The NCAA News - News and Features

July 20, 1998

NCAA-Department of Justice consent decree

Following is the consent decree between the United States Department of Justice and the NCAA regarding how NCAA initial-eligibility legislation applies to learning-disabled students.

For more information, contact Philip D. Grayson, ADA compliance coordinator for the NCAA, at the national office.

CONSENT DECREE

Background

The United States filed concurrently with this Consent Decree a civil action to enforce title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, against the National Collegiate Athletic Association (NCAA). This matter was initiated by complaints filed by several individuals with the U.S. Department of Justice under title III of the ADA. The complaints alleged that the NCAA's initial-eligibility requirements discriminate against students with learning disabilities. The United States Department of Justice investigated these complaints pursuant to its statutory mandate to investigate alleged violations of title III of the ADA, 42 U.S.C. § 12188(b)(1)(A)(i).

Allegations

The Department of Justice determined that the NCAA's policies, practices and procedures discriminated against student-athletes with learning disabilities in violation of title III. First, NCAA regulations relating to the certification of high-school classes as "core courses" excluded many classes designed to accommodate students with learning disabilities, without regard for the content of the course. Second, the process for considering exceptions for individual students -- the waiver process -- placed students with learning disabilities at a significant disadvantage relative to their peers.

The Department of Justice received complaints from a number of individuals. These complaints included specific instances in which courses were not accepted as core courses primarily because they were labeled "remedial" or "special education" classes. Based upon these complaints and other evidence, the Department concluded that modifications in several NCAA policies were necessary, that reasonable modifications were available, and that these modifications would not fundamentally alter the nature of the NCAA's program.

The NCAA disputes the allegations contained in the complaints. The NCAA acknowledges shortcomings inherent in the evaluation of core courses primarily on the basis of course title; changes have been made to the process to look solely at the content of a course in evaluating whether it meets the standard for a core course.

Good Faith Negotiations

The NCAA has engaged in good faith negotiations with the United States in seeking to resolve this matter. In fact, the NCAA has already implemented several new policies discussed during the course of settlement negotiations so that students with learning disabilities can begin to take advantage of the new procedures even before a formal settlement has been reached. During the course of the investigation, the NCAA made several constructive revisions in its policies toward students with learning disabilities, including: accepting course work completed between the time of graduation from high school and full-time college enrollment; and allowing students with learning disabilities to initiate their own appeal for a waiver of the initial-eligibility requirements, revising the rule that the only avenue for such an appeal was through a member college or university.

Agreement

In an effort to resolve their remaining differences expeditiously and without the burden, expense and delay of litigation, the parties have agreed to enter into this Consent Decree. By entering into this Consent Decree, the parties acknowledge that the NCAA does not waive its position that it is not a place of public accommodation and therefore title III of the ADA does not apply to it, nor does the NCAA admit liability under the ADA. This Consent Decree reflects the entire understanding between the parties in regard to the resolution of this matter and is intended to resolve all remaining disputes between the parties.

Accordingly, it is hereby agreed by the parties and ordered by the Court as follows:

1. The NCAA agrees to propose to the committees with the authority to enact legislative changes to the NCAA's bylaws that the following proposed rules be adopted:

A. NCAA Bylaw 14.3.1.3 reads, in part: "Courses that are taught at a level below the high school's regular academic instructional level (e.g., remedial, special education or compensatory) shall not be considered core courses regardless of course content." The NCAA agrees to propose:

1. That the words "special education" be taken out of the bylaw.

2. That the following sentence be inserted immediately after the language quoted above: "The prohibition of 'remedial and compensatory' courses does not apply to courses designed for students with learning disabilities. See Bylaw 14.3.1.3.4 for the rules governing courses for students with learning disabilities."

B. NCAA Bylaw 14.3.1.3.4 , as newly adopted in 1998, reads: "Courses for Students with Disabilities. The Academics/Eligibility/Compliance Cabinet may approve the use of high-school courses for students with disabilities to fulfill the core-curriculum requirements, even if such courses are taught at a level below the high school's regular academic instructional level (e.g., special education courses), if the high-school principal submits a written statement to the NCAA indicating that courses are substantially comparable, quantitatively and qualitatively, to similar core-course offerings in that academic discipline. Students with disabilities still must complete the required core courses and achieve the minimum required grade-point average in this core curriculum." The NCAA agrees to propose:

1. An additional sentence be added to the bylaw: "The fact that the title of the course includes a designation such as 'remedial,' 'special education,' 'special needs,' or other similar titles sometimes used for courses designed for students with learning disabilities, does not by itself disqualify a course from meeting the core curriculum requirements."

