National Collegiate Athletic Association v. Smith Brief Amici Curiae in Support of Respondent

    No. 98-84

In The

Supreme Court of the United States
October Term, 1998

National Collegiate Athletic Association,
Petitioner,

v.

R.M. Smith,
Respondent.

O n W rit o f C e rtio ra ri to the 
United States C ou rt of Appeals 

for the T h ird  C ircu it

B R IE F O F  NATIONAL W O M EN ’S LAW  C EN TER  
A M ERICA N  ASSOCIA TION O F  UN IV ERSITY W O M EN  

A M ER IC A N  C IV IL  LIB ER TIES UNION, et al.
AS AMICI CURIAE IN  SU PPO RT O F RESPO N D EN T 

(A dditional Amici Listed on Inside Cover)

Lois G. Williams 
Brad E. Biegon 
Howrey & Simon 
1299 Pennsylvania Ave., N.W. 
Washington, D.C. 20004

Dina R. Lassow 
Lobel, Novins & Lamont 
1275 K Street, N.W., Suite 770 
Washington, D.C. 20005

Marcia D. Greenberger*
* Counsel of Record 

Leslie T. Annexstein 
Neena K. Chaudhry 
National Women’s Law Center 
11 Dupont Circle, N.W., Suite 800 
Washington, D.C. 20036 
(202) 588-5180

Deborah L. Brake
UNIVERSITY OF PITTSBURGH
School of Law 

3900 Forbes Ave., Room 322 
Pittsburgh, PA 15260

December 8, 1998 Counsel for Amici Curiae



CA LIFORNIA W O M E N ’S LAW  CEN TER

CEN TER FO R  W O M EN  PO L IC Y  STUDIES

CLEARIN GHO USE ON W O M EN ’S ISSUES

T H E  CO NN ECTICU T W O M E N ’S ED U CA TIO N  AND 
LEG A L FUND, INC.

EQ UAL R IG H T S ADVOCATES

NATION AL A SSO CIA TIO N  FO R  G IR L S & W O M EN
IN  SPO RT

T H E  NATIONAL ASSO CIA TIO N  O F SO CIA L W O R K ER S

NATIONAL CO U N CIL O F JE W IS H  W O M EN

NATIONAL ED UCA TIO N  A SSO C IA TIO N

N A TION AL PA RTN ERSH IP FO R  W O M EN  & FA M ILIES

NAACP LEG A L DEFENSE AND ED U CA TION AL 
FUND, INC.

N O W  LEG A L DEFENSE AND ED U CA TIO N  FUND 

P E O PL E  FO R  T H E AM ERICAN W AY FO UN DATIO N 

W O M EN  EM PLO Y ED  

W O M EN ’S LA W  P R O JE C T  

TH E W O M EN ’S SPO RTS FOUNDATION

TH E YW CA O F TH E USA



1

TABLE OF CONTENTS

INTEREST OF AMICI C U R IA E .......................................1

INTRODUCTION ...................................................................1

STATEM ENT OF THE C A S E ........................................... 4

SUMMARY OF A R G U M E N T ............................................. 4

A R G U M EN T.............................................................................. 5

L TITLE LX’S PLAIN LANGUAGE,
IMPLEMENTING REGULATIONS, AND  
AM ENDM ENTS ENACTED BY THE CRRA 
SUPPORT COVERAGE OF THE NCAA  

....................................................................................... 5

A. C ongress Intended T itle  IX to  H ave a  
Broad Reach, and Its  Im p lem en tin g  
R egu lation s, W hich A re E n titled  to  
D eference, So Provide

B. T he NCAA Is a  R ecip ien t fo r  P u rp oses o f  
T itle  IX C overage

................................................................................ 9

1. T he NCAA Ind irectly  R eceives Federal 
Funds to  O perate an  E d u cation al 
Program

10



11

2. The NCAA Serves a s  a  S u b u n it,
Successor, A ss ig n ee  or T ran sferee o f  
R ecip ien ts W ith R espect to  T heir  
E d u cation a l Program s and A c tiv it ie s  

....................................................................... 13

C. T h e C iv il R igh ts R estoration  A ct  
A m endm en ts to  T itle  EX U nderscore  
C overage o f  th e  NCAA  

.............................................................................. 17

1. The NCAA is  S u b ject to  T itle  IX 
B ecau se It Is an O rgan ization  
E stab lish ed  b y  T w o or M ore C olleges  
or U n iv ersit ie s  T h at R eceive Federal
F u n d s ........................................................... 19

2. T he NCAA is  S u b ject to  T itle  EX as an  
O peration  o f  Its  Federally  Funded  
M em ber S c h o o l s ...................................... 21

H. CONGRESS’ INTENTIO N TO ELIMINATE 
SEX DISCRIMINATION IN  
INTERCOLLEGIATE ATHLETICS THROUGH 
TITLE IX SUPPORTS NCAA COVERAGE 

..................................................................................... 23

A. C on gress E x p lic it ly  Addressed
In terco lleg ia te  A th le t ic s  as C entral to  
T itle  IX ..............................................................24

B. P a rtic ip a tin g  in  A th le t ic s  H as Far- 
R each in g  B en efits

27



CONCLUSION 30

iii

A P P E N D IX ......................................................................... A -l



IV

TABLE OF AUTHORITIES 

FE D E R A L  CA SES

Association o f  Mexican-American Educators v. California, 
836 F. Supp. 1534 (N.D. Cal. 1993).............................................  22

Bob Jones Univ. v. Johnson, 396 F. Supp. 597 (D.S.C. 1974)
....................................................................................................8,12

Bowers v. NCAA, 1998 U.S. Dist. LEXIS 85552 (D.N.J. June 8, 
1998) ........................................................................................  3,20

Cannon v. U niversity o f  Chicago, 441 U.S. 677 (1979)........... 8

Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993)........  28,29

Communities fo r  Equity v. Michigan High Sch. Athletic 
Ass’n, No. 1.-98CV479,1998 WL 804829 (W.D. Mich. Nov. 16,
1998) ............................................................................................  27

Cureton v. NCAA, 1997 U.S. Dist. LEXIS 15529 (E.D. Pa. Oct. 8, 
1997) ........................................................................................  3,20

Dennin v. Connecticut Interscholastic Athletic Conference, 
913 F. Supp. 663 (D. Conn. 1996)
........................................................................................................ 12

Gebser v. Lago Vista Independent School District, 118 S. Ct.
1989 (1988) ............................................................................. 16,17

Graham v. Tennessee Secondary Sch. Athletic Ass’n, No. 
l:95-CV-044,1995 WL 115890 (E.D. Term. Feb 20,1995)..........  22

Grove C ity College v. Bell, 465 U.S. 555 (1984) . . .  4 ,7,8,12,18

H om er v. Kentucky High School Athletic Ass’n, 43 F.3d 265 
(6th Cir. 1994)............................................................................... 11



V

Kungys v. United States, 485 U.S. 759 (1988) ........................ 20

National Collegiate Realty v. Bd. o f County Comm’rs, 690 
P.2d 1366 (Kan. 1984) ................................................................  10

NCAA v. Califano, 444 F. Supp. 425 (D. Kan 1978)................ 16

NCAA v. Regents o f the Univ. o f Oklahoma, 468 U.S. 85 (1984)
..........................................................................................................2

NCAA v. Tarkanian, 488 U.S. 179 (1988) ...................... 2,10,14

North Haven Bd. o f Educ. v. Bed, 456 U.S. 512 (1982) ..........7

Pottgen v. M issouri State High Sch. Activities Ass’n, 857 F. 
Supp. 654 (E.D. Mo. 1994) ......................................................... 12

Sandison v. Michigan High Sch. Athletic Ass’n, 863 F. Supp. 
483 (E.D. Mich. 1994)..................................................................  12

Sm ith v. NCAA, 139 F.3d 180 (3rd Cir. 1998).............................. 11

United States Department o f  Transportation v. Paralyzed  
Veterans o f America, 477 U.S. 597 (1986) .................. 15,16,23

S T A T E  CASES

NCAA v. Kansas Dep’t o f  Revenue, 781 P.2d 726 (Kan. 1989) 
.............................................................................................. 14, 21

FE D E R A L  STA TU T ES

20 U.S.C.§ 1681(a)..........................................................................5

20 U.S.C. § 1682 ..........................................................................  12

20 U.S.C. § 1687 .................................................................. passim



VI

26 U.S.C. § 501(c)(3) .................................................................... 10

Age Discrimination Act of 1975,42 U.S.C. § 6101 et seq.............5

Civil Rights Restoration Act of 1987, Pub. L. 100-259,102 Stat. 
28(1988) ......................................................................................... 3

H.R. 5490, 99th Cong. (1984).......................................................  18

Higher Education Amendments of 1998, Pub. L. 105-244 (1998) 
....................................................................................................26

Pub. L. 93-380, § 509(a)(2), 88 Stat. 567,20 U.S.C. § 1232(d)(1) 
(1970 &Supp. IV 1974).................................................................. 7

Pub. L. No. 93-380, § 844, 88 Stat. 612 (1974)............................ 24

Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794 et 
seq......................................................................................................5

Title IX of the Education Amendments of 1972,20 U.S.C. §
1681 et seq............................................................................. passim

Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000 et seq. 
........................................................................................................  5

LEG ISLA TIV E H ISTO RY

S. Cong. Res. 46,121 Cong. Rec. 17,300 (1975) ........................  25

S. Cong. Res. 52,121 Cong. Rec. 22,940 (1975) ........................  25

120 Cong. Rec. 20,668 (1974).......................................................  25

121 Cong. Rec. 20,714 (1975).......................................................  25

121 Cong. Rec. 23,846 (1975).........................................................7



Vll

121 Cong. Rec. 24,635 (1975)....................................................... 25

H. Cong. Res. 310,121 Cong. Rec. 19,209 (1975)........................  25

H. Cong. Res. 311,121 Cong. Rec. 19,209 (1975)........................  25

H.R. 8394,94th Cong., 121 Cong. Rec. 21,685 (1974) ................ 24

H.R. Rep. No. 98-829, Pt. 2 (1984) ...................................  9,13,15

Hearings Before the House Education and Labor Comm, 
and the Subcomm. on Civil and Constitutional Rights, 
House Judiciary Comm., 98th Cong., 2d Sess. (May 21,1984) 
..................................................................................................19,21

