IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TAI KWAN CURETON, LEATRICE SHAW,
ANDREA GARDNER, and
ALEXANDER WESBY NO. 97-131
individually and on behalf of all others
AND NOW, this 8th day of March 1999, upon consideration
of Plaintiffs' CrossMotion for Summary Judgment (Docket No. 41),
Defendant's response thereto and Motion for Summary Judgment (Docket
Nos. 47 and 48), Plaintiffs' amended answer (Docket Nos. 53, 54,
56, and 57), Defendant's reply memorandum (Docket No. 58), the
parties' supplemental submissions at the request of the Court
(Docket Nos. 61, 62, 63, and 65), the parties' presentations at
oral argument on February 12, 1999, the parties' post-argument
letter briefs, and the parties' submissions with respect to their
prior motions to dismiss/summary judgment (Docket Nos. 4, 5, 11,
139 15, and 16), it is hereby ORDERED that Plaintiffs' motion
is GRANTED and Defendant's motion is DENIED, in accordance with
the accompanying opinion.
IT IS THE JUDGMENT and ORDER of the Court:
(1) That judgment is entered in FAVOR of Plaintiffs
Tai Kwan Cureton, Leatrice Shaw, Andrea Gardner, and Alexander
Wesby and AGAINST Defendant the National Collegiate Athletic Association;
(2) That the policy of denying eligibility to
participate in intercollegiate athletics and/or receiving athletically
related financial aid during the freshman year of all student-athletes
who have failed to attain the minimum score on either of two standardized
tests, the SAT or the ACT, known as "Proposition 16"
and adopted as NCAA Bylaw 14.3, is hereby DECLARED illegal under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
et 1M. and the regulations promulgated thereunder;
(3) That Defendant the National Collegiate Athletic
Association, their officers, agents, servants, employees, and
those persons in active concert or participation with them who
receive actual notice of this order, are hereby PERMANENTLY ENJOINED
from continued operation and implementation of Proposition 16.
IT IS FURTHER ORDERED that, while the parties
may seek an immediate appeal of this order, the Court retains
jurisdiction over the case and expects a motion for class certification
within twenty (20) days of the date of this order as previously
stipulated. Both parties shall include briefing on what relief
would be appropriate irrespective of whether a class is certified.
BY THE COURT:
RONALD L. BUCKWALTER, J.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TAI KWAN CURETON, LEATRICE SHAW, CIVIL ACTION
ANDREA GARDNER, and
ALEXANDER WESBY, NO. 97-131
individually and on behalf of all others
BUCKWALTER, J. March 8, 1999
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 aM., 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. 9713 1 @ 1998 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.(See endnote 1.)
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, H, 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 nonathletes, and African-American student-athletes were graduating
at rates higher than AfricanAmerican 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
4 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.
The initial eligibility rules were modified in
1992 (fully implemented in the 19961997 academic year) with the
adoption of Proposition 16 (ultimately codified at NCAA Bylaw
14.3), which increased the number of required core courses to
13 and introduced an initial eligibility index or "sliding
scale." Using the index, the student-athlete could establish
eligibility with a GPA as low as 2.000, provided the student also
presented an SAT score of 1010 (See endnote 2.) or an ACT
sum (as opposed to composite) score of 86. At the other end of
the index, a minimum 820 SAT or 68 ACT sum score establishes the
floor for students with GPAs of 2.500 or higher. Statistically
speaking, the resultant effect of Proposition 16 was to modify
Proposition 48 by increasing the weight assigned to GPAs relative
to test scores: while the core GPA cutoff score of 2.000 is set
at two standard deviations below the national mean, the SAT/ACT
test cutoff scores are set at only one standard deviation below
the national mean, resulting in a heavier weighting of the standardized
test. A student-athlete not qualifying under Proposition 16 may
become a partial qualifier by presenting an SAT score between
720 and 8 1 0 (ACT score between 59 and 67) and a core GPA that
produces a GPA-test combination score comparable to that required
of qualifiers. Partial qualifiers may not compete in intercollegiate
athletics, but may be eligible for athletically related financial
STANDARD OF REVIEW
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 (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 (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 nonmoving
party as true, drawing all justifiable inferences arising from
the evidence in favor of the non-moving party. See id. at 255.
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.
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 (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.
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
IS THE NCAA SUBJECT TO TITLE VI?
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, 119 S. Ct. 31 (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").
(See endnote 3.)
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. § 168 1, et
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 V@L 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. § 20OOd-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. I.d. 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
9 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,
No. 98-84, slip op. at 10, 1999 WL 83907, at *6 (U.S. Feb. 23,
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 benefitted 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 (1979) (footnotes
omitted). See also Smith, slip op. at 5 n.3, 1999 WL 83907, at
*4 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., slip op.
at 8, 1999 WL 83907, at *5. 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(l) (1999); see
also Smith, slip op. at 8, 1999 WL 83907, at *5 (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,
slip op. at 8, 1999 WL 83907, at *5 (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.., slip op. at 9 &
nn.6-7, 1999 WL 83907, at *6 & 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 (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. (See endnote 4.) 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. § 20OOd-4a (4) (establishing entity-wide
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 (1988). (See endnote 5.)
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.(See endnote 6.)
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.(See endnote 7.)
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. (See endnote 8.) 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
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
C. DOES PROPOSITION 16 HAVE AN UNJUSTIFIED
In Grigias v. Duke Power Co., 401 U.S. 424 (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 §gq. 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 (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. 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 12rocess," 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.
Although the disparate impact theory was originally
developed in cases involving employment discrimination, courts
have subsequently applied the theory to claims brought pursuant
to the regulations implementing Title VI. See, e.2., NAACP v.
Medical Ctr., Inc., 657 F.2d 1322@ 1331 (3d Cir. 1981); New York
Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995);
Quarles v. Oxford Mun. Separate Sch. Dist., 868 F.2d 750, 754
n.3 (5th Cir. 1989); Larry P. v. Riles, 793 F.2d 969, 982 nn.9-10
(9th Cir. 1984); Elston v. Talladega County Bd. of Educ., 997
F.2d 1394,1407 & n. 14 (1lth Cir. 1993).
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 (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 (1979). The defendant bears only a burden of
producing evidence to sustain its educational necessity. See Wards
Cove, 490 U.S. at 659-60. But cf. 42 U.S.C. §§ 2000e(m),
20OOe-2k(l)(A) (requiring the defendant under Title VII to bear
both a burden of production and persuasion on its business necessity
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
1 8 alternative practice that results in less racial disproportionality
while still serving the articulated educational necessity. See
Watson, 487 U.S. at 998. 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.
1.Whether Proposition 16 Causes a Racially
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. 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
to this. Due to the interplay between enrollment and eligibility,
the Court highly doubts that either party could have presented
accurate statistics in this manner.
In any event, Plaintiffs are not limited to such
a showing because "statistical proof can alone make out a
prima facie case," id. at 650, and there is no rigid mathematical
threshold of disproportionality that must be met to demonstrate
a sufficiently adverse impact on African-Americans in a disparate
impact case, see Watson, 487 U.S. at 994-95. Instead, the plaintiff
may offer statistical evidence sufficient to show that the practice
in question has caused the exclusion of candidates for a particular
opportunity because of their membership in a protected group.
See id. at 994. The Supreme Court's "formulations" have
only "stressed that statistical disparities must be sufficiently
substantial that they raise ... an inference of causation."
Id. at 994-95. (See endnote 9.)
Accordingly, Plaintiffs contend they have established
their prima facie case by pointing to a July 27, 1998 NCAA memorandum
to the Division I membership in which NCAA research data relating
to Proposition 16 is summarized. In that memorandum, the NCAA
makes the following observations about Proposition 16:
African-American and low-income student-athletes
have been disproportionately impacted by Proposition 16 standards.
Of those African-American student-athletes appearing on a Division
I Institution Request List submitted to the NCAA Initial Eligibility
Clearinghouse, 26.6 percent did not meet Proposition 16 standards
in 1996 and 21.4 percent did not qualify in 1997 (compared to
6.4 percent of white student-athletes in 1996 and 4.2 percent
in 1997). This disproportionate impact also is seen (to a lesser
degree) for other ethnic-minority groups.
Preliminary enrollment data for 1994-1996 show
a drop in the proportion of African-Americans among first-year
scholarship athletes in Division I from 23.6 percent to 20.3 percent
(accompanied by a 2.0 percent increase in white student-athletes
and a 1.3 percent increase in student-athletes from all other
ethnic groups combined).
For both African-American and low-income student
athletes, the single largest reason for not meeting Proposition
16 standards was a failure to meet the minimum standardized test
The impact of the minimum standardized test score
in Proposition 16 is partly a result of this standard being twice
as stringent as the GPA minimum in terms of national norms. Specifically,
the cut score on the ACT/SAT (68/820) is set about one standard
deviation below the national mean while the core GPA cut score
(2.000) is set at two standard deviations below the mean. Among
a representative national population of students, it would be
expected that more than 15 percent would be affected by the test
minimum while less than three percent would be affected by the
GPA minimum. Differences in the Proposition 16 impact on minority
groups and low-income student-athletes are in line with current
group differences in national ACT/SAT score distributions.
