OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this court on appeal from an order for summary judgment in this action challenging certain academic requirements for participation in varsity athletics promulgated by the National Collegiate Athletic Association (“NCAA”). See Cureton v. NCAA, 37 F.Supp.2d 687 (E.D.Pa.1999). In particular, the plaintiffs challenge the minimum Scholastic Aptitude Test (“SAT”) score requirement for freshman-year varsity intercollegiate athletic participation. While the NCAA also has adopted minimum grade point average (“GPA”) requirements, the plaintiffs do not challenge them directly on this appeal.1 We set forth the background of the case at some length.
A. The Parties
Plaintiff Tai Kwan Cureton is an African-American who graduated from Simon Gratz High School in Philadelphia in June 1996 ranking 27th in a class of 305 students. Cureton was a member of the track team and earned both academic and athletic honors as a high school student. Cureton exceeded the NCAA GPA requirements but did not achieve the NCAA required SAT score. Cureton alleged that several NCAA Division I schools recruited him before he obtained his non-qualifying score on the SAT, but that after he took the SAT a lesser number of Division I schools recruited him and such institutions denied him admission and/or athletic financial aid. Cureton, who alleged he lost an opportunity to compete as a freshman in Division I varsity intercollegiate athletics because of NCAA regulations, enrolled in a Division III school.
Plaintiff Leatrice Shaw is an African-American who also graduated from Simon Gratz High School and was ranked 5th in a [110]*110class of 305 students. Shaw was a member of the track team and earned both academic and athletic honors and was selected for membership in the National Honor Society. Shaw exceeded the NCAA minimum GPA requirement for freshman-year athletic participation, but failed to achieve the minimum required score on the SAT. The Division I school that Shaw entered did offer her athletic financial aid, but she was unable to compete on the track team during her freshman year because of the NCAA regulations at issue here.
Plaintiffs Andrea Gardner and Alexander Wesby are African-American student athletes who exceeded the NCAA minimum GPA requirement for freshman year athletic participation, but failed to achieve the minimum required score on the standardized college admissions tests. Though they originally were not parties, the district court allowed them to intervene by order dated December 18, 1998, pursuant to Fed.R.Civ.P. 24.
The defendant NCAA is an unincorporated voluntary association of more than one thousand members, a majority of which are public and private four-year colleges and universities that conduct varsity intercollegiate athletic programs in the United States. The NCAA member colleges and universities are divided into Divisions. Division I consists of more than three hundred members. The Divisions adopt their own bylaws, although some NCAA bylaws are applicable to all three Divisions. This action concerns a bylaw adopted by Division I and the curtailment of the plaintiffs’ opportunity to participate in Division I athletics.
The National Youth Sports Program (the “NYSP”), which is not a defendant but nevertheless is implicated in this case, is a youth enrichment program that provides summer education and sports instruction on NCAA member and nonmember institution campuses. The Department of Health and Human Services provides the NYSP with Federal financial assistance. Before 1992, these funds were advanced to the NCAA, but were not diverted for its use. In 1989, the NYSP Fund (the “Fund”) was established as a nonprofit corporation to administer the NYSP. Since 1992, the department has granted the financial aid intended for the NYSP directly to the Fund. The Fund is regarded as an NCAA “affiliate.”
Before 1971, college freshmen were not allowed to compete in varsity sports. Since then, the NCAA has adopted many rules defining freshman eligibility for varsity intercollegiate athletic competition, but member institutions continue to make individual admissions decisions. One of these rules, Proposition 48, implemented in 1986, required high school graduates to have a minimum 2.0 GPA in 11 academic core courses and a minimum score of 700 on the SAT to be eligible for competition, practice, and financial aid based upon athletic ability. Division I implemented the requirement in response to the public’s perception that NCAA schools were exploiting student athletes for their talents without concern for whether they graduated. Division I felt compelled to act despite the fact that student athletes were graduating at rates comparable to non-athletes, and African-American student athletes were graduating at higher rates than African-American students who were not athletes. Since 1989, when the NCAA phased in the eligibility requirements, the graduation rates of student athletes, especially African-Americans, have increased.