Report of the U.S. Senate Comm, on Labor and Human 
Resources, 100th Cong., 1st Sess. (1987) .............. 9,10,18,20,21

S. 2106,94th Cong., 121 Cong. Rec. 22,778 (1975) .................... 24

Sex Discrim ination Regulations: Hearings Before the 
Subcommittee on Postsecondary Education o f the 
Committee on Education and Labor, 94th Cong., 1st Sess. 
(1975)......................................................................................  24,25

FEDERAL REGULATIONS

34 C.F.R. §100.13(i)........................................................................ 6

34 C.F.R.§ 104.3(f).......................................................................... 6

34 C.F.R.§ 106.2(h) .................................................................... 4,6

45 C.F.R. § 90.4(c)(2) .................................................................... 6



Vlll

O T H E R  A U TH O R ITIES

18 Loy. L.A. Ent. L.J. 307 (1998)...................................................3

1998-99 NCAA Division I Manual ....................................2,14

26 Loy. L.A. L. Rev. 1213 (1993)................................................... 3

31 J. Marshall L. Rev. 1303 (1998)...............................................3

Carol Herwig, Report Stresses Role o f  Academics; High 
School Athletes: Winners On, O ff Field, USA Today, Aug. 16, 
1989 ..............................................................................................  28

Carol Krucoff, Exercise and Breast Cancer, Saturday 
Evening Post, Nov. 1995.............................................................. 29

Colton & Gore, Ms. Foundation, Risk, Resiliency, and 
Resistance: Current Research on Adolescent Girls (1991) 
..........................................................................................................29

Donna A. Lopiano, Testimony Before the US. Subcomm. on 
Consumer Affairs, Foreign Commerce and Tourism, Oct.
18,1995...........................................................................................  29

Gender Gaps: Where Schools Still Fail Our Children,
AAUW Educ. Found., Oct. 14,1998 .........................................  30

Jim  Naughton, Focus o f  Title IX Debate Shifts from  Teams 
to Scholarships, Chron. of Higher Educ., May 29,1998, a t A45 
........................................................................................................ 26

J. Zimmerman and G. Reavill, Raising Our Athletic 
Daughters (1998).........................................................................  30

NCAA, Participation Study  (1995) .......................................  26



IX

The Presidents Council on Physical Fitness and Sports
Report: Physical Activity & Sports in the Lives o f
Girls (Spring 1997)............................................................... 28,29

The Women’s Sports Foundation, Miller Lite Report (Dec. 
1985)   29

The Women’s Sports Foundation, Minorities in  Sports: The 
Effect o f  Varsity Sports Participation on the Social, 
Educational and Career Mobility o f M inority Students 
(Aug. 15,1989) ............................................................................  28

Title IX o f the Education Amendments o f  1972; a Policy 
Interpretation; Title IX  and Intercollegiate Athletics, 44 Fed. 
Reg. 71,413 (1979) ............................................................... 25,26

U.S. Comm’n on Civil Rights, Pub. No. 63, More Hurdles to 
Clear: Women and Girls in  Competitive Athletics (1980) . 26



1

INTEREST OF AMICI CURIAE

Amici curiae are organizations dedicated to the 
achievement of equality of opportunity for all students without 
discrimination because of gender, race, national origin, disability 
or age.1 Statements of interest of the am ici are set forth in 
Appendix A.

INTRODUCTION

In this case, the National Collegiate Athletic Association 
(“NCAA”) claims that it is not covered by the nondiscrimination 
requirements of Title EX of the Education Amendments of 1972, 
20 U.S.C. § 1681 et seq. (“Title EX”). It makes this claim despite 
the  fact that the NCAA exists only as the creation of its 
m em ber schools, the majority of which are federally funded 
and subject to Title EX, and despite the fact that its central 
function is to govern one of these schools’ key educational 
programs, intercollegiate athletics, which Title IX was intended 
to address.

The member colleges and universities, now numbering about 
1200, have chosen the NCAA as their coordinating vehicle for 
addressing athletics matters.2 They have formalized this 
relationship with the NCAA through the payment of dues, 
which includes federal funds, and through other financial

1 The parties’ written consent to the filing of this brief has been filed 
with the Court No counsel for any party authored this brief in whole 
or in part, and no person or entity other than the am id curiae and 
their counsel made any monetary contribution to the preparation or 
submission of this brief.

2 The NCAA promotes itself as “the organization through which the 
nation’s colleges and universities speak and act on athletics matters at 
the national level.” The NCAA General Information (visited Nov. 
30,1998) <http://wwwncaa.org/about/>.

http://wwwncaa.org/about/


2

support,3 in exchange for which the NCAA establishes rules of 
play and legislates upon many athletics-related issues of 
concern to its members. Member schools agree to abide by 
NCAA rules and assign to the NCAA the authority to  enforce 
those rules on behalf of each individual school.4 5 Sanctions for 
violating the rules range from prohibition from competition to 
termination of an institution’s membership in the association.

The vast authority assigned to the NCAA by its member 
schools is evidenced by NCAA legislation that affects virtually 
every aspect of a member institution’s athletic program. From 
student eligibility requirements, to the maximum number of 
scholarships that may be awarded by sport and gender, to 
playing and practice seasons, member schools have transferred 
to  the NCAA an enormous amount of control over their 
athletics programs.6 It is beyond dispute that the  NCAA is a

3 1998-99 NCAA Division I Manual 19, Const., Art. 3, § 3.7 
[hereinafter NCAA Manual].

4 Id. a t 1, Const., Art. 1, § 1.2(d)&(h); § 1.3.2.

5 Id. a t 54, Bylaw, Art. 10, § 10.4 (ineligibility of a student athlete for 
intercollegiate competition); id. a t 330, Bylaw, Art. 19, § 19.6.2.2(j) 
(prohibition of a  team  from competition); id. a t 332, Bylaw, Art. 19, § 
19.6.3 (termination or suspension of an institution’s membership). The 
m ere threat of sanctions is often enough to change an institution’s 
ways. See, e.g., NCAA v. Tarkanian, 488 U.S. 179,187 (1988) (noting 
th a t when faced with possibility of sanctions, university chose to 
“[r]ecognize [its] delegation to the NCAA of the power to  act as 
ultimate arbiter of [the issue]”); NCAA v. Regents o f the Univ. o f  
Oklahoma, 468 U.S. 85,94-95 (1984) (describing how College Football 
Association (“CFA”) never consummated television agreement 
negotiated independently of NCAA because of threatened broad- 
based sanctions by NCAA against CFA members).

6 NCAA Manual a t 131-78, Bylaw, Art. 14 (eligibility); id. a t 192-99, 
Bylaw, Art. 15 (scholarships); id. a t 227-316, Bylaw, Art. 17 (playing 
and practice seasons).



3

dominant player in the operation of the educational program or 
activity of intercollegiate athletics in our nation’s colleges and 
universities.'

Given this assignment of responsibilities for intercollegiate 
athletics to the NCAA by its member schools, and federal 
funding of the responsibilities at issue, the NCAA is subject to 
Title IX under the statute, its implementing regulations, and 
amendments enacted by the Civil Rights Restoration Act of 1987 
(“CRRA”), Pub. L. 100-259,102 Stat. 28 (1988).® * 8

' The NCAA’s predominance in college athletics is widely 
acknowledged. See 18 Loy. L A  Ent. LJ. 307,328 (1998) (“[The] NCAA 
[has] unmitigated control over the market for college players.”); 26 
Loy. L A  L  Rev. 1213,1229. (1993) (“In terms of regulatory power, the 
NCAA is clearly the dominant organization in intercollegiate 
athletics.”). While other athletic organizations exist, the NCAA is “the 
only entity with substantial power over intercollegiate athletics in the 
United States.” Id. at 1222. The NCAA’s prestige and the commercial 
opportunities it offers are powerful incentives for schools to obtain 
(and avoid losing) NCAA membership. See 31J. Marshall L. Rev. 1303 
n.102 (1998) (“[T]he question [is] whether anyone can afford to not be 
a  mem ber of the NCAA”).

8 The posture of this case-dismissal pursuant to  Federal Rule of Civil 
Procedure 12 (bX6) and denial of the pro se plaintiffs motion to 
amend her complaint and allow for discovery-makes the factual 
record very slim. While the public record illustrates many underlying 
facts confirming the NCAA’s coverage under Title IX, the information 
in the record of this case concerning the nature and purposes of 
federal funding received by the member schools, and the relationship 
of those funds to  the NCAA and its responsibilities to the schools, is 
not fully developed. For example, two cases indicate that the NCAA 
is a potential direct recipient of a federal grant. See Bowers v. NCAA, 
1998 U.S. Dist. LEXIS 85552, a t *106-08 (D.N.J. June 8,1998); Cureton v. 
NCAA, 1997 U.S. Dist. LEXIS 15529, at *6 (E.D. Pa. Oct. 8,1997). Other 
relevant funds to the schools and the NCAA might also emerge were 
the plaintiff able to  amend her complaint and proceed to discovery, 
as the Third Circuit decision allows.



4

STATEMENT OF THE CASE

Amici adopt the Respondent’s Statement of the Case.

SUMMARY OF ARGUMENT

1. Title DCs plain language, implementing regulations, and 
amendments enacted by the CRRA support coverage of the 
NCAA. Title DC covers indirect as well as direct recipients of 
federal funds, and also covers entities that themselves may not 
receive federal funds but are subunits, successors, assignees or 
transferees of a recipient and stand in the shoes of the recipient 
with like obligations and functions. See Grove C ity College v. 
Bell, 465 U.S. 555 (1984); 34 C.F.R. § 106.2(h).

The NCAA is an indirect recipient of federal funds, because 
of dues received from its federally funded member colleges and 
universities to operate a part of their intercollegiate athletics 
programs that the federal funds support. These colleges and 
universities receive federal student financial aid that Congress 
intended for the general support of all the educational activities 
of the schools, including intercollegiate athletics.

Because the recipient colleges and universities have assigned 
and transferred key responsibilities to the NCAA to operate 
their intercollegiate athletics programs, and because the NCAA 
stands in the shoes of the recipients for purposes of governing 
their athletics programs, the NCAA is covered even if no 
federal funds are transferred through dues or otherwise.

