National Collegiate Athletics Association (NCAA) v. R.M. Smith
Decided on Feb. 23, 1999; 525 US 459



A. Issues Discussed: Civil Rights (gender), 14th Amendment

B. Legal Question Presented:

Because the National Collegiate Athletic Association's receives dues from federally funded member institutions is it subject to Title IX of the Education Amendments of 1972?


A. Background:

Respondent Renee M. Smith sought to play intercollegiate athletics at a member university belonging to the National Collegiate Athletic Association (NCAA) while pursuing her graduate degree. The Post baccalaureate Bylaw of the NCAA states that a graduate student may only participate in intercollegiate sports at the same institution where they completed their undergraduate degree. Smith sought to play volleyball at two separate graduate schools but was denied eligibility by the NCAA. She filed suit alleging that the NCAA's refusal to waive the bylaw was denying her from participating in sports on the basis of her gender, which was in violation of Title IX of the Education Amendments of 1972. Title IX prohibits sexual discrimination in any education program or activity receiving Federal financial assistance.

Since many of the member institutions of the NCAA are public universities that receive federal funding, and because the institutions pay membership dues in order to participate in the NCAA, Smith argued that the NCAA was a recipient of federal funds and thus not in compliance with Title IX. The NCAA sought to disprove that they were recipients of federal funding claiming that no direct link between the funding could be established. The District Court dismissed the suit.  The Court of Appeals reversed the District Court's ruling by concluding that the NCAA's receipt of dues from federally funded member institutions was sufficient to bring it under the scope of Title IX as a recipient of federal funds. The US Supreme Court granted certiorari upon the NCAA's appeal.

B. Counsel of Record:
Opposing Side
Carter G. Phillips argued the cause for respondent. With him on the brief was Virginia A. Seitz. John G. Roberts, Jr., argued the cause for the petitioners. With him on the briefs were Martin Michaelson, Gregory G. Garre, John J. Kitchin, Robert W McKinley, and Elsa Kircher Cole.
C. The Arguments:
Opposing Side
"Title IX's plain language, implementing regulations, and amendments enacted by the CRRA [Civil Rights Restoration Act of 1987] support coverage of the NCAA. Title IX 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...

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 that the NCAA is covered by Title IX. The NCAA is an entity created by two or more covered entities (the member 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 whether the operations receive federal funds, and regardless of whether the 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...

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 IX. The NCAA's dominant role in intercollegiate athletics supports its coverage under Title IX."

-ACLU Amicus Brief in NCAA v. R. M. Smith, Dec. 8, 1998
Opposing Side
The American Civil Liberties Union filed as amicus urging affirmance.

Also, briefs of amici curiae urging affirmance were filed for Michael Bowers et al. by Barbara E. Ransom; for Trial Lawyers for Public Justice, P. C., et al. by Adele P. Kimmel, Arthur H. Bryant, and J. Richard Cohen; and for the National Women's Law Center et al. by Marcia D. Greenberger, Leslie T. Annexstein, Lois G. Williams, and Dina R. Lassow.
Richard O. Duvall, Robin L. Rosenberg, David A. Vaughan, and Sheldon Elliot Steinbach filed a brief for the American Council on Education et al. as amici curiae urging reversal.

"The Third Circuit's decision is inconsistent with the governing statute, regulation, and this Court's decisions. Title IX defines 'program or activity' to include 'all of the operations of... a... postsecondary institution... any part of which is extended Federal financial assistance... and provides institution-wide coverage for entities 'principally engaged in the business of providing education' services... and for entities created by two or more covered entities.  Thus, if any part of the NCAA received federal financial assistance, all NCAA operations would be subject to Title IX. This Court has twice considered when an entity qualifies as a recipient of federal financial assistance. In Grove City College v. Bell the Court held that a college qualifies as a recipient when it enrolls students who receive federal funds earmarked for educational expenses. The Court found 'no hint' that Title IX distinguishes between direct institutional assistance and aid received by a school indirectly through its students. Later, in Department of Transporpation v. Paralyzed Veterans of America the Court held that [Section] 504 of the Rehabilitation Act of 1973 - which prohibits discrimination based on disability in substantially the same terms that Title IX uses to prohibit sex discrimination - does not apply to commercial airlines by virtue of the Government's program of financial assistance to airports...

Entities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not. The Third Circuit's decision is inconsistent with this precedent. Unlike the earmarked student aid in Grove City , there is no allegation that NCAA members paid their dues with federal funds earmarked for that purpose. While the Third Circuit dispositively and, this Court holds, erroneously relied on the NCAA's receipt of dues from its members, the Third Circuit also noted that the relationship between the NCAA and its members is qualitatively different from that between the airlines and airport operators at issue in Paralyzed Veterans - the NCAA is created by, and composed of, schools that receive federal funds, and the NCAA governs its members with respect to athletic rules. These distinctions do not bear on the narrow question here decided: An entity that receives dues from recipients of federal funds does not thereby become a recipient itself.

The Court does not address the alternative grounds urged by respondent and the United States for bringing the NCAA under Title IX: (1) that the NCAA directly and indirectly receives federal financial assistance through the National Youth Sports Program; and (2) that, when a recipient cedes controlling authority over a federally funded program to another entity, the controlling entity is covered by Title IX regardless whether it is itself a recipient. Those issues were not decided... their resolution in the first instance is left to the lower courts on remand."

Justice Vote: 0 Pro vs. 9 Con

  • Ginsburg, R.  Con  (Wrote majority opinion)
  • Rehnquist, W.  Con  (Joined majority opinion)
  • Stevens, J.  Con  (Joined majority opinion)
  • O'Connor, S.  Con  (Joined majority opinion)
  • Scalia, A.  Con  (Joined majority opinion)
  • Kennedy, A.  Con  (Joined majority opinion)
  • Souter, D.  Con  (Joined majority opinion)
  • Thomas, C.  Con  (Joined majority opinion)
  • Breyer, S.  Con  (Joined majority opinion)

The ACLU filed as amicus urging affirmance. In a unanimous 9-0 decision, the US Supreme Court reversed the Third Circuit appellate court's decision, giving the ACLU an apparent loss.