Cureton v. Nat'l Collegiate Athletic Ass'n, 97-00131

• Decision Date: 22 December 1999
• Docket Number: No. 97-00131,No. 99-1222,97-00131,99-1222
• Citation: 198 F.3d 107
• Parties: (3rd Cir. 1999) TAI KWAN CURETON; LEATRICE SHAW, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ALEXANDER WESBY; ANDREA GARDNER v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, APPELLANT (D.C. Civ.)
• Court: U.S. Court of Appeals — Third Circuit

Page 107

198 F.3d 107 (3rd Cir. 1999)

TAI KWAN CURETON; LEATRICE SHAW, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ALEXANDER WESBY; ANDREA GARDNER v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, APPELLANT (D.C. Civ. No. 97-00131)

No. 99-1222

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued October 1, 1999

December 22, 1999

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Judge: Honorable Ronald L. Buckwalter

Attorneys for Appellant: David P. Bruton (argued) Michael W. McTigue Jr. Drinker Biddle & Reath 18th & Cherry Streets One Logan Square Philadelphia, PA 19103, Elsa Kircher Cole General Counsel National Collegiate Athletic Association 6201 College Boulevard Overland Park, KS 66211

Attorneys for Appellees: Andre L. Dennis (argued) Danielle Banks Elizabeth R. Leong Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103, Adele P. Kimmel Trial Lawyers for Public Justice 1717 Massachusetts Avenue, NW Suite 800 Washington, DC 20036, J. Richard Cohen Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104

Attorneys for Amici Curiae American Association of University Women, American Civil Liberties Union, Center for Women Policy Studies, Clearinghouse on Women's Issues, The Connecticut Women's Education and Legal Fund, Inc., Equal Rights Advocates, National Association for Girls & Women in Sport, The National Association of Social Workers, National Education Association, National Partnership for Women & Families, Now Legal Defense and Education Fund, Women Employed, Women's Law Project, The Women's Sports Foundation, and The YWCA of the USA: Marcia D. Greenberger, Leslie T. Annexstein, Neena K. Chaudhry National Women's Law Center 11 Dupont Circle, Nw, Suite 800 Washington, DC 20036

Attorneys for Amicus Curiae American Council on Education: Edward N. Stoner II Martha Hartle Munsch Catherine S. Ryan Reed Smith Shaw & McClay Llp 435 Sixth Avenue Pittsburgh, PA 15219, Sheldon Elliot Steinbach American Council on Education One DuPont Circle Suite 835 Washington, DC 20036

Attorneys for Amicus Curiae Commonwealth of Pennsylvania and Pennsylvania Department of Education: Paul A. Tufano General Counsel Gregory E. Dunlap Deputy General Counsel Anthony S. Potter Assistant General Counsel Commonwealth of Pennsylvania Office of General Counsel 333 Market Street Harrisburg, PA 17101

Attorney for Amicus Curiae Pacific Legal Foundation: John H. Findley Pacific Legal Foundation 10360 Old Placerville Road, Suite 100 Sacramento, CA 95827

Attorneys for Amicus Curiae United States of America: Bill Lann Lee Acting Assistant Attorney General Dennis J. Dimsey Marie K. McElderry Attorneys Department of Justice P.O. Box 66078 Washington, DC 20035-6078

Before: Greenberg, Mckee, and Stapleton, Circuit Judges

OPINION OF THE COURT

Greenberg, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on appeal from an order for summary judgment in this action challenging certain academic requirements for participation in varsity athletics promulgated by the National Collegiate Athletic Association ("NCAA"). See Cureton v. NCAA, 37 F. Supp.2d 687 (E.D. Pa. 1999). In particular, the plaintiffs challenge the minimum Scholastic Aptitude Test ("SAT") score requirement for freshman-year varsity intercollegiate athletic participation. While the NCAA also has adopted minimum grade point average ("GPA") requirements, the plaintiffs do not challenge them directly on this appeal.¹ We set forth the background of the case at some length.

A. The Parties

Plaintiff Tai Kwan Cureton is an African-American who graduated from Simon Gratz High School in Philadelphia in June 1996 ranking 27th in a class of 305 students. Cureton was a member of the track team and earned both academic and athletic honors as a high school student. Cureton exceeded the NCAA GPA requirements but did not achieve the NCAA required SAT score. Cureton alleged that several NCAA Division I schools recruited him before he obtained his non-qualifying score on the SAT, but that after he took the SAT a lesser number of Division I schools recruited him and such institutions denied him admission and/or athletic financial aid. Cureton, who alleged he lost an opportunity to compete as a freshman in Division I varsity intercollegiate athletics because of NCAA regulations, enrolled in a Division III school.

