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The National Collegiate Athletic Association scored another major court victory on Friday when a Pennsylvania federal judge dismissed yet another lawsuit brought by African-American student-athletes to challenge the use of SAT scores in deciding freshman-year eligibility. In Pryor v. NCAA, the plaintiffs’ lawyers had set out to cure the problems that doomed a previous lawsuit, Cureton v. NCAA in which an appellate court held that the NCAA could not be sued under Title VI for the “disparate impact” that its rules have on black athletes since the NCAA is not a direct recipient of federal funds. The new suit once again challenged the NCAA’s “Proposition 16″ — and specifically its use of SAT scores — but with a new twist. It alleged “intentional” discrimination under Title VI and added three new claims. Under Title III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, the plaintiffs also alleged that the NCAA’s eligibility requirements discriminate against learning disabled athletes by denying them the opportunity to participate in intercollegiate athletics at Division I schools. And under � 1981 of the Civil Rights Act, the plaintiffs alleged that Proposition 16 has denied black student-athletes the opportunity to make and perform contracts since it harms their ability to get athletic scholarships. Now U.S. District Judge Ronald L. Buckwalter has dismissed the entire suit, finding that none of the new theories survived the NCAA’s motion to dismiss. The suit was filed by attorneys Andre L. Dennis and Danielle Banks of Philadelphia-based Stradley, Ronon, Stevens & Young on behalf of Kelly N. Pryor, Warren E. Spivey Jr. and a class of African-American student-athletes. Pryor was recruited to play soccer at San Jose State University in California and she ultimately signed a “National Letter of Intent” that formalized her decision to attend the school beginning in the fall of 1999. Spivey signed an NLI with the University of Connecticut where he had been recruited to play football. NLIs contain provisions that condition an athletic scholarship and freshman participation in intercollegiate athletics on a student’s ability to satisfy the NCAA’s freshman eligibility requirements and Proposition 16. Both Pryor and Spivey failed to meet the NCAA’s requirements and were denied “full qualifier” status. As a learning disabled student-athlete, Pryor was allowed to seek a waiver of the decision. She was later deemed a “partial qualifier” which allowed her to keep her athletic scholarship and to practice with SJSU’s soccer team, but prohibited from competing for her first year. Spivey never asked for a waiver, but UConn sought one on his behalf. The application was denied and Spivey was prohibited from receiving athletically related financial aid or participating in intercollegiate athletics during his freshman year at UConn. Under Proposition 16, both students could compete in college athletics beginning in their second year as long as their academic performance during their first year met certain minimum standards. The NCAA also added a new bylaw in August 1999 that granted learning-disabled student-athletes five years to use their four years of athletic eligibility. Nonqualifiers and partial qualifiers who are not learning disabled also are entitled to the opportunity. ADA CLAIM DISMISSED As a result of the new bylaw, Buckwalter found that Pryor and other learning-disabled students do not have standing to sue under the ADA and the Rehabilitation Act. Although Buckwalter found that Pryor met the first two prongs of the standing test — by showing an “injury in fact” and “causation” — he found she could not meet the final prong which calls for proof that her claim is “redressable” in court. In doing so, Buckwalter adopted the logic of U.S. District Judge Stephen Orlofsky’s decision in Bowers v. NCAA. In Bowers, the plaintiff brought a claim under the ADA and the Rehabilitation Act contesting the NCAA’s use of the “core course requirement” in Proposition 16. At first, Orlofsky found that the plaintiff had standing because he suffered from “continuing, present adverse effects” of Proposition 16. By denying Bowers initial eligibility, Orlofsky said, the NCAA allowed him at most three years of competition while a full qualifier could compete for four years. As a result, he said, even if Bowers completed his first year and the initial requirements no longer affected him, the impact of Proposition 16 would continue to have an adverse effect. But Orlofsky later reversed himself and held that the new bylaw had deprived the plaintiff of standing by giving any student-athlete five years to complete the four years of eligibility. Orlofsky found that the new rule placed Bowers in