NCAA Division I Academics/Eligibility/Compliance
Cabinet Subcommittee on Initial-Eligibility Issues Mem., July
27, 1998, at 7 (Exhibit C to Pls.' Opening) (Plaintiffs' emphasis).
(See endnote 10.) Moreover, the memorandum specifically
states that "a disproportionate number of ethnic minorities
are affected adversely by the imposition of these rules."
Id. at 5.
Plaintiffs also point to a July 29, 1994 memorandum
issued just prior to the adoption of Proposition 16, which states
in the Executive Summary: "The Association's own research
... provides dramatic evidence of the disparate impact on both
the current rules and those scheduled to go into effect in 1995
[Proposition 16] on minority student athletes." Report of
the Special NCAA Comm. to Review Initial-Eligibility Standards
Mem., July 29, 1994, at 2, NCAA 15639 (Exhibit A to Pls.' Opening)
(Plaintiffs' emphasis). Finally, Plaintiffs look to a report prepared
by the United States Department of Education, which cites that
only 46.4% of the African-American college-bound high school seniors
met Proposition 16's requirements, as compared to approximately
67% of white college-bound high school seniors. See Pls.' Ans.
(Exhibit 3 thereto). (See endnote 11.)" The report
also indicates that the Proposition 16 cutoff score was the factor
that caused the greatest degree of disparate impact because only
67.4% of African-American college-bound student-athletes cleared
the test score hurdle, as compared to 91.1% of white college-bound
student-athletes. See id. According to Plaintiffs, the essence
of the disparate impact is that Proposition 16's cutoff score
affects people of all races differently in that white student-athletes
apply to Division I schools in greater numbers and are excluded
less, while African-American student-athletes apply to Division
I schools in smaller numbers and are excluded more.
Despite these and other similar admissions from
its own documents, the NCAA suggests that the issue of disproportionate
effect should be framed somewhat differently. The NCAA characterizes
Plaintiffs as focusing on the alleged disparate impact of Proposition
16 on African-Americans because of the "well-known and continuing
discrepancy" in the distribution of standardized test scores
for black and white students. And yet, the NCAA notes that Plaintiffs
are not alleging that either the SAT or the ACT is racially biased.
While recognizing that this black-white gap in test scores necessarily
means that a larger share of black students than white students
who take the test will score below a given minimum, the NCAA instead
posits that the educational opportunity at issue here is not the
opportunity to participate in college athletics during the freshman
year but rather, the opportunity to obtain a college degree.
The NCAA further argues that the ultimate goal
of Proposition 16 is to raise the African- American student-athlete
graduation rate. That is, the standards project that the black
graduation rate will increase to 59.2%, which would be 94.8% of
the projected white graduation rate of 62.5%. See Petr. Aff. 1
4 (Exhibit C to Def.'s Response). (See endnote 12.) The
NCAA maintains that Plaintiffs have not disputed that African-Americans
are graduating at higher rates; that the gap between African-Americans
and white graduation rates has declined since the adoption of
stricter initial eligibility rules; or that more African-American
student-athletes are graduating since the adoption of the test
The NCAA also contends that the increased number
of African-Americans receiving athletic scholarships relative
to their composition in the general student body is further proof
of how college athletics has, in fact, benefitted this group.
According to the NCAA, although the initial eligibility rules
have reduced the number of incoming African-American student-athletes,
they have concomitantly resulted in creating more opportunities
to graduate for those athletes that meet the eligibility standards.
Thus, if graduation, and not freshrnan-year athletics, is the
opportunity at stake here, the NCAA maintains that Plaintiffs
have failed to demonstrate the requisite disproportionate effect.
Notwithstanding its attempt to reframe the lawsuit,
the NCAA never disputes the veracity of the statements made in
their own documents. These admissions and the bare statistics
themselves plainly evince that African-Americans are being selected
by Proposition 16 at a rate disproportionately lower than whites
sufficient to infer causation.
The Court additionally notes that, in cases challenging
selection practices that function as a pass/fail barrier (like
the standardized test score cutoff of Proposition 16), a common
basis for determining the statistical significance of the disparity
is the Equal Employment Opportunity Commission's four-fifths (or
80%) rule. See 2 Barbara Lindemann & Paul Grossman, Employment
Discrimination Law, at 1729 (3d ed. 1996). Under that rule, the
EEOC generally presumes a selection rate which is less than four-fifths
(or 80%) of the rate for the group with the highest rate as evidence
of adverse impact. See 1978 Uniform Guidelines on Employee Selection
Procedures, 29 C.F.R. § 1607.4(D) (1999). Although this rule
has been the subject of criticism because of its oversimplification,
see, eg., Watson, 487 U.S. at 995 n.3, the EEOC guidelines are
"entitled to great deference," Albemarle, 422 U.S. at
431 (quoting Griggs, 401 U.S. at 434). Neither party has drawn
the Court's attention to the EEOC's rule, but applying it here
shows that, in most instances, the selection rate of African-Americans
is less than four- fifths that of the white selection rate. (See
Because Proposition 16 relies, in part, on standardized
test scores, it is undeniable that there will be some disparity
between blacks and whites at some point in the eligibility determination.
"The data suggest that any rule that is imposed will have
a disproportionate effect on minority student-athletes (because
of the difference in the distribution of minority [GPAs] and test
scores) both in terms of false negatives and overall number declared
ineligible." NCAA Special Comm. to Review Initial Eligibility
Standards Mem., May 29,1994, at 1, NCAA 15916 (Exhibit 20 to Pls.'
Ans.) (emphasis in original). It is precisely this educational
opportunity that Plaintiffs are challenging, and not the opportunity
Moreover, the Court finds unpersuasive the NCAA's
argument that a selection practice having a disproportionate "beneficial"
impact on the protected group can compensate for any disproportionate
adverse impact on that same group. That singular fact misdirects
the Court's inquiry. The alleged beneficial impact (increased
graduation rates) redounds at the "back-end" while the
adverse impact occurs up-front.
[I]rrespective of the form taken by the discriminatory
practice, an [institution's] treatment of other members of the
plaintiffs' group can be "of little comfort to the victims
of... discrimination." Title [VI] does not permit the victim
of a facially discriminatory policy to be told that he has not
been wronged because other persons of his or her race or sex [benefitted].
That answer is no more satisfactory when it is given to victims
of a policy that is facially neutral but practically discriminatory."
Connecticut v. Teal, 457 U.S. 440, 455 (1982)
(quoting International Bhd. of Teamsters v. United States, 431
U.S. 324, 342 (1977)).
Accordingly, the Court concludes that Plaintiffs
have established a prima facie showing of a racially disproportionate
effect sufficient to shift the burden of rebuttal to the NCAA.
2.Whether Proposition 16 Is Justified by an
Under the educational necessity prong of the analysis,
"the dispositive issue is whether a challenged practice serves,
in a significant way, the legitimate [educational] goals of the
[institution]." Wards Cove, 490 U.S. at 659. That is, the
practice in question must bear a demonstrable "manifest relationship"
to a legitimate goal. See Connecticut v. Teal, 457 U.S. 440, 446
(1982) (quoting Grig2s, 401 U.S. at 432). "The touchstone
of this inquiry is a reasoned review of the [institutional justification
for [its] use of the challenged practice.... [T]here is no requirement
that the challenged practice be 'essential' or 'indispensable...
to the institution. Wards Cove, 490 U.S. at 659. Rather, the defendant's
burden of production at this stage is met only when the institution
is able to offer some proof that the device serves identified
legitimate and substantive [educational] goals. That is, the defendant's
burden [is] to identify the particular [educational] goal and
to present evidence of how the [challenged practice] cc serves
in a significant way" the identified goal. Merely being abstractly
rational, as opposed to arbitrary, would not suffice. The defendant,
therefore, has some burden of presenting objective evidence ...
factually showing a nexus between the selection device and a particular
[educational] goal. Without evidence of such a relationship it
cannot be said that the defendant has presented any evidence that
the "challenged" practice serves, in a significant way,
the legitimate [educational] goals of the [institution].
Newark Branch, NAACP v. Town of Harrison, New
Jersey, 940 F.2d 792, 804 (3d Cir. 1991) (quoting Mack A. Player,
Is Griggs Dead? Reflecting (Fearfully) on Wards Cove Packing Co.
v. Atonio, 17 Fla. St. U. L. Rev. 1, 32 (1989)).
The NCAA has proffered the following two goals
as underlying the promulgation of Proposition 16: (1) raising
student-athlete graduation rates, and (2) closing the gap between
black and white student-athlete graduation rates. The Court will
address the legitimacy of these goals before continuing to discuss
whether a manifest relationship exists between Proposition 16
and those goals.
a. Are these legitimate goals of the NCAA?
