IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KATHLEEN BOWERS,

Plaintiff,

v.

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION,

Defendant.

HON. JEROME B. SIMANDLE

Civil Action 

No. 97-2600 (JBS)

OPINION

APPEARANCES:

Jennifer R. Clarke, Esq.

Barbara E. Ransom, Esq.

PUBLIC INTEREST LAW CENTER OF PHILADELPHIA

125 South Ninth Street, Suite 700

Philadelphia, PA 19107

and

Richard L. Bazelon, Esq.

A. Richard Feldman, Esq.

Noah H. Charlson, Esq.

BAZELON, LESS & FELDMAN, P.C.

1515 Market Street 

Suite 700 

Philadelphia, PA 19102-1907 

Attorneys for Plaintiff

J. Freedley Hunsicker, Jr., Esq.

Daniel H. Aiken, Esq. 

Kathryn Elizabeth Bisordi, Esq.

DRINKER, BIDDLE & REATH, LLP

One Logan Square

18th and Cherry Streets

Philadelphia, PA 19103-6996

Attorneys for Defendant National Collegiate Athletic

Association

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TABLE OF CONTENTS

I. INTRODUCTION..............................................2

II. BACKGROUND................................................4

A. Michael Bowers.......................................4

B. Procedural History...................................6

III. DISCUSSION...............................................10

A. Threshold Considerations of the Law of the Case.....10

1. The NCAA Bylaws and Judge Orlofsky’s Ruling....11

2. Analysis.......................................13

B. Plaintiff’s Motion to Preclude “Reasonable

Modification” and “Waiver Proceeding” Defenses......22

1. Reasonable Modification Defense................24

2. NCAA’s Eligibility Waiver......................28

a. Eligibility Waiver as a Reasonable

Accommodation.............................30

b. The 1997 Waiver Review of Bowers’ 

Credentials...............................32

C. Plaintiff’s Motion to Exclude After-Acquired 

Evidence............................................38

1. The After-Acquired Evidence Doctrine...........39

2. The Parties’ Arguments.........................41

3. Analysis.......................................45

D. Plaintiff’s Motion to Preclude the NCAA from 

Contesting that Bowers was Disabled.................47

E. NCAA’s Motion to Exclude Evidence of the 1998 

Consent Decree and Other Subsequent Bylaw Changes...55

1. The Bylaws and the 1998 Consent Decree.........55

2. Admissibility of the Consent Decree............58

3. Admissibility of Pre-Decree Bylaw Changes......61

IV. CONCLUSION...............................................64

SIMANDLE, District Judge:

I. INTRODUCTION

This case arises out of Plaintiff’s allegations that during

the 1995-1996 academic year, Defendants subjected her son,

Michael Bowers (“Bowers”), to unlawful discrimination on account

of his learning disability. Presently before the Court are a

series of in limine motions: (1) the NCAA’s motion to exclude

evidence of the 1998 Consent Decree between the NCAA and the

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 Defendants have also filed an in limine motion to 1

preclude Plaintiff from introducing evidence of Bowers’

depression following the inception of his drug use [Docket Item

397]. This motion is based on the sanctions Order entered by

this Court and upheld by the Court of Appeals, which “precludes

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

and drug abuse-related depression.” Bowers v. National

3

Department of Justice [Docket Item 398]; (2) Plaintiff’s motion

to preclude Defendants’ “reasonable modification” and “waiver

proceeding” defenses [Docket Item 405]; (3) Plaintiff’s motion to

preclude after-acquired evidence on the issue of liability

[Docket Item 406]; and (4) Plaintiff’s motion to preclude

Defendants from contesting that Bowers was disabled [Docket Item

407]. Trial in this case is scheduled to commence on July 7,

2008.

For the reasons set forth below, the Court will grant the

NCAA’s motion to exclude evidence of the 1998 Consent Decree

without prejudice to Plaintiff’s renewal of its request to

introduce evidence of pre-Decree bylaw changes if the NCAA

controverts the feasibility of alternative policies in its

defense. The Court will grant in part and deny in part

Plaintiff’s motion to preclude Defendants’ “reasonable

modification” and “waiver proceeding” defenses. Additionally,

the Court will grant Plaintiff’s motion to preclude the admission

of after-acquired evidence on the issue of liability in its

entirety, and will deny Plaintiff’s motion to preclude Defendants

from contesting that Bowers had a learning disability. 

1

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Collegiate Athletic Ass’n, 475 F.3d 524, 541-42 (3d Cir. 2007). 

The Court has reserved decision on this motion, which is relevant

only to the damages phase of this trifurcated trial. 

 Plaintiff Kathleen Bowers’ son, Michael, was the initial 2

plaintiff in this case. Michael Bowers died as the result of a

drug overdose in June 2002 and his mother has been substituted as

Plaintiff on behalf of his estate. 

4

II. BACKGROUND

A. Michael Bowers

The facts and procedural history of this case have been

discussed in detail in numerous opinions issued by this Court and

the Court of Appeals, and the following summary reviews only

those facts that pertain to the instant motions. At issue in

this action are the policies of the NCAA pertaining to the

initial eligibility of student athletes for participation in

Division I intercollegiate athletics programs as they existed in

1995-1996, when Plaintiff’s late son, Michael Bowers (“Bowers”),2

submitted an application to the NCAA Initial-Eligibility

Clearinghouse (the “Clearinghouse”), the organization responsible

for assessing the eligibility of potential student athletes to

participate in college sports. The late Michael Bowers was an

excellent high school football player at Palmyra High School who

sought to play college football in a top-echelon intercollegiate

football program. Most of Michael Bowers’ high school courses

were in special education classes rather than college-preparatory

courses, and Plaintiff alleges that Michael suffered from a

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disability. 

At the time of the 1995-1996 school year, the Clearinghouse

reviewed students’ applications and placed applicants into one of

three categories: qualifier, partial qualifier, or nonqualifier. 

In brief, Plaintiff alleges that her son was designated as a

nonqualifier largely on account of his high school special

education curriculum, that such a designation discriminated

against him on account of his learning disability, and that the

designation negatively impacted his opportunity to receive an

athletic scholarship.

In the fall of 1996, after the football scholarship and

recruiting opportunities dried up, Bowers enrolled at Temple

University as a commuter student, although he did not begin

taking classes that semester because he was scheduled to have

back surgery. In the spring 1997 semester, Bowers earned a 3.63

GPA at Temple and made the Dean’s List. By November 1997,

however, Bowers’ life had taken a turn for the worse: he

complained to his physician about being depressed about breaking

up with his girlfriend and was prescribed antidepressant

medication, and his grades began to drop and he failed to

complete several courses and dropped out.

In addition, Bowers had started to abuse drugs. Bowers was

prescribed numerous painkillers between 1996 and 1997 in order to

treat the pain he experienced as a result of a back injury, and

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ultimately, he became addicted to these medications and started

obtaining them illegally. In addition, by August 1998, Bowers

started using cocaine and heroin. For nearly four years, Bowers

received treatment for his substance abuse and mental health

problems, and in June 2002, he died as a result of a drug

overdose. His undisclosed drug abuse and treatment occurred

while substantial discovery was underway in this case, including

his own depositions and several tests and interviews by

Plaintiff’s own proposed experts.

B. Procedural History

Bowers filed the original Complaint in this case on May 23,

1997 [Docket Item 1], alleging that the NCAA and the

Clearinghouse had violated Titles II and III of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132, 12182, and

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). 

Plaintiff subsequently amended the Complaint to assert additional

claims based on the New Jersey Law Against Discrimination

(“NJLAD”), N.J. Stat. Ann. §§ 10:5-1, et seq., and to name Temple

University, the University of Iowa, and the American

International College as defendants. 

Nearly seven years after this action was initiated – and

after considerable discovery and motion practice and numerous

decisions by the District Court and the Court of Appeals – and

after Michael Bowers died, Plaintiff disclosed to Defendants for

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first time that Bowers had a substance abuse problem. 

Thereafter, Defendants moved for the imposition of sanctions in

the form of dismissal, arguing that they had been prejudiced as a

result of Plaintiff’s concealment of Bowers’ substance abuse and

drug treatment. On March 21, 2005, the Court issued an Opinion

and Order that imposed preclusion sanctions upon Plaintiff. 

Specifically, the Court found that because

Defendants lack the practical ability to question Mr.

Bowers about the full extent and duration of his drug

abuse, and thus suffer irreparable prejudice, the records

that have belatedly been supplied to Defendants in and

after May 2004 must be deemed conclusive and unopposed by

Plaintiff. Plaintiff shall be precluded from disputing

the facts shown by direct and circumstantial evidence in

the records of Mr. Bowers’s drug abuse and severe

depression, and Plaintiff shall be precluded from arguing

that gaps in these records give rise to some favorable

inference in opposition to summary judgment.

Bowers v. National Collegiate Athletic Ass’n., No. 97-2600, 2005

WL 5155198, *12 (D.N.J. Mar. 21, 2005), overruled in part by 475

F.3d 524 (3d Cir. 2007). The Court then addressed Defendants’

motion for summary judgment in light of the discovery sanctions

it had imposed and determined that the evidence warranted the

entry of summary judgment in Defendants’ favor. Id. at *16. 

Plaintiff appealed the March 21, 2005 Opinion and Order, and

on February 1, 2007, the Court of Appeals issued its decision

affirming in part and reversing in part this Court’s Order. With

regard to the question of preclusion sanctions, the Court of

Appeals found that 

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[a]llowing 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, u]nlike 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.

. . . .

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 . . .

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. 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. 

Bowers v. National Collegiate Athletic Ass’n, 475 F.3d 524, 541-

42 (3d Cir. 2007) (internal quotations and citations omitted). 

The Court of Appeals also determined that a triable question of

fact existed as to whether Bowers was a qualified individual with

a disability at the time when Defendants allegedly discriminated

against him, and thus reversed the Court’s entry of summary

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 The Court of Appeals also found that Plaintiff’s 3

attorneys did not have notice of the fact that sanctions were

sought against them as well as against Plaintiff. Bowers, 475

F.3d at 544-45. Defendants have since filed a motion for

sanctions against Plaintiff’s counsel, and, with the consent of

the parties, the Court has adjourned its consideration of this

matter until after the completion of the trial on the merits. 

9

judgment as to Plaintiff’s ADA, Rehabilitation Act, and NJLAD

claims. Id. at 537. 3

After the matter was remanded, this Court denied Plaintiff’s

motion to compel the production of additional discovery, see

Bowers v. National Collegiate Athletic Ass’n, No. 97-2600, 2008

WL 1757929 (D.N.J. Feb. 27, 2008), and scheduled a trial date of

June 30, 2008. The parties filed numerous in limine motions,

including Defendants’ motions to exclude the testimony of

Plaintiff’s four expert witnesses under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), on which the Court

heard oral argument at hearings convened on April 25, 2008 and

May 19, 2008 and reserved decision. 

