinction raised in [Johannesen]{.underline} and
[Sandison]{.underline} is artificial. If title III does not apply solely
because the place where Mr. Johannesen would usually practice and play
is owned by a public school, title III would logically apply when Mr.
Johannesen sought to play when the university had a game with a private
school. Although most of the members of the league to which Arizona
State University belongs are public schools, at least two are private
entities: Stanford University and the University of Southern California.
The NCAA\'s decision to deny Mr. Johannesen eligibility therefore
prevented him from playing in stadiums that are owned by a variety of
entities, both public and private. The court\'s distinction is obviously
artificial; the NCAA applies the same allegedly discriminatory
eligibility rules at all member institutions, public and private, and in
a variety of stadiums, coliseums and arenas. As the court in [Butler v.
National Collegiate Athletic Association]{.underline} concluded,
"Congress could not have intended such an arbitrary result." [Butler v.
National Collegiate Athletic Association]{.underline}, slip op. at 6,
n.3.

In its motion to dismiss, the NCAA argues that several courts have held
that "membership organizations" do not fall under the definition of
"places of public accommodation" under the ADA and other civil rights
statutes. The NCAA failed to note that a number of courts have held the
opposite: organizations that do not have an office or physical structure
are covered by title III of the ADA. [See]{.underline},
[e.g.]{.underline}, [Carparts Distribution Center v. Automotive
Wholesaler\'s Association of New England]{.underline}, 37 F.3d 12, 18-20
(1st Cir. 1994); [Anderson v. Little League Baseball]{.underline}, 794
F. Supp. 342, 344 (D. Ar. 1992); [Shultz v. Hemet Youth Pony
League]{.underline}, No. 95-1650 (C.D. Cal., Aug. 22, 1996) (a copy is
attached as Exhibit E). [But]{.underline} [see]{.underline} [Parker v.
Metropolitan Life Ins. Co.]{.underline}, 121 F.3d 1006, 1013 (6th Cir.
1997) (rejecting the analysis in [Carparts]{.underline}).

The NCAA relies heavily on [Welsh v. Boy Scouts of America]{.underline},
993 F.2d 1267 (7th Cir. 1993), [cert. denied]{.underline}, 114 S.Ct. 602
(1993). [Welsh]{.underline}, and other cases discussing whether
\"membership organizations\" are public accommodations, are of limited
assistance to this Court. First, [Welsh]{.underline} is primarily
concerned with whether the Boy Scouts are a public accommodation under
title II of the 1964 Civil Rights Act, a statute with purposes and
legislative history that are completely distinct from the Americans with
Disabilities Act. Moreover, the primary issue in [Welsh]{.underline} is
whether a membership organization with no physical facility can be
characterized as a public accommodation. The Boy Scouts are a
neighborhood group whose leaders are parents donating a few hours of
free time on a week night. The meetings are held in the home of one of
the parents. While the NCAA is also a membership organization, the
nature of its work could hardly be more different than that of a Boy
Scout troop. The NCAA has extensive offices in Kansas, hundreds of
employees, and an annual budget in the tens of millions of dollars. The
NCAA is connected to a range of physical facilities: its offices, where
eligibility decisions are made; the facilities of member institutions,
where young people seek to study, train and compete; the facilities of
colleges and universities against whom the student-athletes compete; and
the facilities of commercial enterprises which operate stadiums, sell
NCAA-trademarked goods, and broadcast NCAA-controlled athletic events.
The court in [Ganden v. National Collegiate Athletic
Association]{.underline} held,

> The court questions whether [Welsh]{.underline} directly applies to
> Ganden's claim. . . . It is evident that the NCAA, in contrast to the
> Boy Scouts, has a connection to a number of public accommodations; the
> athletic facilities of its member institutions. [Welsh]{.underline}
> found that the Boy Scouts only conducted meetings of small groups of
> young boys, primarily in private homes. NCAA events occur in stadiums
> or arenas, open to the public, with a significant number of
> competitors, support staff and fans.

[Ganden v. National Collegiate Athletic Association]{.underline}, slip
op. at \*10 (citations omitted).

If anything, the membership organization cases support the argument that
the NCAA is a public accommodation. [Welsh]{.underline} in fact cites
eight cases holding that various membership organizations are public
accommodations. [Welsh v. Boy Scouts of America]{.underline}, 993 F.2d
at 1272. According to [Welsh]{.underline}, membership organizations have
been found to be public accommodations under two circumstances. First, a
membership organization with a connection to facilities is a public
accommodation:

> In each of these \[eight\] cases, Title II \[of the 1964 Civil Rights
> Act\] was found applicable because the organization conducted public
> meetings in public facilities or operated *facilities* open to the
> public like swimming pools, gyms, sports fields and golf courses. In
> contrast, the trial court in the case before us found that the typical
> Boy Scout gathering involves five to eight young boys engaging in
> supervised interpersonal interaction in a private home.

