dissenting:
The majority opinion finds there is no substantial federal question presented by this case. I disagree. The Supreme Court, in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), declared a rigorous standard that must be met before the federal question is determined to be insubstantial.
“ ‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. [31], at 33 [82 S.Ct. [549], at 551, 7 L.Ed.2d 512], ‘wholly insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S.Ct. [326], 327, 54 L.Ed. 482] (1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32 [54 S.Ct. [3], 4-5, 78 L.Ed. 152] (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if ‘ “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ ”
Id. at 537-38, 94 S.Ct. at 1379 (quoting Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973)). Application of the Hagans standard to Wiley’s claims leads me to conclude that at least the equal protection argument raises a substantial federal question, which properly considered is neither frivolous nor foreclosed by prior decisions.1
Everyone concerned admits that neither a suspect classification nor deprivation of a fundamental constitutional right is involved in this case. But even so, Wiley is a person entitled to “equal protection” against state action under a rule not rationally related to a legitimate purpose of the acting agency.
The Supreme Court has recently stated the equal protection inquiry, as it would be applicable here, as follows:
Since respondent neither asserted nor established the existence of any suspect classification or the deprivation of any fundamental constitutional right, see San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. [1278], 1300, [36 L.Ed.2d 16] (1973), the only in*479quiry is whether the State’s classification is “rationally related to the- State’s objective.” Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 315, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
Harrah Indep. School Dist. v. Martin, 440 U.S. 194, 199, 99 S.Ct. 1062, 1065, 59 L.Ed.2d 248 (1979). Other circuits have used similar wording in reviewing NCAA rules in an equal protection context. “None of the parties contend that the NCAA rule infringes upon a fundamental right which would necessitate strict judicial scrutiny. Instead, we must examine the rule to determine whether it rationally furthers some legitimate purpose.” Shelton v. NCAA, 539 F.2d 1197, 1198 (9th Cir. 1976). See also Moreland v. Western Penn. Interscholastic Athletic League, 572 F.2d 121, 124 (3d Cir. 1978); Associated Students, Inc. v. NCAA, 493 F.2d 1251, 1255 (9th Cir. 1974); Mitchell v. Louisiana High School Athletic Ass’n, 430 F.2d 1155, 1158 (5th Cir. 1970). Cf. Lansdale v. Tyler Junior College, 470 F.2d 659, 662 (5th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964 (1973) (hair code). If our previous cases, relied upon in the majority opinion, stated a different standard of review they painted with too broad a brush.
I agree that the constitutional analysis requires broad discretion be given to the NCAA eligibility rules. See McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). But even applying a minimal test of rationality the NCAA’s rule on BEOG’s fails; Wiley’s argument raised here is not only substantial, it is compelling.
There is state action in the application of NCAA rules; their enforcement by state university members is so intertwined with the state-controlled educational process that judicial evaluation of the conduct is warranted. Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976); Howard Univ. v. NCAA, 510 F.2d 213 (D.C. Cir. 1975); Parish v. NCAA, 506 F.2d 1028 (5th Cir. 1975); Associated Students, Inc. v. NCAA, 493 F.2d 1251 (9th Cir. 1974).
Under the NCAA rule a student-athlete may receive a full grant even though his or her parents are millionaires and are providing any level of support. Student-athletes also can receive without penalty government payments under the GI Bill of Rights, military reserve training programs, the War Orphans Educational Program, Social Security Insurance Program and Non-Service-Connected Veteran’s Death Pension Program. Thus, the rule distinguishes between student-athletes receiving money from BEOG’s and those receiving money from their parents or these government sources.
The NCAA regulations concerning limitations on aid to athletes, as applicable here, clearly have as their principal purpose the promotion of amateurism in athletics by prohibiting pay for play. The NCAA concludes, and I think permissibly, that any aid which can be manipulated by the university or its supporters to supplement the basic athletic grant-in-aid to student-athletes falls into the play-for-pay category. The regulations also seem to prevent one member institution from using its access to economic resources (through endowment funds, alumni or otherwise) to obtain an advantage over other member institutions in the fielding of athletic teams. These are legitimate purposes, I believe. The question then is whether the regulation applied here is rationally related to these purposes.
