Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2007

Bowers v. Natl Collegiate
Precedential or Non-Precedential: Precedential

Docket No. 05-2426




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                                   PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


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


          KATHLEEN BOWERS,
               Appellant, No. 05-2269

                      v.

THE NATIONAL COLLEGIATE ATHLETIC
              ASSOCIATION,
 as an Association and a Representative of its
       Member Schools, a/k/a NCAA;
          TEMPLE UNIVERSITY;
          UNIVERSITY OF IOWA

              *Barbara E. Ransom,
                  Appellant, No. 05-2262

              *Richard L. Bazelon,
                   Appellant, No. 05-2268

           *(Pursuant to FRAP 12(a))

               University of Iowa,
                   Appellant, No. 05-2426
      On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 97-cv-02600)
      District Judge: Honorable Jerome B. Simandle


             Argued September 11, 2006
Before: FUENTES, FISHER and BRIGHT,* Circuit Judges.

                 (Filed: February 1, 2007)

A. Richard Feldman (Argued)
Richard L. Bazelon
Noah H. Charlson
Bazelon, Less & Feldman
1515 Market Street, 7th Floor
Philadelphia, PA 19102

Barbara E. Ransom
Public Interest Law Center
 of Philadelphia
125 South 9th Street, Suite 700
Philadelphia, PA 19107
       Attorneys for Kathleen Bowers




      *
       The Honorable Myron H. Bright, United States Circuit
Judge for the Eighth Circuit, sitting by designation.

                                2
Barbara W. Mather (Argued)
Christopher J. Huber
Pepper Hamilton
18th and Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
       Attorneys for Barbara E. Ransom

Daniel Segal
Michele D. Hangley
Hangley, Aronchick, Segal & Pudlin
One Logan Square, 27th Floor
Philadelphia, PA 19103
      Attorneys for Richard L. Bazelon

Jessica D. Silver
Sarah E. Harrington (Argued)
U.S. Department of Justice
Civil Rights Division/Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044-4403
       Attorneys for United States of America

John B. Langel (Argued)
Shannon D. Farmer
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, PA 19103
       Attorneys for Temple University



                              3
J. Freedley Hunsicker, Jr. (Argued)
Drinker, Biddle & Reath
18th and Cherry Streets
One Logan Square
Philadelphia, PA 19103
       Attorneys for National Collegiate
       Athletic Association

Jack J. Wind
Margulies, Wind & Herrington
15 Exchange Place, Suite 510
Jersey City, NJ 07302

Gordon E. Allen
Mark Hunacek (Argued)
Office of Attorney General of Iowa
1305 East Walnut Street
Hoover State Office Building, 2nd Floor
Des Moines, IA 50319
       Attorneys for University of Iowa



                 OPINION OF THE COURT


FISHER, Circuit Judge.
       This case arises out of a high school athlete’s claims that
the National Collegiate Athletic Association (“NCAA”) and
several related institutions subjected him to unlawful
discrimination based on his learning disability. During the

                                4
course of the proceedings, plaintiff Michael Bowers met an
untimely death and his mother Kathleen Bowers has been
substituted for him. As a matter of convenience, throughout this
opinion the plaintiff-appellant will be referred to simply as
“Bowers.” In this consolidated appeal, Bowers alleges the
District Court abused its discretion by entering preclusion
sanctions against her based on its finding that she and her
attorneys committed discovery violations in bad faith. She
further argues the District Court erred when it granted the
Defendants’ motion for summary judgment, which relied in
large part on the preclusion sanctions imposed. Attorneys for
Bowers each appeal separately from the sanctions order with
respect to their reputations, arguing the District Court’s failure
to provide them with notice and an opportunity to be heard on
the issue amounted to a violation of procedural due process.
Finally, the University of Iowa cross appeals from orders
dismissing its motions asserting Eleventh Amendment immunity
to Bowers’ claims. For the reasons set forth in this opinion, we
will reverse the District Court on its grant of summary
judgment, and, in part, on its order of preclusion sanctions
against Bowers and her attorneys, and find that the University
of Iowa is an arm of the state for purposes of Eleventh
Amendment immunity but that Congress validly abrogated
sovereign immunity under Title II of the Americans with
Disabilities Act.
                      I. BACKGROUND
A.     Factual History
        This protracted dispute, spanning nearly a decade thus
far, has yielded eleven prior opinions, ten by the District Court
and one by our own. See Bowers v. NCAA, 

                                5
(D.N.J. 1997) (“Bowers I”); Bowers v. NCAA, 

(D.N.J. 1998) (“Bowers II”); Bowers v. NCAA, 

(D.N.J. 2000) (“Bowers III”); Bowers v. NCAA, 130 F.
Supp. 2d 610 (D.N.J. Feb. 2, 2001) (“Bowers IV”); Bowers v.
NCAA, No. 97-2600, 

(D.N.J. Feb. 6, 2001)
(“Bowers V”); Bowers v. NCAA, No. 97-2600, 

(D.N.J. July 3, 2001) (“Bowers VI”); Bowers v. NCAA,

(D.N.J. Aug. 6, 2001) (“Bowers VII”);
Bowers v. NCAA, 

(D.N.J. Nov. 7, 2001)
(“Bowers VIII”), rev’d in part by Bowers v. NCAA, 

(3d Cir. 2003); Bowers v. NCAA, 

(D.N.J.
2002) (“Bowers IX”), rev’d in part, remanded by Bowers, 

; Bowers v. NCAA, No. 97-2600 (D.N.J. filed
March 21, 2005) (“Bowers X”) (dismissing the case). The
underlying facts and events giving rise to the claims in this case
are thus well documented.
        Michael Bowers was a talented high school athlete with
a learning disability. This learning disability was identified
early on in his schooling as a “perceptual impairment” affecting
his ability to achieve in spite of intellectual ability and
interfering with his reading and writing skills.1 Pursuant to the
Individuals with Disabilities Education Act (“IDEA”), 42 U.S.C.


       1
        Bowers’ IQ testing placed him in the above-average
range; however, his specific learning disability affected his
organization and processing skills. These deficiencies meant
Bowers needed extra time to take tests, required help with study
habits and organizational skills, and performed better in small
group settings. Of the 24 classes Bowers took in high school,
only three were in a regular academic setting.

                                6
§§ 1400 et seq., Bowers had an Individualized Education
Program (“IEP”) prepared for him by a team of state-certified
psychologists and professional educators. Bowers’ IEP
provided for him to take the majority of his classes in a special
education setting, and allowed him to take untimed standardized
tests.
        Bowers’ difficulties in the classroom contrasted sharply
with his prowess on the gridiron. As a high school football
player in Palmyra, New Jersey, Bowers was recognized locally
and regionally for his athletic achievements.2 At some point
between his junior and senior years, these achievements began
to attract attention more widely from recruiters for prestigious
college football programs around the country. Numerous
schools, including the University of Iowa and Temple
University (“Temple”), the two university Defendants in this
case, contacted Bowers to explore the possibility of recruiting
him. Throughout the recruiting process, Bowers received
hundreds of recruitment-related letters and phone calls and was
personally visited by numerous college recruiters. The
institutions expressing an interest in Bowers were members of
the National Collegiate Athletic Association (“NCAA”), the
premier governing body of intercollegiate athletics in the United
States.
      The NCAA includes over 1,200 educational institutions
grouped into different divisions determining the “scope of the

       2
        Bowers lettered three years as a varsity football player,
was first team “All Freedom Team” (conference wide team), and
was first team “All South Jersey” and second team “All South
Jersey” his junior and senior seasons respectively.

                               7
athletic program, the level of competition, and the amount of
financial aid distributable through its athletic program.” Bowers

. One of the NCAA’s primary functions
with respect to high school athletes is to determine whether an
incoming college freshman will be academically eligible to
participate in intercollegiate athletics. The NCAA has described
the academic eligibility requirements as “designed to assure
proper emphasis on educational objectives, to promote
competitive equity among institutions and to prevent
exploitation of student athletes.” Bowers 

.
        The eligibility determination depends on several factors,
including whether the athlete graduated from high school, the
athlete’s high school grade point average (“GPA”) in thirteen
required “core courses,” and the athlete’s Scholastic Aptitude
Test (“SAT”) scores. The NCAA’s definition of core courses
specifically excludes special education classes taught below the
high school’s regular academic instruction level. (NCAA Bylaw
14.3.1.3). NCAA bylaws do provide, however, that special
education courses for the learning disabled may satisfy the core
course requirement if the student’s high school principal submits
a written statement to the NCAA indicating that students in such
classes are expected to acquire the same knowledge, both
quantitatively and qualitatively, as students in other core
courses. (NCAA Bylaw 14.3.1.3.4). NCAA bylaws also
provide for a waiver of eligibility requirements if the applicant
submits objective evidence that demonstrates “circumstances in
which a student’s overall academic record warrants the waiver
of the normal application of the requirements.” (NCAA Bylaw
14.3.1.7). The NCAA contracts with ACT, Inc. to run the
NCAA Initial-Eligibility Clearinghouse
(“ACT/Clearinghouse”), which, as its name suggests,

                               8
determines whether potential student athletes are initially
eligible to participate in college sports pursuant to NCAA
regulations. ACT/Clearinghouse reviews applications submitted
by prospective athletes and places an athlete into one of three
categories: (a) qualifier, (b) partial qualifier, or (c) nonqualifier.
        On September 13, 1995, Bowers submitted his
application to ACT/Clearinghouse and after a series of
correspondences with Bowers’ high school throughout the
1995-96 school year, ACT/Clearinghouse issued its final
certification report officially determining that Bowers was a
nonqualifier for two primary reasons: (1) his special education
courses did not satisfy the NCAA’s core course requirement;
and (2) he took an untimed SAT exam, and his application
lacked documentation required to accept such untimed
standardized test scores. Bowers 

.
Bowers alleges that this designation as a nonqualifier had
extremely severe negative consequences.           He lost the
opportunity to receive an athletic scholarship, and was
prohibited from practicing with or competing for any Division
I or II football team his freshman year.3 Even before Bowers
was designated as a nonqualifier, Bowers alleges that
Defendants University of Iowa and Temple discriminated
against him upon learning of his special education curriculum,
anticipating that he would be designated a nonqualifier by the
NCAA as a result of that curriculum. 

After


       3
        Nonqualifier status also prohibits a student athlete from
having any contact with an institutions’s athletic team, including
attending team meetings, access to the training staff, weight
room activities, and team meals.

                                  9
Bowers was officially designated as such, all recruiting efforts
ended. 

       Bowers nonetheless enrolled as a commuter student at
Temple for the Fall 1996 semester. He did not take any classes
at that time, however, because he was scheduled to undergo
back surgery. Bowers did begin taking classes in the Spring
1997 semester, however, and did very well, making the Dean’s
List with a 3.63 GPA. Despite these promising developments,
by the Fall 1997 semester, Bowers’ academic and personal life
had apparently begun to deteriorate. His grades declined during
the Fall 1997 semester and he began treatment for depression,
taking antidepressant medication prescribed by his family
physician. In addition, by this time Bowers had begun abusing
painkillers such as Percocet, Hydrocodone, and Tylenol with
codeine that had originally been prescribed to him between Fall
1996 and 1997 to manage pain associated with a back injury.
By the Spring 1998 semester, he had stopped attending classes.
Although he enrolled for classes in the Fall 1998 semester,
Bowers did not attend them and eventually dropped out of
school altogether.
       From the Fall of 1998 until mid-2001, Bowers was in and
out of drug treatment and mental health programs and, in April
1999, was hospitalized after attempting to commit suicide. In
2002, however, Bowers showed some signs of recovery. He
matriculated at American International College for the Spring
2002 semester, earned good grades, and participated in the
spring football conditioning program in anticipation of joining
the team for the fall semester. Sadly, any recovery efforts ended
abruptly on June 2, 2002, when Bowers, home from school for
the summer, died of an apparent drug overdose.

