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March 8, 1999


The opinion of the court was delivered by: Buckwalter, District Judge.


The primary question presented by the parties' cross-motions for summary judgment is whether Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d et seq., and certain implementing regulations promulgated thereunder, prohibit colleges and universities, through the auspices of the National Collegiate Athletic Association ("NCAA"), from requiring students to achieve a minimum score on either of two standardized tests as a condition of eligibility to participate in intercollegiate athletics and/or receive athletically related financial aid during their freshman year.

For the reasons discussed below, the Court holds, as a matter of law, that the NCAA is subject to suit under Title VI, and that the NCAA's initial eligibility rule has an unjustified disparate impact against African-Americans. Accordingly, Plaintiffs' motion is GRANTED and Defendant's motion is DENIED.


This is a putative class action lawsuit brought by four African-American student-athletes (Tai Kwan Cureton, Leatrice Shaw, Andrea Gardner, and Alexander Wesby), alleging that they were unlawfully denied educational opportunities as freshmen through the operation of initial eligibility rules by the NCAA. Specifically, they claim that these rules ("Proposition 16") utilize a minimum test score requirement that has an unjustified disparate impact on African-American student-athletes.

All four named plaintiffs failed to achieve initial eligibility under these rules because they did not meet the minimum standardized test cutoff score and consequently, were denied the opportunity to compete in intercollegiate athletics during their freshman year at Division I schools, denied admission to Division I schools, denied athletic scholarships by Division I schools (or provided with less athletically related financial aid), and/or denied recruiting opportunities by Division I schools (or provided with fewer recruiting opportunities).

Apart from requesting class certification, Plaintiffs pray for the entry of a declaratory judgment of Title VI liability; a preliminary and permanent injunction enjoining the NCAA from continued operation of Proposition 16; a notification to Division I schools that student-athletes who satisfy the minimum GPA/core course requirement of Proposition 16 are immediately eligible to participate in freshman year athletics; and the provision of a fourth year of eligibility under the NCAA rules for those student-athletes who have lost a year of freshman eligibility at Division I schools due to the minimum test score requirement of Proposition 16.

On October 8, 1997, this Court held that, while a private right of action exists under Title VI and its implementing regulations, Plaintiffs must still establish: (1) that the NCAA receives federal financial assistance, and (2) that the NCAA's minimum test score requirement in Proposition 16 violates Title VI because the requirement has an unjustifiable disparate impact on African-American student-athletes. See Cureton v. NCAA, Civ. A. No. 97-131, 1997 WL 634376, at *2 (E.D.Pa. Oct. 8, 1997). Approximately one year later to the day, the Court received the first of the parties' voluminous submissions in their cross-motions for summary judgment. It would be difficult to summarize the enormous amount of factual information presented in the record, particularly since much of it is in the form of charts, tables, and graphs. However, some background on the NCAA and Proposition 16 is necessary for an understanding of this Court's opinion.*fn1

The NCAA is a voluntary, unincorporated association of approximately 1,200 members, consisting of colleges and universities, conferences and associations, and other educational institutions. Its active members are four-year colleges and universities located throughout the United States. The active members are divided, for purposes of bylaw legislation and competition in intercollegiate championship events, into Division I, II, and III, with further classification of Division I members into Division I-A Football and Division I-AA Football. The only funds received by the NCAA from its members are in the form of annual dues determined by the members. The record, however, is not clear as to whether the NCAA directly receives federal financial assistance.

While some bylaws of the NCAA are applicable to all divisions, each division may, and has, adopted bylaws applicable only to that division. This lawsuit deals with the promulgation of a bylaw affecting initial eligibility only in Division I. Prior to 1971, freshmen were not eligible to participate in varsity athletics. Various eligibility rules affecting freshman participation in athletics were put into effect thereafter. During the early 1980s, public attention focused on the perceived lack of adequate academic preparation and success of student-athletes. Evidence existed that student-athletes were being exploited for their athletics talents and were exhausting their athletics eligibility without any realistic hope of obtaining an undergraduate degree. However, at the same time, student-athletes were graduating at rates comparable to non-athletes, and African-American student-athletes were graduating at rates higher than African-American students in general.

