Disparate Impact: Cureton vs. NCAA News Analysis and Summaries

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3rd Circuit OKs NCAA's Use of SAT Scores (12/23/99)
         "A federal appeals court yesterday overturned a lower court ruling in favor of minority student-athletes who claim the National Collegiate Athletic Association discriminates against them by using SAT scores to decide eligibility for freshman year play.

          "It's a total victory for the NCAA's lawyers, David P. Bruton and Michael W. McTigue Jr. of Drinker Biddle & Reath who said yesterday that they were ``gratified'' that the court adopted some of the arguments they've been making all along.

          "... a three-judge panel of the 3rd U.S. Circuit Court of Appeals has ruled, over a partial dissent, that the case must be dismissed because the NCAA is not a ``direct'' recipient of federal funds.

          "... As a statute, Title VI prohibits only ``intentional'' discrimination claims. The Cureton suit was filed under regulations that allow claims of disparate impact -- ones in which a race-neutral practice is found to have an impact on a racial minority group."

          One of the fine points on which the plaintiff's case hinged was the fact that the NCAA operates the National Youth Sports Program (NYSP) as a separate entity which does receive federal funds.  Thus, the plaintiffs alleged that NCAA was the indirect recipient of federal funds which subjected the organization to the "disparate impact" provisions of Title VI recipients of such funds.

          "But U.S. Circuit Judge Morton I. Greenberg said that because such disparate impact claims are brought under the regulations instead of the statute, they are ``program specific.''  As a result, Greenberg said, the NCAA can't be sued based solely on its connection to the NYSP for conduct that has nothing to do with the NYSP."

          The plaintiffs also argued that the NCAA is liable for "disparate impact" under the provision of Title IX since NCAA member schools receive restricted federal funds.  Judge Greenberg also rejected that argument.  Greenberg cited the U.S. Supreme Court in NCAA v. Smith in which the high court ruled that NCAA is not subject to Title IX "disparate impact" restrictions merely because it receives funds from member schools who do receive federal funds.

          "Greenberg, who was joined by Senior U.S. Circuit Judge Walter K. Stapleton, also rejected the argument that the NCAA can be held liable based on the federal funding its member colleges receive.    In a partial dissent, U.S. Circuit Judge Theodore A. McKee said he agreed that the liability could not be established by looking to the NYSP funds.  But McKee said he would have remanded the case to Buckwalter for further exploration of two theories the plaintiffs advanced for basing NCAA liability on the federal funds that its member schools receive.

          "...NCAA general counsel Elsa Cole had a technical comment for a ruling that turned on a technicality.  ``We can't violate a law we're not subject to,'' Cole said. But she added that the NCAA regularly reviews and modifies its eligibility rules in order to ensure they are fair.

          "The NCAA rule was challenged by four black athletes in Philadelphia who contended they were denied athletic scholarships or sports eligibility because they did not score the minimum on the Scholastic Assessment Test or American College Test.

          "Dubbed Proposition 16, the rule dictates minimum eligibility guidelines for freshmen in the 302 schools that comprise the NCAA's Division I. They include minimum scores of 820 on the SAT or 16 on the ACT, a core group of high school courses and a minimum grade-point average in that core. "   (Associated Press 12/23/99, via statelaw.com, by Shannon P. Duffy, U.S. Courthouse Correspondent)
[link http://www.statelaw.com/storyc1223.html ]


Court allows NCAA to keep Prop 16 intact (12/23/99)
         "The NCAA on Wednesday won a significant court victory that will allow its controversial freshman-eligibility rules to remain in place.

          "The U.S. Court of Appeals for the Third Circuit in Philadelphia, in a 2-1 decision, ruled that the NCAA is not a direct recipient of federal funds and thus cannot be sued under civil rights laws. The NCAA last March had its rules known as Proposition 16 thrown out because U.S. District Court Judge Ronald Buckwalter ruled they have "an unjustified disparate impact against African-Americans."

          "Wednesday's decision, however, reverses that ruling. For now the rules requiring incoming students to meet a minimum score on a standardized test and a minimum grade-point average will remain.   Elsa Cole, NCAA general counsel, called it "a very important decision for the Association." Graham Spanier, chair of the NCAA Board of Directors and president of Penn State University added that "we are pleased to obtain this ruling from the court, but as we have said all along, we will continue to review initial-eligibility rules, including the test-score cutoff."

          [The plaintiffs, Cureton et al, are threatening to go all the way to the U.S. Supreme Court if necessary to ensure that NCAA is subjected to the Clinton Administration's "disparate impact" rule.   Editor.]

