Robert L. Parish et al., Plaintiffs-appellants, v. National Collegiate Athletic Association et al., Defendants-appellees, 506 F.2d 1028 (5th Cir. 1975)

Appellants, five college basketball players, challenge the constitutionality of the National Collegiate Athletic Association's so-called 1.600 rule. This rule required that NCAA-affiliated schools grant athletic scholarships, first year eligibility for participation in athletics, and other benefits only to applicants who could 'predict'-- on the basis of their high school grade point average or class rank and their grade on one of two standardized achievement tests-- a minimum 1.600 grade point average during their first year in college.¹  The NCAA adopted the 1.600 rule as a means of insuring that the athlete be an integral part of the student body and to maintain intercollegiate athletics as an integral part of the education program.

Appellants attend Centenary College, a small private college situated in Shreveport, Louisiana.²  They were told by Centenary's athletic department that they had been recruited by Centenary in conformance with the NCAA's rules. In fact, however, the department almost certainly knew that appellants did not qualify under the 1.600 rule. After warning Centenary, both before and after the college admitted appellants on athletic scholarships, that the young men could not be granted athletic eligibility because of the rule, the NCAA applied sanctions against Centenary.³  These sanctions mean that unless the school declares appellants ineligible for basketball, Centenary cannot play in any NCAA sponsored tournaments or in any NCAA sanctioned televised games. Centenary refused to declare appellants ineligible; consequently they all continue to participate in regular season athletics.

Believing it likely in 1973 that Centenary's basketball team would be invited to a postseason tournament, however, appellants brought this action claiming that the NCAA's actions denied them due process and equal protection of the laws. They requested a permanent injunction forbidding the NCAA to enforce its sanctions against Centenary. The district judge granted a temporary restraining order and extended it once, but appellants permitted it to dissolve when Centenary's team received no postseason invitations. The district court later denied the NCAA's motion to dismiss,⁴  but after a hearing rendered judgment in its favor on the merits.⁵  We affirm. u$k13I.

At the outset we must determine whether appellants can surmount the difficult jurisdictional barrier arguably present here. That is, we must decide whether the actions of the NCAA were taken 'under color of state law' within the meaning of 42 U.S.C. 1983 so as to confer jurisdiction on the district court under 28 U.S.C. 1343(3).⁶  With only one exception, every federal court that has considered this question has answered it affirmatively.⁷  However, in McDonald v. N.C.A.A., C.D. Cal. 1974, 370 F. Supp. 625, a district court in California expressly addressed itself to the reasoning of the district court in this case and concluded that the activities of the NCAA did not constitute state action. Specifically, the court in McDonald rejected any reliance on the cases finding state action in the activities of statewide high school athletic associations:⁸ 

No charge is made here that the NCAA is being used by any state-- or group of states, for that matter-- to undertake racial discrimination in college athletics . . .. Unlike the association in St. Augustine (Louisiana High School Athletic Association v. St. Augustine High School, 5 Cir. 1968, 396 F.2d 224), the NCAA has an existence separate and apart from the educational system of any state.

370 F. Supp. at 631. Similarly, the court concluded that a school's voluntary adherence to the NCAA's rules would create the necessary state action only if the school itself could be termed a state instrumentality, for even

voluntary concurrence of a state in a decision of an organization (NCAA) or other body-- not a state, state instrumentality, or sovereign equivalent-- does not make the acts of the organization (NCAA) 'state action' in a constitutional sense.

370 F. Supp. at 631. Nonetheless, despite admitted conceptual difficulties and the initial appeal of McDonald's reasoning,⁹  we believe that the district court in this case correctly concluded that the activities of the NCAA constitute action taken under color of state law.

We see no reason to enumerate again the contacts and the degree of participation of the various states, through their colleges and universities, with the NCAA. Suffice it to say that state-supported educational institutions and their members and officers play a substantial, although admittedly not pervasive, role in the NCAA's program.¹⁰  State participation in or support of nominally private activity is a well recognized basis for a finding of state action. Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45; Smith v. Young Men's Christian Ass'n, 5 Cir. 1972, 462 F.2d 634. Moreover, we cannot ignore the states'-- as well as the federal government's-- traditional interest in all aspects of this country's educational system.¹¹  Organized athletics play a large role in higher education, and improved means of transportation have made it possible for any college, no matter what its location, to compete athletically with other colleges throughout the country. Hence, meaningful regulation of this aspect of education is now beyond the effective reach of any one state. In a real sense, then, the NCAA by taking upon itself the role of coordinator and overseer of college athletics-- in the interest both of the individual student and of the institution he attends-- is performing a traditional governmental function. Cf. Evans v. Newton, 1966,382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373; Terry v. Adams, 1953, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152; Marsh v. Alabama, 1946, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265.

