Kelly N. Pryor v. National Collegiate Athletic Association

PRECEDENTIAL
Filed May 6, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3113
KELLY N. PRYOR; WARREN E. SPIVEY, JR., individually
and on behalf of all others similarly situated,
Appellants
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Appellee
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 00-cv-3242)
District Judge: Hon. Ronald L. Buckwalter
Argued April 1, 2002
Before: SLOVITER, FUENTES and MICHEL,*
Circuit Judges
(Filed: May 6, 2002)
_________________________________________________________________
* Hon. Paul R. Michel, United States Court of Appeals for the Federal
Circuit, sitting by designation.
Andre J. Dennis (ARGUED)
Danielle Banks
STRADLEY RONON STEVENS &
YOUNG, LLP
Philadelphia, PA 19103
Attorneys for Appellants
David Bruton (ARGUED)
Michael McTigue Jr.
DRINKER BIDDLE & REATH LLP
Philadelphia, PA 19103
Attorneys for Appellee
OPINION OF THE COURT
MICHEL, Circuit Judge.
In this close and complex appeal, we must decide
whether Plaintiffs have stated a claim for purposeful, racial
discrimination under Title VI of the Civil Rights Act of 1964,
42 U.S.C. S 2000d et seq. (1994) and 42 U.S.C. S 1981
(1994), by alleging (among other things) that the National
Collegiate Athletic Association adopted certain educational

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standards because of their adverse impact on black student
athletes seeking college scholarships. We hold that they
have sufficiently alleged a claim for relief.
As the complaint indicates, the NCAA purportedly tried to
improve graduation rates among black student athletes by
adopting Proposition 16, a facially neutral rule that
establishes scholarship and athletic eligibility criteria for
incoming student athletes. As a result of these criteria,
Plaintiffs allege, Proposition 16 has caused increased
numbers of black student athletes to lose eligibility for
receiving athletic scholarships and for participating in
intercollegiate athletics during their freshmen year.
Plaintiffs further allege that defendant knew of these effects
and intended them. And thus, Plaintiffs suggest that the
NCAA actually adopted Proposition 16 to "screen out" more
black student athletes from ever receiving athletic
scholarships in the first place, with the asserted goal of
increased graduation rates serving as a mere "pretext."
2
Because the complaint sufficiently avers that Proposition
16 has adversely impacted the number of black student
athletes who qualify for athletic scholarships, and because
it alleges the NCAA adopted this otherwise facially neutral
policy "because of" this adverse, racial impact, we cannot
agree that the Plaintiffs -- African-American student
athletes who failed to meet the eligibility criteria established
by Proposition 16 -- have failed to state a claim for relief
under the liberal notice-pleading requirements of Fed. R.
Civ. P. 8(a).
On the other hand, we affirm the district court’s holding
that Plaintiff Kelly Pryor lacks standing to prosecute her
discrimination claims under the Americans with Disabilities
Act, 42 U.S.C. S 12101 et seq. and the Rehabilitation Act of
1973, 29 U.S.C. S 701 et seq. As the district court
reasoned, Pryor may still recover the year of athletic
eligibility that she lost as a freshman, depending on
whether she completes 75% of her degree requirements by
the time she finishes her fourth year in college. But her
fourth year will not end until sometime in the future.
Accordingly, because she has already irrevocably lost
eligibility for her freshman year and because the NCAA may
still restore that lost year of eligibility in any event, her
claims for disability discrimination fail to satisfy the
Constitution’s Article III "case or controversy" requirements.
I
This appeal represents the latest challenge to Proposition
16, a policy that the Division I schools of the NCAA
voluntarily adopted in 1992 and fully implemented by
1996-97. To provide the proper context, we describe the
role of the NCAA and Proposition 16 as well as two earlier,
related appeals. Next, we describe the allegations of the
complaint in this case and why the district court granted
the NCAA’s motion to dismiss. Following a discussion about

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why we, too, must review this case under the motion-to-
dismiss standard (as opposed to the summary judgment
standard), we address (1) the absence of standing for
Pryor’s ADA and Rehabilitation Act claims; (2) why Plaintiffs
have sufficiently alleged facts showing a right to relief for
purposeful discrimination; (3) why even a "benign" or
3
"laudable" goal of improving graduation rates for black
athletes via the adoption of Proposition 16 still would not
necessarily immunize the NCAA from liability as a matter of
law; (4) why Plaintiffs’ alternative theory about the NCAA’s
"deliberate indifference" to the impact its policy would have
on a particular minority group fails to state a claim for
purposeful discrimination under Title VI and S 1981; and
(5) why Plaintiffs’ agreement to satisfy Proposition 16’s
academic requirements does not defeat their S 1981 claim.
A
Defendant NCAA is a voluntary association of more than
a thousand members, mostly consisting of public and
private four-year universities that have varsity
intercollegiate athletic programs. The NCAA member
universities divide themselves by divisions: Division I,
Division II and Division III. Each division ordinarily adopts
its own bylaws. These bylaws include rules for defining
freshmen eligibility for intercollegiate athletic competition.
For example, in 1986, the Division I members adopted
Proposition 48, which required incoming high school
athletes to have a minimum grade point average of 2.0 and
a minimum 700 score on the Scholastic Aptitude Test in
order to practice, play and receive an athletic scholarship.
As this court has previously stated, the Division I members
implemented Proposition 48 to address the perception that
its member schools were exploiting athletes "for their
talents without concern for whether they graduated."
Cureton v. Nat’l Collegiate Athletic Assoc., 198 F.3d 107,
110 (3d Cir. 1999). Following the implementation of
Proposition 48, graduation rates among athletes, especially
among black athletes, increased.
B
In 1992, the Division I schools voluntarily adopted the
NCAA’s Proposition 16, the provision at issue in this case.
Proposition 16 modifies Proposition 48 by increasing the
number of core high school courses in which a student
athlete must have a minimum GPA, and it determines
athletic eligibility based on a formula that combines a
4
student-athlete’s GPA and standardized test score.
Proposition 16 essentially increases the minimum scores
that a high school student athlete must attain to qualify for
athletic scholarship aid and eligibility for practicing and

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competing as a college freshman. For example, if a student
athlete had a 2.0 GPA in the core high school courses, he
or she must score a 1010 on the SAT. The district court
found in a similar case that Proposition 16 puts a greater
emphasis on standardized test scores than did its
predecessor (Proposition 48).
Cureton I
In 1997, counsel for Plaintiffs in this case sued the NCAA
on behalf of different minority student athletes who claimed
that Proposition 16 violated the regulations to Title VI of the
1964 Civil Rights Act. Cureton v. Nat’l Collegiate Athletic
Assoc., 198 F.3d at 111 ("Cureton I"). Specifically, the
Cureton plaintiffs alleged a Title VI violation based on the
theory that Proposition 16 creates a disparate impact on
racial minorities. Id. Following discovery, the district court
concluded that Proposition 16’s disparate impact on
African-American athletes violated the regulations to Title
VI; and so, the court permanently enjoined the continued
enforcement of Proposition 16. In so doing, the court
accepted the NCAA’s proffered goal of implementing
Proposition 16 as a way to raise all student-athletes’
graduation rates, but it rejected Proposition 16 as a
legitimate means for accomplishing that goal. Further, the
court held that although Proposition 16 may benefit black
athletes by improving their overall graduation rate, it still
adversely impacted minority athletes at the "front end" of
the process, i.e., the eligibility of freshmen minority
athletes.
This court reversed and remanded with instructions for
the entry of judgment for the NCAA. In the court’s analysis,
the regulations applied only to the specific programs or
activities for which an entity uses federal funds, not to the
entity at large. See Cureton I, 198 F.3d at 114. As a result,
the court reasoned, even assuming the NCAA received
federal funds, the Title VI regulations did not apply to the
NCAA because the NCAA did not exercise "controlling
5
authority" over its member institutions’ "ultimate decision"
about a student-athlete’s eligibility to participate in
collegiate athletics. See id. at 116-17 (citing and discussing
NCAA v. Tarkanian, 488 U.S. 179, 197-99 (1988)).
Roughly one year after this decision, the Supreme Court
held that Title VI creates no claim for disparate impact,
contrary to the theory alleged by the plaintiffs in Cureton I:
"Title VI itself directly reach[es] only instances of intentional
discrimination." Alexander v. Sandoval, 532 U.S. 275, 281
(2001).
Cureton II
On remand to the district court, the Cureton plaintiffs
moved to either amend their complaint or to have the
judgment altered so as to add a claim of intentional

