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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TAI KWAN CURETON and LEATRICE
SHAW, each individually and on behalf of
all others similarly situated,
Plaintiffs,

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Defendant.

CIVIL ACTION NO. 97-131

O R D E R

AND NOW, this ______ day of ________________, 1998, upon consideration of Defendant National Collegiate Athletic Association's Motion to Amend Order to Certify Question for Immediate Appeal, and the Answer in Opposition thereto and Cross-Motion for Summary Judgment of Plaintiffs, it is hereby ORDERED, DECREED and ADJUDGED that Defendant's Motion to Amend Order to Certify Question for Immediate Appeal is DENIED.

It is further ORDERED and DECREED that Plaintiffs' Cross-Motion for Summary Judgment is GRANTED.

Ronald L. Buckwalter, U.S.D.J.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TAI KWAN CURETON and LEATRICE SHAW, each individually and on behalf of
all others similarly situated,
Plaintiffs,

v.

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION,
Defendant.

CIVIL ACTION NO. 97-131

PLAINTIFFS' ANSWER IN OPPOSITION TO DEFENDANT'S
MOTION TO AMEND ORDER TO CERTIFY QUESTION FOR
IMMEDIATE APPEAL AND CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Tai Kwan Cureton and Leatrice Shaw, individually and on behalf of all others similarly situated (hereinafter "Plaintiffs"), by and through their undersigned attorneys, hereby oppose Defendant's Motion to Amend Order to Certify Question for Immediate Appeal (hereinafter "Motion to Certify"), and cross-move this Court for summary judgment. Plaintiffs rely, in support of their answer in opposition and cross-motion for summary judgment, on the attached Memorandum of Law, with attached exhibits, which are incorporated herein by reference.

WHEREFORE, Plaintiffs respectfully request that the Court enter an Order, in the form attached hereto, denying Defendant's Motion to Amend Order to Certify Question for Immediate Appeal and granting Plaintiffs' Cross-Motion for Summary Judgment.Respectfully submitted,

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT'S MOTION TO AMEND ORDER TO
CERTIFY QUESTION FOR IMMEDIATE APPEAL AND IN
SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

On October 8, 1997, almost exactly one year ago, this Court issued a Memorandum Opinion and Order granting partial summary judgment for Plaintiffs on the issue of whether Title VI of the Civil Rights Act of 1964 ("Title VI") and the implementing regulations promulgated thereunder provide a private right of action for a claim of disparate impact. Specifically, this Court held, as have each of the Circuits addressing this issue, that Title VI's implementing regulations do, indeed, provide such a private right of action. Now, the NCAA is attempting to take yet another bite at the apple by asking this Court to certify its October 8, 1997 Order for immediate appeal. However, because the NCAA has failed to meet its burden under § 1292(b) of Title 28 of the United States Code, its Motion for Certification must be denied.

Not only is Certification unwarranted it is also unnecessary because Plaintiffs seek summary judgment against the NCAA. As to the merits, this class action lawsuit charges that the test score requirement embodied in the NCAA's initial eligibility rules discriminate against African-American student athletes. To compete as freshmen and receive athletic scholarships at Division I colleges and universities, the NCAA requires student athletes to obtain a certain cut-off score on the Scholastic Assessment Test ("SAT") or the American College Test ("ACT") and obtain a certain grade point average ("GPA") in a core curriculum of high school courses. If the high school student athlete fails to attain this cut off score, the student fails to be eligible to participate in freshman college athletics, no matter how high the high school GPA in the core courses. Quite simply, Plaintiffs contend that the NCAA's test score requirement has a discriminatory impact on African-American student athletes in violation of Title VI and its implementing regulations.

This Court's October 8, 1997 Order confirms there is a private right of action under Title VI and its implementing regulations. The NCAA is also subject to Title VI as a "program or activity" that receives federal funds. By its own admission, the NCAA's cut-off test score has a disparate impact on African-American student athletes. This fact is supported not only by the NCAA's own admissions, but also by the NCAA's own research data. Moreover, the NCAA admits tacitly that there are at least three alternatives to Proposition 16 that would substantially meet the NCAA's proffered educational necessity -- increasing graduation rates. Accordingly, Plaintiffs are entitled to summary judgment as a matter of law on its disparate impact claim.

As the Co-Chairs of the NCAA Special Committee to Review Initial Eligibility Standards noted in 1994:
In its deliberations, the Committee tried hard to remember that the numbers on the following pages represent real people and real lives. Predicting the effect of any given standard is an inexact science at best. The Committee believes strongly that if we are to err, it should be on side of opportunity.

Memorandum dated July 29, 1994 (the "Special Committee Memorandum"), at NCAA 15638. (A copy of the Special Committee Memorandum is attached hereto and incorporated herein as Exhibit "A" (NCAA 15638-15651).) Unfortunately, its own research data notwithstanding, the NCAA continues to err on the side of exclusion. Plaintiffs ask that this Court do what the NCAA has been unwilling to do: invalidate the minimum test score requirement of Proposition 16 in favor of a less discriminatory alternative that fulfills the NCAA's stated objective.