It is well established that the NCAA has become
an indelible institution of intercollegiate athletics. "Since
its inception in 1905, the NCAA has played an important role in
the regulation of amateur collegiate sports. It has adopted and
promulgated playing rules, standards of amateurism, standards
for academic eligibility, regulations concerning recruitment of
athletes, and rules governing the size of athletic squads and
coaching staffs." NCAA v. Board of Regents of Univ. of Okla.,
468 U.S. 85, 88 (1984). (See endnote 14.) Indeed, it is
fair to say that the NCAA has played a "historic role in
the preservation and encouragement of intercollegiate amateur
athletics. " Id. at 101. While neither party disputes these
general assertions, the specific goals proffered as objectives
of Proposition 16 require closer examination.
Preliminarily, the Court notes that it cannot
seriously be disputed that the NCAA, acting only as the members'
"surrogate with respect to athletic rules," Smith, 139
F.2d at 188, have no legitimate interest in promulgating academic
standards that affect the graduation rates of students in general.
The proper scope of their authority must be circumscribed to requirements
pertaining only to student-athletes. (See endnote 15.)
While the Court is sure that both parties are cognizant of this
fact, their submissions have not always been as careful in making
that distinction when discussing whether Proposition 16 is justified
by an educational necessity.
In conclusory fashion, the NCAA initially stated
that "[t]here can be no dispute that raising student athlete
graduation rates are legitimate goals." Def 's Response at
40. Then, in response to Plaintiffs' arguments (discussed below),
the NCAA claimed that it is its membership, and not the NCAA officers
or staff, who chooses the NCAA's policy objective and adopts the
NCAA's bylaws. In so doing, they generally disavowed statements
made by NCAA executives as merely personal opinions, stating that
those individuals, "like every other member of the staff
or any NCAA committee, does not determine the eligibility bylaws.
That responsibility lies with the members." Def's Reply at
6 (See endnote 16.) According to the NCAA, Proposition
16 ( like its predecessor Proposition 48) "is designed to
discourage the recruitment of athletically talented, but academically
unprepared students." Id. at 9. Thus, "because graduation
rates are the best available measure of the degree to which student
athletes are academically prepared for college, it makes perfect
sense for the NCAA to look at graduation rates as a way of evaluating
a rule's relative success." Id. at 9-10.
The NCAA also disputes Plaintiffs' argument that
it is inappropriate to promote eligibility standards that result
in a somewhat higher graduation rate for student-athletes than
for non-athletes. Citing the affidavit of the Chair of the NCAA
Division I Board of Directors, the NCAA claims that (1) it is
reasonable to apply eligibility standards that promote the chances
of obtaining a college degree because an athletic scholarship
is a substantial investment of resources by the granting institution;
(2) an athletic scholarship also eliminates the financial concerns
that inevitably cause some students to drop out from college;
and (3) the motivation to remain in intercollegiate athletic competition
is itself a powerful incentive for student-athletes to remain
in school -- an incentive that may have no counterpart for non-athletes.
See Spanier Aff. ¶ 15 (Exhibit B to Def.'s Response).
Finally, the NCAA claims to have set out affirmatively
to improve graduation rates and to narrow the black-white graduation
rate gap. Contending that Plaintiffs have confused the second
and third prongs of the disparate impact proof model, the NCAA
argues that "[i]f the goal is sound, a practice to achieve
that goal is not unlawful merely because of the severity of its
adverse disparate impact." Def.'s Reply at 18. According
to the NCAA, "[tlhe degree of disparate impact becomes relevant
only when the court analyzes (under prong three) whether equally
effective alternatives exist that decrease an adverse disparate
In response, Plaintiffs contend that it is not
the mission of the NCAA to ensure that students graduate but rather,
it is within the province of each educational institution to put
into place admissions policies, academic curricula, faculty, and
necessary classroom and individual attention that bear on graduation
rates. According to Plaintiffs, the NCAA is merely the entity
to whom member institutions have delegated the task of administering
their intercollegiate athletics programs, which is evidenced by
its role with respect to Division III schools wherein there are
no initial eligibility rules simply because the members voted
not to adopt one.
Plaintiffs also contend that the NCAA has failed
to show that closing the black-white student-athlete graduation
rate is a substantial legitimate justification rising to the level
of educational necessity. According to Plaintiffs, the NCAA has
tacitly admitted that the graduation rate gap between blacks and
whites is the result of many more things than simply the difference
in test scores and high school GPAs. (See endnote 17.)
Interestingly, Plaintiffs' statistical expert has hypothesized
that if it were legitimate for the NCAA to adopt an initial eligibility
rule designed to yield a black student-athlete graduation rate
within one percent of the white student-athlete graduation rate,
the NCAA could simply exclude over 90% of the African-American
student-athletes to achieve that result. See Hedges Aff. ¶
11 (Exhibit 24 to Pls.' Ans.).
Plaintiffs also note that, when Proposition 48
was adopted, African-American student-athletes were already graduating
at a rate higher than African-American students generally, and
student-athletes were graduating at a rate equal to the overall
student graduation rate. (See endnote 18.) Indeed, Plaintiffs
contend that the NCAA has merely linked the goal of raising student-athlete
graduation rates to the "perceived" problem that student-athletes
are less likely to be academically successful than their non-athlete
student counterparts. Plaintiffs point out that the data suggest
that both black and white student-athletes prior to the implementation
of Proposition 48 graduated in rates comparable to (indeed, higher
than) students of those racial groups in general. (See endnote
With respect to the NCAA's first proffered objective
of raising student-athlete graduation rates, this Court concludes
that it is a legitimate educational goal. An educational institution's
primary mission is to educate and graduate as many students as
possible who meet the level of academic proficiency deemed sufficient
by the institution. Thus, raising graduation rates is directly
in line with that mission. Here, as the surrogate of the colleges
and universities in Division I, the NCAA is properly setting academic
standards for student-athletes in hopes of improving the rate
at which they graduate.
What is more probative than this kind of facial
inquiry, however, is an examination of what specifically motivated
the membership to undertake the promulgation of Proposition 16,
and its predecessor, Proposition 48. After reading transcripts
of the multiple NCAA convention proceedings, examining the NCAA
research results and summaries, and analyzing the various NCAA
memoranda and other documents in the record, the Court concludes
that there is overwhelming and abundant support for the proposition
that the membership was concerned about raising student-athlete
graduation rates. (See endnote 20.)
While the evidence of graduation rates prior to
the adoption of Proposition 48 suggests that there may have been
no empirical need to raise the graduation rates of student-athletes,
the Court sees no reason to judge the wisdom of embarking on this
goal when the "perceived" abuses of student-athletes
were, in fact, real. There appears to have been a perception that
student-athletes were less academically prepared than the rest
of the student body because, in the early 1980s, "a few highly
publicized cases of perceived academic abuses by colleges and
student athletes came to light. In response to charges of exploitation
that stemmed from those stories, the NCAA adopted what has become
known as Proposition 48 NCAA Membership Services Initial Eligibility
Satellite Video Conference, Aug. 19, 1998, Tr. at 7 (statement
of Todd A. Petr) (as amended) (Exhibit 7 to Pls.' Ans.).
Certainly, a public relations benefit would redound
to the NCAA for having promulgated academic standards to combat
these stories of abuse and exploitation. However, merely because
a public relations benefit exists does not render the NCAA's adoption
of Proposition 48 (or 16) invalid. But cf. Groves v. Alabama State
Bd. of Educ., 776 F. Supp. 1518, 1531 (M.D. Ala. 1991) (declaring
illegal the selection of a minimum cutoff score "essentially
as a public relations ploy, so that the Board and education professionals
could misrepresent to parents concerned about their children's
schooling that it was faithfully ensuring all new teachers would
be 'as smart' as half -- or to be more exact, 39% -- of their
students"). Setting academic standards in the hopes of raising
student-athlete graduation rates is a legitimate goal directed
towards curbing the abuses that were not only perceived, but were
indisputably real and documented.
