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NCAA News Archive - 2000
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Latest court action maintains Prop 16
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The NCAA News
The U.S. Circuit Court of Appeals for the 3rd Circuit has denied a request for an en banc review of the court's December decision in the case of Cureton v. NCAA, which involves the NCAA's initial-eligibility rules and jurisdictional issues.
An en banc review is a rehearing of a case before the entire appeals court. A three-judge panel of the court had rejected the plaintiffs' arguments in the case in December.
The original complaint was filed in 1997 by student-athletes Tai Kwan Cureton, Leatrice Shaw and others. It alleged that the minimum standardized test score component of the NCAA's Division I initial-eligibility standards for incoming college freshmen student-athletes, also known as Proposition 16, has a disparate impact on African-American student-athletes in violation of Title VI of the Civil Rights Act.
The December decision, however, rejected the plaintiffs' claim that receipt of federal funds by the National Youth Sports Program subjects all of the NCAA's programs to Title VI scrutiny and that member schools, which are recipients of federal funds, ceded control of their athletics programs to the Association.
An earlier decision in March 1999 had ruled against the Association and Prop 16.
"Obviously, we are pleased with the decision of the court," said Elsa Kircher Cole, NCAA general counsel. "The use of standardized tests has increased the number of graduating student-athletes -- both white and African-American. We will continue to study the effects of the legislation, as we have since the inception of initial-eligibility standards, but we also believe decisions about such standards should be made by higher education and not the courts."
The decision almost certainly will keep the Association's current initial-eligibility standards in place for student-athletes first entering a college in the fall of 2000. The plaintiffs have up to 90 days from the appeals court's decision to petition for certiorari to the U.S. Supreme Court. If the Supreme Court agrees to hear the case, it is unlikely that any decision would be rendered in time to affect next fall's entering class. If the Supreme Court declines to hear the case, it is not anticipated that changes, if any are deemed necessary, in initial-eligibility standards by the NCAA could be considered until after the start of the 2000-01 academic year, with an effective date no earlier than the fall of 2001.
The Division I Board of Directors has said that whether there should be any changes to the Association's current initial-eligibility standards will not be determined until the case plays itself out in the courts, and that it would be premature to make that decision before the courts have determined whether and how the standards are subject to legal scrutiny under Title VI. That decision now appears to be the Supreme Court's to make.
However, the Board has continued reviewing data regarding the standards for the past several months, primarily through a group of consultants appointed last summer, and has received suggestions from that group regarding potential changes to the current standards as well as the establishment of a temporary standard in case the 3rd Circuit found the current standards invalid.
Graham B. Spanier, chair of the Board and president at Pennsylvania State University, said the Board has extensively reviewed new data that will guide revisions to the current standards, should any be necessary.
"The Board believes that consideration of some future changes in initial-eligibility standards could occur, since with the passage of each year we have a growing database that informs us about the best predictors of academic performance and probability of graduation," Spanier said. "However, we believe it is prudent to wait until current legal challenges are resolved before considering whether policy change should occur."
Spanier said it would be too early to make any decision about changing the standards before the courts have ruled finally on the issues in this case as several questions remain unanswered, including whether NCAA standards are subject to judicial scrutiny at all, and if so, what is the appropriate standard of review.
Spanier said the Board is better served by waiting for the courts to render a final decision so that the membership will not have to go through adjusting to a revised standard and then having to change again if the court rules differently.
"It is therefore likely that the current standards that emanated from Proposition 16 will remain in place for the coming academic year," Spanier said.
Consultant review
The consultant group, which includes David B. Knight, faculty athletics representative at the University of North Carolina, Greensboro, and chair of the Division I Academics/Eligibility/Compliance Cabinet, has focused on developing an interim standard that might be necessary if the NCAA receives an unfavorable ruling.
"The first thing we had to do early on was establish what we would do in the event we lost the appeal," Knight said.
The consultants developed recommendations regarding an interim standard, but the Board has not yet reached a consensus on the matter. One of the alternative models that has received a great deal of discussion has been one that introduces a full sliding scale, with no minimum scores on the SAT or ACT tests. That model garnered attention after the March 8 court ruling because it eliminated a minimum test score as a criterion for eligibility.
Kevin C. Lennon, NCAA vice-president for membership services, said the proposed interim rule did what it was intended to do, which was to satisfy the court's initial ruling, but that the Board wasn't satisfied that it was the best available model to implement on a permanent basis.
"The bottom line is that the only reason you'd have an interim rule is that you've lost in the courts," Lennon said. "Therefore, if you agree you want an interim rule, that standard then must satisfy the courts, which meant at the time doing away with a minimum cut score. The consultants suggested the full sliding scale because that would have met the court's challenge at that time."
