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That’s what African-American student-athletes are doing in a renewed legal challenge to the National Collegiate Athletic Association’s use of SAT scores to determine freshman-year eligibility at Division I colleges. In the first suit, Cureton v. NCAA, the black students won a major victory in the first round when U.S. District Judge Ronald L. Buckwalter ruled the NCAA’s Proposition 16 had an illegal disparate impact on black students. But an appellate court later overturned that ruling and held that the NCAA cannot be sued under Title VI of the Civil Rights Act since it is not a direct recipient of federal funds. The lawyers for the black students at first tried to cure the problem in Cureton by amending the suit to add claims of intentional discrimination. But Judge Buckwalter dismissed the suit, saying it was too late to change the entire theory of the case. Now, with two new named plaintiffs, attorneys Andre L. Dennis and Danielle Banks of Stradley Ronon Stevens & Young have filed a new class action suit that brings a four-prong challenge against Proposition 16. In addition to a claim of “purposeful discrimination” under Title VI of the Civil Rights Act of 1964, the new suit adds claims under the Americans with Disabilities Act, the Rehabilitation Act of 1973 and Section 1981 of the Civil Rights Act of 1866. The ADA claim is brought on behalf of a class of minority student-athletes with learning disabilities who say the NCAA has done nothing to ensure that Proposition 16 does not violate their rights. Under Proposition 16, a high school student-athlete who wishes to participate during freshman year at a Division I college must score no less than 820 on the SAT — no matter how high his or her grades are. And those with a C average, or 2.0 cumulative, must score no less than 1,010 on the SAT to play as freshman. The black students say the rule discriminates against them because they perform less well on the SATs, which are biased in favor of whites. To be fair, they say, the NCAA should use a fully sliding scale in which students with lower SAT scores could still de deemed eligible if their grades in school were high enough. Attorneys Dennis and Banks argue that the NCAA has admitted that it considered race in adopting Proposition 16. In answers to interrogatories during the litigation of Cureton, they say, the NCAA said that one factor that motivated the rule’s adoption was concern about the graduation rates of black student-athletes and the need to “close the black/white gap.” They also say that the NCAA’s own research showed that Proposition 16 and its predecessor, Proposition 48, were predicted to have little or no impact on white student-athletes, but a substantial impact on black student-athletes. The NCAA’s own staff, they say, has recommended eliminating the 820 cut-off score in the rule because it has a disparate impact on blacks. But despite that knowledge — and readily available alternatives that would have had a less racially disparate effect — the NCAA has persisted in enforcing Proposition 16, the new suit says. In the ADA claim, the learning disabled students say they have done everything to meet the eligibility requirements of the Division I schools they wish to attend and that they have met the course requirements and minimum high school grades for the NCAA. But despite being able to prove that they are likely to succeed in college, the disabled students say that Proposition 16 operates as an insurmountable wall that prevents them from ever securing freshman eligibility in time to play during that year. As a result, the suit says, the learning disabled students are cheated out of possible scholarships at Division I schools even though the NCAA would allow them to participate during their freshman years at Division III schools. The NCAA’s waiver process is no cure and doesn’t provide a “reasonable accommodation,” the suit says, since disabled students must first graduate from high school and finish the process of being declared ineligible before even seeking a waiver. Starting the waiver process just two months before school begins makes it meaningless, the suit says, since the college recruiting season is over by then. And students who want to challenge the decision made on their waiver requests have no time to do so before the fall semester begins, the suit says. The NCAA lawyer, Michael W. McTigue of Drinker Biddle & Reath, said he cannot comment on the case because he has not yet seen the complaint.

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