The same conclusion cannot be reached for the
NCAA's second proffered objective of closing the gap between black
and white student-athlete graduation rates. Not only is there
no support for an educational institution (let alone its surrogate)
to engage in such a goal, but the proffered goal was unequivocally
not the purpose behind the adoption of the initial eligibility
rules. Absolutely nothing in the record -- transcripts of convention
proceedings, research results, or memoranda -- even suggest that
this was a goal that motivated the promulgation of Proposition
16 or 48. Indeed, the Court finds it difficult to reconcile the
NCAA's current articulation of such a goal with their own documents
plainly evincing that only two goals motivated the adoption of
Proposition 16 and 48: "(1) raising of graduation rates,
and (2) allowing more individuals access to the finite number
of athletics opportunities available." NCAA Division I academics/
Eligibility/Compliance Cabinet Subcommittee on Initial-Eligibility
Issues Mem., July 27, 1998, at 4 (Exhibit 2 to Pls.' Ans.). The
NCAA does not even make the (unpersuasive) argument that its concern
over "access to the finite number of athletic opportunities"
is somehow equivalent to decreasing the graduation gap -- the
educational opportunity on which the NCAA would prefer this Court
to focus. In fact, the NCAA's counsel opened oral argument before
this Court by stating that the legitimate goal of the organization
was to improve the academic performance of student-athletes, the
best measure of which was graduation rates. No mention was made
that a second objective of closing the black-white graduation
Furthermore, the only place in the entire record
that this goal is even articulated in the form of admissible evidence
is in the affidavit of the Chair of the NCAA Division I Board
of Directors. See Spanier Aff. ¶ 11 (Exhibit B to Def 's
Response) ("There has also long been a gap between black
and white graduation rates. That gap has been reduced for student
athletes under Proposition 48, and is projected to be reduced
further under Proposition 16. This reduction is another highly
desirable outcome and should be encouraged. I would be reluctant
to sacrifice the gains achieved under Proposition 48 and projected
under Proposition 16, in favor of a different eligibility standard
that would result in a wider racial gap in graduation rates.");
accord id. ¶ 12. In light of the NCAA's prior declaration
disavowing statements made by NCAA executives as personal opinions
not binding on the organization, see Def.'s Reply at 6, the Court
is not entirely sure what to make of these lone statements.
The Court agrees that closing the black-white
graduation rate gap is, as the NCAA states, "a subject of
longstanding concern in the educational and civil rights communities."
Def.'s Response at 15. However, that desirable outcome of Proposition
16, actual or projected, is simply a collateral benefit of promulgating
a rule that sets heightened academic standards. Actually proffering
such a "back-end" balancing between graduation rates
as an express objective underlying Proposition 16 is in direct
violation of the Supreme Court's prohibition against using a "bottom-line"
defense to disparate impact cases involving pass/fail selection
practices. See Connecticut v. Teal, 457 U.S. 440, 452-56 (1982)
(achieving an appropriate racial balance after utilizing employer's
entire promotional process did not preclude plaintiffs from establishing
a prima facie case of disparate impact resulting from an examination
administered to determine initially the employees eligible for
promotion; moreover, such a "bottom-line" justification
is an impermissible defense to employer liability).
Moreover, this explicitly race-based goal stands
in stark contrast to the characterization of Proposition 16 as
a facially neutral selection rule. The NCAA's continued contention
that this goal underlies the promulgation of Proposition 16 raises
serious questions concerning whether Proposition 16 is functioning
simply as a proxy for a racial quota. This is especially so in
light of the NCAA's research finding that "these group differences
can be accounted for by taking into account the other high-school
academic variables. This means that the prediction equation does
not function differently for different racial groups." Report
of the Special NCAA Comm. to Review Initial-Eligibility Standards,
July 29, 1994, at 4, NCAA 15642 (Exhibit 19 to Pls.' Ans.).
Accordingly, the Court concludes that raising
student-athlete graduation rates is a legitimate goal of the NCAA,
but closing the gap between black and white student-athlete graduation
rates is not.
b. Is there a manifest relationship?
The NCAA claims that its own research demonstrates
that the use of standardized test scores not only serves these
goals but has, in fact, been instrumental in achieving some success.
Moreover, the NCAA argues that the use of standardized test cutoffs
has been accepted as a legitimate means of achieving educational
goals even when a cutoff disproportionately disqualifies one racial
The NCAA also attests that the classes of 1985
and 1986 were covered by the same Satisfactory Progress Rules
(See endnote 21.) throughout their college years, and that
there was no substantive change in those rules between 1985 and
1992. From this, the NCAA concludes that the observed increase
in African-American student-athlete graduation rates for the class
of 1986 cannot be attributed in any way to the Satisfactory Progress
Rules21 but rather, to Proposition 48, which took effect in that
The NCAA further claims that its own research
demonstrates that Proposition 16's test score requirement significantly
serves the stated objectives of the rule. According to those research
results, high school GPAs and standardized test scores are a "significant
but moderate predictor of college performance," with GPAs
especially being a predictor of first year grades and both criterion
being predictors of later graduation. NCAA Membership Services
Initial Eligibility Satellite Video Conference, Aug. 19, 1998,
Tr. at 21-22 (statement of John J. McArdle). Additionally, the
NCAA contends that courts have recognized that the SAT and the
ACT have been validated as predictors of academic performance
in college and thus, the NCAA's use of standardized tests and
a minimum cutoff score for the purpose of predicting college academic
performance is proper.
Plaintiffs, however, argue that, in light of numerous
internal recommendations that the rule be modified to eliminate
the cutoff score, the current cutoff is arbitrary and irrational.
Because student-athletes who fail to meet the cutoff score are
deemed ineligible, regardless of how impressive their high school
transcripts, Plaintiffs contend that the use of a cutoff score
is fraught with peril. Moreover, Plaintiffs claim that the NCAA
has never come forward with a valid educational necessity for
a rule with an arbitrary cutoff requirement that is intended to
yield a graduation rate for student-athletes that is higher than
students generally. As an alternative, Plaintiffs would have this
Court require a rule that is intended to predict graduation rates
equal to that of the general student population. Such a rule (which
is apparently based upon the NCAA's own data), has been prepared
by Dr. Lawrence Hedges. See Hedges Aff. ¶¶ 2-9 (Exhibit
24 to Pls.' Ans).
In any event, under the manifest relationship
analysis, the NCAA must produce significant evidence that establishes
a strong factual showing of manifest relationship between the"
use of the particular cutoff scores of 820 and 68, and its goal
of raising student-athlete graduation rates. Newark Branch, NAACP
v. Town of Harrison, New Jersey, 940 F.2d 792, 804 (3d Cir. 1991).
That is, the NCAA "has some burden of presenting objective
evidence ... factually showing a nexus between the" use of
the particular cutoff scores in question and the goal. 1-d. (internal
quotations omitted). To the Court's knowledge, no court in this
Circuit has yet ruled on the propriety of using standardized test
cutoff scores as a facially neutral selection practice. Thus,
some general propositions drawn from case law nationwide regarding
cutoff scores will properly frame the ensuing analysis in this
uncharted territory. Additionally, for ease of discussion, the
Court will only refer to the SAT cutoff score of 820, although
the analysis applies with equal force to the ACT cutoff score
of 68. (See endnote 22.)
As a general matter, it is well accepted that
the SAT has some predictive ability of academic success in college
as measured by college grades. That is, the College Board has
shown that there is a significant correlation between the combined
SAT Math and Verbal scores and predicted college GPA. (See endnote
23.) In fact, the College Board's statistical research
shows that there is a 0.51 mean correlation between the SAT total
score and college course grades. (See endnote 24.) However,
it bears noting that the SAT has only been validated as a predictor
of first-year GPA, and not college graduation. (See endnote
25.) This is why it makes sense for college and universities
to rely, at least in part, on the SAT in making admissions decisions.
The anti-discrimination statutes do not require
the proponents of standardized tests "to introduce formal
'validation studies' showing that particular criteria predict
actual ... performance." Watson, 487 U.S. at 998. But by
the same token, using a standardized test to achieve objectives
for which it was neither intended nor validated would be improper.
For example, then United States District Judge Walker (now sitting
on the United States Court of Appeals for the Second Circuit)
concluded in Sharif v. New York State Educ. Dep't, 709 F. Supp.
345, 362 (S.D.N.Y. 1989), that the defendants had "failed
to show even a reasonable relationship between their practice"
of using a SAT cutoff score and awarding merit scholarships for
high school academic achievement because "[t]he SAT was not
designed to measure achievement in high school and was never validated
for that purpose."
As with all facially neutral practices challenged
under the disparate impact theory, the use of a SAT cutoff score
as a selection practice would be proper so long as it is justified.
That is, an arbitrarily selected SAT cutoff score, in the sense
that the particular cutoff in question was randomly chosen from
the universe of possible choices (400 through 1600), would be
invalid. See, eg., Groves v. Alabama State Bd. of Educ., 776 F.
Supp. 1518, 1531 (M.D. Ala. 1991) (concluding that the Board had
arbitrarily selected a minimum cutoff score of 16 on the ACT).
Nonetheless, "[m]erely being abstractly rational,
as opposed to arbitrary," will not suffice. Harrison, 940
F.2d at 804. Instead, a particular cutoff score affecting (in
this case) student-athlete graduation rates "should normally
be set so as to be reasonable and consistent with normal expectations
of the acceptable proficiency" of student-athletes towards
attaining a college degree. 1978 Uniform Guidelines on Employee
Selection Procedures, 29 C.F.R. § 1607.5(H) (1999). Such
a requirement makes intuitive sense to the Court, as it did for
the Second Circuit: No matter how valid the exam, it is the cutoff
score that ultimately determines whether a person passes or fails.
A cutoff score unrelated to job performance may well lead to the
rejection of applicants who were fully capable of performing the
job. When a cutoff score unrelated to job performance produces
disparate racial results, Title VII is violated.
Guardians Ass'n of the New York City Police Dep't.
