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Eeyore
03-12-2015, 06:38 PM
I love the 'you can have your opinion, but your wrong' position. And I still disagree.

NCAA vs. Smith tested only that the NCAA did not receive federal funds.

"The Court of Appeals for the Third Circuit held that the NCAAs receipt of dues from federally funded member institutions would suffice to bring the Association within the scope of Title IX. We reject that determination as inconsistent with the governing statute, regulation, and this Courts decisions."

It did not test whether the NCAA was held to title ix under law. The decision goes on...

"Dues payments from recipients of federal funds, we hold, do not suffice to render the dues recipient subject to Title IX. We do not address alternative grounds, urged by respondent and the United States as amicus curiae, in support of Title IXs application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."

Hence a 9-0 decision which appears to go against the law itself...as it does not. Title ix is the law of the land.

This is so clueless that I'm planning to ask Grant whether I'm being trolled. You quote the part where the Court held 9-0 that the NCAA is not within the the scope of Title IX and then say, "It did not test whether the NCAA was held to title ix under law." Yes, it did, in the paragraph you quoted.

And you do realize that the Supreme Court is authorized to determine what the law means and so that, from a legal perspective, a 9-0 Supreme Court decision cannot go against the law itself, right?

KTDC
03-12-2015, 06:57 PM
I think the 9-0 ruling specifically addressed that because the schools pay dues to the NCAA does not mean that the NCAA is subject to Title IX. I believe the court meant it to narrowly cover that aspect.

So under any means that have been tested, the NCAA is not subject to Title IX. But my understanding is the narrowness of the ruling leaves open the possibility for Gloria Allred to discover new ways to challenge that. I assume the NCAA operates under the assumption they are not within the scope of Title IX but will be aware the possibility that new challenges to their exclusion are possible and under some circumstances they could be vulnerable.

Eeyore
03-12-2015, 07:31 PM
Receiving federal funds is a requirement to be subject to Title IX. It takes receiving federal money AND being an educational institution. Unless a plaintiff can come up with some other method by which the NCAA is considered to be federally funded, that ruling is both narrow and says that the NCAA is not subject to Title IX.

5mn_Major
03-12-2015, 08:32 PM
I think the 9-0 ruling specifically addressed that because the schools pay dues to the NCAA does not mean that the NCAA is subject to Title IX. I believe the court meant it to narrowly cover that aspect.

That's the crux of it...they explicitly stated that they were not deciding on whether the NCAA should or should not be covered by title ix:

"We do not address alternative grounds in support of Title IXs application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."

And as such, specifically leave the legislation alone. NCAA vs. Smith is irrelevant.


So under any means that have been tested, the NCAA is not subject to Title IX. But my understanding is the narrowness of the ruling leaves open the possibility for Gloria Allred to discover new ways to challenge that. I assume the NCAA operates under the assumption they are not within the scope of Title IX but will be aware the possibility that new challenges to their exclusion are possible and under some circumstances they could be vulnerable.

There's lots of money available to the folks that could crack title ix and nobody has tested it because its rock solid.

And I would assume the NCAA knows that they are well within the scope of title ix. Their actions show that quite clearly. No lawyer worth a dime would encourage them to admit they are in scope though. American universities can't simply skirt major US legislation by having any third party break the law for them. If folks disagree, show me a similar case of breaking the law that is allowed.

KTDC
03-12-2015, 08:39 PM
That's the crux of it...they explicitly stated that they were not deciding on whether the NCAA should or should not be covered by title ix:

"We do not address alternative grounds in support of Title IXs application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."

And as such, specifically leave the legislation alone. NCAA vs. Smith is irrelevant.



There's lots of money available to the folks that could crack title ix and nobody has tested it because its rock solid.

And I would assume the NCAA knows that they are well within the scope of title ix. Their actions show that quite clearly. No lawyer worth a dime would encourage them to admit they are in scope though. American universities can't simply skirt major US legislation by having any third party break the law for them. If folks disagree, show me a similar case of breaking the law that is allowed.

I'm not following you. The only aspect the court ruled on stated that the NCAA was not subject to Title IX. But that doesn't mean the schools aren't still subject.

Eeyore
03-13-2015, 12:11 AM
That's the crux of it...they explicitly stated that they were not deciding on whether the NCAA should or should not be covered by title ix:

"We do not address alternative grounds in support of Title IX’s application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."

And as such, specifically leave the legislation alone. NCAA vs. Smith is irrelevant.

