• NCAA's New Sickle-Cell Testing Rule: Does it Discriminate Against or Protect Athletes?
  • August 26, 2010
  • Law Firm: Jackson Lewis LLP - White Plains Office
  • As the college football season gets underway, the debate on sickle-cell testing of collegiate athletes is making headlines.  The NCAA’s Division I Legislative Council has approved a new rule permitting voluntary testing of student-athletes to determine if they are carriers of the rare, but potentially deadly, sickle-cell trait.  Intense exercise can cause rapid deterioration of the muscles and death in those with the sickle-cell trait.  Because the trait is found in a much higher percentage of African-Americans (8%) than White Americans (less than 1%), certain groups, including the Sickle Cell Disease Association of America, believe that this testing discriminates against African-Americans.  Proponents of testing argue that even before the new rule, 64% of Football Bowl Subdivision (formerly Division 1-A) institutions already screen their athletes for the sickle-cell trait. 

    Substantial Legitimate Justification Exception
    The legal question is whether implementation of a voluntary test constitutes actionable discrimination under Title VI of the Civil Rights Act of 1964.  Title VI provides, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”  Because colleges and universities in the United States receive some type of federal financial assistance, their conduct falls under the purview of Title VI.

    The U.S. Supreme Court has held that institutions’ regulations may prohibit practices having a disparate impact on protected groups.  Thus, a recipient of federal funds, e.g., a university, may violate Title VI when it implements a neutral procedure or practice that has the effect of discriminating against a protected class.  The policy or practice that is non-discriminatory on its face may yet result in disproportionately adverse impact on a group protected by Title VI.
     
    Notwithstanding any discriminatory impact, an institution may nevertheless implement such a policy if the institution has a “substantial legitimate justification” for enacting it.

    Policy Justified?
    The NCAA’s new sickle-cell trait testing policy exemplifies a policy that is neutral on its face but, based on currently available statistics, could have a disproportionate impact on a group protected by Title VI.  That a sickle-cell test disproportionately impacts African-American athletes is not in dispute.  The question is will the test adversely impact African-Americans in their ability to participate, and, if so, do the NCAA and its university members have a substantial legitimate justification under Title VI to implement it.

    Although 64% of universities with major football programs conduct sickle-cell screening, nothing shows that athletes from these schools have been denied participation in competition because of a positive test.  Indeed, screening helps coaches and trainers to understand the parameters in which a player with the sickle-cell trait can work without causing irreparable damage or death. 
    Institutions may have a strong argument that they are substantially justified in requiring testing.  A university has a duty to protect the health and safety of all of its students.  The responsibility “to protect the health of and provide a safe environment for each of its participating student-athletes” is a mandate in the NCAA’s Membership Obligations.  Does this mean that a NCAA member institution is required to test for the sickle-cell trait?

    To meet the substantial legitimate justification exception of Title VI, a university must demonstrate that there is no equally effective alternative method with a less discriminatory impact.  For example, is it equally effective to implement training for all athletes to a degree that does not risk even those with the sickle-cell trait?  Would reducing the training regimens in this manner affect the performance of the team on the field in competition?  Can trainers monitor effectively all athletes in the same manner in which they would monitor those with the sickle-cell trait, thus making knowledge of the trait obsolete?  If all schools had the same restrictions, would it even matter?

    Additionally, the opt-out provision in the NCAA testing rule may prove to be a defense to the duty to protect the health of student-athletes.  A university would meet its obligation to students by offering the test.  An individual cannot be prevented from refusing the test; thus, a university can argue it should not be liable for any adverse consequences that may result.
     
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    Certainly, universities must walk a fine line between creating a test that discriminates indirectly against athletes while protecting those same athletes and allowing coaches to understand the limits to which each person can be pushed.  As the football season begins in the dog days of August, both advocates and skeptics of the rule will look carefully at the testing’s impact on the field.  See, e.g., http://www.cnn.com/2010/HEALTH/08/04/ncaa.sickle.genetic.screening/index.html?hpt=Sbin.