Inc. v. Civil Serv. Comm'n, 630 F.2d 79, 105 (2d Cir. 1980), cert.
denied, 452 U.S. 940 (198 1). In addition, "the existing
[SAT] requirement would not be educationally justified if the
particular cutoff score used by the [NCAA] to determine the eligibility
of applicants is not itself a valid measure of the minimal ability
necessary" to meet the goal of raising student-athlete graduation
rates. Groves, 776 F. Supp. at 1530; accord Grimes v. Sobol, 832
F. Supp. 704, 7 1 0 (S.D.N.Y. 1993) (quoting Groves), aff d, 37
F.3d 857 (2d Cir. 1994); Association of Mexican-American Educators
v. California, 93 7 F. Supp. 1397, 1420 (N.D. Cal. 1996) (quoting
"Consequently, there should generally be
some independent basis for choosing the cutoff." Guardians,
630 F.2d at 105. For example, the NCAA "might establish a
valid cutoff score by using a professional estimate of the requisite
ability levels, or, at the very least, by analyzing test results
to locate a logical 'break-point' in the distribution of scores."
Under the above-articulated standards, it is plainly
apparent that the NCAA has offered no such basis in this case.
It chose a cutoff that seemed acceptable from its consideration
of, among other things, the "essential tension between two
conflicting goals: (1) raising of graduation rates, and (2) allowing
more individuals access to the finite number of athletics opportunities
available." NCAA Division I Academics/Eligibility/Compliance
Cabinet Subcommittee on Initial-Eligibility Issues Mem., July
27, 1998, at 4 (Exhibit 2 to Pis.' Ans.). Then it essentially
engaged in a "wait and see" strategy to see if the predicted
effects and outcomes would come to pass. (See endnote 26.)
Initially, the Court notes that the NCAA has not
validated the use of the SAT, or any particular cutoff score of
the SAT, as a predictor of student-athlete graduation rates. This
is important because the average student body population at Division
I schools between 1983 and 1989 was 529,242, while the average
student-athlete population at Division I schools during that same
time period was 13,550 -- this amounts to a mere 2.56%. See NCAA
Research Report 960 1 , at NCAA 17212, 17215 (Exhibit 9 to Pls.'
Ans.). Moreover, Division I schools do not represent all of the
colleges and universities nationwide. These facts place into question
the validity of the use of the SAT or any particular cutoff score
in order to raise student-athlete graduation rates at Division
I schools when the SAT was not validated for that purpose. While
the NCAA's research found that "[t]he best college-level
predictor of the student-athlete graduation rate was the graduation
rate of the entire student body," the record did not reveal
any studies or other support for the researcher's naked finding.
Report of the Special NCAA Conim. to Review Initial-Eligibility
Standards Mem., July 29, 1994, at 5, NCAA 15643 (Exhibit 19 to
Aside from the validity of using the SAT as an
accurate predictor of student-athlete graduation rates, the record
makes abundantly clear that, prior to adopting Proposition 16,
the NCAA devoted substantial discussion towards the anticipated
effects (raising graduation rates) and desired outcomes (increasing
access to opportunities) of requiring additional high school course
work, using core GPA and SAT cutoff scores, and allowing for the
index or sliding scale. Specifically, the 820 cutoff score being
challenged in this action is roughly one standard deviation below
the SAT national mean, (See endnote 27.) suggesting that
the NCAA referred to an independent objective standard in identifying
this particular cutoff score. What is special about a cutoff one
standard deviation from the mean is that "[flor any test,
regardless of how carefully it was prepared, statistical analysis,
based on the normal distribution curve, shows that there is 68%
probability that successive scores would fall within a range of
one standard deviation from an actual score." Guardians.
630 F.2d at 102. Thus, the Court cannot conclude that the 820
cutoff score was arbitrarily selected in the sense that the particular
cutoff in question was randomly chosen from the possible values
of 400 through 1600.
But these facts only demonstrate that the NCAA
was being abstractly rational. "[U]nder Wards Cove the defendant's
burden of production involves something beyond mere articulation
of a rational basis for the challenged practice." Harrison,
940 F.2d at 802. It is apparent that, because the NCAA has relied
exclusively on the predictive ability of the SAT on graduation
rates of student-athletes in justifying the cutoff score, it has
failed to analyze the issue in terms of what factors affect the
graduation rate in addition to Proposition 16, thereby concomitantly
failing to control for those variables. By simply pointing to
the end result of graduation rates, the NCAA can all too obviously
point to some relationship between choosing a particular cutoff
score and increased graduation rates. However, it cannot possibly
know with any degree of certainty whether the predicted increases
in graduation rates are attributable to numerous factors other
than the 820 cutoff score. (See endnote 28.)
Merely examining the outcomes of the initial eligibility
rule does not demonstrate that the choice of the particular cutoff
score in question serves the goal in a significant way. Taken
to its logical end, the NCAA's proffered "manifest relationship"
is tantamount to a rationalization of any cutoff score, once the
SAT's predictive ability is presumed. Such a decisionmaking process,
while reasoned to some degree, fails to demonstrate that there
is "some independent basis for choosing the cutoff."
Rather, to be legally justified, the NCAA must produce evidence
explaining why it chose the 820 cutoff score, as opposed to any
other cutoff score, aside from the fact that its members discussed
and considered the matter in depth. Or, as the NCAA's counsel
stated at oral argument, the standard of arbitrariness as a matter
of law means that the cutoff score chosen must be related manifestly
to the goal.
A review of the entire record indicates that it
is notable more for what it does not present than for what it
does. The Court appreciates the NCAA's intent that "[t]he
eligibility standards limit freshman participation in intercollegiate
competition to those students who have demonstrated a minimum
level of readiness for college academic work." Spanier Aff.
¶ 7 (Exhibit B to Def 's Response). However, the NCAA has
failed to justify either (1) that its choice of a 820 cutoff score
is reasonable and consistent with normal expectations of the acceptable
proficiency of student-athletes towards attaining a college degree;
(2) that its choice of a 820 cutoff score is the logical "break-point"
in the distribution of SAT scores relevant to meeting its goal
of raising student-athlete graduation rates (and increasing access
to opportunities); or (3) that its choice of a 820 cutoff score
is a valid measure of the minimal ability necessary to raise the
graduation rates of student-athletes above those achieved prior
to Proposition 16, let alone prior to Proposition 48. (See endnote
29.) Indeed, the NCAA has not even articulated what it
would consider normal expectations of the acceptable proficiency
of student-athletes towards attaining a college degree or what
it would consider the minimal ability necessary to graduate. It
relies, instead, on vague, unsupported notions such as the presumption
"that students earning a  SAT have serious reading problems."
1995 NCAA Convention Proceedings, at 258, NCAA 27459 (statement
of Freeman Hrabowski) (Exhibit 12 to Def.'s Response).
Significantly, the NCAA has failed to articulate
in any meaningful manner the decisionmaking process behind the
selection of the 820 cutoff score. A solitary statement by one
member institution purports to provide a justification: "Available
evidence supports the contention that a core grade-point average
value of 2.500 would have approximately the same screening effects
as the  SAT score or the  ACT score. Accordingly, it
is this relationship between the core grade-point average of 2.500
and the SAT score of  or the ACT score of  that defines
the basis of the index values established in Proposal 16."
See 1992 NCAA Convention Proceedings, Jan. 8, 1992, at 233, NCAA
001 307 (statement of Lorna P. Straus) (Exhibit 8 to Def.'s Response).
And yet, the NCAA's own research consultant, Professor McArdle,
belies such a rationale: "The actual determination of a cutoff
score on any variable was not possible from the research evaluation....
While I did not pick any particular cutoff score or anchor points
for this index, I did show various decisionmaking committees how
[a) cutoff score could be determined on a rational and objective
basis." Letter to Mark Asher, May 31, 1995 (Exhibit 33 to
Pls.' Ans.) (emphasis in original); accord Letter to Joseph Crowley,
Jan. 10, 1995, at 3, M-0003003 (Exhibit 34 to Pls.' Ans.) ("The
specific cutting point of SAT=[8201 is not based on APS data ...
This number was initially an arbitrary test-score cutoff point.").
It is plain that multiple concerns in addition
to the "two conflicting goals" underlie the adoption
of an initial eligibility rule. For example, the record demonstrates
that minimizing false negatives (those student-athletes deemed
ineligible but who then graduate anyway) and false positives (those
student-athletes deemed eligible but who then do not graduate)
is one such concern. (See endnote 30.) Public relations
issues may also have been prevalent.(See endnote 31.) While
it may be true that individual members "may have independently
concluded that [ ] few student-athletes whose tests score below
[820 or 68] have a reasonable prospect of earning a college degree
in Division I institutions," id., nothing in the record supports
the conclusion that the cutoff score was adopted by the entire
membership after due consideration of this issue.
