The Ghost of Tarkanian v. NCAA

The case barely registered on the legal radar screen when a federal appeals court issued it in January, given that it was a so-called summary order that sets little if any precedent for other courts or judges. But a brief filed by college leaders in the U.S. Supreme Court argues that January's decision by the U.S. Court of Appeals for the Second Circuit -- in a case that evokes memories of Jerry Tarkanian's challenge to the National Collegiate Athletic Association two decades ago -- poses potential peril to private colleges.

In the case, a three-judge panel of the Second Circuit ruled that the NCAA should stand trial on federal charges that it deprived Timothy M. Cohane of due process and the right "to pursue his chosen occupation" -- college basketball coaching -- when its investigation into alleged rule breaking by Cohane led to his forced resignation from the university in 1999.

NCAA officials had sought to have the case dismissed on the grounds that the association, as a private entity, could not be held liable under federal civil rights law because it was not a "state actor." The NCAA cited the Supreme Court's 1988 finding in a roughly comparable case involving Tarkanian, the longtime men's basketball coach at the University of Nevada at Las Vegas (and subsequently California State University at Fresno, where he also ran into NCAA troubles), and a lower federal court judge had agreed with the association, dismissing Cohane's lawsuit.

But in its January decision overturning the lower court, the Second Circuit court concluded that Cohane -- based on his version of events, which a court is required to accept at the "summary judgment" stage of a lawsuit -- had made allegations that, if proven, suggest that the NCAA had engaged in "joint activity" with officials at SUNY-Buffalo to "deprive Cohane of his liberty." Lawyers for Cohane argued that the university had forced Cohane to resign to placate the NCAA, that the two held joint hearings to investigate the charges, and that university officials had prodded students to talk to NCAA investigators by threatening to withhold their degrees (charges the university denied).

"The NCAA may be able to rebut this claims and show that it did not engage in concerted action with the university," the court wrote. But "at this point in the litigation, it was [an] error for the district court to interpret Tarkanian as holding categorically that the NCAA can never be a state actor when it conducts an investigation of a state school."

Not surprisingly, the NCAA appealed the Second Circuit's decision to the Supreme Court, arguing that the case was wrongly decided and that the ruling could "cripple" the association's "ability to enforce the rules its members have agreed upon."

But perhaps less predictable was the strong reaction of most of the leading college associations, which jointly sponsored a friend of the court brief in which they argued that, if widely embraced, the principle endorsed by the Second Circuit in the Cohane case -- "that a private entity may be deemed to be a state actor under a 'joint activity' theory based on actions taken by the state, not the private entity itself" -- "poses enormous harm to public and private colleges and universities throughout the United States."

The brief, submitted by the American Council on Education on behalf of a collection of associations representing most of the country's major public and private institutions, notes that private colleges frequently interact with governmental bodies, and public colleges and universities collaborate with private entities of all sorts. "These educational institutions operate against a background understanding that certain types of public-private interaction -- state scholarship funding, licensure decisions, and the like -- will not ... transmogrify private entities into 'state actors.'... The Second Circuit's decision sweeps that certainty out from under them ... and threatens harm to private education institutions, as well as the private partners of public institutions, by ensnaring them in federal civil-rights litigation even where they are engaging in wholly private behavior."

The brief lays out a broad array of situations in which the principle outlined by the Second Circuit could imperil colleges. If a state were to discriminate illegally against a scholarship applicant at a private institution without the knowledge of the college's officials, and the college informed the student that he or she did not earn the scholarship because no funds were available, the Second Circuit's logic could hold the college liable for the state's misbehavior, the college associations argue. Even a private university's acceptance of state research funds could, the brief asserts, could make the recipient liable for a civil rights violation committed by the state grant maker.

Similarly, the education groups posit, the Second Circuit's logic could turn an accrediting agency into a state actor liable for the wrongdoing of a public college or university in an accreditation review -- if, say, a "public university being reviewed pressures its employees to provide" information sought by the accreditor. More generally, "the Second Circuit's rule threatens to expose public colleges' and universities' private partners" -- private hospitals, private secondary schools, and the like -- to liability "by dint of having engaged in their usual activities. Such a rule would give these private partners incentive to minimize their interactions with public colleges and universities."

Lawyers for Cohane urged the Supreme Court to reject the NCAA's petition to hear the case. One of Cohane's lawyers, Amy Howe, said she had not reviewed the college groups' brief, but she challenged the associations' view that the Second Circuit's decision opens "a Pandora's box for lawsuits against the NCAA and other educational institutions."

She said the college leaders were exaggerating the potential impact of the Second Circuit's ruling, partly because it cannot be relied upon as a precedent even for other plaintiffs in the Second Circuit's region, and partly, she asserts, because the Second Circuit did not say that any "joint activity" between a public college and a private entity (or vice versa) would result in the loss of immunity. "There have to be very specific kinds of activities," Howe said, arguing that Buffalo and the NCAA had engaged in much more significant collaboration and cooperation than the association had with UNLV in the Tarkanian case (in fact, the NCAA and the university were at odds over Tarkanian for many years).

"They're making too much of this," Howe said of the college groups. "From our view, all that [the Second Circuit] did was send case back to the lower court for trial."