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In the long-running court battles over the National Collegiate Athletic Association’s (NCAA) use of Scholastic Aptitude Test (SAT) scores and the effect that policy has on black student-athletes, a federal appeals court ruled Wednesday that a lower court properly barred the plaintiffs from adding new claims of intentional discrimination after their initial victory was overturned on appeal. In Cureton v. NCAA, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that U.S. District Judge Ronald L. Buckwalter didn’t abuse his discretion in refusing to allow the plaintiffs to amend the suit since they had numerous opportunities to do so earlier in the litigation. “The [lower] court carefully analyzed plaintiffs’ proffered reasons for delay, the prejudice to the NCAA, and the substance of the amended complaint. It concluded that the assertion of the claim was untimely and prejudicial to the NCAA,” U.S. Circuit Judge Jane R. Roth wrote. Roth found that Buckwalter “had considerable familiarity with the development of the factual and legal issues,” and that he committed no error when he concluded that the new claim “fundamentally altered the proceeding and could have been asserted earlier.” In rejecting the amendment, Buckwalter cited four reasons why plaintiffs’ delay was “undue.” The motion was filed three years after the complaint was filed. The factual information on which the proposed amendment relied was known almost two-and-a-half years before plaintiffs sought leave to amend. Judicial efficiency would be damaged by trying claims one after another. The interest in the finality of the proceedings would be compromised by amendment. Buckwalter also considered the plaintiffs’ asserted reasons for the delay in seeking amendment and found that no “reasonable explanation” existed to overlook the delay. Instead, he concluded that the only real reason advanced by plaintiffs for the substantial lapse in time was plaintiffs’ misplaced confidence in their original disparate impact theory. Buckwalter concluded that the NCAA would be prejudiced if the plaintiffs were allowed to amend the complaint to add a claim of intentional discrimination since it might require the court to revisit the certification of the class and could lead to further discovery requests and significant new preparation. “The proposed amendment would essentially force the NCAA to begin litigating this case again,” Buckwalter wrote. The Cureton case failed when the 3rd Circuit ruled that Buckwalter had erred in ruling that Proposition 16 had an illegally disparate impact on black students. Instead, the 3rd Circuit found that the Title VI regulations under which plaintiffs sued were “program specific” and that the students could not sue the NCAA under a disparate impact theory since it is not a recipient of federal funds based on its relationship to its member institutions. Although Wednesday’s ruling is a setback for the plaintiffs in the Cureton case, the court battles will continue because a new lawsuit was filed after Buckwalter’s ruling in which a new group of black student-athletes are waging a four-pronged challenge against the NCAA’s Proposition 16. In the new suit, attorneys Andre L. Dennis and Danielle Banks of Philadelphia-based Stradley Ronon Stevens & Young added a claim of “purposeful discrimination” under Title VI as well as claims under the Americans with Disabilities Act, the Rehabilitation Act of 1973 (ADA) 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 freshmen. 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 be 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, 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, Dennis and Banks 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 their first 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 after being declared ineligible and then seek a waiver to compete at lower division schools. The NCAA’s waiver process is no cure and doesn’t provide a “reasonable accommodation,” the suit says.

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