The CRRA confirms tha t the NCAA is covered by Title IX. 
The NCAA is an entity created by two or more covered entities 
(the m em ber colleges and universities), and hence is covered 
under subsection (4) of the CRRA. It is also covered under 
subsection (2) of the CRRA as a  part of the operations of the 
covered schools themselves. All of the schools’ operations are 
covered under subsection (2), regardless of w hether the 
operations receive federal funds, and regardless of w hether the



5

schools run the operations themselves or delegate this 
responsibility to another entity such as the NCAA. These 
schools have arranged for the NCAA to run key aspects of their 
intercollegiate athletic programs, and therefore the NCAA is 
covered under this provision as well. 20 U.S.C. § 1687 (2),(4).

2. Congress intended to eliminate sex discrimination in athletics 
by enacting Title IX. The legislative history demonstrates that 
Congress repeatedly reaffirmed Title IX’s coverage of 
intercollegiate athletics. The importance of equality in athletics 
to  women’s education, employment opportunities, and health 
was recognized by Congress in its design of and support for Title 
DC. T hle  NCAA’s dominant role in intercollegiate athletics 
supports its coverage under Title DC.

ARGUMENT

L TITLE DC’S PLAIN LANGUAGE, IMPLEMENTING 
REGULATIONS, AND AMENDMENTS ENACTED BY 
THE CRRA SUPPORT COVERAGE OF THE NCAA

A  Congress Intended Title DC to Have a Broad Reach, 
and Its Implementing Regulations, Which Are 
Entitled to Deference, So Provide

Congress enacted Title DC to prohibit sex discrimination in 
federally funded education programs and activities. By its own 
terms, Title DC’s reach is expansive, stating simply: “No person 
in the United States shall, on the basis of sex be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity 
receiving Federal financial assistance.”9 20 U.S.C. § 1681(a).

9 Title VI of the  Civil Rights Act of 1964, Section 504 of the 
Rehabilitation Act of 1973, and the Age Discrimination Act of 1975 all 
prohibit discrimination under programs or activities receiving federal 
financial assistance. See 42 U.S.C. § 2000d et seq. (Title VT); 29 U.S.C. § 
794 et seq. (Section 504); 42 U.S.C. § 6101 et seq. (Age Discrimination



6

Congress has consistently demonstrated its intention tha t the 
determination of what is a program or activity receiving federal 
funds be made according to principles of broad coverage.

Under Title DCs implementing regulations, a “recipient” of 
federal funds is defined as:

any public or private agency, institution, or organization, 
or o ther entity, or any person, to whom Federal 
financial assistance is extended directly or through 
another recipient and which operates an education 
program or activity which receives or benefits from 
such assistance, including any subunit, successor, 
assignee, or transferee thereof.

34 C.F.R. § 106.2(h).10 11 12

This definition of “recipient" includes entities tha t receive 
federal funds directly or indirectly and operate an education 
program or activity tha t receives or benefits from such 
assistance. It also includes subunits, successors, assignees and 
transferees of such recipients. The regulation defining

Act).

10 The Brief for Respondent Smith reviews the broad statutory 
language used in Section 1681(a), which protects persons from 
discrimination under any federally funded program or activity, 
without limiting the protection to discrimination caused by the 
recipient itself. Thus, am ici do not address this issue here.

11 The regulations under Title VI, Section 504, and the Age Discrimination 
Act define “recipient” similarly. See 34 C.F.R. § 100.13(i) (Title VI); 34 
C.F.R. § 104.3(f) (Section 504); 45 C.F.R. § 90.4(c)(2) (Age Discrimination 
Act).

12 This brief does not focus on the NCAA’s direct receipt of funds, 
although there is highly relevant evidence that the NCAA receives 
federal funds directly for its National Youth Sports Program. This



7

recipient has been approved by Congress and given deference 
by this Court since its adoption in 1975.13

At the time that the regulations were promulgated, the 
General Education Provisions Act14 * was in place, under which 
Congress was afforded an opportunity to disapprove any of the 
Department of Health, Education and Welfare’s (“HEW”) 
regulations13 that it thought were inconsistent with Title IX. 
Congress reviewed the regulations, neither House passed a 
disapproval resolution, and the regulations went into effect. See 
North Haven, 456 U.S. at 533 n.24; 121 Cong. Rec. 23,846 (1975). 
Congress’ failure to disapprove the regulations “strongly implies 
that the regulations accurately reflect congressional intent.” 
Grove City, 465 U.S. at 568.

Relying in part on the  legislative history and the broad 
wording of Title EX itself, this Court ruled that the indirect 
receipt of federal funds triggers Title IX coverage. See Grove 
City, 465 U.S. 555 (holding that indirect receipt of federal funds 
through federal assistance to students triggers Title IX coverage 
of the college). In response to Grove City College’s argument 
that none of its programs directly received any federal

evidence is addressed in Respondent Smith’s brief as well as in Brief 
for Am ici Curiae Trial Lawyers for Public Justice (“TLPJ”) and 
Southern Poverty Law Center (“SPLC”).

13 This Court has accorded the Title LX regulations particular 
deference as an interpretation of the statute. See Grove City College 
v. Bell, 465 U.S. 555,567-68 (1984).

14 Pub. L. 93-380, § 509(a)(2), 88 Stat. 567, 20 U.S.C. § 1232(d)(1) (1970 
& Supp. IV 1974).

13 The former HEW promulgated the regulations initially in 1975. 
HEW’s functions under Title EX were transferred in 1979 to  the 
Department of Education (“DOE”), which subsequently adopted the 
regulations without substantive changes. See North Haven Bd. o f  
Educ. v. Bed, 456 U.S. 512,515-17 & nn.4&5 (1982).



8

assistance, this Court noted that the language of the statute 
does not indicate that Congress perceived any difference 
between direct and indirect federal assistance:

Nothing in § 901(a) suggests that Congress elevated 
form over substance by making the application of the 
nondiscrimination principle dependent on the manner in 
which a program or activity receives federal assistance. 
There is no basis in the statute for the view that only 
institutions tha t themselves apply for federal aid or 
receive checks directly from the federal government 
are subject to regulation.

Id. at 564. Citing its own precedent that Title IX should be 
“accord[ed] a sweep as broad as its language,” North Haven, 456 
U.S. at 521, this Court in Grove City  refused to read into Title IX 
“a limitation not apparent on its face.” Id. at 564; see also Bob 
Jones Univ. v. Johnson, 396 F. Supp. 597,603 (D.S.C. 1974), affd,  
529 F.2d 514 (4th Or. 1975) (stating that narrow readings of Title 
VI coverage are inappropriate).1

Congress later expressly endorsed the  longstanding 
definition of “recipient” when it passed the CRRA. Congress 
stated clearly its intent that the  CRRA does not “change in any 
way who is a  recipient of federal financial assistance,” and stated 
tha t the “purpose of the Civil Rights Restoration Act of 1987 is 
to reaffirm the pre-Grove C ity College judicial and executive 
branch interpretations [of Title IX’s scope] and enforcement 
practices which provided for broad coverage of the 16

16 Because Title IX was patterned after Title VI, see Cannon v. 
University o f  Chicago, 441 U.S. 677,694 (1979), Congress was aware 
of how Title Vi’s regulations were being interpreted and could have 
changed Title IX if it had so desired. Its failure to  do so provides 
further evidence of its approval of Title IX’s definition of recipient. 
See id. a t 694-95 (“The drafters of Title IX explicitly assumed th a t it 
would be interpreted and applied as Title VI had been during the 
preceding eight years.”).



9

antidiscrimination provisions of [the] civil rights statutes.” 
Report of the U.S. Senate Comm, on Labor and Human 
Resources, 100th Cong., 1st Sess., at 2 (1987).

In addition to the clear intention that the indirect receipt of 
federal funds trigger coverage, the meaning of the terms 
“subunit, successor, assignee, or transferee thereof” was 
debated in early versions of the CRRA. These term s were 
explained as “standard contract language applied to situations 
in which the successor, assignee, or transferee stands in the 
shoes of the recipient of the federal financial assistance, with 
like obligations and functions of the recipient.” See, e.g., H.R. 
Rep. No. 98-829, Pt. 2, a t 32 (1984) [hereinafter House Comm. 
Rep.]. Again Congress demonstrated tha t it was aware of this 
part of the regulation and approved of it.1'

B. The NCAA Is a Recipient for Purposes of Title IX 
Coverage

The NCAA fits within this regulatory definition of “recipient” 
on two counts. It indirectly receives federal funds for an 
educational program, intercollegiate athletics, which it 
operates. It also serves as a subunit, successor, assignee or 
transferee of other recipients -- its m ember schools. *

The House Report cites an example in which a  City Housing 
Authority receives Community Development Block Grants from the 
federal government. If the Housing Authority then subcontracts the 
property rehabilitation work to  a private developer, the  developer 
would come within the “successor, assignee or transferee” clause and 
hence would be covered by Title VI, Section 504, and the Age 
Discrimination Act. The report explains, however, tha t indirect 
recipients resulting from transactions outside the purpose of the 
federal funds would not be covered under this provision. For 
example, that same Housing Authority’s payment of an electric bill 
does not subject the Electric Company to the nondiscrimination 
statutes, because the payment of the bill is unrelated to  the function 
for which the federal funds were given to  the Housing Authority.



10

1. The NCAA Indirectly Receives Federal Funds 
to Operate an Educational Program

It is beyond dispute that the NCAA operates an educational 
program-intercollegiate athletics-within the meaning of Title 
IX. Despite the NCAA’s protestations to the contrary, it also 
receives federal funds from its member schools precisely to 
operate this educational activity.

