AN EXAMINATION OF THE VIABILITY OF TITLE VII AS A MECHANISM TO COMPEL RACIAL DIVERSITY AMONG THE COMPOSITION OF HEAD COACHES AT NCAA FOOTBALL BOWL SUBDIVISION INSTITUTIONS A Record of Study by LANCE CARLOS HATFIELD Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF EDUCATION August 2008 Major Subject: Physical Education AN EXAMINATION OF THE VIABILITY OF TITLE VII AS A MECHANISM TO COMPEL RACIAL DIVERSITY AMONG THE COMPOSITION OF HEAD COACHES AT NCAA FOOTBALL BOWL SUBDIVISION INSTITUTIONS A Record of Study by LANCE CARLOS HATFIELD Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF EDUCATION Approved by: Chair of Committee, Paul J. Batista Committee Members, Gregg Bennett Bryan R. Cole George B. Cunningham Head of Department, James Eddy August 2008 Major Subject: Physical Education iii ABSTRACT An Examination of the Viability of Title VII as a Mechanism to Compel Racial Diversity Among the Composition of Head Coaches at NCAA Football Bowl Subdivision Institutions. (August 2008) Lance Carlos Hatfield, B.S., Liberty University; M.S., University of Southern Mississippi Chair of Advisory Committee: Prof. Paul J. Batista The purpose of this study was to examine the legal strategy of utilizing Title VII of the Civil Rights Act of 1964 to compel change to the racial composition of head coaches at NCAA Football Bowl Subdivision institutions. To accomplish this, the researcher examined the guidelines for bringing a Title VII case, researched statutory requirements and case law precedents, and compiled and analyzed the outcomes of prior employment discrimination cases. In addition, the researcher investigated the proposition that Title VII could do for minority football coaches what Title IX did in athletics for girls and women. Investigation of Title VII procedural guidelines revealed that plaintiffs are disadvantaged when pursuing a claim. This is due in part to the fact that plaintiffs must exhaust administrative remedies prior to filing a complaint with a court. As a result, the Title VII remedy requires a protracted process. In addition, review of salient sport and non-sport cases revealed that courts are highly deferential to employers when evaluating the employers’ proffered hiring criteria. iv Analysis of prior Title VII case outcomes revealed a significant disparity in plaintiff and defendant success rates. During 1998-2006, plaintiffs succeeded in opposing motions for summary judgment only 1.84% of the time in U.S. District Courts. Plaintiffs were more successful if they were able to get their cases heard by a court. Plaintiffs prevailed in 37.9% of jury trials and in 26.7% of bench trials. It was also determined that Title VII is unlikely to provide results similar to Title IX. This is asserted for two main reasons. First, unlike Title IX, Title VII complaints cannot be filed directly in a court without exhausting administrative remedies. Second, because standing is not an issue in filing a Title IX complaint with the Office for Civil Rights, the investigation of an institution can commence upon the filing of a complaint by an interested party. Thus, a coach or administrator does not have to be directly involved. It was concluded that for these and other reasons, it is unlikely that Title VII litigation can affect change. Minority coach advocates should instead try less adversarial approaches. v TABLE OF CONTENTS Page ABSTRACT.............................................................................................................. iii TABLE OF CONTENTS.......................................................................................... v I. INTRODUCTION............................................................................................... 1 A. Recent Developments Involving Minority Coaches at the FBS Level .... 4 B. Access Challenges Facing Minority Coaches .......................................... 16 C. Title VII – The Oft-Quoted Strategy ........................................................ 21 II. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964: THEORIES AND MECHANICS .................................................................................................. 24 A. Title VII’s Provisions and Reach ............................................................. 25 B. Theories of Discrimination Under Title VII............................................. 28 1. Disparate Treatment Theory............................................................ 29 2. Disparate Impact Theory................................................................. 36 C. Bringing a Case of Employment Discrimination ..................................... 