[Id.]{.underline} In contrast to the Boy Scouts, the NCAA establishes
rules governing the operation of facilities for athletes who train and
compete \-- facilities such as swimming pools, gyms, sports fields and
golf courses. The court in [Butler v. National Collegiate Athletic
Association]{.underline} held,

> However, both \[[Welsh]{.underline} and [Stoutenborough v. National
> Football League, Inc.]{.underline}, 59 F.3d 580 (6th Cir. 1995),
> [cert.]{.underline} [denied]{.underline}, 116 S.Ct. 674 (1995)\] dealt
> with member organizations as organizations, not as the operators of
> facilities that might, in turn, be considered places of public
> accommodation. . . . In the instant case, Plaintiff alleges that the
> NCAA does operate facilities open to the public, facilities that are
> listed in the ADA as places of public accommodation.

[Butler v. National Collegiate Athletic Association]{.underline}, slip
op. at 7.

According to [Welsh]{.underline}, the second circumstance under which
membership organizations are found to be public accommodations are
\"when the organization functions as a 'ticket' to admission to a
facility or location.\" [Welsh v. Boy Scouts of America]{.underline},
993 F.2d at 1272. [See]{.underline} [also]{.underline} [Elitt v. U.S.A.
Hockey]{.underline}, 922 F.Supp. 217, 223 (E.D.Mo. 1996). In other
words, when the organization serves as a gatekeeper, controlling who can
use facilities, the organization is often found to be a public
accommodation. The NCAA serves precisely this gatekeeper function,
setting eligibility rules for students who wish to participate in
athletic competitions. The court in [Butler v. National Collegiate
Athletic Association]{.underline} concluded, "Thus, if anything,
Defendant's authorities work against its position." [Butler v. National
Collegiate Athletic Association]{.underline}, slip op. at 7.

III\. Mr. Bowers should be given the opportunity to develop evidence
that the National Collegiate Athletic Association discriminates against
student-athletes with learning disabilities in violation of title III of
the ADA.

In its motion to dismiss, the NCAA argues that it did not discriminate
against Mr. Bowers when it refused to certify several of his classes as
"core courses," and therefore determined that he did not meet the
initial-eligibility requirements. Memorandum of Law in Support of
Defendant NCAA's Motion to Dismiss or, in the Alternative, For Summary
Judgment, [Bowers v. National Collegiate Athletic
Association]{.underline}, No. 97-2600 at 13 - 15 (filed September 29,
1997). Moreover, the NCAA argues that it does not discriminate against
any student with learning disabilities because its Bylaws provide a fair
opportunity for these students to meet the initial-eligibility
requirements, and because its waiver process provides students with
learning disabilities individualized assessments of their academic
records. [Id.]{.underline} At 15. However, if the allegations in the
Complaint are accepted as true, the motion to dismiss should be denied.
If evidence outside the Complaint is considered, the limited facts
currently available to Mr. Bowers and the United States demonstrate that
there are genuine issues of material fact regarding whether the NCAA's
policies and procedures discriminate against students with learning
disabilities in general and Mr. Bowers in particular.

> **A. The NCAA's initial-eligibility process.**

The NCAA requires that students who wish to participate in college
athletics must complete 13 "core courses," including classes in English,
mathematics, natural or physical science, and several other categories.
NCAA Bylaw 14.3.1.1. In addition, students must have a grade point
average and standardized test score that corresponds to the NCAA's
"Initial-Eligibility Index." NCAA Bylaw 14.3.1.1.1. The NCAA
Initial-Eligibility Clearinghouse is responsible for determining whether
a student meets these academic requirements. NCAA Bylaw 14.3.1.

Because the course of study for students with learning disabilities is
sometimes different from the typical curriculum, the NCAA Bylaws include
a rule titled, "Courses for the Learning Disabled and Handicapped:"

The NCAA Academic Requirements Committee may approve the use of
high-school courses for the learning disabled and handicapped to fulfill
the core-curriculum requirements if the 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. The learning-disabled
or handicapped student still must complete the required core courses and
achieve the minimum grade-point average in this core curriculum.

NCAA Bylaw 14.3.1.3.4. If a high school seeks to have a class designed
specifically for students with learning disabilities certified as a
"core course," the NCAA requires that the high school first identify an
equivalent course taught to students without disabilities. If the high
school can identify a parallel course, it must then certify that the
same quantity of material is covered in both classes, and that the
quality of the two courses is identical (that the courses use the same
textbooks and cover the same material). See NCAA Initial-Eligibility
Clearinghouse Worksheet (a copy is attached as Exhibit F).

The NCAA's regulations, however, contain an additional restriction
relating to classes designed for students with learning disabilities:

> Courses that are taught at a level below the high school's regular
> academic instructional level (e.g., remedial, special education or
> compensatory) shall not be considered core courses *regardless of
> course content*.

NCAA Bylaw 14.3.1.3 (emphasis added).