Division I modified these rules in 1992 when it adopted Proposition 16, which is at issue here. Proposition 16 increased the number of core courses to 13 and utilized an index to determine eligibility based on a formula combining the student’s GPA and SAT scores. Using this index, the minimum score for a student with a GPA of 2.0 is 1010 on the SAT. Similarly, a student who scored an 820 on the SAT would need at least a 2.5 GPA to meet the eligibility [111]*111requirements.2 As the district court pointed out, this modification resulted “in a heavier weighting of the standardized test” because the minimum GPA requirement was two standard deviations from the mean, whereas the minimum test score requirement was only one standard deviation from the mean. Cureton, 37 F.Supp.2d at 691.
B. The Action
Cureton and Shaw filed the complaint in this case on January 8, 1997. They alleged the minimum standardized test score component of Proposition 16 had an unjustified disparate impact on African-American student-athletes in violation of regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which precludes exclusion from participation in, denial of the benefits of, and discrimination under any program or activity receiving Federal financial assistance on account of race, col- or, or national origin. The NCAA moved to dismiss the complaint, or alternatively for summary judgment, on the following grounds: (1) there is no private right of action for unintentional discrimination under Title VI or its accompanying regulations; (2) the NCAA is not a “program or activity” subject to Title VI; and (3) the NCAA does not receive Federal funds necessary to subject it to Title VI. The plaintiffs moved for partial summary judgment on the grounds that, as a matter of law, the NCAA was a covered program or activity subject to a Title VI action for unintentional discrimination and was a recipient of Federal financial assistance for purposes of Title VI.
On October 9, 1997, the district court issued an opinion and order denying the NCAA’s motion but granting in part and denying in part the plaintiffs’ motion for partial summary judgment. See Cureton v. NCAA, No. 97-131, 1997 WL 634376 (E.D.Pa. Oct.9, 1997). In that opinion, the court determined that there was a private cause of action under Title VI and its accompanying regulations to remedy cases of disparate impact and that the NCAA was a program or activity covered by Title VI. Id. at *2. The court, however, held that it could not conclude on the record before it that the NCAA was a recipient of Federal funds as a result of its relationship with the NYSP. In view of our recent opinion in Powell v. Ridge, 189 F.3d 387 (3d Cir.1999), recognizing the existence of a private right of action under Title VI, there no longer is an issue on this appeal regarding that point.
Thereafter, following discovery, the plaintiffs and the NCAA again filed cross-motions for summary judgment. By an opinion and order dated March 8, 1999, the district court denied the NCAA’s motion but granted the plaintiffs’ motion. See Cureton, 37 F.Supp.2d at 715. The district court held that Proposition 16’s disparate impact on African-Americans violates Title VI and the regulations issued under it.
The court adopted two distinct theories to support its finding that the NCAA is subject to the prohibitions of Title VI. See id. at 696. First, the court found that the NCAA is an “indirect recipient of federal financial assistance” because it exercises effective control over a block grant given by the United States Department of Health and Human Services to the NYSP.3 [112]*112See id. at 694. Second, the court held that Title VI covers the NCAA because member schools, which indisputably receive federal funds, have vested the NCAA with controlling authority over federally funded athletic programs. See Id.
The court then turned to the plaintiffs’ argument that the SAT component of Proposition 16 violates Title VI because of its alleged discriminatory disparate impact on African-American student athletes.4 See id. at 696-712. It found that the plaintiffs provided statistical evidence sufficient to show that the use of the SAT minimum standard “plainly evince[d] that African-Americans are being selected by Proposition 16 at a rate disproportionately lower than whites sufficient to infer causation.” Consequently, the plaintiffs raised a prima facie case of disparate impact discrimination. See id. at 699-701.
