Full opinion text
OPINION BUCKWALTER, District Judge. The primary question presented by the parties’ cross-motions for summary judgment is whether Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d et seq., and certain implementing regulations promulgated thereunder, prohibit colleges and universities, through the auspices of the National Collegiate Athletic Association (“NCAA”), from requiring students to achieve a minimum score on either of two standardized tests as a condition of eligibility to participate in intercollegiate athletics and/or receive athletically related financial aid during their freshman year. For the reasons discussed below, the Court holds, as a matter of law, that the NCAA is subject to suit under Title VI, and that the NCAA’s initial eligibility rule has an unjustified disparate impact against African-Americans. Accordingly, Plaintiffs’ motion is GRANTED and Defendant’s motion is DENIED. I. BACKGROUND This is a putative class action lawsuit brought by four African-American student-athletes (Tai Kwan Cureton, Leatriee Shaw, Andrea Gardner, and Alexander Wesby), alleging that they were unlawfully denied educational opportunities as freshmen through the operation of initial eligibility rules by the NCAA. Specifically, they claim that these rules (“Proposition 16”) utilize a minimum test score requirement that has an unjustified disparate impact on African-American student-athletes. All four named plaintiffs failed to achieve initial eligibility under these rules because they did not meet the minimum standardized test cutoff score and consequently, were denied the opportunity to compete in intercollegiate athletics during their freshman year at Division I schools, denied admission to Division I schools, denied athletic scholarships by Division I schools (or provided with less athletically related financial aid), and/or denied recruiting opportunities by Division I schools (or provided with fewer recruiting opportunities). Apart from requesting class certification, Plaintiffs pray for the entry of a declaratory judgment of Title VI liability; a preliminary and permanent injunction enjoining the NCAA from continued operation of Proposition 16; a notification to Division I schools that student-athletes who satisfy the minimum GPA/core course requirement of Proposition 16 are immediately eligible to participate in freshman year athletics; and the provision of a fourth year of eligibility under the NCAA rules for those student-athletes who have lost a year of freshman eligibility at Division I schools due to the minimum test score requirement of Proposition 16. On October 8, 1997, this Court held that, while a private right of action exists under Title VI and its implementing regulations, Plaintiffs must still establish: (1) that the NCAA receives federal financial assistance, and (2) that the NCAA’s minimum test score requirement in Proposition 16 violates Title VI because the requirement has an unjustifiable disparate impact on African-American student-athletes. See Cureton v. NCAA, Civ. A. No. 97-131, 1997 WL 634376, at *2 (E.D.Pa. Oct. 8, 1997). Approximately one year later to the day, the Court received the first of the parties’ voluminous submissions in their cross-motions for summary judgment. It would be difficult to summarize the enormous amount of factual information presented in the record, particularly since much of it is in the form of charts, tables, and graphs. However, some background on the NCAA and Proposition 16 is necessary for an understanding of this Court’s opinion. The NCAA is a voluntary, unincorporated association of approximately 1,200 members, consisting of colleges and universities, conferences and associations, and other educational institutions. Its active members are four-year colleges and universities located throughout the United States. The active members are divided, for purposes of bylaw legislation and competition in intercollegiate championship events, into Division I, II, and III, with further classification of Division I members into Division I-A Football and Division I-AA Football. The only funds received by the NCAA from its members are in the form of annual dues determined by the members. The record, however, is not clear as to whether the NCAA directly receives federal financial assistance. While some bylaws of the NCAA are applicable to all divisions, each division may, and has, adopted bylaws applicable only to that division. This lawsuit deals with the promulgation of a bylaw affecting initial eligibility only in Division I. Prior to 1971, freshmen were not eligible to participate in varsity athletics. Various eligibility rules affecting freshman participation in athletics' were put into effect thereafter. During the early 1980s, public attention focused on the perceived lack of adequate academic preparation and success of student-athletes. Evidence existed that student-athletes were being exploited for their athletics talents and were exhausting their athletics eligibility without any realistic hope of obtaining an undergraduate degree. However, at the same time, student-athletes were graduating at rates comparable to non-athletes, and African-American student-athletes were graduating at rates higher than African-American students in general. After debating the issue for several years, the Division I membership implemented Proposition 48 during the 1986-1987 academic year, requiring high school graduates to present a 2.000 GPA in 11 academic core courses and a minimum score of 700 on the SAT (or a composite score of 15 on the ACT) before being allowed to participate in freshman athletics. If the criteria in this “double-cut” or “conjunctive” rule were met, student-athletes were declared “eligible” for competition, practice, and athletically related financial aid immediately upon enrollment. Otherwise, they were barred from such opportunities during their first year. The standards, however, neither addressed a student-athlete’s admission to a particular institution, nor precluded a student-athlete from receiving institutional financial aid generally available to all students. The Proposition 48 requirements were phased in by the 1988-1989 academic year and, over time, student-athletes have improved their academic performance — particularly African-American student-athletes — as measured by an increase in their graduation rates. The initial eligibility rules were modified in 1992 (fully implemented in the 1996— 1997 academic year) with the adoption of Proposition 16 (ultimately codified at NCAA Bylaw 14.3), which increased the number of required core courses to 13 and introduced an initial eligibility index or “sliding scale.” Using the index, the student-athlete could establish eligibility with a GPA as low as 2.000, provided the student also presented an SAT score of 1010 or an ACT sum (as opposed to composite) score of 86. At the other end of the index, a minimum 820 SAT or 68 ACT sum score establishes the floor for students with GPAs of 2.500 or higher. Statistically speaking, the resultant effect of Proposition 16 was to modify Proposition 48 by increasing the weight assigned to GPAs relative to test scores: while the core GPA