In addition, contrary to the NCAA's blanket assertion
that "[t]he degree of disparate impact becomes relevant only
when the court analyzes (under prong three) whether equally effective
alternatives exist that decrease an adverse disparate impact,"
Def.'s Reply at 18, the degree of impact is highly relevant in
providing the Court with a basis for determining that the chosen
cutoff score represents a reasoned decision by the NCAA, in light
of the overwhelming evidence in the record attesting to the fact
that the NCAA and its members were concerned over the impact any
initial eligibility rule would have on African-Americans.
Indeed, the NCAA's own research report points
to one example of how the NCAA could have come to their decision
by using a mathematical model that picks a cutoff score after
accounting for the members' concerns over the benefits and costs
of an initial eligibility rule. See generally NCAA Research Report
91-05, Oct. 1992 (Exhibit 26 to Pls.' Ans.). The model has been
explained as follows: A cutoff score on any variable can be determined
objectively by relative weights on the costs and benefits of different
outcomes. An "expected utility" analysis can be used
to find the optimal cutoff score. In theory, this approach allows
decision makers to weigh the benefits of accurate predictions
(the True Positives and True Negatives) against the costs of inaccurate
predictions (the False Negatives and False Positives).
J. J. McArdle, A Summary of Research Results Related
to Several NCAA Initial Eligibility Rules, Oct. 24, 1994, at 3,
M-0000560 (Exhibit 31 to Pls.' Ans.).
By highlighting this method of decisionmaking,
the Court is not limiting the NCAA to justifying its cutoff score
solely by reference to an expected utility analysis. Indeed, "[i]n
practice, this formal approach has been hard to use, mainly because
different decision makers have very different goals and values,
and some goals have proven to be contradictory." Id. The
NCAA is free to use any reasonable means to arrive at a decision
as to why the particular cutoff score chosen makes logical sense
in reference to the goal of raising student-athlete graduation
rates. This is why Plaintiffs' approach in criticizing the relative
accuracy of Proposition 16 in predicting student-athlete graduation
rates, as compared to other alternative formulations of an initial
eligibility rule, see, e.g., Pls.' Supp. Br. at 5-7, has no force
under the facts of this case. Title VI does not require the NCAA
to adopt the most accurate rule in terms of predictive power;
it only demands that the NCAA justify how its choice of a rule
serves a legitimate educational goal in a significant way.
The lack of justification behind the choice of
the 820 cutoff is circumstantially revealed, for example, by the
student-athletes in the partial qualifier region, whom the NCAA
admits "look very similar in performance to several groups
of student-athletes who are full qualifiers with lower GPAs....
The data indicate that partial qualifiers are performing at a
slightly higher level than low-GPA full qualifiers. Taken as a
whole, it is difficult to distinguish the academic performance
of the partial qualifier from the performance of some qualifiers."
NCAA Division I Academics/Eligibility/Compliance Cabinet Subcommittee
on Initial-Eligibility Issues Mem., July 27, 1998, at 4 (Exhibit
2 to Pls.' Ans.). (See endnote 32.) " The fact is
that the difference in graduation rates of partial qualifiers
and certain full qualifiers is not statistically significant.
See Petr Dep. at 45 (Exhibit I 1 to Pls.' Ans.).
Because the NCAA has failed to analyze the issue
in terms of what constitutes an acceptable level of proficiency
for a student-athlete to attain a college degree, or what constitutes
the minimal ability necessary to graduate, the current choice
of the 820 cutoff score results in this anomaly. "If the
goal of the standard is to delineate those who would be successful
in college from those who would not, then it would seem that it
is not serving its intended purpose and in fact, may preclude
students who would be academically successful from attending Division
I schools." See Initial-Eligibility Survey Compilation, at
13 (Exhibit 22 to Def.'s Reply). (See endnote 33.) "
Indeed, this fact is readily inferred from the NCAA's own "selection
line," which identifies individuals who "would have
an equal probability of graduating as anyone else whose combination
of test score and grades puts them on the line." NCAA Research
Staff Mem., May18, 1998, at 4, NCAA 27893 (Exhibit D to Pls.'
Ans.); accord NCAA Membership Services Initial Eligibility Satellite
Video Conference, Aug. 19, 1998, Tr. at 37 (statement of John
J. McArdle) (Exhibit 7 to Pls.' Ans.).
Accordingly, the Court concludes that the NCAA
has not produced any evidence demonstrating that the cutoff score
used in Proposition 16 serves, in a significant way, the goal
of raising student-athlete graduation rates. Even if the NCAA
had offered evidence sufficient to shift the inquiry back to Plaintiffs
to show that they have carried their burden of persuasion, the
Court concludes, as already shown above, that Plaintiffs have
more than amply carried this burden by demonstrating that the
racially adverse impact caused by the SAT cutoff score is not
justified by any legitimate educational necessity.
In reaching this result, the Court stresses that
this case does not preclude the use the SAT, or any particular
cutoff score of the SAT, in the NCAA's adoption of an initial
eligibility rule. It may be "that no strong statistical basis
exist[s) for the use of any particular single minimum test score,"
but that is for the NCAA to determine more definitively after
undertaking an appropriate analysis justifying an independent
basis for choosing a cutoff score. 1992 NCAA Convention Proceedings,
Jan. 8, 1992, at 235, NCAA 001308 (statement of Gregory M. St.
L. O'Brien); accord id. at 238, NCAA 001310 (statement of Francis
X. Rienzo) (quoting the Academic Requirements Committee's May
1991 letter, which stated "The research does not support
limitation of a cut-off score within the index.").
3. Whether There are Equally Effective Alternative
Practices to Proposition 16
Notwithstanding the Court's conclusion above,
Plaintiffs would ultimately prevail as they have carried their
burden of persuasion to proffer an equally effective alternative
practice that results in less racial disproportionality while
still serving the goal of raising student-athlete graduation rates.
Under Title VI, "equally effective" means equivalent,
comparable, or commensurate, rather than identical. See, e.g.,
Alexander v. Choate, 469 U.S. 287, 294 (1985). The Third Circuit
has even held that Plaintiffs may prevail "where they are
able to suggest a viable alternative to the challenged practice
which has the effect of reducing disparate impact and the employer
refuses to adopt the alternative." Newark Branch, NAACP v.
Town of Harrison, New Jersey, 940 F.2d 792, 798 (3d Cir. 1991)
Plaintiffs principally proffer the alternative
models in the NCAA's own memorandum as equally effective to Proposition
16. The memorandum presented four models that the NCAA is considering,
the first of which is the retention of the current rule. After
describing the nature of the three alternatives, a table will
be presented summarizing their predicted effects. See generally
NCAA Division I Academics/Eligibility/Compliance Cabinet Subcommittee
on Initial-Eligibility Issues Mem., July 27, 1998 (Exhibit 2 to
The first alternative, Model 2, would essentially
allow partial qualifiers to become full qualifiers. This would
be achieved by lowering the minimum standardized test score needed
for eligibility to a 720 on the SAT, or a 59 on the ACT, and extending
the range over which student-athletes are judged on their combined
grades and test score on the sliding scale. The sliding scale
of combined minimum test score and core GPA would apply to student-athletes
with SAT scores between 720 and 1010 (ACT scores between 59 and
86) or core GPAs between 2.000 and 2.750. This would, however,
still require a standardized test score that is higher in relation
to national norms than the same comparison with respect to high
In Model 3, current Proposition 16 partial qualifiers
would become full qualifiers as would student-athletes with SAT
scores between 600 and 720, provided they obtained the core GPA
dictated by the sliding scale. This would be achieved by lowering
the minimum standardized test score needed for eligibility to
a 600 on the SAT or a 51 on the ACT, and extending the range over
which student-athletes are judged on their test-grades combination
score. The sliding scale of minimum test score and core GPA would
apply to student-athletes with SAT scores between 600 and 1010
(ACT scores between about 51 and 86) or core GPAs between 2.000
and 3.050. The minimum SAT score of 600 is about two standard
deviations below the national mean. As a result, high school grades
and test scores would be evaluated equally in initial eligibility
Finally, in Model 4, initial eligibility would
be based on a fully extended version of the current sliding scale.
This would be achieved by eliminating the minimum core GPA and
standardized test score needed for eligibility, and basing eligibility
for all student-athletes on a test-grades combination score. As
a result, a student-athlete's eligibility would depend entirely
on an equally weighted combination of high school grades and standardized
The various alternatives and their predicted effects
are summarized in the following table:
Overall Black Black
Student-Athlete Ineligibility False
Alternative Graduation Rate Rate Negatives
Proposition 16 61.8% 19.4% 15.7%
Model 2 60.7% 15.9% 13.6%
(includes partial qualifiers
Model 3 60.0% 15.7% 13.2%
(extends sliding scale to
600 SAT/51 ACT)
Model 4 59.8% 15.6% 13.1%
(full sliding scale)
Even a cursory examination of these statistics
demonstrates that the more selective rule (Proposition 16) projects
a higher graduation rate for student-athletes. Conversely, the
less selective rules (Models 2, 3, or 4) project fewer disqualifications
of African-American students with lower test scores, at the cost
of somewhat lower graduation rates.