The district court rejected the NCAA’s argument that Proposition 16 benefits African-Americans because of the alleged increase in graduation rates it has brought about. The court stated that “the alleged beneficial impact (increased graduation rates) redounds at the ‘back-end’ while the adverse impact occurs up-front.” Id. at 700. In this regard, it cited Connecticut v. Teal, 457 U.S. 440, 452-56, 102 S.Ct. 2525, 2533-35, 73 L.Ed.2d 130 (1982), for the principle that racial balance at the end of an employer’s entire promotional process does not preclude a plaintiff from making a prima facie case of disparate impact discrimination based on the impact of one component of the process. Where the initial examination used by an employer in the challenged hiring process had a disparate impact, a “bottom-line” justification is not a defense to employer liability. See id. Accordingly, the district court concluded that the NCAA did not have a defense simply because African-Americans enrolled in its member schools after the adoption of Proposition 16 had an enhanced chance of getting a degree.
Inasmuch as the plaintiffs demonstrated that African-Americans are less likely to meet the standards required by Proposition 16 than whites, the burden shifted to the NCAA to show an educational necessity for the bylaw. The district court approved the legitimacy of the NCAA’s first proffered goal of raising all student athletes’ graduation rates, Cureton, 37 F.Supp.2d at 703, yet found the NCAA’s second proffered goal — closing the gap between white and black student athletes’ graduation rates — not to have been an actual goal of Proposition 16. Furthermore, the court found that there was no legal “support for an educational institution ... to engage in such a goal.” See id. at 704. Next, the court determined that Proposition 16’s use of the SAT as a cutoff was not justified by the legitimate goal of increasing student athletes’ graduation rates. Id. at 706-12. Moreover, the court found that the plaintiffs “have shown at least three alternative practices resulting in less racial disproportionality while still serving the NCAA’s goal of raising student athlete graduation rates — not raising them above a certain threshold number. That is all the proof that plaintiffs need to demonstrate under Title VI.” Id. at 714.
In view of its conclusions, the district court granted summary judgment to the plaintiffs, and permanently enjoined the NCAA from continued operation and implementation of Proposition 16. See id. at 714-15. Although regarding the matter as [113]*113ripe for appeal, the court retained jurisdiction. See id. at 715. By order dated March 16, 1999, the district court modified the March 8, 1999 opinion and order so that the NCAA was permanently enjoined from denying student athletes freshmen-year eligibility on the basis of the minimum standardized test score cutoffs in Proposition 16, but nevertheless could use minimum GPA cutoffs. See id. at 716.
Subsequently, the NCAA appealed and unsuccessfully sought a stay in the district court. The NCAA then sought a stay from this court, which we granted on March 30,1999.5
II. JURISDICTION and STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1) as, notwithstanding the district court’s entry of a permanent injunction, it has not entered a final judgment. We exercise plenary review on this appeal from the district court’s orders on the motions for summary judgment. See Seibert v. Nusbaum, Stein, Goldstein, Bronstein & Compeau, 167 F.3d 166, 170 (3d Cir.1999). Of course, on this appeal we can remand the matter for entry of a summary judgment in favor of the NCAA if we conclude that on the undisputed facts it is entitled to a summary judgment as a matter of law. See Nazay v. Miller, 949 F.2d 1323, 1328 (3d Cir.1991).
III. DISCUSSION
Plaintiffs brought this action pursuant to section 601 of Title VI, which provides:
No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d. The Supreme Court has determined that section 601 prohibits discrimination in or exclusion from Federally financially assisted programs or activities only on the basis of intentional discrimination. See Alexander v. Choate, 469 U.S. 287, 292-93, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985); Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983); Powell, 189 F.3d at 392. But the plaintiffs do not allege intentional discrimination. Accordingly, they rely on regulations implementing section 601, which the Departments of Health and Human Services and Education adopted pursuant to section 602 of Title VI which provides, in relevant part:
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract ..., is authorized and directed to effectuate the provisions of [Section 601] of this title with respect to such program or activity by issuing rules, regulations or orders of general applicability....