2. The words "are taught" be changed to "appear to be taught."

C. The NCAA agrees to propose that an additional rule be added to its bylaws allowing students with learning disabilities who do not meet the initial-eligibility requirements to earn an additional year of athletics competition, under certain conditions. The bylaw the NCAA agrees to propose is set out under the heading "Proposal" in the document attached as Attachment A. The NCAA further agrees that its interpretation of this rule will be consistent with the guidance included in Attachment A, and it will publish and distribute materials consistent with that guidance.

2. The United States reserves the right in its sole discretion to withdraw agreement to this Consent Decree and proceed with litigation in this matter if any of the rules required to be proposed pursuant to Paragraph 1 are modified in any way prior to their enactment or implementation. The United States also reserves the right in its sole discretion to withdraw agreement to this Consent Decree and proceed with litigation of this matter if the NCAA fails to adopt those rules by January 31, 1999, or takes other steps, either through legislation or through other means, before or after that date, such that those rules are adopted but are not given full force and effect.

3. The parties acknowledge that this Consent Decree does not prohibit future legislative action by the NCAA consistent with the provisions of this agreement. The parties also acknowledge that the NCAA voluntarily agrees that any further legislative action by the NCAA will comply with title III of the ADA.

4. The NCAA agrees to adopt Attachment B as its formal policy for evaluating applications for waivers of the initial-eligibility requirements that are filed by students with learning disabilities. Within 30 days after the date on which the Court enters this Consent Decree, Attachment B shall be distributed to all relevant NCAA staff and committee members involved in determining whether applications for waivers filed by students with learning disabilities are granted. The NCAA will also include Attachment B with all training materials provided in the future to people involved in determining whether applications for waivers filed by students with learning disabilities are granted.

5. The policy statement contained in Attachment B, or a document consistent with the policy statement, shall be distributed to any person inquiring about filing an application for a waiver for a student with learning disabilities, including students, parents and guardians, attorneys, high-school officials or officials of an NCAA member institution.

6. The NCAA agrees that the waiver committee in Division I responsible for hearing applications for waivers of the initial-eligibility requirements filed by students with learning disabilities will be comprised of people with expertise in the field of learning disabilities, and that the waiver committee in Division II responsible for hearing applications for waivers of the initial-eligibility requirements filed by students with learning disabilities will include people with expertise in the field of learning disabilities.

7. The NCAA agrees that within 30 days after the date on which the NCAA receives notice that Court has entered this Consent Decree, it will designate one or more employees at the NCAA as ADA Compliance Coordinator(s).

A. The ADA Compliance Coordinator(s) will serve as a resource to other employees of the NCAA and the NCAA Clearinghouse regarding the ADA. The NCAA agrees that within 120 days of the date the ADA Compliance Coordinator(s) are designated, the ADA Compliance Coordinator(s) will attend a seminar that includes instruction concerning a private entity's obligations under title III. The NCAA agrees that the ADA Compliance Coordinator(s) will attend a similar educational seminar annually.

B. The ADA Compliance Coordinator(s) will serve as a liaison between students with learning disabilities and the NCAA and the NCAA Clearinghouse. The NCAA agrees that the names, addresses and telephone numbers of the ADA Compliance Coordinator(s) will be published as soon as practicable in materials mailed to students with learning disabilities, high-school officials, and member colleges and universities.

8. By September 30, 1998, the NCAA agrees to provide training to all relevant staff regarding its new policies concerning students with learning disabilities, the provisions of this Consent Decree, and the provisions of title III of the ADA generally. The NCAA agrees to conduct similar training in 1999 and 2000. The NCAA agrees specifically to:

A. Conduct training for relevant NCAA staff and NCAA Clearinghouse staff, with an emphasis on how students with learning disabilities are taught and how curriculum is developed for students with learning disabilities.