Students who fail the initial-eligibility standards may apply for a
waiver of the requirements. The application is reviewed by the NCAA
staff and then forwarded to a committee for consideration. [Bowers v.
National Collegiate Athletic Association]{.underline}, slip op. at 17.

> **B. Statutory provisions implicated by the NCAA's policies and
> procedures.**

In his Complaint, Mr. Bowers alleges that the NCAA's policies and
procedures violate at least two provisions of title III of the ADA.
First, he alleges that the NCAA imposes eligibility criteria that screen
out or tend to screen out individuals with disabilities from fully and
equally enjoying the goods, services, facilities, privileges,
advantages, or accommodations offered by the NCAA. 42 U.S.C. §
12182(b)(2)(A)(i). [See]{.underline}, [e.g.]{.underline}, Complaint, ¶
159. The Preamble to the implementing regulations provides, \"In
addition, §36.301 prohibits the imposition of criteria that \'tend to\'
screen out an individual with a disability. This concept, which is
derived from current regulations under section 504 (see, e.g., 45 C.F.R.
84.13), makes it discriminatory to impose policies or criteria that,
while not creating a direct bar to individuals with disabilities,
indirectly prevent or limit their ability to participate.\" Under the
statute, Mr. Bowers must also prove that the eligibility criteria
imposed by the NCAA are not necessary for the provision of the goods,
services, facilities, privileges, advantages, or accommodations it
offers.

Mr. Bowers also alleges that modifications in several NCAA policies are
necessary in order for students with learning disabilities to be
afforded the goods, services, facilities, privileges, advantages, or
accommodations offered by the NCAA. 42 U.S.C. § 12182(b) (2) (A)(ii).
[See]{.underline}, [e.g.]{.underline}, Complaint ¶ 161. To successfully
establish a violation under this provision, Mr. Bowers must prove that
reasonable modifications are available, and that these modifications
would not fundamentally alter the nature of the NCAA's
initial-eligibility program.

C. The factual allegations in the Complaint, if accepted as true,
support the claim that the NCAA's policies and procedures discriminate
against students with learning disabilities in violation of the ADA.

> **1. The factual allegations related to the NCAA's initial-eligibility
> requirements are sufficient to survive a motion to dismiss.**

Mr. Bowers' Complaint contains the following factual allegations
concerning the

NCAA's determination that he did not meet the initial-eligibility
requirements:

> ¶ 3: Bowers was awarded a high school diploma from the Palmyra High
> School, a public school certified by the New Jersey Department of
> Education\.... Bowers also attained above the minimum grade point
> average required for "core courses" and exceeded the minimum test
> score on the Scholastic Aptitude Test as imposed by the NCAA.
>
> ¶ 4: Most of Bowers' high school academic courses were identified as
> "SE" (special education), and he was administered a non-standard, but
> professionally recognized, Scholastic Achievement Test (SAT).
> Defendants NCAA, ACT and NCAA Clearinghouse refused to credit any of
> Bowers' "SE" classes as "core courses" in spite of the high school's
> assurances to ACT's Initial-Eligibility Clearinghouse that these
> courses were quantitatively and qualitatively the same as courses
> taken by students who were not classified as having learning
> disabilities.
>
> ¶ 96: Plaintiff's high school transcript shows that from 9^th^ through
> 12^th^ grade, school years 1992-92 through 1995-96, his academic
> courses were primarily "SE" classes. Indeed, through high-school,
> plaintiff had only 3 academic courses which were non-"SE" classes.
>
> ¶ 101: Plaintiff graduated from Palmyra high school on June 17, 1996
> with a grade point average of 2.613 and ranked 52^nd^ among a class of
> 90 students. He took the SAT first in May 1995 and again in November
> 1995 and received composite scores of 790 and 840 respectively.
> Plaintiff received 145 high school credits, which, at a minimum,
> included 4 units of English, 3 units of Math, 2 units of Science, 3
> units of Social Science and 1 unit of Spanish. Nonetheless, the
> Clearinghouse did not certify him because, it claimed, he did not meet
> the "core course" requirement\[.\]
>
> ¶ 127: In an April 25, 1996 letter to the Clearinghouse, Palmyra high
> school principal stated that "\[s\]tudents in SE classes are expected
> to acquire the same knowledge, both quantitatively and qualitatively,
> as students in comparable course(s). The same grading standards are
> employed in such classes as those utilized in this (these) course(s)."
>
> ¶ 132: From in or about January 1996 through June 7, 1996, the staff
> of Palmyra high school sent ACT's Clearinghouse information about all
> of Plaintiff's courses included Table of Contents and course
> descriptions, proficiencies, outlines and objectives. Further, the
> staff explained that underNew Jersey Law, students with disabilities
> must attain the same competencies as all students in order to
> graduate.
>
> ¶ 159: Defendants NCAA, ACT and Clearinghouse imposed eligibility
> requirements on Plaintiff that screen out or tend to screen out
> individuals with disabilities who are otherwise qualified and excludes
> them from the advantages of places of public accommodation solely on
> the basis of his disability and without reasonable accommodations.
>
> ¶ 160: Defendants NCAA, Act and Clearinghouse failed to give "core
> course" credit for courses that Plaintiff took consistent with his IEP
> team's recommendations and unreasonably credited only three of
> Plaintiff's high school courses in spite of the assurances by the
> Palmyra high school's administration and faculty to the Clearinghouse
> that Plaintiff's courses were qualitatively and quantitatively
> equivalent to those taken by students who did not have learning
> disabilities.
>
> ¶ 162: Defendants have failed to ensure that student athlete prospects
> with disabilities are not excluded or denied accommodations,
> unnecessarily segregated or otherwise treated differently than other
> individuals in setting initial eligibility requirements and in their
> administration and implementation of the eligibility requirements.
>
> ¶ 163: Defendants have violated the requirements of the ADA in,
> [inter]{.underline} [alia]{.underline}, the following ways:
>
> \(a\) Setting initial eligibility requirements which discriminate
> against students with learning disabilities.
>
> \(b\) Failing to consider the effects of the NCAA constitution and
> operating and administrative bylaws on students with disabilities who
> are otherwise eligible to participate fully in the programs of the
> member institutions.
>
> \(c\) Failing to modify the initial eligibility criteria to
> accommodate the needs of students with disabilities who would be
> otherwise eligible to participate in programs of the member
> institutions.
>
> \(d\) Failing to ensure that they have adequate and professionally
> trained staff who could apply the "reasonable accommodations"
> provisions of the ADA to assess the scholastic eligibility
> requirements of applicants with disabilities.
>
> \(e\) Failing to provide any professional review of the eligibility
> criteria as applied to students with disabilities.
>
> \(f\) Failing to take into consideration the resources and services
> which individual member institutions make available to students with
> learning disabilities.
>
> \(g\) Administering eligibility standards so as to impose an undue
> burden on Plaintiff and other learning disabled students which screen
> out these persons from eligibility status.

