A federal lawsuit has been filed by Grambling State University women’s basketball player Brenda McKinney against the NCAA, seeking to certify a class of Black Division I athletes who competed for HBCU schools last year. McKinney alleges that they were victims of racial discrimination by the NCAA’s system of academic enforcement.

In her motion for class certification filed last week, McKinney presents data showing that HBCU schools are far more likely than non-HBCU institutions to receive postseason bans related to the NCAA’s Academic Performance Program (APP).

In previous court filings, the NCAA has strongly objected to McKinney’s theory. One line of defense deals with discriminatory intent, which is a necessary element for McKinney’s claim under Section 1981 of the Civil Rights Act of 1866.

GRAMBLING, LA — A federal lawsuit filed by Grambling women’s basketball player Brenda McKinney against the NCAA seeks to certify a class of Black Division I athletes who competed for HBCU schools last year, alleging racial discrimination by NCAA’s system of academic enforcement. pic.twitter.com/u65uauVBXr

— Willi Quinn (@willi_quinn) July 4, 2024

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The NCAA asserts that proof of disparate impact would be insufficient, in part because allegations of different impacts on HBCU versus non-HBCU teams (both of which the NCAA points out are racially diverse) “says nothing” about how the NCAA treated a player who would be in McKinney’s proposed class.

The NCAA has also insisted that it is impossible to show race as the “but-for” cause of a player being denied postseason access. A denial, the NCAA points out, could reflect a “multitude of non-discriminatory factors” that include “institutional challenges, resource constraints, suspensions and expulsions, injuries, personal choices, illnesses, poor team performance, individual eligibility issues, the absence of postseason play for particular sports, coaching decisions [and] enrollment status.”

The NCAA has upheld the purpose of the Academic Performance Program (APP), which was developed by various stakeholders in higher education and adopted by the NCAA in 2004. The program aims to ensure that all college athletes receive a valuable education leading to graduation.

The APP imposes penalties on programs that fail to meet the standards of its two primary metrics—the Academic Progress Rate (APR) and Graduation Success Rate (GSR).

The APR is a team-based calculation that awards “retention” points for each scholarship athlete who returns to school as a full-time student, and “eligibility” points if those same students are academically qualified to compete. A team’s score is determined by dividing the total points earned by the potential points and multiplying the result by one thousand. The final APR score is based on four academic years of data.

Programs that do not meet a multi-year APR score of 930 are then subjected to punitive measures, usually in the form of postseason ineligibility.

An expert witness for the plaintiff analyzed the data and found that over nine consecutive academic years, almost four percent of HBCU teams faced postseason bans, compared to less than a tenth of a percent of non-HBCU teams.

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McKinney argues that the NCAA’s one-size-fits-all enforcement system is contrary to the governing body’s own bylaws, which call for its members’ athlete admissions and academic standards to be “consistent with the standards adopted by the institution for the student body in general.”

Furthermore, according to McKinney, the APP undermines the legally protected mission of HBCUs to provide education opportunities to all Black students, regardless of whether they are considered high-risk. The lawsuit cites evidence gleaned from discovery in asserting that the NCAA turned a blind eye to these contradictions, even when concerns were raised internally.

In 2011, Jennifer Strawley, the NCAA’s then 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. But the NCAA promised in its bylaws to tie those measures to the student bodies of schools and that is where the NCAA has failed.”

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. Three months later, the NCAA moved for summary judgment contending, among other points, that Manassa’s claims were outside the four-year statute of limitations and that he lacked standing to represent an injunctive relief class since he was no longer a college athlete. Fegan attempted a last-ditch effort to insert McKinney as the class representative in that action, but the court rejected that move, granted the NCAA 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.

The NCAA contends that McKinney lacks standing to pursue individual and class injunctive relief claims but for different reasons than Manassa. Because Grambling’s women’s basketball team has never faced an APP-related postseason ban, the NCAA wrote to the court in October, that there is “no indication that the team is at any imminent risk of incurring a postseason penalty (or any APP penalty)” through the remainder of McKinney’s collegiate career.

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In that same light, the NCAA maintains that the possibility of “future injury in the form of postseason penalties” is insufficient to advance a claim. The NCAA argues an injury that hasn’t occurred and might not occur is “too speculative and conjectural to confer standing,” even more so because the Grambling women’s basketball team “has never experienced a loss of access to postseason competition.”

Fegan nonetheless expressed confidence that McKinney’s action would surpass the untimely end of Manassa while conceding its challenges in ultimately prevailing.

“It is not going to get dismissed on the merits,” Fegan predicted. “There is more than enough evidence to go to a jury. I have no concerns 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 credited McKinney, who transferred to Grambling from Chipola College in Florida, for her willingness to serve as a named plaintiff in the lawsuit, acknowledging the acute hazards the player has faced because of it.

“It is really hard to be a student-athlete bringing these cases,” Fegan said. “They put their athletic career at risk and risk the ire of their coaching staff. We have talked to HBCU presidents who are interested [in helping] but who can’t participate publicly because of fear of retribution from the NCAA.”

A settlement conference in the lawsuit is set to take place on July 16 after U.S. Magistrate Judge Mark J. Dinsmore denied the NCAA’s request for it to be delayed. 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.