With the need for an interim rule still on hold, the Board nonetheless retained the consultants, charging them with looking at whether a better permanent standard might exist or whether the current rules should be retained. Knight said the Board challenged the group to consider whether any new rule needed to employ a minimum test score or grade-point average, and whether there was any predictive validity associated with the number of core courses taken in high school.
The consultants have spent a great deal of time recently looking at perhaps increasing the number of core courses beyond the current minimum of 13 and looking at the implications of a minimum 2.000 grade-point average in those core courses. The group also is considering an innovative plan that combines success in various criteria in order to obtain eligibility.
"They've looked at several alternative academic-profile models, including one in which they identify 'above average' criteria in the three areas that they are concerned with now, which are grade-point average, number of core courses and test score," Lennon said. "Under such a model, a student-athlete may become eligible by being 'above average' in two of the three categories. However, what that 'above average' is has yet to be determined."
Until the Cureton case plays itself out in the courts, very little may be determined regarding initial eligibility. What can be determined, however, is that the amount of review being given to Proposition 16 may trigger some revision. The question is how much.
But even that question can't be answered until it is determined whether the Association's standards are subject to legal scrutiny.
"The points are we don't know whether the courts are going to be reviewing our standards under federal law (Title VI), and if they are, we don't know what that standard will be," said Lennon. "The December decision said the courts don't have the authority to look at our standards under federal law, but that's not final because the plaintiffs are still appealing. The best thing we can do is to continue to evaluate, so that once the case is resolved we'll be ready to make what we feel is the best decision."
Recent court decision reverses ruling in major Title IX lawsuit involving LSU
A reversal of a court decision in a significant gender-equity case may have far-reaching implications on how NCAA schools are determined to be in compliance with Title IX.
The U.S. Court of Appeals for the 5th District last month overturned a 1996 district court decision had said that Louisiana State University did not intentionally discriminate by failing to accommodate effectively the interests and abilities of certain female student-athletes.
The appeals court's ruling instead found that there was a clear Title IX violation due to substantial disproportionality between the student population at LSU (51 percent male and 49 percent female) and student athletics participation (71 percent male and 29 percent female). The court also said the discrimination was intentional, citing LSU for making a decision "not to provide equal athletics opportunities for its female student-athletes because of paternalism and stereotypical assumptions about their interest and abilities."
A group of students sought to compel LSU to offer women's soccer in 1994 and women's softball in 1995. The Southeastern Conference, of which LSU is a member, called for competitive conference play in soccer in 1995 and softball in 1996, at which time LSU claimed it would create the teams.
The district court found LSU in violation of Title IX but claimed those violations were not intentional. The district court took a different approach than other courts to determining proportionality under the law, rejecting that proportionality alone demonstrates compliance. The district court said that "it seems much more logical that interest in participation and levels of ability to participate will vary from campus to campus and region to region and will change with time. To assume, and thereby mandate, an unsupported and static determination of interest and ability as the cornerstone of analysis can lead to unjust results."
Instead of examining proportionality first, the district court examined whether LSU's policies were discriminatory, whether substantial and unjustified disparities existed within the program as a whole between opportunities afforded to males and females, or whether substantial disparities existed in individual segments between opportunities afforded to males and females.
The court was hampered in its inquiry into the pivotal question of effective accommodation, however, because it found no evidence in the record showing that LSU knew what the interests and abilities of its female students were. Without that knowledge, neither LSU nor the court could evaluate whether LSU was effectively accommodating those interests and abilities. The district court concluded, therefore, that the violations were not intentional.
The district court's decision at the time received a great deal of attention as NCAA schools struggled to understand the effects of proportionality on the "three-pronged" test to determine compliance with Title IX.
The appeal court's recent decision, however, overturns the district court ruling and conforms with the rulings other courts have reached in similar cases.
"The key thing for NCAA schools to note is that the appeals court determined that LSU's ignorance about whether it was violating Title IX didn't excuse its intentional decision not to provide sufficient athletics opportunities," said Elsa Kircher Cole, NCAA general counsel.
Cole said the appeals court's ruling also is significant in that it will result in an evaluation of the intentional discrimination for monetary compensation.
"Not many courts have awarded financial damages," Cole said. "Most usually just provide injunctive relief."
The appeals court's decision also opens the lawsuit to more plaintiffs. The original suit was filed on behalf of all female students enrolled who sought participation on a varsity sport unavailable at LSU at any time since February 1993 or during the litigation.
LSU officials intend to ask the appellate court's three-judge panel for a review of evidence that led to the court's decision, particularly the discrepancy between the district and appellate courts on whether there was intentional discrimination. If the case is not reheard, LSU could appeal to the U.S. Supreme Court.