42 U.S.C. § 2000d-1. These regulations extend section 601 to racial, color and national origin discrimination predicated on recipients administering programs and activities with a disparate impact.
But section 601 and the regulations have them limitations, for they are enforceable only against the recipients of Federal financial assistance. See 42 U.S.C. § 2000d. The NCAA asserts that it is not a direct recipient of Federal financial assistance and that its relationship with third parties does not support the extension of Title VI coverage to the NCAA as an indirect recipient of such assistance.
[114]*114The district court recited four different theories that the plaintiffs proffered to support the extension of Title VI coverage to the NCAA:
(1) that the NCAA directly receives federal financial assistance through the Fund (which indisputably is a recipient of federal funds) because the Fund is nothing more than the NCAA’s alter ego; (2) that the NCAA indirectly receives federal financial assistance through the Fund due to the NCAA’s complete control over the Fund; (3) that member schools who receive federal funds have created and comprise the NCAA and that the NCAA governs its members with respect to athletics rules; and (4) that recipients of federal financial assistance have ceded controlling authority over a federally funded program to the NCAA, who then becomes subject to Title VI regardless of whether it is itself a recipient.
Cureton, 37 F.Supp.2d at 694 (emphasis added).
The district court rejected the first theory, as it concluded that there was insufficient evidence to establish that the NYSP was the alter ego of the NCAA.
The court did conclude, however, that the NCAA was an indirect recipient of Federal financial assistance because “although the Fund is the named recipient of the block grant, it is merely a conduit through which the NCAA makes all of the decisions about the Fund and the use of the federal funds.” Id. The NCAA, on the other hand, asserts that there is no evidence to support a finding that the NCAA itself controls the Federal monies disbursed by the Fund.
The court alternatively determined that the NCAA was subject to Title VI coverage because of its relationship to its member institutions. The court stated:
Whether characterized as a ‘delegation’ or an ‘assignment’ of ‘controlling authority,’ ‘regulation,’ or ‘supervision,’ Plaintiffs have established on this record that the member colleges and universities have granted to the NCAA the authority to promulgate rules affecting intercollegiate athletics that the members are obliged to abide and enforce. Under these facts, the NCAA comes sufficiently within the scope of Title VI irrespective of its receipt of federal funds.
Cureton, 37 F.Supp.2d at 696.
The district court was aware of National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999), which determined that the mere fact that the NCAA received funds from members that received Federal financial assistance did not subject the NCAA to coverage under Title IX of the Education Amendments of 1972. See Cureton, 37 F.Supp.2d at 693. While the district court regarded that case as “applicable” under Title VI, it noted that the Supreme Court left open the possibility that the NCAA could be subject to Title IX coverage on the basis of some other theory. See id. (citing NCAA v. Smith, 525 U.S. 459, 119 S.Ct. at 929). Thus, the district court concluded that the NCAA was subject to Title VI.
We do not find it necessary to determine whether, by reason of the NCAA’s relationship with the NYSP or the Fund, we should regard the NCAA as receiving Federal financial assistance. Rather, we will assume without deciding that these relationships are sufficient to establish that Federal financial assistance to the Fund is assistance to the NCAA itself. But section 601, as originally written, did not preclude recipients of Federal financial assistance from discriminating with respect to a program not receiving such assistance. Thus, the language of Title VI is program specific as it relates to “participation in,” “[denial of] the benefits of “ or “discrimination under” “any program or activity receiving Federal financial assistance.” See Grove City College v. Bell, 465 U.S. 555, 570-71, 104 S.Ct. 1211, 1220, 79 L.Ed.2d 516 (1984) (Title IX); Board of Pub. Instruction v. [115]*115Finch, 414 F.2d 1068 (5th Cir.1969) (Title VI).