                               10
B.     Procedural History
       While we have already explored the prior proceedings in
this case at some length in a previous appeal, 

at
408-10, we are obliged to once again carefully wade into the
thicket to disentangle the issues before us. To be thorough, we
review the entire proceedings; for the sake of brevity and clarity,
however, we describe in detail only those aspects of the prior
proceedings immediately relevant to our analysis.
       On May 23, 1997, following his Spring 1997 semester at
Temple, Bowers filed a complaint in the United States District
Court for the District of New Jersey alleging, inter alia, that the
NCAA and ACT/Clearinghouse had violated Titles II and III of
the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. §§ 12132, 12182, and Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a), in their treatment of him. After
the District Court denied Bowers’ motion for a preliminary
injunction, Bowers I, 

, he filed an amended
complaint joining Temple, the University of Iowa, and
American International College as defendants and adding state
law claims under the New Jersey Law Against Discrimination
(“NJLAD”), N.J. Stat. Ann. §§ 10:5-1 ! 10:5-49.
       Defendants filed a motion to dismiss, or in the
alternative, a motion for summary judgment. The District Court
dismissed the ADA claim against ACT/Clearinghouse because
there was no evidence that it owned, leased, or operated a place
of public accommodation, as required under Title III.4 Bowers


       4
        Title III of the ADA, 42 U.S.C. § 12181 et seq.,
prohibits discrimination against the disabled in the full and equal

                                11


(quoting 42 U.S.C. § 12182(a)). It
also dismissed a Sherman Act claim against all of the
Defendants on the basis of our opinion in Smith v. NCAA, 

(3d Cir. 1998), in which we held that “eligibility rules
are not related to the NCAA’s commercial or business
activities” because “rather than intending to provide the NCAA
with a commercial advantage, the eligibility rules primarily seek
to ensure fair competition in intercollegiate athletics.” 

The District Court denied the motion in all other respects.
        Thereafter, the parties engaged in discovery. Defendants
then filed a motion for summary judgment. In a lengthy
published opinion dated November 2, 2000, the Court granted
summary judgment in favor of ACT/Clearinghouse on Bowers’
Rehabilitation Act claim, finding that the record was clear that
ACT/Clearinghouse did not receive federal funds. Bowers III,

. The District Court also granted summary
judgment in favor of ACT/Clearinghouse on Bowers’ breach of
contract claim.5 It denied summary judgment in all other
respects. In doing so, the Court rejected the argument of
Temple and the University of Iowa that they had stopped
recruiting Bowers for nondiscriminatory reasons, i.e., because
he was undersized and not skilled enough to be a Division I




enjoyment of public accommodations, 42 U.S.C. § 12182(a),
and public transportation services, 42 U.S.C. § 12184(a).
       5
        The last remaining claim against ACT/Clearinghouse
under the NJLAD was dismissed on August 6, 2001. Bowers

.

                               12
lineman, finding that there were material issues of fact as to why
the schools stopped recruiting him. 

        On February 2, 2001, the District Court granted the
NCAA’s motion for reconsideration and granted summary
judgment in favor of the NCAA and American International
College on Bowers’ Title III ADA claim. Bowers IV, 130 F.
Supp. 2d 610. The Court concluded that Bowers was not
entitled to injunctive relief because NCAA rules permitted
partial qualifiers to gain a fourth year of eligibility.6 As a result,
since Bowers no longer had standing to seek injunctive relief –
the only form of relief available under Title III – the Court
dismissed his claim. 

A few days later, the District
Court issued an opinion and order allowing Bowers to file a
second amended complaint to: (1) clarify that he sought non-
injunctive relief against Temple and the University of Iowa
under the Rehabilitation Act and the ADA; and (2) to add three
state law claims against the University of Iowa for promissory
estoppel, equitable estoppel, and fraud. Bowers V, 

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


       6
        Consequently, Bowers’ period of potential eligibility
was not any shorter than the period would have been had he
been deemed an initial qualifier. Bowers’ inability to gain a
fourth year of eligibility was the sole basis upon which the
District Court had previously determined that Bowers had
standing to seek injunctive relief. 

       7
       The Court also dismissed any claims for injunctive relief
that Bowers could otherwise assert against the Defendants under
the Rehabilitation Act. 

to be added without prejudice to enable the University
to develop an evidentiary record to support its argument that it
was an “arm of the state” and thus entitled to Eleventh
Amendment immunity. Following that discovery, on July 3,
2001, the District Court issued a decision finding that the
University of Iowa was not an arm of the state and not entitled
to sovereign immunity. Bowers VI, 

.
       Another matter had arisen in the case involving third-
party contribution. After the District Court’s November 2000
summary judgment order, Temple filed a third-party complaint
seeking contribution for any monetary liability it might have to
Bowers from Delaware State University (“Delaware State”),
University of Massachusetts-Amherst (“UMass-Amherst”), and
University of Memphis (“Memphis”), schools that also had
allegedly recruited Bowers. The third-party defendants brought
motions to dismiss the complaint, arguing: (1) neither Title II
of the ADA nor Section 504 of the Rehabilitation Act
contemplate an award for contribution; (2) the universities had
Eleventh Amendment immunity; and (3) Congress’s purported
abrogation and waiver of immunity in Title II of the ADA was
unconstitutional.
       On November 7, 2001, the District Court ruled on the
third-party motions. Bowers VIII, 

. It
granted in part and denied in part Memphis’s motion, finding
that Memphis was an arm of the State of Tennessee for Eleventh
Amendment purposes and so Temple’s contribution claim under
the NJLAD state law claim against Memphis was barred by the
doctrine of sovereign immunity. However, as to the federal
claims, it found (1) there is a right of contribution under Title II
of the ADA and Section 504 of the Rehabilitation Act,

                                14
(2) Congress validly abrogated Tennessee’s Eleventh
Amendment immunity under Title II of the ADA, and
(3) Tennessee waived its Eleventh Amendment immunity under
the Rehabilitation Act by accepting federal funds. The District
Court did not make any other dispositive rulings on Eleventh
Amendment issues, but instead ordered UMass-Amherst and
Delaware State to submit additional briefing on these issues and
granted Temple an opportunity to reply to this briefing.
        Following briefing, the District Court subsequently held
that: (1) Eleventh Amendment immunity barred Temple’s
claims for contribution against UMass-Amherst pursuant to
NJLAD; (2) UMass-Amherst was not immune from contribution
claims asserted under the ADA and Rehabilitation Act;
(3) dismissal without prejudice was warranted with respect to
claims for contribution under the NJLAD against Delaware
State; (4) a stay pending Memphis’s appeal from denial of
sovereign immunity defenses was mandated; and (5) a
certification for immediate, interlocutory appeal was warranted
with respect to the Court’s determination that a general right of
contribution existed under the ADA and Rehabilitation Act.
Bowers IX, 

.
        On appeal, we did not reach the Eleventh Amendment
issue, but rather concluded that there was not a right to
contribution under Section 504 of the Rehabilitation Act and
Title II of the 

. Even more importantly,
for purposes of our present appeal, we rejected the University of
Iowa’s argument that we had pendent appellate jurisdiction to
consider its untimely appeal of the District Court’s Eleventh
Amendment ruling. 

We noted, however, that we
likely would have to consider the Eleventh Amendment

                               15
argument eventually, but not until after a final judgment. 

District Court had stayed all matters while the case
was on appeal.8 When the case returned from appeal, the parties
thereafter engaged in further discovery heading toward a
contemplated October 2004 trial date. On May 3, 2004, the
parties entered into a confidentiality stipulation and protective
order for plaintiff to disclose Michael Bowers’ medical records.9
On May 11, 2004, the scheduled date of Kathleen Bowers’
deposition, attorneys for Bowers provided to Defendants for the
first time some of Michael Bowers’ medical records. Because
these records showed for the first time that he had a preexisting
drug condition that was not disclosed to Defendants, the District
Court entered a series of orders directing Michael Bowers’
medical providers to release all of his medical records. Upon
release of these records, the full extent of Bowers’ substance
abuse and substance abuse treatment became apparent.


       8
         During that period, two significant events occurred.
First, as already related, Michael Bowers died on June 2, 2002,
as a result of an apparent cocaine and heroin overdose. This was
the first indication to Defendants that Bowers had any kind of
drug problem. Second, the original district judge retired from
the bench. The case was reassigned to District Judge Simandle,
who inherited the procedural morass at the eleventh hour and
was confronted with the difficult question of how to deal with
the consequences of Bowers’ non-disclosures.
       9
       At this point in the dispute, the NCAA, Temple, and the
University of Iowa remained as Defendants.

                               16
Thereafter, on October 15, 2004, Temple moved for sanctions,
arguing that the case should be dismissed with prejudice as a
sanction for Bowers’ concealment of substance abuse and
substance abuse treatment. It also moved for summary
judgment, arguing that Bowers was not a qualified individual
with a disability as a result of his drug use. The NCAA and the
University of Iowa joined the motions.
       The parties did not dispute that Bowers and attorneys for
Bowers had failed to disclose information regarding Michael
Bowers’ substance abuse and his depression to Defendants until
May 2004, nearly two years following his death. However,
attorneys for Bowers argued that the discovery requests were
narrow and they were therefore not required to seasonably
amend them under Federal Rule of Civil Procedure 26(e)(2) to
disclose treatment for alcoholism or depression. The District
Court rejected this argument, and determined that Bowers’
failure to disclose the information in a timely fashion was a
willful one, in bad faith, and that it irreparably prejudiced
Temple’s ability to prepare a defense to Bowers’ claims.
Bowers X, No. 97-2600 (D.N.J. March 21, 2005).
       The District Court further concluded that evidence of
Michael Bowers’ drug use was relevant not only to the issue of
damages, but also to questions of liability. Consequently, the
District Court entered a sanctions order pursuant to Federal
Rules of Civil Procedure 37(c)(1) and 37(b)(2)(B). This
sanctions order impaired Bowers’ case in critical fashion. First,
it precluded her from using any previously concealed
information to support her claim that Defendants were liable for
Michael Bowers’ drug abuse and depression. Second, they
precluded her from opposing Defendants’ claim that Michael

                               17
Bowers’ drug abuse rendered him unqualified to participate in
intercollegiate athletics at all relevant times, which as a practical
matter meant Defendants would be immune from liability.10 See
Order granting Motion for Joinder, granting Motion for
Sanctions & granting Motion for Summary Judgment,
No. 97-2600 (Simandle, J.) (March 21, 2005).
       The District Court then considered Temple’s renewed
motion for summary judgment in light of the sanctions it
imposed and concluded that Bowers was not a “qualified
individual with a disability” under the ADA nor “otherwise
qualified” under the Rehabilitation Act because his “drug use
made him ineligible to compete for Temple or any other
school.” Bowers X, No. 97-2600, at 37-38. The Court granted
the motion for joinder of the remaining Defendants and
dismissed Bowers’ case against all Defendants. The District
Court did not reach the University of Iowa’s motion for
reconsideration on Eleventh Amendment grounds, dismissing
the claim as moot.
      Four parties filed timely appeals. Bowers filed an appeal
from: (1) the March 21, 2005 Order granting defendant
Temple’s motion for sanctions against Bowers and Defendants’
motion for summary judgment; and (2) the June 8, 1998 order

       10
          To bring a claim under the ADA, a plaintiff must
demonstrate she was “otherwise qualified” at the time of the
allegedly unlawful discrimination. By precluding her from
challenging Defendants’ assertion that Michael Bowers was
“unqualified” at the time of the allegedly unlawful
discrimination, the sanctions thus effectively crippled Bowers’
ability to establish a necessary element of her claim.