After debating the issue for several years, the Division I membership implemented Proposition 48 during the 1986-1987 academic year, requiring high school graduates to present a 2.000 GPA in 11 academic core courses and a minimum score of 700 on the SAT (or a composite score of 15 on the ACT) before being allowed to participate in freshman athletics. If the criteria in this "double-cut" or "conjunctive" rule were met, student-athletes were declared "eligible" for competition, practice, and athletically related financial aid immediately upon enrollment. Otherwise, they were barred from such opportunities during their first year. The standards, however, neither addressed a student-athlete's admission to a particular institution, nor precluded a student-athlete from receiving institutional financial aid generally available to all students. The Proposition 48 requirements were phased in by the 1988-1989 academic year and, over time, student-athletes have improved their academic performance — particularly African-American student-athletes — as measured by an increase in their graduation rates.




Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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." Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is "material" if it might affect the outcome of the case under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Additionally, an issue is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative; rather, the court must consider the evidence of the non-moving party as true, drawing all justifiable inferences arising from the evidence in favor of the non-moving party. See id. at 255, 106 S.Ct. 2505. If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. See id. "This standard does not change when the issue is presented in the context of cross-motions for summary judgment." Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987). When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548.

If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). In doing so, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the evidence of the non-moving party is "merely colorable," or is "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

Counsel have made a myriad of arguments, and an attempt has been made to address most of them. By not commenting on any particular argument, or omitting a citation to a document in the record, the Court is not implying that it has either rejected or adopted the argument, or failed to review the record in its entirety.



Having previously determined that the NCAA is a program or activity covered by Title VI, see Cureton v. NCAA, Civ. A. No. 97-131, 1997 WL 634376, at *2 (E.D.Pa. Oct.8, 1997), the Court must also decide, as a preliminary matter, whether the NCAA receives federal financial assistance before subjecting the NCAA to the strictures of Title VI and its implementing regulations, see 42 U.S.C. § 2000d (prohibiting discrimination "on the ground of race . . . under any program or activity receiving Federal financial assistance").

Plaintiffs attest that in response to a Request for Admissions they propounded, the NCAA admitted that it receives dues from member schools who are recipients of federal funds. Accordingly, Plaintiffs conclude that the NCAA indirectly receives federal financial assistance because the NCAA acts as the member institutions' agent with respect to the governance of intercollegiate athletics. Plaintiffs also contend that, under Smith v. NCAA, 139 F.3d 180 (3d Cir.), cert. granted, ___ U.S. ___, 119 S.Ct. 31, 141 L.Ed.2d 791 (1998) (argued Jan. 20, 1999), the NCAA would be subject to Title VI as an indirect recipient of federal funds by virtue of its relationship to its member colleges and universities. Finally, Plaintiffs maintain that the NCAA is a recipient of federal funds through its alter ego, the National Youth Sports Program Fund ("Fund").*fn3

In response, the NCAA contends that Plaintiffs' continued reliance on Smith is increasingly dubious in light of the arguments made in the Supreme Court by the Solicitor General of the United States and Smith's counsel, each of whom cast some doubt on the Third Circuit's analysis. The NCAA also asserts that, in the October 8th order, this Court rejected the argument that the mere receipt of dues from its membership may subject the NCAA to the provisions of Title VI, although the Third Circuit in Smith had ruled in favor of this argument in the context of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.

To be clear, in the October 8, 1997 order, this Court specifically left it to Plaintiffs to establish at trial that the NCAA is subject to suit under Title VI. See Cureton, 1997 WL 634376, at *2 ("at the trial on the merits of this case, plaintiff will have to prove: (1) that the NCAA receives federal financial assistance"). Specifically, the Court first ruled that, under the definition found in 42 U.S.C. § 2000d-4a, "the NCAA appears to be a program or activity covered by Title VI." Id. Then, contrary to the NCAA's assertion that the Court rejected the argument that the mere receipt of dues from its membership may subject the NCAA to the provisions of Title VI, the Court only refrained from determining whether "the National Youth Sports Program Fund is nothing more than a sham to disguise the NCAA's use of federal funds for its own benefit" on the basis of the record then before it. Id. Nothing in the Court's order precluded Plaintiffs from proceeding on the theory that the Fund is the alter ego of the NCAA at a trial on the merits. Significantly, the Court also took under advisement the other theories advanced by Plaintiffs for finding the NCAA subject to suit under Title VI and thus, rendered no opinion on their viability.