B. Conduct training for relevant NCAA staff and members of the committee(s) responsible for hearing applications for waivers of the initial-eligibility requirements filed by students with learning disabilities, with an emphasis on predicting academic success in college for students with learning disabilities.

C. Submit the proposed curriculum for the training programs conducted in 1998, 1999 and 2000 to the United States for its prior approval, and to offer the United States the option of participating in the training programs.

9. Within 60 days after the date on which the NCAA receives notice that the Court has entered this Consent Decree, the NCAA agrees to publicize the provisions of this Consent Decree. The NCAA specifically agrees to:

A. Publicize the revision of its policies regarding the certification of core courses designed for students with learning disabilities, with the purpose of encouraging high schools to submit these courses for certification.

1. The NCAA agrees to mail an announcement of the new standards for courses designed for students with learning disabilities to all high schools, encouraging schools to include appropriate courses on the core-course submission forms.

2. The NCAA agrees to mail a similar announcement targeted specifically for private high schools designed for students with learning disabilities.

3. The NCAA agrees to include in the package of information given to students who, at the time they register with the Clearinghouse, indicate an interest in the NCAA's policies with regard to students with learning disabilities, a notice advising the students to encourage their school to submit courses designed for students with learning disabilities for certification as core courses.

4. The NCAA agrees to mail an announcement to associations dealing with learning disabilities to encourage their members to contact local schools about submitting courses designed for students with learning disabilities for certification as core courses.

B. The NCAA agrees to amend the language of all its materials relating to student-athletes with learning disabilities to reflect the revision of its policies regarding the certification of core courses designed for students with learning disabilities, including but not limited to the core-course review worksheets and the "Putting Dreams into Action" brochure.

C. The NCAA agrees to continue its efforts to publicize the fact that students with learning disabilities have the option of filing an application for a waiver of the initial-eligibility requirements if the student is not certified as eligible by the NCAA Clearinghouse.

D. The NCAA agrees to publicize the provisions of this Consent Decree among its member colleges and universities.

1. The NCAA agrees to publish an announcement regarding its new policies designed for students with learning disabilities to all member colleges and universities.

2. The NCAA agrees to include in the announcement a statement advising member colleges and universities that they should not refrain from recruiting student-athletes with learning disabilities because the new policies are designed to enable that population of students to have an equal opportunity to achieve eligibility as students without disabilities. The NCAA agrees to assure member colleges and universities that the waiver process can produce successful results for student-athletes with learning disabilities.

10. On May 1, 1999; May 1, 2000; and May 1, 2001, the NCAA agrees to file a report documenting its efforts to comply with this agreement and to comply voluntarily with title III of the ADA. The report shall include:

A. Statistics tracking the ability of students with learning disabilities to receive favorable certification reports issues by the NCAA Clearinghouse. The statistics must include: the number of students who identify themselves as having learning disabilities in their dealings with the NCAA Clearinghouse; the number of those students who complete the registration process; the number of those students who are certified as eligible by the NCAA Clearinghouse; and the number of those students who file applications for a waiver of the initial-eligibility requirements.

B. Statistics on the number of courses designated by high schools as designed for students with learning disabilities that are certified as core courses. The statistics must also include the number of such courses proposed as core courses by high schools, but rejected by the NCAA or the NCAA Clearinghouse.

C. Statistics concerning the decisions by the committee responsible for hearing applications for waivers of the initial-eligibility requirements filed by students with learning disabilities. The statistics must include: the number of waiver applications filed by students with learning disabilities; the number of waiver applications filed by all other students; the percentage of students without disabilities who receive full waivers, receive partial waivers, and are denied a waiver; and the percentage of students with learning disabilities who receive full waivers, receive partial waivers, and are denied a waiver.

D. Statistics on the number of students whose claims to have learning disabilities are rejected by the NCAA.

E. The United States may, upon review of the statistics provided in these reports and upon review of other evidence that is provided to it, in its sole discretion withdraw its agreement to this Consent Decree and proceed with litigation in this matter if it determines that the NCAA's policies, practices or procedures violate title III. If the United States believes that the NCAA's policies, practices or procedures are in violation of title III, it will give the NCAA written notice of the alleged violation and provide it with an opportunity to cure any alleged violation. The parties shall engage in good faith negotiations to resolve any dispute.

