By Elizabeth Bulat
Brenda McKinney, a former student athlete on Grambling State University’s women’s basketball team, filed a class action suit against the NCAA, alleging that its Academic Performance Program (APP) intentionally discriminates against Black student-athletes and Historically Black Colleges and Universities (HBCUs).
The Southern District of Indiana, Indianapolis Division (the Court) considered the NCAA’s Motion to Dismiss in light of the factually similar case, Manassa v. NCAA, 2021 U.S. Dist. LEXIS 271317 (S.D. Ind., Sept. 13, 2021). The Court described McKinney’s Complaint as “largely identical to the original and amended complaints in Manassa,” which involved a class action by former and current D1 HBCU student athletes. McKinney filed her claim while the class certification and summary judgment motions were pending for Manassa. The Court denied McKinney’s Motion to Intervene in Manassa because its timing would “further delay litigation and prejudice the NCAA.”
A few months later, the Court in Manassa granted the NCAA’s motion for summary judgment for lack of standing. Applying the same reasoning, the Court dismissed McKinney’s claim.
Background
NCAA Division 1 is governed by the D1 Council and the Board of Directors. Reporting to the Board, the Committee on Academics manages eligibility standards and administers the Academic Performance Program (APP). Under the APP, D1 schools must meet specific academic benchmarks. If teams or athletes fail to meet these standards, the NCAA may impose penalties, including bans from postseason play.
Collectively, 101 HBCUs enroll nearly 300,000 students, 80% of whom are black, 70% low-income, and many first-generation students. HBCUs often face systemic challenges, including fewer resources, smaller budgets, and less state and federal support. The D1 Board of Directors established the Historically Black Colleges and Universities and Low Resource Institution Academic Advisory Group to advise on and help remedy APP disparities. However, McKinney’s Complaint alleges that this group was marginalized by the NCAA and its recommendations were ignored.
McKinney claims the APP unfairly relies on a formula that “include[s] metrics that the NCAA knew would directly and negatively affect Black student-athletes.” Under the APP, the NCAA uses the Graduation Success Rate (GSR) to determine a student’s Academic Progress Rate (APR). During the 1998–1999 school year, the GSR for Black student athletes was 59% compared to 82% for white students. Thus, the APR of HBCUs was lower than that of predominantly white institutions (PWIs). McKinney’s complaint further alleges that the NCAA knowingly continued to rely on these metrics despite little correlation between GSR and a student’s academic success.
McKinney also alleges that the NCAA’s penalty structure in 2011 exacerbated the impact on HBCUs. While HBCUs represent only 6.5% of Division 1 schools, they account for 72% of teams banned from postseason play since 2010. HBCU teams are also 43 times more likely to face postseason bans compared to PWI teams, supporting claims that the APP disproportionately penalizes HBCUs.
Motion to Dismiss
Despite the arguable merits of McKinney’s Complaint, the NCAA argues: “(1) the injuries alleged in the Complaint arise from postseason penalties, like in Manassa, not generalized barriers imposed by the Academic Performance Program; [and] (2) the Complaint does not adequately allege any particularized injury arising from the ‘barriers’ described.”
McKinney asserted that instead of being about postseason competition or postseason bans, her claim focuses on the barrier imposed by the APP and its broader consequences, even for Black student-athletes who surpass the APP’s benchmarks. The Court rejected McKinney’s position upon considering the proximate timing of McKinney’s claim to the Manassa litigation, the mention of “postseason” penalties forty-six times in McKinney’s complaint, and specific allegations and phrases, including seeking relief “on the same bases as alleged in Manassa.”
Thus, the Court held that just like Manassa, McKinney’s injuries all stemmed from the risk of postseason penalties. It found this risk was too speculative to establish standing, especially because Grambling State University, unlike the institution in Manassa, had never faced a postseason penalty.
Further, the Court held that McKinney’s injuries fail to allege a particularized injury necessary for Article III standing separate from postseason penalties. Under Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015), to establish Article III standing, McKinney must show: “(1) [she] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
In her Complaint, McKinney alleges the APP imposed barriers that denied Black student-athletes: “(a) the ability to compete with their peers (and the benefits attendant thereto); (b) the ability to further develop their athletic and professional careers; (c) the ability to receive greater media exposure, coverage, and acclaim; (d) participating in the pinnacle of college athletic competition; (e) the ability to improve and achieve meaningful play-based metrics, which affects subsequent career trajectory; and (f) the ability to garner the attention of and access to recruiters and sponsors, including the lucrative post-college benefits they offer.” She also alleges that the APP subjects student athletes at HBCUs to “more study time, more stress, [and] less playing time, inflicting emotional harm and saddling them with difficulties PWI student-athletes do not face under the APP.”
However, the Court concluded that all of McKinney’s alleged injuries are completely derivative of postseason penalties. For instance, the APP only imposes additional work and stress to avoid postseason penalties. Thus, postseason penalties are the only “barrier” and absent their risk, “there would be no injury to HBCU student-athletes.”
The Court therefore characterized McKinney’s injuries only as postseason penalties and granted the NCAA’s Motion to Dismiss for lack of standing.
Leave to Amend and Motion to Strike
Nonetheless, the Court granted McKinney’s leave to amend her complaint because the NCAA did not show that an amendment would be unwarranted or futile. The Court also granted the NCAA’s Motion to Strike portions of its Response referring to mootness because it is premature to address mootness at this stage of the proceedings.