After the Court heard oral argument on the parties’ in

limine motions, it was revealed that Plaintiff had failed to

comply in full with the terms of a Discovery Order entered on

September 15, 2004, to the extent that numerous drafts of expert

reports and related materials had not been provided to

Defendants. Defendants moved to dismiss Plaintiff’s claims as a

sanction for Plaintiff’s discovery violations. The Court

addressed this motion, as well as Defendants’ Daubert motions, in

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a recent Opinion and Order entered upon the docket on June 30,

2008. In that Opinion and Order, the Court did not dismiss

Plaintiff’s claims, but ordered that Plaintiff be precluded from

introducing certain testimony relating to the belatedly disclosed

expert materials and, in some instances, shortcomings under Rule

702, Fed. R. Evid. Further, the Plaintiff and Defendants

University of Iowa and Temple University reached settlements of

Plaintiff’s claims within the past week, and the NCAA is the sole

remaining defendant as the case goes to trial on July 7, 2008. 

III. DISCUSSION

A. Threshold Considerations of the Law of the Case

Initially, the Court addresses a threshold issue that the

parties raise in their submissions pertaining to several motions:

whether former Judge Orlofsky’s determination in Bowers v.

National Collegiate Athletic Ass’n, 118 F. Supp. 2d 494 (D.N.J.

2000) (“Bowers III”), that the provisions in the NCAA’s initial

eligibility bylaws pertaining to learning disabled applicants

were not facially neutral, is the law of this case, and whether

that determination was clearly erroneous. In its motion to

exclude evidence of the 1998 Consent Decree, addressed in detail

infra, the NCAA argues that Judge Orlofsky’s determination was an

“ill-considered dictum” that is not the law of the case and

which, in any case, was clearly erroneous. (NCAA’s Reply Br. 2.) 

As the Court explains below, it finds that the ruling in question

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is the law of this case, and that that ruling – that NCAA Bylaw

14.3.1.3 is not facially neutral – should not be disturbed. The

Court reviews the relevant bylaws and Judge Orlofsky’s

determination in turn below. 

1. The NCAA Bylaws and Judge Orlofsky’s Ruling

In 1995-1996, when Bowers submitted his application to the

Clearinghouse for its initial eligibility review, the NCAA had

two relevant bylaws pertaining to the eligibility of applicants

with learning disabilities and/or special education coursework. 

NCAA Bylaw 14.3.1.3 established the “core-curriculum

requirements” for applicants, and provided that “[c]ourses 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.) A related provision,

Bylaw 14.3.1.5, provided that

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 required grade-point average in this

core curriculum.

(NCAA Bylaw 14.3.1.5.) 

In Bowers III, the court addressed the NCAA’s motion for

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summary judgment in which the NCAA argued, inter alia, that it

was entitled to summary judgment as to his claim for compensatory

damages under the Rehabilitation Act because compensatory damages

could not be awarded for that claim. The court denied the NCAA’s

motion as to this issue, finding that compensatory damages could

be awarded under the Act for claims of intentional

discrimination. 118 F. Supp. 2d at 507. In holding that Bowers

had alleged such a claim, the court determined that Bowers’ claim

for intentional discrimination “is evidenced by the type of

policy that he has attacked” – that is, a policy that was not

facially neutral. Id. at 507-08. The court reasoned as follows:

In this case, the challenged policy states that

“[c]ourses that are taught at a level below the high

school's regular 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). This provision is not facially

neutral precisely because it is premised on a “trait that

the handicapped as a class are less capable of meeting or

less likely of having,” i.e., a specified level of

academic achievement. NCAA Bylaw 14.3.1.3.5, which

enables students with learning disabilities to obtain

core course credit for special education classes, does

not render the NCAA’s policy neutral. The learning

disabled still bear the burden of proving that their

special education courses are “good enough” to satisfy

the core course requirement. After all, “[t]he

learning-disabled or handicapped student must still

complete the required core courses and achieve the

minimum required grade-point average in this core

curriculum.” 

Id. at 508 (some internal citations omitted). Finding that

Bowers had attacked a policy that was not facially neutral, the

court denied the NCAA’s motion for summary judgment on the issue

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of compensatory damages. Id. 

2. Analysis

The Court is not persuaded by the NCAA’s argument that Judge

Orlofsky’s determination in Bowers III that the NCAA bylaws were

not facially neutral was mere dicta. A discussion in an opinion

“is dicta [if] it is not necessary to that opinion’s holding.” 

Ponnapula v. Ashcroft, 373 F.3d 480, 488 (3d Cir. 2004). Judge

Orlofsky’s ruling on whether the bylaw was facially

discriminatory was issued in response to the NCAA’s motion for

summary judgment, in which the NCAA argued, inter alia, that

Bowers could not recover compensatory damages under the

Rehabilitation Act because he had not alleged that the NCAA

intentionally discriminated against him. As is summarized above,

the court rejected the NCAA’s argument and denied its motion for

summary judgment as to this issue. See Bowers III, 118 F. Supp.

2d at 507-08; see also id. at 538-39 (“Defendants’ challenges to

standing and the recoverability of damages are DENIED IN PART AND

GRANTED IN PART, GRANTED with respect to the argument that

damages for loss of a future athletic career are too speculative

but DENIED in all other respects”). The court’s determination

that the policy was not facially neutral was necessary to its

holding that Plaintiff could recover compensatory damages under

the Rehabilitation Act, and thus was not, as the NCAA has argued,

mere dicta. See Ponnapula, 373 F.3d at 488. 

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Judge Orlofsky’s ruling that “Bowers has not attacked a

facially neutral policy,” Bowers III, 118 F. Supp. 2d at 507, is

thus the law of this case, and may be revisited only under

certain limited circumstances. “The law of the case doctrine

limits the extent to which an issue will be reconsidered once the

court has made a ruling on it.” Fagan v. City of Vineland, 22

F.3d 1283, 1290 (3d Cir. 1994); see also Public Interest Research

Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d

111, 116 (3d Cir. 1997). As the Supreme Court has explained:

A court has the power to revisit prior decisions of its

own or of a coordinate court in any circumstance,

although as a rule courts should be loathe to do so in

the absence of extraordinary circumstances such as where

the initial decision was clearly erroneous and would work

a manifest injustice.

Christianson v. Colt Industries Operating Corp., 486 U.S. 800,

817 (1988) (internal quotations and citations omitted); see also

Fagan, 22 F.3d 1290 (noting that “a successor judge should not

lightly overturn decisions of his predecessors in a given case”).

The Court of Appeals has provided guidance as to what

constitutes “extraordinary circumstances” as that term was used

in Christianson. Those circumstances include “situations in

which: (1) new evidence is available; (2) a supervening new law

has been announced; or (3) the earlier decision was clearly

erroneous and would create manifest injustice.” Magnesium

Elektron, Inc., 123 F.3d at 117; In re City of Philadelphia

Litigation, 158 F.3d 711, 718 (3d Cir. 1998). The NCAA’s

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argument appears to focus exclusively on the third possibility,

namely, that Judge Orlofsky’s decision was clearly erroneous and

would work a manifest injustice. 

The Court disagrees. As the following discussion makes

clear, while Judge Orlofsky did not articulate precisely the

correct legal standard in ruling that the NCAA’s policies were

not facially neutral, he reached the correct result. There was,

accordingly, no “manifest injustice” rendered by his decision to

justify this Court’s revisitation of his decision. Magnesium

Elektron, Inc., 123 F.3d at 117.

In an opinion subsequent to Judge Orlofsky’s Bowers III

decision, the Court of Appeals explained the considerations

underlying facially discriminatory classification claims in

Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170

(3d Cir. 2005):

Generally, to prevail on a disparate treatment claim, a

plaintiff must demonstrate that some discriminatory

purpose was a “motivating factor” behind the challenged

action . . . . 

Where a regulation or policy facially discriminates on

the basis of the protected trait, in certain

circumstances it may constitute per se or explicit

discrimination because the protected trait by definition

plays a role in the decision-making process, inasmuch as

the policy explicitly classifies people on that basis.

Hence, where a plaintiff demonstrates that the challenged

action involves disparate treatment through explicit

facial discrimination, or a facially discriminatory

classification, a plaintiff need not prove the malice or

discriminatory animus of a defendant. Rather, the focus

is on the explicit terms of the discrimination.

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421 F.3d at 177 (internal quotations and citations omitted). 

Contrary to the NCAA’s suggestion that a policy is facially

neutral if the precise name of the protected class does not

appear in the text of the policy, courts have also recognized

that a policy that classifies on the basis of a neutral

classification that is a proxy for a protected category may also,

under certain circumstances, be facially discriminatory. See,

e.g., McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992).

As the Court of Appeals has explained,

courts have developed a “proxy” theory for [evaluating

facially discriminatory classification] claims,

recognizing that a regulation or policy cannot use a

technically neutral classification as a proxy to evade

the prohibition of intentional discrimination, such as

classifications based on gray hair (as a proxy for age)

or service dogs or wheelchairs (as proxies for

handicapped status).

Id. (citing McWright, 982 F.2d at 228). 

Significantly, under such a proxy theory, a policy will not

be found to be facially discriminatory if the neutral

classification merely “correlate[s]” with the protected category. 

Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993). The

Supreme Court’s decision in Hazen Paper helps illustrate the

proxy-correlation distinction. In that case, the Court addressed

whether “an employer . . . could fire an employee in order to

prevent his pension benefits from vesting” without running afoul

of the Age Discrimination in Employment Act. Id. at 613. The

Court explained that the vesting of an employee’s pension plan

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 As these cases make clear, the standard for evaluating 4

claims that a neutral classification is a “proxy” for a facially

discriminatory classification is rigorous, and even a strong

correlation between the two categories will not alone suffice to

show that the classification is facially discriminatory. Compare

Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 211

(3d Cir. 2000) (“Medicare status is a direct proxy for age,”

17

may correlate with age, but that the two categories were not

coextensive – while older employees might on average have

completed more years of service than younger employees, the two

categories are analytically distinct. Id. (“Because age and

years of service are analytically distinct, an employer can take

account of one while ignoring the other, and thus it is incorrect

to say that a decision based on years of service is necessarily

“age based.”). 

The Court of Appeals employed similar reasoning in Community

Services when it determined that the statutory use of the term

“personal care home” was analytically distinct from, and was thus

not a proxy for, disability or handicap. The court explained

that “‘personal care home’ could fairly be used to describe any

number of facilities providing services to residents who may not

necessarily have, have had, or be regarded as having a physical

or mental impairment that substantially limits a major life

activity,” including facilities providing care for the elderly,

juveniles, or ex-criminal offenders. Community Services, 421

F.3d at 179. While there was a correlation between personal care

homes and the disabled, the two were analytically distinct. Id. 4

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since eligibility “follows ineluctably upon attaining age 65”)

(emphasis added), with Hazen Paper, 507 U.S. at 613 (correlation

exists between age and vesting of pension plans, but one is not

necessarily tied to the other).