ARGUMENT
I. DEFENDANT'S MOTION TO CERTIFY IS WITHOUT MERIT AND SHOULD BE DENIED.

A. The NCAA Has Failed To Meet Its Burden Under § 1292(b).

Interlocutory appeal under § 1292(b) is "used sparingly." 16 Charles A. Wright, Arthur R. Miller, Everett H. Cooper & Eugene Gressman, Federal Practice and Procedure § 3929, at 134 (1977); United States of America v. Mullins, 1992 WL 30472, at *3 (E.D. Pa. Feb. 12, 1992) ("I have always been of the firm belief that this statute should be applied sparingly as indeed case law suggests.") (Buckwalter, J.). Section 1292(b) creates a narrow exception to § 1291 by allowing the district court to certify an interlocutory order for immediate appeal. Zygmuntowicz v. Hospitality Inv., Inc., 828 F. Supp. 346, 353 (E.D. Pa. 1993). Certification under § 1292(b) "‘is not mandatory; indeed, permission to appeal is wholly within the discretion of the courts, even if the [section 1292(b)] criteria are present.'" Harter v. GAF Corp., 150 F.R.D. 502 (D.N.J. 1993) (quoting Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976)). The Third Circuit has held that certification is to be reserved for use in exceptional cases where an immediate appeal would avoid protracted and expensive litigation. Milbert v. Bison Lab., 260 F.2d 431, 433 (3d Cir. 1958). Certification is the exception, not the rule, and is left to the court's sound discretion. Zygmuntowicz, 828 F. Supp. at 353 (citing Caruso v. Peat, Marwick, Mitchell & Co., 717 F. Supp. 218, 223 (S.D.N.Y. 1989)). As one court has explained:

When evaluating the [section 1292(b)] factors, the court must remember that certification is generally not to be granted. Section 1292(b) was created as a means by which courts could, under a limited set of circumstances, avoid problems created by the final judgment rule; Section 1292(b) was not designed to circumvent the general rule against piecemeal litigation.

Max Daetwyler Corp. v. R. Meyer, 575 F. Supp 280, 282 (E.D. Pa. 1983).

"Certification pursuant to § 1292(b) is appropriate only when an order ‘involves a controlling issue of law as to which there is substantial ground for difference of opinion and [when] an immediate appeal from the order may materially advance the ultimate termination of the litigation.'" Chalfin v. Beverly Enterprises, Inc., 745 F. Supp. 1117 (E.D. Pa. 1990) (quoting 28 U.S.C. § 1292(b)) (emphasis added). The party seeking certification has the "burden of showing that exceptional circumstances justify a departure from the ‘basic policy of postponing appellate review until the entry of a final judgment.'" Id. at 1122 (quoting Fukuda v. Los Angeles County, 630 F. Supp. 228, 229 (C.D. Cal. 1986)).

Thus, in order to merit interlocutory review, the NCAA must point to: (1) a controlling question of law, (2) about which there is substantial ground for difference of opinion, the immediate resolution of which by the Appeals Court will (3) materially advance the ultimate termination of the litigation. Cardona v. General Motors Corp., 939 F. Supp. 351, 353 (D.N.J. 1996). In evaluating these factors, "the court must remember that . . . . [a] motion for certification should not be granted merely because a party disagrees with the ruling of the district judge." Max Deatwyler Corp., 575 F. Supp. at 282. Because the NCAA has failed to hurdle the stringent requirements established by § 1292(b), its Motion to Certify must be denied.

1. There is No Substantial Ground for Difference of Opinion as to Whether Title VI and Its Implementing Regulations Provide a Private Right of Action.

As noted previously, a party's mere disagreement with the district court's ruling does not constitute a "substantial ground for difference of opinion" within the meaning of § 1292(b). Cardona, 939 F. Supp. at 353 (citing Max Daetwyler Corp., 575 F. Supp. at 282). Rather, the difference of opinion must arise out of a genuine doubt as to the correct legal standard. Indeed, this Court refused to certify a previously undecided issue of law because it found the statutory language to be clear, even in the face of a squarely contradictory ruling on the same issue from another district court. See Singh v. Daimler-Benz, AG, 800 F. Supp. 260 (E.D. Pa. 1992) (denying motion to certify question relating to subject matter jurisdiction where another district court in the country decided issue with similar facts differently) (Newcomer, J.). The NCAA's argument that there is substantial ground for difference of opinion as to whether Title VI and its implementing regulations provide a private right of action for disparate impact flies in the face of both Supreme Court and federal appellate court opinions deciding the issue.