It thus follows that when Congress enacted Title VI, a department’s authority to promulgate regulations under section 602 to effectuate the provisions of section 601 was subject to the program specific limitations of section 601. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 538, 102 S.Ct. 1912, 1926, 72 L.Ed.2d 299 (1982); see also Grove City, 465 U.S. at 570-71, 104 S.Ct. at 1220. Consequently, when the departments adopted the regulations under Title VI, see 45 C.F.R. § 80.3 and 34 C.F.R. § 100.3, the regulations, though expanding on section 601 by precluding the use of “criteria or methods of administration which have the effect of subjecting individuals to discrimination,” only related to programs or activities receiving Federal financial assistance. See 45 C.F.R. § 80.3(b)(2); 34 C.F.R. § 100.3(b)(2). Thus, the regulations, like the statute, are program specific.
Moreover, the regulations themselves demonstrate that they are program specific. Under the regulations, an application for Federal financial assistance to carry out a program must include assurances of nondiscrimination which may go beyond the program to be Federally assisted. Thus, 45 C.F.R. § 80.4(d)(2) and 34 C.F.R. § 100.4(d)(2) provide that “[t]he assurance required with respect to an institution of higher education ... or any other institution ... shall be applicable to the entire institution unless the applicant establishes ... that the institution’s practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is sought.” Clearly, these provisions cannot possibly accommodate a reading of the regulations so that as a matter of course their discriminatory impact aspects are applied beyond the specific program receiving Federal assistance. We are constrained to reach this conclusion, as it is obvious that a recipient of Federal financial assistance need not give an assurance of nondiscrimination with respect to programs in no way affecting the Federally assisted program.
It is, of course, true that in response to the Supreme Court’s program specific interpretation of Title IX in Grove City, Congress passed the Civil Rights Restoration Act of 1987 and thereby modified Title VI so that it encompasses programs or activities of a recipient of Federal financial assistance on an institution-wide basis. See 42 U.S.C. § 2000d-4a (Title VI); 20 U.S.C. § 1687 (Title IX); see also NCAA v. Smith, 525 U.S. 459, 119 S.Ct. at 928 & n. 4 (After passage of Civil Rights Restoration Act, “if any part of the NCAA received federal assistance, all NCAA operations would be subject to Title IX.”). Nevertheless, the Departments of Health and Human Services and Education have not modified 34 C.F.R. § 100.13 and 45 C.F.R. § 80.13 following enactment of the Restoration Act. Consequently, the regulations, which, unlike Title VI include disparate impact provisions, by their terms remain program specific. It therefore inexorably follows that, to the extent this action is predicated on the NCAA’s receiving Federal financial assistance by reason of grants to the Fund, it must fail as the Fund’s programs and activities are not in issue in this case.
In reaching our result, we' also point out the following. Neither Congress nor the Departments of Health and Human Services or Education has considered, at least in a formal proceeding of which we are aware, what the consequences would be if the disparate impact regulations were expanded beyond their current program specific limitations. It might well be that such expanded regulations could subject all aspects of an institution of higher education’s activities to scrutiny for disparate discriminatory impact beyond anything Congress could have intended. Furthermore, the regulations have not been amended pursuant to the notice and com[116]*116ment provisions of the Administrative Procedure Act. Surely, such an expansion should not be made without the opportunity for comment by interested parties. See 5 U.S.C. § 553; see also NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969).
We realize, of course, that arguably the Civil Rights Restoration Act implicitly expanded the scope of “program” within 45 C.F.R. § 80.13 and 34 C.F.R. § 100.13 so that it is not limited to a specific activity; after all, without such expansion there would be no regulations dealing with disparate treatment by reason of race, color, or national origin beyond the program actually receiving Federal financial assistance. We, however, will not address that possibility here beyond pointing it out, as this case does not involve any allegation of disparate treatment. Consequently, we have no reason to consider whether the regulations under section 602 could be applied in disparate treatment cases on an institution-wide basis.
