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Published in Print: January 27, 1999, as High Court Hears Arguments Over NCAA's Title IX Status

High Court Hears Arguments Over NCAA's Title IX Status

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The National Collegiate Athletic Association asked the U.S. Supreme Court last week to rule that it is not subject to federal antidiscrimination laws such as Title IX simply because it is made up of educational institutions that receive federal funds.

Underlying the arguments in National Collegiate Athletic Association v. Smith (Case No. 98-84) was an understanding by all parties that the sports governing body was not a typical dues-supported educational association. The NCAA has been vested by its member colleges and universities with broad powers to set and enforce eligibility rules for student participation in intercollegiate athletics.

"Because [the NCAA] has been ceded effective control over eligibility determinations for intercollegiate athletics, it is the entity most responsible for any discrimination that enters into those determinations," says a friend-of-the-court brief filed by the Clinton administration in support of Renee M. Smith. A former college volleyball player, Ms. Smith sued the association when she was denied a waiver that would have allowed her to play intercollegiate volleyball at two universities where she was a graduate student.

Ms. Smith played on the volleyball team at St. Bonaventure University for two years in the early 1990s before receiving her bachelor's degree in just 2« years. When she became a graduate student, she sought to use her two remaining years of athletic eligibility to play on their volleyball teams.

Follow the Money?

The NCAA normally prohibits student athletes from competing at institutions other than their undergraduate colleges or universities. But Ms. Smith alleged in a lawsuit that the governing body grants a disproportionate number of waivers to that rule to men. She sued the NCAA under Title IX of the Education Amendments of 1972, which prohibits discrimination based on gender in educational programs receiving federal money.

A federal district court dismissed the suit, ruling that the case failed to allege a violation of Title IX because Ms. Smith did not suggest that the NCAA is a recipient of federal aid. Ms. Smith then sought to amend her lawsuit when she learned that the association has an affiliated program, the National Youth Sports Program, that directly receives federal money to operate summer programs on college campuses for high school athletes. But the district court denied her permission to amend the suit.

The U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia, reversed the district court, ruling that Ms. Smith should have been allowed to amend her suit. The fact that the NCAA receives dues from member institutions that receive federal funds, the court also ruled, "would be sufficient to bring [the association] within the scope of Title IX."

The NCAA appealed to the Supreme Court, arguing that it is at most an indirect beneficiary of federal financial assistance and thus is not covered by Title IX.

"It is not enough simply to trace the money," John G. Roberts Jr., a lawyer for the NCAA, said during the Jan. 20 arguments. Such a theory would mean that virtually every education association made up of schools or colleges receiving federal aid would be subject to Title IX and other federal anti-discrimination laws that were conditioned on a contract between the federal government and the funding recipient, he argued.

The Clinton administration, while supporting Ms. Smith's right to sue, said the 3rd Circuit court used the wrong analysis to conclude that the association was subject to Title IX simply because it receives dues from colleges.

Title IX should apply not only to direct recipients of federal money, but "also to any other entity to which a recipient has ceded controlling authority over a program," the administration argued.

Several justices appeared receptive to that argument, as well as to the argument that the NCAA might be subject to Title IX because of its ties to the National Youth Sports Program. But they worried that those legal arguments were not fully explored in the lower courts.

It was not completely clear from the arguments what the implications of the case might be for K-12 education. If the high court adopted the theory that an association that has been delegated authority over a program is subject to federal laws such as Title IX, high school athletic governing bodies might qualify along the same lines as the NCAA.

Some groups that have battled the NCAA over its high school course requirements for college-athletics eligibility used the opportunity to raise that issue in a friend-of-the-court brief.

Several disabled students who have been denied freshman athletic eligibility because their special education classes in high school did not meet the NCAA's standards argued that the association should be subject to Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against the disabled in programs receiving federal funds.

Kentucky Testing

Separately last week, the high court rejected without comment a Kentucky family's challenge to a school board's requirement that students take state assessments to advance in school or graduate.

The court declined to hear the appeal of Gwen Triplett O'Brien and her children, Chad and Tracey Triplett. They had claimed their federal rights were violated by the Livingston County school district's requirement that students take the Kentucky assessment.

The family argued that even though the state did not require individual students to take the tests, the local school board refused to grant the Triplett children diplomas because they refused to take the tests. They contended that the tests invaded family privacy.

The Kentucky Court of Appeals ruled in 1997 that local school boards could require participation in the tests, which were designed to ensure school accountability.

The appeal was Triplett v. Livingston County Board of Education (No. 98-760).

Vol. 18, Issue 20, Pages 17-18

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