After months of expressing concern about state laws that discriminate against gay and transgender people, the National Collegiate Athletic Association announced last month that it was moving seven championship events scheduled to take place in North Carolina to other states.
Despite numerous statements by NCAA leaders before the association took action, the move appeared to stun many in North Carolina and elsewhere, becoming a front-page story and attracting considerable attention. Supporters said the NCAA was taking a bold stance against discrimination, while critics complained that the association was acting as a “social justice warrior” and forcing politically correct ideas on those that just want to enjoy a basketball game. Skeptics wondered if it was all just a calculated public relations move.
Wading into cultural debates can be perilous for the NCAA. With more than 1,000 institutions, the association’s membership isn’t likely to agree on every social issue on which the NCAA is asked to take a stand. But, in recent years, NCAA leaders have become bolder, pulling or threatening to pull championships out of states over a range of issues. That’s left the NCAA with a growing reputation for taking up social causes, while also raising questions about how the association chooses its battles and why such posturing isn’t always seen when governing its own members.
“Historically, the association has taken steps to ensure its championship environment is consistent with its values,” Stacey Osburn, a spokeswoman for the NCAA, said when asked how the association picks its fights.
The NCAA has boycotted states and institutions before over ideological differences. In 2005, the NCAA threatened to bar about 20 colleges from hosting postseason games over their use of “hostile” Native American mascots. Five institutions were able to obtain waivers from the NCAA’s rule after they sought support from the tribes they were named after, and more than dozen scrubbed Native American references from their team names and mascots.
In 2014, the NCAA publicly opposed an amendment to Indiana’s Constitution that would have banned gay marriage in the state, where the association is headquartered. It released a similar statement last year when Indiana passed a controversial law that critics say gave businesses the right to refuse services to gay, lesbian, bisexual and transgender people. Indiana later passed a separate bill amending the law to include new -- though limited -- protections for LGBT people.
More than a decade earlier, the NCAA banned South Carolina and Mississippi from hosting most championship games because they still flew the Confederate flag over their statehouses. The ban is still in place for Mississippi, as its state flag includes the Confederate saltire. Last year, the association lifted the ban on South Carolina after state lawmakers voted to remove the flag. The NCAA announced on Friday that South Carolina will now host the first two rounds of this season’s Division I Men’s Basketball Championship, which was originally scheduled to take place in North Carolina.
John Lombardi, former president of the University of Florida and the Louisiana State University system, said the NCAA’s decision to pull championships out of North Carolina would have been an easy sell to the association’s leaders given this history of creating rules barring places that appear to be discriminatory against certain groups. The concept is even baked into the NCAA’s constitution, which includes an article titled the “Principle of Non-Discrimination” that requires colleges to “promote an atmosphere of respect for and sensitivity to the dignity of every person.”
In April, the NCAA Board of Governors adopted a new rule requiring host sites to “demonstrate how they will provide an environment that is safe, healthy and free of discrimination and also safeguards the dignity of everyone involved in the event.” In July, the association announced that it was asking any future hosts of championships to complete a survey about bias and discrimination. The questionnaire asked host sites if their cities, counties and states have “passed antidiscrimination laws that are applicable to all persons” and if they have laws that “regulate choice of bathrooms or locker rooms.”
The board adopted the change after North Carolina enacted its law banning people from using public bathrooms that did not match their biological gender assigned at birth. The law is widely seen as targeting transgender people, which prompted the NCAA to move its championship events from the state.
“I think this is on a par with the other stands the NCAA has taken that reflect what its membership wants to have done,” Lombardi said. “The NCAA is always reflective of what it thinks its members want, and this issue is a no-brainer. It speaks to an issue that is front and center at most NCAA institutions and it takes the NCAA out of the conversation because it does not have to defend participation in a state that fails to recognize the new order of things.”
LGBT groups praised the NCAA for speaking out against discrimination in North Carolina, but they have also criticized the organization as being hypocritical. A growing number of religious NCAA institutions have requested and received federal waivers allowing them to discriminate against LGBT athletes, in particular transgender students, leading advocates to ask why the NCAA hasn’t found a way to criticize member colleges that engage in discrimination.
“These requests are directly in conflict with the NCAA’s longstanding commitment to diversity and inclusion of all people regardless of sexual orientation and gender identity,” Campus Pride and Soulforce wrote in a letter signed by 80 other LGBT rights groups in April. “The Title IX waiver allows campus administrators to deny transgender students admission, usage of public accommodations and protections against anti-LGBTQ actions from students and faculty -- all based on a student’s gender identity.”
The letter asked the NCAA to “divest from all religious-based campuses who have requested these discriminatory waivers.”
In 2014, many advocates for gay and transgender students were surprised to learn that the Education Department had granted to a number of colleges exemptions from parts of Title IX of the Education Amendments of 1972 that, in theory, bar discrimination in areas such as housing, admissions and educational opportunities.
Title IX requires colleges and universities to provide equal opportunities in athletics to male and female students and to take steps to prevent and punish sexual assaults. But the law also covers other forms of discrimination, and the Education Department has said that it protects transgender students. Title IX has an exemption for religious colleges, however, if they can prove that the law requires them to violate their religious beliefs.