41 D. Remedies Available Under Title VII........................................................ 45 III. TITLE VII AND THE HIRING OF COACHES: UNDERREPRESENTATION, LEADING CASES AND POTENTIAL LITIGATION STRATEGY ............ 48 A. Underrepresentation and the Relevant Labor Pool................................... 52 B. Leading Title VII Cases Involving Racial Discrimination and Hiring of Coaches ................................................................................................. 62 1. Jackson v. University of New Haven ............................................. 65 2. Banks v. Pocatello School District No. 25 ..................................... 67 3. Amie v. El Paso Independent School District................................ 69 4. Richardson v. Sugg ........................................................................ 72 5. Medcalf v. Board of Trustees of the University of Pennsylvania .. 75 C. Potential Litigation Strategy..................................................................... 79 1. Head Coaching Position Not Posted .............................................. 81 IV. CAN TITLE VII AFFECT CHANGE ................................................................ 88 A. Case Statistics in Federal Employment Discrimination Actions.............. 91 B. Is Title VII Comparable to Title IX? ........................................................ 95 V. CONCLUSION .................................................................................................... 100 vi Page REFERENCES.................................................................................................... 115 VITA ................................................................................................................... 132 1 I. INTRODUCTION “White players, beyond the playing field, can expect to become coaches, athletics directors and college presidents. Blacks have no life beyond the playing field.”1 This was Rev. Jesse Jackson’s response to the University of Alabama’s decision to hire Mike Shula rather than Sylvester Croom as head football coach in May 2003.2 To Jackson and many observers the only logical explanation for Shula’s hiring over Croom was the fact that Shula is White and Croom is Black. Certainly, it was argued, the decision was not predicated upon the respective credentials of the two candidates.3 During this period of time, it seemed as if the pressures of America’s – and the South’s in particular – past history of race relations would explode over the issue of the lack of minority head coaches in major college football. Many perceived Alabama’s hiring of Shula as the perpetuation of a system that continually overlooks and disadvantages racial minorities; and, in light of the University of Alabama’s place in civil rights history, was demonstrative of the non-Reconstructed South. Rev. Jackson This record of study follows the style of the Journal of Legal Aspects of Sport. 1 Associated Press, Jackson Takes Alabama to Task, USA TODAY, May 9, 2003, available at http://www.usatoday.com/sports/college/football/sec/2003-05-09-jackson-alabama_x.htm (last visited July 7, 2007). 2 Both Shula and Croom are alumni of the Alabama program. At the time, Shula was an assistant coach with the Miami Dolphins and Croom was an assistant coach with the Green Bay Packers. 3 Shula had spent 15 years as an NFL assistant coach and had no college coaching experience. On the other hand, Croom not only had 16 years of NFL coaching experience, but was an assistant coach at Alabama for 10 years, five of which were under Paul “Bear” Bryant. Croom was also an All-American player for the Crimson Tide in 1974. See Statement of Reverend Jesse Jackson, The Lack of Diversity in Leadership Positions in NCAA Collegiate Sports, Hearing before the House Subcommittee on Commerce, Trade, and Consumer Protection, Feb. 28, 2007, at 13, available at http://bulk.resource.org/gpo.gov/ hearings/110h/35220.pdf (last visited Dec. 21, 2007) (quoting Rev. Jesse Jackson “Coach Croom grew up in Tuscaloosa, hometown boy, All-American, University of Alabama, hometown, played under Bear Bryant, can’t get better than that in Alabama, but when the deal went down, they went with Shula, who had almost zilch resume.”). 2 expressed this broad perspective when he stated that only “[t]he unfinished business in the South will make this country whole.”4 Croom would not have to wait long before his next opportunity to become a head coach. Mississippi State University head coach, Jackie Sherrill, retired amidst controversy following the 2003 season.5 Mississippi State then chose Croom as the new head coach.6 With one decision history was made. Croom became the first Black head football coach both at Mississippi State and in the venerated Southeastern