FairTest Examiner

RACE DISCRIMINATION LAWSUIT FILED AGAINST NCAA TEST-SCORE RULES

Winter 1996-97

The long struggle to end the National Collegiate Athletic Association's (NCAA) controversial use of cut scores on the SAT and ACT to determine initial athletic eligibility moved to Federal court in early January when two student-athletes filed a lawsuit in Philadelphia charging that Proposition 16 discriminates against African American student-athletes.

The class action suit, which grows out of research and advocacy carried out by FairTest and the McIntosh Commission, was brought by a legal team led by the Washington, D.C.-based Trial Lawyers for Public Justice (TLPJ).

According to the complaint, Cureton v. NCAA, the NCAA's use of a fixed minimum score on standardized tests to decide who is allowed to play first-year college sports and receive athletic scholarships violates Title VI of the Civil Rights Act of 1964 and its implementing regulations, which prohibit race discrimination by institutions receiving federal funds. The plaintiffs are seeking an injunction that would prohibit the NCAA from enforcing the minimum test score requirement. The injunction would also restore the lost year of athletic eligibility to all affected student-athletes.

Proposition 16 requires all student-athletes entering Division I schools to achieve at least an 820 on the SAT or a 68 on the ACT or face the loss of eligibility and, in some cases, athletic aid. Both of the named plaintiffs in the case, Tai Kwan Cureton, a freshman at Wheaton College, and Leatrice Shaw, a Miami University freshman, lost recruiting opportunities and full NCAA Division I eligibility solely because of their test scores.

Cureton and Shaw both finished in the top 10% of their class at Simon Gratz High School in Philadelphia, accumulating many academic, athletic and extracurricular honors. In his statement at the press conference Cureton, who ran track in high school, explained that "the NCAA's reliance on the SAT is wrong . . . [and] is hurting hundreds, if not thousands, of student-athletes like me, who have worked hard in school."

The legal action comes 14 years after Proposition 16's predecessor, Proposition 48, was first approved in the face of strong opposition from the Historically Black Colleges and other critics of the test score requirement. Just weeks after the vote on Prop. 48, Gregory Anrig, then president of the Educational Testing Service (which makes the SAT), wrote to the NCAA expressing "serious concerns" about the new rule and warning that "the use of a fixed cutoff score" would have a negative impact on African American student-athletes.

One of FairTest's very first newsletters referred readers to a 1984 NCAA Technical Report concluding that, had Prop. 48 been in effect in 1977, more than half of those African American student-athletes who had graduated or were still enrolled in college in 1983 would not have been granted full eligibility in the first place (see Examiner, Spring 1987 and Fall 1994).

The results of this preliminary research were reconfirmed by subsequent NCAA studies which concluded that "the use of a fixed minimum on any single indicator at virtually any level is not psychometrically sound and can lead to serious adverse impacts." The NCAA's data looked at how Prop. 48 would have affected those student-athletes who entered college the two years before the rule went into effect and who went on to graduate within five years.

In 1994, the McIntosh Commission, a panel of independent scholars, reviewed this data and concluded that African American student-athletes in this pool would have been declared ineligible at a rate six times as high as the rate for white student-athletes. Commission members concluded that Prop. 48 discriminates against minority, female, and lower-income student-athletes (see Examiner, Winter 1994-95).

NCAA policymakers consistently rejected these and other findings, first when they approved Prop. 48 and later when they approved a further tightening of the rules under Prop. 16. With funding from the McIntosh Foundation, FairTest created the Campaign for Fair Play in Student-Athlete Admissions in 1994 to organize efforts to lobby the NCAA for change.

Together with the Black Coaches Association and other opponents of the test score requirements, FairTest worked to reform the rules through the NCAA legislative process. However, the NCAA leadership opposed even the most minor adjustments to the initial eligibility requirements, with one modest exception at the association's 1997 Convention (see related story and Examiner, Winter 1994-95 and Fall/Winter 1995-96).

The NCAA's repeated rejection of the advice of its own researchers left Prop. 16 critics and frustrated student-athletes no choice but to file suit and ask the courts to halt this illegal use of a test score cutoff.

Under Title VI, the courts will apply a three-stage test to determine legality. First, the plaintiffs must show that the challenged requirement has a racially disproportionate impact. If such a showing is made, the defendant must then prove that the requirement is dictated by educational necessity. Finally, if the defendant meets it burden, the plaintiff can still prevail by showing that another, equally effective alternative requirement would have less of a racial impact. In Cureton v NCAA, Trial Lawyers for Public Justice asserts that the NCAA's requirement is unnecessary and that there are superior alternative rules that do not discriminate against African Americans.

The case will be heard by U.S. District Judge Ronald Buckwalter.

Andre Dennis, of Philadelphia's Stradley, Ronon, Stevens & Young, LLP, and David Schoen, who has his own practice on New York City, are serving as co-lead counsels. Adele Kimmel, a staff attorney at TLPJ, has assembled much of the case and will serve as co-counsel. Richard Cohen, Legal Director of the Southern Poverty Law Center will also be part of the legal team.

"Race discrimination lawsuit filed against NCAA test-score rules." Fair Test Examiner Win. 1996.

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