cutoff score of 2.000 is set at two standard deviations below the national mean, the SAT/ACT test cutoff scores are set at only one standard deviation below the national mean, resulting in a heavier weighting of the standardized test. A student-athlete not qualifying under Proposition 16 may become a partial qualifier by presenting an SAT score between 720 and 810 (ACT score between 59 and 67) and a core GPA that produces a GPA-test combination score comparable to that required of qualifiers. Partial qualifiers may not compete in intercollegiate athletics, but may be eligible for athletically related financial aid. II. DISCUSSION A. STANDARD OF REVIEW Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is “material” if it might affect the outcome of the case under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Additionally, an issue is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. On summary judgment, it is not the court’s role to weigh the disputed evidence and decide which is more probative; rather, the court must consider the evidence of the non-moving party as true, drawing all justifiable inferences arising from the evidence in favor of the non-moving party. See id. at 255, 106 S.Ct. 2505. If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. See id. “This standard does not change when the issue is presented in the context of cross-motions for summary judgment.” Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir.1987). When the non-moving party will bear the burden of proof at trial, the moving party’s burden can be “discharged by 'showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325,106 S.Ct. 2548. If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). In doing so, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Go. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the evidence of the non-moving party is “merely colorable,” or is “not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at 249-50,106 S.Ct. 2505. Counsel have made a myriad of arguments, and an attempt has been made to address most of them. By not commenting on any particular argument, or omitting a citation to a document in the record, the Court is not implying that it has either rejected or adopted the argument, or failed to review the record in its entirety. B. IS THE NCAA SUBJECT TO TITLE VI? Having previously determined that the NCAA is a program or activity covered by Title VI, see Cureton v. NCAA Civ. A. No. 97-131, 1997 WL 634376, at *2 (E.D.Pa. Oct.8, 1997), the Court must also decide, as a preliminary matter, whether the NCAA receives federal financial assistance before subjecting the NCAA to the strictures of Title VI and its implementing regulations, see 42 U.S.C. § 2000d (prohibiting discrimination “on the ground of race ... under any program or activity receiving Federal financial assistance”). Plaintiffs attest that in response to a Request for Admissions they propounded, the NCAA admitted that it receives dues from member schools who are recipients of federal funds. Accordingly, Plaintiffs conclude that the NCAA indirectly receives federal financial assistance because the NCAA acts as the member institutions’ agent with respect to the governance of intercollegiate athletics. Plaintiffs also contend that, under Smith v. NCAA, 139 F.3d 180 (3d Cir.), cert, granted, — U.S. -, 119 S.Ct. 31, 141 L.Ed.2d 791 (1998) (argued Jan. 20, 1999), the NCAA would be subject to Title VI as an indirect recipient of federal funds by virtue of its relationship to its member colleges and universities. Finally, Plaintiffs maintain that the NCAA is a recipient of federal funds through its alter ego, the National Youth Sports Program Fund (“Fund”). In response, the NCAA contends that Plaintiffs’ continued reliance on Smith is increasingly dubious in light of the arguments. made in the Supreme Court by the Solicitor General of the United States and Smith’s counsel, each of whom cast some doubt on the Third Circuit’s analysis. The NCAA also asserts that, in the October 8th order, this Court rejected the argument that the mere receipt of dues from its membership may subject the NCAA to the provisions of Title VI, although the Third Circuit in Smith had ruled in favor of this argument in the context of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. To be clear, in the October 8, 1997 order, this Court specifically left it to Plaintiffs to establish at trial that the NCAA is subject to suit under Title VI. See Cure-ton, 1997 WL 634376, at *2 (“at the trial on the merits of this case, plaintiff will have to prove: (1) that the NCAA receives federal financial assistance”). Specifically, the Court first ruled that, under the definition found in 42 U.S.C. § 2000d-4a, “the NCAA appears to be a program or activity covered by Title VI.” Id. Then, contrary to the NCAAs assertion that the Court rejected the argument that the mere receipt of dues from its membership may subject the NCAA to the provisions of Title VI, the Court only refrained from determining whether “the National Youth Sports Program Fund is nothing more than a sham to disguise the NCAA’s use of federal funds for its own benefit” on the basis of the record then before it. Id. Nothing in the Court’s order precluded Plaintiffs from proceeding on the theory that the Fund is the alter ego of the NCAA at a trial on the merits. Significantly, the Court also took under advisement the other theories advanced by Plaintiffs for finding the NCAA subject to suit under Title YI and thus, rendered no opinion on their viability. In any event, it appears that the NCAA accurately predicted the Supreme Court’s decision in Smith. In the midst of this Court’s consideration of the issue, the Supreme Court vacated the judgment of the Third Circuit and remanded the case for further proceedings because the appellate court had “erroneously held that dues payments from recipients of federal funds suffice to subject the NCAA to suit under Title IX.” NCAA v. Smith, 119 S.Ct. 924, 930 (1999). Smith is applicable to this case because “Title IX was patterned after Title VI of the Civil Rights Act of 1964. Except for the substitution of the word ‘sex’ in Title IX to replace the words ‘race, color, or national origin’ in Title VI, the two statutes use identical language to describe the benefited class.... The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years.” Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (footnotes omitted). See also Smith, 119 S.Ct. at 928 n. 3 (stating that “[t]he scope of several other federal anti-discrimination measures is defined in nearly identical terms” and citing Title VI). Thus, under the rationale of Smith, Plaintiffs may no longer rely solely on this theory to establish that the NCAA receives federal funds sufficient to subject the NCAA to suit under Title VI because “[a]t most, the Association’s receipt of dues demonstrates it indirectly benefits from the federal assistance afforded its members. This showing, without more, is insufficient to trigger Title [VI] coverage.” Id., 119 S.Ct. at 929. Indeed, the regulations implementing Title VI are even more explicit than the Title IX regulations at issue in Smith in excluding “any ultimate beneficiary” as a “recipient” for Title VI purposes. 