the same situation as if he had been declared an initial qualifier. Therefore, Orlofsky reasoned that despite the denial of freshman eligibility, Bowers had not suffered an injury for which the court could offer any remedy. Buckwalter found that the same was true for Pryor. “Pryor is still entitled to the four years of athletic eligibility, and under Judge Orlofsky’s analysis, plaintiff did not suffer an injury on account of the initial denial,” Buckwalter wrote. Dennis and Banks argued that even under the new rule, the procedures learning disabled student-athletes must follow to obtain their fourth year of eligibility are different from those for non-disabled student-athletes. Pryor, they said, is required to “earn back” her fourth year, while a student who misses a year of play due to an injury is automatically entitled to recover that year. But Buckwalter found that none of those allegations were raised in the complaint. “The court cannot find allegations that pertain to the post-freshman eligibility procedures. Therefore, as in Bowers, the court finds that it cannot offer plaintiff a remedy to her injury,” Buckwalter wrote. TITLE VI CLAIM Buckwalter also found that the plaintiffs Title VI claim was still fatally flawed despite the new allegation of intentional discrimination. The plaintiffs cleared the first hurdle, Buckwalter found, since a Title VI claim of intentional discrimination may be bought against an indirect recipient of federal funds. But while they had cured the problem with the Cureton case, Buckwalter found that the new suit was premised on a faulty theory of intentional discrimination. Dennis and Banks argued that they could prove intentional discrimination in two ways — by showing that racial discrimination was a “motivating factor” in the development and adoption of Proposition 16, or by showing that the NCAA was “deliberately indifferent” to the disparate impact of Proposition 16. Buckwalter found that the second theory was recently rejected by the U.S. Supreme Court in Alexander v. Sandoval in which the justices held that Title VI does not create a private cause of action for instances of disparate impact. “In Sandoval, the court found that even where a federally funded entity knowingly adopts or implements regulations that create a racially or ethnically disparate impact, Title VI does not afford a remedy. Accordingly, plaintiffs’ argument that they can show intentional discrimination through defendant’s deliberate indifference to a disparate impact must be rejected,” Buckwalter wrote. Buckwalter also rejected the “motivating factor” theory, saying the Supreme Court has held that the challenged policy must have been adopted “because of” and not merely “in spite of” its adverse effects on a minority group. “In other words, the court recognizes a distinction between regulations intended to achieve a racially disparate impact and those that incidentally create one,” Buckwalter wrote. Buckwalter said he was not convinced by the argument that the NCAA’s policies were “designed with the goal of discriminating against African-American student-athletes.” “[The NCAA's] awareness or even acceptance of a particular effect does not raise its conduct to the level of purposeful discrimination,” Buckwalter wrote. Just because the NCAA monitored the effects its rules had on black student-athletes, he said, “does not suggest that the organization improperly considered race either in the promulgation or continued enforcement of Proposition 16.” Buckwalter found that Proposition 16 is “a facially neutral policy,” and that it was “motivated by [the NCAA's] desire to improve the graduation rate of all student-athletes.” As a result, he said, the NCAA’s “design and implementation of Proposition 16 occurred in spite of rather than because of an alleged disparate impact on African-Americans.” SECTION 1981 CLAIM In rejecting the � 1981 claim, Buckwalter found that the NCAA’s rules did not deny black students the opportunity to “make and perform contracts” — specifically the National Letters of Intent — because “compliance with Proposition 16 was simply one condition on which the NLIs relied.” Both of the lead plaintiffs, he said, “knowingly entered into these contracts, accepted their conditions and agreed to satisfy them.” As a result, Buckwalter said, “plaintiffs cannot now, after failing to comply with the conditions, claim they were invalid.” The breach of those contracts, he said, and the later denial of benefits “occurred because plaintiffs failed to satisfy conditions they knowingly accepted and not because of the NCAA’s actions.” The NCAA was represented by attorneys David P. Bruton and Michael W. McTigue of Philadelphia’s Drinker Biddle & Reath.

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