18

When viewed in light of this standard, Judge Orlofsky’s

determination that the NCAA’s policies, as they pertained to

learning disabled applicants, were not facially neutral because

they singled out a “trait that the handicapped as a class are

less capable of meeting or less likely of having,” Bowers III,

118 F. Supp. 2d at 508, was not a correct statement of the law. 

The result he reached was correct, however, which means that it

worked no “manifest injustice” to warrant disturbing his

decision. Magnesium Elektron, Inc., 123 F.3d at 117. 

The NCAA policies at issue here classified applicants based

on whether they took special education courses in high school,

providing that “special education [courses] . . . shall not be

considered core courses regardless of course content.” (NCAA

Bylaw 14.3.1.3) (emphasis added). The Court agrees with

Plaintiff that “students enrolled in special education courses”

is a proxy for “students with disabilities,” and that,

accordingly, the NCAA bylaws were not facially neutral. See

Community Services, 421 F.3d at 177. The most convincing

indicator of why the population of students taking special

education courses does not merely correlate with the disabled

student population, but is “necessarily” tied to that population,

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 That the population of students with disabilities might 5

be larger than the special education population – in other words,

that not every disabled child is necessarily enrolled in special

education – is, of course, irrelevant. The question is whether

the special education population is a proxy for the disabled

student population, not the reverse. 

19

Hazen Paper, 507 U.S. at 613, can be found in the language of the

statute that provides federal funding for special education

programs, the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C.A. § 1400, et seq. That statute makes clear

that special education is inextricably linked to disability

status, expressly defining the term “special education” to mean

“specially designed instruction, at no cost to parents, to meet

the unique needs of a child with a disability.” § 1401(29)

(emphasis added). As it is defined by the federal law that funds

the provision of educational services to disabled children, then,

special education is necessarily tied to disability status; it is

impossible take account of the former while ignoring the latter.5

See Hazen Paper, 507 U.S. at 613.

The link between special education and disability status is

much more direct than in proxy cases where the classification in

question was found merely to correlate with the protected

category. While the potential proxies in Community Services and

Hazen Paper encompassed categories of persons beyond the

handicapped and the elderly, respectively, the proxy category

here – the special education population – is no more broad than

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20

the suspect classification in question. Thus, whereas in

Community Services the term “‘personal care home’ could fairly be

used to describe any number of facilities providing services to

residents who may not necessarily” be disabled, 421 F.3d at 179,

special education, by definition under federal law, is directed

“to meet the unique needs of a child with a disability.” §

1401(29). 

The NCAA’s arguments to the contrary are not convincing. 

First, the NCAA notes that in his deposition, Bowers was asked

whether non-special-education students would be permitted to take

special education courses, and testified as follows: “If – I

believe if that’s, like, his weak area, then he has to go slower

than a student would. They don’t have to be classified special

education.” (Bowers Dep. 35.) 

This testimony does not undermine the Court’s conclusion. 

First, nothing in the record suggests that Bowers had the

personal knowledge to provide competent testimony as to the

educational policies of his school concerning the admission of

non-special-education students into special education courses;

his incompetent speculation as to whether all students in such

classes are “classified special education,” (id.), is plainly

insufficient to overcome the fact the special education, by law,

is defined as education directed “to meet the unique needs of a

child with a disability.” § 1401(29). More importantly, Bowers’

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21

testimony does not suggest that non-disabled students took

special education courses – it only addresses whether students

not “classified special education” could take such courses. 

(Bowers Dep. 35.) Bowers’ testimony thus provides no support for

the NCAA’s position that “special education” is not a proxy for

“disabled students.” 

At the May 19, 2008 hearing, the NCAA argued that

Plaintiff’s claim that its bylaws contained facial

classifications was foreclosed by the Court of Appeals’ most

recent decision in this case. Specifically, the NCAA noted that

in discussing whether the University of Iowa was entitled to

immunity under the Eleventh Amendment, the Court of Appeals

determined that “[t]he 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.” Bowers,

475 F.3d at 554. Because the bylaws would be lawful under

rational basis review, the NCAA appears to argue, its policies

must be facially neutral. 

While not without superficial appeal, this argument must

likewise be rejected. Whether a policy is or is not facially

neutral, and whether it passes muster under rational basis

review, are two separate issues. The former is directed at

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22

resolving the question of whether “a protected characteristic

played a role in the defendant’s decision to treat [the

plaintiff] differently,” Community Services, 421 F.3d at 177

(citation omitted), whereas the latter addresses whether that

differential treatment, once proven, is lawful. The NCAA’s

effort to mix apples (whether its bylaws were facially neutral)

with oranges (whether the bylaws would survive rational basis

review under an Equal Protection challenge) is unavailing, and

does not support its argument that the bylaws were facially

neutral.

The Court accordingly finds that Judge Orlofsky’s ruling

that the NCAA bylaws were not facially neutral should not be

disturbed. The impact of this determination on the parties’ in

limine motions will become clear over the course of the following

discussion. 

B. Plaintiff’s Motion to Preclude “Reasonable

Modification” and “Waiver Proceeding” Defenses

The Court first addresses Plaintiff’s motion to preclude the

Defendants’ “reasonable modification” and “waiver proceeding”

defenses. Plaintiff’s motion raises two issues. First,

Plaintiff argues that because the eligibility bylaws at issue in

this case were facially discriminatory, Defendants should be

precluded from defending the bylaws on the grounds that

Plaintiff’s proposed modifications would have been unreasonable;

Plaintiff relies primarily on the recent holding of the Court of

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23

Appeals in New Directions Treatment Services v. City of Reading,

490 F.3d 293, 305 (3d Cir. 2007), that “it is inappropriate to

apply the ‘reasonable modification’ test to facially

discriminatory laws.” 

Second, Plaintiff makes a series of arguments regarding the

relevance to this case of an accommodation that the NCAA made

available to learning disabled applicants during the 1995-1996

application period. The accommodation in question was a waiver

procedure under which a disabled applicant who did not meet the

initial eligibility criteria could achieve “qualifier” status if

an NCAA member institution requested a waiver on the applicant’s

behalf. (Karpinski Dep. 89; NCAA’s Opp’n Br. Ex. B.) As the

parties recognize, Bowers himself did not complete his

applications to any NCAA member institutions during the 1995-1996

school year, and accordingly, no waiver was requested on his

behalf during that period. However, in 1997, after Bowers filed

this lawsuit, Judge Orlofsky entered an Order in connection with

the parties’ preliminary injunction motion practice, under which

the NCAA’s eligibility Waiver Committee was to review Bowers’

application to determine if a waiver of the NCAA’s eligibility

requirements was appropriate. See Bowers v. NCAA, 974 F. Supp.

459, 463 (D.N.J. 1997). The Committee determined that a waiver

was not appropriate. 

With regard to the relevance of the eligibility waiver

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24

process, Plaintiff makes a series of arguments: (1) that it is

the law of the case that the NCAA’s waiver proceedings did not

constitute a reasonable accommodation for Bowers as a matter of

law; (2) that the Court should itself rule that such proceedings

do not amount to a reasonable accommodation, even if it is not

the law of the case; and (3) that evidence relating to Bowers’

own waiver proceeding, undertaken in 1997 after this litigation

had commenced, should be excluded on various grounds, including

that it is irrelevant and unfairly prejudicial. These arguments

are reviewed below.

1. Reasonable Modification Defense

Plaintiff argues that because her Rehabilitation Act claims

against the NCAA are premised upon the NCAA’s liability for a

facially discriminatory policy, the NCAA should be precluded from

arguing in defense that Plaintiff’s proposed modifications of the

policy would have been unreasonable. Plaintiff relies upon the

finding by Judge Orlofsky in Bowers III that NCAA Bylaw 14.3.1.3

was not facially neutral, discussed supra, and the Court of

Appeals’ recent determination that “it is inappropriate to apply

the ‘reasonable modification’ test to facially discriminatory

laws,” New Directions, 490 F.3d at 305, in arguing that a

reasonable modification defense is unavailable to the NCAA in

this action. While the NCAA should not be permitted to defend a

facially discriminatory policy on the grounds that no reasonable

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 The quoted language is contained not in the 6

Rehabilitation Act, but in Title III of the ADA. All parties

agree that the “relevant portions of each statute regarding the

otherwise qualified and reasonable modification inquiries are

largely the same.” (NCAA’s Opp’n Br. 4 n.2); see also Yeskey v.

Com. of Pa. Dept. of Corrections, 118 F.3d 168, 170 (3d Cir.

1997); McDonald v. Com. of Pa., Dept. of Public Welfare, 62 F.3d

92, 94 (3d Cir. 1995); Bowers III, 118 F. Supp. 2d at 533 n.34

(“All parties agree that the ‘otherwise qualified’ and ‘solely by

reason of’ analysis under the Rehabilitation Act is substantially

similar to the ‘qualified’, ‘by reason of’ and ‘discriminated

against on the basis of disability’ analysis under the ADA.”)

 Indeed, in the brief in support of her motion, Plaintiff 7

argues that she “still may argue, as an alternative to liability

under the ‘screen out’ analysis, that defendant failed to offer .

. . Bowers a reasonable modification to its initial eligibility

25

modification was available, Plaintiff argues, the NCAA may argue

in defense that its “eligibility criteria that screen out or tend

to screen out an individual with a disability . . . [were]

necessary for the provision of the . . . accommodations being

offered.” 42 U.S.C. § 12182(b)(2)(A)(i). 6

In addition to its argument, rejected supra, that its bylaws

were facially neutral, the NCAA argues in opposition that

Plaintiff’s Rehabilitation Act claims against it are not limited

to her claim that the bylaws were facially discriminatory –- to

the contrary, Plaintiff continues to pursue as a separate claim,

asserted in her Second Amended Complaint, that the NCAA

discriminated against Bowers by “fail[ing] to make reasonable

modifications in policies, practices, or procedures, when such

modifications are necessary to afford such . . . accommodations

to individuals with disabilities . . .” 42 U.S.C. § 7

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bylaws, by for example, refusing to allow substitution of core

courses . . .” (Pl.’s Br. 12 n.6.) 

26

12182(b)(2)(A)(ii). According to the NCAA, Plaintiff cannot have

it both ways. In light of the failure to accommodate claim that

Plaintiff herself asserts, the NCAA argues that evidence

pertaining to its reasonable accommodations is “directly

responsive to Plaintiff’s pleaded claims and allegations.” 

(NCAA’s Opp’n Br. 4.)