Since the Supreme Court's decision in Guardians Ass'n v. Civil Service Comm'n of the City of New York, 463 U.S. 582 (1983), private litigants have had the right to sue under Title VI and its implementing regulations to remedy disparate impact discrimination. This right has been recognized repeatedly in a long, unbroken line of federal appeals court decisions. Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), judgment vacated as moot, 1998 WL 477242 (U.S. Aug. 17, 1998); Latinos Unidos de Chelsea en Accion v. Secretary of Housing & Urban Dev., 799 F.2d 774, 785 n.20 (1st Cir. 1986); New York Urban League, Inc. v. State of N.Y., 71 F.3d 1031, 1036 (2d Cir. 1985); United States v. LULAC, 793 F.2d 636, 648 (5th Cir. 1986); Castaneda v. Pickard, 781 F.2d 456, 465 n.11 (5th Cir. 1986); Chicago v. Lindley, 66 F.3d 819, 827-28 (7th Cir. 1995); David K. v. Lane, 839 F.2d 1265, 1274 (7th Cir. 1988); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1044-45 (7th Cir. 1987); Larry P. v. Riles, 793 F.2d 969, 981-82 (9th Cir. 1984); Villanueva v. Carere, 85 F.3d 481, 486 (10th Cir. 1996); Elston v. Telladega County Board of Educ., 997 F.2d 1394, 1406-07 (11th Cir. 1993); Georgia State Conf. of Branches of NAACP v. State of Ga., 775 F.2d 1403, 1417 (11th Cir. 1985).

In the face of this overwhelming precedent, the NCAA points to a single district court case in this Circuit in support of its contention that there is a substantial ground for difference of opinion, Chester Residents Concerned for Quality Living v. Seif, 944 F. Supp. 413, 416-17 (E.D. Pa. 1996), rev'd, 132 F.3d 925 (3d Cir. 1997), judgment vacated as moot, 1998 WL 477242 (U.S. Aug. 17, 1998). In Chester Residents, the district court held that there was no implied right of action for disparate impact under Title VI and its implementing regulations. Of course, the district court's opinion was reversed by a panel of the Third Circuit. Id.

The NCAA improvidently argues that the Supreme Court's grant of certiorari of the Chester Residents case "must therefore be seen as powerful evidence that the issue decided by Judge Dalzell and this Court is one which there is substantial ground for difference of opinion." NCAA's Motion to Certify (Memorandum of Law), at 2-3. This argument is without merit and must fail. It is well-settled that the grant of certiorari has no precedential value whatsoever. Ritter v. Smith, 811 F.2d 1398, 1404-05 (11th Cir. 1987). Therefore, any suggestions by the NCAA as to the meaning of the Court's grant of certiorari are nothing more than idle speculation and tea leaf reading.

Moreover, in Gebser v. Lago Vista Ind. Sch. Dist., 118 S. Ct. 1989 (1998), the Supreme Court of the United States in June of this year made it abundantly clear that there is an implied private right of action under Title IX to redress discriminatory practices of any education program or activity receiving federal funding. Also, the Gebser Court equated the implied private right of action under Title IX with the implied private right of action under Title VI. Quoting Justice White's opinion in Guardians, the majority in Gebser stated that ". . . the relief in an action under Title VI alleging unintentional discrimination should be prospective only, because where discrimination is unintentional, ‘it is surely not obvious that the grantee was aware that it was administering the program in violation of the [condition].' We confront similar concerns here." Id. at 1998 (quoting Guardians, 463 U.S. at 598). However, the Supreme Court did not stop there; it, in essence, stated that the same rights and remedies analyses under Title IX apply with equal force to Title VI. Indeed, the Court noted that "[t]he two statutes operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Id. at 1997. In light of the Gebser case, decided just ten days prior to the grant of certiorari in Chester Residents, it is unrealistic for the NCAA to advance the suggestion that the United States Supreme Court was signaling any agreement with Judge Dalzell. It is clear from a reading of Gebser that an implied private right of action to challenge unintentional discrimination exists under Title VI.

In these circumstances, the NCAA has utterly failed to establish that there are substantial grounds for difference of opinion to justify granting permission to file an interlocutory appeal; therefore, an interlocutory appeal serves no purpose in this case, and the NCAA's Motion to Certify must be denied.

2. Immediate Appellate Review Will Only Prolong of This Litigation in Contravention of § 1292(b).

Finally, the NCAA cannot establish, as it must, that an interlocutory appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). It is not up to the opponent of certification to demonstrate harm or prejudice, or even the moving party's burden to show the absence of prejudice. Kapossy v. MacGraw-Hill, Inc., 942 F. Supp. 996 (D.N.J. 1996). Rather, the moving party is obligated to show that interlocutory appeal at this juncture will materially advance the ultimate termination of the litigation. Id. at 1004. The NCAA contends that because settlement is unlikely, and there is trial preparation to be done, appellate review at this juncture is appropriate.

