Leveling the playing field: can Title VII work to increase minority coaching hires in NCAA athletics?

JurisdictionUnited States
AuthorMaravent, Bram
Date01 October 2007

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applications with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. (1)

It has been four years since Justice Sandra Day O'Connor referred to Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), in her majority opinion in Grutter v. Bollinger, 539 U.S. 306 (2003), and set a time frame for affirmative action programs to be unnecessary. In some cases, her prediction might be spot on. However, in collegiate athletics the numbers suggest that progress might need a jumpstart. During Super Bowl XLI in Miami, the National Football League and the accompanying media frenzy exalted the progress of minority coaching hires through the success of its "Rooney Rule." The rule, which was instituted in 2003, mandates that any NFL team with a head coaching vacancy is required to interview at least one minority candidate.

The Rooney Rule has resulted in the number of minority head coaches in the league rising from three to seven in 2006 (2) (21.8 percent), while NCAA Football Bowl Subdivision (formerly Division I-A) minority coaches also rose from three to seven at 119 schools by the end of the hiring cycle this past season, equivalent to 5.8 percent. (3) Because the percentage of minority coaches lacks in stark comparison to the NFL, Black College Association Executive Director Floyd Keith recently remarked to Congress that, "[s]adly, if the pace of progress remains the same, it will be approximately 80 years before we reach a percentage [of coaches] that even approximates the number of African-Americans in the general population. This is not only unacceptable, this is unconscionably wrong." (4)

Compare Justice O'Connor's prediction with Floyd Keith's reality, and the need for calls of immediate change become apparent. "I think it's pretty clear that embarrassment hasn't been enough. One of the things we're thinking about is Title VII lawsuits." (5) Dr. Richard Lapchick is the director of the Florida-based Institute for Diversity and Ethics in Sport and is a staunch advocate for the rights of women and minorities in athletics. His words are being echoed throughout collegiate athletics circles, but how viable is such discussion? Could a Title VII lawsuit be successful against a public university? How would such a turn of events play out? This article will attempt to go through the potential litigants, legal theories, and outcomes if a minority candidate were to sue an NCAA member institution under a Title VII theory of racial discrimination.

Title VII Framework in Florida

The Florida Civil Rights Act, F.S. [section] 760.10(1)(a) (2006) (FCRA), would be the proper vehicle for a coach in Florida to bring an action for racial discrimination. The statute, according to the Fourth Circuit, says that "it is unlawful for an employer to 'discharge or fail or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.'" (6) The First Circuit stated that "[t]he F.C.R.A. is modeled after Title VII, so that federal case law regarding Title VII is applicable to construe the Act." (7) The Florida Supreme Court elaborated that "[t]he statute's stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964. Like Title VII, Chapter 760 is remedial and requires a liberal construction to preserve and promote access to the remedy intended by the Legislature." (8)

Since the FCRA is modeled after Title VII, 42 U.S.C. [section] 2000e-2(a)(1), the same analysis will apply for a coach intending to proffer evidence of racial discrimination, presumably under the disparate treatment theory. Under this theory, a coach would demonstrate that he or she was treated differently than others in his or her same position. The standard of proof is a steep one and requires the plaintiff first to pass a four-pronged test in order to establish a prima facie case of discrimination. The standard is governed by the requirements set by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). These claims are evaluated based on circumstantial, rather than direct, evidence of discrimination. (9) Thus, the 11th Circuit, like all the others, uses the following framework when the plaintiff must resort to proving racial discrimination through circumstantial evidence:

Under the McDonnell Douglas framework, a plaintiff establishes a prima facie case of racial discrimination under Title VII by showing: (1) the plaintiff belongs to a racial minority; (2) he [or she] was subjected to adverse job action; (3) his employer treated similarly situated employees of other races more favorably; and (4) he [or she] was qualified to do the job. (10)

If the plaintiff can assert a prima facie case, then the burden shifts to the defendant employer to prove there was a legitimate, nondiscriminatory reason for its action. (11) If the employer properly does this, the plaintiff employee must then demonstrate that the employer's given reason was mere pretext. (12) The employee "may [also] present other evidence to show that discriminatory intent was more likely the cause of the employer's actions." (13)

The plaintiff 's burden to prove a prima facie case is not very difficult. (14) To establish this prima facie case, a plaintiff must adduce evidence tending to show that the challenged adverse employment action is not readily explainable by meritorious reasons. (15) There would be no question as to the element of belonging to...

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