45 C.F.R. § 80.13(1) (1999); accord 34 C.F.R. § 100.13(1) (1999); see also Smith, 119 S.Ct. at 929 (holding that “entities that only benefit economically from federal assistance are not” recipients). However, as the above-quoted language suggests, Plaintiffs are not precluded from using this theory in combination with other facts to establish that the NCAA receives federal funds sufficient to trigger Title VI coverage. See Smith, 119 S.Ct. at 929 (offering “earmarked” federal funds as one example of such a fact). Nor are Plaintiffs precluded from advancing alternative theories for bringing the NCAA within the purview of Title VI. See id., 119 S.Ct. at 930 nn. 6-7. While the law of the case doctrine properly constrains the scope of this Court’s reconsideration of a prior order, in light of the Supreme Court’s intervening decision on this issue and the lack of any prejudice to the parties, the Court undertook a thorough review of the record and the numerous briefs previously submitted for this Court’s consideration. See Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997) (identifying prudential considerations limiting a trial court’s reconsideration of a prior decision); see also Landgraf v. USI Film Prods., 511 U.S. 244, 245, 114 S.Ct. 1483, 128 L.Edüd 229 (1994) (reiterating the principle that “a court should apply the law in effect at the time of decision”). Consequently, the Court is now prepared to make definitive rulings on the alternative theories advanced by Plaintiffs. Initially, the Court notes that this case is in a much different, more developed procedural posture than Smith. Smith involved a district court’s denial of leave to amend a complaint. Here, the parties have engaged in extensive discovery, resulting in a substantial factual development of the record and the present cross-motions for summary judgment. Moreover, the parties have collectively submitted five post-Smith letter briefs that include, inter alia, additional arguments, evidentiary materials, and copies of briefs filed with the Supreme Court in Smith. Thus, the Court concludes that the parties have thoroughly briefed this issue and definitive rulings are possible. Plaintiffs appear to be advancing four additional theories to support a conclusion that the NCAA is subject to the reach of Title VI: (1) that the NCAA directly receives federal financial assistance through the Fund (which indisputably is a recipient of federal funds) because the Fund is nothing more than the NCAA’s alter ego; (2) that the NCAA indirectly receives federal financial assistance through the Fund due to the NCAA’s complete control over the Fund; (3) that members schools who receive federal funds have created and comprise the NCAA mid that the NCAA governs its members with respect to athletics rules; and (4) that recipients of federal financial assistance have ceded controlling authority over a federally funded program to the NCAA, who then becomes subject to Title VI regardless of whether it is itself a recipient. As for the first theory, this Court held on October 8, 1997 that a ruling on whether the NCAA directly receives federal financial assistance through its alter ego, the Fund, “can neither be made nor refuted based upon the present record before the court.” Cureton, 1997 WL 634376, at *2. Upon reconsideration, the Court essentially adheres to that earlier decision as the present record provides no basis to disturb it and thus, concludes that Plaintiffs have failed to sustain their heavy burden of “piercing the corporate veil” sufficient to have the Fund construed as the NCAA’s alter ego. However, as for the second theory, the Court determines that Plaintiffs have sustained their burden of proving that the NCAA exercises effective control and operation of the Community Services Block Grant given by the United States Department of Health and Human Services to be construed as an indirect recipient of federal financial assistance. While, on this record, there was nothing improper in establishing a separate corporation to manage the National Youth Sports Program and for the corporation to be the designated recipient of the block grant, overwhelming evidence in the record supports the fact that the Fund is ultimately being controlled by the NCAA. That is, although the Fund is the named recipient of the block grant, it is merely a conduit through which the NCAA makes all of the decisions about the Fund and the use of the federal funds. The NCAA maintains that there is only an administrative services contract between itself and the Fund. However, the Court was not presented with a copy of that contract and, even if the contract were presented, the true nature of the relationship and operations between the two entities has been firmly revealed by the record. Consequently, as the NCAA is deemed a recipient of federal funds under this theory, all of its operations, including its promulgation of initial eligibility rules, are covered by Title VI. See 42 U.S.C. § 2000d-4a (4) (establishing entity-wide coverage). Finally, the Court considered the third and fourth theories together because, as the Court understands them, they are simply variants of one another, differing only in degree. The Court determines that Plaintiffs have also sustained their burden of proving that the NCAA is subject to suit under Title VI irrespective of whether it receives federal funds, directly or indirectly, because member schools (who themselves indisputably receive federal funds) have ceded controlling authority over federally funded programs to the NCAA. The NCAA plays a pivotal role in “main-tainting] intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body.” NCAA v. Tarkanian, 488 U.S. 179, 183, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988). Because of the unique nature of intercollegiate athletics and the various industries that have grown around it, it is one of the few educational programs of a college or university that cannot be conducted without the creation of a separate entity to provide governance and administration. In this vein, the NCAA has adopted “legislation,” like Proposition 16, “governing the conduct of the intercollegiate athletic programs of its members.... By joining the NCAA, each member agrees to abide by and to enforce such rules.” Tarkanian, 488 U.S. at 183, 109 S.Ct. 454. Specifically, in the case of eligibility requirements, those rules are “designed to assure proper emphasis on educational objectives, to promote competitive equity among institutions and to prevent exploitation of student athletes.” NCAA Const., art. 2, rule 2.12 (Exhibit A to Docket No. 11). Thus, the creation of this supervising association is not only nee-essary for the promotion of intercollegiate athletics, but the existence of that entity is merely a consequence of the inherent nature of the member institution’s intercollegiate athletics programs. The NCAA places much stock in Article 2, rule 2.1.1 of its constitution, which states that “[i]t is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association.” Moreover, Article 6, rule 6.01.1 states that “[t]he