However, even under Model 4, the projected student-athlete
graduation rate of 59.8% is higher than all the rates previously
experienced. For example, the graduation rate of student-athletes
in the year prior to the adoption of Proposition 48 (1985) was
52%. See NCAA Research Report 96-01, at NCAA 17215 (Exhibit 9
to Pls.' Ans.). In the last year for which full data is available
on Proposition 48 (1989), student-athletes graduated at a rate
of 58%. And finally, for the freshman class entering in the year
1991-1992 (the latest year for which data is presented in the
record), student-athletes graduated at a rate of 56%. See 1998
NCAA Division I Graduation-Rates Report, at 626 (Exhibit 17 to
Def's Reply). All of these rates are undeniably surpassed by the
59.8% predicted under Model 4. Moreover, the NCAA estimates that
"[t]his projected rate would still be about two percentage
points higher than the current student-athlete graduation rate."
NCAA Division I Academics/Eligibility/Compliance Cabinet Subcommittee
on Initial-Eligibility Issues Mem., July 27, 1998, at 13 (Exhibit
2 to Pls.' Ans.).
Although Model 4 may be the least preferred from
the NCAA's perspective, that consideration has no bearing on this
prong of the analysis. Moreover, while the NCAA's counsel took
the position at oral argument that the alternative graduation
rate must be statistically significant to the rate predicted under
Proposition 16, the NCAA has not demonstrated that there is something
special about that particular graduation rate. Indeed, it can
only be presumed that the goal of raising student-athlete graduation
rates embodies the NCAA's desire to raise them beyond the level
existing prior to the adoption of Proposition 16 and nothing more.
Plaintiffs have shown at least three alternative practices resulting
in less racial disproportionality while still serving the NCAA's
goal of raising student-athlete graduation rates -- not raising
them above a certain threshold number. That is all the proof that
Plaintiffs need to demonstrate under Title VI.
Viewing each of the respective summary judgment
motions in the light most favorable to the non-moving party, Plaintiffs'
motion is GRANTED and Defendant's motion is DENIED. Plaintiffs
are entitled to judgment in their favor on the merits of their
Title VI claim.
An appropriate order follows.
1 The ensuing background information was culled
primarily from the following sources: Marshall Aff. 11 2-3 (Exhibit
I to Docket No. 4); NCAA Division I Academics/ Eligibility/Compliance
Cabinet Subcommittee on Initial-Eligibility Issues Mem., July
27, 1998, at 7 (Exhibit C to 41); NCAA Membership Services Initial
Eligibility Satellite Video Conference, Aug. 19, 1998, Tr. at
6-7 (statement of Todd A. Petr) (as amended) (Exhibit 7 to Docket
No. 54); Athletics and Academics in the Freslunan Year: A Study
of the Academic Effects of Freshman PSAicil2ation in Varsity Athletics,,
Dec. 1984, at 1-3 to 1-6, NCAA 1281512818 (Exhibit 25 to Docket
2 "In April 1995, the College Board recentered
the score scales for all tests in the SAT Program to reflect the
contemporary test-taking population. Recentering reestablished
the average score for a study group of 1990 seniors at about 500
-- the midpoint of the 200-to-800 scale -- allowing students,
schools, and colleges to more easily interpret their scores in
relation to those of a similar group of college-bound seniors."
Recentered Scale (visited Feb. 22, 1999) <http://www.collegeboard.org/sat/html/HTMLS/admision/cbs/cbsrec97.html>.
Accordingly, a test score of 700 on the old scale is approximately
equivalent to a 830 on the recentered scale, and a score of 900
on the old scale is approximately equivalent to a 1010 on the
recentered scale. See SAT V+M Co=osites7' Original to Recentered
Scale (visited Feb. 22, 1999) <http: www.collegeboard.org/sat/html/HTMLS/admision/equiv/rtO27027.html>.
3 The Fund is an enrichment program for economically
disadvantaged youths that provides summer education and sports
instruction on the campuses of NCAA member and nonmember institutions
of higher education. See Thiebe Aff. T 2 (Exhibit 2 to Docket
No. 4); Guidelines for the 199TNational Youth Sports Program,
at 1, NCAA 009886 (Exhibit I to Docket No. I 1)
4 See Marshall Dep. at 82-86 (Exhibit D to Docket
No. 1 1); Thiebe Dep. at 14-17; 21-23; 25-29; 57-61, 78-79, 92-95
(Exhibit E to Docket No. I 1); id. at 96-97 (stipulation by NCAA's
counsel that a committee of the NCAA renders final determinations
with respect to the program, requiring no further action or authorization
by the Fund); see also Br. of Amici Curiae Trial Lawyers f6i Public
Justice, P.C. and Southern Poverty Law Center in Support of Respondent
in NCAA v. Smith, No. 98-84, at 9-15.
5 Accord 1995-1996 NCAA Annual Reports, at 46
(Exhibit H to Docket No. 15).
6 Accord NCAA Const., art. 1, rule 1.3.2 ("Member
institutions shall be obligated to apply and enforce this legislation,
and the enforcement procedures of the Association shall be applied
to an institution when it fails to fulfill this obligation.")
(Exhibit A to Docket No. 1 1); id., rule 2.01 ("legislation
enacted by the Association governing the conduct of intercollegiate
athletics shall be designed to advance one or more basic principles
... to which the members are committed."); Br. of Petitioner
NCAA in NCAA v. Smith, No. 98-84,1999 WL 784591, at *23 ("the
NCAA often adopts rules that are opposed by individual institutions,
and is required to take enforcement actions over the opposition
of individual members, for the collective good"). See also
NCAA v. Board of Regents of Univ. of Okla., 468 U.S. 85, 101,
117 (1984) (acknowledging that for intercollegiate athletics to
exist, a "myriad of rules ... must be agreed upon" and
that "a certain degree of cooperation is necessary if the
type of competition that [the NCAA] and its member institutions
seek to market is to be preserved"); Smith v. NCAA, 139 F.2d
1809 183 (3d Cir. 1998) ("The member institutions agree to
abide by and enforce these rules."), judgement vacated on
other grounds, No. 98-48, slip op., 1999 WL 83907 (U.S. Feb. 23,
7 See Generally Br. for the United States as Amicus
Curiae in Support of Respondent in NCAA v. Smith, No. 98-84, at
24-33 (reflecting the collective views of the Solicitor General
of the United States, United States Department of Education, United
States Department of Health and Human Services, and the United
States Department of Justice) (Exhibit 1 to Docket No. 54).
8 See also NCAA Const., art. 1, rule 1.2 (b) (stating
that a purpose of the NCAA is "[t]o uphold the principle
of institutional control of, and responsibility for, all intercollegiate
sports in conformity with the co college board institution and
bylaws of this Association").
9 See, e.g., Dothard v. Rawlinson, 433 U.S. 321,
329 (1977) (analyzing employment standards that "select applicants
for hire in a significantly discriminatory pattern"); Washington
v. Davis, 426 U.S. 229, 246-47 (1976) ("hiring and promotion
practices disqualifying substantially disproportionate number
of blacks"); Albemarle Paper Co. v. Moody, 422 U.S. 405@
425 (1975) (plaintiff required to show "that the tests in
question select applicants for hire or promotion in a racial pattern
significantly different from that of the pool of applicants").
10 "Pls."Opening" consists of a
legal memorandum with exhibits A-D (Docket No. 41).
11 "Pls.' Ans." consists of a legal
memorandum (Docket No. 57), an appendix of 35 exhibits (Docket
Na. 54 and 56), and a second appendix of four additional documents
(Docket No. 53).
12 "Def.'s Response" consists of a legal
memorandum with exhibits A-D (Docket No. 48) and an appendix of
13 additional exhibits (Docket No. 47).
13 According to the figures cited in the NCAA's
July 27, 1998 memorandum, in 1996, African-Americans were selected
at a rate only 78.4% of the rate at which whites were selected.
In 1997, African-Americans were selected at a rate 82.0% of the
rate at which whites were selected. See also Draft Table and Figures
for Report 98-04, Feb. 9, 1998 (Exhibit 21 to Def.'s Reply). According
to the figures cited by the Department of Education, the percentage
of African-American college-bound high school seniors who met
Proposition 16's requirements constituted only 69.3% of the percentage
of white college-bound high school seniors who met those same
requirements. Additionally, African-American college-bound student-athletes
cleared the test score hurdle at a rate only 74.0% of the rate
at which white college-bound student-athletes cleared the hurdle.
14 Accord Smith v. NCAA, 139 F.2d 180, 183 (3d
Cir. 1998) (stating that the NCAA "is responsible for promulgating
rules governing all aspects of intercollegiate athletics, including
recruiting, eligibility of student-athletes, and academic standards"),
-judgment vacated on other Grounds, No. 98-48, slip op., 1999
WL 83907 (U.S. Feb. 23, 1999).