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discrimination based on the NCAA’s "adoption and/or
enforcement of Proposition 16." Citing undue prejudice,
delay and futility (i.e., some of the factors used to assess a
motion to amend a complaint or judgment), the district
court denied the motion. This court affirmed on the
grounds of undue prejudice and delay only. Cureton v. Nat’l
Collegiate Athletic Assoc., 252 F.3d 267, 274-76 (3d Cir.
2001) ("Cureton II"). Requiring the NCAA to address this
intentional discrimination claim would essentially require it
to re-litigate the entire case again. Id. In addition, the
Cureton plaintiffs admitted that they could have filed an
intentional discrimination claim years ago; they simply
chose not to do so based on the putative strength of their
disparate impact claim. See id. at 275. Last, the NCAA had
no notice that the Cureton plaintiffs might later add this
intentional discrimination claim, since the plaintiffs
themselves had described the NCAA’s motives behind
Proposition 16 as "laudable." Id.
C
This dispute very much resembles the Cureton case, with
the variant that Plaintiffs here allege that the NCAA
purposefully discriminated against them by adopting
Proposition 16. Indeed, as the NCAA notes, some of the
allegations in the current complaint come verbatim from
6
the allegations lodged in the amended complaint in Cureton
II. In addition, the 49-page complaint in this case contains
several attachments, including various NCAA memoranda,
affidavits from NCAA officials, an interrogatory response
that the NCAA provided in the Cureton litigation, as well as
other discovery obtained during that case. The complaint
frequently mentions the Cureton litigation, including the
discovery obtained therein.
According to the complaint, Plaintiff Kelly Pryor is an
African-American student athlete recruited by San Jose
State to play varsity soccer. Pryor has a learning disability.
In 1999, as a high school athlete, she signed an agreement,
called a National Letter of Intent ("NLI"), to play soccer on
a scholarship at San Jose State beginning in the fall of
1999. Plaintiff Warren Spivey is an African-American
student athlete who signed an NLI to play football at the
University of Connecticut ("UConn"). As with the NLIs
signed by all student athletes who receive athletic
scholarships, the NLIs signed by Pryor and Spivey contain
a condition that would render the agreement void if they
failed to meet the eligibility requirements established in
Proposition 16.
Neither Pryor nor Spivey met these requirements. Pryor,
however, did petition for a waiver based on her learning
disability. As a result, she received "partial qualifier" status,
meaning she retained her athletic scholarship and could
still practice with the San Jose State soccer team; she just
could not compete in the team’s games. In addition, in

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August 1999, the NCAA instituted Bylaw 14.3.3.2, which
grants learning-disabled students (like Pryor) five years to
use their four years of athletic eligibility, provided that the
learning-disabled student completes 75% of her degree
requirements by the end of her fourth year at the
university. Non-learning disabled student athletes, by
contrast, must complete 100% of their degree requirements
by the end of their fourth year if they wish to stay a fifth
year and use whatever athletic eligibility is remaining. Pryor
will presumably reach the end of her fourth year at San
Jose State by 2003.
Spivey himself, meanwhile, did not petition for a waiver;
but UConn did so on his behalf, arguing that Spivey’s
7
record showed that he was prepared for the academic
requirements of college. The NCAA denied this petition, as
well as the appeal thereto, meaning Spivey could not
receive athletically related financial aid or participate in
varsity athletics during his freshman year. According to the
complaint, Spivey still attends UConn, but he incurred
substantial debt, i.e., student loans, in order to pay his
college tuition.
Under Proposition 16, student athletes who fail to meet
the eligibility criteria as freshmen may still compete in
varsity athletics beginning their sophomore year, provided
they meet other minimum academic criteria. Also,
Proposition 16 relates only to the award of athletic
scholarships; no NCAA policy stops a university from giving
a Proposition 16 "casualty" the financial aid that is
available to all students. None of the post-freshmen year
criteria are at issue in this case.
Pryor and Spivey Sue the NCAA
In February 2000, Pryor and Spivey sued the NCAA and
sought to certify a class against it. Pryor alleged that
Proposition 16 discriminated against her on account of her
learning disability, in violation of the Americans with
Disabilities Act and the Rehabilitation Act, and she sought
injunctive and declaratory relief so as to remedy the loss of
her freshman eligibility. In addition, both Pryor and Spivey
alleged that, by adopting Proposition 16, the NCAA
intentionally discriminated against them on account of their
race, in violation of Title VI of the Civil Rights Act and 42
U.S.C. S 1981.
As support for their race-discrimination claims, Plaintiffs’
complaint cites often to NCAA memoranda and other
evidence obtained during the Cureton litigation. In
particular, the complaint notes that the NCAA responded to
an interrogatory about its reasons for adopting Proposition
16 by identifying (as one of its "top ten reasons") the goal
that Proposition 16 would promote a higher graduation rate
for black athletes and would thereby narrow the
"Black/White Gap" between black student-athlete

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graduation rates and white student-athlete graduation
8
rates. (Pls.’ Compl. PP 62-63.) Citing statements from the
district court’s now-vacated decision in Cureton I, the
complaint asserts that Proposition 16’s "explicit race-based
goal stands in stark contrast to the characterization of
Proposition 16 as a facially neutral rule." (Id. P 64) (quoting
Cureton, 37 F. Supp. 2d 687, 705 (E.D. Pa. 1999)). Further,
it professes a reliance, in part, on the "serious questions"
the Cureton court itself had about whether Proposition 16
"function[ed] simply as a proxy for a racial quota." (Id. P 64)
(quoting Cureton, supra.)
In addition, the complaint identifies a memorandum from
the NCAA dated July 1998 asserting that Proposition 48
and Proposition 16 have led to steady increases in the
graduation rates for minorities and that no other proposed
models would achieve that goal as well as Proposition 16
has. (Id. P 65.) An affidavit from Graham Spanier, a former
member of various NCAA committees, similarly avers that
Proposition 48 -- the precursor to Proposition 16-- had
significantly improved graduation rates of student athletes,
with the greatest increase coming among black student
athletes. (Id. P 66.) And another memorandum from an
NCAA statistician calculates the projected graduation rates
for black and white athletes under the Proposition 16 model
as well as three alternative models. (Id.) The memorandum
indicates that Proposition 16 projected the highest
graduation rate for black and white athletes.
Liberally construed, the complaint maintains that
Proposition 16 achieves the NCAA’s stated goal of improving
graduation rates for black athletes relative to white athletes
by simply "screen[ing] out" greater numbers of black
athletes from ever becoming eligible in the first place, i.e.,
from ever receiving athletic eligibility and scholarship aid.
(E.g., Pls.’ Compl. PP 20, 29, 66, 159, 162, 177.) Further, it
maintains that although the NCAA knew that Proposition
16 would have a more adverse impact on black student
athletes than on white student athletes, the NCAA went
ahead and adopted Proposition 16 anyway, based on its
"misguided view toward affecting African-American student-
athletes’ graduation rates by denying [scholarship] eligibility
to greater numbers of" black student athletes. (Id. PP 69,
76.) As support for this assertion, the complaint points to
9
various studies, research and reports by the NCAA showing
that Proposition 16 and its precursor (Proposition 48)
would disproportionately and negatively impact black
student athletes. (E.g., Pls.’ Compl. PP 71-75.)
Citing these allegations, the complaint also lays out two
theories of relief under Title VI and S 1981. First, it asserts
that because the NCAA adopted Proposition 16 knowing