Courts within the Third Circuit have routinely held that where a case is ready for trial, an interlocutory appeal will only result in delay. See Piazza v. Major League Baseball, 836 F. Supp. 269 (E.D. Pa. 1993). This case has been proceeding in this Court since January of 1997. Discovery is scheduled to conclude on November 16, 1998, approximately one month from now. Indeed, over the last year since the entry of this Court's October 8, 1997 Order, substantial discovery has been conducted and Plaintiffs have prepared this case for trial. Indeed, trial in this matter is scheduled to commence in May of 1999, just seven months from now. If this issue were certified for interlocutory appeal under § 1292(b), trial would be postponed for an indefinite period. Thus, in view of all these factors, it is clear that interlocutory appeal at this time will not materially advance the litigation, but rather will result in further delay. Delay is a particularly strong ground for denying appeal if certification is sought from a ruling made shortly before trial. Baranski v. Sirhand, 602 F. Supp. 33, 36 (N.D. Ill. 1995); see also Singh, 800 F. Supp. at 263. As noted previously, this Court issued its Order almost a full year ago. There is nothing that prevented the NCAA from requesting certification at that time. However, it failed to do so. The named Plaintiffs filed this lawsuit almost two years ago as entering freshman; it is reasonable of them to expect that this litigation will be resolved before they graduate from college.

In Singh, the Honorable Clarence C. Newcomer explained that an interlocutory appeal would only materially advance the ultimate termination of the litigation if the Third Circuit ruled in favor of the party seeking certification. Of course, the Court noted that if the Third Circuit did not so rule, the litigation would not be advanced, but would instead be considerably delayed. Id. at 263. As at least one district court noted, "Judge Newcomer was prescient. On appeal from the final judgment in Singh, the Third Circuit affirmed the district court." Cardona, 939 F. Supp. at 353 (citing Singh, 9 F.3d 303 (3d Cir. 1993)). Thus, Judge Newcomer's focus on the risk of unnecessary delay was vindicated. In the case sub judice, the Third Circuit opinion in the Chester Residents matter, while vacated as moot, shows that a Third Circuit panel found that Title VI and its implementing regulations provided plaintiffs a private right of action for disparate impact. There has been no change in the law since that ruling. Therefore, it is exceedingly likely that certification would merely result in the Third Circuit's affirmance of this Court's October 8, 1997 Order, especially in light of the Supreme Court's recent decision in Gebser. Consequently, the NCAA cannot establish, as it must, that an interlocutory appeal at this juncture may materially advance the ultimate termination of this litigation.

The bottom line is that the NCAA's Motion to Certify is fatally flawed in at least two respects. First, the NCAA has failed to show how this Court's October 8, 1997 Order is anything other than an appropriate ruling on a question of law which comports with precedent. As such, it has failed to meet the second prong of § 1292(b) requiring substantial ground for difference of opinion with regard to that Order. Second, with trial on the horizon, the most expeditious course is to proceed forward, reserving all appeals for resolution thereafter. Because interlocutory review will only result in substantial delay, it cannot seriously be contended that certification at this juncture will materially advance the termination of this litigation. Consequently, the NCAA has not established its right to an interlocutory appeal as it has failed to meet its burden under § 1292(b). Accordingly, the Defendant's Motion to Certify must be denied.

II. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW ON THEIR TITLE VI DISPARATE IMPACT CLAIM.

A. The NCAA Is A Program Or Activity Within The Meaning Of Title VI And Its Implementing Regulations.

This Court's prior Memorandum Opinion and Order establishes that Title VI and its implementing regulations provide a private right of action for Plaintiffs' disparate impact claim. In that Opinion, the Court held that if the NCAA receives federal financial assistance, it is a program or activity within the meaning of Title VI and its implementing regulations. Memorandum Opinion at 5-6. Thus, the only question that remains is whether the NCAA is a recipient of federal funds.

In Smith v. NCAA, 139 F.3d 180 (3d Cir. 1998), the Third Circuit ruled that the NCAA is subject to Title IX as an indirect recipient of federal funds by virtue of its relationship to its member colleges and universities -- that is, it receives federal funds indirectly in the form of dues from its federally funded member institutions and acts as their agent with respect to the governance of intercollegiate athletics. This Court is bound by the Third Circuit's decision.

In response to Requests for Admission propounded by Plaintiffs, the NCAA has admitted that it receives dues from members who are recipients of federal funds. Therefore, under the standard set forth in Smith, the NCAA is a recipient of federal funds and is, therefore, a program or activity within the meaning of Title VI.

B. Based Upon the NCAA's Admissions, Plaintiffs Are Entitled To Summary Judgment As A Matter Of Law On Their Disparate Impact Claim.

Proof of discriminatory intent is not a prerequisite to equitable relief in a private cause of action under Title VI and its implementing regulations. Alexander v. Choate, 469 U.S. 287, 294 (1985); Guardians, 463 U.S. at 607 (opinion of Powell, J., in which Burger, C. J., and Rehnquist, J., joined); id. at 612 (opinion of O'Connor, J.); id. at 634, 641 n.12 (opinion of Stevens, J., joined by Brennan, J., and Blackman, J., dissenting); Castaneda v. Pickard, 781 F.2d 456, 465 n.11 (5th Cir. 1986); Groves v. Alabama State Bd. of Educ., 776 F.Supp. 1518 (M.D. Ala. 1991). Where a law suit is predicated on the federal regulations promulgated under Title VI redress is available for facially neutral "actions having an unjustifiable disparate impact on minorities." NAACP v. Georgia, 775 F.2d at 1417 (disparate impact claim challenging use of achievement grouping in public schools); accord Guardians, 463 U.S. at 607 n.27; Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) (disparate impact claim challenging use of I.Q. tests to assign children to classes for the mentally retarded); Association of Mexican Am. Educators, 836 F.Supp. at 1545-46 (disparate impact claim challenging use of standardized tests as requirement for certification to teach in California Public Schools); Groves, 776 F. Supp. 1518 (disparate impact claim challenging State Board of Education's use of minimum score on ACT for admission to undergraduate teacher training program).