The NCAA’s central role is to “maintain intercollegiate 
athletics as an integral part of the educational program and the 
athlete as an integral part of the student body.” Tarkanian, 488 
U.S. at 182.18 19 It is to support this central role that the  m ember 
schools pay dues to the NCAA, and federal funds received by 
the schools may cover just such purposes. Almost all NCAA 
members receive federal student financial aid that Congress has 
explicitly intended for the general support of all of the member 
schools’ educational programs and activities — of which 
intercollegiate athletics is one. See S. Rep. 100-64 a t 20 (stating 
th a t “funds from [student federal aid] flow throughout the 
institution and support all of its programs”).1 Because its 
m em ber schools have delegated to  the NCAA key aspects of 
the operation of their intercollegiate athletic programs and 
because they pass on federal funds intended to  support all 
educational activities, including intercollegiate athletics, to  the

18 The NCAA is treated as a  tax-exempt organization operated 
exclusively for educational purposes. See National CoUegiate Realty 
v. Bd. o f  County Comm’rs, 690 P.2d 1366 (Kan. 1984) (NCAA stated 
before the Kansas Board of Tax Appeals that it is a  § 501(cX3) 
organization); 26 U.S.C. § 501(cX3) (granting tax-exem pt status to 
corporations organized and operated exclusively for educational 
purposes).

19 It is difficult to determine, given the  posture of this case, w hether 
there are other federal funds flowing from its member schools to the 
NCAA.



11

NCAA in the form of dues to do so, the NCAA is an intended 
recipient covered by Title IX. Contrary to the NCAA’s assertion, 
the member schools’ extension of federal funds to the NCAA in 
exchange for its governance of their athletic programs does not 
“violate the terms on which the aid was extended to the 
institution.” Pet. Br. a t 20. The NCAA member schools’ use of 
student aid money, once received by them, is not restricted in 
any way by the federal government.20 21

Lower courts have relied on this regulatory definition of 
“recipient” to hold athletic associations similar to the NCAA 
accountable under Title IX. In H om er v. Kentucky High School 
Athletic Ass’ll, 43 F.3d 265 (6th Cir. 1994), the Sixth Circuit held 
the Kentucky High School Athletic Association subject to Title 
IX because it received dues from its federally funded m ember 
schools and performed the functions of the Kentucky Board of 
Education with respect to interscholastic athletics." Other 
courts have followed suit, holding athletic associations and

20 Even looking at federal student aid funds more narrowly as going to 
the financial aid program alone, by its own admission, the NCAA is 
responsible for key parts of the financial aid programs of each of its 
member colleges and universities. Pet. Br. at 5. It sets ceilings on the 
number, amount, and terms of scholarships for student athletes a t its 
m em ber schools. As the CRRA’s legislative history demonstrates, 
when a  college participates in a federal student aid program, the 
intended recipient of the aid is the college as a  whole. However, 
even under the narrowest reading tha t the intended recipient is only 
the college’s financial aid program, given its assigned authority for a 
central component of the financial aid program for student athletes, 
the NCAA is an “intended recipient” of federal financial aid.

21 In Horner, the Kentucky Board of Education delegated the management 
of interscholastic athletics to the Kentucky High School Athletic 
Association pursuant to a state statute. See 43 F.3d at 272. Clearly, Title 
IX coverage does not turn on whether the delegation of responsibility for 
managing an education program is by statute, or by voluntary agreement, 
as in the case of the NCAA. See Smith v. NCAA, 139 F.3d 180, 188 (3rd 
Cir. 1998).



12

conferences subject to Title IX by virtue of their indirect receipt 
of federal funds and their responsibilities for governing member 
schools’ interscholastic athletic programs. See, e.g., Dennin v. 
Connecticut Interscholastic Athletic Conference, 913 F. Supp. 
663 (D. Conn. 1996), appeal dismissed as moot, 94 F.3d 96 (2d 
Cir. 1996) (holding athletic conference subject to Section 504); 
Sandison v. Michigan High Sch. Athletic Ass’n, 863 F. Supp. 483 
(E.D. Mich. 1994), redd in  part on other grounds, 64 F.3d 1026 
(6th Cir. 1995) (holding athletic association subject to  Section 
504); Pottgen v. M issouri State High Sch. Activities Ass’n, 857 
F. Supp. 654 (E.D. Mo. 1994), redd on other grounds, 40 F.3d 926 
(8th Cir. 1994) (same).22

22 The NCAA argues that it is not covered by Title IX because the 
remedy of fund termination is unavailable. The NCAA is wrong, both 
because fund termination is possible in the case of the NCAA, just as 
it is in other indirect recipient circumstances, and because fund 
termination is not necessary for coverage in any event. The CRRA 
makes clear tha t coverage of an institution is broader than the 
particular part receiving federal funds, and under the “pinpoint” fund- 
termination provision of Section 902(1), only the particular funds 
supporting the discrimination may be terminated. Section 902(2) 
provides for a second way of enforcement beyond fund termination - 
by any other means authorized by law. 20 U.S.C. § 1682. Such means 
have included referral of the matter to the Department of Justice for 
court action. In the event of a Justice Department enforcement 
action, no fund termination is at issue. Moreover, as an indirect 
recipient, the NCAA’s funds would be terminated in the same way 
th a t a university that receives indirect funding through student 
financial assistance would have its funds terminated. In the latter 
situation, the student receiving the federal financial assistance would 
not be able to use those funds to attend the discriminating university. 
See Grove City  and Bob Jones University. Similarly, the NCAA’s 
indirect funding could be terminated by banning member recipients 
from providing financial support to the NCAA in exchange for the 
NCAA’s governance of their intercollegiate athletics program. Of 
course, in practice, voluntary compliance with the law is the way 
almost all compliance is secured, with Justice Department actions or 
fund termination proceedings extremely rare under any of the  civil 
rights statutes.



13

2. The NCAA Serves as a Subunit, Successor, 
Assignee or Transferee of Recipients With 
Respect to Their Educational Programs and 
Activities

The NCAA, in its role of governing and regulating 
intercollegiate athletics, also acts as a subunit, successor, 
assignee or transferee of its federally funded member schools 
and hence is a recipient within the meaning of Title EX in this 
respect as well. The NCAA fits this part of the regulatory 
definition of recipient because m em ber schools, which are 
recipients themselves, delegate their functions with respect to 
intercollegiate athletics to the NCAA. It is unnecessary to m eet 
this part of the regulation for any transfer of federal funds to 
have taken place at all.23

There can be no doubt that the NCAA is a surrogate for its 
member colleges and universities and substantially controls the 
operation of their intercollegiate athletic programs. As one 
court stated, in a case in which the NCAA itself claimed th a t it 
was an educational institution, based on its relationship with its 
m em ber schools, and was thus entitled to a sales tax 
exemption;

The activities of the NCAA are of the type the

23 When reviewing this part of the regulation defining recipient, the 
House Report used the particularly instructive example of a parking 
garage in a  university-owned building financed with federal funds, 
which was leased by the university to  a  private operator. In tha t 
example, the university presumably did not give funds to the garage 
operator. In fact, the lease would have yielded funds from the 
operator to  the university. Nonetheless, even without any transfer of 
federal funds, the garage operator was covered by Title EX as it was 
operating a  part of the federally funded building for the recipient just 
as the NCAA is operating a part of its members’ federally funded 
educational programs. See House Comm. Rep. a t 32.



14

member universities and colleges could accomplish 
by committee except for the number of schools 
involved and the complexity of the world of major 
intercollegiate sports. The work of the  NCAA staff is 
that which the members have decreed it shall do for 
the mutual benefit of, and assistance to, the m ember 
institutions’ educational programs. We must conclude 
th a t the NCAA is but an extension of the member 
universities and colleges----

NCAA v. Kansas Dep’t o f Revenue, 781 P.2d 726,730 (Kan. 1989). 
likewise, this Court recognized in Tarkanian  that NCAA rules 
and enforcement procedures “are an essential part of the 
intercollegiate athletic program of each m em ber institution.” 
Tarkanian, 488 U.S. at 195. The source of the NCAA’s 
regulations is not any one m em ber school, “but the collective 
membership speaking through [its] organization.” Tarkanian, 
488 U.S. at 193.

Member institutions have formally assigned or transferred 
functions with respect to athletics to the  NCAA and have 
agreed to be bound by the rules and regulations of the NCAA. 
In addition to delegating to the NCAA the responsibility for 
managing intercollegiate athletics, member schools have paid 
dues and have assigned or transferred many rights to the 
NCAA, such as their rights to money from championship events, 
including money from ticket sales; program sales and 
advertising; radio, television and movie rights, and more. See 
NCAA Manual at 419-20, Art. 31, § 31.4.2. The individual schools 
are only entitled to a small allowance of the  net receipts from 
these events. See id. a t 420, § 31.4.4.1. According to  its own 
brief, “the NCAA funds its activities through the receipt each 
year of approximately $200 million in revenues from television 
royalties, championship events, and various sales and services.” 
Pet. Br. at 4. All of this money would be retained by the 
NCAA’s m ember schools if they did not delegate control over



15

the governance of their athletic programs to the NCAA.21

The NCAA’s contention that subjecting it to Title IX would 
mean tha t virtually everyone who does business with a 
recipient will be covered, is belied by the language of the 
statute and regulations, as well as the legislative history. As the 
1984 House Committee Report indicates, the performance of 
obligations flowing from transactions outside the purpose or 
character of the federal funds does not trigger coverage of the 
successor, assignee, or transferee. See House Comm. Rep. a t 32. 
However, here, the assignment and transfer of obligations to the 
NCAA from colleges and universities receiving federal 
assistance are clearly for the purpose of providing an 
educational program or activity supported by federal funds.24 25 
Therefore, the NCAA, as a subunit, successor, assignee, or 
transferee providing the educational intercollegiate athletics 
program, is covered by Title EX.

* * * *
The NCAA’s reliance on United States Department o f

24 Given that the great bulk of the NCAA’s revenues comes from 
money that its member schools would have otherwise kept, its 
statement that it receives only about $900,000 in dues annually 
understates substantially the financial support flowing from its 
members.

25 In fact, an enormous loophole would be created were an entity such 
as the NCAA not considered covered and the implications would be 
contrary to common sense and Title IX’s fundamental purposes. For 
example, if several universities jointly managed an archaeological dig and 
appointed a joint governing body to administer the research and to control 
the number of students from each school who would be allowed access to 
the site and the maximum amount of student aid each researcher could 
receive, that joint governing body could no more discriminate based on sex 
than could any of the universities involved in the research. This result 
would be the same regardless of whether the governing body received funds 
from the universities, charged the students directly, or received other 
sources of funds.