No, it's not irrelevant. It is a specific ruling that Title IX does not apply to the NCAA itself under a hypothesis that the plaintiffs, presumably, thought was their best argument. That's pretty much the opposite of "irrelevant."

Based upon that ruling, if you want to argue that the NCAA is covered by Title IX, then you need to come up with some other way in which the NCAA is the recipient of federal funds. The Court didn't rule on any others because the plaintiff only alluded to the possibility of two other hypotheses and never actually developed them in any form that would constitute a legal argument. In fact, the plaintiff never did develop them before the lower courts.

However, we don't have to speculate as to what a court would rule on those two theories, because they have been litigated. The case Cureton v. NCAA didn't make it to the Supreme Court, but it was ruled on by the 3rd Circuit. (Which, as an interesting sidenote, is the same circuit that ruled for the plaintiff in Smith.) This was a Title VI case rather than Title IX and the rules for Title VI are different than for Title IX, so a part of it does not hold directly but that doesn't actually matter, as I'll get to. The 3rd Circuit ruled that neither possible method for claiming that the NCAA is a recipient of federal funds holds for purposes of Title VI.

One of those ideas was that, because the NCAA controls intercollegiate sports, it therefore inherits the Title VI restrictions of the member schools. The 3rd Circuit held that it does not. In language that makes it plain that the same ruling would apply to Title IX. The NCAA may set the rules but the member schools still control the choices. There's a legalistic definition of what constitutes control or autonomy here, so just approaching the question in what you think might be a common sense way isn't sufficient. So this hypotheses was rejected.

The second hypothesis was that, because the National Youth Sports Program received federal funds and the NYSP was controlled by the NCAA, the NCAA was therefore a recipient of federal money. The 3rd Circuit rejected this argument on the grounds that the regulations for Title VI specified that it was the individual program that received the grant that was covered by Title VI, not the entire institution that controlled the program. This is a difference between Title VI and Title IX, which explicitly states that the entire institution is covered. (A quick check suggests that the rules for Title VI have been changed since then and now apply to the entire institution.) So the receipt of money by the NYSP could have been the uncertainty that you are looking for, though it would still need to be litigated. However, that question is entirely moot because Congress hasn't appropriated any funds for the NYSP since 2005 and so the NCAA could no longer be considered a recipient of federal funds on these grounds.

So the hypotheses that you are saying the Court left open have either been litigated and found in the NCAA's favor or are based upon factual conditions that no longer exist. So far as I can tell, every significant hypotheses for why the NCAA should be considered a recipient of federal funds has failed. If you can come up with some other approach that has validity I'll be happy to listen but just throwing wild speculation at the wall to see if anything sticks isn't persuasive. Simply saying that the court has said that it is only ruling on the specific issues before it doesn't count; that's all that a court ever does. They're almost never going to say, "There is no possible theory that someone could raise that would cause us to hold differently." They'll only rule on the arguments actually made. But if something keeps getting rejected on every idea that someone does raise in court, it's hard to make much of an argument that the something is true.

Come up with some actual legal reasoning; I'm done doing your research for you.


There's lots of money available to the folks that could crack title ix and nobody has tested it because its rock solid.


And I would assume the NCAA knows that they are well within the scope of title ix. Their actions show that quite clearly. No lawyer worth a dime would encourage them to admit they are in scope though. American universities can't simply skirt major US legislation by having any third party break the law for them. If folks disagree, show me a similar case of breaking the law that is allowed.

Can you point to any examples of the NCAA, and not its member schools, behaving as if they are within the scope of Title IX? The biggest reason no lawyer would advise the NCAA to admit that it is within the scope is that courts have consistently ruled that it is not. If you disagree with me, point to a single instance of a court holding otherwise that was not overturned on appeal. Your personal idea of what you think should be illegal is irrelevant given that we have actual courts that have ruled.

dave1381
03-13-2015, 04:53 AM
Is there a reason why we care if the NCAA needs to be Title IX compliant? Just wondering.

Doesn't the NCAA more or less act as if they were compliant anyway, even if the law does not apply? A large part of the bargain of the public tolerating the NCAA's collection of monopsony rents on young football and basketball players is that they cross-subsidize the championships of all other sports for all divisions and genders. So it seems to me that corporate social responsibility can substitute just fine for law in this case.

ne7minder
03-13-2015, 05:21 AM
Is there a reason why we care if the NCAA needs to be Title IX compliant? Just wondering.

