A group of Black Division I athletes who competed for HBCU schools last year are accused of being victims of racial bias by the NCAA’s method of intellectual protection in a federal complaint filed by Grambling women’s hockey player Brenda McKinney against the NCAA.
According to the data presented in McKinney’s request for class certification, HBCU institutions are much more likely than non-HBCU institutions to experience postseason suspensions related to the NCAA’s Academic Performance Program ( APP ).
In past court papers, the NCAA has strongly objected to the concept offered by McKinney.
A essential component of McKinney’s protection is biased purpose, which is addressed in one line of defense by Section 1981 of the Civil Rights Act of 1866. The NCAA claims that there is insufficient evidence to support disparate impact, in part because claims that the NCAA’s claims about different impacts on HBCU versus non-HBCU teams, both of which the NCAA points up are ethnically diverse,” say nothing” about how the NCAA handled a player who would fit into McKinney’s proposed class.

Additionally, the NCAA has emphasized that it is difficult to attribute competition as the “but-for” cause of a person being denied postseason access. A rejection, the NCAA points out, may indicate a “multitude of non- discriminatory factors” that include “institutional challenges, tool constraints, suspensions and expulsions, injuries, personal choices, illnesses, poor team performance, individual enrollment issues, the presence of postseason sing for specific sports, training decisions ]and ] enrollment status”.
In keeping with the NCAA’s stated goal, which was created by a number of stakeholders in higher education and approved by the NCAA in 2004, is to ensure that all college athletes receive a worthwhile education before graduating.
The APP penalizes programs that do n’t live up to the standards set by its two main benchmarks, the Graduation Success Rate ( GSR ) and Academic Progress Rate ( APR ) ).
The APR is based on a team-based formula that determines the award of “retention” points for each scholarship athlete who enrolls in full-time study and “eligibility” points if those same students are academically qualified to compete. The score of a team is determined by multiplying the total points earned by the possible points that the team could have earned by one thousand. The final APR score is determined based on four academic years of data.
Programs that fail to meet a 930 multi- year APR score are then subject to punitive measures, typically in the form of postseason ineligibility.
Nearly four percent of HBCU teams earned post-season bans over the course of nine consecutive academic years, according to the plaintiff’s expert witness, compared to less than tenth of a tenth of a percent of non-HBCU teams.
According to McKinney, the NCAA’s one-size-fits-all enforcement system is incompatible with its own bylaws, which mandate that its members ‘ athlete admissions and academic standards be” consistent with the standards adopted by the institution for the student body in general.” Additionally, McKinney claims that the APP undermines the legally protected mission of HBCUs to offer education to all Black students, regardless of whether they are viewed as high-risk. The lawsuit cites evidence from discovery to claim that the NCAA ignored these contradictions, despite concerns being raised internally.

In 2011, Jennifer Strawley, then the NCAA’s director of academic and membership affairs, sent an email to colleagues proposing that HBCU schools, which “may not have the resources to allocate to improving academic performance and have unique academic missions”, be subject to a “new benchmark”.
In response, Tom Paskus, the NCAA’s managing director of research, advised that,” Politically, perhaps]it is ] better to keep phrasing this as a resource issue in the public forum than as an HBCU issue … Internally, we can certainly recognize that the HBCUs are struggling to enact necessary changes to hit those academic benchmarks”.
Despite this apparent recognition of a problem, the lawsuit alleges, the NCAA did nothing to address it. ( Strawley, now the athletic director at Elon University, did not respond to an email seeking comment. )
” We are not trying to prevent the NCAA from monitoring academic performance”, Elizabeth Fegan, McKinney’s attorney, told Sportico in a telephone interview. ” We want them to be educated and successful. However, the NCAA made the promise in its bylaws to bind those rules to school student bodies, which the NCAA has broken.
McKinney’s case, which was filed in August 2023, recapitulates the same arguments and expert testimony made in a 2020 racial discrimination lawsuit filed by Troyce Manassa, a former men’s basketball player at Savannah State in Georgia. The school was banned from postseason play in 2016- 17, Manassa’s final season of eligibility.
Manassa, who was also represented by Fegan, filed his motion for class certification in March 2023. The NCAA moved for summary judgment three months later, arguing, among other things, that Manassa’s claims were outside the four-year statute of limitations and that he lacked standing to represent an injunctive relief class because he was no longer a college athlete. The court rejected Fegan’s last-ditch attempt to appoint McKinney as the class representative in that action, granted the NCAA’s summary judgment, and dismissed the case.
As with Manassa et al. v. NCAA, McKinney’s lawsuit is being tried before the U. S. District Court in Indianapolis, where the NCAA is headquartered.
For various reasons than Manassa, the NCAA contends that McKinney is unable to pursue individual and class injunctive relief claims. There is” no indication that the team is at any imminent risk of incurring a postseason penalty ( or any APP penalty )” for the duration of McKinney’s collegiate career because Grambling’s women’s basketball team has never been subject to an APP-related postseason ban, the NCAA wrote to the court in October.
In accordance with that theory, the NCAA contends that a claim cannot be made based on the possibility of “future injury in the form of postseason penalties.” The NCAA contends that a” too speculative and conjectural to confer standing” an injury that has n’t occurred or might not occur, which is even more so given that the Grambling women’s basketball team “has never experienced a loss of access to postseason competition.”
Fegan conceded its difficulties in ultimately winning, but he still had faith that McKinney’s action would surpass Manassa’s premature end.
” It is not going to get dismissed on the merits”, Fegan predicted. There is “more than enough evidence to be presented to a jury.” I have no worries about that. I will tell you that our weak spot is the fact]HBCU] students continue to graduate. So, will this court continue to “wait it out”?
Fegan acknowledged the serious risks the player has had because of it and credited McKinney, who later transferred to Grambling from Chipola College in Florida, for her willingness to join the lawsuit.
” It is really hard to be a student- athlete bringing these cases”, Fegan said. They “expose the frustration of their coaching staff to their athletic careers.” We have talked to HBCU presidents who are interested ]in helping ] but who ca n’t participate publicly because of fear of retribution from the NCAA”.
After U.S. Magistrate Judge Mark J. Dinsmore denied the NCAA’s request for it to be postponed, a settlement conference in the lawsuit is scheduled for July 16. The association is scheduled to depose McKinney in Washington, D. C., on July 17.
” While Defendant’s failure to have completed the Plaintiff’s deposition prior to the scheduled date of the settlement conference may well be a failure to properly plan its necessary discovery”, Dinsmore wrote in his order this week, “it is neither good cause, nor an exigent circumstance”.