We note that the dissent points out that the Fund may be the alter ego of the NCAA. See Dissent op. at 125. It seems quite clear in view of our conclusions with respect to the limited scope of the regulations, with which the dissent agrees, that it is immaterial whether the Fund is the NCAA’s alter ego inasmuch as the discriminatory impact aspects of the regulations only can be applied to the specific program receiving Federal assistance and the Fund’s programs are not in issue here. See Grove City, 465 U.S. at 571-72, 104 S.Ct. at 1220-21 (holding that Title IX only applied to college’s financial aid program, for which federal funds were earmarked, and not to the entire institution). Moreover, as we have pointed out the plaintiffs have not alleged that this is a discriminatory treatment case. Accordingly, even if the NCAA directly received the Federal financial assistance paid to the Fund our result would be the same.
The foregoing conclusions bring us to the question of whether the NCAA is a recipient of Federal funds by reason of what the plaintiffs call its “controlling authority” over programs or activities receiving Federal financial assistance. The case law suggests that the critical inquiry in determining whether an entity is an indirect recipient of Federal assistance is whether that entity is the intended recipient of Federal funds, intention being from Congress’s point of view. See id. at 563-65 & n. 13, 104 S.Ct. at 1216-17 & n. 13. The Supreme Court, however, already has found no indication that member schools paid their dues to the NCAA with Federal assistance funds “earmarked” for that purpose. NCAA v. Smith, 525 U.S. 459, 119 S.Ct. at 929. Thus, the controlling authority argument can be sustained, if at all, only on some basis beyond the NCAA’s mere receipt of dues. See id. at 929-30. Of course, in considering this “controlling authority” argument, we emphasize that under the applicable regulations only “recipients” of Federal financial assistance are subject to the disparate impact regulations, not merely organizations which have some relationship with entities receiving such assistance or organizations which benefit from such assistance. See United States Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605-07, 106 S.Ct. 2705, 2710-12, 91 L.Ed.2d 494 (1986).
In Horner v. Kentucky High School Athletic Ass’n, 43 F.3d 265, 272 (6th Cir.1994), the court held that the Kentucky State Board for Elementary and Secondary Education and the Kentucky High School Athletic Association, its agent to manage interscholastic sports, were subject to Title IX. But in that case, the Board controlled and managed on behalf of the Kentucky Department of Education over $396 million in Federal funds. Furthermore, the Association was its agent authorized by statute to manage interscholastic athletics.6 On the other hand, more [117]*117recently the court in Smith v. Metropolitan School District, 128 F.3d 1014, 1019-21 (7th Cir.1997), held that individuals in a supervisory capacity are not liable in an action under Title IX because they are not recipients of Federal funds notwithstanding the circumstance that they may have some control over the funds.7 Of course, Title IX cases are instructive in this Title VI action as the statutes are essentially similar. See NCAA v. Smith, 525 U.S. 459, 119 S.Ct. at 928 n. 3; see also Paralyzed Veterans, 477 U.S. at 600 n. 4, 106 S.Ct. at 2708 n. 4.
While not a Title VI or Title IX case, we find the Supreme Court’s decision in NCAA v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988), instructive, as that case makes clear that the NCAA does not “control” its members. Tarkanian was a tenured coach, whom the University of Nevada at Las Vegas (UNLV) reluctantly had suspended under threat of NCAA sanctions. He then brought an action under 42 U.S.C. § 1983 claiming that the NCAA was a state actor, because the “UNLV delegated its own functions to the NCAA, clothing the [NCAA] with authority both to adopt rules governing UNLV’s athletic programs and to enforce those rules on behalf of UNLV.” Id. at 192, 109 S.Ct. at 462. The Court held that the NCAA was not a state actor. While the Court recognized that the NCAA’s rules and recommendations clearly influenced the UNLV, it concluded that the UNLV, not the NCAA, took the final action suspending Tarkanian. See id. at 192,109 S.Ct. at 462.