                                 18
which dismissed with prejudice her Sherman Act claims with
respect to all Defendants.11 Bowers’ attorneys, Barbara E.
Ransom and Richard L. Bazelon, each separately filed an appeal
from the sanctions portion of the March 21, 2005 order. Finally,
the University of Iowa filed a cross-appeal from: (1) the
March 21, 2005 order of the District Court dismissing as moot
its renewed motion for summary judgment based on sovereign


       11
         Bowers has waived this portion of her appeal, failing to
formally present or even mention in passing the District Court’s
dismissal of her Sherman Act claims as an issue in her brief.
See Federal Rule of Appellate Procedure 28; see also Canady v.
Crestar Mortgage Corp., 

, 973-74 (4th Cir. 1997)
(finding issue specified in notice of appeal but not mentioned in
appellate brief was deemed waived); Williams v. Chater, 

, 706 (5th Cir. 1996) (holding issues raised in notice of
appeal but not briefed are deemed waived); Cumberland Farms,
Inc. v. Montague Econ. Dev. and Indus. Corp., 

, 12
n.1 (1st Cir. 1996) (holding appellant waived issue raised in
notice of appeal when it was not referred to in brief); Tilson v.
Forrest City Police Dep’t, 

, 806 n.8 (8th Cir. 1994)
(holding appellant waived issues that it raised in notice of appeal
but failed to brief on appeal). However, we note that even if this
issue were not waived, our decision in 

(“[E]ligibility rules are not related to the NCAA’s commercial
or business activities” because “rather than intending to provide
the NCAA with a commercial advantage, the eligibility rules
primarily seek to ensure fair competition in intercollegiate
athletics.”), clearly precludes Bowers from sustaining Sherman
Act claims in this case.

                                19
immunity; and (2) the July 3, 2001 order denying it immunity
from Bowers’ ADA, Rehabilitation Act, and NJLAD claims.
       The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1337, 1343, and 42 U.S.C. §§ 12133, 12188, based on
the federal claims asserted by Bowers. The District Court had
supplemental jurisdiction over Bowers’ state-law claims,
pursuant to 28 U.S.C. § 1367. We have jurisdiction under 28
U.S.C. § 1291 to hear this appeal from the final order of the
District Court entering summary judgment on all claims.
                       II. ANALYSIS
A.     The District Court’s Grant of Summary Judgment
       We begin our analysis with the issue of summary
judgment because our disposition of this issue will help clarify
our subsequent discussion of the preclusion sanctions ordered in
this case. Our standard of review on an appeal from a grant of
summary judgment is plenary, Dowling v. City of Phila., 

, 141 (3d Cir. 1988), applying the same standard the
District Court was required to apply. Olson v. Gen. Elec.
Astrospace, 

, 951 (3d Cir. 1996) (citations
omitted). That standard is provided by Federal Rule of Civil
Procedure 56(c), which directs that summary judgment may be
granted only when “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” In following this directive, we must take the
facts in the light most favorable to the nonmoving party,
Bowers, and draw all reasonable inferences in her favor.
McCarthy v. Recordex Serv., Inc., 

, 847 (3d Cir.
1996).



                              20
       The District Court’s summary judgment analysis in this
case was fundamentally flawed in that it failed to focus on the
correct time frame with respect to Defendants’ liability. We
have clearly stated that the determination of whether a person
was a “qualified individual with a disability” for the purposes of
an ADA claim12 is not made from the time the lawsuit was filed
or any other later time period, but from the point at which the
alleged discriminatory decision was made. Turner v. Hershey
Chocolate U.S., 

, 611 (3d Cir. 2006); Gaul v.
Lucent Techs., 

, 580; see also Bates v. Long Island
R.R. Co., 

, 1035 (2d Cir. 1993). In this case, the
allegedly discriminatory conduct occurred over the course of the
Fall 1995-96 school year, during which time Bowers was
deemed to be a nonqualifier and the defendant universities in
this case allegedly stopped recruiting him for that reason.13

       12
         Although the language of the ADA and Rehabilitation
Act differs, the standards for determining liability under the two
statutes are identical. McDonald v. Pa. Dep’t of Pub. Welfare,

, 94 (3d Cir. 1995) (“Whether suit is filed under the
Rehabilitation Act or under the Disabilities Act, the substantive
standards for determining liability are the same.”) (citation
omitted). Similarly, we have held that the NJLAD relies on the
same analytical framework as the ADA. Gaul v. Lucent Techs.,
Inc., 

, 580 (3d Cir. 1998).
       13
           The NCAA itself recognized that the relevant time
frame for determining whether Bowers was qualified to be a
Division I football player was 1995-96. See Letter from NCAA
Counsel to U.S. Magistrate Judge Rosen (May 26, 2004) (“The
issue . . . is whether there was disability discrimination . . . that

                                 21
        The District Court had previously correctly identified
Bowers’ claims as stemming from alleged unlawful
discrimination taking place in 1995-96. In its November 2000
summary judgment opinion, Bowers III, 

,
the District Court recognized that the case turned on whether
Bowers was discriminated against in 1995-96, when Bowers
was a high-school senior and then a college freshman. 

(“Bowers has . . . sued Temple University, the University of
Iowa, and American International College for discrimination on
the ground that these schools stopped recruiting Bowers to play
football when they concluded that his learning disability would
likely result in the NCAA declaring him a non-qualifier.”); 

that the NCAA discriminated against him
because of his disability in declaring him ineligible to participate
in intercollegiate athletics as a college freshman.”).
        Situating Bowers’ claims in Fall 1995-96 and taking all
reasonable inferences in Bowers’ favor as the nonmoving party,
we find there is a genuine issue of material fact as to whether
Bowers was a “qualified individual with a disability” or
“otherwise qualified,” under the ADA and Rehabilitation Act,
respectively. Furthermore, Michael Bowers’ drug abuse does
not preclude Bowers’ claims. The evidence of any substance
abuse in 1995-96 is minimal. Bowers apparently tried marijuana
for the first time in 1991 at age 13 but appeared to use the drug
infrequently. His last reported marijuana use was in July 1998,
at which point he reported he had shared a “joint” five times



occurred in 1995-1996, when under the NCAA rules Bowers
was deemed a ‘non-qualifier.’”) (emphasis in original).

                                22
over the past year.14 There is no evidence that Bowers was
taking any other illicit drugs in 1995-96. Bowers told
counselors at Seabrook House that drugs did not become a
problem for him until 1998. Dr. Carol Roberts, an expert
retained by Bowers, stated in her report that: “In describing his
own plunge into depression and addiction, Michael told me that
in high school he had stayed away from drugs because he
needed to be in top physical condition to play sports. He
graduated in 1996, and at the end of 1998 while he was at
Temple, he tried snorting cocaine with a friend.” The record
does indicate that Bowers began taking painkillers in Fall 1996.
However, while Bowers acknowledged that he eventually
became addicted to these painkillers, he began taking them on
prescription, and after he was already denied initial eligibility
and after recruiting efforts has ceased. Furthermore, there is no
indication that he would have failed an NCAA drug test for
ingesting prescription drugs. See NCAA policy 31.2.3.2.
       All of the substance abuse evidence cited by the District
Court, with the exception of the inconclusive marijuana-use
evidence, pertained to the use of those substances after 1995-96,
at which point Bowers’ substance abuse was irrelevant for
purposes of establishing liability in this case. In addition,
Defendants’ argument that Bowers was unqualified at the
relevant time frame as a result of his drug abuse rests on the
erroneous assumption that Defendants could have used evidence


       14
          Temple’s own counsel admitted at oral argument that
there was no evidence that Michael Bowers used marijuana in
his last year of high school, when he was seeking initial
eligibility. (App. 275).

                               23
of Bowers’ drug abuse as an after-the-fact justification for their
allegedly discriminatory conduct. It is clear that the Defendants
were completely unaware of Bowers’ drug abuse at the time the
allegedly unlawful discrimination took place in 1995-96 as well
as during the time Bowers was at Temple. Indeed, that fact is
the very source of the controversy with respect to the sanctions
in this case. In turn, the Defendants “could not have been
motivated by knowledge [they] did not have,” McKennon v.
Nashville Banner Publishing Co., 

, 360 (1995), and
thus cannot now claim that Bowers was deemed a nonqualifier
because of his drug abuse. See also Mardell v. Harleysville Life
Ins. Co., 

(3d Cir. 1995) (applying McKennon in
unlawful discrimination context and holding after-acquired
evidence of misconduct is relevant to damages but does not bar
liability).
       Thus, taking all reasonable inferences in Bowers’ favor,
we find genuine issues of material fact remain as to whether
Bowers was a “qualified individual with a disability” at the
relevant time period for establishing liability. The Defendants
are therefore not entitled to judgment as a matter of law and,
accordingly, we will reverse the District Court’s grant of
summary judgment.
B.     The District Court’s Imposition of Preclusion Sanctions
        Because we have concluded that the District Court’s
summary judgment analysis was erroneous for reasons
independent of the order of sanctions in this case, we need not
review the sanctions order under the standard set forth in Poulis
v. State Farm Fire & Cas. Co., 

(3d Cir. 1984)
(setting forth a test to determine when a trial court’s dismissal
of a case pursuant to preclusion sanctions constitutes an abuse

                               24
of discretion).15 In this case, unlike in Poulis, the District Court
did not specifically impose dismissal of the case as a sanction.
Thus, based on our summary judgment ruling, even if the
sanctions orders were entirely upheld, this would not result in a
de facto dismissal of the case. However, we find that certain
aspects of the District Court’s preclusion sanctions analysis rest
on the same erroneous assumption as its summary judgment
analysis – namely, that Bowers’ alleged drug abuse was relevant
for purposes of determining liability in 1995-96. For this
reason, as well as others discussed more fully below, we reverse,
in part, the sanctions imposed.
       The decision to impose sanctions for discovery violations
and any determination as to what sanctions are appropriate are
matters generally entrusted to the discretion of the district court.
National Hockey League v. Metropolitan Hockey Club, 

(1976) (per curiam). We therefore review a district court’s
decision to impose preclusion sanctions for abuse of discretion.
Newman v. GHS Osteopathic, Inc., 

, 156 (3d Cir.
1995). While this standard of review is deferential, a district


       15
         In Poulis, we set forth six factors to be balanced in
deciding whether to dismiss a case as a sanction: (1) the extent
of the party’s personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness; (4) whether
the conduct of the party or the attorney was willful or in bad
faith; (5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense. Poulis v. State Farm
Fire & Cas. Co., 

, 868 (3d Cir. 1984).

