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On February 23, 1999, the Supreme Court of the United States, disagreeing with the 3rd Circuit (in Smith v. National Collegiate Athletic Ass'n, 139 F.3d 180 (3rd Cir. 1998)), held that a plaintiff's demonstration that the NCAA receives dues payments from members who are recipients of federal funds was not enough to subject the NCAA to suit under Title IX.

As recounted in You Make the Call. . ., Vol. 1, Iss. 1, Renee Smith was an undergraduate at St. Bonaventure where she participated on the volleyball team in the 1991-92 and 1992-93 seasons. She decided not to play in the 1993-94 season and graduated from St. Bonaventure in 2 1/2 years. Subsequently she decided that she wanted to pursue a graduate degree in law, however, St. Bonaventure does not have a law school. Therefore, Smith enrolled at Hofstra University in 1994-95 and then in law school at the University of Pittsburgh in 1995-96.

During both of these years (1994-95 and 1995-96), Smith attempted to play intercollegiate volleyball. NCAA Bylaw 14.2.1 states that a student-athlete "shall complete his or her seasons of participation [four seasons being the maximum allowed] within a five calendar year period." Smith's five year period would have included these last two years of participation. Unfortunately, the NCAA denied her eligibility for these years based on another Bylaw, 14.1.7, the Postbaccalaureate Bylaw which mandates that student-athletes may not participate in intercollegiate athletics at a postgraduate institution other than the one from which they earned their undergraduate degree.

In August of 1996, Smith sued the NCAA claiming that the Postbaccalaureate Bylaw excluded her from participation on the basis of her sex in violation of Title IX of the Education Amendments of 1972. 20 U.S.C. § 1681, et seq. She did not attack the rule on its face, but rather, she argued that the NCAA discriminates by granting more waivers from such eligibility restrictions to male rather than female postgraduate students.

Before the United States District Court for the Western District of Pennsylvania, Smith argued that the NCAA was amenable to Title IX based on the nexus between the NCAA and federal financial assistance received by NCAA member schools. The court disagreed finding that such a connection was "far to attenuated" to sustain a Title IX claim. Smith v. National Collegiate Athletic Assn, 978 F. Supp. 213, 219 (W.D. Pa 1997). Smith's case was dismissed.

Smith immediately moved to file an amended complaint but the district court found her motion to be moot.

Smith appealed this decision to the Third Circuit Court of Appeals which found her Amended Complaint more acceptable. In this Amended Complaint Smith alleged that the NCAA is amenable to Title IX as a recipient of federal funds because it receives federal financial assistance "through another recipient (member schools) and operates an educational program or activity or benefits from such assistance." Am. Comp., ¶¶ 63-70. The Third Circuit found that Smith's allegations showed that the NCAA receives dues from member schools, which do receive federal funds. This was enough to bring the NCAA under Title IX. Smith v. National Collegiate Athletic Assn, 139 F.3d 180 (3rd Cir. 1998). On remand, all Smith had to show was that the NCAA receives dues from its members, a fact that was never in dispute. However, before this could happen, the NCAA appealed to the Supreme Court.

After reviewing these earlier decisions, the Supreme Court recounted the applicable statutes dealing with such sexual discrimination. As the Court explained, Title IX focuses on educational programs receiving federal financial assistance. Such programs as defined under the Civil Rights Restoration Act of 1987 (CRRA), 20 U.S.C. § 1687, include any college or university, "any part of which is extended Federal financial assistance." § 1687 (2)(A). The CRRA also provides coverage for entities engaged in the business of providing education and created by two or more covered entities. Therefore, as the Court stated "if any part of the NCAA received federal assistance, the NCAA operations would be subject to Title IX." National Collegiate Athletic Ass'n, 119 S.Ct. at 927.

The Court focused its discussion on two older cases. It first looked to Grove City College v. Bell, where it had held that a college receives financial aid when it enrolls students who receive such aid. 465 U.S. 555, 563 (1984). Moreover, in Grove City, the Court determined that Title IX covers both direct and indirect types of financial aid. Id.

The Court then looked to the case of Department of Transp. v. Paralyzed Veterans of America, which considered the scope of § 504 of the Rehabilitation Act of 1973 and its similar prohibitions against discrimination based on disability by entities receiving federal financial aid. 477 U.S. 567 (1986). As the Court explained, an entity is not covered if it merely benefits from such aid, the Act only covers those entities that receive such aid. Id. at 607.

In following these cases, the Supreme Court found that the 3rd Circuit did not follow the PVA case, instead, the 3rd Circuit Court of Appeals relied exclusively on language within a Title IX regulation, 34 C.F.R. § 106.2 (1997), which seemed to define a recipient of federal financial aid as someone who receives or benefits from federal funds. As the Court pointed out, the 3rd Circuits reading of the regulation failed to take into account the first part of the regulation specifying that recipients are entities that receive, either directly or indirectly, federal financial assistance. And so, the regulation actually is in accord with Grove City and PVA in making clear that entities that merely benefit from such aid are not considered to be recipients covered by Title IX.

In the end, as the Court explained, unlike the particularly earmarked student aid in Grove City, there was no allegation that the NCAA member schools paid dues with such federal funds, and "[a]t most, the Association's receipt of dues demonstrates that it indirectly benefits from the federal assistance afforded its members." National Collegiate Athletic Ass'n, 119 S.Ct. at 929.

Unfortunately, Smith's claim that the NCAA's alleged discriminatory conduct could be attacked under Title IX because of the federal funds received by NCAA member schools, has failed. Yet, the Supreme Court left avenues open for the future for Smith or other complainants.

As the Court noted, Smith had also presented two alternative theories which were not addressed by the Supreme Court because they were not addressed by the courts below, yet the Court's discussion of these theories allows for the possibility of their consideration in the future. Id. at 930.

First, Smith asserted that the NCAA receives federal financial assistance through its National Youth Sports Program. As the Court stated, two district courts have found that the Youth Sports Program creates an issue of fact as to whether the NCAA is a recipient of federal funds. Id. at n. 7, citing Bowers v. NCAA, 9 F.Supp.2d 460, 494 (NJ 1998) (found in You Make the Call. . ., Vol. 1, Iss. 2), & Cureton v. NCAA, No. Civ. A 97-131, 1997 WL 634376, at *2 (ED Pa. 1997). Moreover, the Department of Health and Human Services has issued two letter determinations that the NCAA is a recipient as a result of the Youth Sports Program. Id. Cases in the future which follow this pattern of reasoning may be able to argue the NCAA is a recipient and so amenable to Title IX.

Second, Smith alleged that member schools as recipients cede authority over their programs which do receive federal funds to the NCAA. Therefore, the NCAA should be amenable to Title IX because it controls its member institutions. Id Moreover, as the NCAA's rules dictate the manner in which member schools must to administer their athletics programs, and as a consequence several aspects of their programs which do receive financial aid, the NCAA should be found to more indirectly receive federal funding similar to that in Grove City.

With these two last possible ways in which to bring the issue of the NCAA's amenability to a court in the future, such conduct may become visible and force the NCAA to finally address the impact its policies have on gender equality.

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