CHARLOTTEAn aspiring stock-car driver is suing NASCAR, claiming he was denied the opportunity to compete in NASCARs diversity program because he looks too Caucasian.
NASCAR argues that in trying to change the face of the sport, it has the right to select drivers for its diversity program based on skin color, attorneys for the sanctioning body and its former diversity program administrators have told a U.S. District court.
Michael Rodriguez, a driver from Pennsylvania, says in his complaint filed in U.S. District Court that he was denied the opportunity to compete in the 2005 and 2006 Drive For Diversity combines.
Rodriguez is suing NASCAR and Access Communications, which operated NASCARs diversity program from its inception in 2004 until 2008 and conducted the combines that are designed for teams in NASCARs regional series to scout minority drivers.
NASCARs Drive for Diversity program was created to develop minority drivers and crewmen and help them advance through the NASCAR ranks with the goal of reaching the sports top series. Since 2004, the program has included 41 drivers, with most being selected multiple times. There currently are six drivers in the program racing in various NASCAR regional series.
Rodriguez, now in his early 20s, is asking for undetermined damages for violation of his civil rights.
NASCAR and Access Communications are seeking to get the case, filed in January 2010, thrown out before it goes to trial. Attorneys for NASCAR and the company argued their side in a summary judgment hearing Wednesday in federal court in Charlotte.
The case has forced NASCAR and Access to work together even though NASCAR turned over its diversity program to former Dale Earnhardt Inc. executive Max Siegel in 2009 after Access failed to produce a significant number of minority drivers who advanced to the national NASCAR ranks.
Judge Max Cogburn did not issue a ruling immediately after Wednesdays hearing and indicated that he was uncomfortable with the case.
The core question for the court, the judge told the attorneys, is can you discriminate on color in an effort to diversify?
Rodriguez stated in his complaint that he believes he was discriminated against because of his complexion. According to his claim, he is of Puerto Rican and Spanish descent and identifies himself as Puerto Rican. He states in his claim that he is blue-eyed and fair-skinned.
According to NASCARs brief in support of summary judgment, Rodriguez based his claim on two references by an Access employee that he looks like the poster child or the poster boy for the Ku Klux Klan.
According to the NASCAR brief, the first reference came when his father said he overheard a conversation between program officials during the 2005 diversity program combine. Rodriguez, who was 15 at the time, attended the 2005 combine but was later denied the chance to drive.
Access and NASCAR claim in their briefs that Rodriguez wasnt medically cleared after he appeared disoriented, possibly from bumping his head prior to his turn to drive the programs racecar. In his complaint, Rodriguez states that he was cleared medically but was denied the chance to compete.
The second Klan reference allegedly was made during a discussion of potential diversity drivers for the 2006 combine, according to NASCARs summary judgment brief. The poster child comment allegedly was made by an Access employee in the presence of three people, or made in a joking manner by an Access employee after the selection committee voted on which drivers to accept into the program. Rodriguez was selected as an alternate.
Another Access official said those statements were not accepted, tolerated or welcome after hearing the comment, NASCAR states in its brief.
NASCAR puts most of the onus on Access as far as the legal liability for choosing diversity drivers, but NASCAR also backed Access attorneys, who stated in their summary judgment brief that the act of excluding (Rodriguez) from an affirmative action program because he appeared to be Caucasian is consistent with NASCAR's stated goals of recruiting drivers who would change the face of NASCAR and make it look more like America.
Jeff Pasek, an attorney representing NASCAR in the case, said during the hearing Wednesday that he wouldnt talk about what was fair, but instead what was legal.
We would submit to (the court) it would be legitimate for Access to make its decision on affirmative action criteria, Pasek said.
Access attorney Dhamian Blue followed later, reiterating what Access argued in its summary judgment brief, saying that the color of a drivers skin can be proper criteria for an affirmative action plan.
NASCAR recognized their need to change the face of NASCAR, Blue said. The ultimate desire was to pan across pit road and see minority drivers and minority crewmen. When you talk about changing the face of NASCAR, color weighs very heavily.
The judge asked Pasek if it would be reasonable for a college or university not to admit students as part of an affirmative action program if their skin color werent dark enough.
Pasek argued that if the college had only light-skinned applicants, it would be able to deny some of them or else it would make a mockery of the program if none of them looked like minorities.
The judge replied that the Rodriguez case deals with virtually all of the applicants for the diversity program having identifiable minority characteristics and that that was a rare occurrence.
Rodriguez attorney Humphrey Cummings called the argument that skin color could be used as a determining factor as really bizarre.
Utilizing their argument, it is an after-the-fact sort of claim, that (their) people got out of hand and now need to cover it up, Cummings said. It just doesnt wash. Its like saying, Youre not black enough. How black is black enough?
NASCAR argues in its summary judgment brief, and Pasek reiterated at the hearing, that the selection of drivers for the 2006 combine was done by closed ballot and that there is no proof that Rodriguez was rejected by a majority of the members because of his skin color.
Access and NASCAR attorneys also argued Wednesday that Rodriguezs civil rights could not be violated as defined by law because Rodriguez never had a contract with NASCAR or Access, that participation in the program was voluntary and that there were other platforms for a minority driver to get noticed by race teams.
The attorneys for NASCAR, Access and Rodriquez declined to comment on the case after the hearing.
NASCAR spokesman David Higdon said that the NASCAR attorneys were making a legal argument that skin color could be used as a criteria for selecting diversity drivers, but said that is not NASCAR's policy and that skin color did not play a role in the Rodriguez decision.
"Absolutely skin color has nothing to do with our decision process," Higdon said. "He, like many others, did not make the cut based on merit and merit only."
Attempts to obtain a photo of Rodriguez were not immediately successful.
updated by @stars-radio: 03/10/17 05:53:19AM