These allegations, if proven and combined with supporting legal
theories, would present a compelling case that the NCAA violated title
III of the ADA when it declared Mr. Bowers ineligible. First, Mr. Bowers
alleges that he met all NCAA academic standards except for the "core
course" requirement: that he graduated from high school, that he had an
acceptable grade point average, and that he achieved an acceptable
standardized test score. Second, Mr. Bowers alleges that he should have
met the "core course" requirement because he took at least 13 courses in
the subject areas prescribed by the NCAA. Third, Mr. Bowers alleges that
his classes were rejected because they were taken within the school's
"special education" department. He alleges that the Clearinghouse
followed the NCAA's regulations and rejected those classes without
regard for the content of each course. Fourth, Mr. Bowers alleges that
school officials provided the NCAA with sufficient documentation to
demonstrate that the disputed classes were substantive and meaningful
academic offerings.

If these facts can be established, the evidence would demonstrate that
the NCAA imposed eligibility criteria that screen out individuals with
disabilities. Mr. Bowers would be able to argue that the classes he took
met the NCAA's formula: that each class was a parallel of a class
offered to students without disabilities, and that the two classes
covered the same quantity and quality of material. In the alternative,
he could argue that even if the classes did not meet the NCAA's
mechanical formula, the classes provided him with the same knowledge and
skills that other college-bound students receive in their curriculum.
[See]{.underline} [Ganden v. National Collegiate Athletic
Association]{.underline}, 1996 WL at \*15 ("\[T\]itle III may require
the NCAA to count courses as 'core' even if they are not substantively
identical to approved 'core courses\[.\]'"). Therefore, he would be able
to prove that the current NCAA policies and practices are not necessary
to the initial-eligibility program because the classes he took, while
perhaps not meeting the NCAA's formula, did prepare him to succeed
academically in college.

Moreover, if these facts can be established, Mr. Bowers can show that
modifications to the rules were necessary for him to enjoy a service
offered by the NCAA, specifically a determination of academic
eligibility. Mr. Bowers would also be able to prove that reasonable
modifications to the NCAA's current policies are available --- classes
designed for students with learning disabilities could be certified if
they provide the same knowledge and skills that other college-bound
students receive in their curriculum. Finally, Mr. Bowers would be able
to prove that these modifications would not fundamentally alter the
purpose of the initial-eligibility program because his curriculum gave
him the knowledge and skills necessary to succeed academically in
college while also participating in athletics.

If the Court looks only at the factual allegations contained in the
Complaint, the motion to dismiss should be denied because the Complaint
pleads a set of facts that could justify a court granting Mr. Bowers
relief.