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that it would adversely affect black student athletes, the
NCAA thereby acted with "deliberate indifference" to
Proposition 16’s impact on African-American student
athletes. (Id. PP 164-66, 178.) And that indifference, the
theory goes, amounts to the purposeful discrimination
proscribed by Title VI and S 1981. (See id.) Alternatively, the
complaint indicates that the evidence of the NCAA’s
knowledge about Proposition 16’s impact as well as other
"circumstantial evidence" establishes that the NCAA
adopted this policy to intentionally deny athletic eligibility
and scholarship aid to a greater number of black athletes.
(See, e.g., Pls.’ Compl. PP 20, 81, 169.) "Any suggestion"
that considerations of race did not at least partially
motivate the NCAA’s adoption of Proposition 16 is
"pretextual." (Id. PP 83, 180.)
In response, the NCAA moved to dismiss Plaintiffs’
complaint under Fed. R. Civ. P. 12(b)(6) or, alternatively, for
summary judgment.
The district court grants the NCAA’s Motion to
Dismiss
In July 2001, the district judge -- the same judge that
handled the Cureton litigation -- granted the NCAA’s
motion to dismiss. As to Pryor’s ADA and Rehabilitation Act
claims, the court determined that Pryor lacked standing to
effectively remedy her asserted loss of freshman eligibility.
Specifically, the court held that while Pryor’s complaint
satisfied the constitutional standing requirements of injury
and causation, it did not meet the third prong concerning
legal or equitable redress. This was so, the court explained,
because the NCAA itself may still grant her the relief she
seeks via Bylaw 14.3.3.2 -- the rule granting learning-
disabled athletes five years to play four years of varsity
10
athletics if they complete 75% of their degree requirements.
In addition, the court rejected Pryor’s argument that,
because she has to "earn back" her fourth year of eligibility,
she still had standing to prosecute her ADA claim. As the
district court noted, any claim that Pryor now brought to
recover for her fourth year of eligibility would fail for
ripeness as Pryor had simply "not yet reached her fourth
year" at San Jose State.
In addition, the court dismissed the two theories that
Pryor and Spivey advanced to show purposeful
discrimination. First, in the district court’s analysis,
Plaintiffs’ theory about the NCAA’s "deliberate indifference"
could not stand because, under Alexander v. Sandoval,
supra, the Supreme Court has held that even if a federally
funded entity knowingly adopts a rule that creates a
disparate impact, Title VI still affords no remedy. Second,
Plaintiffs alleged that a discriminatory purpose played a
motivating factor in the NCAA’s development and adoption
of Proposition 16. But Proposition 16 is a facially neutral
policy, the court stated; and policies that incidentally create

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a racially disparate impact (as opposed to policies that
intentionally create a disparate impact) do not abridge Title
VI or S 1981. Further, the court determined that the NCAA’s
monitoring of the effects that its policies have upon
minority athletes does not suggest that the NCAA
improperly considered race in either the promulgation or
continued enforcement of Proposition 16. Last, the court
reasoned that Proposition 16 was motivated by the desire to
improve graduation rates for all student athletes, leading
the court to "find" that the NCAA’s design and
implementation of Proposition 16 occurred "in spite of " its
alleged disparate impact, not "because of " that impact.
Finally, the district court dismissed Pryor and Spivey’s
S 1981 claim. As stated earlier, Plaintiffs had failed "to
adequately allege intentional discrimination and this
deficiency merits dismissal of this [S 1981] claim."
Alternatively, the court held that Plaintiffs had also failed to
allege harm to the contracting activity protected byS 1981;
the NCAA’s Proposition 16 did not prevent either Pryor or
Spivey from entering into a "contract" (i.e., an NLI) with
their respective universities and it did not bar them from
11
enjoying the benefits of those contracts either, since their
NLIs were conditioned on Plaintiffs satisfying the eligibility
requirements of Proposition 16. Accordingly, the court
concluded that because Pryor and Spivey had entered into
these NLIs and accepted their conditions, they could not
now disregard them for purposes of S 1981.
This appeal followed. We have jurisdiction under 28
U.S.C. S 1291 (1994) and now affirm in part, reverse in part
and remand.
II
Both parties make numerous arguments on appeal, some
going well beyond the rulings actually made by the district
court. For her part, Plaintiff Pryor asserts that she did not
lack standing to bring her ADA and Rehabilitation Act
claims because the district court could have granted the
requested relief without speculating whether that relief (an
injunction and declaratory judgment) would have remedied
the loss of her freshman eligibility. Along those same lines,
she argues that NCAA Bylaw 14.3.3.2 did not "confer relief
remotely comparable to the relief " she now seeks, as she
would still have to "earn back" her fourth year of eligibility
instead of receiving it automatically like other student
athletes.
As to the intentional discrimination claims, Plaintiffs
argue that the district court improperly relied on Cureton to
hold that the NCAA adopted Proposition 16 "in spite" of its
allegedly adverse impact, not "because of " that
disproportionately adverse impact. In so doing, Plaintiffs
suggest that the district court was relying on Cureton as if
the NCAA had invoked notions of collateral estoppel, res

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judicata or law of the case.
Addressing the same issue, Plaintiffs further argue that
the district court misunderstood the basis of their
alternative theory that the NCAA had acted with"deliberate
indifference" to the disparate impact created by the
adoption of Proposition 16. "The claim is not merely that
the NCAA was deliberately indifferent to Proposition 16’s
disparate impact. The claim is that the NCAA was (and is)
deliberately indifferent to Plaintiffs’ rights as secured under
12
Title VI . . . ." (Appellants’ Br. at 29.) According to Plaintiffs’
brief, the "essence of Plaintiffs’ deliberate indifference claim
is that even if . . . the NCAA did not intend to discriminate
against African-American student athletes, its conduct is so
deliberately indifferent to Plaintiffs’ rights as secured by
those statutes that it might as well have intended to
discriminate." (Appellants’ Br. at 31.)
Next, referring to the evidence identified in their
complaint, Plaintiffs assert that the admissions by the
NCAA about adopting Proposition 16 to raise graduation
rates for black athletes constitute "direct evidence" of the
NCAA’s decision to take race into account. Plaintiffs
extrapolate from these admissions an intent to adopt a
policy that would exclude more black athletes from
scholarships or freshmen participation (Appellants’ Br. at
37), saying further that, "[a]t the heart" of their claim, they
allege "the NCAA uses Proposition 16 as a vehicle to
exclude greater numbers of African American student-
athletes in order to wrongfully claim that it is decreasing
the Black/White graduation gap and wrongfully claim that
Proposition 16 has caused an increase in overall graduation
rates." Plaintiffs assert that they have the right to present
the evidence of the NCAA’s race-based intent to a jury.
Last, Plaintiffs recognize that the NLIs they signed do
contain the condition about having to meet the eligibility
requirements established by Proposition 16. But they begin
another argument that Proposition 16 purposefully
discriminates against black athletes. Importantly, as does
their complaint, they also suggest that the NLI’s Proposition
16 condition is invalid, given that it is allegedly the product
of intentional discrimination.
In response, the NCAA first notes that we may affirm the
judgment as based on either a motion to dismiss or as a
summary judgment motion. Further, it identifies various
principles of the Article III "case or controversy" analysis as
barring Plaintiff Pryor’s ADA and Rehabilitation Act claims
-- mootness, ripeness and, as to the core standing
requirements, failure to allege an injury that a court could
presently redress. Also, on the merits of Pryor’s ADA and
Rehabilitation Act claims, the NCAA asserts that these
claims must fail because Proposition 16 merely embodies
13