                                25
court abuses its discretion in imposing sanctions when it
“base[s] its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Cooter & Gell
v. Hartmarx Corp., 

, 405 (1990).
      The District Court found that Bowers and her attorneys
had failed to fulfill their duty under Federal Rule of Civil
Procedure 26(e) to supplement responses to discovery requests
throughout the course of litigation.16 More specifically, it found


       16
         Rule 26(e) provides as follows:
       (e) Supplementation of Disclosures and
       Responses. A party who has made a disclosure
       under subdivision (a) or responded to a request
       for discovery with a disclosure or response is
       under a duty to supplement or correct the
       disclosure or response to include information
       thereafter acquired if ordered by the court or in
       the following circumstances:
       (1) A party is under a duty to supplement at
       appropriate intervals its disclosures under
       subdivision (a) if the party learns that in some
       material respect the information disclosed is
       incomplete or incorrect and if the additional or
       corrective information has not otherwise been
       made known to the other parties during the
       discovery process or in writing. . . .
       (2) A party is under a duty seasonably to amend a
       prior response to an interrogatory, request for
       production, or request for admission if the party
       learns that the response is in some material

                               26
that Bowers and her attorneys had willfully and in bad faith
concealed from defense counsel evidence of Bowers’ escalating
substance abuse and substance abuse treatment. Therefore, in
order to review this finding, it will be necessary to revisit the
history of Bowers’ substance abuse and depression treatment.
As the District Court correctly perceived, “the history of
Plaintiff's drug use is complex and convoluted but nevertheless
central to the issues [in this case].” Bowers X, No. 97-2600, at
9.
        Bowers tried marijuana for the first time in 1991 at age
13. It is unclear from the record how often he used it thereafter,
but his last reported use, as already stated, infra, was in July
1998, at which point his use of that substance appeared to be
intermittent. Between September 1996 and March 1997, after
hurting his back lifting weights, Bowers was prescribed at least
nineteen different painkillers, including Percocet, Hydrocodone,
and Tylenol with codeine, to which he would eventually become
addicted. By August 1998, Bowers had begun using heroin and
cocaine. Approximately two months later, in October of the
same year, he first began to seek help for his substance abuse,
entering an intensive two-week inpatient drug rehabilitation
program at Seabrook House. Located in Bridgeton, New Jersey,
Seabrook House is a prominent inpatient drug and alcohol
rehabilitation center.


      respect incomplete or incorrect and if the
      additional or corrective information has not
      otherwise been made known to the other parties
      during the discovery process or in writing.
Fed. R. of Civ. P. 26(e).

                               27
        Following his inpatient program at Seabrook House,
Bowers attended a daily outpatient drug treatment program, also
administered by Seabrook House at a separate facility in Cherry
Hill, N.J.. This program included therapy sessions with a non-
physician drug counselor and a drug treatment program with a
physician, Dr. Lance Gooberman, who, from June 4, 1999 until
Bowers’ death, treated him for his drug addiction with an
experimental drug treatment program. Bowers also received
inpatient treatment at Rancocas Hospital for bipolar disorder and
polysubstance abuse from November 5, 1999 to November 26,
1999. In addition, Dr. Alan Rosenweig treated Bowers for
depression and anxiety from December 7, 1999 to May 29,
2001, during which time Bowers was hospitalized after
attempting to commit suicide. Bowers then underwent inpatient
drug treatment on at least two more occasions at two separate
facilities – at Bergen Regional Medical Center from March 10,
2000 to March 14, 2000, and at Zurbrugg Hospital in October
2000, followed by daily outpatient treatment from October 2000
until December 2001.
       On August 7, 1998, Defendants served a set of
interrogatories on Bowers, including Interrogatory 15, which
asked Bowers to “[i]dentify all physicians or physical therapists
who have treated or evaluated you from September 1, 1996
through the present date” and to “describe in detail the reason
for that treatment.” On October 28, 1998, in response to
Interrogatory 15, Bowers identified two physicians who treated
him during that time frame: Dr. Zeon Switenko (his family
physician) and Dr. Benjamin Smolenski (an orthopedist).
Bowers, who had just completed his two-week inpatient stay at
Seabrook, did not mention that stay or indicate that any
physicians treated him during his time there. Nor did he

                               28
supplement his answer to Interrogatory 15 at any time
throughout the course of the litigation to reference, at the very
least, Drs. Gooberman and Rosenweig.17
        Interrogatory 19 of the August 7, 1998 interrogatories
requested that Bowers, “with respect to damages . . . describe in
detail each element of that relief; state all facts that provide the
basis of that relief, including the amount, if any; and identify all
documents relating or referring to each component of that relief,
. . . and identify every individual with knowledge of the facts
relating to those alleged damages or other relief.” Bowers
responded to Interrogatory 19 (under an objection), stating that
he sought consequential damages for loss of scholarship and loss
of career opportunities in the amount of $150,000.00, and
compensatory damages for pain and suffering and emotional
distress in the amount of $500,000.00. Additionally, Bowers
stated that he could not compute punitive damages at that stage
in the discovery process. Bowers did not identify any of the
physicians who had treated him as “individuals with knowledge
of the facts relating to those alleged damages or other relief.”
Defendants’ First Request for Production of Documents also
served on August 7, 1998, requested that Bowers produce “[a]ll
documents identified in your answers to the interrogatories of all
defendants in this litigation.” Bowers did not produce any
documents related to his treatment for substance abuse.


       17
         The standard instructions to the interrogatories stated
that the interrogatories were “continuing and any information
secured subsequent to the filing of [the] answers, which would
have been includable in the answers had it been known or
available, is to be supplied by supplemental answers.”

                                29
        Bowers testified at his November 30, 1998 deposition
that he became depressed after he was denied initial eligibility
by ACT/Clearinghouse, and that he was prescribed two
antidepressant medications by his physician, Dr. Switenko.
Bowers was then asked: “Other than Dr. Switenko has any
other physician treated you for depression?” Bowers answered
“No.” He was then asked if he had “ever seen another physician
other than Dr. Switenko for treatment of anxiety?” Bowers
answered “No” to that question as well. At his January 11, 1999
deposition, Bowers also denied receiving any treatment for
depression since November 1998. Bowers did not disclose his
stay at Seabrook or any subsequent treatment. Bowers also
testified in his March 1999 deposition that he was unaware why
he did not take any exams in the Fall 1998 semester, despite the
fact that he had been recently discharged from inpatient drug
treatment at Seabrook.
        As already stated, Defendants claim that Bowers willfully
failed to comply with discovery requests in violation of Rule
26(e). Important to note, however, is that the discovery requests
in this case did not request information regarding Bowers’ drug
and alcohol addiction. Neither did Defendants make any
explicit request for Bowers’ medical records until March 15,
2004. Consequently, we believe there is some merit to Bowers’
argument that she had no duty to turn over that information prior
to an explicit request. We recognize that modern discovery
rules, particularly Rules 26 and 37, were enacted to prevent civil
trials in the federal courts from being “carried on in the dark.”
Hickman v. Taylor, 

, 500 (1947); see United States
v. Procter & Gamble Co., 

, 682-83 (1958)
(“Modern instruments of discovery . . . together with pretrial
procedures make trial less a game of blind man’s bluff and more

                               30
a fair contest . . . .”). However, we agree with Bowers that the
duty of supplementation under Rule26(e)(2) “does not require
that a party volunteer information that was not encompassed
within the scope of an earlier discovery request.” Polec v.
Northwestern Airlines, Inc., 

, 539 (6th Cir. 1996).
       However, the interrogatories do plainly request
information on “all physicians or physical therapists that have
treated [Michael Bowers].” The District Court was clearly
correct in finding that the failure by Bowers and attorneys for
Bowers to turn over information regarding his subsequent
treatments with physicians for drug addiction from Fall 1998
until his death was willful and in bad faith. Bowers did not
disclose any of the doctors that treated him at Seabrook, Bergen
Regional Medical Center, or Zurbrugg Hospital. Nor did he
disclose that he had been treated by Drs. Gooberman and
Rosenweig. It is simply inconceivable that Bowers and counsel
for Bowers could not have recognized their obligation to
disclose treatment by these physicians given the clarity of
Defendants’ discovery request for the information on “all
physicians.”
       Moreover, the disclosure of this treatment clearly would
have led to discoverable information. It is virtually certain that
Defendants would have learned of Bowers’ drug use had he
disclosed his treatment with Dr. Gooberman. Dr. Gooberman
was well-known for prescribing a controversial subcutaneous
“pellet treatment” program for patients suffering from severe
heroin addictions. In fact, Gooberman’s office letterhead states
clearly that he specializes in “addiction medicine.” While
Bowers is correct that Defendants did not explicitly ask for
medical records or information about possible drug addiction,

                               31
had Bowers complied with her discovery obligations,
Defendants might have learned about Bowers’ drug use as early
as October 1998. Indeed, following that crucial thread of
information, Defendants would have been able to uncover
Bowers’ past drug use prior to his death and depose him on the
subject.18 Instead, that opportunity eluded them for four years
as Bowers failed to disclose his course of substance abuse
treatment with multiple physicians. Allowing any information
regarding Bowers’ substance abuse to be introduced
posthumously by Bowers for her own advantage would thus be
patently unfair to Defendants, who were clearly blind-sided by
that evidence. As a result, we find the District Court did not
abuse its discretion in issuing preclusion sanctions with respect
to Bowers’ drug use.
        However, we find it was an abuse of discretion for the
District Court to preclude Bowers from introducing any
evidence of his depression. Unlike Bowers’ drug problems,
which would have been readily revealed had he disclosed his
treatment with Dr. Gooberman, Defendants were not blind-sided
by evidence that Bowers had suffered from depression. Bowers
was forthright about his depression from the outset. Bowers’
initial Rule 26 disclosures requested “punitive damages for the


       18
         We reluctantly agree with Bowers that there is scant
evidence in the record as to whether Michael Bowers was
treated by any physicians at Seabrook, Bergen Medical Center,
or Zurbrugg Hospital. However, we find it difficult to imagine
that Bowers was not treated by a single physician during his
multiple inpatient hospital stays, including one for an attempted
suicide.

                               32
pain and suffering that [sic] the trauma of not being able to
achieve his goal to play college football and the advantages that
ensue therefrom . . . .” Bowers responded to Defendants’
interrogatory requests that he sought consequential damages
from loss of scholarship and career opportunities in the amount
of $150,000.00, and compensatory damages for pain and
suffering and emotional distress in the amount of $500,000.00.
Temple recognized this damage claim to be based upon Bowers’
depression, noting that in Bowers’ Rule 26 disclosures
“[p]rincipally, he claimed to have been suffering from
depression.” Mem. of Law in Supp. of Mot. for Sanctions of
Def. Temple University at 3. Defendants’ consolidated brief
further acknowledges that Defendants were previously aware of
Bowers’ depression. Consol. Br. for Appellees at 14 (“Bowers
limited his emotional distress claims solely to depression from
not being able to play NCAA Division I football.”). Defendants
also recognized in their consolidated brief that they had
“focused on [Bowers’] claim of depression during his
January 11, 1999 deposition,” and that “depression was the only
emotional harm he identified under repeated questioning.” 

