Use of American Indian images: Mascot Dispute Escalates

Harold F. Schiffman haroldfs at
Thu May 11 11:59:06 UTC 2006
>>From the issue dated May 12, 2006

Mascot Dispute Escalates:  Universities consider suing the NCAA after it
rejects appeals over the use of American Indian images


The National Collegiate Athletic Association denied appeals last month
from three universities who want to continue using American Indian mascots
and nicknames that the association has deemed to be "hostile and abusive."
The ruling, by the NCAA's Executive Committee, means that Indiana
University of Pennsylvania, the University of Illinois at
Urbana-Champaign, and the University of North Dakota will not be allowed
to participate in or serve as hosts for NCAA postseason tournaments unless
they drop their American Indian mascots and team nicknames. Nine months
ago, the NCAA ordered 19 colleges to stop using American Indian nicknames
during postseason competition. After last month's ruling, six colleges
remain on a list of institutions banned from playing in or serving as
hosts for postseason games because they have not changed their mascots or
nicknames. Appeals from three other colleges are pending. (See the table
on Page A44 for the status of all the cases.)

NCAA officials described last month's ruling as final, but the
confrontation does not appear likely to end anytime soon. Officials at
Illinois and North Dakota sharply criticized the decision and are
considering legal action against the NCAA to keep their names without
penalty. The issue raises questions about what legal right the NCAA has to
prohibit certain universities from using mascots and team nicknames that
they choose. Courts have traditionally given the NCAA broad latitude to
enforce its rules on member colleges. But some legal experts question the
way in which the association formulated its mascot policy, and say that it
could violate universities' legal rights to equal protection because it
singles out some Indian mascots and not others. Myles Brand, the NCAA's
president, said in a news conference last month that the association has
the "obligation and responsibility" to ensure that its championship events
are conducted in a way that respects the rights of members of all ethnic
groups, including American Indians. All ethnicities, he said, are
guaranteed rights under the U.S. Constitution.

Asked how the NCAA's policy would hold up if it was challenged in court,
Mr. Brand said the association "feels very confident in its position and
will defend it to the utmost."  The latest rulings angered officials at
the University of Illinois at Urbana-Champaign and the University of North
Dakota. Of the six colleges on the list of banned institutions, Illinois
and North Dakota have the most to lose because they have the biggest
athletics programs. Last fall Illinois officials won an appeal from the
NCAA to keep using the university's "Illini" and "Fighting Illini"
nicknames. The latest appeal involved its Chief Illiniwek mascot, which
NCAA officials still consider hostile and abusive.

Last month Illinois officials said that a ban on holding NCAA postseason
events would put Illini athletics programs at a competitive disadvantage
and could prevent the university from being able to recruit the best
athletes and coaches. The ruling could have an immediate impact on the
university's athletics program. The Illini men's tennis team, ranked among
the nation's top 10 programs, was expected to play host to early rounds of
the NCAA tournament beginning this month. Now the team may not be able to
play postseason home matches. Many of Illinois's other sports programs
could also suffer. The Illini have played host to NCAA championship events
in eight different men's and women's sports, and regularly compete for
national championships in many events. In men's gymnastics, for example,
Illinois was host to the NCAA championships in 2004, and the Illini team
finished second in NCAA competition this year.

The NCAA denied North Dakota's appeal to keep using its "Fighting Sioux"
nickname after hearing from a Sioux leader who said his tribe opposed the
university's use of its name. Charles E. Kupchella, president of the
University of North Dakota, said in a written statement that he was
"baffled" by the NCAA's "arbitrary and capricious" ruling. He said the
university planned to consider "legal and other options" with the state's
board of higher education and North Dakota's attorney general. North
Dakota has one of the best Division I hockey programs in the country, and
often holds NCAA tournament games in its $100-million Ralph Engelstad

The facility has thousands of images of the university's "Fighting Sioux"
logo emblazoned on the walls and on the gymnasium floor. To hold NCAA
postseason games there now, the university must change its nickname and
cover up those images.

Finding Fault

If any college sues the NCAA to keep using its American Indian images in
postseason play, a court may find fault with the way the NCAA enacted its
mascot policy, several lawyers say. The NCAA's Division I Board of
Directors normally hands down legislative changes after member colleges
weigh in. In this case, however, the association's Executive Committee
passed the policy without allowing colleges as much input as the board
usually does. The Executive Committee is considered a governance body and
does not enact legislation, but under NCAA bylaws it oversees
associationwide issues and is allowed to establish policies.

Some lawyers say that because the NCAA did not follow its normal
procedures, a court may consider overturning the policy. Bernard W.
Franklin, a senior vice president at the association who oversees the
Executive Committee's mascot work, says the decision was well vetted by
member colleges. "This decision came about after a five-year review," he
says, adding that it should not have surprised anyone.


Last August the NCAA ruled that 19 colleges would be ineligible to
participate in or play host to NCAA postseason events unless the colleges
dropped their American Indian mascots and team nicknames. Here is an
update on the status of those colleges.
Section: Athletics
Volume 52, Issue 36, Page A43

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