16

Transportation v. Paralyzed Veterans o f  America, 477 U.S. 
597 (1986), to support exempting the NCAA from coverage of 
Title IX is misplaced. In Paralyzed Veterans, this Court held 
that commercial airlines were not subject to Section 504 despite 
their benefitting-in the form of runways, taxiways, and ram ps- 
from federal funds extended to airport operators. See 477 U.S. 
at 606-07. In contrast with this case, there was no contention in 
Paralyzed Veterans “that [the] airlines actually receive or are 
intended to receive money from the [federal government].” In 
fact, this Court found that “[n]ot a single penny of the  money is 
given to the airlines.” Id. at 605. The NCAA, in contrast, is an 
actual indirect recipient of federal student aid funds intended to 
support all educational activities of the schools, through the 
dues the schools pay NCAA to operate one of their educational 
activities.

In addition, the NCAA is a subunit, assignee, or transferee 
of its recipient member schools entrusted to govern key aspects 
of their athletic programs, while the airlines in Paralyzed  
Veterans did not govern any of the operations of the  airport. 
While the airlines in Paralyzed Veterans merely used the 
federally funded facilities, the NCAA controls and regulates how
the  federal recipients’ intercollegiate athletic programs will

26operate.

Moreover, the  NCAA’s reliance on this Court’s decision in 
Gebser v. Lago Vista Independent School District, 118 S. Ct. 26

26 The NCAA’s reliance on NCAA v. Calif ano, 444 F. Supp. 425 (D. Kan 
1978), redd, 622 F.2d 1382 (10 th Cir. 1980), is also misplaced. In 
C alif ano, the issue of whether the NCAA was a  recipient was not 
explored, no factual record was developed, and no review of legal 
principles was conducted regarding the NCAA’s recipient status. An 
exploration of the actual facts would have revealed that a t the time, 
the  NCAA received federal funds directly for its National Youth 
Sports Program, as discussed in Brief for Amici TLPJ and SPLC, and 
therefore was clearly a recipient, under even the narrowest meaning 
of the term.



17

1989 (1988), is also unavailing. In Gebser, there was no doubt 
tha t the  school was a recipient; the question before the Court 
was when a recipient could be held liable for damages based on 
the misconduct of its agent. See id. The court held tha t a 
school district would not be held liable in damages as a 
respondeat superior  for the conduct of an employee who 
sexually abused a  student, unless an official of the school 
district with the authority to initiate corrective measures had 
actual notice of the discriminatory conduct. See id. at 1998-99. 
The Court’s standard for damages, however, does not control 
the issue of coverage, or even the issue of other forms of relief 
beyond damages, including administrative enforcement that 
would flow from recipient status. See id. at 2000. Moreover, 
the NCAA is allegedly the knowing, discriminatory actor, not the 
unknowing management structure removed from the 
discrimination that existed in Gebser. Rather than precluding 
Title EX coverage, the Court’s Gebser opinion invites it in this 
case. Under the Court’s Gebser analysis, control and knowledge, 
which the NCAA clearly has regarding its own rules, triggers 
liability for damages beyond the question of coverage.27

C. The Civil Rights Restoration Act Ajnendments 
to Title LX Underscore Coverage of the NCAA

While for the reasons described above, the NCAA is a 
recipient within the meaning of Title IX, after the passage of the 
CRRA, with the new definition of “program or activity receiving 
federal financial assistance,” it fits within that rubric as well.

27
The NCAA also mischaracterizes Smith’s statement in her Brief in 

Opposition that the NCAA acts as an agent of its member schools as being 
based on a theory of agency or vicarious liability. See Br. Opp. at 7; Pet. 
Br. at 26-28. The reference to “agent,” conveyed a relationship between the 
NCAA and its member schools analagous to the regulation’s “subunit, 
successor assignee or transferee” language. As discussed supra, the NCAA 
stands in the shoes of its member schools with respect to the governance of 
intercollegiate athletics and hence fits within the regulatory definition of 
recipient.



18

While Congress in enacting the CRRA supported the holding 
in Grove City College v. Bell that student receipt of federal 
financial assistance led to Title EX recipient status for the school 
attended by the student, it disagreed with the Court’s holding 
that the financial aid program, and not the school as a whole, 
was covered under Title IX. Thus, the Grove City decision 
prompted a  strong congressional response. Within weeks of the 
Court’s decision, bills w ere introduced in Congress to overturn 
that aspect of the Court’s Grove City decision. See, e.g., H.R. 
5490,99th Cong. (1984). The CRRA, was enacted into law three 
years later. 20 U.S.C. § 1687.

The CRRA broadly defines a “program or activity” that 
receives federal funds to mean all of the operations of a list of 
entities -- including colleges and universities; private 
organizations principally engaged in education; and any other 
entity established by two or more of the listed entities w hat 
Congress term ed the  “catch-all” provision.28

The language, structure and intent of Congress in passing the 
CRRA was clear - to ensure that a  broad range of entities were 
covered in their entirety, when they have responsibility for 
federally funded programs.29 In fact, the NCAA clearly fits

28 See S. Rep. 100-64 a t 19.

29 The CRRA provides in relevant part:

For the purposes of this chapter, the term  “program or activity” and 
“program” mean all of the operations of-

(2) (A) a  college, university, or other postsecondary institution, or a 
public system of higher education; or
(B) a  local educational agency (as defined in section 8801 of this title), 
system of vocational education, or other school system;
(3) (A) an entire corporation, partnership, or other private 
organization, or an entire sole proprietorship-

(i) if assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a  whole; or



19

within the CRRA. The NCAA acknowledged as much in its 
testimony at hearings when Congress first began consideration 
of the legislation. In a  prepared statement submitted for the 
record, the NCAA stated its belief that if Congress adopted a 
scheme whereby federal financial assistance to one university’s 
program extended Title IX coverage to the university’s other 
programs, by analogy, voluntary athletic associations such as 
the  Big Eight Athletic Conference would be covered.30 While 
the NCAA did not explicitly mention its own status, its concerns 
regarding the coverage of voluntary athletic associations were 
based on a proper reading of Congress’ purposes and the effect 
of the CRRA once passed.

1. The NCAA is Subject to Title EX Because It 
Is an Organization Established by Two or 
More Colleges or Universities That Receive 
Federal Funds

The “catch-all” provision, subsection (4) of the CRRA, 
provides that an entity created by two or more otherwise 
covered entities is itself subject to Title EX. The NCAA is clearly

(ii) which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or

(B) the entire plant or other comparable, geographically separate 
facility to  which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship or
(4) any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance___

20 U.S.C. § 1687.

30 See Hearings Before the House Education and Labor Comm, and the 
Subcomm. on Civil and Constitutional Rights, House Judiciary Comm., 98th 
Cong., 2d Sess. at 225 (May 21, 1984). [hereinafter 1984 Joint Hearings].



20

such an entity, as it was established by colleges and universities 
that are explicitly listed in the CRRA as covered themselves. 
See 20 U.S.C. § 1687(2)(A).

Pursuant to this catch-all provision, lower courts have held 
the  NCAA, liable under Title VI and Section 504. In Cureton v. 
NCAA, the court held the NCAA to be a program or activity 
covered by Title VI under subsection 4. 1998 U.S. Dist. LEXIS 
16196, at *6 and in Bowers v. NCAA, the court held that the 
NCAA is a program or activity subject to Section 504 because it 
“squarely fits within the statutory language of [subsection (4)]” 
as an entity established by two or more colleges and 
universities. 1998 U.S. Dist. LEXIS 8552, a t *96-*98.

The NCAA claims that before an organization can be 
brought under Title IX’s coverage by subsection (4), the 
organization must itself receive federal financial assistance. Pet. 
Br. at 31. But this interpretation should be rejected because it 
would render subsection (4) mere surplusage. See Kungys v. 
United States, 485 U.S. 759,778 (1988) (plurality opinion) (Scalia, 
J.) (It is a  “cardinal rule of statutory interpretation tha t no 
provision should be construed to be entirely redundant”). 
Subsections (3)(A) and (3)(B), when taken together, already 
apply Title IX to any private organization if any part of that 
organization is extended federal financial assistance directly. 
For example, if two separate universities form a corporation, 
and the government extends federal financial assistance to  the 
corporation directly, tha t corporation is subject to Title EX 
under subsection (3)(AXi) or (3)(B). The NCAA’s interpretation 
would render subsection (4) unnecessary because the 
organization would already be covered because of the federal 
assistance it receives directly.31 Thus, the NCAA is covered by

31 The example within the CRRA’s legislative history that the NCAA 
cites for the proposition that entities covered under subsection (4) must 
receive federal financial assistance directly to be covered by Title IX is 
inapposite. The NCAA refers to the example offered in S. Rep. 100-64 
concerning three Catholic parishes within one Catholic diocese. In the



21

Title EX under subsection (4): a contrary conclusion would be 
inconsistent with Congress’ goal of “meaningful coverage and 
effective enforcement” of Title IX, S. Rep. 100-64 at 6, and its 
explicit purpose, that subsection (4) serve as a catch-all 
provision and apply to entities not reached by the other 
enumerated subsections.

2. The NCAA is Subject to Title IX as an 
Operation of Its Federally Funded Member 
Schools

Subsection (2) covers all operations of covered colleges and 
universities. If the NCAA disputes that it is a separate creation 
of its covered m ember schools, and thereby covered under 
subsection (4), it would be hard pressed to argue that it was not 
an operation of the schools themselves, as its own testimony 
seem ed to recognize.32

The fact that the NCAA’s members choose to conduct some 
part of the operations of their covered educational program by

example, each parish separately receives federal assistance. The report 
concludes that the diocese to which the parishes belong is not covered 
under § 1687(4). The reason the diocese is not covered while its three 
parishes are, however, is that under subsection (3)(B), if federal aid is 
extended only to a facility or division of a corporate entity, only that 
facility or division is covered by Title IX. The parishes constitute 
separate facilities under the “geographically separate facility” provision 
of subsection 3(B) and are not separate organizations with legal identities 
distinct from the dioceses. By contrast, the schools that make up the 
NCAA have legally distinct identities, which they retain while still being 
“parts” of the NCAA.