11. Within 60 days after the date on which the NCAA receives notice that the Court has entered this Consent Decree, the NCAA agrees to make payments totaling $35,000 to be distributed among four student-athletes, as agreed to between the NCAA, the United States and the individuals. The NCAA agrees to provide the United States with notice (a copy of the letter and the check sent to each individual) within 10 days of the date these payments are made.

12. The United States may review compliance with this Consent Decree at any time. If the United States believes that the NCAA has not complied with any provision of this Consent Decree, it agrees to attempt to seek an amicable resolution of the matter with the NCAA. If the parties are unable to reach an amicable resolution of the matter, the United States may seek appropriate relief from this Court. The United States' failure to seek enforcement of any provision of this Consent Decree shall not be construed as a waiver of its right to do so with regard to the same provision or other provisions of this Consent Decree.

13. This Consent Decree shall remain in effect until May 1, 2003. At that time, this Consent Decree shall terminate unless the United States moves for cause for an extension. This Court retains jurisdiction over this case for the purposes of enforcement of this Consent Decree. Any party may bring such issues before the Court by filing an appropriate motion.

14. The NCAA agrees that it will not discriminate or retaliate against any person because of his or her participation in this matter.

15. This Consent Decree does not purpose to remedy any other potential violations of the ADA or any other law. This Consent Decree does not affect the NCAA's continuing responsibility to comply with other aspects of the ADA.

16. The individuals signing this Consent Decree represent that they are authorized to bind the parties to this Consent Decree.

17. Both parties shall bear their own attorneys fees, costs and expenses.

18. This Consent Decree constitutes the entire agreement between the parties relating to this civil action, and no other statement, promise or agreement, either written or oral, made by either party or agents of either party, that is not contained in this Consent Decree, shall be enforceable.

SO ORDERED this 27th day of May, 1998.

William B. Bryant

United States District Judge

ATTACHMENT A

Fourth Year of Competition

Proposal:

The Division I Academics/Eligibility/Compliance Cabinet Subcommittees on Initial and Continuing Eligibility Issues recommend that the following legislation be enacted:

Students with learning disabilities who enroll in a Division I institution and do not meet the initial-eligibility requirements, and are not granted a full waiver, are entitled to a fourth year of athletics eligibility if they complete at least 75 percent of their degree program by the beginning of their fifth year of full-time enrollment, or have received a waiver that permits them to maintain athletics eligibility while completing a lower percentage of course work in their degree program. See Bylaw 14.4.3. Students who are eligible to earn a fourth season of athletics eligibility under this bylaw are limited to those whose diagnosed learning disability is such that they will not progress at a rate to earn a baccalaureate degree by the beginning of their fifth academic year.

How the proposal works:

At any point following a student's freshman year, he/she would take:

(1) a copy of his/her most recent report diagnosing his/her disability;

(2) a copy of his/her college transcript; and

(3) any other documents relevant to his/her educational achievement [such as the student's high-school Individual Education Program (IEP) or similar reports prepared by the student's college advisors] to the professional staff on campus that evaluates and/or assists students with disabilities.

The on-campus professional would evaluate the student's diagnosed disability, in combination with other factors bearing on his/her educational achievement. The campus professional would answer the question: Will this student progress at a rate to earn a baccalaureate degree by the beginning of his/her fifth academic year? Relevant factors include (but are not limited to) the likelihood that a student will need to take a reduced course load at some stage of his/her college education, the type of major the student will need to take a reduced course load at some stage of his/her college education, the type of major the student wishes to pursue, and the types of accommodations offered in that department.

Re-testing the student to develop a new diagnosis of the disability is neither contemplated nor suggested by this rule; the campus professional should merely review the reports and documents already existing.

In the event that no such professional staff exists on campus, the student would be directed to the off-campus professionals normally used by the institution.

If the campus professional is satisfied that the student meets the criteria, he/she would send a letter to the athletics department and to the student confirming this fact. The athletics department is responsible for communicating this information to the NCAA. In the event that the NCAA does not have on file a copy of the most recent diagnosis of the student's learning disability, the athletics department must submit a copy to the NCAA with the signed letter from the professional staff.