Doesn't the NCAA more or less act as if they were compliant anyway, even if the law does not apply? A large part of the bargain of the public tolerating the NCAA's collection of monopsony rents on young football and basketball players is that they cross-subsidize the championships of all other sports for all divisions and genders. So it seems to me that corporate social responsibility can substitute just fine for law in this case.

I believe some people think if the NCAA had to be iX compliant they would have to spend the money to treat all championship tourneys like they do basketball & men's hockey (no consideration for travel costs so full seeding with no fudging to avoid airfare & hotel).

From what I see NCAA acts as if male & female athletes are equal, it does not treat them differently. It does treat sports differently though. The sports that make money (men's & womens bball and Men's hockey and football) get travel as needed to seed everything else gets cost factored into the selection process for post-season. NCAA is, as it always had been about the benjies - N¢$$.

Eeyore
03-13-2015, 07:05 AM
Given the origin of the discussion, I think ne7minder has it right; some people think they've found the magic bullet that, if someone would just seize this discovery they've made and sue the NCAA, surely the courts would require them to treat the women's ice hockey tournament in the same way they do men's ice hockey, or even, maybe basketball. No more decisions being made on the basis of travel distance, especially. There are a number of reasons why this is incorrect, many of which require actually reading the text of the law, the regs written to implement the law, and the court decisions interpreting those regs in order to to see why they are incorrect. If you're just sitting at home spitballing based upon your impression of the law but you haven't actually researched those things, the chances of you coming up with a valid chain of reasoning as to why everyone has been getting it wrong for a couple of decades are functionally equal to zero.

5mn_Major
03-13-2015, 07:07 AM
No, it's not irrelevant. It is a specific ruling that Title IX does not apply to the NCAA itself under a hypothesis that the plaintiffs, presumably, thought was their best argument. That's pretty much the opposite of "irrelevant."

Just because the case was tested under one hypothesis...that means that its the only test? Sorry, no. It didn't test other hypotheses...and neither have any other cases. That's why supreme court specifically stated that the decision did not determine the application of title ix to the NCAA.


The only aspect the court ruled on stated that the NCAA was not subject to Title IX. But that doesn't mean the schools aren't still subject.

Sorry but not true. SCOTUS did not rule that the NCAA was not subject to Title ix. They ruled that NCAA was not subject to Title ix as a result of funding (and so the grounds of the case were undermined...not the application of the law itself). As a matter of fact, they specifically said that they were not ruling on title ix's application to the NCAA. How much clearer does it need to be?

"We do not address alternative grounds in support of Title IXs application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."

I'm not going to keep talking in circles on this when the SCOTUS clearly said they did not decide the matter and you two say they did.

Eeyore
03-13-2015, 07:52 AM
Just because the case was tested under one hypothesis...that means that its the only test? Sorry, no. It didn't test other hypotheses...and neither have any other cases. That's why supreme court specifically stated that the decision did not determine the application of title ix to the NCAA.

No. Just, no. You have no idea how to read a court decision or what it means. It may not mean that it's the only test but it does mean that the NCAA is not subject to Title IX under any reasoning that has actually been brought before a judge. And, as I went to some length to explain, the other hypotheses that the Court mentioned have either been rejected or are no longer factually relevant.

Do you have a hypothesis that hasn't been tested?


Sorry but not true. SCOTUS did not rule that the NCAA was not subject to Title ix.

Yes, it did. The plaintiff brought a suit that said that the NCAA should be subject to Title IX. The Supreme Court ruled that the plaintiff was wrong and that it was not subjecting the NCAA to the standards laid out in Title IX. The fact that it left the door open to other hypotheses that had not been raised in the lower courts, which is what the Supreme Court almost always does when it rules, doesn't mean that it didn't declare that Title IX didn't apply.


They ruled that NCAA was not subject to Title ix because of funding (and so the grounds of the case were undermined...not the application of the law itself).

The law is only applied through the regs and through court cases. If the grounds of the case are undermined because the plaintiff's theory of the law is wrong, that implicates the application of the law itself.


As a matter of fact, they specifically said that they were not ruling on title ix's application to the NCAA. How much clearer does it need to be?

Apparently a lot clearer for some people because you are misquoting it. It didn't say that they were not ruling on Title IX's application to the NCAA. In fact, the entire decision is about whether it does. The Court held that the NCAA is not subject to Title IX. It said that there were some other ways to approach the question that might get the Court to change it's mind, but at the end of the day, it told Renee Smith that it did not apply to the NCAA in her case.