15 See, e. R., NCAA Const., art. 1, rule 1.2 (Exhibit
A to Docket No. 1 1); Proceedings of the 77th Annual Convention
of the NCAA, at 106, NCAA 2763 1, Jan. 10- 1 2, 1983 (statement
of James A. Castaneda) (Exhibit 6 to Def.'s Response) (quoting
Article 2 of the NCAA constitution and referring to the NCAA's
role in promoting satisfactory standards of scholarship for student-athletes).]
16 "Def's Reply" consists of a legal
memorandum with 10 exhibits (Docket No.58).
17 See McArdle Dep. at 134-37 (Exhibit 35 to Pls.'
Ans.) (agreeing that it would be a mistake to conclude that the
difference in black-white graduation rates is wholly attributable
to differences in GPA and test scores); see also Def.'s Response
at 10 n.7 (citing scholarly studies documenting the discrepancy
found in the distribution of standardized test scores for black
and white students.).
18 Between 1983-1985, African-American student-athletes
graduated at rates of 35%, 35%, and 36% respectively, as compared
to African-American students generally who graduated at rates
of 30%, 30%, and 32% in those same years. See NCAA Research Report
9601, at NCAA 17212, 17215 (Exhibit 9 to Pls.' Ans.). During those
same years, student-athletes graduated at rates of 51%, 52%, and
52% respectively, as compared to students in general who graduated
at rates of 51%, 52%, and 53%. See id.
19 See id. (showing that between 1983-1985, white
student-athletes graduated at rates of 58%, 59%, ancr59% respectively,
as compared to white students generally who graduated at rates
of 54%, 55%, and 55% in those same years).
20 See, e.g., NCAA Division I Academics/ Eligibility/Compliance
Cabinet Subcommittee on Initial-Eligibility Issues Meeting Agenda,
Sept. 9, 1998, at NCAA 28080 (Exhibit 23 to Def 's Reply) ("The
subcommittee believes that the initial eligibility standards need
to reflect the Division I membership's commitment to improving
the graduation rates for student-athletes while limiting as best
possible the number of individuals eliminated from the pool of
qualifiers who go on to graduate."); 1995 NCAA Convention
Proceedings, at 257, NCAA 27458 (statement of Edward B. Fort)
(Exhibit 12 to Def.'s Response) ("It is worthy of note that
the special committee reached a consensus view. Their deliberations
revealed that a choice of initial-eligibility rules must be guided
by clear definition of goals. The latter would unavoidably involve
two contrasting effects. Number one, graduation rates and, secondly,
minority opportunities."); NCAA Resolution No. 174, at NCAA
27505 (Exhibit IO to Def 's Response) (authorizing a review of
the initial eligibility requirements because, in part, "fundamental
concerns of the Association in the development and adoption of
1992 Convention Proposal 16 were the need to enhance the academic
integrity of intercollegiate athletics programs and to encourage
the adequate academic preparation of student-athletes, without
unfairly limiting educational opportunities for student-athletes
. . ."); Report of NCAA Special Committee on Academic Standards,
Aug. 15, 1985, at CB 0004059 (Exhibit 29 to Pls.' Ans.) ("Over
the past decade, there has been increasing concern over the number
of student-athletes entering Division I institutions of the NCAA
inadequately prepared to meet the academic requirements for satisfactory
progress and graduation."); Proceedings of the 77th Annual
Convention of the NCAA, Jan. IO- 1 2, 1983, at 107, NCAA 2763
1, (statement of James H. Zumberge) (Exhibit 6 to Def.'s Response)
To restore the original intent of the athletic grants-in-aid and
to reemphasize the primary [ ]mission of colleges and universities,
a number of Division I presidents and chancellors seek to redefine
the qualification of student-athlete.").
21 See Exhibit 15 to Pls.' Ans.; Exhibit 20 to
22 Additionally, scores on one test can be converted
to approximately equivalent scores on the other. See, e.g., SAT
I-ACT Score Comparisons (visited Feb.22,1999)<http://www.collegeboard
23 See, e.g., Brian O'Reilly, Measuring the SAT:
The SAT Is the Most Efficient Predictor of College Success (visited
Feb. 22, 1999) <http:H www.collegeboard.org/sat/html/ admissions/measurec.htrnl>.
24 See Recentered SAT I Scores as a Predictor
of College Grades (visited Feb. 22, 1999) <http://www.collegeboard.org/sat/html/HTMLS/admision/stats/statOO3.html>.
25 See Gretchen Rigol, Symposium, Insi2ht Magazine
May 18, 1998, at 24 (discussion by College Board vice president
for Guidance, Access, and Assessment Services on whether colleges
should eliminate the SAT as part of their admissions decisions);
1992 NCAA Convention Proceedings, Jan. 8, 1992, at 234, NCAA 001
308 (statement of Edward B. Fort) (Exhibit 8 to Def.'s Reply)
("As we know, the purpose for which these tests were originally
developed was not that6oncemed with student progress but instead
predictability for academic success in college during at least
the initial freshman year.").
26 See, e.g., McArdle Dep. at 42 (Exhibit D to
Pis.' Opening) ("I meant that we didn't know what would happen,
empirically, if Prop 48 had been put in place. We then tried to
find out with our data what would have happened -- what happened.
But we were making guesses at this time about what would happen;
what the effect would be."); 1995 NCAA Convention Proceedings,
at 260-61, NCAA 27461-62 (statement of Francis X. Rienzo) (Exhibit
12 to Def.'s Response).
27 See NCAA Division I Academics/Eligibility/Compliance
Cabinet Subcommittee on Initial-Eligibility Issues Mem., July
27, 1998, at 7 (Exhibit 2 to Pls.' Ans.); see also SAT I Verbal
and Math: 1998-99 Mean Scores and Percentiles (visited Feb. 22,
(citing SAT national mean of 10 1 7 and a standard deviation of
207 for 1998 college-bound seniors).
28 See, eg., J. J. McArdle, A Summary of Research
Results Related to Several NCAA initial Eligibility Rules, Oct.
24, 1994, at 14, M-0000571 (Exhibit 31 to Pls.' Ans.) (stating
that "it is not appropriate to attribute [the observed increase
in graduation rates relative to pre-Proportion 48 levels] to Prop
48" in light of multiple unknown factors); McArdle Dep. at
92 (Exhibit 17 to Pls.' Ans.) (stating that he had no idea what
role, if any, the Satisfactory Progress Rules played in increasing
graduation rates for student athletes); McArdle Dep. at 134-37
(Exhibit 35 to Pls.' Ans.) (agreeing that it would be a mistake
to conclude that the difference in black-white graduation rates
is wholly attributable to differences in GPA and test scores).
29 But cf. Athletics and Academics in the Freshman
Year: A Study of the Academic Effects of Freshman Participation
in Varsity Athletics, Dec. 1984, at 3-1 to 3-5 1, NCAA 12849-12899
(Exhibit 25 to Pls.' Ans.) (presenting statistical research to
support an independent basis for choosing a GPA cutoff score of
2.0 for student-athletes).
30 See e.g., Report of the Special NCAA Comm.
to Review Initial-Eligibility -1 Standards Mem., July 29, 1994
at 6, NCAA 15644 (Exhibit 19 to Pls.' Ans.) ("The distributions
of graduates and nongraduates overlap on the academic variables.
Thus, the choice between desired outcomes, such as the false negatives
vs. true positives, need to be defined in terms of utility weights.").
31 See e.g., 1992 NCAA Convention Proceedings,
Jan. 8, 1992, at 23 5, NCAA 001308 (statement of Gregory M. St.
L. O'Brien) (Exhibit 8 to Def's Response) ("In endorsing
the indexing concept as 'expressed in Proposal No. 16, the committee
expressed the view that the floor of  on the SAT or 
on the ACT should continue to exist for the additional eligibility
requirements for student-athletes in Division I institutions.
The basis for this view likely differed across the membership
of the Commission and the Council. Some may have been concerned
about Congf6ssional public relations and public reactions to perceived
reductions in academic standards in this age of reform of intercollegiate
32 Accord NCAA Research Staff Mem., May 18, 1998,
at 3, NCAA 27892 (Exhibit D to Pls.' Ans.); see also Letter to
Joseph Crowley, Jan. 10, 1995, at 3, M-0003003 (Exhibit 34 to
Pls.' Ans.) ("The explicit distinction and labeling of 'full'
and 'partial' qualifiers at this cutoff, and the associated penalty
(loss of the fourth year), was not generally consistent with the
comparative academic performances of the APS students.").
33 Accord 1995 NCAA Convention Proceedings, at
263, NCAA 27464 (statement of William B. DeLauder) (Exhibit'12
to Def.'s Response) (stating that "the 1992 approval of Proposal
16 is not fully supported by the NCAA's own research. The 'double
cut,' that is a minimum-core GPA and a minimum SAT, is totally
arbitrary. In fact, it eliminates many students who are predicted
to have the same chance of graduating as those admitted under
Cureton, shaw, gardner and wesby v NCAA http://vls.law.vill.edu/locator/3d/Dec1999/991222.txt