Courts apply a three pronged test for analyzing disparate impact claims. First, a plaintiff may establish a prima facie case of discriminatory impact by showing that a facially neutral practice has a racially disproportionate effect. NAACP v. Georgia, 775 F.2d at 1417; see also Larry P., 793 F.2d at 982 (citing Board of Educ. of N.Y. v. Harris, 444 U.S. 130, 150-52 (1979)). Second, where such a showing is made, the burden of rebutting the prima facie case is on the defendant, who must prove that the requirement causing the disparate impact was required by educational necessity. Larry P., 793 F.2d at 982 (citing Connecticut v. Teal, 457 U.S. 440, 446-47 (1982)). To do this, a defendant must show that the practice in question bears a manifest, demonstrable relationship to educational performance. See NAACP v. Georgia, 775 F.2d at 1418 (using the "business necessity" exception, developed in the employment context under Title VII, as a model for testing issues in the educational context under Title VI). Third, even where a defendant meets its burden, a plaintiff may ultimately prevail by proffering an equally effective alternative practice that results in less racial disproportionality or by proving that the legitimate practices are being used as a mere pretext for discrimination. NAACP v. Georgia, 775 F.2d at 1417.

1. By Its Own Admission, The NCAA's Minimum Standardized Test Score Requirement Has A Disparate Impact On African-American Student Athletes.

On July 27, 1998, the NCAA Division I Academics/Eligibility/Compliance Cabinet Subcommittee on Initial Eligibility Issues (the "Subcommittee on Initial Eligibility Issues") issued a memorandum to its membership for comment (the "Rule Change Memorandum"). (A copy of the Rule Change Memorandum is attached hereto and incorporated herein as Exhibit "C".) The Rule Change Memorandum, summarizes the NCAA's research data relating to Proposition 16, and more specifically research relating to the minimum test score requirement thereof. In that memorandum, the NCAA notes the following "Observed characteristics of the current rule [Proposition 16]":

1. For both African-American and low income student athletes, the single largest reason for not meeting Proposition 16 standards was failure to meet the minimum standardized test score.

2. African-American and low income student athletes have been disproportionately impacted by Proposition 16 standards. Of those African-American student athletes appearing on a Division I institution request list submitted to the NCAA Initial Eligibility Clearing House, 26.6% did not meet Proposition 16 Standard in 1996 and 21.4% did not qualify in 1997 (compared to 6.4% of white student athletes in 1996 and 4.2% in 1997). This disproportionate impact was also seen (to a lesser degree) for other ethnic minority groups.

3. Preliminary enrollment data for 1994-1996 show a drop in the proportion of African-Americans among first-year scholarship athletes in Division I from 23.6% to 20.3% (accompanied by a 2.0% increase in white student athletes and a 1.3% increase in student athletes from all other ethnic groups combined).

4. The impact of the minimum standardized test score in Proposition 16 is partly a result of this standard being twice as stringent as the GPA minimum in terms of national norms. Specifically, the cut score on the ACT/SAT (68/820) is set about one standard deviation below the national mean. While the core GPA cut score (2.0) is set at two standard deviations below the mean. Among a representative national population of students, it would be expected that more than 50% would be affected by the test minimum while less than 3% would be affected by the GPA minimum. Differences in the Proposition 16 impact on minority groups and low income students are in line with current differences in national ACT/SAT score distributions.

Rule Change Memorandum, at 8 (emphasis added).

Indeed, the NCAA admits that "a disproportionate number of ethnic minorities are affected adversely by the imposition of these rules." Rule Change Memorandum, at 6.

The Rule Change Memorandum summarizes research data that has been amassed by the NCAA since the implementation of Proposition 48, the parent of Proposition 16. Moreover, in the Special Committee Memorandum, dated July 29, 1994, just prior to the adoption of Proposition 16, the Executive Summary states that:

The Association's own research, contained in the Academic Performance Study, provides dramatic evidence of the disparate impact of both the current rules and those scheduled to go into effect in 1995 [Proposition 16] on minority student athletes.

Special Committee Memorandum, at NCAA 15639 (emphasis added).

Based on the NCAA's own statements, it is clear that the minimum test score requirement embodied in Proposition 16 has a disparate impact on African-American student athletes. There can be no doubt that the prior statements of a defendant are admissible pursuant to Federal Rule of Evidence 801(d)(2), which speaks to admissions by a party opponent. If parties to a lawsuit or agents of the parties make statements, such statements are not within the definition of hearsay and are admissible against the parties. Federal Rule of Evidence 801(d)(2); Moss v. Ole South Real Estate, Inc., 933 F.2d 1300 (5th Cir. 1991). Based on the NCAA's own admissions and its research data, it is manifest that Plaintiffs have met their initial burden of proving that the minimum test score requirement of Proposition 16 has a disparate impact on African-American student athletes.