For the following reasons, the Court will permit the NCAA to

assert and offer evidence in support of its reasonable

modification defense, but holds that such a defense is only

applicable to Plaintiff’s failure to accommodate claim. 

Ordinarily, when a claim is brought pursuant to the

Rehabilitation Act, “[t]he inquiry into whether an applicant is

otherwise qualified necessarily involves a determination of

whether the applicant could have gained access to the program if

the recipient of [federal] funds had made reasonable

accommodations.” Wagner v. Fair Acres Geriatric Center, 49 F.3d

1002, 1014 (3d Cir. 1995) (citing Alexander v. Choate, 469 U.S.

287, 301 (1985)). 

The Court of Appeals recently held, however, that an inquiry

into whether a proposed accommodation (or modification) is

reasonable is not applicable in the context of policies that are

not facially neutral:

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27

where the “statute discriminates against qualified

individuals on its face rather than in its application,”

the applicable regulation interpreting Title II, which

only requires “reasonable” accommodation, makes little

sense. 

. . . . 

We agree with the Sixth and Ninth Circuits . . . that it

is inappropriate to apply the “reasonable modification”

test to facially discriminatory laws. The only way to

modify a facially discriminatory statute is to remove the

discriminatory language. 

New Directions, 490 F.3d at 302, 305 (quoting Bay Area Addiction

Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725,

734 (9th Cir. 1999)). 

Based on the Court’s decision not to disturb Judge

Orlofsky’s prior ruling that the NCAA’s initial eligibility

bylaws were not facially neutral, supra, New Directions makes

clear that the NCAA may not defend against Plaintiff’s claim that

the policies were facially discriminatory under a “reasonable

modification” theory. 490 F.3d at 305. However, the NCAA is

correct that Plaintiff cannot parlay the unavailability of such a

defense with respect to a facially discriminatory policy claim

into a sweeping preclusion that prevents the NCAA from defending

against her separate failure to accommodate claim. In the

context of a failure to accommodate claim,

[t]he burden is on the recipient of federal funds to show

that the required modification entails a substantial

alteration in order to avoid a violation of the

[Rehabilitation] Act. If there is no factual basis in

the record demonstrating that accommodating the

individual would require a fundamental modification or an

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28

undue burden, then the handicapped person is otherwise

qualified and refusal to waive the requirement is

discriminatory.

Juvelis v. Snider, 68 F.3d 648, 653 (3d Cir. 1995) (internal

quotations and citations omitted). To the extent that Plaintiff

intends to pursue her claim that the NCAA failed to make

reasonable accommodations in its policies to meet the needs of

learning disabled applicants, the above-quoted language in

Juvelis makes clear that the reasonableness of the NCAA’s

accommodations lies at the heart of Plaintiff’s claim and the

NCAA’s defense. 

In short, the NCAA cannot assert a reasonable modification

defense to Plaintiff’s claim that the bylaws facially

discriminated against Bowers on account of his learning

disability, but such a defense is available with respect to

Plaintiff’s failure to accommodate claim. 

2. NCAA’s Eligibility Waiver

Plaintiff’s arguments with respect to the NCAA’s eligibility

waiver procedure are essentially twofold. First, Plaintiff

advances a series of arguments relating to the NCAA’s waiver

procedures in general, all of which ask the Court to find that as

a matter of law, the waiver review process that the NCAA made

available to applicants in 1995-1996, and which Bowers did not

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 As the Court explained, supra, during the time period 8

relevant to Plaintiff’s claims, “all requests for . . . [an

initial-eligibility] waiver must [have been] initiated through an

NCAA school that officially has accepted [the student] for

enrollment as a regular student.” (NCAA’s Opp’n Br. Ex. E at 5.) 

Bowers did not complete his applications for any NCAA schools

during his senior year of high school, and did not request that

any school initiate such a waiver process on his behalf.

The Waiver Committee’s review of Bowers’ credentials thus

did not occur, as the NCAA’s policies at that time provided, as a

result of an NCAA school’s request for such a review. Instead, 

[a]fter Bowers filed his complaint and motion for

preliminary injunctive relief, this Court instructed the

NCAA to determine, on an expedited basis, whether Bowers

was entitled to a waiver of the initial eligibility

requirements pursuant to NCAA bylaw 14.3.1.7 before it

would rule on Bowers’s motion for a preliminary

injunction. 

Bowers, 974 F. Supp. at 463.

29

invoke at that time, did not constitute a reasonable 8

accommodation. Second, Plaintiff makes a series of arguments

directed toward excluding evidence from the NCAA Waiver

Committee’s specific review of Bowers’ credentials, which was

performed pursuant to a court order in 1997 after Plaintiff

commenced this lawsuit.

Although both parties discuss the NCAA’s general waiver

review process as it existed in 1995-1996 and the court-ordered

1997 review of Bowers by the Waiver Committee in conjunction, the

Court will address these issues separately. As the following

discussion makes clear, the Court will deny Plaintiff’s motion

for a ruling that the waiver process as it existed in 1995-1996

was not a reasonable accommodation as a matter of law. However,

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30

the Court agrees with Plaintiff that evidence of the 1997 review

of Bowers’ credentials is not relevant to the issue of whether

the NCAA made a reasonable accommodation available to Bowers. 

The evidence is relevant to the matter of Bowers’ qualifications,

and will be admissible for that limited purpose.

a. Eligibility Waiver as a Reasonable

Accommodation

Plaintiff’s threshold argument concerning the NCAA’s

eligibility waiver procedures asserts that this Court has already

found, as a matter of law, that such a waiver review did not

constitute a reasonable accommodation for Bowers because it

occurred too late in the application cycle to be of any use. 

Plaintiff reasons that in November 2000, Judge Orlofsky issued an

opinion denying the NCAA’s motion for summary judgment, in which

the Court held, inter alia, that the NCAA had failed to prove

that the waiver proceedings constituted a reasonable

accommodation as a matter of law. Plaintiff takes the Court’s

denial of the NCAA’s motion for summary judgment and runs with

it, arguing that it is now the law of this case that the waiver

review process was not a reasonable accommodation as a matter of

law. Alternatively, Plaintiff argues that even if it is not the

law of the case that the waiver proceedings were not a reasonable

accommodation, “this Court should nevertheless find, as a matter

of law, that the waiver proceeding . . . was not reasonable.” 

(Pl.’s Br. 17.) 

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31

The Court is not persuaded by either of these arguments. 

Judge Orlofsky’s November 2000 opinion makes clear the limited

procedural context of that decision -– a ruling on the NCAA’s

motion for summary judgment. The court observed that on summary

judgment, its task was to “determine whether the evidence shows

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Bowers III, 118 F. Supp. 2d at 510 (internal quotations and

citation omitted). It further noted that “the judge’s function

is not himself to weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine issue for

trial.” Id. (quotations and citation omitted). Plaintiff’s

argument appears to suggest that the court set forth these legal

standards and then proceeded to ignore them, “weigh[ing] the

evidence” and drawing its own conclusions from that evidence to

adjudicate the material fact of whether the eligibility waiver

was a reasonable accommodation. Id. Obviously, the court did no

such thing. In denying the NCAA’s motion for summary judgment,

the court did not hold that the waiver review was unreasonable as

a matter of law; it merely held that the issue presented a jury

question. 

Because the determination of whether an accommodation is

reasonable is a question of fact to be decided by a jury, the

Court will also deny Plaintiff’s motion to hold that the

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32

eligibility waiver process, as it existed in 1995-1996, was not a

reasonable accommodation as a matter of law. See, e.g., Buskirk

v. Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002) (“Generally,

the question of whether a proposed accommodation is reasonable is

a question of fact.”); see also Equal Employment Opportunity

Commission v. Convergys Customer Management Group, Inc., 491 F.3d

790, 796 (8th Cir. 2007) (same). The parties’ arguments as to

whether the eligibility waiver process came too late in the

application cycle to be reasonable are questions of fact for the

jury to decide. Buskirk, 307 F.3d at 170.

b. The 1997 Waiver Review of Bowers’ Credentials

Plaintiff has also moved to exclude evidence of the Waiver

Committee’s 1997 review of Bowers’ credentials, which occurred

pursuant to a court order in connection with Bowers’ motion for a

preliminary injunction. Plaintiff argues that the waiver

proceeding, conducted after the alleged discrimination at issue

in this case had taken place, is not relevant to the question of

whether the NCAA made a reasonable accommodation available to

Bowers in 1995-1996, nor whether Bowers was otherwise qualified

to be a Division I student-athlete during the 1995-1996

application cycle. As the Court explains below, it agrees with

Plaintiff that the 1997 Waiver Committee proceeding is not

relevant to the reasonable accommodation inquiry, but it finds

that evidence relating to those proceedings is relevant to

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33

whether Bowers was otherwise qualified. It will accordingly

permit the NCAA to introduce evidence from those proceedings, but

will instruct the jury as to the limited purpose for which the

evidence may be considered.

First, the Court agrees with Plaintiff that evidence

relating to the 1997 waiver proceeding is not relevant to the

question of whether the NCAA made a reasonable accommodation

available to Bowers in 1995-1996, the time that the alleged

discrimination at issue in this case occurred. The Court is

guided by the Court of Appeals’ most recent consideration of this

case:

We have clearly stated that the determination of whether

a person was a “qualified individual with a disability”

for the purposes of an ADA claim 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. 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.

Bowers, 475 F.3d at 535-36 (citations omitted) (emphasis added). 

The NCAA has not presented a convincing reason to treat the

relevant time period for the reasonable accommodation analysis

separately from the time period applicable to the otherwisequalified inquiry. To the contrary, the two considerations are

closely intertwined, as stated by the Third Circuit:

“An otherwise qualified person is one who is able to meet

all of a program’s requirements in spite of his

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34

handicap.” Southeastern Community College v. Davis, 442

U.S. 397, 406 (1979). 

But “an individual may be otherwise qualified in some

instances even though he cannot meet all of a program’s

requirements.” Wagner v. Fair Acres Geriatric Center, 49

F.3d 1002, 1009 (3d Cir. 1995). “The benefit . . .

cannot be defined in a way that effectively denies

otherwise qualified handicapped individuals the

meaningful access to which they are entitled; to assure

meaningful access, reasonable accommodations in the

grantee’s program or benefit may have to be made.”

Alexander v. Choate, 469 U.S. 287, 300 (1985). 

Juvelis, 68 F.3d at 653. Since “the determination of whether a

person was a ‘qualified individual with a disability,’” and, by

extension, whether an accommodation was reasonable, “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,” Bowers, 475 F.3d at 535-36, the Waiver

Committee’s court-ordered assessment of Bowers’ qualifications in

1997, well after the allegedly discriminatory decision in this

case was made, is not relevant to whether a reasonable

accommodation was available to Bowers during the time period

relevant to this case. The Court thus agrees with Plaintiff that

the 1997 waiver proceeding did not constitute a reasonable

accommodation as a matter of law, and will preclude the NCAA from

arguing to the contrary.