The Court reasoned that the UNLV “delegated no power to the NCAA to take specific action against any university employee. The commitment by UNLV to adhere to NCAA enforcement procedures was enforceable only by sanctions that the NCAA might impose on UNLV itself.” Id. at 195-96, 109 S.Ct. at 464. The Court explained that the UNLV had the option to retain Tarkanian and risk sanctions, perhaps even expulsion, or to withdraw voluntarily from the NCAA. See id. at 197-98, 109 S.Ct. at 465. The Court questioned Tarkanian’s assertion that “the power of the NCAA is so great that the UNLV had no practical alternative to compliance with its demands.” Id. at 198-99, 109 S.Ct. at 465. It stated that “[t]he university’s desire to remain a powerhouse among the Nation’s college basketball teams is understandable, and nonmember-ship in the NCAA obviously would thwart that goal. But that UNLV’s options were unpalatable does not mean that they were nonexistent.” Id. at 198 n. 19, 109 S.Ct. at 465 n. 19.
Similarly, the ultimate decision as to which freshmen an institution will permit to participate in varsity intercollegiate athletics and which applicants will be awarded athletic scholarships belongs to the member schools. The fact that the institutions make these decisions cognizant of NCAA sanctions does not mean that the NCAA controls them, because they have the option, albeit unpalatable, of risking sanctions or voluntarily withdrawing from the NCAA. In this regard, we point out that this case differs from Homer as there the Athletic Association was exercising public authority with respect to its functions. We emphasize that the NCAA members have not ceded controlling authority to the [118]*118NCAA by giving it the power to enforce its eligibility rules directly against students.
We also point out that applying the disparate impact regulations to the NCAA is inconsistent with the contractual character of section 601. The Supreme Court explained in Paralyzed Veterans that the antidiscrimination provisions in section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which has language tracking Title VI, have a contractual basis. Accordingly, the Court said that “Congress limited the scope of § 504 to those who actually ‘receive’ féderal financial assistance because it sought to impose § 504 coverage as a form of contractual cost of the recipient’s agreement to accept federal funds.” 477 U.S. at 605,106 S.Ct. at 2711. Thus, “[b]y limiting coverage to recipients, Congress imposes the obligations of § 504 upon those who are in a position to accept or reject those obligations as a part of the decision whether or not to ‘receive’ federal funds.” Id. at 606, 106 S.Ct. at 2711.
Title VI is a similar statute. See 45 C.F.R. § 80.4; 34 C.F.R. § 100.4. But there is no contractual privity between the Departments of Health and Human Services and Education and the NCAA with respect to Federal financial assistance to the NCAA members. Therefore, the NCAA is not in a position to accept or reject the Federal funds paid to those institutions. We do not suggest that an absence of privity means that in no circumstances may a controlling authority argument be viable; we note that those who truly assume control of federally-funded programs are in a position to accept or reject that control as part of a decision whether or not to receive federal funds indirectly. Nonetheless the absence of privity clearly signals that a court should be circumspect in imposing Title VI obligations on an entity which is not a direct recipient of Federal financial assistance. Such caution is consistent with the Spending Clause foundation for Title VI. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 1669-70, 143 L.Ed.2d 839 (1999).
We recognize that the dissent suggests that the NCAA constitution requires NCAA members to cede authority over their athletic programs to the NCAA, but the NCAA constitution expressly provides for the retention of institutional control over individual athletic programs. While the constitution requires conformity with the NCAA’s rules and regulations, the ultimate decisions whether to conform are made by individual members. Therefore, the constitution is completely consistent with our result. Furthermore, we cannot understand how the fact that the NCAA promulgates rules and regulations with respect to intercollegiate athletics somehow means that the NCAA has controlling authority over its members’ programs or activities receiving Federal financial assistance. After all, the institutions decide what applicants to admit, what employees to hire, and what facilities to acquire.
IV. CONCLUSION
In view of the foregoing determinations, it is unnecessary for us to reach the other issues raised on this appeal. Moreover, inasmuch as the parties agree that there are no disputes of material fact with respect to the question of whether the NCAA is subject to Title VI (and we are aware of none), and we have concluded that the NCAA is entitled to a judgment as a matter of law, there is no reason why this litigation should continue. Consequently, we will reverse the order of the district court of March 8, 1999, and will remand the case to the district court to enter summary judgment for the NCAA.