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academic standards that are necessary to accomplish
legitimate educational objectives.
As to Plaintiffs’ intentional discrimination claims, the
NCAA maintains that an "unwavering line of [Supreme
Court] decisions" shows that purposeful discrimination
"requires proof of racial animus; that is, an intention to harm
racial minorities." (Appellee’s Br. at 11) (emphasis added). In
that vein, the NCAA continues, Plaintiffs cannot seize upon
the NCAA’s admissions of trying to help black athletes as
instead warranting an inference that it actually intended to
discriminate against and harm black student athletes.
Meanwhile, the NCAA argues, Plaintiffs’ restatement of their
"deliberate indifference" claim merely "assumes its own
conclusion"; it does not distinguish that claim from
precedents that have upheld a facially neutral policy that
happened to create a disparate impact.
As to Plaintiffs’ S 1981 claim, the NCAA again adopts the
district court’s reasoning, saying that because the NLI
contained a condition about meeting Proposition 16’s
eligibility requirements, the NCAA did not deprive Plaintiffs
of the right to make or otherwise enjoy the benefits of their
respective NLI contracts. In other words, because Plaintiffs
themselves had failed to meet a condition of their own
agreement, the NCAA did not prevent them from enjoying
the benefits of their NLI contract; rather, Plaintiffs had
simply deprived themselves of that right by failing to meet
one of the NLI conditions.
III
We review the district court’s decision granting a party’s
motion to dismiss de novo. A court should not dismiss a
complaint under Rule 12(b)(6) for failure to state a claim for
relief "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims which would
entitle him to relief." Conley v. Gibson, 335 U.S. 41, 45-46
(1957). In evaluating whether dismissal is proper, a court
must accept all the "factual allegations of the complaint
. . . as true," and must draw all "reasonable inferences
. . . to aid the pleader." D.P. Enter. v. Bucks County
Community College, 725 F.2d 943, 944 (3d Cir. 1984).
14
In this case, however, the NCAA filed a motion to dismiss
under Fed. R. Civ. P. 12(b)(6) or, in the alternative, a
motion for summary judgment under Fed. R. Civ. P. 56. In
addition, Plaintiffs refer to several exhibits attached to their
complaint, many of which concern the NCAA’s decision to
adopt Proposition 16. The evidence here, in other words,
became part of the record on appeal because Plaintiffs had
attached it to their complaint -- not because either party
had independently come forward and presented that
evidence as matters outside the pleadings. And, as
previously noted, Plaintiffs assert error with the district

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court’s references to the Cureton litigation, even though
Plaintiffs’ own complaint repeatedly cites and quotes from
various portions of that decision. We dispose of this
argument now and, in so doing, hold that we too must treat
this appeal as if we are reviewing the grant of a motion to
dismiss only, not a motion for summary judgment.
Generally speaking, a trial court has discretion to
address evidence outside the complaint when ruling on a
motion to dismiss. Kulwicki v. Dawson, 969 F.2d 1454,
1462 (3d Cir. 1992) (citing 5A Wright & Miller, Fed. Prac. &
Proc. S 1366, at 491 (1990)). Further, as one treatise has
explained, simply attaching exhibits to a complaint does
not necessarily make that complaint amenable only to
summary judgment or foreclose a court from considering
those exhibits in its Rule 12(b)(6) ruling:
As a general rule, the court may only consider the
pleading which is attacked by an FRCP 12(b)(6) motion
in determining its sufficiency. *** The court is not
permitted to look at matters outside the record; if such
matters are considered, the FRCP 12(b)(6) motion to
dismiss is, by the express terms of FRCP 12(b),
converted into a motion for summary judgment.
However, the court may consider documents which are
attached to or submitted with the complaint, as well as
legal arguments presented in memorandums or briefs
and arguments of counsel. Further, documents whose
contents are alleged in the complaint and whose
authenticity no party questions, but which are not
physically attached to the pleading, may be considered.
*** Documents that the defendant attaches to the
15
motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are
central to the claim; as such, they may be considered by
the court.
62 Fed. Proc., L. Ed. S 62:508 (citations omitted) (emphases
added); see also 62 Fed. Proc., L. Ed. S 62:520 ("As
previously discussed, certain matters outside the body of
the complaint itself, such as exhibits attached to the
complaint and facts of which the court will take judicial
notice, will not trigger the conversion of an FRCP 12(b)(6)
motion to dismiss to an FRCP 56 motion for summary
judgment.").
Applying these principles, we discern no error with the
district court’s references to the Cureton litigation, as the
body of the complaint itself expressly references the
findings and statements made in that factually similar case.
Contrary to Plaintiffs’ argument, moreover, the district
court did not appear to cite Cureton for purposes of
assessing the truth of the factual allegations in this case,
much less for applying principles of claim or issue
preclusion or law of the case; rather, the court cited
Cureton as precedent only. Accordingly, Plaintiffs’ argument

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on this point fails.
IV
Applying the Rule 12(b)(6) standard, we uphold the
dismissal of Plaintiff Pryor’s claims under the ADA and the
Rehabilitation Act. As the district court reasoned, the court
cannot order the declarative or injunctive relief Pryor seeks
if the NCAA may later award her that relief anyway. And we
will not know if the NCAA will do this until 2003 or so,
meaning her disability claims fail for both lack of redress
and lack of ripeness.
On the other hand, while we reject Plaintiffs’ "deliberate
indifference" theory, the complaint and exhibits have stated
a claim for relief for purposeful discrimination. As more
fully explained below, the complaint and exhibits show that
the NCAA expressly considered race and how Proposition
16 would affect African-American athletes when it adopted
this policy. Further, though the NCAA may have intended
16
this race-based consideration for the "laudable" goal of
increasing graduation rates for black student athletes, the
complaint indicates that the policy was actually adopted to
harm black athletes by preventing them from ever receiving
college athletic scholarships and eligibility in the first place.
Moreover, contrary to the assertions made in the NCAA’s
brief, none of the case law it cited, much less Supreme
Court case law, absolves a decisionmaker from liability
simply because it considered race for the "benevolent"
purpose of helping a particular racial group. Indeed, the
Supreme Court has made clear that considerations of race,
well intentioned or not, can still subject a decisionmaker to
liability for purposeful discrimination.
Last, the S 1981 claim must stand as well. Simply put,
Plaintiffs could not legally consent or otherwise agree to a
contract term or condition, e.g., the condition of complying
with Proposition 16’s academic requirements, if that
condition was itself the product of purposeful racial
discrimination. Thus, we reverse and remand on this claim
too.
A
Constitutional standing requires pleadings that show (1)
a legally recognized injury; (2) caused by the named
defendant or at least "fairly traceable to the challenged
action of the defendant"; and (3) that a favorable decision
by the court would likely redress. Bennett v. Spear, 520
U.S. 154, 167 (1997). Redress, the third prong, will
"deprive[ ] a court of jurisdiction over cases in which the
likelihood that the requested relief would remedy the
plaintiff’s injury is ‘only speculative.’ " In re Thornburgh, 869
F.2d 1503, 1511 (D.C. Cir. 1989) (quoting Linda R.S. v.
Richard D., 410 U.S. 614, 618 (1973)).