In any event, it appears that the NCAA accurately predicted the Supreme Court's decision in Smith. In the midst of this Court's consideration of the issue, the Supreme Court vacated the judgment of the Third Circuit and remanded the case for further proceedings because the appellate court had "erroneously held that dues payments from recipients of federal funds suffice to subject the NCAA to suit under Title IX." NCAA v. Smith, 119 S.Ct. 924, 930 (1999).

Smith is applicable to this case because "Title IX was patterned after Title VI of the Civil Rights Act of 1964. Except for the substitution of the word `sex' in Title IX to replace the words `race, color, or national origin' in Title VI, the two statutes use identical language to describe the benefited class. . . . The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years." Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (footnotes omitted). See also Smith, 119 S.Ct. at 928 n. 3 (stating that "[t]he scope of several other federal anti-discrimination measures is defined in nearly identical terms" and citing Title VI).

Thus, under the rationale of Smith, Plaintiffs may no longer rely solely on this theory to establish that the NCAA receives federal funds sufficient to subject the NCAA to suit under Title VI because "[a]t most, the Association's receipt of dues demonstrates it indirectly benefits from the federal assistance afforded its members. This showing, without more, is insufficient to trigger Title [VI] coverage." Id., 119 S.Ct. at 929. Indeed, the regulations implementing Title VI are even more explicit than the Title IX regulations at issue in Smith in excluding "any ultimate beneficiary" as a "recipient" for Title VI purposes. 45 C.F.R. § 80.13(I) (1999); accord 34 C.F.R. § 100.13(I) (1999); see also Smith, 119 S.Ct. at 929 (holding that "entities that only benefit economically from federal assistance are not" recipients).

However, as the above-quoted language suggests, Plaintiffs are not precluded from using this theory in combination with other facts to establish that the NCAA receives federal funds sufficient to trigger Title VI coverage. See Smith, 119 S.Ct. at 929 (offering "earmarked" federal funds as one example of such a fact). Nor are Plaintiffs precluded from advancing alternative theories for bringing the NCAA within the purview of Title VI. See id., 119 S.Ct. at 930 nn. 6-7. While the law of the case doctrine properly constrains the scope of this Court's reconsideration of a prior order, in light of the Supreme Court's intervening decision on this issue and the lack of any prejudice to the parties, the Court undertook a thorough review of the record and the numerous briefs previously submitted for this Court's consideration. See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997) (identifying prudential considerations limiting a trial court's reconsideration of a prior decision); see also Landgraf v. USI Film Prods., 511 U.S. 244, 245, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (reiterating the principle that "a court should apply the law in effect at the time of decision"). Consequently, the Court is now prepared to make definitive rulings on the alternative theories advanced by Plaintiffs.

Initially, the Court notes that this case is in a much different, more developed procedural posture than Smith. Smith involved a district court's denial of leave to amend a complaint. Here, the parties have engaged in extensive discovery, resulting in a substantial factual development of the record and the present cross-motions for summary judgment. Moreover, the parties have collectively submitted five post-Smith letter briefs that include, inter alia, additional arguments, evidentiary materials, and copies of briefs filed with the Supreme Court in Smith. Thus, the Court concludes that the parties have thoroughly briefed this issue and definitive rulings are possible.

Plaintiffs appear to be advancing four additional theories to support a conclusion that the NCAA is subject to the reach of Title VI: (1) that the NCAA directly receives federal financial assistance through the Fund (which indisputably is a recipient of federal funds) because the Fund is nothing more than the NCAA's alter ego; (2) that the NCAA indirectly receives federal financial assistance through the Fund due to the NCAA's complete control over the Fund; (3) that members schools who receive federal funds have created and comprise the NCAA and that the NCAA governs its members with respect to athletics rules; and (4) that recipients of federal financial assistance have ceded controlling authority over a federally funded program to the NCAA, who then becomes subject to Title VI regardless of whether it is itself a recipient.