C. Assuming, Arguendo, that the NCAA's Proffered Justification for Proposition 16 is Valid, There Are, By the NCAA's Own Admissions, Several Less Discriminatory Alternatives That Fulfill the NCAA's Stated Objective of Increasing Graduation Rates.

Once a plaintiff in a disparate impact action proves a prima facie case, the burden shifts to the defendant to demonstrate the existence of a substantial legitimate justification for the allegedly discriminatory practice. Newark Branch, NAACP v. City of Bayonne, 134 F.3d 113, 121 n.14 (3d Cir. 1998) (Title VII context); New York Urban League, Inc. v. State of New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (citing NAACP v. Georgia, 775 F.2d 1417 (11th Cir. 1985)) . If the defendant sustains this burden, then the plaintiff may prove his case by demonstrating that other less discriminatory means would serve the same objective. New York Urban League, 71 F.3d at 1036 (citing NAACP v. Georgia, 775 F.2d at 1417; Larry P., 793 F.2d at 982 n.10). Here, Plaintiffs can prove their case by demonstrating that there are other less discriminatory alternatives to Proposition 16 that serve the NCAA's purported objective of increasing the graduation rates of student athletes. Assuming, for the sake of argument, that the NCAA's proffered justification for Proposition 16 is valid, the NCAA's admissions in its own documents reveal that there are several less discriminatory alternatives to Proposition 16 that would fulfill their stated objective.

Perhaps most useful for our purposes is the Rule Change Memorandum, which sets forth four models for initial-eligibility, three of which are less discriminatory to minority student athletes than Proposition 16. (The first model is the retention of Proposition 16.) All three of these models increase by approximately four percentage points the number of African-American students who are eligible under Proposition 16. Id.

Similarly instructive is the Special Committee Memorandum from William B. DeLauder and Richard E. Peck, Co-Chairs of the NCAA Special Committee to Review Initial-Eligibility Standards to the NCAA Council, dated July 29, 1994. See Exhibit "A". In this memorandum, the NCAA Special Committee reviewed the validity of the Academic Performance Study data and analyses, and recommended a sliding scale, similar to the proposed Model No. 4 set forth in the Rule Change Memorandum. The Special Committee based its recommendation on the NCAA Academic Performance Study, which "provides dramatic evidence of the disparate impact of both the current rules and those scheduled to go into effect in 1995 [Proposition 16] on minority student athletes. The Special Committee chose a standard that will maximize access for student athletes, allowing those who have a reasonable chance of graduating the opportunity to succeed." Id. at NCAA 15639.

The documents obtained from the NCAA clearly show that the NCAA (1) knew that Proposition 16 had a disparate impact on minority student athletes, (2) that the NCAA knew there were less discriminatory alternatives available that (3) met the NCAA's purported objective of increasing graduation rates. The NCAA's Rule Change Memorandum is a tacit admission by the NCAA that there are less discriminatory alternatives to Proposition 16, which fulfill the NCAA's stated objective of raising graduation rates. Accordingly, the evidence overwhelmingly shows that Plaintiffs are entitled to judgment as a matter of law.

1. Model 1: Proposition 16 and the Resultant Disparate Impact on Minority Student Athletes.

In examining the "observed characteristics" of Proposition 16, the NCAA admitted that "African-American and low-income student athletes have been disproportionately impacted by Proposition 16 standards." See Rule Change Memorandum, at 8; Dep. of John J. McArdle, Ph.D., at 44. Memorandum from the NCAA Research Staff to Kevin Lennon (the "NCAA Research Staff Memorandum"), dated May 18, 1998, a copy of which has been filed under seal herewith. (The relevant portions of Dr. McArdle's deposition are attached hereto as Exhibit "C.")

The minimum test score requirement in Proposition 16 is twice as stringent as the GPA minimum in terms of national norms. This fact contributes heavily to the disparate impact on minority student athletes and results in an over-weighting of the test score component of initial-eligibility selection and to less accurate predictions of future academic success. See Dep. of John J. McArdle, Ph. D, at 43-44; see also NCAA Research Staff Memorandum, filed under seal, at NCAA 27893.

The stringency of Proposition 16's test score requirement in terms of national norms, combined with the fact that black students do not, in general, perform as well on standardized test as whites, is alarming. These facts are especially alarming in light of the fact that other less discriminatory (and indeed, more accurate) alternatives to Proposition 16 are available to the NCAA. See Larry P., 793 F.2d at, 975 ("Since the 1920's it has been generally known that black persons perform less well than white persons on the standardized intelligence tests. . . . ‘The experts have from the beginning been willing to tolerate or even encourage tests that portray minorities, especially blacks, as intellectually inferior.'") (quoting district court and affirming district court's findings of fact).