-- 13 of 26 --

In cases where a plaintiff seeks injunctive or declaratory
relief only, moreover, standing will not lie if"adjudication
. . . rests upon ‘contingent future events that may not occur
as anticipated or indeed may not occur at all.’ " Hodgers-
Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir. 1999)
(quoting Texas v. United States, 523 U.S. 296 (1998)).
Indeed, in "ADA cases, courts have held that a plaintiff
17
lacks standing to seek injunctive relief unless he alleges
facts giving rise to an inference that he will suffer future
discrimination by the defendant." Shotz v. Cates, 256 F.3d
1077, 1081 (11th Cir. 2001) (citations omitted); see also
Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 422
(3d Cir. 1992) (discussing how courts should dismiss action
on ripeness grounds when a complaint seeking declaratory
relief rests on the contingency that some future act will
occur).
Here, we uphold the dismissal of Plaintiff Pryor’s ADA
and Rehabilitation Act claims because we cannot tell yet
whether Pryor will receive a fourth year of athletic
eligibility. As the district court noted, Pryor has no claim for
damages under the ADA because she still received her
athletic scholarship via the partial waiver she obtained.
Further, she may not need declarative or injunctive relief.
NCAA Bylaw 14.3.3.2 allows learning-disabled athletes like
Pryor to receive a fourth year of athletic eligibility -- and
thus recover the year of eligibility they lost as freshmen --
if they compete 75% of their degree requirements by the
end of their fourth year. But the end of Pryor’s fourth year
will not arrive until the spring of 2003 or so. Accordingly,
if she meets the 75% requirement by that time, she will
receive her fourth year of athletic eligibility and thereby
receive all the requested relief she sought via her ADA and
Rehabilitation Act claims. In other words, she will have
rendered moot any claim for injunctive relief that would
order the NCAA to declare her eligible for a fourth year of
intercollegiate soccer. We note too that, at oral argument,
Plaintiffs’ counsel stated that Pryor is doing well both
academically and athletically. This statement only
strengthens the likelihood that Pryor may not need judicial
intervention at all.
Therefore, because we can only speculate that Pryor may
someday lose a fourth year of eligibility based on some
future event, i.e., the failure to meet 75% of her degree
requirements by the end of her fourth year at San Jose
State, the district court correctly determined that no
constitutional standing lies over Pryor’s ADA and
Rehabilitation Act claims. Consequently, we need not
address the substance of Pryor’s claims under the ADA and
the Rehabilitation Act.
18
B

-- 14 of 26 --

As stated, Plaintiffs’ complaint and attached exhibits
sufficiently allege a claim for purposeful discrimination in
the adoption of an otherwise facially neutral policy. In
effect, the complaint states that the NCAA purposefully
discriminated against black student athletes by adopting a
policy with the intent to reduce the number of black
athletes who could qualify for athletic scholarship aid. We
address this theory first and Plaintiffs’ "deliberate
indifference" theory thereafter.
1
To recover under Title VI or S 1981, Plaintiffs cannot
simply assert that Proposition 16 has a disproportionate
effect on certain minorities. See, e.g., Stehney v. Perry, 101
F.3d 925, 937 (3d Cir. 1996) ("[A] facially neutral policy
does not violate equal protection solely because of
disproportionate effects."). As the parties agree, Title VI and
S 1981 provide a private cause of action for intentional
discrimination only. Alexander v. Sandoval, 532 U.S. at 281
(Title VI); Gen. Bldg. Contractors Assoc. v. Pennsylvania,
458 U.S. 375, 391 (1982) (S 1981).
To prove intentional discrimination by a facially neutral
policy, a plaintiff must show that the relevant
decisionmaker (e.g., a state legislature) adopted the policy
at issue " ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group." Personnel Administrator
of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979);
accord Gen. Bldg. Contractors Assoc., 458 U.S. at 391. A
mere awareness of the consequences of an otherwise
neutral policy will not suffice. Feeney, 442 U.S. at 277-78
(holding that state legislature did not intentionally
discriminate against women by enacting laws that gave
hiring preferences to veterans even though the legislature
was undoubtedly aware that most veterans were men; the
legislative history underlying these preferences showed that
the legislature always intended to offer the veterans’
preference for "any person").
Once a plaintiff establishes a discriminatory purpose
based on race, the decisionmaker must come forward and
19
try to show that the policy or rule at issue survives strict
scrutiny, i.e., that it had a compelling interest in using a
race-based classification and this classification is narrowly
tailored to achieve that compelling interest. See, e.g., Shaw
v. Reno, 509 U.S. 630, 643 (1993) ("These principles [of
strict scrutiny] apply not only to legislation that contains
explicit racial distinctions, but also to those‘rare’ statutes
that, although race neutral, are, on their face,
‘unexplainable on grounds other than race.’ ") (quoting
Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.
252, 266 (1977)). Racial classifications, well intentioned or
not, must survive the burdensome strict scrutiny analysis
because " ‘absent searching judicial inquiry . . . there is

-- 15 of 26 --

simply no way of determining what classifications are
"benign" or "remedial" and what classifications are in fact
motivated by illegitimate notions of racial inferiority or
simple racial politics.’ " Id. (quoting Richmond v. J.A. Croson
Co., 488 U.S. 469, 493 (1989)). This appeal involves only
whether the NCAA intended to discriminate against black
athletes by adopting Proposition 16, not whether that policy
survives strict scrutiny.
"Determining whether invidious discriminatory purpose
was a motivating factor [in the adoption of a facially neutral
policy] demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available." Arlington Heights, 429 U.S. at 266; Hunt v.
Cromartie, 526 U.S. 541, 546 (1999) (applying the Arlington
Heights criteria to a voting district allegedly drawn along
racial lines). Although considering evidence of impact would
seem to contradict the principle that no claim for disparate
impact lies under Title VI or S 1981, see Gen. Bldg.
Contractors Assoc., 458 U.S. at 397 ("It would be
anomalous to hold that S 1981 could be violated only by
intentional discrimination and then to find this requirement
satisfied by proof that the individual plaintiffs did not enjoy
‘the same right’ [as other citizens] and that the defendants
merely failed to ensure that the plaintiffs enjoyed
employment opportunities equivalent to that of whites."),
the Supreme Court has more directly stated that the
"important starting point" for assessing discriminatory
purpose is the "impact of the official action" and "whether
it bears more heavily on one race than another." Arlington
20
Heights, 429 U.S. at 266; Reno v. Bossier Parish School Bd.,
520 U.S. 471, 489 (1997). As the Court has explained, the
"impact of an official action is often probative of why the
action was taken in the first place since people usually
intend the natural consequences of their actions." Bossier
Parish School Bd., 520 U.S. at 487.
Other considerations relevant to the purpose inquiry
include the "historical background of the . . . decision; [t]he
specific sequence of events leading up to the challenged
decision; [d]epartures from the normal procedural
sequence; and [t]he legislative or administrative history,
especially . . . [any] contemporary statements by members
of the decisionmaking body." Id.; accord Arlington Heights,
429 U.S. at 267-68. Owing perhaps to the principle that
questions of intent and state of mind are ordinarily not
amenable to summary adjudication, see, e.g., 10B Wright &
Miller, Fed. Prac. & Proc. S 2730, courts have only
reluctantly upheld the Rule 12(b)(6) dismissal of a claim
alleging unlawful discrimination in the adoption of an
otherwise facially neutral policy. See, e.g., Stehney v. Perry,
101 F.3d 925, 937-38 (3d Cir. 1996) (affirming dismissal of
claim challenging a facially neutral policy as discriminatory
against women when "Stehney did not allege that the
facially neutral exemption from the polygraph requirement
was adopted with the intent to discriminate against