control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself.” However, these rules merely reinforce the Court’s understanding that the NCAA and its members have agreed that the schools exercise control over their intercollegiate athletics programs to the extent permitted by the constitution and bylaws of the NCAA. Once legislation affecting the membership nationwide (or a subset of the institutions like in the case of Proposition 16) is adopted by the NCAA, it becomes enforceable and binding on the member schools. As in any relationship in which authority is transferred, a school is always free to choose not to abide by the legislation, but it will then either suffer sanctions at the hands of the NCAA or be forced to renounce its membership in the association, a decision that would have grave consequences for its intercollegiate athletics program. Whether characterized as a “delegation” or an “assignment” of “controlling authority,” “regulation,” or “supervision,” Plaintiffs have established on this record that the member colleges and universities have granted to the NCAA the authority to promulgate rules affecting intercollegiate athletics that the members are obligated to abide by and enforce. Under these facts, the NCAA comes sufficiently within the scope of Title VI irrespective of its receipt of federal funds. While each of the member schools is also undeniably subject to Title VI for a challenge to Proposition 16, the NCAA, in light of the fact that it is the decisionmaking and enforcement entity behind legislation adopted by, and enforced against, its membership, is also subject to Title VI. The import of such a determination is that the NCAA is subject to Title VI for claims relating to programs or activities to which those federal funds are directed. The statute proscribes discrimination “on the ground of race ... under any program or activity receiving Federal financial assistance”’ 42 U.S.C. § 2000d. Thus, because there is a nexus between the NCAA’s allegedly discriminatory conduct with regards to intercollegiate athletics and the sponsorship of such programs by federal fund recipients, the NCAA is subject to Title VI for a challenge to Proposition 16. Accordingly, the Court holds that, under either the “indirect recipient” or “controlling authority” theories, the NCAA is subject to Title VI for a challenge to Proposition 16. C. DOES PROPOSITION 16 HAVE AN UNJUSTIFIED DISPARATE IMPACT? In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court introduced the theory of disparate impact discrimination by holding that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Since then, “facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof that the employer adopted those practices with a discriminatory intent.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777,101 L.Ed.2d 827 (1988) (O’Connor, J., plurality opinion). The disparate impact theory is premised upon the notion that “some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Id. at 987, 108 S.Ct. 2777. That is, it does not purport to strive for equal results at the institution, but to ensure that individuals are not the victims of unintentional discrimination and thus, treated unequally. See The Supreme Court 1988 Term Leading Cases, Title VII — Evidentiary Requirements in Disparate-Impact Cases, 103 Harv. L.Rev. 350, 356-57 (1989) (arguing that the Supreme Court reshaped disparate impact law in accordance with a theory of “equal treatment,” which “seeks to guarantee fair process,” rather than a “theory of equal achievement, which strives for fair results — racial parity after years of discrimination”) (emphasis in original). Moreover, “[t]he evidence in these ‘disparate impact’ cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities.” Watson, 487 U.S. at 987, 108 S.Ct. 2777. Although the disparate impact theory was originally developed in cases involving employment discrimination, courts have subsequently applied the theory to claims brought pursuant to the regulations implementing Title VI. See, e.g., NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1331 (3d Cir.1981); New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); Quarles v. Oxford Mun. Separate Sch. Disk, 868 F.2d 750, 754 n. 3 (5th Cir.1989); Larry P. v. Riles, 793 F.2d 969, 982 nn. 9-10 (9th Cir.1984); Elston v. Tal-ladega County Bd. of Educ., 997 F.2d 1394,1407 & n. 14 (11th Cir.1993). In order to establish a prima facie case of disparate impact discrimination, a plaintiff must initially demonstrate that the application of a specific facially neutral selection practice has caused an adverse disproportionate effect, to wit, excluding the plaintiff and similarly situated applicants from an educational opportunity. See Wards Cove Packing Co. v. Ato-mo, 490 U.S. 642, 656-57, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (superseded in part by statute). Where such a showing has been made, the burden of rebuttal shifts to the defendant, who must demonstrate that the selection'practice causing the disproportionate effect is nonetheless justified by an “educational necessity,” which is analogous to the “business necessity” justification applied under Title VI. See Board of Educ. of the City Sch. Disk of New York v. Harris, 444 U.S. 130, 151, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979). The defendant bears only a burden of producing evidence to sustain its educational necessity. See Wards Cove, 490 U.S. at 659-60, 109 S.Ct. 2115. But cf. 42 U.S.C. §§ 2000e(m), 2000e-2k(l)(A) (requiring the defendant under Title VII to bear both a burden of production and persuasion on its business necessity justification). Finally, even where a defendant meets that burden, a plaintiff may ultimately prevail by discrediting the asserted educational justification, or by proffering an equally effective alternative practice that results in less racial disproportionality while still serving the articulated educational necessity. See Watson, 487 U.S. at 998, 108 S.Ct. 2777. The ultimate burden of proving that the selection practice caused a discriminatory effect against a protected group always remains with the disparate-impact plaintiff. See Wards Cove, 490 U.S. at 659-60,109 S.Ct. 2115. 