Plaintiff Leatrice Shaw is an African-American who also graduated from Simon Gratz High School and was ranked 5th in a class of 305 students. Shaw was a member of the track team and earned both academic and athletic honors and was selected for membership in the National Honor Society. Shaw exceeded the NCAA minimum GPA requirement for freshman-year athletic participation, but failed to achieve the minimum required score on the SAT. The Division I school that Shaw entered did offer her athletic financial aid, but she was unable to compete on the track team during her freshman year because of the NCAA regulations at issue here.

Plaintiffs Andrea Gardner and Alexander Wesby are African-American student athletes who exceeded the NCAA minimum GPA requirement for freshman year athletic participation, but failed to achieve the minimum required score on the standardized college admissions tests. Though they originally were not parties, the district court allowed them to intervene by order dated December 18, 1998, pursuant to Fed. R. Civ. P. 24.

The defendant NCAA is an unincorporated voluntary association of more than one thousand members, a majority of which are public and private four-year colleges and universities that conduct varsity intercollegiate athletic programs in the United States. The NCAA member colleges and universities are divided into Divisions. Division I consists of more than three hundred members. The Divisions adopt their own bylaws, although some NCAA bylaws are applicable to all three Divisions. This action concerns a bylaw adopted by Division I and the curtailment of the plaintiffs' opportunity to participate in Division I athletics.

The National Youth Sports Program (the "NYSP"), which is not a defendant but nevertheless is implicated in this case, is a youth enrichment program that provides summer education and sports instruction on NCAA member and non-member institution campuses. The Department of Health and Human Services provides the NYSP with Federal financial assistance. Before 1992, these funds were advanced to the NCAA, but were not diverted for its use. In 1989, the NYSP Fund (the "Fund") was established as a nonprofit corporation to administer the NYSP. Since 1992, the department has granted the financial aid intended for the NYSP directly to the Fund. The Fund is regarded as an NCAA "affiliate."

Before 1971, college freshmen were not allowed to compete in varsity sports. Since then, the NCAA has adopted many rules defining freshman eligibility for varsity intercollegiate athletic competition, but member institutions continue to make individual admissions decisions. One of these rules, Proposition 48, implemented in 1986, required high school graduates to have a minimum 2.0 GPA in 11 academic core courses and a minimum score of 700 on the SAT to be eligible for competition, practice, and financial aid based upon athletic ability. Division I implemented the requirement in response to the public's perception that NCAA schools were exploiting student athletes for their talents without concern for whether they graduated. Division I felt compelled to act despite the fact that student athletes were graduating at rates comparable to non-athletes, and African-American student athletes were graduating at higher rates than African-American students who were not athletes. Since 1989, when the NCAA phased in the eligibility requirements, the graduation rates of student athletes, especially African-Americans, have increased.

Division I modified these rules in 1992 when it adopted Proposition 16, which is at issue here. Proposition 16 increased the number of core courses to 13 and utilized an index to determine eligibility based on a formula combining the student's GPA and SAT scores. Using this index, the minimum score for a student with a GPA of 2.0 is 1010 on the SAT. Similarly, a student who scored an 820 on the SAT would need at least a 2.5 GPA to meet the eligibility requirements.² As the district court pointed out, this modification resulted "in a heavier weighting of the standardized test" because the minimum GPA requirement was two standard deviations from the mean, whereas the minimum test score requirement was only one standard deviation from the mean. Cureton, 37 F. Supp.2d at 691.

B. The Action

Cureton and Shaw filed the complaint in this case on January 8, 1997. They alleged the minimum standardized test score component of Proposition 16 had an unjustified disparate impact on African-American student-athletes in violation of regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which precludes exclusion from participation in, denial of the benefits of, and discrimination under any program or activity receiving Federal financial assistance on account of race, color, or national origin. The NCAA moved to dismiss the complaint, or alternatively for summary judgment, on the following grounds: (1) there is no private right of action for unintentional discrimination under Title VI or its accompanying regulations; (2) the NCAA is not a "program or activity" subject to Title VI; and (3) the NCAA does not receive Federal funds necessary to subject it to Title VI. The plaintiffs moved for partial summary judgment on the grounds that, as a matter of law, the NCAA was a covered program or activity subject to a Title VI action for unintentional discrimination and was a recipient of Federal financial assistance for purposes of Title VI.

On October 9, 1997, the district court...