As for the first theory, this Court held on October 8, 1997 that a ruling on whether the NCAA directly receives federal financial assistance through its alter ego, the Fund, "can neither be made nor refuted based upon the present record before the court." Cureton, 1997 WL 634376, at *2. Upon reconsideration, the Court essentially adheres to that earlier decision as the present record provides no basis to disturb it and thus, concludes that Plaintiffs have failed to sustain their heavy burden of "piercing the corporate veil" sufficient to have the Fund construed as the NCAA's alter ego.

However, as for the second theory, the Court determines that Plaintiffs have sustained their burden of proving that the NCAA exercises effective control and operation of the Community Services Block Grant given by the United States Department of Health and Human Services to be construed as an indirect recipient of federal financial assistance. While, on this record, there was nothing improper in establishing a separate corporation to manage the National Youth Sports Program and for the corporation to be the designated recipient of the block grant, overwhelming evidence in the record supports the fact that the Fund is ultimately being controlled by the NCAA.*fn4 That is, although the Fund is the named recipient of the block grant, it is merely a conduit through which the NCAA makes all of the decisions about the Fund and the use of the federal funds.

The NCAA maintains that there is only an administrative services contract between itself and the Fund. However, the Court was not presented with a copy of that contract and, even if the contract were presented, the true nature of the relationship and operations between the two entities has been firmly revealed by the record. Consequently, as the NCAA is deemed a recipient of federal funds under this theory, all of its operations, including its promulgation of initial eligibility rules, are covered by Title VI. See 42 U.S.C. § 2000d-4a (4) (establishing entity-wide coverage).

Finally, the Court considered the third and fourth theories together because, as the Court understands them, they are simply variants of one another, differing only in degree. The Court determines that Plaintiffs have also sustained their burden of proving that the NCAA is subject to suit under Title VI irrespective of whether it receives federal funds, directly or indirectly, because member schools (who themselves indisputably receive federal funds) have ceded controlling authority over federally funded programs to the NCAA.

The NCAA plays a pivotal role in "maintain[ing] intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body." NCAA v. Tarkanian, 488 U.S. 179, 183, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988).*fn5 Because of the unique nature of intercollegiate athletics and the various industries that have grown around it, it is one of the few educational programs of a college or university that cannot be conducted without the creation of a separate entity to provide governance and administration. In this vein, the NCAA has adopted "legislation," like Proposition 16, "governing the conduct of the intercollegiate athletic programs of its members. . . . By joining the NCAA, each member agrees to abide by and to enforce such rules." Tarkanian, 488 U.S. at 183, 109 S.Ct. 454.*fn6 Specifically, in the case of eligibility requirements, those rules are "designed to assure proper emphasis on educational objectives, to promote competitive equity among institutions and to prevent exploitation of student athletes." NCAA Const., art. 2, rule 2.12 (Exhibit A to Docket No. 11). Thus, the creation of this supervising association is not only necessary for the promotion of intercollegiate athletics, but the existence of that entity is merely a consequence of the inherent nature of the member institution's intercollegiate athletics programs.*fn7

The NCAA places much stock in Article 2, rule 2.1.1 of its constitution, which states that "[i]t is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association." Moreover, Article 6, rule 6.01.1 states that "[t]he control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself."*fn8 However, these rules merely reinforce the Court's understanding that the NCAA and its members have agreed that the schools exercise control over their intercollegiate athletics programs to the extent permitted by the constitution and bylaws of the NCAA. Once legislation affecting the membership nationwide (or a subset of the institutions like in the case of Proposition 16) is adopted by the NCAA, it becomes enforceable and binding on the member schools. As in any relationship in which authority is transferred, a school is always free to choose not to abide by the legislation, but it will then either suffer sanctions at the hands of the NCAA or be forced to renounce its membership in the association, a decision that would have grave consequences for its intercollegiate athletics program.