Appellants argue that the exclusion of the assistance received from parents, from the GI Bill of Rights, or from social security, veterans or other death benefits is justified as “earned” by the athlete or the athlete’s family prior to matriculation. That does not explain, of course, the exclusion of payments for student-athletes’ participation in military reserve training programs. What is foreclosed or taken into account in determining the amount of assistance permitted is payment for employment of the student during the semester or term time, and all grants and scholarships (government or otherwise) that possibly can be controlled by the university or its athletic supporters. Thus, the line drawn is to permit support that is totally beyond the control of the university and its supporters, that has no possible relationship to the student’s athletic ability or participation, that does not provide an advantage to one university over *480another, and that can have no bearing upon the principal aim of the regulations — prohibiting pay for play.
The key question then becomes whether the university or its supporters can manipulate the BEOG’s, and, perhaps, whether these grants are more available to students in some member universities than in others. The BEOG legislation provides a minimum base of financial support for economically deprived college students. BEOG’s are based solely on need, considering only the resources the student’s family can be expected to provide. Athletic ability or participation is totally irrelevant to the grants; neither is scholastic nor other ability a factor. The program operates under an entitlement concept that all eligible students receive awards without regard to any other student financial aid. The student apparently may attend any college or university. It has been described as a “G.I. Bill for all Americans.” 117 Cong.Rec. 30495 (1971). All this appears to be admitted by the NCAA and the other appellants, who have appended to their reply brief a letter setting out much of that policy, written by the Chief of the Program Policy and Analysis Branch of the Department of Health, Education & Welfare.
A university can enter into an agreement with the United States Commissioner of Education to administer the BEOG’s, and to calculate and disburse funds to qualifying students enrolled in that institution. 45 C.F.R. §§ 190, et seq. But disbursement must be in accordance with very strict requirements of federal regulations; these requirements eliminate the exercise of any significant discretion. Under statutory and regulatory BEOG guidelines the university cannot administer the grants in a manner calculated to benefit student-athletes without violating federal law.
There was absolutely no indication that the University of Kansas could manipulate the BEOG program to provide any semblance of pay for play. Applications need not be made through any university; Wiley applied for his grant through a public library in Maryland. Neither is there any indication that the University of Kansas, nor any other university member of the NCAA, could derive a special benefit from the BEOG’s that would help the institution secure an advantage over any similar institution in the recruitment of or assistance to student-athletes. The NCAA appears to have recognized these conclusions because it has now changed its regulations to permit student-athletes to receive BEOG grants along with athletic scholarships.2
Wiley is not entitled to a university education as a fundamental right, and certainly not to participation in college athletics, but as a member of an identifiable class he is protected under the Equal Protection Clause from arbitrary state action. Although the test to be applied in this instance is the “rational relationship” test, requiring great deference to the formulators, this appears to be one of those perhaps rare cases in which there is no rational basis for the NCAA’s rule. I would affirm the district court decision.
. I would not regard the Supremacy Clause argument insubstantial or frivolous, but I would find it nonmeritorious. It is asserted that the federal Basic Economic Opportunity Grant (BEOG) and other federal assistance legislation is being frustrated by the operation of the NCAA athletic scholarship rules, as administered through the various state universities, in violation of the Supremacy Clause. The BEOG legislation, 20 U.S.C. § 1070a, is intended to provide a minimum base of financial support for impoverished students who wish to attend college. The only other financial support taken into account in making a BEOG are the resources the applicant’s family can be expected to provide. These grants are not reduced by the amounts of scholarship or other aid made available to the student. I do not believe Congress’ intent is frustrated if a university gives less scholarship aid to a student because he or she has a BEOG, nor do I see any frustration of congressional purposes by enforcing an NCAA requirement that an athletic scholarship be limited or denied to a student who has a BEOG.
. Under the 1977 amendment to the NCAA rules, the amount available under a BEOG, when added to the athletic scholarship, may not exceed an allowable maximum. Apparently the amount of the athletic scholarship must be reduced in such event. See Appellant’s Reply Brief, Appendix. A. I express no opinion upon whether the new rule bears a rational relationship to the legitimate purposes of the NCAA regulation.