18.
       While Bowers’ depression certainly may have become
aggravated by and intertwined with his drug abuse at some
point, we believe the two can be disentangled for purposes of
establishing damages in this case. Indeed, Bowers’ depression
has been a centerpiece of his claims for damages from the
inception of this case, long before the clear onset of any
substance abuse problems. Consequently, we conclude the
District Court’s blanket preclusion of evidence related to
depression reflects a “clearly erroneous assessment of the
evidence in record” and was thus an abuse of discretion. Cooter

                               33
& 

. We will therefore affirm the sanctions
order of the District Court only insofar as it precludes Bowers,
in proving damages, from using evidence of his drug abuse and
drug abuse-related depression.
        Furthermore, we reverse the sanctions order insofar as it
precludes Bowers from opposing Defendants’ claim that
Michael Bowers’ drug abuse rendered him unqualified to
participate in a program of intercollegiate athletics at all relevant
times. That aspect of the sanctions order, again, reflects a
failure on the part of the District Court to correctly focus on the
time frame of 1995-96 as the relevant time period for evaluating
the claims in this case. As elaborated more fully in our
discussion of the District Court’s summary judgment analysis,
infra Part II.A, 1995-96 is the time period in which the NCAA
allegedly unlawfully discriminated against Bowers by denying
him initial eligibility. This is also the time period during which
Bowers alleges the university Defendants participated in that
allegedly unlawful discrimination. This is therefore the relevant
time frame for purposes of establishing liability.
        The District Court’s failure to focus on this period led to
a clearly erroneous assessment of the relevance of Bowers’ post-
1995-96 drug abuse and concealment of that abuse. The Court
concluded that “evidence of record thus shows that Michael
Bowers’ pattern of substance abuse involving painkillers, heroin
and other drugs, originally hidden, precluded his participation in
intercollegiate athletics at all relevant times.” Bowers X, No.
97-2600, at 41. However, at the relevant time for purposes of
establishing Defendants’ liability, 1995-96, the record is devoid
of any evidence that Bowers was addicted to painkillers or had
begun using cocaine and heroin. There is no evidence that this

                                 34
drug abuse began until after the relevant time period – after
Bowers had been denied initial eligibility and after the
university Defendants had stopped recruiting him.19 Thus, the
District Court’s conclusion that Bowers’ drug abuse was
relevant to the issue of liability is clearly erroneous and we
reverse that part of its order precluding Bowers from opposing
Defendants’ claim that Michael Bowers’ drug abuse rendered
him presumptively unqualified in Fall 1995-96.
C.     Separate Appeal of Attorneys for Bowers with Respect
       to Sanctions Order
       As a threshold matter, we must determine whether
attorneys for Bowers have standing to appeal the sanctions order
in this case. Standing is the “irreducible constitutional
minimum” necessary to make a justiciable “case” or
“controversy” under Article III, § 2. Lujan v. Defenders of
Wildlife, 

, 560 (1992). The sanctions order in this
case clearly granted Temple’s sanctions motion against Bowers,
but did not impose any additional monetary or disciplinary

       19
          In addition, the Defendants’ argument that they were
substantially prejudiced by this concealment with respect to
defending against liability is undermined by the logic of
McKennon v. Nashville Banner Publishing Co., 

,
360 (1995) (finding employer could not have been motivated by
knowledge it did not have and claim that an employee was fired
for a nondiscriminatory reason), and Mardell v. Harleysville Life
Ins. Co., 

(3d Cir. 1995) (applying McKennon in
unlawful discrimination context and holding after-acquired
evidence of misconduct is relevant to damages but does not bar
liability).

                               35
sanctions on Bowers’ attorneys beyond factual findings and
language in the actual order that the conduct of those attorneys
merited sanctions. Defendants argue that because the District
Court did not impose any monetary penalty directly against
counsel, but rather limited the sanction to precluding plaintiff
from introducing and challenging certain evidence that was
withheld under Rule 37, attorneys for Bowers have not suffered
a cognizable “injury” to establish Article III standing. 

previously stated that “an attorney subjected to
a sanction may appeal.” Bartels v. Sports Arena Employees
Local 137, 

, 104 (3d Cir. 1988). However, a
review of the case law on this question reveals some
disagreement among the courts of appeals as to whether and
when a court’s statement in a judicial opinion amounts to a
sanction “affecting an attorney’s professional reputation” and
thus “impos[ing] a legally sufficient injury to support appellate
jurisdiction.” Butler v. Biocore Med. Techs., Inc., 

, 1167-68 (10th Cir. 2003). Most courts agree that mere
judicial criticism is insufficient to constitute a sanction. United
States v. Talao, 

, 1138 (9th Cir. 2000); Williams
v. United States, 

, 90 (1st Cir. 1998); Bolte v. Home
Ins. Co., 

, 573 (7th Cir. 1984).
       In addition, courts are in near complete agreement that an
order rising to the level of a public reprimand is a sanction. See
Bank of Nova Scotia v. United States, 

, 263 (1988)
(noting ability to issue a formal reprimand of attorney for
violating Federal Rule of Criminal Procedure); 

(equating formal finding with public reprimand and
sanction); 

, 92 (“Words alone may
suffice [as sanctions] if they are expressly identified as a

                                36
reprimand.”); Walker v. City of Mesquite, Tx., 

, 832
(5th Cir. 1997) (finding appealable sanction where attorneys
were “reprimanded sternly and found guilty of blatant
misconduct”); United States v. Horn, 

, 758 n.1 (1st
Cir. 1994); see also Fed. R. Civ. P. 11(c)(2) (providing, inter
alia, that sanctions may consist of “directives of a nonmonetary
nature”). The reason for the courts’ consensus is that a public
reprimand carries with it the formal censure of the court and
may, in many cases, have more of an adverse effect upon an
attorney than a minimal monetary sanction. See, e.g., Precision
Specialty Metals, Inc. v. United States, 

, 1353
(Fed. Cir. 2003). Only the Seventh Circuit has clearly held that
a public reprimand not accompanied by a monetary sanction is
non-appealable. Clark Equip. Co. v. Lift Parts Mfg. Co., Inc.,

, 820 (7th Cir. 1992) (“[W]e have already decided
that an attorney may not appeal from an order that finds
misconduct but does not result in monetary liability, despite the
potential reputational effects.”).
        There is more substantial disagreement among the courts,
however, as to whether a factual finding in an opinion that an
attorney has engaged in improper conduct is in itself a sanction,
or whether the court must enter an explicit order that the conduct
is sanctionable. Compare Precision Specialty Metals, 

(stating fact that reprimand not explicitly contained
in separate order was not determinative in whether the court has
entered a formal reprimand), and 

(factual finding of misconduct alone sufficient to constitute
sanction), and Sullivan v. Comm. on Admissions and
Grievances, 

, 956 (D.C. Cir. 1967) (same), with
Weissman v. Quail Lodge, Inc., 

, 1199 (9th Cir.
1999) (stating that a factual finding in an opinion that “merely

                               37
serves to justify the imposition of a sanction is not an
independent sanction”); 

(same); The
Baker Group, L.C. v. Burlington Northern and Santa Fe Ry. Co.,

(8th Cir. 2006).20 We need not examine that
dichotomy in great detail in this case because both the order and
opinion issued by the District Court in this case explicitly stated
that the Court was sanctioning not only Bowers but also her
attorneys.
        The sanctions order entered by the District Court states,
in pertinent part, as follows:
       It is this 21st day of March, 2005 hereby


       20
          The First Circuit’s approach (adopted by the Ninth) in
determining whether nonmonetary verbal admonitions constitute
a sanction focuses on whether the judicial criticism is expressly
designated in the order as a formal reprimand:
        Let us be perfectly clear. Sanctions are not
        limited to monetary imposts. Words alone may
        suffice if they are expressly identified as a
        reprimand. But critical comments made in the
        course of a trial court’s wonted functions – say,
        factfinding or opinion writing, do not constitute a
        sanction and provide no independent basis for an
        appeal.
Williams v. United States, 

, 92 (1st Cir. 1998); see
also Weissman v. Quail Lodge, Inc., 

(9th Cir.
1999) (stating that a disparaging comment that merely serves to
justify the imposition of a sanctions order is not an independent
sanction).

                                38
       ORDERED that Defendant Temple University’s
       motion for sanctions against Plaintiff and
       Plaintiff’s counsel Barbara E. Ransom, Esq. and
       Richard L. Bazelon, Esq. [Docket Item No. 301-1]
       shall be, and hereby is, GRANTED;
Order granting Motion for Joinder, granting Motion for
Sanctions & granting Motion for Summary Judgment, No.
97-2600 (March 21, 2005) (emphasis added).
        In addition, on several occasions in its opinion, the
District Court made findings that these attorneys wilfully failed
to disclose information to Defendants in bad faith, concluding
that “the actions of Plaintiff’s counsel rise above a mere lack of
due diligence, to the level of bad faith.” Bowers X, No.
97-2600, at 32.
       We find the weight of authority supports a finding that
the repeated, explicit public reprimand of the attorneys in this
case constitutes an appealable sanction. See Young v. City of
Providence, 

, 38 (1st Cir. 2005) (finding a sanction
where the district court explicitly imposed “the sanction of
public reprimand”); Precision Specialty Metals, 

. In similar cases, courts have concluded that express
findings that a party violated a particular rule of civil procedure
constituted a sanction. See 

(finding
sanction where the district court stated that attorney violated
Rule 11); Precision Specialty Metals, 

(same); 

(explicit finding that attorney
violated state ethical rule was a sanction); 

(same); 

(same). The order here
clearly rose above mere judicial criticism. The District Court
concluded not only that the attorneys violated Rule 26(e), but

                                39
also entered a public reprimand by explicitly granting the
sanctions motion against Bowers’ attorneys. For these reasons,
we agree with attorneys for Bowers that the sanctions order in
this case is an appealable order.
        We also agree that the District Court violated the
procedural due process rights of attorneys for Bowers in this
case. “Whenever the district court imposes sanctions on an
attorney, it must at a minimum, afford the attorney notice and
opportunity to be heard.” 

