Sports: Agent for Change

On April 16, 2015, in College Athletics, NCAA, SELS Blog, by admin

By: Marie Bussey

April 16, 2015

Most people, if asked to name the leading American civil rights organizations of the last century, would list the ACLU, NAACP, and Lambda Legal.  But what about the National Collegiate Athletic Association and its member institutions?  Although the NCAA does not immediately spring to mind in a typical discussion of civil rights activism, this organization has been effecting change and protecting civil liberties for decades.

NCAA & Civil Rights History
Take legendary basketball coach Don Haskins, for example.  In 1966, Haskins made history by starting five black players for his Texas Western[1] team in the national championship game against an all-white Kentucky Wildcats team coached by Adolf Rupp,[2] whose name now adorns Kentucky’s basketball arena.  Together, Haskin’s bold move combined with the courage and determination of his players, who won the national championship in an incredibly hostile environment, had an immediate and positive impact on both the sports world and the civil rights movement.  In the wake of that historic game, traditionally all-white “college teams throughout the South aggressively began recruiting black athletes, ending years of shameful segregation.”[3]

NCAA & Civil Rights Today
Fast-forward nearly fifty years and the NCAA is still advancing civil liberties.  Most recently, just weeks before hosting the Final Four in Indianapolis, the NCAA joined a highly effective and expedient charge to modify Indiana’s Religious Freedom Restoration Act (RFRA) amidst concerns that the law would encourage discrimination against homosexuals.[4]  Indiana Governor Mike Pence signed the bill on Thursday, March 26, 2015.[5]  The same day, NCAA President Mark Emmert issued a statement that the NCAA was deeply concerned about the law and intended “to closely examine the implications of [the] bill and how it might affect future events as well as [the NCAA] workforce,” which is headquartered in Indianapolis.[6] A week later, on April 2, 2015, Governor Pence signed legislation to amend Indiana’s RFRA in response to the concerns voiced by Emmert and others.[7]  Who knew legislators could act so quickly?

So What Exactly Caused the Uproar?
Much like the federal act and similar laws enacted in nineteen other states,[8] Indiana’s RFRA “[p]rovides that a state or local government action may not substantially burden a person’s right to the exercise of religion . . . .”[9]  Where Indiana’s law differs, however, is that unlike the federal law, Indiana’s law (1) explicitly defines the term “person” as including for-profit businesses and (2) includes a clause indicating that a person may invoke the protections of the RFRA “as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.[10]

These two differences are significant, and they were likely included with two recent high-profile court decisions in mind.[11]  First, in 2014, the Supreme Court held in its 5-4 Burwell v. Hobby Lobby Stores[12] decision that the federal RFRA, which does not explicitly define the term person to include for-profit corporations, “give[s] some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.”[13]  Enter Indiana’s more specific law, which expressly defines “person” to mean “a partnership, a limited liability company, [or] a corporation.”[14]

Second, in Elane Photography v. Willock,[15] a widely publicized case in New Mexico in which a professional photographer refused to provide services for a same-sex wedding, the state’s supreme court determined that the photographer could not rely on RFRA as a defense “because the government [was] not a party.”[16]  The Indiana legislature likely had this case in mind when it decided to include a provision in its own act to “make[] a business’s ‘free exercise’ right a defense against a private lawsuit by another person, rather than simply against actions brought by [the] government.”[17]

So, unlike the federal RFRA, the Indiana bill expressly extended rights to for-profit businesses and allowed them to raise a RFRA defense even in a case involving only private parties.

The “Fix”
One week after signing Indiana’s controversial RFRA, Governor Pence signed a bill to amend the law on April 2, and the changes have—for the present—seemed to quiet the controversy.  The law was amended specifically to make it clear that it does not (1) allow businesses or others to refuse service to anyone “on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; (2) establish a defense to a civil action or criminal prosecution for refusal” to provide services on any of these bases; “or (3) negate any rights available under the Constitution of the State of Indiana.”[18]

The Future
For now the Final Four has ended, and it looks like future NCAA events in Indianapolis are not in immediate jeopardy.  However, this civil rights battle remains in its infancy, and while the LGBTQ community still has huge strides to make, the NCAA is a formidable ally to have in the fight.


 

[1] Texas Western University is now known as the University of Texas at El Paso.  See The Road to Glory, The University of Texas at El Paso, http://gloryroad.utep.edu/year/default.aspx (last visited Apr. 12, 2015).

[2] Id.

[3] Id.

[4] Indiana’s new law concerns NCAA, ESPN (Mar. 30, 2015), http://espn.go.com/college-sports/story/_/id/12563363/ncaa-concerned-indiana-new-law-religious-objections.

[5] Indiana Gov. Pence defends religious objections law: ‘This bill is not about discrimination’, Chicago Tribune (Mar. 26, 2015, 4:35 PM), http://www.chicagotribune.com/news/nationworld/chi-indiana-religious-freedom-bill-sb101-pence-20150326-story.html.

[6] Matt Bonesteel, NCAA voices concern after Indiana enacts bill allowing businesses to reject gay customers, The Washington Post (Mar. 26, 2015), http://www.washingtonpost.com/blogs/early-lead/wp/2015/03/26/ncaa-voices-concern-after-indiana-enacts-bill-allowing-businesses-to-reject-gay-customers.

[7] Eric Bradner, Pence signs ‘fix’ for religious freedom law, CNN (Apr. 2, 2015, 9:54 PM), http://www.cnn.com/2015/04/02/politics/indiana-religious-freedom-law-fix.

[8] Garrett Epps, What Makes Indiana’s Religious Freedom Law Different, The Atlantic (Mar. 30, 2015, 9:18 AM), http://www.theatlantic.com/politics/archive/2015/03/what-makes-indianas-religious-freedom-law-different/388997.

[9] S.B. 568, 119th Gen. Assemb., 1st Reg. Sess. (Ind. 2015) [hereinafter Indiana RFRA].

[10] Garrett, supra note 8 (quoting Indiana RFRA, supra note 9) (emphasis added).

[11] Garrett, supra note 8.

[12] 573 U.S. ___ (2014).

[13] Garrett, supra note 8.

[14] Indiana RFRA, supra note 9.

[15] 309 P.3d 53 (N.M. 2013).

[16] Garrett, supra note 8 (quoting Id. at 59).

[17] Garrett, supra note 8.

[18] Read Indiana’s religious freedom law legislative fix, CNN (Apr. 2, 2015, 10:02 AM), http://www.cnn.com/2015/04/02/politics/indiana-religious-freedom-legislative-fix/index.html.

 

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