-- 16 of 26 --

women"); contra Hunt v. Cromartie, 526 U.S. at 549-52
(applying Arlington Heights criteria and vacating summary
judgment on claim that state legislature had purposefully
drawn voting district along racial lines when competing
evidence showed that politics may have motivated the
legislature, not race); Shaw v. Reno, 509 U.S. 630, 658
(1993) (vacating district court’s dismissal of challenge to
facially neutral action when complaint alleged that the
State had deliberately segregated voters into districts on the
basis of race without compelling justification); see also Gen.
Bldg. Contractors Assoc., 458 U.S. at 395-97 (reversing
findings of purposeful discrimination that a district court
rendered after trial); Feeney, 442 U.S. at 277-78 (upholding
findings made after compilation of a "record" that the
Massachusetts legislature did not intentionally discriminate
against women by enacting veterans-preference laws);
Arlington Heights, 429 U.S. at 259, 269-70 (upholding trial
21
court’s findings that a local housing authority did not
purposefully discriminate on the basis of race by denying a
facially neutral application to have certain property re-
zoned as multi-family housing).
2
In this case, Plaintiffs have stated a claim for purposeful
discrimination. As we are reviewing this case at the Rule
12(b)(6) stage, we may affirm the judgment only if"it
appears beyond doubt that no set of facts would entitle"
Plaintiffs to relief. See Gibson v. Conley, supra. In addition,
as the Supreme Court has recently confirmed, a complaint
requires only a "short and plain statement" to show a right
to relief, not a detailed recitation of the proof that will in the
end establish such a right. See Swierkiewicz v. Sorema N.
A., 122 S. Ct. 992, 998 (2002) (discussing the notice-
pleading requirements of Fed. R. Civ. P. 8(a)(2) for claims
alleging intentional discrimination); see also Fed. R. Civ. P.
9(b) (enumerating specific claims and defenses that require
particularized allegations but omitting intentional
discrimination as one such claim or defense). "Malice,
intent, knowledge, and other condition of mind of a person
may be averred generally." Fed. R. Civ. P. 9(b) (emphasis
added).
Here, it does not appear beyond doubt that Plaintiffs have
failed to sufficiently allege facts showing purposeful
discrimination by the NCAA. The complaint and attached
exhibits make clear that the NCAA considered race as one
of its reasons for adopting Proposition 16, with the NCAA
stating explicitly that it believed the adoption of this policy
would increase the graduation rates of black athletes
relative to white athletes. Further, the complaint alleges
that the NCAA purposefully discriminated against black
student athletes (like Plaintiffs) when it adopted Proposition
16 because the NCAA knew -- via various studies and
reports -- that the heightened academic requirements of
Proposition 16 would effectively "screen out" or reduce the

-- 17 of 26 --

percentage of black athletes who could qualify for athletic
scholarships. In short, the complaint alleges that the NCAA
adopted Proposition 16 because it knew that policy would
22
prevent more black athletes from ever receiving athletic
scholarship aid in the first place.
Citing Feeney, 442 U.S. at 279, the district court rejected
this theory, holding that the NCAA adopted Proposition 16
"in spite of" its impact on black athletes, not "because of"
that impact. But as shown by the complaint, this is not a
case where the NCAA simply realized or otherwise could
have guessed that Proposition 16 would have had a
disparate impact on black athletes. In Feeney , after all, the
Supreme Court upheld a policy that favored veterans only
after the compilation of a record showed that, yes, the state
legislature almost certainly was aware that most military
veterans were men; and that, as a result, a law expressly
benefiting veterans would work to the detriment of women.
Rather, this is a case where, based on the face of the
complaint and all reasonable inferences thereto, the NCAA
at least partially intended to reduce the number of black
athletes who could attend college on an athletic scholarship
by adopting the heightened academic requirements of
Proposition 16. And as the exhibits and complaint allege,
the NCAA knew of this impact because of the pre-
Proposition 16 studies informing them about this outcome.
See Bossier Parish School Bd., 520 U.S. at 489 (explaining
that the "impact of an official action" bears on the analysis
whether a decisionmaker adopted a facially neutral policy
for purposes of race, "since people usually intend the
natural consequences of their actions"); Arlington Heights,
429 U.S. at 266.
Moreover, unlike Feeney and nearly all the other
precedents cited by the district court and the parties, the
district court drew this distinction between the NCAA’s
"awareness" and its "purpose" at the pleading stage, even
though issues involving state of mind (e.g., intent) are often
unsuitable for a Rule 12(b)(6) motion to dismiss. Indeed, of
all the precedents cited, few have upheld the dismissal of a
purposeful discrimination claim for failure to state a claim
for relief. In Stehney, for example, unlike here, we affirmed
the dismissal of a claim for purposeful discrimination,
reasoning that the complaint had simply failed to allege
that the facially neutral classification at issue"was adopted
with the intent to discriminate against" a protected trait
23
(gender). 101 F.3d at 937-38. But again, liberally
construing the allegations, the complaint here conveys that
the NCAA adopted Proposition 16 because it allegedly
wanted to reduce the number of black athletes who could
ever become eligible for athletic scholarships. The
complaint further suggests that the NCAA’s "stated goal" of

-- 18 of 26 --

wanting to improve graduation rates via Proposition 16
served as a mere "pretext" for its actual goal. (See Pls.’
Compl. PP 83, 180.)
In Brown v. Philip Morris Inc., meanwhile, we upheld the
dismissal of a S 1981 claim by a class of black smokers
alleging that tobacco companies had purposefully
discriminated against them in the sale and advertising of
tobacco products. 250 F.3d 789, 797 (3d Cir. 2001). There,
the complaint did not allege that the tobacco companies
had deprived these smokers of the right to contract for,
purchase or use their cigarettes; indeed, the plaintiffs
conceded that the companies sold the same cigarettes on
the same terms to black customers as they did to white
customers. Id. In short, the plaintiffs pointed to no
disparities in the companies’ sales of cigarettes"apart from
the generalized allegation that African-Americans are more
likely than others to buy . . . tobacco products as a result
of targeted advertising." Id. at 799.
Here, by contrast, the complaint alleges that the NCAA
purposefully adopted a policy because that policy would
reduce the number of black athletes who could receive
athletic scholarships and compete in intercollegiate
athletics as freshmen. Further, the complaint indicates that
the NCAA knew this policy, Proposition 16, would and has
adversely affected black student athletes, not white student
athletes, because of the pre-Proposition 16 studies that
informed them of this outcome. In other words, unlike the
complaint in Brown, the complaint in this case does
sufficiently state facts showing intentional, disparate
treatment on account of race.
3
The NCAA asserts that both the complaint and the
exhibits thereto show only that the NCAA intended to help
24
black athletes by adopting Proposition 16, not harm them.
In like vein, it claims that precedent from the Supreme
Court, as well as from rulings by other circuit courts,
consistently absolve decisionmakers from purposeful-
discrimination liability so long as their intent was"benign"
or (in the words of Plaintiffs’ counsel in Cureton) "laudable."
For two reasons, however, this argument is unconvincing.
First, as explained above, the complaint adequately
alleges that the NCAA sought to achieve its stated goal of
improving graduation rates by using a system that would
exclude more African-American freshmen who, in the past,
might have qualified for scholarships. Further, as the
complaint and other exhibits suggest, the NCAA knew that
using this approach would also screen out more black
student athletes than white student athletes. So again, one
could infer that, because the NCAA knew this, it was
actually pursuing its stated goal and adopted means as a
way to accomplish this sinister purpose while still seeming

