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A team of Philadelphia lawyers won a major breakthrough this week in the court battle they have been waging for several years against the National Collegiate Athletic Association over its use of SAT scores in deciding the eligibility of freshman athletes. In Pryor v. NCAA, the 3rd U.S. Circuit Court of Appeals held that even if the NCAA had the “laudable” goal of improving graduation rates for black athletes relative to white athletes, the plaintiffs should have the chance to prove that the organization accomplished that goal by simply “screening out” greater numbers of black athletes, keeping them from ever becoming eligible in the first place. But Monday’s decision also includes a few significant rulings in the NCAA’s favor, including a rejection of the plaintiffs’ claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973. For plaintiffs’ attorneys Andre J. Dennis and Danielle Banks of Stradley Ronon Stevens & Young, the ruling is a major victory because it revives their claim that the NCAA intentionally discriminated against black athletes when it adopted Proposition 16. The court battles over Proposition 16 began in 1997 when Dennis and Banks filed Cureton v. NCAA. They won the first round when U.S. District Judge Ronald L. Buckwalter ruled that Proposition 16′s heavy reliance on SAT scores had a disparate impact on black athletes and therefore violated Title VI. But the 3rd Circuit overturned the decision and held that since the NCAA was not a direct recipient of federal funds, it could not be sued under a disparate impact theory. On remand, Dennis and Banks first tried to amend Cureton to add a claim of intentional discrimination, but Buckwalter rejected the petition and held that it was too late in the game to add a new theory to the case. The 3rd Circuit later affirmed the dismissal. In 2000, Dennis and Banks returned to court with new plaintiffs and a few new claims. The Pryor suit alleged claims of intentional discrimination under Title VI and Section 1981 and separate claims on behalf of a learning-disabled student athlete under the ADA and the Rehabilitation Act. The NCAA’s lawyers, David Bruton and Michael McTigue Jr. of Drinker Biddle & Reath, moved for dismissal of the entire case, arguing that the NCAA clearly had only valid goals in mind when it adopted Proposition 16. Buckwalter agreed, finding that the intentional-discrimination claim was fatally flawed because the NCAA adopted Proposition 16 “in spite of” its impact on black athletes, not “because of” that impact. Now the 3rd Circuit has ruled that Buckwalter must give the plaintiffs a chance to prove that the NCAA’s rationale is a pretext for discrimination. Visiting Judge Paul R. Michel of the Court of Appeals for the Federal Circuit found that the suit states a valid claim because it alleges that the NCAA “knew that Proposition 16 would have a more adverse impact on black student athletes than on white student athletes.” Michel, who was joined by 3rd Circuit Judges Dolores K. Sloviter and Julio M. Fuentes, found that the plaintiffs successfully alleged more than a disparate impact claim by including allegations and evidence that the NCAA was considering race when it adopted the rule and was aware of the likely disparate impact it would have on blacks. “The complaint and attached exhibits make clear that the NCAA considered race as one of its reasons for adopting Proposition 16, with the NCAA stating explicitly that it believed the adoption of this policy would increase the graduation rates of black athletes relative to white athletes,” Michel wrote. “Further, the complaint alleges that the NCAA purposefully discriminated against black student athletes when it adopted Proposition 16 because the NCAA knew — via various studies and reports — that the heightened academic requirements of Proposition 16 would effectively ‘screen out’ or reduce the percentage of black athletes who could qualify for athletic scholarships,” Michel wrote. “In short, the complaint alleges that the NCAA adopted Proposition 16 because it knew that policy would prevent more black athletes from ever receiving athletic scholarship aid in the first place.” Michel rejected the NCAA’s argument that it cannot be held liable for a policy that was clearly designed to help black athletes, not harm them. “Even assuming the NCAA’s assertion that it had only ‘laudable’ goals in adopting Proposition 16 and that it actually wanted only to improve graduation rates among black student athletes, the NCAA has cited no authority holding that a claim for purposeful discrimination may lie only if the accused decision-maker had ‘bad intentions’ or animus,” Michel wrote. “Quite the contrary. The [U.S. Supreme] Court has squarely held that, well-intentioned or not, express or neutral on its face, a law or policy that purposefully discriminates on account of race is presumptively invalid and can survive only if it withstands strict scrutiny review.” Michel found that the lawsuit “can also be read as alleging that (1) the NCAA considered race when it adopted Proposition 16; (2) it did so for the ‘benign’ or ‘laudable’ goal of improving graduation rates among black student athletes; but (3) the policy for achieving that goal — Proposition 16 — backfired and has instead worked to the detriment of black athletes.”

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