However, the Court agrees with the NCAA that evidence from

the 1997 waiver proceeding is relevant to the question of whether

Bowers was academically qualified during the 1995-1996 period. 

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35

In order to make out a prima facie case under the Rehabilitation

Act, Plaintiff must demonstrate that Bowers was able to satisfy

the NCAA’s academic criteria, or could have done so with a

reasonable accommodation. See Juvelis, 68 F.3d at 653. As the

NCAA has argued, the waiver review “is directly relevant to that

inquiry because it was an analysis of Bowers’ academic record

used to determine whether there was any evidence that Bowers was

academically prepared to handle the combined demands of college

academics and Division I athletics.” (Defs.’ Opp’n Br. at 21.) 

The Court agrees with the NCAA that the Waiver Committee’s review

of Bowers’ credentials – which focused on his academic records

during the 1995-1996 period – is relevant to Plaintiff’s claim

that Bowers was “qualified . . . to meet . . . [the] program’s

requirements.” Southeastern Community College, 442 U.S. at 406;

see also Fed. R. Evid. 401 (“‘Relevant evidence’ means evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”). 

Plaintiff’s arguments to the contrary are not convincing. 

First, Plaintiff argues that the Committee’s assessment of

Bowers’ academic qualifications is irrelevant because the

Committee’s evaluation of Bowers’ credentials was based on

imperfect information and/or influenced by bias. In support of

this argument, Plaintiff draws the Court’s attention to certain

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36

irregularities in the Committee’s evaluation of Bowers’

application, including the fact that the review was performed by

“the NCAA’s own committee” in the midst of a lawsuit, which

allegedly prejudiced its determinations, (Pl.’s Br. at 27), and

the fact that Bowers did not have the opportunity to submit

letters from his teachers to the Committee, which the Committee

typically afforded “quite a bit” of weight. (Raske Dep. 99.) 

The Court does not agree with Plaintiff that these irregularities

render irrelevant the Committee’s assessment of Bowers’ academic

qualifications. Plaintiff is, of course, free to cross-examine

the NCAA’s witnesses as to the existence and impact of these

irregularities and alleged biases on their assessment of Bowers’

credentials, but these irregularities do not render the evidence

irrelevant as to the issue of Bowers’ academic qualifications. 

Additionally, Plaintiff argues that evidence of the

Committee’s review of Bowers’ credentials should be excluded

under Rule 403, Fed. R. Evid., because the limited probative

value of the evidence is outweighed by the risk of unfair

prejudice it carries. According to Plaintiff, because the 1997

proceedings were conducted pursuant to a court order, the results

reached by the Committee inherently carry the “imprimatur” of the

Court’s authority. Plaintiff reasons that “[t]his would unfairly

leave the jury with the impression that the Committee’s

conclusion that Michael Bowers should not be granted initial

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37

eligibility (albeit nearly two years after he first applied) was

‘correct’ because this Court in some way had ‘sanctioned’ this

proceeding.” (Pl.’s Br. at 29.) 

The Court disagrees, and finds Plaintiff’s concerns over the

imprimatur of Court approval to be misplaced. First, the Court

could instruct the jury that simply because the proceeding took

place pursuant to a court order does not mean that the Court

sanctioned the result of the Committee’s review. See United

States v. Daraio, 445 F.3d 253, 260 (3d Cir. 2006) (recognizing

that “it is a basic tenet of our jurisprudence that a jury is

presumed to have followed the instructions the court gave it”)

(citation omitted). Moreover, the Court does not agree with

Plaintiff that the fact that the waiver proceeding occurred as

the result of a court order carries a substantial risk of

prejudice. If anything, the fact that it took a court order for

the Committee to review Bowers’ application would appear to

illustrate the difficulties that the NCAA’s policies posed for

learning disabled applicants, a suggestion that certainly is not

unfavorable to Plaintiff. In any case, because the Court finds

that whatever minimal prejudice created by the fact that 1997

Waiver Committee proceeding took place pursuant to a court order

could be cured by an instruction to the jury, the Court finds

that exclusion of evidence stemming from that proceeding under

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 The Court also disagrees with Plaintiff’s argument that 9

permitting the Committee members to testify about their review of

Bowers’ credentials is a back-door means of introducing expert

testimony in violation of Rule 702, Fed. R. Evid. These

witnesses’ testimony would be “rationally based on the[ir]

perception” based on their first-hand knowledge of the

Committee’s review of Bowers’ application. Fed. R. Evid. 701(a). 

The witnesses’ descriptions of the circumstances surrounding

their review of Bowers’ qualifications, and the decisions they

reached, is not expert testimony. 

38

Rule 403 is not called for. 

9

In summary, the Court agrees with Plaintiff that the 1997

waiver proceeding is not relevant to the issue of whether the

NCAA made a reasonable accommodation available to Plaintiff,

since that proceeding occurred well “after the alleged

discriminatory decision was made.” Bowers, 475 F.3d at 535-36. 

The Court will accordingly grant Plaintiff’s motion to the extent

that it seeks to preclude the NCAA from arguing that the 1997

proceeding was a reasonable accommodation for Bowers. However,

evidence stemming from the Waiver Committee’s review of Bowers’

academic record in 1995-1996 is relevant to Bowers’ academic

qualifications at the time he submitted his application to the

Clearinghouse, and is admissible for the purpose of addressing

whether or not Bowers was otherwise qualified at the time the

allegedly discriminatory conduct took place. 

C. Plaintiff’s Motion to Exclude After-Acquired Evidence

Plaintiff has moved to preclude the NCAA from introducing as

evidence that Bowers was not an “otherwise qualified individual”

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 In particular, the NCAA seeks to argue that at the time 10

Bowers was deemed to be a nonqualifier, his transcripts indicated

that he had completed a full year of Geometry and a full year of

Algebra. As the NCAA later learned, Bowers took both courses on

an expedited basis. The NCAA seeks to argue that the

circumstances under which Bowers completed these courses were

“highly irregular” and “suspicious,” and that such circumstances

bear on whether Bowers was otherwise qualified to be a Division I

student-athlete. (NCAA’s Opp’n Br. 2-3.)

 In her motion, Plaintiff also sought to preclude Temple, 11

in proving that Bowers was not qualified to play football after

he enrolled at Temple in 1997, from introducing evidence of

Bowers’ drug use, which Temple did not learn about until 2004. 

Because Temple is no longer a party to this lawsuit, Plaintiff’s

motion as to this point is moot and will be dismissed. 

39

evidence that she argues is barred under the after-acquired

evidence doctrine. Specifically, Plaintiff seeks to preclude the

NCAA, in proving that Bowers was not qualified under its initial

eligibility rules, from introducing evidence of the fact that

Bowers took his Algebra and Geometry courses on an expedited

basis, a fact that the NCAA did not learn until after the NCAA

denied Bowers initial eligibility on July 30, 1996. For the 10

reasons set forth below, the Court will grant Plaintiff’s

motion.11

1. The After-Acquired Evidence Doctrine

Put simply, the after-acquired evidence rule proscribes a

defendant alleged to have unlawfully discriminated against a

plaintiff from introducing evidence which the defendant did not

know about at the time it took the adverse action in order to

escape liability. McKennon v. Nashville Banner Pub. Co., 513

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 While after-acquired evidence is not relevant to the 12

issue of liability, such evidence is relevant to the remedies

that are available to a plaintiff in a discrimination suit. In

the employment context, the Supreme Court held that while

40

U.S. 352, 359-60 (1995); Mardell v. Harleysville Life Ins. Co.,

31 F.3d 1221, 1228 (3d Cir. 1994), abrogated by McKennon, 513

U.S. 352. As the Supreme Court explained in McKennon, 

Congress designed the remedial measures in these statutes

to serve as a spur or catalyst to cause employers to

self-examine and to self-evaluate their employment

practices and to endeavor to eliminate, so far as

possible, the last vestiges of discrimination.

Deterrence is one object of these statutes. Compensation

for injuries caused by the prohibited discrimination is

another.

. . . .

It would not accord with this scheme if after-acquired

evidence of wrongdoing that would have resulted in

termination operates, in every instance, to bar all

relief for an earlier violation of the Act.

. . . .

[P]roving that the same decision would have been

justified is not the same as proving that the same

decision would have been made.

513 U.S. at 358, 360 (internal quotations and citations omitted).

The Court of Appeals put the matter more bluntly in Mardell

when it stated:

After-acquired evidence, simply put, is not relevant in

establishing liability under Title VII or ADEA because

the sole question to be answered at that stage is whether

the employer discriminated against the employee on the

basis of an impermissible factor at the instant of the

adverse employment action.

Mardell, 31 F.3d at 1228. Although McKennon and Mardell took 12

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“neither reinstatement nor front pay is an appropriate remedy,”

back pay may be awarded to cover the period between the

defendant’s adverse action until the date that the defendant

discovered the evidence in question. McKennon, 513 U.S. at 362.

41

up the after-acquired evidence doctrine in the context of Age

Discrimination in Employment Act and Title VII claims, the rule

applies with equal force to the statutes under which Plaintiff’s

suit is brought. See Bowers, 475 F.3d at 537. 

2. The Parties’ Arguments

According to Plaintiff, the NCAA did not know about Bowers’

expedited mathematics coursework at the time it allegedly

discriminated against Bowers, and, accordingly, this information

could not have motivated the allegedly discriminatory conduct

underlying Plaintiff’s claims. Because the NCAA did not know

about the information in question at the time of the allegedly

discriminatory conduct, Plaintiff argues, it cannot rely on

after-acquired evidence suggesting that Bowers was not otherwise

qualified, because “[a]fter-acquired evidence, simply put, is not

relevant in establishing liability.” Mardell, 31 F.3d at 1228.

Plaintiff relies heavily on the brief treatment of the

after-acquired evidence rule by the Court of Appeals in this

case. In addressing whether Defendants could use evidence of

Bowers’ drug use to prove that he was not “otherwise qualified”

to participate in intercollegiate athletics, the court held that

after-acquired evidence that Bowers was not qualified could not

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42

be used to defend Defendants’ allegedly discriminatory conduct:

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 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, 513 U.S. at 360], and thus cannot now

claim that Bowers was deemed a nonqualifier because of

his drug abuse. See also [Mardell, 65 F.3d 1072]

(applying McKennon in unlawful discrimination context and

holding after-acquired evidence of misconduct is relevant

to damages but does not bar liability).

Bowers, 475 F.3d at 537. In light of the Court of Appeals’

determination that Defendants are proscribed from using afteracquired evidence to prove that Bowers was not an “otherwise

qualified individual with a disability,” 29 U.S.C. § 794(a),

Plaintiff argues that Defendants cannot use evidence of Bowers’

expedited mathematics coursework and drug use to contest his

qualifications. 