-- 19 of 26 --

"laudable" and well intentioned. True, at first glance, some
might well consider this theory far fetched. But we are
reviewing this case at the pleading stage, not the summary
judgment stage. Further, two allegations and the exhibits
supporting them support the theory of the complaint: the
NCAA openly considered race in formulating Proposition 16;
and it had reason to know that the adoption of Proposition
16 would lead to the greater exclusion of black athletes
from receiving college athletic scholarships.
Again, one may doubt that the NCAA harbored such ill
motives. After all, many NCAA schools have long engaged in
fierce recruiting contests to obtain the best high school
athletes in the country, many of whom are black. And in
today’s world of collegiate athletics, better athletes can
translate into more revenues and exposure for the schools
that sign them. On the other hand, racial discrimination is
nearly always irrational and thus, in the words of the
Supreme Court, "odious" to our nation’s principles of
equality. See, e.g., Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 214 (1995) (citations omitted). Further, neither
our court nor the district court can render "findings" in this
case -- at least not yet. And findings of fact, of course, turn
on evidence, not on one’s speculations about the issue.
25
Nothing in our decision today precludes either summary
judgment or trial findings that conclude the NCAA did not
intend to discriminate on the basis of race.
Second, even assuming the NCAA’s assertion that it had
only "laudable" goals in adopting Proposition 16 and that it
actually wanted only to improve graduation rates among
black student athletes, the NCAA has cited no authority
holding that a claim for purposeful discrimination may lie
only if the accused decisionmaker had "bad intentions" or
"animus." Quite the contrary. The Court has squarely held
that, well-intentioned or not, express or neutral on its face,
a law or policy that purposefully discriminates on account
of race is presumptively invalid and can survive only if it
withstands strict scrutiny review. See Adarand , 515 U.S. at
227-29 (strict scrutiny applied to federal government’s
system of giving financial incentives to general contractors
who used "financially disadvantaged" subcontractors when
the system also created via statute a presumption that
certain racial groups qualified as "financially
disadvantaged"); Croson, 488 U.S. at 493-94 (holding that
"the standard of review under the Equal Protection Clause
is not dependent on the race of those burdened or benefited
by a particular classification" and that the single standard
of review for racial classifications is "strict scrutiny"); see
also Bakke v. California Bd. of Regents, 438 U.S. 265, 291
(1978) (concluding in plurality opinion that programs
designed to benefit minorities must withstand strict
scrutiny; "[t]he guarantee of equal protection cannot mean
one thing when applied to one individual and something
else when applied to a person of another color" and "[r]acial
and ethnic distinctions of any sort are inherently suspect

-- 20 of 26 --

and thus call for the most exacting judicial examination");
accord Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273
(1986). As one court has put it: "When the government [or
other decisionmaker, e.g., the NCAA] prefers individuals on
account of their race or gender, it correspondingly
disadvantages individuals who fortuitously belong to
another race or to the other gender." Coalition for Economic
Equity v. Wilson, 122 F.3d 692, 702 (9th Cir. 1997)
(upholding voter-enacted statute barring the adoption of
any policies or laws by the State that would favor one race
or gender over another). The persuasive authority cited by
26
the NCAA does not warrant a contrary result. E.g., id. ("To
be constitutional, a racial classification, regardless of its
purported motivation, must be narrowly tailored to serve a
compelling government interest, an extraordinary
justification.") (emphasis added).
Admittedly, this case is not subject to easy
categorization. It differs from many Supreme Court
precedents in that one could read the complaint and
attached exhibits as showing that the NCAA adopted
Proposition 16 to benefit the parties now suing for
intentional discrimination. See, e.g. Arlington Heights,
supra. And it differs from Adarand, Croson, Shaw v. Reno,
Bakke and other reverse-discrimination cases in that
Plaintiffs here are not, say, white student athletes claiming
the NCAA adopted a race-based policy at their expense.
Again, putting aside the more sinister theory about the
NCAA purposefully using Proposition 16 as a means to
discriminate against black athletes, Plaintiffs’ complaint
can also be read as alleging that (1) the NCAA considered
race when it adopted Proposition 16; (2) it did so for the
"benign" or "laudable" goal of improving graduation rates
among black student athletes; but (3) the policy for
achieving that goal -- Proposition 16 -- backfired and has
instead worked to the detriment of black athletes.
We need not address whether this theory fits within the
analytical framework established by the Supreme Court. As
stated earlier, liberally reading the complaint (as we must),
Plaintiffs also sufficiently allege that the NCAA adopted
Proposition 16 for the malevolent purpose of excluding
black student athletes from receiving scholarship aid and
athletic eligibility. In this regard, we merely reiterate the
Supreme Court’s established view that a claim for
purposeful discrimination may lie even if the decisionmaker
adopted the allegedly discriminatory policy or rule at issue
for a "beneficial" or "laudable" purpose.
4
As Plaintiffs have sufficiently alleged a claim of
purposeful discrimination under the analysis set forth
above, they need not establish their alternative theory
27

-- 21 of 26 --

about the NCAA acting with "deliberate indifference" to the
impact of Proposition 16 in order to secure reversal of the
total dismissal of the complaint. But as they continue to
press this alternative theory, we must address and reject it.
The Supreme Court has recently re-affirmed the principle
that Title VI of the Civil Rights Act "directly reaches only
instances of intentional discrimination." Alexander v.
Sandoval, 532 U.S. at 281. Plaintiffs try to sidestep this
holding by claiming that the NCAA was not just indifferent
to Proposition 16’s alleged disparate impact on black
athletes; it was extremely indifferent to that impact even if
it did not intend to discriminate. Frankly, we see no
meaningful difference between the proffered "deliberate
indifference" standard and the rule, well settled by the
Supreme Court, that a decisionmaker will not commit
purposeful discrimination if it adopts a facially neutral
policy "in spite of" its impact, not "because of" that impact.
See Feeney, 442 U.S. at 279. Accordingly, we reject
Plaintiffs’ "deliberate indifference" standard as a cognizable
theory of relief under Title VI.
The precedents that Plaintiffs rely on in this regard do
not compel a different conclusion. In Gebser v. Lago Vista
Indep. School District, 524 U.S. 274, 290 (1998), for
example, the Supreme Court held that a school or other
entity covered by Title IX could incur liability under that
civil rights law if an entity official "with authority to take
corrective action" (1) had "actual notice" about another
employee’s sexual harassment of a student; and (2) after
receiving actual notice, that official was still"deliberately
indifferent" to the intentional wrongdoing committed by the
employee.
The problem with applying Gebser’s "deliberately
indifferent" standard to a Title VI purposeful-discrimination
case is that that standard applies to one who sat by
passively while another committed an intentional Title IX
violation. Stated another way, the school in Gebser faced
liability under Title IX not because it did anything
intentionally wrong; it just sat by and did nothing at all.
And again, in Alexander v. Sandoval, the Supreme Court
held that an entity cannot incur liability under Title VI for
anything short of intentional discrimination. So, if we
28
accepted Plaintiffs’ theory here, we would also have to cast
the NCAA in the role of the Gebser school that committed
a sin of omission, not a sin of commission. In so doing, we
would effectively turn Alexander on its head, along with its
prohibition against imposing liability for anything short of
purposeful discrimination. We have no authority to do so.
In Davis v. Scherer, the Supreme Court said nothing
about "deliberate indifference" or whether and when that
standard should apply. See 468 U.S. 183 (1984). To the
extent that Plaintiffs rely on it to show that entities subject