1. Whether Proposition 16 Causes a Racially Disproportionate Effect In Wards Cove, the Supreme Court emphasized that a racially disproportionate effect is typically shown through the presentation of competent statistical evidence comparing the racial composition of candidates who are selected by the practice in question and the racial composition of the qualified candidate pool. See 490 U.S. at 650-55, 109 S.Ct. 2115. Without such carefully tailored statistical proof, there may be an insufficient basis to conclude that the causation requirement is satisfied. Plaintiffs have not presented their evidence of racially disproportionate effect in this fashion, and the NCAA has not drawn the Court’s attention to this. Due to the interplay between enrollment and eligibility, the Court highly doubts that either party could have presented accurate statistics in this manner. In any event, Plaintiffs are not limited to such a showing because “statistical proof can alone make out a prima facie case,” id. at 650, 109 S.Ct. 2115, and there is no rigid mathematical threshold of disproportionality that must be met to demonstrate a sufficiently adverse impact on African-Americans in a disparate impact case, see Watson, 487 U.S. at 994-95, 108 S.Ct. 2777. Instead, the plaintiff may offer statistical evidence sufficient to show that the practice in question has caused the exclusion of candidates for a particular opportunity because of their membership in a protected group. See id. at 994, 108 S.Ct. 2777. The Supreme Court’s “formulations” have only “stressed that statistical disparities must be sufficiently substantial that they raise ... an inference of causation.” Id. at 994-95,108 S.Ct. 2777. Accordingly, Plaintiffs contend they have established their prima facie case by pointing to a July 27, 1998 NCAA memorandum to the Division I membership in which NCAA research data relating to Proposition 16 is summarized. In that memorandum, the NCAA makes the following observations about Proposition 16: African-American and low-income student-athletes have been disproportionately impacted by Proposition 16 standards. Of those African-American student-athletes appearing on a Division I Institution Request List submitted to the NCAA Initial Eligibility Clearinghouse, 26.6 percent did not meet Proposition 16 standards in 1996 and 21.4 percent did not qualify in 1997 (compared to 6.4 percent of white student-athletes in 1996 and 4.2 percent in 1997). This disproportionate impact also is seen (to a lesser degree) for other ethnic-minority groups. * X xx*x Preliminary enrollment data for 1994-1996 show a drop in the proportion of African-Americans among first-year scholarship athletes in Division I from 23.6 percent to 20.3 percent (accompanied by a 2.0 percent increase in white student-athletes and a 1.3 percent increase in student-athletes from all other ethnic groups combined). For both African-American and low-income student-athletes, the single largest reason for not meeting Proposition 16 standards was a failure to meet the minimum standardized test score. The impact of the minimum standardized test score in Proposition 16 is partly a result of this standard being twice as stringent as the GPA minimum in terms of national norms. Specifically, the cut score on the ACT/ SAT (68/820) is set about one standard deviation below the national mean while the core GPA cut score (2.000) is set at two standard deviations below the mean. Among a representative national population of students, it would be expected that more than 15 percent would be affected by the test minimum while less than three percent would be affected by the GPA minimum. Differences in the Proposition 16 impact on minority groups and low-income student-athletes are in line with current group differences in national ACT/SAT score distributions. NCAA Division I Academics/Eligibility/Compliance Cabinet Subcommittee on Initial-Eligibility Issues Mem., July 27, 1998, at 7 (Exhibit C to Pis.’ Opening) (Plaintiffs’ emphasis). Moreover, the memorandum specifically states that “a disproportionate number of ethnic minorities are affected adversely by the imposition of these rules.” Id. at 5. Plaintiffs also point to a July 29, 1994 memorandum issued just prior to the adoption of Proposition 16, which states in the Executive Summary: “The Association’s own research ... provides dramatic evidence of the disparate impact on both the current rules and those scheduled to go into effect in 1995 [Proposition 16] on minority student athletes.” Report of the Special NCAA Comm, to Review Initial-Eligibility Standards Mem., July 29, 1994, at 2, NCAA 15639 (Exhibit A to Pis.’ Opening) (Plaintiffs’ emphasis). Finally, Plaintiffs look to a report prepared by the United States Department of Education, which cites that only 46.4% of the African-American college-bound high school seniors met Proposition 16’s requirements, as compared to approximately 67% of white college-bound high school seniors. See Pis.’ Ans. (Exhibit 3 thereto). The report also indicates that the Proposition 16 cutoff score was the factor that caused the greatest degree of disparate impact because only 67.4% of African-American college-bound student-athletes cleared the test score hurdle, as compared to 91.1% of white college-bound student-athletes. See id. According to Plaintiffs, the essence of the disparate impact is that Proposition 16’s cutoff score affects people of all races differently in that white student-athletes apply to Division I schools in greater numbers and are excluded less, while African-American student-athletes apply to Division I schools in smaller numbers and are excluded more. Despite these and other similar admissions from its own documents, the NCAA suggests that the issue of disproportionate effect should be framed somewhat differently. The NCAA characterizes Plaintiffs as focusing on the alleged disparate impact of Proposition 16 on African-Americans because of the “well-known and continuing discrepancy” in the distribution of standardized test scores for black and white students. And yet, the NCAA notes that Plaintiffs are not alleging that either the SAT or the ACT is racially biased. While recognizing that this black-white gap in test scores necessarily means that a larger share of black students than white students who take the test will score below a given minimum, the NCAA instead posits that the educational opportunity at issue here is not the opportunity to participate in college athletics during the freshman year but rather, the opportunity to obtain a college degree. The NCAA further argues that the ultimate goal of Proposition 16 is to raise the African-American student-athlete graduation rate. That is, the standards project that the black graduation rate will increase to 59.2%, which would be 94.8% of the projected white graduation rate of 62.5%. See Petr. Aff. ¶ 4 (Exhibit C to Def.’s Response). The NCAA maintains that Plaintiffs have not disputed that African-Americans are graduating at higher rates; that the gap between African-Americans and white graduation rates has declined since the adoption of stricter initial eligibility rules; or that more African-American student-athletes are graduating since the adoption of the test score requirement. The NCAA also contends that the increased number of African-Americans receiving athletic scholarships relative to their composition in the general student body is further proof of how college athletics has, in fact, benefited this group. According to the NCAA, although the initial eligibility rules have reduced the number of incoming African-American student-athletes, they have concomitantly resulted in creating more opportunities to graduate for those athletes that meet the eligibility standards. Thus, if graduation, and not freshman-year athletics, is the opportunity at stake here, the NCAA maintains that Plaintiffs have failed to demonstrate the requisite disproportionate effect. Notwithstanding its attempt to reframe the lawsuit, the NCAA never disputes the veracity of the statements made in their own documents. These admissions and the bare statistics themselves plainly evince that African-Americans are being selected by Proposition 