The NCAA argues that the after-acquired evidence rule is

inapplicable to the otherwise-qualified inquiry, because the

question of whether Bowers was otherwise qualified is one of the

elements of Plaintiff’s own prima facie case, and is thus

separate from the question of whether Defendants had a

legitimate, nondiscriminatory reason for their conduct. See

Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir. 2007)

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 McNemar’s ruling on the issue of judicial estoppel was 13

abrogated by the Supreme Court’s decision in Cleveland. 526 U.S.

at 800. McNemar’s application of the after-acquired evidence

rule was not implicated by Cleveland. 

43

(discussing the McDonnell Douglas burden-shifting framework in

the context of a Rehabilitation Act claim). According to

Defendants, McKennon’s central premise – that “the employer could

not have been motivated by knowledge it did not have,” 513 U.S.

at 360 – is not implicated by the determination of whether Bowers

was otherwise qualified, because if Plaintiff cannot prove that

Bowers was otherwise qualified, she “cannot make out a prima

facie case, and the burden never shifts to the defendant.” 

Employment Opportunity Commission v. Fargo Assembly Co., 142 F.

Supp. 2d 1160, 1164 (D.N.D. 2000). In other words, since the

otherwise-qualified inquiry is raised at the outset in

Plaintiff’s prima facie case, Defendants can challenge Bowers’

qualifications before having to offer a non-discriminatory

rationale and, hence, without having to suggest that they had

been “motivated by knowledge [they] did not have.” McKennon, 513

U.S. at 360.

Defendants’ argument, they note, falls squarely within the

holding of McNemar v. Disney Store, Inc., 91 F.3d 610, 621 (3d

Cir. 1996), abrogated on other grounds by Cleveland v. Policy

Management Systems Corp., 526 U.S. 795 (1999). In McNemar, the 13

Court of Appeals addressed the question of whether the afterCase 1:97-cv-02600-JBS-AMD Document 469 Filed 07/01/08 Page 43 of 65 PageID: 6467
 In McNemar, the plaintiff’s relevant claim arose under 14

Title I of the ADA, which makes it unlawful for an employer to

discriminate against a “qualified individual with a disability.” 

42 U.S.C. § 12112(a). There is no meaningful distinction between

the ADA’s “qualified individual” element and the Rehabilitation

Act’s “otherwise qualified” element. See Yeskey, 118 F.3d at

170.

44

acquired evidence rule is applicable where the defendant seeks to

use such evidence to challenge the plaintiff’s status as a

“qualified individual with a disability.” McNemar, 91 F.3d at 14

621. The court reasoned that the after-acquired evidence rule

was inapplicable, explaining that

the relevant question in this case is whether McNemar

established a prima facie case of discrimination, and

because he has not, Disney has no obligation even to

articulate a legitimate business reason for its decision.

Seen in this light, the EEOC’s assertion that “[a]

plaintiff’s claim cannot be defeated by an issue of

qualifications that has nothing to do with the employer’s

motivation for the adverse action” becomes irrelevant,

again because that assertion has to do with Disney’s

putative pretext for firing McNemar, which is not a

proper concern for the court unless McNemar first has

established a prima facie case that he was qualified for

the job.

Id. (some internal quotations and citations omitted); see also 

Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1281 (10th Cir. 1999). 

The NCAA urges the Court to adopt the reasoning of McNemar and

deny Plaintiff’s motion to exclude after-acquired evidence. 

In reply, Plaintiff argues that the NCAA’s arguments run

contrary to the Court of Appeals’ instructions in Bowers. 

Specifically, Plaintiff notes that Defendants raised the same

argument on appeal, (Pl.’s Reply Br. Ex. 1), which the Court of

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45

Appeals’ impliedly rejected in holding that “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 of Bowers’ drug abuse as an

after-the-fact justification for their allegedly discriminatory

conduct.” Bowers, 475 F.3d at 537. 

3. Analysis

Although there is certainly authority from within and

outside this Circuit to support Defendants’ arguments concerning

the applicability of the after-acquired evidence rule to the

issue of whether Bowers was an otherwise qualified individual,

the Court must grant Plaintiff’s preclusion motion. Irrespective

of what result the law of this Circuit might have required the

Court to reach prior to the Court of Appeals’ decision in Bowers,

see McNemar, 91 F.3d at 621, the import of the Court of Appeals’

application of the after-acquired evidence rule to Bowers’ drug

use is unmistakable. The Court of Appeals addressed the rule

specifically in the context of an analysis of whether Bowers was

an “otherwise qualified individual with a disability,” 29 U.S.C.

§ 794(a), and did not adopt Defendants’ argument that the afteracquired evidence rule is inapplicable to the otherwise-qualified

inquiry. Instead, the court expressly found Defendants’ attack

on whether Bowers was otherwise qualified based on his drug use

to be based on “the erroneous assumption that Defendants could

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46

have used evidence of Bowers’ drug abuse as an after-the-fact

justification for their allegedly discriminatory conduct.” 

Bowers, 475 F.3d at 537. 

It is also telling that Defendants advanced a nearly

identical argument on appeal, which the Court of Appeals

apparently did not find persuasive. (Pl.’s Reply Br. Ex. 1.) 

After having raised this argument unsuccessfully on appeal,

Defendants now argue that “the Third Circuit did not thoroughly

consider whether the after-acquired evidence doctrine even

applies to plaintiff’s prima facie case of disability

discrimination.” (Temple’s Opp’n Br. 3.) This argument

essentially asks the Court to find that the Court of Appeals did

not mean what it said. Of course, the Court is in no position to

do so, and must instead find, as the Court of Appeals’ decision

makes clear, that the after-acquired evidence doctrine is

applicable to the question of whether Bowers was otherwise

qualified. Bowers, 475 F.3d at 537. 

With the law governing Plaintiff’s motion clear, its

application to the facts here is straightforward. It is

undisputed that the NCAA was not aware of the circumstances under

which Bowers took his Algebra and Geometry courses at the time he

was deemed to be a non-qualifier, so any effort by the NCAA to

use such circumstances to prove that Bowers was not “otherwise

qualified” would run afoul of the after-acquired evidence rule,

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 The NCAA suggests that Bowers’ expedited coursework is 15

also relevant to the issue of causation. According to the NCAA,

since Bowers had not taken Algebra and Geometry by his senior

year of high school, football recruiters might have lost interest

in him because he had not taken his required math courses, and

not because of his special education curriculum and designation

as a nonqualifier. As Plaintiff argues, however, whether Bowers

took those courses under “highly irregular” circumstances,

(NCAA’s Opp’n Br. at 3), is irrelevant to the NCAA’s causation

argument. Plaintiff does not dispute that the NCAA is free to

introduce evidence as to whether and when these courses appeared

on Bowers’ transcript. 

 Although Plaintiff’s opening brief in support of her 16

motion couches these points within the context of a judicial

estoppel argument, her Reply all but forgoes the judicial

estoppel argument and asks the Court to rule as a matter of law

that Bowers was disabled and/or that the NCAA regarded him as

such. 

Plaintiff’s argument that the NCAA should be judicially

47

as set forth by the Court of Appeals in Bowers, 475 F.3d at

537. Plaintiff’s motion to exclude after-acquired evidence 15

will thus be granted in its entirety. 

D. Plaintiff’s Motion to Preclude the NCAA from Contesting

that Bowers was Disabled

The Court next addresses Plaintiff’s motion to preclude the

NCAA from contesting Plaintiff’s claim that Bowers was disabled. 

In support of this motion, Plaintiff argues that the Court should

hold, as a matter of law, that Bowers had a “disability” under

the ADA, 42 U.S.C. § 12102(2); that he was an “individual with a

disability” under the Rehabilitation Act, 29 U.S.C. § 705(20)(b);

that he was “disabled” under the NJLAD, N.J.S.A. 10:5-4.1; or

that Defendants regarded or perceived Bowers as having such a

disability under each applicable statute. For the following 16

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estopped from denying that Bowers had a disability is

unpersuasive. As the Court of Appeals has emphasized, “judicial

estoppel is an extreme remedy, to be used only when [a party’s]

inconsistent positions are tantamount to a knowing

misrepresentation to or even fraud on the court.” Chao v. Roy’s

Const., Inc., 517 F.3d 180, 186 n.5 (3d Cir. 2008) (internal

quotations and citations omitted). Plaintiff insists that the

NCAA perpetrated such a misrepresentation or fraud, pointing to

examples such as the NCAA’s concession, during Plaintiff’s motion

for a preliminary injunction, that “Bowers received ‘special

education’ and related services as a result of his classification

as a student with a perceptual impairment . . .” (Pl.’s Br. Ex.

2 at ¶ 30.) The NCAA’s recognition that Bowers received certain

services as a result of being classified as a perceptually

impaired student falls far short of a misrepresentation to the

Court –- indeed, it would be difficult to imagine how the NCAA

could have disputed such a fact. Plaintiff has not identified

any conduct on the NCAA’s part amounting to fraud on the Court or

threatening the “integrity of [the judicial] system,” Krystal

Cadillac-Oldsmobile GMC Truck, Inc. v. General Motors Corp., 337

F.3d 314, 319 n.7 (3d Cir. 2003), to justify the application of

judicial estoppel.

48

reasons, Plaintiff’s motion will be denied.

First, as to the majority of arguments Plaintiff advances in

support of her motion, the Court finds that the motion is

procedurally improper, in that it calls upon the Court to weigh

the sufficiency of the evidence in support of the parties’ claims

and defenses and, in effect, to resolve the parties’ factual

disputes on the eve of trial. As the Court of Appeals has

recognized, “[u]nlike a summary judgment motion, which is

designed to eliminate a trial in cases where there are no genuine

issues of fact, a motion in limine is designed to narrow the

evidentiary issues for trial and to eliminate unnecessary trial

interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d

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49

1064, 1069 (3d Cir. 1990); see also C & E Services, Inc. v.

Ashland Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008). An in

limine motion is not a proper vehicle for a party to ask the

Court to weigh the sufficiency of the evidence to support a

particular claim or defense, because “[t]hat is the function of a

motion for summary judgment, with its accompanying and crucial

procedural safeguards.” C & E Services, 539 F. Supp. 2d at 323

(citing Bradley, 913 F.2d at 1069-70). 

It is well settled that “[m]otions in limine address

evidentiary questions and are inappropriate devices for resolving

substantive issues,” such as the sufficiency of the evidence to

support a claim or defense. Natural Resources Defense Council v.

