Disparate Impact: Cureton vs. NCAA and Academic Standards

          The plaintiffs, Cureton, et al, maintained that Proposition 16 constituted illegal racial discrimination because federally-protected minorities with inadequate academic preparation failed to meet the requirements more often than non-protected whites. 

          Under the so-called "disparate impact" standard, it was not necessary to prove that the defendant, NCAA, engaged in actual or intentional racial discrimination.   Amazingly, the "disparate impact" theory unilaterally states that any test or academic requirement on which federally-protected races perform more poorly than whites constitutes de facto illegal racial discrimination.

          In Cureton v. NCAA, the plaintiffs alleged that the NCAA’s Division I eligibility requirements disqualified too many incoming black college freshmen whose high school academic performance and SAT scores were below the cutoffs established by the NCAA.   The plaintiffs never had to argue that they were academically qualified or that their academic qualifications were deliberately disregarded for racial reasons.  Disparate impact makes that kind of tedious, time-consuming proof unnecessary.

Philadelphia, March 1999: U.S. District Judge Ronald L. Buckwalter ruled for the minority students and against NCAA’s academic standards.

March 30, 1999: The 3rd U.S. Circuit Court of Appeals stayed the order by U.S. District Judge Ronald L. Buckwalter.

December 22, 1999:   Buckwalter's 1999 ruling is overturned on appeal.  A three judge panel for the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled 2-1 that the NCAA is not a direct recipient of federal funds and therefore cannot be sued under civil rights laws.   Thus, for the time being the rules requiring incoming students to meet minimum scores on standardized tests and a minimum grade-point average will remain in effect.

May 5, 2000:  The U.S .Department of Education re-writes the law specifically to defeat the NCAA and to make sure no one else can escape the long arm of the "disparate impact" follies.

          The Dept. of Ed’s proposed anti-NCAA rule was published in the Federal Register on May 5, 2000 (Vol. 65, No. 88, page 26464) and public comments are due by July 5, 2000.

          The Department of Education and the Department of Justice are seeking to undermine the NCAA's successful appeal in Cureton, and have drafted specific new rules for this purpose.    

          The proposed rule from the Department of Education also states that this rule is designed to conform to the proposed rule published in October 1999 expanding Title IX to all federally conducted and supported education programs.   Essentially, this proposed rule states its intention to codify disparate impact and different treatment amendments from the Civil Rights Restoration Act of 1987 into all regulations governing Title VI and Title IX.   (The Justice Department's proposed rule has not been published yet, but sources report that it is very close to publishing this as a joint rule to cover Title VII.) 

[It would seem that the DOE and DOJ want to make sure that such troublesome concepts as academic ability do not stand in the way of protected minorities’ ability to play in college sports. Gosh, who would want something as irrelevant as academic standards and learning to get in the way of a college freshman’s ability to play sports?  Editor.]

An update on the expansion of Title IX Regulations: Decreed by His Majesty, the King of America, Bill Clinton
06/23/00

          On Friday June 23, 2000 at 7:00 PM EDT, democracy was struck another blow by President Bill Clinton. Proving his desire to redefine the presidency as a monarchy, Clinton issued an Executive Memorandum implementing the proposed rules on expanding Title IX which has been dubbed the "Gender Quota Mega-Reg."  First issued in October 1999, the proposed rules laid out a scheme to expand Title IX's non-discrimination mandate to every federally funded or conducted educational program in all agencies and departments.

          The Independent Women’s Forum, a non-profit group dedicated to a color-blind and gender-blind society, enlisted the help of great legal minds in the civil rights arena to dissect the proposed rules and then produced a report analyzing the impact on the private sector.  From all angles, things do not look good for anyone involved with one of the 700+ educational programs in all federal departments.

          But now it is law by the wave of Clinton's scepter on June 23, 2000.  This executive order, combined with the new proposed rules codifying the Cureton decision, will make disparate impact the law of the land, and males -- especially Caucasian males -- are the bad guys.

          After signing his disparate impact decree into law on Friday 6/23/00, Clinton further decreed that all federal agencies work together to get most children involved in physical activity.  However, his first decree will render it nearly impossible to get more boys out to play with government programs, as with all gender equity proposals, these programs will be for girls first and foremost.  He wants to start a new non-profit foundation to work with the President's Physical Fitness Award program to get kids moving.  Clinton’s Rainbow Cabinet of Federal Agencies now have 90 days to come up with a plan to implement his Global Anti-White-Male, Disparate Impact rule.

          The Education Department is fighting a pitched battle to force racial preferences into institutions of higher learning.  They have had some phenomenal setbacks and reversals which the Clinton administration has vowed to overcome.  The appellate reversal of the Cureton decision against the NCAA is only the most recent setback for the "racialists":

1. The famous Hopwood decision in Texas outlawed the use of race in college admissions.

2. California's Proposition 209 outlawed the use of race in California college admissions.

3. Washington State's Initiative 200 outlawed the use of race in Washington college admissions.

4. The latest defector from the racial preference bandwagon is the State of Florida, where Governor Jeb Bush has instituted his "One Florida" plan which seriously limits the use of race in state educational institutions and contracting.

          These factors also led directly to last year's (May 1999) release of the now infamous Department of Education policy paper "Non-Discrimination in High-Stakes Testing: A Resource Guide" in which they effectively proposed making the use of standardized test scores illegal in college admissions decisions!  (See also http://www.adversity.net/FRAMES/ed_testing_main_frame.htm)

The NCAA Division I Academic Eligibility Requirements which allegedly "disparately impacted" the federally-protected minority plaintiffs: 

          Below is the text of the NCAA's allegedly "racially insensitive" academic eligibility requirements, also known as NCAA Proposition 16:

          If your school's prospective student-athlete is first entering a Division I college on August 1, 1996, or thereafter, in order to be considered a "qualifier," he or she is required to:

• Graduate from high school.
• Successfully complete a core curriculum of at least 13 academic courses: 
• This core curriculum includes: at least four years in English, two in Math, one year of Algebra and one year of Geometry (or one year of a higher-level math course for which Geometry is a prerequisite), two in Social Science, two in Natural or Physical science (including at least one laboratory class, if offered by their high school); one additional course in English, Math or Natural or Physical Science; and two additional academic courses which may be taken from the already-mentioned categories, e.g., Foreign Language, Computer Science, Philosophy or Nondoctrinal Religion.
• Have a grade point average (based on a maximum of 4.000) combined score on the SAT verbal and math sections or a sum score on the ACT based on the following qualifier index scale:

END Cureton v. NCAA Academic Standards Background

MAIN Disparate Impact Page