(finding
that the district court violated attorney’s due process rights by
failing to give him notice and an opportunity to be heard prior
to sanctioning him); see also In re Ruffalo, 

, 550
(1968) (stating that attorneys subject to disciplinary proceedings
are entitled to procedural due process protections, including fair
notice of charges). It is clear that attorneys for Bowers had no
notice whatsoever that the District Court was contemplating
entering sanctions against them prior to the hearing on Temple’s
motion. Temple’s original sanctions motion requested sanctions
against plaintiff, not plaintiff’s counsel,21 and the purpose of the
hearing was to determine whether sanctions imposed against
plaintiff were warranted. Until the District Court’s opinion and
order was filed, attorneys for Bowers had no idea that the Court
was even considering levying sanctions against them. Under
these facts, the District Court violated these attorneys’ rights to
procedural due process.
       Accordingly, we reverse the sanctions order of the
District Court issued against attorneys for Bowers and remand

       21
         The sanctions motion stated that Temple “hereby moves
for sanctions against plaintiff Kathleen Bowers.”

                                40
to give the attorneys an opportunity to be heard before any
further sanction is entered.
D.     The University of Iowa’s Eleventh Amendment
       Sovereign Immunity Challenge22
        At the outset, we must state that it is clear that the
University of Iowa is not entitled to Eleventh Amendment
immunity as to its Rehabilitation Act claims. The University of
Iowa’s argument with respect to that claim has been foreclosed
by our decision in Koslow v. Commonwealth of Pennsylvania,

, 168-76 (3d Cir. 2002), in which we held that a
state program or activity that accepts federal funds waives its
Eleventh Amendment immunity to Rehabilitation Act claims.
In this case, the University of Iowa clearly “concedes it and its
students receive federal funds for purposes of Section 504.” Br.

       22
         We should clarify that Temple does not raise this issue.
We also note that in our previous dismissal of the University of
Iowa’s appeal from the District Court’s order of July 3, 2001,
we reserved judgment on the University of Iowa’s immunity
claims. Bowers v. NCAA, 

, 412 n.8 (3d Cir. 2003).
Specifically, we recognized that “depending on the future course
of this litigation we may have to entertain Iowa’s Eleventh
Amendment arguments following final judgment.” 

Court’s March 21, 2005 order is a final judgment for
purposes of 28 U.S.C. § 1291 and we exercise jurisdiction
accordingly. However, as the District Court’s opinion and order
of March 21, 2005, did not address the University of Iowa’s
sovereign immunity claim on the merits, we consider the Court’s
July 3, 2001 decision on the merits as a touchstone for our own
analysis.

                               41
for Appellee/Cross Appellant University of Iowa at 6. Thus,
even if the University is an arm of the state, it has waived its
Eleventh Amendment immunity for Rehabilitation Act claims,
and Bowers’ Rehabilitation Act claim will remain. As a result,
we will focus our analysis on the issue of whether the University
of Iowa is an “arm of the state” of Iowa for the remaining state
law claims and the Title II ADA claim.
        The Eleventh Amendment to the United States
Constitution provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. Although the language
of the Eleventh Amendment refers only to “States,” the Supreme
Court has held that the immunity extends to entities that are
considered arms of the state. See Regents of the Univ. of
California v. Doe, 

, 429 (1997); Pennhurst State
School & Hosp. v. Halderman, 

, 101 (1984).
        A state entity is properly characterized as an arm of the
state and thus “entitled to immunity from suit in a federal court
under the eleventh amendment when a judgment against it
‘would have essentially the same practical consequences as a
judgment against the State itself.’” Fitchik v. N.J. Transit Rail
Operations, Inc., 

, 659 (3d Cir. 1989) (quoting
Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,

, 401 (1979)). We have adopted a three-part test to
apply in order to determine whether an entity is an arm of the
state for Eleventh Amendment purposes. That test examines the
following three elements: (1) whether the payment of the
judgment would come from the state; (2) what status the entity

                               42
has under state law; and (3) what degree of autonomy the entity
has. Febres v. Camden Bd. of Educ., 

, 229 (3d Cir.
2006) (citing 

).23
         In the past, we have afforded some prominence to the
first factor, the so-called “funding prong,” i.e., whether payment
comes from the state treasury. 

(“Although no single Urbano factor is dispositive, the most
important is whether any judgment would be paid from the state
treasury.”) (citing Urbano v. Bd. of Managers, 

(3d
Cir.1969)) . More recently, however, in Benn v. First Judicial
Dist. of Pa., 

(3d Cir. 2005), we held that “we can
no longer ascribe primacy to the first factor,” concluding that it
was relegated “to the status of one factor co-equal with others in
the immunity analysis.” 

Accordingly, each of


       23
         We refer to these three factors as the “Fitchik factors.”
       24
          That holding was necessitated by the Supreme Court’s
decision in Regents of the University of California v. Doe, in
which the Court stated that whether an entity is an arm of the
state for Eleventh Amendment purposes is not merely a
“formalistic question of ultimately financial liability.” 

, 431 (1997). The relevant inquiry is “the entity’s potential
legal liability, rather than its ability or inability to require a third
party to reimburse it, or to discharge the liability in the first
instance.” 

Fed. Mar. Comm’n v. S.C. State Ports
Auth., 

, 765 (2002) (“While state sovereign
immunity serves the important function of shielding state
treasuries . . . the doctrine’s central purpose is to accord the
States the respect owed them as joint sovereigns.”).

                                  43
the factors must be considered equally in this case in assessing
whether the University of Iowa is an arm of the state for
Eleventh Amendment purposes.25
        Whether a public university is entitled to Eleventh
Amendment immunity is a fact-intensive review that calls for
individualized determinations. Although we have held in the
past that the Pennsylvania System of Higher Education was
entitled to Eleventh Amendment immunity, Skehan v. State
System of Higher Educ., 

(3d Cir. 1987), we have
also held that Rutgers, the State University of New Jersey, was
not. Kovats v. Rutgers, The State Univ., 

, 1312
(3d Cir. 1987). With this in mind, we proceed to examine each
of the Fitchik factors with respect to the particular relationship
between the State of Iowa and the University of Iowa.
       1.     The State of Iowa is not obligated to pay a
              judgment against the University
        The funding prong of Fitchik requires us to determine
whether the payment of any judgment against the University of
Iowa would come from the public treasury of the State of Iowa,
i.e., whether the State is legally liable to pay the judgment. See
Regents of the Univ. of Ca. v. 

. In making
this determination, we “consider as a critical factor whether any
judgment rendered against the entity would ultimately come out
of state funds.” Edelman v. Jordan, 

, 668 (1974).
The District Court determined that the first factor weighed


       25
         The party asserting that it is entitled to sovereign
immunity has the burden of production and persuasion. Christy
v. Pa. Turnpike Comm’n, 

, 1144 (3d Cir. 1995).

                               44
against affording the University immunity because: (1) the State
of Iowa was not the predominant source of the funds for the
University, as only 21% of the University’s funding came from
the State; (2) the State did not proclaim itself legally obligated
to assume responsibility for the University; and (3) the
University maintained its own funding sources independent
from the state treasury. Bowers VI, 

, at *3.
        The University argues that it will be required to pay
indirectly any judgment against it because the State of Iowa will
be required to increase appropriations to the University to
compensate for the judgment. The appropriate question to ask,
however, is whether the State is obligated to pay or reimburse
the University for its debts. See, e.g., Hess v. Port Authority
Trans-Hudson Corp., 

, 51 (1994) (“If the
expenditures of the enterprise exceed receipts, is the State in fact
obligated to bear and pay the resulting indebtedness of the
enterprise?”). As we recently explained in Febres in rejecting
a similar indirect liability argument, if a State is not under a
legal obligation to satisfy a judgment, then any increase in
expenditures in the face of an adverse judgment is considered a
voluntary or discretionary subsidy not entitled to Eleventh
Amendment protections. 

. See also

(noting that New Jersey law provided
that any increase in transit agency’s state appropriation as a
result of a judgment against the agency was deemed
discretionary action by the State); 

(stating that under state law, Rutgers retained sole discretion




                                45
over its accounts and New Jersey law explicitly insulated itself
from any liability on obligations running against Rutgers).26
        The University of Iowa argued before the District Court
that Iowa Code § 8.32 demonstrates that the State of Iowa is
obligated to pay for any outlay of funds necessary to pay
Bowers’ judgment. That section states that “[a]ll appropriations
made to any department or establishment of the government as
receive or collect moneys available for expenditure by them
under present laws, are declared to be in addition to such
repayment receipts, and such appropriations are to be available
as and to the extent that such receipts are insufficient to meet the
costs of administration, operation, and maintenance, or public
improvements of such departments.” Iowa Code § 8.32.
Translating this code into plainer English, the University of
Iowa has argued that § 8.32 merely reveals that state
appropriations are available to meet expenditures when the
receipts are insufficient. The District Court, however,
determined that the code section does “not reveal an obligation
on the part of the state beyond that which has already been
appropriated” because the section “merely establishes that the


       26
         Our focus can be distinguished from Brine v. Univ. of
Iowa, 

, 275 (8th Cir. 1996) (holding University of
Iowa entitled to immunity) and Van Pilsum v. Iowa State Univ.
of Sci. and Tech., 

(S.D. Iowa 1994) (holding
Iowa State entitled to immunity), in which the courts considered
the effect of a judgment on the state treasury, including whether
it would cause the State to increase expenditures. As we follow
a different approach, those cases are inapposite with respect to
the funding prong.

                                46
state appropriations previously allocated are available after an
entity has exhausted the revenues it receives from non-state
sources.” Bowers VI, 

, at *3. We find that
interpretation is plausible, although the code section is not
entirely clear. However, we do not believe any further tortured
parsing of the language of § 8.32 will be productive and we
resist “convert[ing] the inquiry into a formalistic question of
ultimate financial liability.” Regents of the Univ. of Cal. v. 

.
       Therefore, while we find the first Fitchik funding factor
may tilt the scale against immunity because statutory language
does not clearly obligate the State of Iowa to pay the
University’s debts, it is certainly not dispositive of the ultimate
outcome in our analysis.
       2.      The University is considered an arm of the state
               under Iowa state law
        The second Fitchik factor requires that we focus on
whether the State itself considers the entity an arm of the state.
Under the second factor, we look to how state law treats the
entity generally; whether the entity can sue or be sued in its own
right, whether the entity is separately incorporated, and whether
the entity is immune from state taxation. 

.
        This second factor clearly weighs in favor of immunity.
The University was created under the Iowa state constitution, it
is the only constitutionally created university in the State, and it




                                47
has not been separately incorporated by the State.27 The Iowa
Constitution further provides that the “educational and school
funds and lands[] shall be under the control and management of
the General Assembly of this State.” Iowa Const. Art. IX, 2d.
§ 1. University real estate is owned in the State’s name and the
University is unable to buy or transfer real estate without the
express permission of a State Executive Council. Iowa Code
§ 262.9. Most importantly, Iowa state law considers the
University to be a state agency. Sindlinger v. Iowa St. Bd. of
Regents, 

(Iowa 1993). Compare 

(noting that N.J. state law generally treated school
boards as separate political subdivisions) with 

(stating that under the Pennsylvania Supreme Court’s
interpretation of the state constitution, county judicial districts
are state entities).
       In addition, although the University may bring suit in its
own name, it may do so only through the State Attorney
General’s Office, which also is obligated to defend the
University from suit. Iowa Code § 13.2. Furthermore, unlike
New Jersey’s tort claims act, which applies to New Jersey
counties and municipalities as well, see 

,
Iowa has separate tort claims acts for the State (Iowa Code ch.
699) and political subdivisions (Iowa Code ch. 670).



       27
         Article IX, Section 11 of the Iowa Constitution states
that “The State University shall be established at one place
without branches at any other place, and the University fund
shall be applied to that Institution and no else.” Iowa Const.
Art. IX, § 11.