Rodgers, No. 88-1658, 2005 WL 1388671, *1 n.2 (E.D. Cal. June 9,

2005); see, e.g., Figgins v. Advance America Cash Advance Centers

of Michigan, Inc., 482 F. Supp. 2d 861, 870 (E.D. Mich. 2007)

(“To the extent that the defendants are arguing that the facts

are insufficient to allow the plaintiff to seek punitive damages

from the jury, that argument must be rejected because it should

have been raised in a motion for summary judgment”); Provident

Life & Acc. Ins. Co. v. Adie, 176 F.R.D. 246, 250 (E.D. Mich.

1997) (“If [plaintiff] wanted to preclude [defendant] from

raising these defenses at trial because there was no genuine

issue of material fact as to them, then he should not have filed

a motion in limine on the eve of trial, but instead should have

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 The other in limine motions addressed in this Opinion do 17

not raise the same concerns as the motion presently under

consideration. Those motions do not address the sufficiency of

the facts to support particular claims, but are instead directed

at evidentiary questions or purely legal determinations regarding

the availability of a claim or defense as a matter of law. Cf.

Bradley, 913 F.2d at 1070 (observing that “[o]f course, the

district court was not precluded from considering whether the

complaint stated a claim, an issue which remains open up to the

trial on the merits”). 

 Even if Plaintiff had raised these arguments in a timely 18

summary judgment motion, there would not appear to be a basis for

the Court to rule as a matter of law that Bowers was perceived as

being disabled or that he had a record of impairments. See,

e.g., Herman v. Kvaerner of Philadelphia Shipyard, Inc., 461 F.

Supp. 2d 332, 335 (E.D. Pa. 2006) (noting that “[t]he case law of

the United States Supreme Court and the Third Circuit establishes

that the determination of whether someone is disabled is a highly

fact-intensive inquiry”); Mues v. General Revenue Corp., No.

1:05-CV-00505, 2007 WL 2248165, *7 (S.D. Ohio Aug. 2, 2007) (“The

question of whether a Plaintiff is regarded as having such an

impairment . . . [under the ADA] ordinarily is not one to be

decided on summary judgment, as it involves a determination of

state of mind that is more appropriate for the jury than for the

judge.”).

50

filed a summary judgment motion pursuant to Federal Rule of Civil

Procedure 56.”). 

17

Accordingly, to the extent that Plaintiff’s motion asks the

Court to find, as a matter of law, that Bowers had a record of

having a disability, or that the NCAA regarded Bowers as being

disabled, the motion will be denied. These arguments raise

questions of fact to be decided by the jury, and are not properly

raised through in limine motions on the eve of trial.18

The Court will, however, address the merits of Plaintiff’s

argument that Bowers was disabled as a matter of law under the

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51

antidiscrimination statutes at issue in this case because he was

determined to be in need of special education services under the

IDEA and related New Jersey statutes. According to Plaintiff,

“[t]he fact that Michael Bowers was diagnosed and classified as

having a ‘perceptual impairment,’ pursuant to New Jersey Law and

the IDEA, and that, as a result, he received special education

services under an IEP for many years, establishes as a matter of

law” that he was disabled within the meaning of the statutes that

form the basis of Plaintiff’s claims. (Pl.’s Reply Br. at 8.) 

Plaintiff’s argument is without merit. Although both the

Rehabilitation Act and the IDEA provide certain forms of relief

for children with disabilities, the statutes have distinct

purposes: “while the Rehabilitation Act provides relief from

discrimination, the IDEA provides relief from inappropriate

educational placement decisions, regardless of discrimination.” 

L.T. v. Mansfield Tp. School Dist., No. 04-1381, 2007 WL 2332308,

*2 (D.N.J. Aug. 10, 2007) (citing Hornstine v. Township of

Moorestown, 263 F. Supp. 2d 887, 901 (D.N.J. 2003)). 

Concomitant to these distinct purposes are separate

statutory definitions of what it means to be disabled or

handicapped. Under the IDEA, a “child with a disability” is

defined as a child “(i) with [any of a list of impairments,

including] specific learning disabilities; and (ii) who, by

reason thereof, needs special education and related services.” 

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52

20 U.S.C. § 1401(3)(A). Under the regulations implementing the

Rehabilitation Act, a “handicapped person” is one who “(i) has a

physical or mental impairment which substantially limits one or

more major life activities, (ii) has a record of such an

impairment, or (iii) is regarded as having such an impairment.” 

34 C.F.R. § 104.3(j)(1). 

As these separate statutory treatments of the terms

“disability” and “handicapped” make clear, “[a] special education

student is not necessarily a ‘qualified individual with a

disability’” under the Rehabilitation Act. Dohmen ex rel. Dohmen

v. Twin Rivers Public Schools, 207 F. Supp. 2d 972, 975 n.2 (D.

Neb. 2002). It is likely that there will be substantial overlap

between the categories of children who “need[] special education

and related services,” on the one hand, 20 U.S.C. § 1401(3)(A),

and children who have “a physical or mental impairment which

substantially limits one or more major life activities,” on the

other. 34 C.F.R. § 104.3(j)(1). But the likelihood of overlap

does not, as Plaintiff argues, mean that a student receiving

special education services under the IDEA is per se handicapped

under the Rehabilitation Act, see Dohmen, 207 F. Supp. 2d at 975

n.2, and does not relieve Plaintiff of her burden of proving by a

preponderance of the evidence that Bowers had “a physical or

mental impairment which substantially limit[ed] one or more major

life activities.” 34 C.F.R. § 104.3(j)(1)(i); cf. Andrew M. v.

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 In light of the fact that “[t]he question of whether an 19

individual is substantially limited in a major life activity is a

question of fact,” Williams v. Philadelphia Housing Authority

Police Dept., 380 F.3d 751, 763 (3d Cir. 2004), Plaintiff’s

suggestion that every special education student in the country is

so limited solely by virtue of the fact that both the IDEA and

the Rehabilitation Act contain the term “impairment” is

especially unconvincing.

 Section 104.3(l) provides in full: 20

53

Delaware County Office of Mental Health and Mental Retardation,

490 F.3d 337, 349 (3d Cir. 2007) (legislative history of the

Rehabilitation Act “does not indicate that a violation of the

IDEA is a per se violation of the [Rehabilitation Act] . . . . a

plaintiff must still prove that there was a violation of the

[Rehabilitation Act]”). 

19

Plaintiff’s reliance upon an inapplicable provision of the

Rehabilitation Act’s implementing regulations does not undermine

the Court’s conclusion. Plaintiff argues that under those

regulations, a “qualified handicapped person” is defined as “a

handicapped person . . . to whom a state is required to provide a

free appropriate public education under [the IDEA].” 34 C.F.R. §

104.3(l)(2). In advancing this argument, Plaintiff overlooks the

fact that the above-quoted provision only defines what it means

to be a qualified handicapped person “[w]ith respect to public

preschool elementary, secondary, or adult educational services.” 

Id. When read as a whole, § 104.3(l), set forth in full in the

margin, makes clear that different definitions of “qualified 20

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Qualified handicapped person means:

(1) With respect to employment, a handicapped

person who, with reasonable accommodation, can

perform the essential functions of the job in

question;

(2) With respect to public preschool elementary,

secondary, or adult educational services, a

handicapped person (i) of an age during which

nonhandicapped persons are provided such services,

(ii) of any age during which it is mandatory under

state law to provide such services to handicapped

persons, or (iii) to whom a state is required to

provide a free appropriate public education under

section 612 of the Education of the Handicapped

Act; and

(3) With respect to postsecondary and vocational

education services, a handicapped person who meets

the academic and technical standards requisite to

admission or participation in the recipient’s

education program or activity;

(4) With respect to other services, a handicapped

person who meets the essential eligibility

requirements for the receipt of such services.

34 C.F.R. § 104.3(l).

54

handicapped person” are applicable in different contexts, and

what serves to qualify an individual in one context does not

necessarily suffice in another context. In this case, Bowers was

applying to participate in the NCAA’s intercollegiate athletics

program, which clearly falls into section 104.3(l)’s “other

services” category. § 104.3(l)(4). Because this case has

nothing to do with whether Bowers was qualified to participate in

“public preschool elementary, secondary, or adult educational

services,” Plaintiff’s reliance upon section 104.3(l)(2) is

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55

misplaced. 

In short, Plaintiff has not demonstrated that she should be

relieved from proving that Bowers had a “physical or mental

impairment which substantially limit[ed] one or more major life

activities,” § 104.3(j)(1)(i), an element as to which she bears

the burden of proof by a preponderance of the evidence at trial. 

The Court will accordingly deny Plaintiff’s motion to preclude

the NCAA from contesting that Bowers was disabled. 

E. NCAA’s Motion to Exclude Evidence of the 1998 Consent

Decree and Other Subsequent Bylaw Changes

The NCAA has moved to exclude evidence of a 1998 Consent

Decree entered into between itself and the Department of Justice,

as well as evidence of changes in its bylaws that took place

between the designation of Bowers as a nonqualifier under those

bylaws in 1996 and the filing of the Consent Decree in 1998. For

the following reasons, the Court will grant the NCAA’s motion

with respect to the exclusion of the Consent Decree. As to the

NCAA’s motion to exclude evidence of pre-Decree bylaw changes,

the Court will grant the NCAA’s motion without prejudice to

Plaintiff’s right to seek to introduce such evidence if the NCAA

“controvert[s]” the feasibility of alternative policies in its

defense. Fed. R. Evid. 407. 

1. The Bylaws and the 1998 Consent Decree

In 1995-1996 when Bowers submitted his application to the

NCAA Clearinghouse, the NCAA’s bylaws provided that “[c]ourses

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56

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.) Additionally, Bylaw

14.3.1.3.5 provided that the NCAA’s Academic Requirements

Committee could approve “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.” (NCAA

Bylaw 14.3.1.3.5.) According to Plaintiff, under the NCAA’s

1995-1996 policies, the NCAA also imposed restrictions on

students seeking credit for SAT scores for exams taken on an

extended-time basis, (Pl.’s Opp’n Br. Ex. B), and required

students seeking waivers of initial eligibility determinations to

induce an NCAA member institution to file a waiver on their

behalf rather than permitting them to file waivers themselves. 

(Karpinski Dep. 89.)

According to evidence submitted by Plaintiff (and apparently

not disputed by the NCAA), before it entered into the 1998

Consent Decree, the NCAA made various changes to its eligibility

policies. These changes included: (1) permitting learning

disabled students to satisfy core course credits with summer

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57

school courses following graduation, (Pl.’s Opp’n Br. Ex. F); (2)

adopting Bylaw 13.3.1.3.4, which gave core course credit to

courses for students with learning disabilities that were

“substantially comparable, quantitatively and qualitatively,” to

mainstream courses; (3) permitting learning disabled students to

file waiver requests themselves; (4) loosening the restrictions

on students seeking credit for extended-time SAT scores, (Pl.’s

Opp’n Br. Ex. J); and (5) reducing the paperwork high schools

were required to submit in order to qualify special education

courses as core courses. (Pl.’s Opp’n Br. Ex. K.)

