An Unappealing DECISION

Black Issues in Higher Education, Feb 3, 2000 by Eric St. John

Experts view U.S. Circuit Court Panel's reversal of Cureton v. NCAA as maintaining a discriminatory status quo' in collegiate sports

WASHINGTON -- NCAA "is free to discriminate." That is how some experts are interpreting the decision of a three-judge panel of the 3rd U.S. Circuit Court of Appeals that ruled last month to deflate a lower court finding that the National Collegiate Athletics Association's freshmen eligibility regulations have a disproportionately negative impact on African American student athletes.

"In very simple terms, what this court ruling says is that the NCAA cannot be sued under the [federal] Civil Rights laws and that it is free to discriminate," says Adele Kimmel, an attorney with the Trial Lawyers for Public Justice. She is also one of the attorney's representing the plaintiffs in Cureton v. NCAA.

The appeals panel ruled, by a 2-1 vote, that since the only direct federal funds the NCAA gets is for its National Youth Sports Program, that is the only program that is subject to challenge from federal Civil Rights laws.

Naturally, the NCAA has expressed satisfaction with the ruling.

"The effect of this ruling is that the association's initial-eligibility bylaws remain in effect, and two more important jurisdictional questions have been answered with regard to the application of federal law to the NCAA," says Dr. Graham B. Spanier, chair of the NCAA Division I Board of Directors and president of Pennsylvania State University.

But the decision did not address the plaintiffs' argument that African American student-athletes are unfairly affected by the initial-eligibility rules. Those rules require entering Division I freshmen to have successfully completed at least 13 core academic courses in high school, achieving predetermined minimum grade-point averages and test scores on the ACT or SAT. Students who failed to get at least 820 on the SAT or 66 on the ACT could not play collegiate sports as a freshman. The court said that because of its determinations about Title VI, it was unnecessary to address the other issues raised on appeal.

That position, however, doesn't sit well with many in the world of collegiate sports. They would like to see those issues of access addressed.

"The whole panorama of edicts and laws and rules and regulations by the NCAA needs to be investigated and talked about," says Dr. Dick Barnett, president of the Athletic Role Model Educational Institute in New York, "especially in terms of the young men and women [being denied access to participation] in collegiate sports."

Despite the ruling, the NCAA says this is not necessarily the last word on the requirements.

"We are pleased to obtain this ruling from the court," Spanier says. "But as we have said all along, we will continue to review initial-eligibility rules, including the test-score cutoff."

But Kimmel is concerned about the consequences if the ruling is allowed to stand: "It can have a ripple effect on any suit against any organization that is accused of having rules that have a discriminatory effect -- whether its race, ethnic, sex, disability or AIDS discrimination."

According to Kimmel, the court cited two grounds for ruling in the NCAA's favor: "First, it held that the NCAA does not exercise controlling authority over its member schools' intercollegiate athletics programs."

The panel reasoned, Kimmel says, that the association's member schools did not have to belong to the NCAA. And, it relied on the U.S. Supreme Court decision in the Tarkaman case, which ruled out the possibility of a suit against the NCAA in that particular instance. That 1980s piece of litigation involved a suit against the NCAA after University of Nevada-Las Vegas Basketball Coach Jerry Tarkanian stepped down following allegations of impropriety and the imposition of NCAA penalties against the university.

But the appeals court panel overlooked last year's U.S. Supreme Court decision in Smith v. NCAA, "a Title IX sexual discrimination complaint," Kimmel says, "in which the court specifically left open the possibility that the NCAA could be deemed to have controlling authority over its members schools."

And Kimmel says the 3rd U.S. Circuit Court of Appeals panel should have known about Smith v. NCAA because "they had decided that case [previously] and they were reversed by the Supreme Court. They knew it very well."

She then diplomatically added, "They either misinterpreted it or they misunderstood it."

Kimmel says the second point used in the NCAA's favor involves the scope of the regulation -- Title VI of the Civil Rights Act -- under which the initial challenge was filed. While the appellate panel limits the law's coverage to a specific program within the organization, Kimmel notes that federal regulatory agencies and other circuit courts apply the law to entire institutions even if the entire institution is not receiving federal funds.

"We believe the court has interpreted the regulations very narrowly," she says, "unlike the statute itself, which they admit has broad coverage."