"We do not address alternative grounds in support of Title IX’s application to the NCAA in this litigation, and leave resolution of those grounds to the courts below on remand."

Right. And the 3rd Circuit ruled on those alternative grounds and the Supreme Court never granted certiorari tp hear the case. The Supreme Court saying that there are other grounds that could be heard does not, in and of itself, constitute evidence that Title IX applies to the NCAA.


I'm not going to keep talking in circles on this when the SCOTUS clearly said they did not decide the matter and you two say they did.

You don't seem to understand what "decide" means for the Court. They really did decide that Title IX does not apply to the NCAA under all of the theories which had been brought before it. Do you have any evidence at all that it has ever ruled differently?

pokechecker
03-13-2015, 08:02 AM
Is there a reason why we care if the NCAA needs to be Title IX compliant? Just wondering.

Doesn't the NCAA more or less act as if they were compliant anyway, even if the law does not apply? A large part of the bargain of the public tolerating the NCAA's collection of monopsony rents on young football and basketball players is that they cross-subsidize the championships of all other sports for all divisions and genders. So it seems to me that corporate social responsibility can substitute just fine for law in this case.

there was a championship in women's hockey before the NCAA took control, and the key word there is control
was it altuistic or greed (power grab)?
what has the NCAA done to improve upon the championship that existed before?
it may not be a money maker now, but it could be in the future

pokechecker
03-13-2015, 08:06 AM
Given the origin of the discussion, I think ne7minder has it right; some people think they've found the magic bullet that, if someone would just seize this discovery they've made and sue the NCAA, surely the courts would require them to treat the women's ice hockey tournament in the same way they do men's ice hockey, or even, maybe basketball. No more decisions being made on the basis of travel distance, especially. There are a number of reasons why this is incorrect, many of which require actually reading the text of the law, the regs written to implement the law, and the court decisions interpreting those regs in order to to see why they are incorrect. If you're just sitting at home spitballing based upon your impression of the law but you haven't actually researched those things, the chances of you coming up with a valid chain of reasoning as to why everyone has been getting it wrong for a couple of decades are functionally equal to zero.

you never know, 5mn major could be smarter and have a greater legal understanding than all the lawyers:rolleyes:

dave1381
03-13-2015, 08:46 AM
there was a championship in women's hockey before the NCAA took control, and the key word there is control
was it altuistic or greed (power grab)?

Altruism vs. power grab I don't think is a particularly useful dichotomy. (Though in the early days of women's college sports in the 1980s, yeah, it was probably a power grab from the NCAA to take over from the AIAW.) The NCAA acts altruistically to other sports in order to be consistent with its stated mission which helps to maintain its power.

And yes, for sure the NCAA improved the championship since 2000, no question.

OldDave
03-13-2015, 11:17 AM
This has been educational. Thanks to all those who have contributed.

On the original thread, onMAA was curious why I used the phrasing "I read recently that Title IX does not apply to the organization called the NCAA". The context is that my experience in the business world is that corporations split themselves into units based on the various legal requirements they are trying to balance. For example, the U of MN is made up of business units that are either for-profit or not-for-profit, that exist to protect student data (covered by FERPA) differently than patient data (protected by HIPAA and HITECH) and differently than customer data (covered by a plethora of acts, including FCRA, ECPA, FISMA, and even the PATRIOT Act). My thought was that the NCAA may have done something similar in terms of creating separate business units under the umbrella organization where each unit would be governed by different legal requirements. The discussion never went down that path, however, which is probably a good thing.

pokechecker
03-13-2015, 02:07 PM
Altruism vs. power grab I don't think is a particularly useful dichotomy. (Though in the early days of women's college sports in the 1980s, yeah, it was probably a power grab from the NCAA to take over from the AIAW.) The NCAA acts altruistically to other sports in order to be consistent with its stated mission which helps to maintain its power.

And yes, for sure the NCAA improved the championship since 2000, no question.

how so?

oh, you probably are referring to the fact that they televise the final four :rolleyes:
and that attendance has increased so dramatically :rolleyes:

nice to know somebody is impressed with their improvements

dave1381
03-13-2015, 02:47 PM
how so?

oh, you probably are referring to the fact that they televise the final four :rolleyes:
and that attendance has increased so dramatically :rolleyes:

nice to know somebody is impressed with their improvements

Everyone who participated in the 2001 championship was unequivocally pleased with the NCAA's running of the event in comparison with USA hockey. Growth of women's hockey east, the 8 team tournament, none of this happens as soon without the NCAA.