32 See 1984 Joint Hearings at 225, where it described voluntary 
athletics associations as operations of colleges and universities. See 
also the statement of the court in NCAA v. Kansas Dep’t of Revenue, 
781 P.2d at 730 (“We must conclude that the NCAA is but an extension 
of the member universities and colleges.”).



22

arrangement with the NCAA rather than by themselves does 
not make the NCAA’s role and responsibilities any less an 
operation of the schools. The NCAA’s central role in the 
management of each member schools’ athletic programs makes 
th e  NCAA a part of the operation of each m em ber school 
within the meaning of the CRRA.

Courts have held analogous entities to be covered as 
operations of covered schools themselves, even when those 
entities w ere separate from the schools. See Graham v. 
Tennessee Secondary Sch. Athletic Ass’n, No. 1:95 CV044,1995 
W L115890 (E.D. Term. Feb 20,1995), appeal dismissed, 107 F.3d 
870 (6th Cir. 1997) (upholding Title VI claim against the athletic 
association because it is an operation of the state’s schools); 
Association o f Mexican-American Educators v. California, 
836 F. Supp. 1534, 1542-45 (N.D. Cal. 1993) (upholding Title VI 
claim against California Commission on Teacher Credentialing, 
which did not directly receive federal funds, because it is as an 
operation of the state’s school system, which receives federal 
funds).

It is the m em ber schools whose athletics operations the 
NCAA relies on to generate revenues, and to provide facilities 
and participants for events. In its brief, the NCAA pointed to 
the  $200 million in revenues for selling the rights to  broadcast 
the NCAA events. Pet. Br. at 4. These events are intercollegiate 
athletic competitions between federally funded student athletes 
a t federally funded schools. For example, when millions of 
viewers around the world watch the NCAA’s “Final Four” 
national basketball championship, and increasingly the Women’s 
“Final Four,” they do so to watch their favorite colleges, 
universities, and student-athletes compete. It is the  m em ber 
schools’ operations, and their students that the  NCAA is 
supervising and upon which it relies.

But for the federally funded schools that build, maintain, 
and operate the facilities in which these contests occur and pay 
for the salaries of the coaches, assistants, and trainers who



23

manage these teams, there would be no NCAA championships. 
But for the federally assisted student athletes who are 
extended federal financial assistance, there would be no teams 
to compete and no NCAA championship games to be broadcast. 
But for the federally funded member schools that pay for the 
NCAA, and abide by its rules, there would be no NCAA. Thus, 
the  NCAA is subject to the antidiscrimination requirements of 
Title EX because it is controlling central aspects of the schools’ 
educational operations.33

*  *  *  *

In sum, the CRRA ensured that substance must prevail over 
form, and that if an entity is responsible for discrimination under 
a  program or activity receiving federal funds -  as the NCAA is 
alleged to be in its waiver practices in this case -  it must be 
held accountable under Title EX.34

H. CONGRESS’ INTENTION TO ELIMINATE SEX 
DISCRIMINATION IN INTERCOLLEGIATE 
ATHLETICS THROUGH TITLE IX SUPPORTS 
NCAA COVERAGE

In fact, it is also possible to view the NCAA as covered under 
subsection (3XAXji) of the CRRA, for it is without question a private 
educational organization. Its m em ber schools are the NCAA’s parts, 
and given the schools’ receipt of federal funds, the NCAA as a whole 
is covered.

34 While the NCAA correctly states that the CRRA left in place the 
Paralyzed Veterans holding that the airlines in that case were not recipients 
of federal financial assistance for purposes of Section 504, the airlines did 
not fit within subsection (4), for they were not created by the covered 
airport operators. Nor were the airlines a part of the airport operators 
running operations for them, as is necessary for coverage under subsection 
(2) in the case of colleges and universities.



24

A. Congress Explicitly Addressed Intercollegiate 
Athletics as Central to Title IX

The legislative history of Title IX is characterized by 
Congress’ repeated rejection of attem pts to  weaken its 
application to intercollegiate athletics and by Congress’ 
recognition of the need to remedy sex discrimination in 
intercollegiate athletic programs. Intercollegiate athletics has 
been a  major focal point in congressional debates relating to 
Title LX. In 1974, for example, Congress not only rejected a 
proposal to exempt revenue-producing intercollegiate athletic 
programs, but actually directed the Secretary of HEW to 
prepare regulations implementing Title IX which included "with 
respect to intercollegiate athletics reasonable provisions 
considering the nature of particular sports.”35 Pub. L. No. 93-380, 
§ 844, 88 Stat. 612 (1974); see also Sex D iscrim ination  
Regulations: Hearings Before the Subcommittee on 
Postsecondary Education o f the Committee on Education and 
Labor, 94th Cong., 1st Sess., at 21 (1975) [hereinafter Sex 
Discrimination Regulations] (describing the relevant history).

Acting on this explicit delegation of rulemaking authority, 
HEW issued proposed regulations in June of 1974, including 
specific provisions addressing intercollegiate athletics. The 
proposed regulations were subjected to a public comment 
period tha t produced nearly 10,000 comments. See Sex 
D iscrim ination Regulations at 438 (testimony of Caspar 
Weinberger). The large number of comments addressing 
intercollegiate athletics prom pted then-Secretary of HEW 
Caspar Weinberger to rem ark that "the most important issue in 
the  United States today is intercollegiate athletics, because we

Subsequent efforts to restrict Title IX's coverage of intercollegiate 
athletics also failed. See H.R. 8394, 94th Cong., 121 Cong. Rec. 21,685 
(1974) (bill amending Title IX to protect revenue produced by an athletic 
team from use by any other team unless the first team did not need the funds 
for itself); S. 2106, 94th Cong., 121 Cong. Rec. 22,778 (1975) (bill 
amending Title IX to exempt revenue-producing sports).



25

have an enormous volume of comments about them." Id.

HEW issued its final regulations in 1975, and Congress held 
extensive hearings on the regulations, focusing particular 
attention on the need to address the pervasive sex 
discrimination in intercollegiate athletics programs. The 
hearings produced a voluminous record documenting such 
discrimination.36 See Sex Discrimination Regulations, supra.

Resolutions w ere introduced in both Houses disapproving 
the regulations insofar as they applied to athletics, see S. Cong. 
Res. 52,121 Cong. Rec. 22,940 (1975); H. Cong. Res. 311,121 Cong. 
Rec. 19,209 (1975), and in their entirety, see H. Cong. Res. 310,121 
Cong. Rec. 19,209 (1975); S. Cong. Res. 46,121 Cong. Rec. 17,300 
(1975). None of the resolutions passed, and the regulations went 
into effect on July 21, 1975. See Title IX o f the Education 
Amendments o f 1972; a Policy Interpretation; Title IX and 
Intercollegiate Athletics, 44 Fed. Reg. 71,413 (1979) (summarizing 
relevant history)

Title DCs application to intercollegiate athletics has 
enhanced educational opportunities for young women in many

Many members of Congress spoke to this issue. See Sex 
Discrim ination Regulations at 175 (remarks of Sen. Bayh) (“I have 
heard of no one making the argument that athletics should not be covered 
by Title IX who does so on the premise that there is not discrimination.”); 
see also id. at 58 (remarks of Mr. Simon) ("I think we have to recognize 
that we have had some failures here in the past in not encouraging female 
sports."); 121 Cong. Rec. 24,635 (1975) (remarks of Sen. Clark) ("A look 
at present spending figures reveals an unbelievable inequity — of the $300 
million spent annually on collegiate athletic programs, only 2% is spent on 
women's athletics."); 121 Cong. Rec. 20,714 (1975) (remarks of Sen. Javits) 
("Sex discrimination in education takes many forms . . . .  [A]thletic 
programs are restricted and financial aid distributed in a biased manner."); 
120 Cong. Rec. 20,668 (1974) (remarks of Hon. Robert P. Hanrahan) ("Mr. 
Speaker, there has always been sex discrimination involved in athletics.").



26

respects. Title IX has led to the availability of athletic 
scholarships, and they in turn have sharply increased the ability 
of young women to pursue a  college education and to choose 
from a wider range of schools. Athletic scholarships for women 
w ere almost nonexistent and many colleges had no women’s 
sports programs at all. See U.S. Comm’n on Civil Rights, Pub. 
No. 63, More Hurdles to Clear: Women and Girls in  
Competitive Athletics (1980). Prior to the passage of Title IX, 
only 32,000 women per year played college sports. See 44 Fed. 
Reg. 71,413, 71,419 (1979). Currently over 110,540 women 
participate in college athletics. NCAA, Participation Study 
(1995).

Despite these increased opportunities, however, the full 
potential of Title IX in the area of intercollegiate athletics has 
not yet been realized. Recognizing the need for continued 
enforcement of Title IX, Congress continues to legislate in this 
area. For example, in 1998 the “Fair Play Act” was passed, 
requiring the public availability of data describing the  degree of 
compliance with Title IX’s mandate of equal opportunity in 
intercollegiate athletics. Higher Education Amendments of 1998, 
Pub. L. 105-244 (1998). Congress found that despite the 
important advances made under Title IX, women have not yet 
achieved equity in intercollegiate athletics. The data has shown 
th a t many problems remain, and in the area of scholarship 
inequities, for example, schools have pointed to NCAA 
scholarship rules as creating barriers to the removal of the 
inequities, See, e.g., Jim Naughton, Focus o f Title IX  Debate 
Shifts fro m  Teams to Scholarships, Chron. of Higher Educ., 
May 29,1998, at A45.

In order to implement Congress’ intent in enacting Title IX, 
coverage of the NCAA is particularly important. The instant 
case highlights that importance, for the challenged conduct is 
a rule or decision by the NCAA itself -- its manner of granting 
eligibility waivers -- not the  action of any individual school.

Moreover, the argument that coverage of the  NCAA is 
unnecessary because effective relief can be obtained from an



27

individual federally funded school, which must comply with 
Title EX notwithstanding the NCAA’s rules, ignores the very real 
consequences of violating NCAA rules. Schools are subject to 
sanctions for so doing, including prohibition from competition or 
termination of membership. Thus, even if a plaintiff obtained 
a  judgment ordering a particular school not to implement a 
discriminatory NCAA rule, that judgment would not restrict the 
NCAA, and the school then would be subject to sanctions by the 
NCAA and would be excluded from NCAA-sponsored 
competition. In the end, therefore, the plaintiff and other 
athletes at the institution might lose valuable opportunities for 
participation and competition, and not secure effective relief.37

Thus, subjecting the NCAA itself to Title EX is essential to 
achieving the statute’s purposes. Any decision to the contrary 
would frustrate Congress’ intent to eliminate sex discrimination 
in athletics.