          "The appeals court decision focused on federal funds given to the National Youth Sports Program which is administered by the NCAA. The plaintiffs argued that since that program — which gives sports instruction opportunities on college campuses to economically disadvantaged youth —receives federal money, the entire NCAA was subject to civil rights laws.

          "But the court's decision said that only the specific National Youth Sports Program which receives the funds could be sued, not the entire NCAA."  (Scripps Howard News Service, via bouldernews.com, by Thomas O'Toole 12/23/99)
[link http://bouldernews.com/buffzone/sports/ncaa23.html ]


Equality of Results (10/12/99)
          "Racial discrimination is wrong," explained attorney Andre Dennis to a reporter from the Legal Times. Such a claim is scarcely controversial in principle. What is more so is how Dennis and others are attempting to define when racial discrimination occurs. Dennis is the plaintiff's lead counsel in a class action lawsuit brought last year against the National Collegiate Athletic Association. The suit charges that the minimum SAT scores the NCAA mandates of all freshman Division I athletes unlawfully discriminates against black players."

          The disputed NCAA eligibility standards are known as Proposition 16, and require first-year collegiate athletes to meet minimum SAT, ACT and GPA cutoffs.

          "The U.S. Court of Appeals for the Third Circuit is currently hearing oral arguments in the case, Cureton v. National Collegiate Athletic Association, filed on behalf of Tai Kwan Cureton, and three other plaintiffs denied freshman athletic eligibility under Prop 16.  A District Court Judge ruled last March [1999] that the NCAA's Prop 16 eligibility requirements were indeed discriminatory on the grounds they had a "disparate impact" on black athletes.  

          "[To complicate matters further, in May 1999 Clinton's] Department of Education's Office of Civil Rights released a set of draft guidelines called "Non-Discrimination in High-Stakes Testing: A Resource Guide" (see page 6). The Education Department's report employed the logic of "disparate impact" to assert that any test with different results among ethinicities is de facto discrimination and illegal as a primary admissions criterion for any institution that receives federal funds. With the "disparate impact" of the SAT well-documented and almost all private colleges the recipients of at least some government money, the Education Department is, in effect, declaring the SAT illegitimate as a basis for admissions."

          "The Ed Department's campaign against the SAT is unlikely to succeed. Even most supporters of affirmative action recoil from a college admissions process subject to continual head-counting by race.  At the very least, however, it is an indication of how far opponents of standardized testing will take their position. (Dartmouth Review Editorial, 10/12/99)
[link http://www.dartreview.com/issues/10.12.99/editorial.html ]


Archival:   Excellent Background and Analysis

NCAA Forced to Drop Academic Standards as 'Racist'; Doesn't Care About Education (03/26/99)
          In Philadelphia this week, U.S. District Court Judge Ronald L. Buckwalter has ruled that the NCAA's minimum academic standards for freshmen athletes has a "disparate impact on minority students".   The NCAA's freshman eligibility standards are known as Proposition 16.

          The case was brought by high school seniors deemed ineligible for collegiate track and field competition because their standardized test scores were below the NCAA minimum.  Judge Buckwalter said using such test scores had an "unjustified" effect on black students.  The students' lawyers argued that the use of scores for determining athletic eligibility constituted racial discrimination. 

          "Excuse me," said one dissenting black activist, "but the last time I checked, the primary purpose of college was to get an education, not to act as a farm system for the NBA."  (By Project 21, a leading voice of the African-American community since 1992.)
[link http://www.nationalcenter.org/P21PRNCAAB399.html ]

FOLLOW UP:
3rd Circuit Court Stays Ruling; Grades OK - For Now (03/31/99) (no link)
          The NCAA will be allowed to continue using academic performance as a measure of college freshmen's eligibility for collegiate sports.  For now, anyway.

          The 3rd U.S. Circuit Court of Appeals on Tuesday, 3/30/99, stayed the earlier boneheaded order by U.S. District Judge Ronald L. Buckwalter which would have prohibited the NCAA from disqualifying would-be collegiate freshmen athletes with poor academic scores.

          The 3rd U.S. Circuit Court of Appeals voted 2-1 to stay Buckwalter's order.  For the time being, then, grades ARE important and academic performance IS important to athletes embarking on their freshman year in college.  What a novel concept!