In the event that the on-campus professional does not certify that a student meets the criteria to be eligible for a fourth season, the student may appeal to the NCAA Division I Satisfactory-Progress Waiver Committee for consideration.

ATTACHMENT B

Policy Regarding Factors to be Considered For Determining Whether to Grant an Application for a Waiver of the Initial-Eligibility Requirements Filed by or on Behalf of a Student with a Learning Disability

The NCAA Division I Initial-Eligibility Waiver Committee's role is to make a determination, based on a careful review of all documentation, whether a student is academically prepared to succeed in college while participating in athletics. Only those students who have not met NCAA initial-eligibility standards come before the subcommittee for review. Upon receiving a request for a waiver of the established academic criteria, the subcommittee must evaluate a student's overall academic record to assess a student's readiness to practice and compete as a student-athlete in his/her first year of enrollment at an NCAA Division I or II member college or university. In reviewing a waiver request, the subcommittee shall consider any extenuating circumstances that may have been present that prevented the student from meeting the established standards.

Students with learning disabilities who do not meet the standards may initiate a waiver application independently, or a member institution may submit a waiver in his or her behalf. A specific waiver subcommittee on disabilities, consisting of individuals from the NCAA membership with expertise in the area of learning disabilities, will review each waiver application submitted by either a student or a member institution on behalf of a student. The waiver subcommittee on disabilities will begin each review of a waiver request for a student with a disability from the perspective that: each case is unique; the reasons for not meeting the standards vary greatly; and in some instances, the disability itself may have contributed to the student's deficiency.

In considering whether to grant a full or partial waiver to a student with a disability, the subcommittee must take into account a number of factors, including but not limited to:

1. The extent to which the failure of the student to meet any criterion is attributable to a student-athlete's disability.

2. Whether non-core courses taken by a student had been specified on the student's Individualized Education Plan (IEP) and/or had been approved by a state or local government as satisfying graduation requirements for students with disabilities.

3. The student's overall academic record, which includes the grades earned by the student in his/her core curriculum established by the NCAA; the likelihood that non-core courses the student has taken will prepare him/her to successfully complete a planned course of study at a particular college or university; as well as the student's test scores achieved in the SAT and/or ACT, both overall composite scores and scores in specific subject areas.

4. Weight of standardized tests. Although the nonstandard administration of an SAT or ACT is intended to accommodate for a particular student's disability (so that the score achieved under a nonstandard administration reflects the student's ability, rather than his or her disability), there are certain disabilities (particularly decoding disabilities) that may make achieving the necessary test score -- even under a nonstandard administration -- more difficult.

There is no minimum qualifying standardized test score that is necessary for receiving a full or partial waiver. The subcommittee shall review the student's overall academic record in determining whether the student is prepared to succeed academically in college.

Moreover, the subcommittee shall not place undue emphasis on a student's low test scores (below the 820/68 minimum and the accompanying subscores) when evidence is presented elsewhere in a student's overall academic record that suggests preparedness for freshman year as a student-athlete. Conversely, the subcommittee shall not place undue emphasis on a student's test score that is above the 820/68 minimum when evidence is presented elsewhere in the student's overall academic record that suggests a lack of preparedness. The subcommittee will emphasize evidence related to the student's high-school preparation and performance (as reflected in high-school courses, grades in both the core courses and overall GPA, performance(s) on standardized tests, and the student's motivation and attitude toward learning). Demonstrated areas of improved performance through high school (e.g., the student took increasingly more challenging courses, or, the student's grades improved steadily throughout high school) are significant factors in assessing a student's readiness and motivation for being a successful student-athlete.

Finally, the subcommittee also shall not place undue emphasis on a particular subscore when the subscore is within the student's area of disability. For example, if a student has a reading disability, the subcommittee will not place undue emphasis on the English subscore of ACT or SAT.

5. The assessments of a school principal, guidance counselor and teachers as to whether a student with a learning disability is likely to succeed academically in college while participating in athletics, including any objective evidence on whether participating in athletics assists or hinders the student's academic performance.

6. Written or oral comments by the student that may reflect the level of knowledge that the student acquired in high school and may be helpful in predicting his/her preparedness to succeed in college.

7. The accommodations available at the high school for students with learning disabilities.

8. The accommodations for students with learning disabilities actually used by the student.