B. Participating in Athletics Has Far-Reaching 
Benefits

Sports offer much to female athletes who participate in 
them  in a  variety of ways. In 1997, the President’s Council on 
Physical Fitness and Sport released a report on girls’ 
involvement in physical activity and sports. The report 
affirmed the basic premise that sports and physical activities

37 In fact, in a pending case against the Michigan Athletic Association, 
plaintiffs have alleged that several school districts have protested 
unsuccessfully to the association to change a rule which schedules 
tournament play for certain women’s teams off season. These school 
districts are faced with the choice of withdrawing from the 
tournaments or acquiescing in a discriminatory practice hurting their 
female students’ opportunities for scholarships and other benefits 
that in-season tournaments would provide. See Communities for 
Equity v. Michigan High Sch. Athletic Ass’n, No. 198CV479,1998 WL 
804829 (W.D. Mich. Nov. 16,1998) (order denying defendant athletic 
association’s motion for summary judgment, inter alia, in which it is 
argued that it is not covered by Title IX).



28

are highly beneficial for girls, offering a  panoply of 
physiological, psychological, sociological and mental health 
benefits. See The Presidents Council on Physical Fitness and 
Sports Report: Physical Activity & Sports in  the Lives o f  
Girls xii (Spring 1997) [hereinafter Presidents Council Report].

Athletic participation expands academic opportunities and 
promotes academic achievement. The availability of athletic 
scholarships sharply increases young women’s ability to pursue 
a college education and to choose from a wider range of 
schools, thus opening more doors for w om ea Indeed, for many 
low-income women, intercollegiate athletics provides a 
gateway to an education that they otherwise could not obtain. 
See, e.g., Cohen v. Brown Univ., 991 F.2d 888,891 (1st Cir. 1993). 
On average, female athletes fare better academically than their 
nonathletic counterparts. See Presidents Council Report at 
xxiii. Young women who participate in sports are more likely to 
graduate from high school. See The Women’s Sports 
Foundation, M inorities in Sports: The Effect o f V arsity  
Sports Participation on the Social, Educational and Career 
Mobility o f  M inority Students 27 (Aug. 15, 1989). They also 
have higher grades and higher scores on standardized tests 
than non-athletes. Thus, athletic participation enhances the 
overall educational experiences of many young women.38

Second, women develop a  range of skills through 
participation in athletics, all of which are crucial to success in 
employment and adult life, generally. Those skills include the 
ability to w ork with a  team, to perform under pressure, to set

38 Athletic participation has been proven to yield similar benefits for 
Black and Hispanic students. Minority athletes receive higher grades, 
are less likely to  drop out, and aspire to hold leadership positions in 
their communities in greater percentages than their non-participating 
counterparts. See Carol Herwig, Report Stresses Role o f  Academics; 
High School Athletes: Winners On, O ff  Field, USA Today, Aug. 16, 
1989, citing Women’s Sports Foundation Report: Minorities in Sports 
(1989).



29

goals, and to take constructive criticism. Importantly, 
participation in sports can teach problem-solving skills. See 
Presidents Council Report at 64. Participation in 
intercollegiate athletics offers young women “an opportunity to 
exacuate [sic] leadership skills, learn teamwork, build self- 
confidence, and perfect self-discipline.” Cohen, 991 F.2d at 891.

Third, regular and rigorous physical exercise from sports 
provide enormous health benefits to women. Sports 
participation decreases a young woman’s chance of developing 
heart disease, osteoporosis, and other health related problems. 
See Donna A. Lopiano, Testimony Before the US. Subcomm. on 
Consumer Affairs, Foreign Commerce and Tourism, Oct. 18, 
1995. A 1998 study found that former college athletes had a 35% 
less chance of developing breast cancer and a 61% less chance 
of developing reproductive cancer compared to non-athletes. 
See Carol Krucoff, Exercise and Breast Cancer, Saturday 
Evening Post, Nov. 1995, at 22. Increased fitness levels can 
contribute to better posture, the reduction of back pain, and the 
developm ent of physical strength and flexibility. See 
Presidents Council Report, at 14. In term s of emotional and 
mental health, women who participate in sports have a  higher 
level of self-esteem, a lower incidence of depression, and a 
more positive body image. See Colton & Gore, Ms. Foundation, 
Risk, Resiliency, and Resistance: Current Research on 
Adolescent Girls (1991); The Women’s Sports Foundation, 
Miller Lite Report 3 (Dec. 1985). Through participation in sports, 
women establish constructive relationships with peers, are 
influenced by healthy role models, experience success, and 
learn how to deal with physiological and psychological changes. 
See Presidents Council Report at 64. Thus, it is clear that 
sports participation also promises young women important 
health benefits.39

A recent book provides a comprehensive look at the impact of 
sports in the lives of girls and further provides a guide for parents 
who would like to see their daughters succeed. The authors talked 
with girls who play sports, professional athletes, parents, educators,



30

Although women continue to have a disproportionately low 
share of athletic opportunities, women have made a 
tremendous contribution to the world of sports. Indeed, female 
athletes trium phed in both the 1996 Atlanta and 1998 Nagano 
Olympic Games. And, in 1996, female athletic contributions 
were acknowledged in the formation of the Women’s National 
Basketball Association, where early reports indicated that 
viewing and attendance of games exceeded predictions of 
popularity and interest. See Gender Gaps: Where Schools Still 
Fail Our Children, AAUW Educ. Found., Oct. 14,1998 (citing G. 
Gross, Girls Gleefully Claim a League o f Their Oum, N.Y. 
Times, Aug. 4,1997, at Al).

While Title IX’s goal of full equality of opportunity in sports 
has yet to be realized, Title IX has played a  vital role in opening 
up competitive athletics to women and girls. Thus, the 
commitment to providing young women equal opportunities in 
athletics must be sustained and the NCAA must not be 
perm itted to ignore its Title IX responsibilities.

CONCLUSION

For the foregoing reasons, am ici urge this Court to affirm 
the  Third Circuit’s judgment in this case.

coaches, academics, etc. The authors propose that “in raising our 
athletic daughters, we are raising girls to  be strong, self-determined 
women.” J. Zimmerman and G. Reavill, Raising Our Athletic 
Daughters xii (1998).



31

Lois G. Williams 
Brad E. Biegon 
Howrey& Simon 
1299 Pennsylvania Ave., N.W. 
Washington, D.C. 20004

DinaR.Lassow 
Lobel, Novins & Lamont 
1275 K Street, N.W., Suite 770 
Washington, D.C. 20005

December 8,1998

Respectfully submitted,

Marcia D. Greenberger*
* Counsel o f Record 
Leslie T. Annexstein 
NeenaK. Chaudhry 
National Women’s Law Center 
11 Dupont Circle, N.W., Suite 800 
Washington, D.C. 20036 
(202) 588-5180

Deborah L. Brake 
University of Pittsburgh 
SchoolofLaw 

3900 Forbes Ave., Room 322 
Pittsburgh, PA 15260

Counsel for Amici Curiae



A-l

APPENDIX
INTEREST OF THE AMICI

The National Women’s Law Center C‘Center”)  is a  nonprofit 
legal advocacy organization dedicated to the advancement and 
protection of women’s rights and the corresponding elimination 
of sex discrimination from all facets of American life. Since 
1972, the Center has worked to secure equal opportunity in 
education for girls and women through full enforcement of Title 
EX. In particular, the Center has consistently sought active 
enforcement of Title EX with respect to intercollegiate athletics 
and was counsel in the first Title EX challenge to discrimination 
in intercollegiate athletics, Haffer v. Temple University. The 
benefits and opportunities uniquely available to  competitive 
athletes have been and continue to be disproportionately 
reserved for men. The Center has a deep and abiding interest 
in assuring equal athletic opportunity under Title EX, including 
the opportunity to participate in intercollegiate athletics.

American Association o f University W omen (AAUW), for w ell 
over a  century, the organization of 150,000 members, has been 
a catalyst for the advancement of women and their 
transformations of American society. In more than 1,500 
communities across the country, AAUW members work to 
promote education and equity for all women and girls. AAUW 
plays a major role in activating advocates nationwide on 
AAUW’s priority issues. Current priorities include gender 
equity in education, reproductive choice, and workplace and 
civil rights issues. AAUW believes tha t Title EX is essential for 
continuing the advancement of women and girls in education.

The American Civil Liberties Union (ACLU)  is a  nationwide, 
nonprofit, nonpartisan organization with nearly 300,000 members 
dedicated to preserving the principles of liberty and equality 
embodied in the Constitution and this nation’s civil rights laws. 
The ACLU’s Women’s Rights Project was established in 1971. 
For nearly three decades, it has battled on behalf of women’s 
equality in schools and other settings. Among other things, the



A-2

ACLU has appeared before this Court in virtually every major 
women’s rights case, either as direct counsel or as amicus 
curiae. The issue presented in this case, which involves the 
proper scope and application of Title EX, is therefore a m atter 
of great concern to  the ACLU and its members.

The California Women’s Law Center (CWLC)  is a private, 
nonprofit public interest law center specializing in the civil 
rights of women and girls. The California Women’s Law Center 
was established in 1989 to address the comprehensive civil 
rights of women and girls in the following priority areas: Sex 
Discrimination, including sex discrimination in education, 
Women’s Health and Reproductive Rights, Family Law, 
Violence Against Women and Child Care.

Since its inception, the CWLC has placed a  strong emphasis on 
advancing the rights of women and girls in education, 
particularly the issues of discrimination, and access to equal 
opportunities in athletic programs and activities. The issues 
raised in this case will have an enormous impact on the rights 
of women and girls to participate fully in educational and 
athletic programs free of the terrible consequences of 
discrimination. Thus, this case raises questions within the 
expertise and concern of the California Women’s Law Center; 
and the  California Women’s Law Center has the requisite 
interest and expertise to be heard by the Court in this appeal.