RELATED:  Court Shoots an Air Ball on NCAA Academic Standards (Apr. 1999)
          "When a federal court recently threw out the NCAA's academic standards for freshman college athletes because the standardized tests they were based on were thought to be culturally biased against blacks, it effectively set up yet another barrier for groups of our black youth entering the workforce. We have a responsibility to teach our youth the materials covered on college entrance exams. If our young men and women are not capable of doing well on standardized tests like the ACT and SAT, then WE as parents and WE as educators are the ones who have failed. It is not the responsibility of collegiate institutions to lower their standards to accommodate such individuals." (Project 21 / National Center, by Michael King)
[link http://www.nationalcenter.org/P21NVNCAA499.html ]

RELATED:  Each school now in charge of athletes' academic qualifications (03/23/99 - dead link)
          "Question: Are major-college sports about education or entertainment?  The leadership of higher education is facing an age-old question: Are major-college sports about education or entertainment?

          "College athletics are at a crossroads because of a stunning ruling by a judge who recently struck down the NCAA's standards for athletic eligibility of incoming freshmen.

          "The decision has suddenly left each school in charge of determining the initial eligibility of its own players -- a radical thought among NCAA power brokers, because it does away with the so-called level playing field and opens the door for some schools to adopt much easier standards than others for their athletes.

          "Specifically, U.S. District Court Judge Ronald Buckwalter's action declared the NCAA violated the civil rights of black athletes by using standardized test scores to determine whether freshmen are eligible for competition and for athletic scholarships."  (San Jose Mercury News, 03/23/99, by Tom Witosky of the Des Moines Register)
[former link *http://www7.mercurycenter.com/premium/sports/docs/bkwplug23.htm]

RELATED:  Academics must come first (03/21/99 editorial - dead link)
          "One aspect that has long been difficult to understand is why anyone would support placing the bar so low that it diminishes the primary purpose of attending school or college -- to learn. If the academic entrance requirements to college are too low, what is the incentive for an athlete to better his or her grades?

          "... Judge Ronald Buckwalter now has thrown the entire issue of eligibility into confusion by ruling that SAT and ACT minimum test score requirement has an "unjustified disparate impact against African-Americans." He says improved graduation rates can be achieved by other means than setting test scores. While some argue that the tests may have a cultural bias, the basic point is not the tests but whether there should be one standard all students must meet before they can enter college."  (Toledo Blade, 03/21/99 editorial)
[former link *http://www.toledoblade.com/editorial/edit/9c21ed1.htm]

RELATED:  Black Jocks Are Dumb, Says Judge!   (03/18/99 by Larry Elder)
          "WHEN CHARLES MURRAY appeared on the "Today Show,"then co-host Bryant Gumbel practically ripped his head off. In his controversial book "The Bell Curve," Murray argued that blacks score lower than whites on standardized tests because of their inherently inferior intelligence.

          "Critics called Murray a racist and attacked his findings, research and methodology. Well, a Philadelphia federal district judge just sided with Murray. Four black athletes sued the National Collegiate Athletic Association, challenging its requirement of a minimum 820 SAT score in order to play college ball. Judge Ronald L. Buckwalter struck down the minimum test measure, called Proposition 16, stating it "has an unjustified disparate impact against African Americans." What, no "black leader" calling this Bush appointee a bigot? Let's be blunt. The judge found black student athletes too stupid, too incapable, too oppressed, too disadvantaged to expect minimum performance."  (Jewish World Review, 03/18/99, by Larry Elder)
[link http://www.jewishworldreview.com/cols/elder.html ]

RELATED:  NCAA Academic Standards Lowered ... (03/10/99) (no link)
          "If U.S. District Judge Ronald L. Buckwalter's ruling that Proposition 16 'has an unjustified disparate impact against African-Americans' is upheld, NCAA schools will no longer be subject to rules designed to improve athletes' graduation rates and prevent the type of academic scandals that embarrassed a number of NCAA men's basketball and football teams in the early 1980s.

          "Until the court's ruling, the NCAA, which governs college athletics, required all potential student-athletes entering Division I schools to meet, on a sliding scale, minimum grade point averages and scores on the SAT or ACT. If prospective student-athletes did not meet those minimum standards, they were required to sit out of sports teams for a year out and improve their academics.

          The plaintiffs in the case are Leatrice Shaw and Tae Kwan, two black seniors at Philadelphia's Simon Gratz High School in 1996.  Their race discrimination suit argued that the minimum test score requirement violates Title VI of the Civil Rights Act of 1964, which prohibits race discrimination by educational institutions that receive federal funds.  The court said the use of the SAT and ACT violated the act, primarily because black students score disproportionately lower on the tests." (University of Maryland "The Diamondback" 03/10/99, by Jayson Blair.  No link.)


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*  We use the term reverse discrimination reluctantly and only because it is so widely understood.  In our opinion there really is only one kind of discrimination.