                                48
       These facts sufficiently establish that the University of
Iowa is considered an arm of the state by the State of Iowa.
       3.     The University’s autonomy is constrained by state
              authority
        The final Fitchik factor focuses on the degree of
independence from state control an entity exercises. The Board
of Regents of the University of Iowa is tightly constrained by
state authority. The Board of Regents, which governs the
University of Iowa and all other state universities, consists of
nine members, each appointed by the governor for a six-year
term (with the restriction that no more than five may be from the
same political party). Iowa Code. § 262.1, .2, .7. The governor
of Iowa is entitled to remove a member of the board for cause
with the approval of a majority of the senate, Iowa Code
§ 262.5, and the governor may suspend a board member when
the general assembly is not in session. Iowa Code § 262.5.
Board expenses are reimbursed by the state director of revenue,
Iowa Code § 262.29, who must report to the governor the
amount paid in services and expenses of officers and employees
of the board. Iowa Code § 262.22. The Board’s powers are
further regulated by Iowa Code § 262.9, which governs, inter
alia, the Board’s procurement specifications of certain types of
materials (e.g., the department of natural resources must review
the Board’s procurement specifications to ensure that the Board
purchases recyclable materials and soybean-based inks), the
University’s acquisition and disposal of real estate, the
University’s ability to accept and administer trusts, and the
number of University meetings and locations that may be held.
The Board may only acquire or transfer real estate with the
approval of the State Executive Council, which consists of the

                               49
Governor, State Auditor, State Treasurer, Secretary of State, and
Secretary of Agriculture. Iowa Code § 262.9(7). Contra

(noting that under New Jersey law the
New Jersey Transit was able to purchase and sell property
without any state governmental oversight). The Board is
authorized to secure patents and copyrights from students,
instructors and officials, but they must become the property of
the State. Iowa Code § 262.9(11). Biennially, the Board is
required to give an expenditures report to the governor and the
legislature and to submit a biennial budget. Iowa Code
§ 262.26. In addition, the University is required to hire a budget
analyst to serve as a liaison between the State Department of
Management and the University in preparing the budget, Iowa
Code § 8.29, and is required to report monthly expenditures and
receipts of funds to the state director of revenue and finance.
       In light of these facts, is it apparent that the University of
Iowa is tightly controlled by the State of Iowa.28 Therefore, we
find the autonomy factor weighs in favor of Eleventh
Amendment immunity.
       4.      Weighing the factors
       Summing up, the first Fitchik factor weighs slightly
against immunity, while the second and third factors weigh


       28
        By contrast, in Kovats, the New Jersey governor had the
power to appoint some of the board members to Rutgers, and
there were only two limitations on the board’s operation of
University: the board had to comply with (1) state budget
appropriations; and (2) with state laws and regulations. 

.

                                 50
heavily in favor of immunity. The District Court placed great
emphasis on the funding prong in accordance with our pre-Doe
jurisprudence. Under current precedent, however, we are
required to consider each of the factors equally when
determining whether an entity is entitled to Eleventh
Amendment immunity. 

.
       In this case, we believe the overwhelming degree of state
involvement in the University of Iowa warrants a finding that
the University is an arm of the state. While the State of Iowa is
not clearly obligated by statute to increase expenditures to the
University as a result of an adverse judgment, there is a high
degree of state involvement in the affairs of the Board of
Regents and the University in general. In addition, under Iowa
law the University is clearly considered an arm of the State.
Accordingly, we find that the University of Iowa is entitled to
Eleventh Amendment immunity with respect to Bowers’ state
law tort claims.
E.     Congress validly abrogated Eleventh Amendment
       immunity under Title II of the Americans with
       Disabilities Act.
        Having determined that the University of Iowa is entitled
to sovereign immunity, we are required to consider the
applicability of that doctrine to Title II of the ADA. The United
States, as intervenor, reminds us that judicial restraint requires
us to “avoid reaching constitutional questions in advance of the
necessity of deciding them.” Lyng v. Nw. Indian Cemetery
Protective Ass’n, 

, 445 (1988). In order to avoid
the constitutional question in this case, the United States
suggests we in effect prune away Bowers’ Title II claim, as
Section 504 of the Rehabilitation Act provides nearly identical

                               51
protection. While we do not disagree that the protections
afforded by Title II and Section 504 are substantially similar, see
Doe v. Cty. of Centre, 

, 447 (3d Cir. 2001), we do
not believe that prudence in the form of constitutional avoidance
warrants abrogating Bowers’ right to bring a claim under Title
II. As our reversal of the District Court’s order of summary
judgment has revived Bowers’ Title II claim, we are squarely
presented with the constitutional question regarding that
statute’s purported abrogation of sovereign immunity. Thus,
prudential concerns notwithstanding, we feel obliged to enter the
fray. Ashwander v. TVA, 

, 347 (1936) (Brandeis,
J., concurring) (passing on a constitutional question is “a
necessity in the determination of [a] real, earnest, and vital
controversy between individuals”).
        In order for Congress to validly abrogate state sovereign
immunity, Congress must: (1) unequivocally express its intent
to abrogate that immunity; and (2) act pursuant to a valid grant
of constitutional authority. Kimel v. Fla. Bd. of Regents, 

, 73 (2000). The first prong of this test is easily satisfied
in this case, as Title II of the ADA provides that “[a] State shall
not be immune under the eleventh amendment to the
Constitution of the United States from an action in [a] Federal
or State court of competent jurisdiction for a violation.” 42
U.S.C. § 12101(b)(4); see generally Board of Trustees of Univ.
of Ala. v. Garrett 

(2001) (finding that the above
statutory provision was an unequivocal expression of
Congressional intent to abrogate state sovereign immunity under
Title II). Our task then in this case is to determine whether
Congress exceeded its authority under § 5 of the Fourteenth
Amendment in purporting to abrogate state sovereign immunity
under Title II of the ADA with respect to public education.

                                52
        “Congress can abrogate a State’s sovereign immunity
when it does so pursuant to a valid exercise of power under § 5
of the Fourteenth Amendment to enforce the substantive
guarantees of that Amendment.” Tennessee v. Lane, 

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

“enact so-called prophylactic legislation that
proscribes facially constitutional conduct, in order to prevent
and deter unconstitutional conduct.” Nevada Dept. of Human
Resources v. Hibbs, 

, 727-28 (2003) (concluding
that the Family Medical Leave Act is a valid exercise of
Congress’s § 5 power to combat unconstitutional sex
discrimination). “When Congress seeks to remedy or prevent
unconstitutional discrimination, § 5 authorizes it to enact
prophylactic legislation proscribing practices that are
discriminatory in effect, if not in intent, to carry out the basic
objectives of the Equal Protection Clause.” 

. Thus, Congress’s § 5 authority can sweep in conduct that
may possibly be constitutional. See City of Boerne v. Flores,

, 518 (1997) (“Legislation which deters or
remedies constitutional violations can fall within the sweep of
Congress’ enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional and intrudes into the
‘legislative spheres of autonomy previously reserved to the
States.’”) (citation omitted).
        Although Congressional authority under § 5 is broad, it
is not unlimited. 

. The key limitation is
that Congressional action must not work “a substantial change
in the governing law.” City of 

. In this
respect, the Supreme Court has established a “congruence and
proportionality” test: “Section 5 legislation is valid if it exhibits
‘a congruence and proportionality between the injury to be

                                 53
prevented or remedied and the means adopted to that end.’”

(quoting City of 

).
The Court has enacted a three-step inquiry to determine whether
a particular statute satisfies the congruence and proportionality
test, which requires the parties to identify: (1) with some
precision the constitutional right at issue; (2) whether Congress
identified a history and pattern of unconstitutional
discrimination by the States against the disabled; and
(3) whether the rights and remedies created by the statute are
congruent and proportional to the constitutional rights it
purports to enforce and the record of constitutional violations
adduced by Congress. 

, 368, 372-73.
        For example, the purported abrogation of Title I of the
ADA failed that test in Garrett, in which the Court held that
there was not a pattern of constitutional violations with respect
to public employment. Congressional findings had focused on
discrimination in the private sector, and Title I’s broad remedial
scheme was insufficiently targeted to remedy unconstitutional
discrimination in public employment. See 

Thus,
the Court in Garrett held that the Eleventh Amendment bars
suits seeking money damages for state violations of Title I of the
ADA. The Court explicitly left open the question of whether
similar suits could be brought for money damages under Title II
of the ADA.29


       29
        The Court has also sustained other challenges to overly
broad and disproportional legislation that went beyond the scope
of § 5. City of Boerne v. Flores, 

, 532 (1997)
(finding that Congress exceeded its § 5 authority in enacting
Religious Freedom Restoration Act of 1993); Florida Prepaid

                               54
        That question was answered, to some degree, in Lane,

. Lane involved a suit by two paraplegic plaintiffs
who claimed that they were denied access to the state courts by
reason of their disabilities. In that case, the Court explained that
Title II was enacted “against a backdrop of pervasive unequal
treatment in the administration of state services and programs,
including systematic deprivations of fundamental rights.” 

The Court referenced the numerous hearings held by
Congress in connection with enacting the ADA, which revealed
“that many individuals, in many States across the country, were
being excluded from courthouses and court proceedings by
reason of their disabilities.” 

This evidence led
Congress to make an explicit finding that disability-based
discrimination persisted in access to public services and public
facilities. 

        The Court then reviewed whether Title II was valid § 5
legislation with respect to the class of cases implicating the
accessibility of judicial services.30 As to that conduct, the Court
concluded that Title II was a congruent and proportional
response to remedy discrimination against disabled individuals


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

(1999) (concluding that the Patent Remedy Act
implicated Article I concerns, not enforcement of the guarantees
of the Fourteenth Amendment).
       30
         The Court reviewed the congruence and proportionality
of Title II as applied to access to judicial services, not the
congruence and proportionality of Title II as a whole. 

.

                                55
in the administration of judicial services. Congress chose a
limited remedy to enforce Title II with respect to access to the
courts. States are required to take “reasonable measures” to
remove architectural and other barriers to accessibility, and, in
the case of older facilities in which structural changes would be
more difficult, states are able to adopt a variety of less costly
measures to ensure access to judicial services. 

As a
result, the Court concluded that Title II’s affirmative obligation
to accommodate persons with disabilities in the administration
of justice was a reasonable prophylactic measure targeted to a
legitimate end.
       Lane, however, revealed disagreement amongst members
of the Court as to whether Title II may subject States to money
damages for conduct that may in fact be constitutional. While
the majority opinion recognizes that Congress’s prophylactic
powers under § 5 may proscribe some conduct that is facially
constitutional to “prevent and deter unconstitutional conduct,”

, the dissenting Justices forcefully argued
that Congress’s § 5 powers extend only to remedy actual
constitutional violations. See 

(Rehnquist, C.J.,
dissenting), 559 (Scalia, J., dissenting) (“Nothing in § 5 allows
Congress to go beyond the provisions of the Fourteenth
Amendment to proscribe, prevent, or “remedy,” conduct that
does not itself violate any provision of the Fourteenth
Amendment.”) (emphasis in original). But see Constantine v.
The Rectors and Visitors of George Mason Univ., 

,
490 (4th Cir. 2005) (“[T]he question is not whether Title II
exceeds the boundaries of the Fourteenth Amendment, but by
how much.”) (emphasis in original).