Center fo r  Women Policy Studies is a  national nonprofit, 
multiethnic and multicultural feminist policy research and 
advocacy institution. The Center believes Title EX is a  critical 
tool for ensuring educational equity for women and girls in 
diverse settings; the  law’s strength and scope of application 
must not be diluted. For example, the issue of sex bias in the 
SAT (Scholastic Assessment Test) is a  major focus of our work 
and the Court’s ruling will impact on the ability of advocates to 
address this bias.

Clearinghouse on Women’s Issues was established some 25 
years ago to  provide a  channel for dissemination of information



A-3

on a  variety of issues of special concern to women. 
Advancement of educational opportunities for women and girls 
and elimination of discrimination in all areas of society are 
major issues to which we have given sustained attention. The 
full implementation and enforcement of Title EX has long been 
of great concern to our members.

The Connecticut Women’s Education and Legal Fund, Inc. 
(CWEALF) is a  statewide non-profit organization dedicated to 
empowering women, girls and their families to achieve equal 
opportunities in their personal and professional lives. CWEALF 
was incorporated in 1973 and has over 1,400 members. Having 
worked on the issue of Title EX since we first opened our doors, 
we understand how critical this law has been in term s of 
improving educational equity for girls and women, particularly 
in the  area of athletics. We also understand that it is vital for 
the authoritative voice of intercollegiate athletics -  the NCAA 
-  to  abide by Title EX if women’s sports are to be truly 
equitable.

Equal Rights Advocates CERA’)  is a San Francisco-based 
public interest law center dedicated to the empowerment of 
women and girls through the establishment of their economic, 
social, and political equality. Since its inception in 1974, ERA has 
specialized in litigating cases and pursuing public policy 
initiatives designed to assure women equal access to all of 
society’s benefits including employment, education, and public 
accommodations. ERA has litigated cases involving Title EX, 
including Doe v. Petaluma C ity Sch. Dist., 830 F. Supp. 1560 
(N.D. Cal 1993), reconsid, granted, 949 F.Supp. 1415 (N.D. Cal. 
1996), as well as participating as amicus curiae in Title EX cases, 
such as Gebser v. Lago Vista, Indep. Sch. Dist. 118 S. Ct. 1989 
(1998).

Since 1899, the  National Association fo r  Girls & Women in  
Sport (NAGWS)  has championed equal funding, quality and 
respect for women’s sports programs. NAGWS is an 
organization of over 5,000 professional educators whose mission 
is to  promote and advocate for increased opportunities in



A-4

participation and leadership for girls and women in sport.

The National Association o f Social Workers (NASW)  is a 
professional membership organization comprised of more than 
155,000 social workers with chapters in every state, the District 
of Columbia, New York City, Puerto Rico and the Virgin Islands, 
and an international chapter in Europe. Created in 1955 by the 
m erger of seven predecessor social work organizations, the 
NASW has as its purpose to develop and disseminate high 
standards of practice while strengthening and unifying the social 
work profession as a  whole. In furtherance of its purposes, the 
NASW promulgates professional standards and criteria 
including Standards fo r  the Practice o f  Clinical Social Work 
and Guidelines fo r  Clinical Social Work Supervision, 
conducts research, publishes studies of interest to the 
profession, provides continuing education and enforces the 
NASW Code o f Ethics. The NASW also sponsors a  voluntary 
credentialing program to enhance the professional standing of 
social workers including the NASW Diplomate in Clinical Social 
Work and the Qualified Clinical Social Worker credentials.

National Council o f  Jewish Women, Inc. (NCJW)  is a 
volunteer organization, inspired by Jewish values, tha t works 
through a  program of research, education, advocacy and 
community service to improve the quality of life for women, 
children and families and strives to ensure individual rights and 
freedom s for all. Founded in 1893, the National Council of 
Jewish Women has 90,000 members in over 500 communities 
nationwide. Given NCJW’s early and active involvement in 
passage of the Title IX program and NCJW’s National 
Resolutions, which support “the enactment and enforcement of 
laws and regulations which protect civil rights and individual 
liberties for all,” we join this brief.

National Education Association (NEAJ is a nationwide labor 
organization with approximately 2.2 million members, the  vast 
majority of whom are employed by public school districts, 
colleges and universities. NEA is strongly committed to ending 
gender discrimination by educational institutions and, to this



A-5

end, firmly supports the vigorous enforcement of Title IX.

National Partnership fo r  Women & Families, founded in 1971, 
formerly the Women’s Legal Defense Fund, is a national 
advocacy organization that develops and promotes public 
policies to help women achieve equal opportunity, quality 
health care, and economic security for themselves and their 
families. The National Partnership has a longstanding 
commitment to equal opportunity for women and to monitoring 
the enforcement of antidiscrimination laws. The National 
Partnership has devoted significant resources to combating sex 
and race discrimination in education and has filed numerous 
briefs amicus curiae in the United States Supreme Court to 
advance women’s opportunities in education.

NAACP Legal Defense and Educational Fund, Inc. (LDF) is a 
nonprofit organization committed to enforcing legal protections 
against racial discrimination and securing the constitutional and 
civil rights of African-Americans. LDF has developed an 
expertise in civil rights litigation through the many cases in 
which it has participated. See NAACP v. Button, 371 U.S. 415, 
422 (1963) (describing Legal Defense Fund as a “firm’... which 
has a  corporate reputation for expertness in presenting and 
arguing the difficult questions of law that frequently arise in civil 
rights litigation”). LDF historically has had and continues to 
have a  major role in challenging discrimination and segregation 
in education, representing parties or participating as amicus 
curiae  in numerous education cases before the United States 
Supreme Court. See, e.g., Bazemore v. Friday, 478 U.S. 385 
(1986); Swann v. Charlotte-Mecklenberg Bd. O f Educ., 402 U.S. 
1 (1971); Green v. County School Board o f New Kent County, 
391 U.S. 430 (1968); Broum v. Bd. O f Educ., 347 U.S. 483 (1954); 
Sweatt v. Painter, 339 U.S. 637 (1950).

NOW Legal Defense and Education Fund (NOW LDEF) is a 
leading national nonprofit civil rights organization that performs 
a  broad range of legal and educational services in support of 
women’s efforts to eliminate sex-based discrimination and 
secure equal rights. NOW LDEF was founded in 1970 by leaders



A-6

of the National Organization for Women. A major goal of NOW 
LDEF is the elimination of barriers that deny women and girls 
equal opportunity, including sex discrimination in intercollegiate 
athletic programs. For years, NOW LDEF has fought for 
educational equity for girls and the full enforcement of Title IX. 
NOW LDEF has appeared as amicus in numerous cases 
concerning girls’ rights to be free from sex discrimination in 
education programs under Title IX, and joins this case because 
of its importance to  securing equal opportunity in education.

People fo r  the American Way Foundation (People For)  is a 
nonpartisan citizens’ organization established to prom ote and 
protect civil and constitutional rights. Founded in 1980 by a 
group of religious, civic, and educational leaders devoted to our 
nation’s heritage of tolerance, pluralism, and liberty, People For 
has over 300,000 members nationwide. People For has been 
actively involved in efforts to combat discrimination and 
prom ote equal rights, including efforts to protect the  rights of 
women. People For regularly supports the enactment of civil 
rights legislation, participates in civil rights litigation, and 
conducts programs and studies directed at reducing problems 
of bias, injustice, and discrimination. The instant case is of 
particular importance in order to vindicate the fundamental 
principle tha t civil rights laws like Title EX should apply to all 
direct and indirect recipients of federal funding in order to fully 
and effectively achieve the laws’ objective of combating 
discrimination.

Women Employed is a national association of working women 
based in Chicago, with a membership of 2000. Since 1973, the 
organization has assisted thousands of working women with 
problems of sex discrimination and harassment, monitored the 
performance of equal opportunity enforcement agencies, and 
developed specific, detailed proposals for improving 
enforcement efforts. Women Employed strongly believes tha t 
one of the most fundamental guarantees tha t women and girls 
are entitled to under Title IX is equal opportunity, which 
includes the enjoyment of equal rights and treatm ent as male 
athletes. Women Employed believes that women are entitled



A-7

to the same rights and opportunities as men, w hether their 
interests he in sports, arts, or business.

Women’s Law Project (WLP) is a non-profit public interest legal 
center located in Philadelphia, PA. Founded in 1974, the WLP 
works to abolish discrimination and injustice and to advance the 
legal and economic status of women and their families through 
litigation, public policy development, public education and 
individual counseling. The WLP has a strong interest in the 
eradication of discrimination against women and girls in 
athletics and the availability of strong and effective rem edies 
under Title IX of the Education Amendments of 1972. The WLP 
has worked throughout its twenty-four year history to 
eliminate sex discrimination in athletics and education, 
representing student athletes, coaches, and other players in the 
athletic arena in their efforts to achieve equal treatm ent and 
equal opportunity. The application of Title IX to the NCAA and 
to other athletic associations which operate and control the 
athletic programs of federally funded school programs is 
essential to the ultimate elimination of gender discriminatory 
practices in these programs.

The Women’s Sports Foundation is a non-profit educational 
organization dedicated to expanding opportunities for girls and 
women to participate in sports and fitness and creating and 
educated public that supports gender equity in sports. The 
Foundation distributes over $1 million per year in grants and 
scholarships to female athletes and girls’ sports programs, 
answers over 100,000 inquiries a  year concerning Title IX and 
other women’s sports related questions, and administers award 
programs to increase public awareness about the achievements 
of women in sports. The Foundation is interested in this case 
because of its important implications for gender equity in 
sports.

The YWCA o f the USA is the oldest women’s membership 
organization in the nation. Founded in 1858, it currently serves 
over two million girls, women and their families through over 
350 YWCAs in 4,000 locations across the country. Strengthened



A-8

by diversity, the Association draws together members who 
strive to create opportunities for women’s growth leadership 
and pow er in order to attain a  common vision; peace, justice, 
freedom  and dignity for all people. The YWCA of the  USA 
supports this brief because it strongly believes in the benefits 
tha t sports offer young women, and because of its conviction 
that young women are equally deserving of opportunities to 
benefit from athletic activities.



*