> **2. The factual allegations related to the NCAA's waiver process are
> sufficient to survive a motion to dismiss.**

Mr. Bowers' Complaint contains the following factual allegations
concerning the sufficiency of the waiver process:

> ¶ 31: At all times relevant to this action, Defendant NCAA knew or
> should have known that its "waiver" procedures were inaccessible to
> and failed to ensure that students with learning disabilities were
> afforded due process and equal treatment.
>
> ¶ 61: After reviewing plaintiff's transcript and noting that plaintiff
> was a student with a learning disability who had taken "SE" courses
> primarily, Temple's recruiter for the football program determined that
> the NCAA Clearinghouse would not grant Michael Bowers the necessary
> "qualifier" status; consequently, Temple did not pursue him for its
> football program and/or an athletic scholarship.
>
> ¶ 62: Although they were aware that Michael Bowers was a
> "non-qualifier," Temple never offered to apply and never applied for a
> waiver for Michael Bowers; nor, did it inform Plaintiff that a waiver
> process existed for students with learning disabilities.
>
> ¶ 74: Because Michael Bowers never received his "qualifier" status
> from Defendant NCAA Clearinghouse, the staff of Iowa's football
> program stopped calling and discontinued expressing any interest in
> his joining the school's football program.
>
> ¶ 75: Iowa never offered to apply and never applied for a waiver for
> Michael Bowers; nor, did it inform Plaintiff that a waiver process
> existed for students with learning disabilities.
>
> ¶ 84: Because Michael Bowers never received his "qualifier" status
> from Defendant NCAA Clearinghouse, American staff stopped calling and
> discontinued expressing any interest in his joining the school's
> football program.
>
> ¶ 85: American never offered to apply and never applied for a waiver
> for Michael Bowers; nor, did it inform Plaintiff that a waiver process
> existed for students with learning disabilities.
>
> ¶ 133: On July 30, 1996, the NCAA through its Clearinghouse sent
> Plaintiff his final certification informing him that he was a
> "non-qualifier" and not eligible to compete in Division I or II
> athletic competition.
>
> ¶ 140: Plaintiff was accepted to Temple for the school year beginning
> in September 1996. Because he was not accepted until two weeks into
> the first semester, Plaintiff made the decision to wait until the
> Spring semester to enroll.

These factual allegations, if proven and combined with supporting legal
theories, would present a compelling case that the ADA requires the NCAA
to modify its waiver procedures. First, Mr. Bowers alleges that the
waiver hearing would have come too late in the recruiting process; by
the time the NCAA Clearinghouse had issued a determination of his
eligibility, enabling him to file an application for a waiver, many
colleges had already stopped recruiting him. Second, he alleges that the
final certification report came so late that a waiver application was
not feasible; the football training season was already beginning.
Indeed, he alleges that the ineligibility decision came so late that he
was not able to enroll in college until the middle of September, leading
him to decide to wait to begin classes until the spring semester.
Finally, he alleges that he was never informed that there was a waiver
process; since he did not know of the option, he could not file the
application. If these facts can be established, the waiver program would
not constitute an adequate policy modification under title III of the
ADA.

If the Court looks only at the factual allegations contained in the
Complaint, the motion to dismiss should be denied because the Complaint
pleads a set of facts that could justify a court granting Mr. Bowers
relief.

D. The limited facts available suggest that there are genuine issues of
material fact regarding whether the NCAA's policies and procedures
discriminate against students with learning disabilities in general and
Mr. Bowers in particular.

The NCAA asks the Court to consider not only the factual allegations in
the Complaint, but also the testimony and documents already in the
record. At this early stage of the proceedings, where there has been no
discovery, there is a limited amount of evidence to supplement the
factual allegations in the Complaint. The motion for summary judgment is
premature because no discovery has been conducted and because the NCAA
has not complied with Local Rule 56.1. [See]{.underline} discussion
[supra]{.underline} Part II.D.

Moreover, summary judgment is not warranted because the NCAA's motion
does not have an adequate factual foundation. In its arguments relating
to the ADA, the NCAA relies primarily on the Court's opinion regarding
the motion for a preliminary injunction. However, the standards of proof
applicable to the motion for summary judgment are substantially
different from the standards of proof in effect when the court ruled on
Mr. Bowers' motion for a preliminary injunction. The Seventh Circuit has
held, "A court must be cautious in adopting findings and conclusions
from the preliminary injunction stage in ruling on a motion for summary
judgment." [Communications Maintenance v. Motorola]{.underline}, 761
F.2d 1202, 1205 (7th Cir. 1985). The court cautioned that findings of
fact and conclusions of law developed from evidence presented at the
preliminary injunction hearing "are often based on incomplete evidence
and a relatively hurried consideration of the issues." [Id.]{.underline}
at 1205. In addition, the question to be answered by a motion for a
preliminary injunction is completely different from the question to be
answered by a motion for summary judgment:

> In the former a court considers whether there is *a reasonable
> likelihood* that the *moving party* will prevail on the merits; in the
> latter a court considers whether there is any *issue of material fact*
> remaining after construing the facts in a *lightmost favorable* to the
> *non-moving party*.