Admittedly, appellants cannot point to any one state or governmental body that controls or directs the NCAA; in this sense the present case is distinguishable from the high school athletic association cases. Nevertheless, it would be strange doctrine indeed to hold that the states could avoid the restrictions placed upon them by the Constitution by banding together to form or to support a 'private' organization to which they have relinquished some portion of their governmental power. Cf. Terry v. Adams, supra. We have little doubt, in light of the national (and even international) scope of collegiate athletics and the traditional governmental concern with the educational system, that were the NCAA to disappear tomorrow, government would soon step in to fill the void. In view of these circumstances we hold that the district court correctly determined that it possessed jurisdiction to hear this suit under 42 U.S.C. 1983 and 28 U.S.C. 1343(3).

As frequently is the case, the merits of the litigation are less troublesome than the jurisdictional question. Appellants challenge the 1.600 rule on both equal protection and due process grounds. We will take up the equal protection claim first.

The district court held that 'obviously, the challenged action by the NCAA is not subject to strict judicial scrutiny.' 361 F. Supp. at 1226. We agree. Strict scrutiny is required only when the challenged classification either impinges upon a fundamental right or discriminates against a 'suspect class.' San Antonio Ind. School Dist. v. Rodriguez, 1973, 411 U.S. 1, 17, 93 S. Ct. 1278, 36 L. Ed. 2d 16. Appellants concede that no fundamental right is involved here, but they do claim that the 1.600 rule impermissibly discriminates against some vaguely defined suspect class. Examination of appellants' briefs and their contentions at oral argument suggests at least seven potential suspect classes: (1) blacks; (2) cultural minorities; (3) the educationally deprived; (4) persons of less than average intelligence; (5) late achieving students; (6) student athletes; and (7) impecunious student athletes. Except for (1)¹²  and perhaps (4),¹³  these suggested classes are neither traditionally suspect, nor do they possess the features usually associated with 'suspectness.' Moreover, with regard to all of them appellants' case labored under the same defect, i.e. a total lack of probative evidence as to actual discrimination. True, appellants offered the testimony of two witnesses to the effect that the achievement tests used to predict probable success during the first year in college were culturally biased in that they were geared for white middle class students.¹⁴  Conclusory allegations however, are no substitute for a factual showing of actual discriminatory intent or effect. Murray v. West Baton Rouge Parish School Board, 5 Cir. 1973, 472 F.2d 438, 444; cf. Baker v. Columbus Municipal Separate School Dist., 5 Cir. 1972, 462 F.2d 1112. Appellants having failed their burden of proving discrimination against some clearly defined suspect group, we decline 'to extend . . . (the) most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class' whose members share only their failure to qualify under the NCAA's 1.600 rule. See San Antonio Ind. School Dist. v. Rodriguez, supra, 411 U.S. at 28, 93 S. Ct. at 1294, 36 L. Ed. 2d at 40.

It follows that appellants are entitled to have the NCAA's challenged classification tested only under the traditional 'minimum rationality' standard. Using this test a classification will be upheld if it bears some rational relationship to legitimate state purposes. We agree with the district court's finding that measured by this standard the 1.600 rule passes constitutional muster.¹⁵  Accord, Associated Students, Inc. v. N.C.A.A., supra; Howard University v. N.C.A.A., supra; cf. Schubert v. N.C.A.A., supra. See also Comment, Judicial Review of Disputes Between Athletes and the National Collegiate Athletic Association, 24 Stan. L. Rev. 903, 926 (1972).

Appellants' due process contentions are likewise unavailing. As the district court noted, we have held that 'the privilege of participating in interscholastic athletics must be deemed to fall . . . outside the protection of due process.' Mitchell v. Louisiana High School Athletic Association, 5 Cir. 1970, 430 F.2d 1155, 1158. In this case, however, we need not go that far. For appellants here have lost only the opportunity to play in NCAA sponsored tournaments and televised games.¹⁶  Whatever the status of the alleged right to participate in interscholastic athletics, in the present circumstances we discern no 'property' or 'liberty' interest of which appellants have been deprived because of the NCAA's enforcement of its 1.600 rule against Centenary.¹⁷  See Board of Regents v. Roth, 1972, 408 U.S. 564, 569-578, 92 S. Ct. 2701, 33 L. Ed. 2d 548. Accordingly, the due process clause affords them no protection.

Affirmed.