16 at a rate disproportionately lower than whites sufficient to infer causation. The Court additionally notes that, in cases challenging selection practices that function as a pass/fail barrier (like the standardized test score cutoff of Proposition 16), a common basis for determining the statistical significance of the disparity is the Equal Employment Opportunity Commission’s four-fifths (or 80%) rule. See 2 Barbara Lindemann & Paul Gross-man, Employment Discrimination Law, at 1729 (3d ed.1996). Under that rule, the EEOC generally presumes a selection rate which is less than four-fifths (or 80%) of the rate for the group with the highest rate as evidence of adverse impact. See 1978 Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4(D) (1999). Although this rule has been the subject of criticism because of its oversimplification, see, e.g., Watson, 487 U.S. at 995 n. 3, 108 S.Ct. 2777, the EEOC guidelines are “entitled to great deference,” Al-bemarle, 422 U.S. at 431, 95 S.Ct. 2362 (quoting Griggs, 401 U.S. at 434, 91 S.Ct. 849). Neither party has drawn the Court’s attention to the EEOC’s rule, but applying it here shows that, in most instances, the selection rate of African-Americans is less than four-fifths that of the white selection rate. Because Proposition 16 relies, in part, on standardized test scores, it is undeniable that there will be some disparity between blacks and whites at some point in the eligibility determination. “The data suggest that any rule that is imposed will have a disproportionate effect on minority student-athletes (because of the difference in the distribution of minority [GPAs] and test scores) both in terms of false nega-fives and overall number declared ineligible.” NCAA Special Comm, to Review Initial Eligibility Standards Mem., May 29, 1994, at 1, NCAA 15916 (Exhibit 20 to Pis.’ Ans.) (emphasis in original). It is precisely this educational opportunity that Plaintiffs are challenging, and not the opportunity to graduate. Moreover, the Court finds unpersuasive the NCAA’s argument that a selection practice having a disproportionate “beneficial” impact on the protected group can compensate for any disproportionate adverse impact on that same group. That singular fact misdirects the Court’s inquiry. The alleged beneficial impact (increased graduation rates) redounds at the “back-end” while the adverse impact occurs up-front. [Irrespective of the form taken by the discriminatory practice, an [institution’s] treatment of other members of the plaintiffs’ group can be “of little comfort to the victims of ... discrimination.” Title [VI] does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex [benefited]. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory. Connecticut v. Teal 457 U.S. 440, 455, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 342, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Accordingly, the Court concludes that Plaintiffs have established a prima facie showing of a racially disproportionate ef-feet sufficient to shift the burden of rebuttal to the NCAA. 2. Whether Proposition 16 Is Justified by an Educational Necessity Under the educational necessity prong of the analysis, “the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate [educational] goals of the [institution].” Wards Cove, 490 U.S. at 659, 109 S.Ct. 2115. That is, the practice in question must bear a demonstrable “manifest relationship” to a legitimate goal. See Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) (quoting Griggs, 401 U.S. at 432, 91 S.Ct. 849). “The touchstone of this inquiry is a reasoned review of the [institution’s] justification for [its] use of the challenged practice.... [TJhere is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ ” to the institution. Wards Cove, 490 U.S. at 659, 109 S.Ct. 2115. Rather, the defendant’s burden of production at this stage is met only when the institution is able to offer some proof that the device serves identified legitimate and substantive [educational] goals. That is, the defendant’s burden [is] to identify the particular [educational] goal and to present evidence of how the [challenged practice] “serves in a significant way” the identified goal. Merely being abstractly rational, as opposed to arbitrary, would not suffice. The defendant, therefore, has some burden of presenting objective evidence ... factually showing a nexus between the selection device and a particular [educational] goal. Without evidence of such a relationship it cannot be said that the defendant has presented any evidence that the “challenged” practice serves, in a significant way, the legitimate [educational] goals of the [institution]. Newark Branch, NAACP v. Town of Harrison, New Jersey, 940 F.2d 792, 804 (3d Cir.1991) (quoting Mack A. Player, Is Griggs Dead? Reflecting (Fearfully) on Wards Cove Packing Co. v. Atonio, 17 Fla. St. U.L.Rev. 1, 32 (1989)). The NCAA has proffered the following two goals as underlying the promulgation of Proposition 16: (1) raising student-athlete graduation rates, and (2) closing the gap between black and white student-athlete graduation rates. The Court will address the legitimacy of these goals before continuing to discuss whether a manifest relationship exists between Proposition 16 and those goals. a. Are these legitimate goals of the NCAA? It is well established that the NCAA has become an indelible institution of intercollegiate athletics. “Since its inception in 1905, the NCAA has played an important role in the regulation of amateur collegiate sports. It has adopted and promulgated playing rules, standards of amateurism, standards for academic eligibility, regulations concerning recruitment of athletes, and rules governing the size of athletic squads and coaching staffs.” NCAA v. Board of Regents of Univ. of Okla., 468 U.S. 85, 88, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). Indeed, it is fair to say that the NCAA has played a “historic role in the preservation and encouragement of intercollegiate amateur athletics.” Id. at 101, 104 S.Ct. 2948. While neither party disputes these general assertions, the specific goals proffered as objectives of Proposition 16 require closer examination. Preliminarily, the Court notes that it cannot seriously be disputed that the NCAA, acting only as the members’ “surrogate with respect to athletic rules,” Smith, 139 F.3d at 188, have no legitimate interest in promulgating academic standards that affect the graduation rates of students in general. The proper scope of their authority must be circumscribed to requirements pertaining only to student-athletes. While the Court is sure that both parties are cognizant of this fact, their submissions have not always been as careful in making that distinction when discussing whether Proposition 16 is justified by an educational necessity. In conclusory fashion, the NCAA initially stated that “[t]here can be no dispute that raising student athlete graduation rates are legitimate goals.” Def.’s Response at 40. Then, in response to Plaintiffs’ arguments (discussed below), the NCAA claimed that it is its membership, and not the NCAA officers or staff, who chooses the NCAA’s policy objective and adopts the NCAA’s