[Id.]{.underline} [See]{.underline} [also]{.underline} [University of
Texas v. Camenisch]{.underline}, 451 U.S. 390 (1980)(describing the
differences between proceedings seeking a preliminary injunction as
contrasted with a hearing on the merits).

The Seventh Circuit held in another case that there is no inconsistency
in denying a motion for a preliminary injunction, and then later denying
a motion for summary judgment filed by the defendant. [Technical Pub.
Co. v. Lebhar-Friedman]{.underline}, 729 F.2d 1136, 1139 (7th Cir.
1984).

Even though the Court denied Mr. Bowers' motion for a preliminary
injunction, it would be inappropriate to foreclose the possibility that
through discovery he could develop additional facts that would support
his claim. Mr. Bowers should be allowed to conduct further discovery
regarding the factual issues presented during the hearing on the
preliminary injunction, as well as on factual issues that are consistent
with the pleadings in his Complaint but were not introduced at the
hearing on the preliminary injunction. Only after the facts have been
fully developed is a judgment on the merits appropriate. As the Second
Circuit held:

It would therefore be anomalous at least in most cases, and here, to
regard the initial ruling as foreclosing the subsequent, more thorough
consideration of the merits that the preliminary injunction expressly
envisions.

[Goodheart Clothing Company v. Laura Goodman Enterprises]{.underline},
962 F.2d 268, 174 (2d Cir. 1992).

Summary judgment is also not warranted because there are many material
issues of fact about which there are genuine disputes. For example, the
parties cannot agree about the contents of the "special education"
classes taken by Mr. Bowers. If discovery is allowed to proceed, Mr.
Bowers would be able to develop further evidence from teachers and
school officials about the content of these courses; about the knowledge
and skills taught to students who take these courses; and, whether the
NCAA could certify courses such as these without compromising its
initial-eligibility program. These are only a few of perhaps a dozen or
more material facts about which there are genuine disputes.

# CONCLUSION

The United States respectfully requests that the Court not foreclose the
possibility that Mr. Bowers could develop sufficient evidence to
establish that the NCAA is subject to title III of the ADA and that its
policies toward students with learning disabilities violate title III of
the ADA.

Respectfully submitted,

FAITH S. HOCHBERG ISABELLE KATZ PINZLER

United States Attorney Acting Assistant Attorney General

District of New Jersey Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

LOUIS J. BIZZARRI JOHN L. WODATCH

Assistant U.S. Attorney L. IRENE BOWEN

United States Attorney\'s Office PHILIP L. BREEN

District of New Jersey DANIEL W. SUTHERLAND

4th & Cooper Street, Room 2070 Attorneys

P.O. Box 1427 Disability Rights Section

Camden, New Jersey 08101 Civil Rights Division

(609)757-5412 U.S. Department of Justice

LB-3903 P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

DS-6223

November 4, 1997

**CERTIFICATE OF SERVICE**

I certify that the United States\' Memorandum of Law as Amicus Curiae
was served on the following attorneys by the methods indicated on
November 4, 1997.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Daniel W. Sutherland

Barbara E. Ransom

Public Interest Law Center of Philadelphia

125 South Ninth Street, Suite 700

Philadelphia, Pennsylvania 19107

(by overnight mail)

Richard L. Bazelon

Sagemore Corporate Center

Suite 8303

8000 Sagemore Drive

Marlton, New Jersey 08053

(by regular mail)

Penelope A. Boyd

Atrium Executive Center

3000 Atrium Way, Suite 292

Mount Laurel, New Jersey 08054-3911

(by regular mail)

Counsel for Michael Bowers

J. Freedley Hunsicker, Jr.

Drinker, Biddle & Reath

Philadelphia National Bank Building

1345 Chestnut Street

Philadelphia, Pennsylvania 19107

(by overnight mail)

Counsel for National Collegiate Athletic Association

Robert A. Burgoyne

Fulbright & Jaworski

Market Square

801 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2604

(by regular mail)

Counsel for ACT, Inc.

Nicholas M. Kouletsis

Pepper, Hamilton & Sheetz

457 Haddonfield Road

Liberty View Building, Suite 500

Cherry Hill, New Jersey 08002

(by regular mail)

Counsel for Act, Inc.

Andrew Ives

120 Jessup Hall

University of Iowa

(by regular mail)

Counsel for University of Iowa

George Moore

University Counsel

Temple University

400 Connell Hall

Philadelphia, Pennsylvania 19122

(by regular mail)

Counsel for Temple University

Robert L. Leonard

Doherty, Wallace, Pillsbury and Murphy

One Monarch Place, 19th Floor

1414 Main Street

Springfield, Massachusetts 01144

(by regular mail)

Counsel for American International College

[^1]: ^?^ Another defendant, ACT, Inc., filed a similar motion to
    dismiss. This Memorandum does not address the issues raised by ACT.
    As the Court is aware, the United States has been investigating
    complaints alleging that the NCAA's initial-eligibility requirements
    violate title III of the ADA. The United States' investigation has
    been limited to the policies and procedures of the NCAA, and not to
    the other entities which are defendants in this case.