Whether characterized as a "delegation" or an "assignment" of "controlling authority," "regulation," or "supervision," Plaintiffs have established on this record that the member colleges and universities have granted to the NCAA the authority to promulgate rules affecting intercollegiate athletics that the members are obligated to abide by and enforce. Under these facts, the NCAA comes sufficiently within the scope of Title VI irrespective of its receipt of federal funds. While each of the member schools is also undeniably subject to Title VI for a challenge to Proposition 16, the NCAA, in light of the fact that it is the decisionmaking and enforcement entity behind legislation adopted by, and enforced against, its membership, is also subject to Title VI.

The import of such a determination is that the NCAA is subject to Title VI for claims relating to programs or activities to which those federal funds are directed. The statute proscribes discrimination "on the ground of race . . . under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Thus, because there is a nexus between the NCAA's allegedly discriminatory conduct with regards to intercollegiate athletics and the sponsorship of such programs by federal fund recipients, the NCAA is subject to Title VI for a challenge to Proposition 16.

Accordingly, the Court holds that, under either the "indirect recipient" or "controlling authority" theories, the NCAA is subject to Title VI for a challenge to Proposition 16.



In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court introduced the theory of disparate impact discrimination by holding that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Since then, "facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof that the employer adopted those practices with a discriminatory intent." Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (O'Connor, J., plurality opinion).

The disparate impact theory is premised upon the notion that "some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Id. at 987, 108 S.Ct. 2777. That is, it does not purport to strive for equal results at the institution, but to ensure that individuals are not the victims of unintentional discrimination and thus, treated unequally. See The Supreme Court 1988 Term Leading Cases, Title VII — Evidentiary Requirements in Disparate-Impact Cases, 103 Harv. L.Rev. 350, 356-57 (1989) (arguing that the Supreme Court reshaped disparate impact law in accordance with a theory of "equal treatment," which "seeks to guarantee fair process," rather than a "theory of equal achievement, which strives for fair results — racial parity after years of discrimination") (emphasis in original). Moreover, "[t]he evidence in these `disparate impact' cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Watson, 487 U.S. at 987, 108 S.Ct. 2777.

In order to establish a prima facie case of disparate impact discrimination, a plaintiff must initially demonstrate that the application of a specific facially neutral selection practice has caused an adverse disproportionate effect, to wit, excluding the plaintiff and similarly situated applicants from an educational opportunity. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-57, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (superseded in part by statute). Where such a showing has been made, the burden of rebuttal shifts to the defendant, who must demonstrate that the selection practice causing the disproportionate effect is nonetheless justified by an "educational necessity," which is analogous to the "business necessity" justification applied under Title VI. See Board of Educ. of the City Sch. Dist. of New York v. Harris, 444 U.S. 130, 151, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979). The defendant bears only a burden of producing evidence to sustain its educational necessity. See Wards Cove, 490 U.S. at 659-60, 109 S.Ct. 2115. But cf. 42 U.S.C. § 2000e(m), 2000e-2k(1)(A) (requiring the defendant under Title VII to bear both a burden of production and persuasion on its business necessity justification).

Finally, even where a defendant meets that burden, a plaintiff may ultimately prevail by discrediting the asserted educational justification, or by proffering an equally effective alternative practice that results in less racial disproportionality while still serving the articulated educational necessity. See Watson, 487 U.S. at 998, 108 S.Ct. 2777. The ultimate burden of proving that the selection practice caused a discriminatory effect against a protected group always remains with the disparate-impact plaintiff. See Wards Cove, 490 U.S. at 659-60, 109 S.Ct. 2115.


Whether Proposition 16 Causes a Racially Disproportionate Effect

In Wards Cove, the Supreme Court emphasized that a racially disproportionate effect is typically shown through the presentation of competent statistical evidence comparing the racial composition of candidates who are selected by the practice in question and the racial composition of the qualified candidate pool. See 490 U.S. at 650-55, 109 S.Ct. 2115. Without such carefully tailored statistical proof, there may be an insufficient basis to conclude that the causation requirement is satisfied. Plaintiffs have not presented their evidence of racially disproportionate effect in this fashion, and the NCAA has not drawn the Court's attention ...

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