Further, the cutoff score used in Proposition 16 has no empirical basis and is a less accurate predictor of academic success. (Dep. of John J. McArdle, Ph.D., at 39-44.) Dr. McArdle set forth these conclusions in NCAA Report 91-07. In this report, Dr. McArdle stated that the current Proposition 16 rule "is termed a conjunctive or double-cut rule. There is little literature on this sort of rule; it has no empirical basis, and it implicitly places an increased weight on the test score variable (because of the specific cut score)." Id. at 38-39 (emphasis added). A conjunctive rule is less accurate than other types of rules because of adverse effects. "Previous research shows the use of a conjunctive rule will probably lead to a negative and disproportionate impact on minority students." Id. at 43-44 (emphasis added).

Proposition 16 is an unnecessarily severe and restrictive rule. "[U]nder Proposition 16, student athletes' ineligibility can result from a single high school academic variable being below these standards. A test score or core GPA below the minimum standard precludes qualifier status regardless of the level of other high school academic performances." Rule Change Memorandum, at 2 (emphasis added). Dr. McArdle similarly concluded that more accurate standards could be obtained by using an equally weighted combination of high school grades and test score (i.e., an average or index or compensatory variable). (Dep. of John J. McArdle, Ph.D., at 44-45) (emphasis added). "An equally weighted combination has no minimum cutting scores on any specific component . . . so high scores on one variable can be used to compensate for low scores on the other." Id.; see infra §II. C. 4 (discussing full sliding scale model).

A reading of the Rule Change Memorandum makes clear that less discriminatory -- and indeed more accurate -- alternatives to Proposition 16 are available. Given the findings of the NCAA's research based on more than ten years of data collection, it is obvious that the full sliding scale -- "using an equally weighted combination of high school grades and test scores" -- is the most accurate method of selecting student athletes who will succeed academically. See; Dep. of John J. McArdle, Ph.D., at 44-45; see also NCAA Research Staff Memorandum, filed under seal, at NCAA 27890.

All of the experts and committees formed by the NCAA to study the initial-eligibility requirements and their impact on student athletes -- including, but not limited to, the NCAA Research Staff, Dr. McArdle and his advisory group, and the Subcommittee on Initial Eligibility Issues -- reached the same conclusions. Minority student athletes have been disproportionately impacted by Proposition 16 because of the use of the minimum test score requirement, and by the NCAA's own admission there are less discriminatory alternatives to Proposition 16 that not only fulfill the NCAA's purported objective of increasing graduation rates of student athletes, but are more accurate indicators of academic success.

2. Model 2: Include Partial-Qualifiers as Qualifiers.

The first alternative set forth by the Subcommittee on Initial-Eligibility Issues would essentially lower the standardized test score requirement to a score of 720 on the SAT or 59 on the ACT. Rule Change Memorandum, at 9. In other words, current Proposition 16 partial qualifiers would be considered full qualifiers. Id. This rule still requires a standardized test score that is higher in relation to national norms than the minimum required high school GPA. Id at 10.

The NCAA's first year college outcome data for the first cohort of student athletes admitted under Proposition 16 in 1996 shows that partial qualifiers performed as well or better academically than certain groups of full qualifiers. Id. For example, compared to full qualifiers whose high school core GPA was between 2.000 and 2.500, partial qualifiers had slightly higher first year college grades, achieved eligibility for second year competition at a higher rate, and returned for a second year of college at a higher rate. Id.

African-American student athletes outnumbered white student athletes two-to-one in the partial qualifier category last year. Id. at 5. Thus, even this modest rule would lead to an increase in the proportion of African-American student athletes meeting initial-eligibility standards. Indeed, the projected percentage of ineligible African-American student athletes falls from 19.4% under Proposition 16 to 15.9% under this model. Id at 7, 9.

It is expected, based on projections from the NCAA's research, that the overall graduation rate under this model would be only about one percentage point lower than the rate expected to be seen for the population of student athletes admitted under Proposition 16 -- 60.7% under Model No. 2 as compared to 61.8% under Proposition 16. Id. This projected rate is still about three percentage points higher than the current student athlete graduation rate. Id. Moreover, the percentage of false negatives for African-Americans falls from 15.7% under Proposition 16 to 13.6% under Model 2, thereby increasing again the number of African-Americans who would qualify.

Thus, the NCAA's own research shows that under Model No. 2, more African-American student athletes are eligible when the minimum test score requirements are lowered to 720 on the SAT and 59 on the ACT, and graduation rates are still projected to be higher than the current student athlete graduation rate.

3. Model 3: Extend Sliding Scale to 600 on the SAT and 51 on the ACT.

Under the third model, the minimum standardized test score requirement would be lowered to 600 on the SAT or 51 on the ACT, and the range over which student athletes are judged on their test-grade combination score would be extended. Id. at 11. In other words, current Proposition 16 partial qualifiers would become full qualifiers, along with any other student athletes with SAT scores between 600 and 720, provided that they obtained the core GPA dictated by the sliding scale. Id.