                               56
        This dispute was held in abeyance in the Court’s decision
in United States v. Georgia, 

(2006). In Georgia,
a disabled inmate in a state prison brought a pro se action under
Title II of the ADA seeking money damages. The inmate
alleged that he was confined within a small cell 23 to 24 hours
per day, that he was unable to turn his wheelchair around in his
cell, and that he was not afforded adequate facilities to use the
toilet and shower without assistance, which often was denied.
In addition, he claimed that he was denied a number of essential
prison services as a result of his disability. 

The
Court examined whether Title II of the ADA validly abrogated
state sovereign immunity with respect to the inmate’s claims. It
noted that the same conduct allegedly established the inmate’s
claims under both the Eighth Amendment and Title II. In this
respect, the Court agreed that “insofar as Title II creates a
private cause of action for damages against the States for
conduct that actually violates the Fourteenth Amendment,
Title II validly abrogates state sovereign immunity.” 

(emphasis in original). Because it was unclear as to what extent
the conduct underlying the inmate’s constitutional claims also
violated Title II, the Court ordered the case remanded back to
the District Court for the inmate to amend his complaint. 

. The Court directed the lower court to (1) identify which
aspects of the State’s alleged conduct violated Title II;
(2) identify to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth Amendment,
determine whether Congress’s purported abrogation of
sovereign immunity as to that class of conduct is nevertheless
valid. 

we are required to determine in the first instance if
any aspect of the University’s alleged conduct forms the basis
for a Title II claim.31 In this case, the University allegedly
violated Title II when it refused to offer Bowers a scholarship on
the basis that he would not meet NCAA initial eligibility
standards. Title II prohibits a “qualified individual with a
disability” from being “excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity” because of the individual’s disability. 42 U.S.C.
§ 12132. Bowers argues that the University of Iowa
discriminated against him because of his learning disability: but
for the fact that his learning disability precluded him from
taking the requisite number of core classes in high school, he
would have been given a scholarship by the University. Bowers
thus essentially states a claim under Title II that he was denied
access to a program at a public education institution because of
his disability.32

       31
         In Georgia, the Court remanded to the District Court for
this 

. However, given the
procedural posture of this case, we find we are well situated to
make this determination ourselves. See Toledo v. Sanchez, 

, 32 n.2 (1st Cir. 2006) (“[A]s this analysis simply
requires a legal determination under the standard set out in Fed.
R. Civ. P. 12(b)(6), and because a remand would further prolong
the lengthy course of this litigation, we will address these
questions.”).
       32
       To succeed on a claim under Title II, Bowers must
demonstrate: (1) he is a qualified individual; (2) with a

                               58
       Under Georgia, we are required next to determine
whether the alleged misconduct in this case, denying a student
athlete eligibility to participate in intercollegiate athletics, also
violates the Fourteenth Amendment. Clearly, since the Supreme
Court has held that there is no fundamental right to public
education, San Antonio Indep. School Dist. v. Rodriguez, 

, 35 (1973), there is no fundamental right to participate in
intercollegiate athletics, a component of public education.
Likewise, the Supreme Court has held that the disabled are not
a suspect class for purposes of an equal protection challenge.
City of Cleburne v. City of Cleburne Living Center, 

, 439 (1985).33 Accordingly, we apply rational basis review
to the Defendants’ application of the NCAA rule to Bowers.
The NCAA rule (and the universities’ adoption and application
of the NCAA rule) easily passes muster under rational basis
review as the rule is designed to ensure that incoming student
athletes can handle the rigors of college academia while
engaging in intercollegiate athletics. See Bowers 

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


disability; (3) he was excluded from participation in or denied
the benefits of the services, programs, or activities of a public
entity, or was subjected to discrimination by any such entity;
(4) by reason of his disability. Bowers 

.
       33
        In the context of public education, the due process
clause may be implicated if a student is suspended or expelled
without notice or an opportunity to be heard. See Goss v. Lopez,

, 574 (1975). In this case, however, Bowers’
claims do not raise any procedural due process concerns.

                                 59
designed to assure proper emphasis on educational objectives,
to promote competitive equity among institutions and to prevent
exploitation of student athletes”). The NCAA rule – requiring
student athletes to participate in certain basic core classes in
high school – is rationally related to the end it attempts to
achieve – ensuring that incoming student athletes are prepared
to balance academics and athletics. The rule does not target
disabled individuals per se, but rather also targets those student
athletes who have failed to satisfy their core course requirements
for other reasons, including sheer lack of effort. Consequently,
the rule does not create a caste system in which learning
disabled students can never qualify as student athletes. See City
of 

(finding that zoning legislation
failed rational basis review because it demonstrated irrational
prejudice directed solely against the mentally retarded). Thus,
the NCAA rule and the university Defendants’ application of
that rule do not violate the Fourteenth Amendment. See also

(finding that a university’s actions in
failing to accommodate disabled student by allowing him, inter
alia, to arrive late to class and to extend deadlines for work, did
not establish constitutional violations).
        Having determined that the alleged misconduct in this
case states a claim for violation of Title II but not the Fourteenth
Amendment, we arrive at the final step of Georgia’s tripartite
test. This step requires to determine whether Congress’s
purported abrogation of state sovereign immunity is nevertheless
valid.34 The right at issue in this case, as in Lane, is the right to


       34
         As already stated, in making this determination we seek
to identify: (1) with some precision the constitutional right at

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be free from irrational disability discrimination. 

. The Court in Lane concluded that Congress had clearly
identified a history and pattern of disability discrimination with
respect to public services. 

Therefore there is only


issue; (2) whether Congress identified a history and pattern of
unconstitutional discrimination by the States against the disabled
with respect to public services; and (3) whether the rights and
remedies created by the statute are congruent and proportional
to the constitutional rights it purports to enforce and the record
of constitutional violations adduced by Congress. 

, 368, 372-73.
       35
         The Court considered evidence of disability
discrimination in a variety of public services, not just limited to
access to the courts. See 

(referencing
voting, serving as jurors, unjustified commitment, abuse and
neglect of young persons committed to state mental hospitals,
and irrational discrimination in zoning decisions). The Court
concluded that there was a documented “pattern of unequal
treatment in the administration of a wide range of public
services, programs, and activities, including the penal system,
public education, and voting.” 

(emphasis added).
Subsequent decisions of the courts of appeals have recognized
that the second prong of the Boerne test was conclusively
established with respect to Title II by the Lane Court. See
Cochran v. Pinchak, 

, 191 (3d Cir. 2005); see also
Constantine v. The Rectors and Visitors of George Mason
University, 

, 487 (4th Cir. 2005) (“After Lane it is
settled that Title II was enacted in response to a pattern of
unconstitutional disability discrimination by States and nonstate

                                61
government entities with respect to the provision of public
services.”); Assoc. for Disabled Americans, Inc. v. Fla. Int’l
Univ., 

, 958 (11th Cir. 2005). But see 

(“We believe the sounder approach is to focus the
entire City of Boerne test on the particular conduct of state
conduct at issue.”).
        Disability discrimination has clearly been identified in
the context of public education. As the Government documents
extensively in its brief, there had been a long and sad history of
discrimination against students with learning disabilities prior to
the adoption of Title II of the ADA. (See Gov’ts Br. at 23-34.)
See also 

n.12 (citing examples of state-
sanctioned public school discrimination); State ex rel. Beattie v.
Bd. of Educ. of City of Antigo, 

(Wis. 1919)
(justifying the exclusion of a child with cerebral palsy from
public school because he would “produc[e] a depressing and
nauseating effect” on other children). In concluding that
Congress was justified in enacting Title II with respect to public
education, the First Circuit stated the following:
        In sum, the thirty years preceding the enactment
        of the ADA evidence a widespread pattern of
        states unconstitutionally excluding disabled
        children from public education and irrationally
        discriminating against disabled students within
        schools. Faced with this record of persistent
        unconstitutional state action, coupled with the
        inability of earlier federal legislation to solve this
        “difficult and intractable problem,” Congress was
        justified in enacting prophylactic § 5 legislation in
        response.

                                62
one difficult issue left at this point in the inquiry: the congruence
and proportionality of Title II with respect to public education.
        We agree with the United States that “[a]s applied to
education, Title II is a congruent and proportional means of
preventing and remedying the unconstitutional discrimination
that Congress found to exist both in education and in other areas
of governmental services, many of which implicate fundamental
rights.” Br. for the United States at 36-37. The remedy chosen
by Congress in Title II in the area of public education is a
narrow one: access to education. Qualified individuals with a
disability may not be excluded from participating in public
education on the basis of their disability. Thus, states are free to
enact a myriad of laws relating to public education, including
laws that may negatively impact disabled students, so long as
those laws do not discriminate against students because of their
disabilities. Congress enacted Title II against the backdrop of
our regrettable national history in educating students with
disabilities. See infra note 35. As pointed out correctly by the
United States in its brief, our national history in educating
students with disabilities leaves much to be desired. In many
past instances, States have made educational decisions on the
basis of irrational misconceptions and stereotypes held about
disabled students. See Gov’ts Br. at 27-32 (documenting
various instances of exclusion and segregation of disabled
students). Given this regrettable past history, Title II is a
justifiable prophylactic measure to avoid the risk of
unconstitutional treatment of disabled students.

(citing 

).

                                 63
        Reported cases from the courts of appeals since the
Supreme Court’s decision in Georgia have likewise found that
Congressional abrogation of sovereign immunity with respect to
public education was valid. As the Fourth Circuit observed in
Constantine, Congress limited the scope of Title II in several
respects. First, the statute only protects “qualified individuals
with a disability.” Second, Title II permits States to limit
participation in their programs and activities for all other lawful
reasons. Third, Title II only requires States to make “reasonable
modifications” to accommodate the disabled, thus protecting the
States from having to compromise essential eligibility criteria
for public programs. Finally, States are able to make available
other accommodations if structural modifications of physical
structures are too 

. For those
reasons, and against the backdrop of discrimination against
disabled students, the Constantine court concluded that Title II
was valid legislation as applied to public education. 

See also 

(“Title II’s prophylactic
measures are justified by the persistent pattern of exclusion and
irrational treatment of disabled students in public education,
coupled with the gravity of the harm worked by such
discrimination.”); Assoc. for Disabled Americans, 

(“Discrimination against disabled students in education
affects disabled persons’ future ability to exercise and
participate in the most basic rights and responsibilities of
citizenship, such as voting and participation in public programs
and services. The relief available under Title II of the ADA is
congruent and proportional to the injury and the means adopted
to remedy the injury.”).




                                64
       Accordingly, we join several sister circuits in holding that
Congress acted within its Constitutional authority in abrogating
sovereign immunity under Title II of the ADA.
                      III. CONCLUSION
        We agree with the District Court that this case has
become an ongoing saga. With this opinion, we have
contributed yet another episode to the saga, but it has not been
our intention to thicken the plot. With that in mind, we observe
that a central question has yet to be resolved: whether the
Defendants, in their treatment of Michael Bowers, in fact
violated anti-discrimination law. Consequently, we will reverse
the order of summary judgment and remand this matter to the
District Court for treatment in accordance with the rulings stated
herein.




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