The waivers vary by institution, but most allow exemptions for admissions, housing, athletics, rules of behavior and employment. Some also include exemptions related to counseling and financial assistance. More than 150 institutions have requested or received a waiver since 2009. At least two dozen of them are members of the NCAA.
“NCAA talks a good game when it comes to inclusion of LGBTQ athletes,” Shane Windmeyer, executive director of Campus Pride, said earlier this year. “But as far as actions related to LGBTQ policy or holding member organizations accountable to LGBTQ inclusion, it has repeatedly dropped the ball for LGBTQ youth.”
The NCAA maintains that it’s not the association’s place “to tell schools whom they should admit.”
Marc Edelman, a law professor at the City University of New York’s Baruch College and expert on sports and antitrust law, said there are also tricky legal concerns when outright banning members over issues such as a Title IX waiver. Unlike the recent laws in North Carolina that have drawn legal challenges and Dear Colleague letters from the Obama administration, religious colleges have been given explicit permission to discriminate through the waiver process.
Religious freedom groups and have also called the NCAA hypocritical for moving championship events from North Carolina, though the groups have attacked the association from a different angle.
“If the NCAA actually believed that no differences exist between men and women, it would merge its men’s and women’s leagues,” Kellie Fiedorek, legal counsel from the Alliance Defending Freedom, said in a statement. “Instead it hopes no one notices that it appropriately maintains separate leagues for men and women while it opposes the common-sense law that simply protected the privacy rights and dignity interests of North Carolinians.”
The North Carolina Republican Party made a similar argument, with its spokeswoman, Kami Mueller, saying that she looked “forward to the NCAA merging all men’s and women’s teams together as singular, unified, unisex teams.” Mueller also criticized the NCAA for not showing the same level of concern about “the women who were raped at Baylor.”
While the statement drew widespread criticism for equating sexual assault with transgender rights, the NCAA has come under increasing pressure in recent years to govern athletic departments’ involvement in cases of sexual assault involving athletes.
In 2014, the association released a handbook instructing colleges on how best to prevent and respond to sexual assaults involving athletes, and adopted a resolution telling athletic departments not to interfere with such investigations. The guidelines are not enforceable rules, however, and since the handbook’s release, several institutions -- including the University of Tennessee at Knoxville and Baylor University -- have been accused of allowing their athletic departments to influence disciplinary decisions for athletes accused of sexual violence. To date, the NCAA has not gotten involved in those or other prominent cases, such as at Florida State University, where coaches and boosters have been accused of protecting athletes accused of rape.
During a discussion on college sports issues at the Aspen Institute last month, NCAA President Mark Emmert admitted that the guidelines had been ineffective at some institutions. In August, the NCAA decided to create a new committee to explore the possibility of creating rules that would allow the association to punish colleges that do not follow the 2014 resolution. The decision came after 170,000 people signed a petition that asked the NCAA to ban any athletes who have committed violent crimes.
On this front, Lombardi said, the NCAA is on less sturdy ground than when dealing with issues of discrimination. The last attempt the association made to hold an institution accountable for how it handled cases of sexual violence ended with many of the sanctions being reversed.
In 2012, the NCAA announced a series of historic sanctions against Pennsylvania State University following the conviction of Jerry Sandusky, a former assistant football coach, on 45 counts of child abuse. Though the NCAA does not have rules specifically dealing with sexual abuse, the association’s leaders decided to fine Penn State $60 million, bar the football program from postseason play for four years, reduce the team’s number of scholarships by 10 per year for four years and vacate all football victories from 1998 to 2011.
The decision led to lawsuits against the NCAA from many fronts, and the association was forced to roll back its punishments. The NCAA ended the scholarship reduction and postseason ban two years early. The $60 million fine became the focus of one lawsuit, which was originally meant to determine where the penalty should be spent but gradually became a referendum on the NCAA’s authority to impose sanctions in the first place. As part of a settlement in that case, the NCAA restored the 112 football wins it had previously vacated.
The message sent to the NCAA was clear: don’t stick your nose where it doesn’t belong. That sentiment is also popular among critics of the NCAA’s decision to move its championships from North Carolina. Writing for National Review, David French equated the NCAA’s move to Colin Kaepernick’s protests of the national anthem.
Sports, French wrote, should be considered an apolitical neutral ground.
“I don’t mind if individual players or owners express themselves, so long as it is clearly understood that all viewpoints are welcome,” he wrote. “I mind, however, when the sporting elite decides to turn professional and college athletics into a sweatier version of a progressive college campus, speech codes and all. I mind when social justice warriors try to wield the awesome economic power of sports -- built via the pocketbooks of all Americans -- to punish conservatives, especially Christian conservatives.”
Dan Lebowitz, executive director of Northeastern University’s Center for Study of Sport in Society, said, however, that it would be “un-American” for an organization as powerful as the NCAA to not use its platform to address discrimination and issues of equality.
Though, he added, it would be an exaggeration to characterize the NCAA as a paragon of fighting for equality.
“We’d be remiss to not mention that this sort of thing is good media relations,” Lebowitz said. “The NCAA was hardly out front on the North Carolina issue. This has been on front pages for a year and half, and the NBA had already pulled its All-Star games out of the state before the NCAA did anything. It’s a good move on their part, as it’s consistent with the social evolution of the country.”