[^2]: ^?^ This Memorandum does not address the NCAA's arguments
    regarding the Rehabilitation Act, the New Jersey Law Against
    Discrimination, or the antitrust laws.

[^3]: ^?^ The Complaint referred to in this Memorandum is the
    Plaintiff's First Amended Complaint, filed September 8, 1997.

[^4]: ^?^ According to Local Rule 56.1, the moving party must submit a
    statement that sets forth material facts as to which there is no
    genuine issue. The NCAA did not submit such a statement; this
    failure alone is grounds for denial of its motion for summary
    judgment. [See]{.underline} discussion [infra]{.underline} Parts
    II.D and III.D.

[^5]: ^?^ Congress explicitly delegated to the Department of Justice the
    authority to promulgate regulations under title III. 42 U.S.C. §
    12186. Accordingly, the Department\'s regulations are entitled to
    substantial deference. [Butler v. National Collegiate Athletic
    Association]{.underline}, slip op. at 8. [See]{.underline}
    [also]{.underline} [Thomas Jefferson Univ. v. Shalala]{.underline},
    114 S. Ct. 2381, 2386 (1994)(Secretary of Health and Human
    Services\' regulation interpreting statutory language on
    reimbursable medical education expenses must be given controlling
    weight unless plainly erroneous); [Chevron U.S.A., Inc. v. Natural
    Resources Defense Council, Inc.]{.underline}, 467 U.S. 837, 844
    (1984) (where Congress expressly delegates authority to an agency to
    issue legislative regulations, the regulations \"are given
    controlling weight unless they are arbitrary, capricious, or
    manifestly contrary to the statute\"); [Petersen v. University of
    Wisc. Bd. of Regents]{.underline}, 818 F.Supp. 1276, 1279 (W.D. Wis.
    1993)(applying Chevron to give controlling weight to the
    Department's interpretations of title II of the ADA); [Fiedler v.
    American Multi-Cinema, Inc.]{.underline}, 871 F.Supp. 35, 39 (D.D.C.
    1994)(the Department, as author of the title III regulation, is the
    principle arbiter of its meaning, and Department interpretations are
    given substantial deference). The preamble or commentary
    accompanying a regulation is entitled to deference since both are
    part of a department\'s official interpretation of legislation.
    [Stinson v. United States]{.underline}, 508 U.S. 36, 45 (1993),
    quoting [Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S.
    410, 414 (1945)(an agency\'s interpretation of its own regulations
    must be given controlling weight, unless the interpretation violates
    the Constitution or a federal statute, or is plainly erroneous).

[^6]: ^?^ Dictionaries define \"operate\" in its transitive form as
    \"\[t\]o control or direct the functioning of.\" [Webster\'s II: New
    Riverside University Dictionary]{.underline} (1988), p. 823 (core
    meaning). [See]{.underline} [also]{.underline} [7 The Oxford English
    Dictionary]{.underline}, p. 144 (1933) (\"\[t\]o direct the working
    of; to manage, conduct, work (a railway, business, etc.\")); [2 New
    Shorter Oxford English Dictionary]{.underline}, p. 2005 (1993)
    (\"\[m\]anage, direct the operation of (a business, enterprise,
    etc.\")).

[^7]: ^?^ More than one entity can \"own, lease (or, lease to) or
    operate\" a facility at one time. If a state or local government
    owns a facility, but a private entity operates within it, title II
    of the ADA applies to discriminatory actions by the governmental
    entity and title III applies to discriminatory actions by the
    private entity. The Technical Assistance Manual reads, \"Public
    entities, by definition, can never be subject to title III of the
    ADA, which covers only private entities. Conversely, private
    entities cannot be covered by title II. There are many situations,
    however, in which public entities stand in very close relation to
    private entities that are covered by title III, with the result that
    certain activities may be affected, at least indirectly, by both
    titles.\" Title III Technical Assistance Manual at 7. Interpretive
    documents such as the Department of Justice's Technical Assistance
    Manual are entitled to deference. [See]{.underline} [Reno v.
    Koray]{.underline}, 115 S. Ct. 2021, 2027 (1995)(Bureau of Prisons
    internal agency guideline is entitled to deference); [Wagner Seed
    Co., Inc. v. Bush]{.underline}, 946 F.2d 918, 922 (D.C. Cir. 1991),
    [cert. denied]{.underline}, 503 U.S. 970 (1992)(holding that
    interpretive statements receive [Chevron]{.underline} deference even
    if they do not arise out of rulemaking, and deferring to position
    taken by EPA in a \"decision letter\"). Many courts have deferred to
    the Department\'s Technical Assistance Manuals for both titles II
    and III of the ADA. [See]{.underline}, [e.g.]{.underline}, [Fiedler
    v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. at 36 n.4;
    [Ferguson v. City of Phoenix]{.underline}, 931 F. Supp. 688, 694 (D.
    Ariz. 1996). [Cf.]{.underline} [Pinnock v. International House of
    Pancakes]{.underline}, 844 F. Supp. 574 (S.D. Cal. 1993) (rejecting
    a constitutional challenge to title III of the ADA as void for
    vagueness in part by considering clarification of statute found in
    administrative regulations and the title III TA Manual).