bylaws. In so doing, they generally disavowed statements made by NCAA executives as merely personal opinions, stating that those individuals, “like every other member of the staff or any NCAA committee, does not determine the eligibility bylaws. That responsibility lies with the members.” Def.’s Reply at 6. According to the NCAA, Proposition 16 (like its predecessor Proposition 48) “is designed to discourage the recruitment of athletically talented, but academically unprepared students.” Id. at 9. Thus, “because graduation rates are the best available measure of the degree to which student athletes are academically prepared for college, it makes perfect sense for the NCAA to look at graduation rates as a way of evaluating a rule’s relative success.” Id. at 9-10. The NCAA also disputes Plaintiffs’ argument that it is inappropriate to promote eligibility standards that result in a somewhat higher graduation rate for student-athletes than for non-athletes. Citing the affidavit of the Chair of the NCAA Division I Board of Directors, the NCAA claims that (1) it is reasonable to apply eligibility standards that promote the chances of obtaining a college degree because an athletic scholarship is a substantial investment of resources by the granting institution; (2) an athletic scholarship also eliminates the financial concerns that inevitably cause some students to drop out from college; and (3) the motivation to remain in intercollegiate athletic competition is itself a powerful incentive for student-athletes to remain in school — an incentive that may have no counterpart for non-athletes. See Spanier Aff. ¶ 15 (Exhibit B to Def.’s Response). Finally, the NCAA claims to have set out affirmatively to improve graduation rates and to narrow the black-white graduation rate gap. Contending that Plaintiffs have confused the second and third prongs of the disparate impact proof model, the NCAA argues that “[i]f the goal is sound, a practice to achieve that goal is not unlawful merely because of the severity of its adverse disparate impact.” Def.’s Reply at 18. According to the NCAA, “[t]he degree of disparate impact becomes relevant only when the court analyzes (under prong three) whether equally effective alternatives exist that decrease an adverse disparate impact.” Id. In response, Plaintiffs contend that it is not the mission of the NCAA to ensure that students graduate but rather, it is within the province of each educational institution to put into place admissions policies, academic curricula, faculty, and necessary classroom and individual attention that bear on graduation rates. According to Plaintiffs, the NCAA is merely the entity to whom member institutions have delegated the task of administering their intercollegiate athletics programs, which is evidenced by its role with respect to Division III schools wherein there are no initial eligibility rules simply because the members voted not to adopt one. Plaintiffs also contend that the NCAA has failed to show that closing the black-white student-athlete graduation rate is a substantial legitimate justification rising to the level of educational necessity. According to Plaintiffs, the NCAA has tacitly admitted that the graduation rate gap between blacks and whites is the result of many more things than simply the difference in test scores and high school GPAs. Interestingly, Plaintiffs’ statistical expert has hypothesized that if it were legitimate for the NCAA to adopt an initial eligibility rule designed to yield a black student-athlete graduation rate within one percent of the white student-athlete graduation rate, the NCAA could simply exclude over 90% of the African-American student-athletes to achieve that result. See Hedges Aff. f 11 (Exhibit 24 to Pis.’ Ans.). Plaintiffs also note that, when Proposition 48 was adopted, African-American student-athletes were already graduating at a rate higher than African-American students generally, and student-athletes were graduating at a rate equal to the overall student graduation rate. Indeed, Plaintiffs contend that the NCAA has merely linked the goal of raising student-athlete graduation rates to the “perceived” problem that student-athletes are less likely to be academically successful than their non-athlete student counterparts. Plaintiffs point out that the data suggest that both black and white student-athletes prior to the implementation of Proposition 48 graduated in rates comparable to (indeed, higher than) students of those racial groups in general. With respect to the NCAA’s first proffered objective of raising student-athlete graduation rates, this Court concludes that it is a legitimate educational goal. An educational institution’s primary mission is to educate and graduate as many students as possible who meet the level of academic proficiency deemed sufficient by the institution. Thus, raising graduation rates is directly in fine with that mission. Here, as the surrogate of the colleges and universities in Division I, the NCAA is properly setting academic standards for student-athletes in hopes of improving the rate at which they graduate. What is more probative than this kind of facial inquiry, however, is an examination of what specifically motivated the membership to undertake the promulgation of Proposition 16, and its predecessor, Proposition 48. After reading transcripts of the multiple NCAA convention proceedings, examining the NCAA research results and summaries, and analyzing the various NCAA memoranda and other documents in the record, the Court concludes that there is overwhelming and abundant support for the proposition that the membership was concerned about raising student-athlete graduation rates. While the evidence of graduation rates prior to the adoption of Proposition 48 suggests that there may have been no empirical need to raise the graduation rates of student-athletes, the Court sees no reason to judge the wisdom of embarking on this goal when the “perceived” abuses of student-athletes were, in fact, real. There appears to have been a perception that student-athletes were less academically prepared than the rest of the student body because, in the early 1980s, “a few highly publicized cases of perceived academic abuses by colleges and student athletes came to light. In response to charges of exploitation that stemmed from those stories, the NCAA adopted what has become known as Proposition 48 ...” NCAA Membership Services Initial Eligibility Satellite Video Conference, Aug. 19, 1998, Tr. at 7 (statement of Todd A Petr) (as amended) (Exhibit 7 to Pis.’ Ans.). Certainly, a public relations benefit would redound to the NCAA for having promulgated academic standards to combat these stories of abuse and exploitation. However, merely because a public relations benefit exists does not render the NCAA’s adoption of Proposition 48 (or 16) invalid. But cf. Ghwes v. Alabama State Bd. of Educ., 776 F.Supp. 1518, 1531 (M.D.Ala.1991) (declaring illegal the selection of a minimum cutoff score “essentially as a public relations ploy, so that the Board and education professionals could misrepresent to parents concerned about their children’s schooling that it was faithfully ensuring all new teachers would be ‘as smart’ as half — or to be more exact, 39% — of their students”). Setting academic standards in the hopes of raising student-athlete graduation rates is a legitimate goal directed towards curbing the abuses that were not only perceived, but were indisputably real and documented. The same conclusion cannot be reached for the NCAA’s second proffered objective of closing the gap between black and white student-athlete graduation rates. Not only is there no support for an educational institution (let alone its surrogate) to engage in such a goal, but the proffered goal was unequivocally not the purpose behind the adoption of the initial eligibility rules. Absolutely nothing in the record — transcripts of convention proceedings, research results, or memoranda — even suggest that this was a goal that motivated the promulgation of Proposition 16 or 48. Indeed, the Court finds it difficult to reconcile the NCAA’s current articulation of such a goal with their own documents plainly evincing that only two goals motivated the adoption of Proposition 16 and 48: “(1) raising of graduation rates, and (2) allowing more individuals access to the finite number of athletics opportunities available.” NCAA Division I Academics/Eligibility/Compliance Cabinet Subcommittee on Initial-Eligibility Issues Mem., July 27, 1998, at 4 (Exhibit 2 to Pis.’ Ans.). The NCAA does not even make the (unpersuasive) argument that its concern over “access to the finite number of athletic opportunities” is somehow equivalent to decreasing the graduation gap — the educational opportunity on which the NCAA would prefer this Court to focus. In fact, the NCAA’s counsel opened oral argument before this Court by stating that the legitimate goal of the organization was to improve the academic performance of student-athletes, the best measure of which was graduation rates. No mention was made that a second objective of closing the black-white graduation gap existed. Furthermore, the only place in the entire record that this goal is even articulated in the form of admissible evidence is in the affidavit of the Chair of the NCAA Division I Board of Directors. See Spanier Aff. ¶ 11 (Exhibit B to Def.’s Response) (“There has also long been a gap between black and white graduation rates. That gap has been reduced for student athletes under Proposition 48, and is projected to be reduced further under Proposition 16. This reduction is another highly desirable outcome and should be encouraged. I would be reluctant to sacrifice the gains achieved under Proposition 48 and projected under Proposition 16, in favor of a different eligibility standard that would result in a wider racial gap in graduation rates.”); accord id. ¶ 12. In light of the NCAA’s prior declaration disavowing statements made by NCAA executives as personal opinions not binding on the organization, see Def.’s Reply at 6, the Court is not entirely sure what to make of these lone statements. The Court agrees that closing the black-white graduation rate gap is, as the NCAA states, “a subject of longstanding concern in the educational and civil rights communities.” Def.’s Response at 15. However, that desirable outcome of Proposition 16, actual or projected, is simply a collateral benefit of promulgating a rule that sets heightened academic standards. Actually proffering such a “back-end” balancing between graduation rates as an express objective underlying Proposition 16 is in direct violation of the Supreme Court’s prohibition against using a “bottom-line” defense to disparate impact cases involving pass/fail selection practices. See Connecticut v. Teal, 457 U.S. 440, 452-56, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) (achieving an appropriate racial balance after utilizing employer’s entire promotional process did not preclude plaintiffs from establishing a prima facie case of disparate impact resulting from an examination administered to determine initially the employees eligible for promotion; moreover, such a “bottom-line” justification is an impermissible defense to employer liability). Moreover, this explicitly race-based goal stands in stark contrast to the characterization of Proposition 16 as a facially neutral selection rule. The NCAA’s continued contention that this goal underlies the promulgation of Proposition 16 raises, serious questions concerning whether Proposition 16 is functioning simply as a proxy for a racial quota. This is especially so in light of the NCAA’s research finding that “these group differences can be accounted for by taking into account the other high-school academic variables. This means that the prediction equation does not function differently for different racial groups.” Report of the Special NCAA Comm, to Review Initial-Eligibility Standards, July 29, 1994, at 4, NCAA 15642 (Exhibit 19 to Pis.’ Ans.). Accordingly, the Court concludes that raising student-athlete graduation rates is a legitimate goal of the NCAA, but closing the gap between black and white student-athlete graduation rates is not. b. Is there a manifest relationship? The NCAA claims that its own research demonstrates that the use of standardized test scores not only serves these goals but has, in fact, been instrumental in achieving some success. Moreover, the NCAA argues that the use of standardized test cutoffs has been accepted as a legitimate means of achieving educational goals even when a cutoff disproportionately disqualifies one racial group. The NCAA also attests that the classes of 1985 and 1986 were covered by the same Satisfactory Progress Rules throughout their college years, and that there was no substantive change in those rules between 1985 and 1992. From this, the NCAA concludes that the observed increase in African-American student-athlete graduation rates for the class of 1986 cannot be attributed in any way to the Satisfactory Progress Rules but rather, to Proposition 48, which took effect in that year. The NCAA further claims that its own research demonstrates that Proposition 16’s test score requirement significantly serves the stated objectives of the rule. According to those research results, high school GPAs and standardized test scores are a “significant but moderate predictor of college performance,” with GPAs especially being a predictor of first year grades and both criterion being predictors of later graduation. NCAA Membership Services Initial Eligibility Satellite Video Conference, Aug. 19, 1998, Tr. at 21-22 (statement of John J. McArdle). Additionally, the NCAA contends that courts have recognized that the SAT and the ACT have been validated as predictors of academic performance in college and thus, the NCAA’s use of standardized tests and a minimum cutoff score for the purpose of predicting college academic performance is proper. Plaintiffs, however, argue that, in light of numerous internal recommendations that the rule be modified to eliminate the cutoff score, the current cutoff is arbitrary and irrational. Because student-athletes who fail to meet the cutoff score are deemed ineligible, regardless of how impressive their high school transcripts, Plaintiffs contend that the use of a cutoff score is fraught wit