The minimum SAT score of 600 is approximately two standard deviations below the national mean. Id. at 12. This is equivalent to the minimum required GPA of 2.000 in relation to national norms. Id. As such, high school grades and test scores would be evaluated equally in initial-eligibility decisions. Id. Based on projections from previous NCAA research, the overall graduation rate under this model would only be one or two percentage points lower than the rate expected to be seen for the population of student athletes admitted under Proposition 16 -- approximately 60.0% under this model as compared to 61.8% under Proposition 16. Id. at 7, 11. This projected rate is still about two percentage points higher than the current student athlete graduation rate. Id.

Consequently, Model No. 3 is another less discriminatory alternative to Proposition 16, which increases the number of African-Americans who would qualify, while also increasing by approximately two percentage points the current student athlete graduation rate.

4. Model 4: Full Sliding Scale.

Under the final alternative set forth by the NCAA, initial-eligibility would be based on a fully extended version of the current sliding scale. Id. at 13. This is equivalent to eliminating the absolute minimum core GPA and standardized test score requirements, and basing eligibility for all student athletes on a full sliding scale of tests and grades. Id. The student athlete's eligibility would depend entirely on an equally weighted combination of high school grades and standardized test scores. Id. A low test score or core GPA would not necessarily preclude qualifier status, but it would require a much higher performance on other aspects of the high school record. Id. at 14. Of the three alternatives to Proposition 16, Model 4 is the closest to the model Plaintiffs urge.

Model No. 4 would have the least amount of adverse impact on low-income and minority student athletes because it is the least restrictive of the four models proposed by the NCAA. Id.. Moreover, the graduation rates for student athletes under such a rule would not be significantly different from the graduation rates projected under Proposition 16 -- 59.8% under this model as compared to 61.8% under Proposition 16. Id. at 7, 13. This projected rate is still about two percentage points higher than the current student athlete graduation rate -- clearly another less discriminatory alternative to Proposition 16 that meets the NCAA's purported objective of raising graduation rates of student athletes. Id.

It is this model that was advocated by Dr. McArdle, the NCAA's head researcher on academic eligibility requirements, in his NCAA Report 91-07, wherein he concluded that more accurate standards could be obtained by using an equally weighted combination of high school grades and test score. (Dep. of John J. McArdle, Ph.D., at 44-45) (emphasis added). The full sliding scale permits high scores on one variable to compensate for low scores on another. Id.; see also NCAA Research Staff Memorandum, filed under seal, at NCAA 27890. Thus, not only does this model increase the number of minority student athletes who are eligible and meet the NCAA's purported objective of increasing student athlete graduation rates, but it is a more accurate predictor of the academic success of student athletes.

Similarly, the Special Committee to Review Initial-Eligibility Standards recommended a sliding scale ranging from a 2.000 GPA and an 810 SAT to a 3.000 GPA and a 410 SAT. Special Committee Memorandum, at NCAA 15639. The Special Committee reasoned that the NCAA's Academic Performance Study provided "dramatic evidence of the disparate impact" of Proposition 16, thereby choosing a standard that "will maximize access for student athletes, allowing those who have a reasonable chance of graduating to succeed." Id. Even though the NCAA continues to refuse to change Proposition 16, the Special Committee was extremely concerned about excluding student athletes unnecessarily and this is why it recommended a sliding scale:

In its deliberations, the [Special Committee] tried hard to remember that the numbers on the following pages represent real people and real lives. Predicting the effect of any given standard is an inexact science at best. The committee believes strongly that if we are to err, it should be on the side of opportunity.

Id. at NCAA 15638. Notably, the Special Committee found that their proposed model would still provide a graduation rate for student athletes "comparable to that of all students and to that predicted under the current . . . rules." Id. at NCAA 15639.
As noted by Francis X. Rienzo, Athletic Director at Georgetown University:

People who are going to be impacted the most by this methodology are those who have the least ability to defend themselves, the least ability to gain access to intellectual academic development, education, and the least access to the economic goods of this country. There are some people [who] cynically would say, whether it is intended to or not, the new NCAA academic initial eligibility requirements [Proposition 16] have a very definite negative impact on the black community, and I think that academics and education aside, the issue of social justice is much more important than any other question that is on the table before the NCAA.

Quote from Videotape entitled "NCAA Initial Eligibility 1983-1992" (NCAA 26639). The NCAA's own admissions, as well as its own documents produced during the course of discovery, overwhelmingly demonstrate that (1) Proposition 16 has a disparate impact on minority student athletes because of the use of a cutoff test score, (2) there are several less discriminatory alternatives that (3) meet the NCAA's purported objective of increasing the graduation rates of student athletes. As such, Plaintiffs are entitled to summary judgment as a matter of law. After Summary Judgment is entered, Plaintiffs request the Court to schedule a hearing to determine which of the many alternatives, including some not specifically described in the Rule Change Memorandum, that Plaintiffs are entitled to obtain as relief.

CONCLUSION

For all the foregoing reasons, Plaintiffs request this Court enter an Order denying Defendant's Motion to Certify Question for Immediate Appeal and granting Plaintiffs' Motion for Summary Judgment.