-- 22 of 26 --

to federal civil rights laws cannot simply turn a blind eye to
a constitutional tort and thereby avert liability, the
precedent similarly provides little guidance. In Davis, the
Court addressed a state official’s qualified immunity from
damages under 42 U.S.C. S 1983 when that official, acting
under the color of state law, had violated an individual’s
civil rights. Id. at 187-88. Citing the difficulties with
determining whether an intentional wrongdoer had acted in
the "good faith" belief that he had violated no laws, the
Court decided to retain its two-part immunity test for
examining both the objective and subjective factors
underlying the wrongdoer’s state of mind. See id. at 191,
194-95.
This analysis has no place in the Title VI context, for
again it presupposes that an intentional act of wrongdoing
occurred in the first instance. Here, at least insofar as they
advance this alternative theory of relief, Plaintiffs claim not
that the NCAA committed the purposeful discrimination
required by Title VI and Alexander; but that the NCAA
acted with such disregard to Plaintiffs’ civil rights as to
make that disregard an intentional wrongdoing in and of
itself. Accepting this theory would again eviscerate the
Supreme Court’s ruling in Alexander.
Last, nor does the Sixth Circuit’s decision in Horner v.
Kentucky High School Athletic Association offer any
compelling reason to merge the "deliberate indifference"
standard with the "intentional discrimination" standard for
imposing Title VI liability. See 206 F.3d 685, 692-93. There,
in fact, the Sixth Circuit expressly declined to consider
whether liability in the analogous Title IX context could lie
when a Title IX entity -- a school association-- allegedly
29
adopted a facially neutral policy with "deliberate
indifference" and thereby committed purposeful
discrimination. Id. ("However, because of Plaintiffs’
fundamental failure to establish a violation of Title IX, let
alone an intentional violation, we need not adopt any test
at this time.").
The Horner court did note, as dicta, that it could imagine
a situation where "a deliberate indifference test might be
appropriate," as "when [p]laintiffs claim that defendant
school officials had actual knowledge of the disparate
impact of their policies, either at the time of enactment or
when subsequently brought to their attention post-
enactment, and turn a blind eye." Id. at 693 n.4. But that
dicta is of course not binding. Nor is it persuasive: The
Supreme Court has stated repeatedly that, as part of the
fact-sensitive Arlington Heights inquiry, courts ought to
consider a policy’s impact along with the other factors used
to assess whether a facially neutral policy was adopted with
an intent to discriminate. We have found no authority in
Supreme Court precedent to now conflate the tests or to
otherwise dilute the purposeful discrimination standard of
Alexander v. Sandoval and allow a Title VI claim to stand

-- 23 of 26 --

on the basis of what the Sixth Circuit itself has also
recognized as the less-strict "deliberate indifference"
standard. See Horner, 206 F.3d at 693 n.4 (recognizing that
the "discriminatory animus test" involves"a stricter
standard" than the deliberate indifference test).
C
Having determined that Plaintiffs have sufficiently alleged
a claim for purposeful discrimination, we must also
conclude that Plaintiffs have thereby satisfied two of the
three elements of the S 1981 analysis. To establish a right
to relief under S 1981, a plaintiff must show (1) that he
belongs to a racial minority; (2) "an intent to discriminate
on the basis of race by the defendant; and (3)
discrimination concerning one or more of the activities
enumerated in" S 1981, including the right to make and
enforce contracts. Brown v. Philip Morris Inc. , 250 F.3d at
797. The standard for establishing an "intent to
30
discriminate on the basis of race" is identical in the Title VI
and S 1981 contexts.
Here, the district court granted the motion to dismiss
Plaintiffs’ S 1981 claim because not only (in the court’s
view) did Plaintiffs fail to allege facts showing an intent to
discriminate; but also because they failed to show that the
NCAA had deprived them of their contract rights under the
NLI. According to the district court, Plaintiffs agreed to the
NLI condition that they satisfy the academic requirements
of Proposition 16; and that Plaintiffs therefore received all
their rights under their respective NLIs because they had
simply failed to meet this condition, meaning the NLIs had
by their own force become void.
This analysis is certainly logical. But it fails to account
for the argument about the NLI condition resulting from the
NCAA’s alleged discrimination. (See, e.g., Appellants’ Br. at
41-42 (arguing that "just as ‘racial discrimination is not
just another competing consideration,’ neither is a racially
discriminatory contractual condition just another[contract]
condition"); Pls.’ Compl. P 87 (suggesting that the NLI
condition itself is "racially discriminatory")). In our view,
this argument is persuasive. A contract term or condition
that violates public policy is void and is thus
unenforceable. E.g., Development Fin. Corp. v. Alpha
Housing & Health Care, 54 F.3d 156, 163 (3d Cir. 1995)
("The Pennsylvania Supreme Court applies the‘general rule
that an agreement which violates a provision of a statute,
or which cannot be performed without violation of such a
provision, is illegal and void.’ ") (quoting American Ass’n of
Meat Processors v. Cas. Reciprocal Exch., 588 A.2d 491,
495, 527 Pa. 59, 68 (1991)); Shadis v. Beal, 520 F. Supp.
858, 861 (E.D. Pa. 1981) ("As a general rule, courts will not
enforce contractual provisions that are illegal, and illegal in
this sense has been defined as ‘if either its formation or
performance is criminal, tortuous, or otherwise opposed to

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public policy.’ ") (citations omitted).
In the realm of contract law, the doctrine of public policy
reflects principles of law already enumerated by the
Constitution and state and federal law. See id. It follows
that this doctrine may also void a contract term if that term
offends the laws prohibiting racial discrimination. Cf. Hicks
31
v. Arthur, 843 F. Supp. 949, 957 (E.D. Pa. 1994)
(discussing a claim for wrongful discharge under the public
policy exception to the employment at-will doctrine, as well
as S 1981, and stating that the "protection of employees
from racial discrimination is without doubt a clearly
mandated public policy"); see also Spriggs v. Diamond Auto
Glass, 165 F.3d 1015, 1020 (4th Cir. 1999) ("An employer
may breach a contract for non-discriminatory reasons; this,
of course, would not give rise to a S 1981 claim. Conversely,
an employer may act in perfect accord with its contractual
rights--for example, when it terminates an at-will employee
--but it may still violate S 1981 if that action is racially
discriminatory and affects one of the contractual aspects
listed in S 1981.").
In this case, we have already determined that Plaintiffs
have stated a claim for purposeful discrimination, meaning
Plaintiffs have alleged facts sufficient to meet the second
prong of S 1981 as well. Moreover, as the precedents above
show, the NCAA could not avoid S 1981 liability here simply
because the Proposition 16 condition -- an alleged product
of purposeful discrimination -- was not satisfied. See, e.g.,
Spriggs, supra. Rather, as Plaintiffs suggest, this condition
is void on its face provided Plaintiffs can establish that the
NCAA adopted Proposition 16 (and, thus, the condition
contained in the Plaintiffs’ NLIs) for the purpose of
intentionally discriminating on the basis of race. For
purposes of the NCAA’s Rule 12(b)(6) motion, we hold that
Plaintiffs have so established that point. Accordingly, the
fact that the condition here was not performed does not
serve as a basis for vitiating Plaintiffs’ S 1981 claim. We
therefore reverse and remand Plaintiffs’ S 1981 claim too.
V
While we appreciate the NCAA’s burden of having to tend
to numerous lawsuits alleging purposeful discrimination in
the adoption of Proposition 16, neither the courts nor the
NCAA nor any other civil litigant is free to ignore the rules
of procedure, including the notice pleading provisions of
Fed. R. Civ. P. 8 and 9. By the same token, parties suing
the NCAA for such claims must be prepared to present
evidence at the summary judgment stage that would
32
substantiate their allegations. We express no opinion about
whether Plaintiffs in this case can carry that burden.

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For the reasons stated above, we affirm the dismissal of
Plaintiff Pryor’s ADA and Rehabilitation Act claims for want
of constitutional standing. But we reverse the Rule 12(b)(6)
dismissal of Plaintiffs’ Title VI and S 1981 claims insofar as
they rest on allegations of purposeful discrimination, not
deliberate indifference. We remand for additional
proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
33

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