[^8]: ^?^ The Manual provides four fact patterns to illustrate the
    point, including these two hypothetical cases: \"The City of W owns
    a downtown office building occupied by W\'s Department of Human
    Resources. The first floor is leased as a commercial space to a
    restaurant, a newsstand, and a travel agency. The City of W, as a
    public entity, is subject to title II in its role as landlord of the
    office building. As a public entity, it cannot be subject to title
    III, even though its tenants are public accommodations that are
    covered by title III\.... The City of W engages in a joint venture
    with T Corporation to build a new professional football stadium. The
    new stadium would have to be built in compliance with the
    accessibility guidelines of both titles II and III. In cases where
    the standards differ, the stadium would have to meet the standard
    that provides the highest degree of access to individuals with
    disabilities." Technical Assistance Manual at 7, 8.

[^9]: ^?^ The court denied Mr. Ganden's motion for a preliminary
    injunction. The court held that NCAA eligibility criteria must be
    modified for students with learning disabilities, but the
    modifications Mr. Ganden suggested would fundamentally alter the
    nature of the NCAA's initial-eligibility standards. [Ganden v.
    National Collegiate Athletic Association]{.underline}, 1996 WL
    680000 at \*15.

[^10]: ^?^ The Second Circuit Court of Appeals did not reject the lower
    court\'s reasoning in [Dennin]{.underline}. The Court of Appeals
    simply held that there was no longer a ripe controversy because the
    student had already completed the athletic season. The Court of
    Appeals, quoting other courts, explained, "Where it appears upon
    appeal that the controversy has become entirely moot, it is the
    *duty* of the appellate court to set aside the decree below and to
    remand the cause with directions to dismiss." [Dennin]{.underline},
    94 F.3d at 101 (citations omitted).

[^11]: ^?^ The NCAA relies on [Neff v. American Dairy Queen
    Corp.]{.underline}, 58 F.3d 1063 (5th Cir. 1995),
    [cert.]{.underline} [denied]{.underline}, 116 S.Ct. 704 (1996) and
    [Cortez v. National Basketball Association,]{.underline} 960 F.Supp.
    113 (W.D. Tex. 1997) for its argument that the NCAA does not
    "operate" athletic facilities or stadiums. The United States'
    position is that [Neff]{.underline} was wrongly decided because the
    court too narrowly construed what it means to operate a place of
    public accommodation and therefore adopted a reading of the statute
    that cannot be reconciled with the statutory language. The court's
    reasoning is also contrary to the majority of the case law on this
    issue. Moreover, [Neff]{.underline} is clearly inapplicable since it
    is a decision regarding whether a company is responsible under the
    ADA for the actions taken by another company to which it has granted
    a franchise. The franchisor-franchisee relationship is substantially
    different than the relationship between the NCAA and its member
    colleges and the NCAA and the stadiums where athletic competitions
    are held. [Cortez]{.underline} also depends on an analysis of the
    franchisor-franchisee relationship. Moreover, the relationship
    between the NCAA and its member colleges is entirely different from
    the NBA's relationship with professional sports franchises. The
    NCAA's role in collegiate sports is much more extensive because it
    is concerned not only with the quality of the sporting event, but
    also with the integrity of college athletics, preserving both
    amateurism (leading to hundreds of regulations on benefits that can
    be provided to student-athletes) and academics (leading to hundreds
    of regulations on academic standards that studentsmust meet to
    participate in athletics). The NBA is concerned with neither of
    these factors and therefore its regulation of its franchisees is
    much less extensive.

[^12]: ^?^ The court did not dismiss the complaint, as the NCAA is
    asking this Court to do.

[^13]: ^?^ [See]{.underline} discussion [supra]{.underline} Part II.B.

[^14]: ^?^ [Brown v. 1995 Tenet Paraamerica Bicycle
    Challenge]{.underline}, 959 F.Supp. 496 (N.D.Ill. 1997), cited in
    the NCAA's motion to dismiss, relied on [Sandison]{.underline} and
    is therefore of limited usefulness to this Court. Even if that court
    had focused on the proper entity, the association that organized the
    cross country road race had no control or management over the public
    highways where the participants were riding their bicycles. It did
    not regulate the size of the roads, the surface used in making the
    roads, or any of the details in how the roads were designed. There
    was no close connection between the association and a place of
    public accommodation.