On May 26, 1998, the NCAA and the Department of Justice

entered into a Consent Decree under which the NCAA made

additional changes to its eligibility requirements. In the

Consent Decree, the NCAA did not admit liability, but instead

“dispute[d] the allegations contained in the complaints”

referenced in the Decree. (NCAA Br. Ex. A at 2.) Pursuant to

the Consent Decree, the NCAA: (1) removed the words “special

education” from Bylaw 14.3.1.3; (2) revised Bylaw 14.3.1.3.4 to

specify that the designation “special education” was itself

insufficient to disqualify a course from meeting its core

curriculum requirements; (3) permitted learning disabled students

who did not meet the initial eligibility criteria to earn an

additional year of athletic competition under certain

circumstances; and (4) revised its policies regarding self-filed

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 In its motion, the NCAA treats the Consent Decree and 21

the bylaw changes that preceded the Consent Decree collectively. 

As the instant discussion makes clear, the Consent Decree and the

independent alterations to the bylaws are subject to distinct

evidentiary considerations, and will be addressed separately in

this Opinion. 

 The Rule also provides for three exceptions, none of 22

which are applicable to this case. F. R. Evid. 408(b). 

58

waiver requests. (Id.) 

2. Admissibility of the Consent Decree

The NCAA has moved to exclude the 1998 Consent Decree under

Rule 408, Fed. R. Evid. The Court will grant the NCAA’s 21

motion. 

Under Rule 408, evidence of a party “furnishing . . . a

valuable consideration in compromising or attempting to

compromise the claim,” as well as “conduct or statements made in

compromise negotiations regarding the claim,” is “not admissible

on behalf of any party, when offered to prove liability for,

invalidity of, or amount of a claim that was disputed as to

validity or amount, or to impeach through a prior inconsistent

statement or contradiction.” F. R. Evid. 408(a) (emphasis

added). “The purpose of Rule 408 is, of course, to encourage 22

settlements and compromises of disputed claims, which would be

discouraged if such evidence were admissible.” New Jersey

Turnpike Authority v. PPG Industries, Inc., 16 F. Supp. 2d 460,

473 (D.N.J. 1998).

Courts have consistently held that Rule 408’s exclusionary

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59

provision is not limited to settlements between private parties,

but also applies to civil consent decrees between private parties

and government agencies. See, e.g., id. (citing cases). 

Moreover, as the language of the Rule makes clear, Rule 408

prevents a party from introducing settlement- and compromiserelated evidence against the compromising party whether or not

the party seeking to introduce the evidence was party to the

compromise agreement. See, e.g., Hudspeth v. C.I.R., 914 F.2d

1207, 1213 (9th Cir. 1990) (“Rule 408 does apply to situations

where the party seeking to introduce evidence of a compromise was

not involved in the original compromise”); Green v. Baca, 226

F.R.D. 624, 640 (C.D. Cal. 2005) (citing cases holding that Rule

408 “extends to evidence of completed settlements in other cases

where the evidence is offered against the compromiser”); Young v.

Verson Allsteel Press Co., 539 F. Supp. 193, 196 (E.D. Pa. 1982)

(same).

As these principles make clear, Rule 408 is plainly

applicable to the 1998 Consent Decree, and the policies

underlying the Rule would be undermined by permitting Plaintiff

to introduce the Consent Decree into evidence. The Consent

Decree is a “compromise” within the meaning of Rule 408, see New 

Jersey Turnpike Authority, 16 F. Supp. 2d at 473, and Plaintiff

seeks to use the Consent Decree as evidence of the liability of

the NCAA, a party to the compromise. See Hudspeth, 914 F.2d at

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1213. Rule 408 does not permit Plaintiff to use the Consent

Decree as evidence of the NCAA’s liability for the conduct

underlying her claims. 

Plaintiff’s argument that the NCAA should be judicially

estopped from contesting the admissibility of the Consent Decree

because it cited the agreement in its 1999 motion for summary

judgment is not persuasive. As the Court explained, supra,

“judicial estoppel is an extreme remedy, to be used only when [a

party’s] inconsistent positions are tantamount to a knowing

misrepresentation to or even fraud on the court.” Chao, 517 F.3d

at 186 n.5 (3d Cir. 2008) (internal quotations and citations

omitted). The doctrine is applicable only where “the party in

question [has] adopted irreconcilably inconsistent positions[,] .

. .the party [has] adopted these positions in ‘bad faith[,]’. . .

and . . . no lesser sanction would be sufficient.” Id. (citation

omitted). 

The NCAA’s reference to the Consent Decree in its motion for

summary judgment is not “irreconcilably inconsistent” with its

Rule 408 argument. At the time it filed its summary judgment

motion in 1999, Plaintiff had a claim for injunctive relief that

has since been dismissed. That the NCAA invoked the “importance”

of the Consent Decree in response to Plaintiff’s claim for

injunctive relief in order to show that the “NCAA has already

provided modifications to enable learning disabled students to

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meet the initial-eligibility standards,” (Pl.’s Opp’n Br. Ex. N

at 30), is not irreconcilably inconsistent with its present

position on the admissibility of the Decree, years after Bowers’

claim for injunctive relief was dismissed from the case. 

Moreover, there certainly is no indication that the NCAA’s

positions were taken in bad faith or in an effort to perpetrate a

fraud upon the Court. Chao, 517 F.3d at 186 n.5. 

In summary, the Court will grant the NCAA’s motion to

exclude evidence of the 1998 Consent Decree under Rule 408. 

3. Admissibility of Pre-Decree Bylaw Changes

The NCAA argues that evidence of pre-Decree bylaw

modifications should be excluded under Rule 407. Rule 407

provides in relevant part:

When, after an injury or harm allegedly caused by an

event, measures are taken that, if taken previously,

would have made the . . . harm less likely to occur,

evidence of the subsequent measures is not admissible to

prove . . . culpable conduct . . . . This rule does not

require the exclusion of evidence of subsequent measures

when offered for another purpose, such as proving . . .

feasibility of precautionary measures, if controverted,

or impeachment.

F. R. Evid. 407. The parties’ arguments focus largely on whether

the pre-Decree bylaw modifications should be admitted for

purposes of proving the feasibility of precautionary measures,

whether the NCAA disputes that such alternative measures were

feasible, and whether the evidence is admissible for impeachment

purposes.

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 The NCAA also argues that Plaintiff should not be 23

permitted to introduce evidence of the bylaw changes under Rule

407’s impeachment exception, because unless a witness testifies

that it was impossible to improve upon the challenged policy, the

exception is inapplicable. As the Court of Appeals explained in

Kelly v. Crown Equipment Co., 970 F.2d 1273 (3d Cir. 1992):

Dr. Watkins did not make a statement that the forklift’s

design was the best or the only one possible. He said

only that it was an excellent and proper design. Thus,

evidence of subsequent changes cannot serve to impeach

his statements . . . . Defining the term “impeachment” in

a less stringent manner would permit the exception to

swallow the rule since any evidence of subsequent

remedial measures might be thought to contradict and so

in a sense impeach a party’s testimony.

970 F.2d at 1278 (internal quotations and citations omitted). 

While the NCAA’s argument accurately describes the scope of Rule

407’s impeachment exception, this matter cannot be determined in

limine before the testimony to be impeached has been presented. 

Then Plaintiff may press this point prior to her rebuttal case,

or prior to cross-examination of a particular NCAA witness whose

testimony is sought to be impeached. 

62

In its argument, the NCAA emphasizes that evidence of the

feasibility of precautionary measures is admissible only where

the feasibility is “controverted.” Id. The NCAA argues that

under Rule 407, a party does not controvert the feasibility of an

alternative policy unless it argues that such an alternative

would be impossible. According to the NCAA, since the bylaws

consist of “mere words on a page,” it goes without saying that

“the NCAA bylaws feasibly could have been worded differently.”23

(NCAA Br. 13.) 

In response, Plaintiff argues that the NCAA will be forced

to contest the feasibility of alternatives to the 1995-96 bylaws

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as a result of the very nature of the claims and defenses in this

case. Plaintiff reiterates her argument, addressed in

subsections III.A and III.B, supra, that because the definition

of “core course” in the 1995-96 bylaws was not facially neutral,

the bylaws are not subject to a reasonable modification defense. 

See New Directions Treatment Services, 490 F.3d at 305 (holding

that “it is inappropriate to apply the ‘reasonable modification’

test to facially discriminatory laws”). Instead of being able to

raise a reasonable modification defense to her disparate

treatment claim, Plaintiff argues, the NCAA may argue in defense

that its policies were “necessary for the provision of the . . .

accommodations being offered.” 42 U.S.C. § 12182(b)(2)(A)(i). 

According to Plaintiff, because the NCAA will have to argue that

the allegedly discriminatory provisions in its bylaws were

necessary to the provision of its accommodations, its defense

will, by its very nature, contest the feasibility of alternative

policies. 

In light of its ruling, supra, that the NCAA’s bylaws were

not facially neutral, the Court is inclined to agree with

Plaintiff that the NCAA will be compelled to controvert the

feasibility of alternative policies in defending its bylaws as

“necessary for the provision of the . . . accommodations being

offered.” Id. If the NCAA argues in defense of its initial

eligibility policies that no alternative measures were feasible

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on account of the necessity of those policies to its program, or

if the NCAA introduces such evidence of infeasibility, then

Plaintiff may at trial renew her attempt to introduce evidence of

pre-Decree bylaw changes in order to demonstrate that such

alternative measures were available. The Court will grant the

NCAA’s motion to preclude pre-Decree Bylaw changes without

prejudice to Plaintiff’s right to seek to introduce such evidence

if the NCAA has “controverted” the feasibility of alternative

policies in its defense. Fed. R. Evid. 407. If so, this

determination could be revisited before Plaintiff’s rebuttal

case, or before the Plaintiff’s cross-examination of an NCAA

witness who testifies to such infeasibility of alternative

policies of the type contained in the post-1996 Bylaw changes.

IV. CONCLUSION

As the Court explains above, it will grant in part and deny

in part Plaintiff’s motion to preclude Defendants’ “reasonable

modification” and “waiver proceeding” defenses consistent with

the reasoning set forth in this Opinion, and will grant the

NCAA’s motion to exclude evidence of the 1998 Consent Decree and

pre-Decree bylaw changes without prejudice to Plaintiff’s renewal

of its request to introduce evidence of pre-Decree bylaw changes

if the NCAA controverts the feasibility of alternative policies

in its defense. In addition, Plaintiff’s motion to exclude

after-acquired evidence will be granted, and Plaintiff’s motion

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to preclude the NCAA from contesting that Bowers was disabled

will be denied. The accompanying Order will be entered. 

July 1, 2008 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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