A federal judge from the Southern District of California ruled that an NCAA policy, which prohibits felons from coaching NCAA-sanctioned high school sporting events, does not violate Title II of the Civil Rights Act.
The summary judgment ruling seems to end the claim of Dominic Hardie, co-founder of the Houston-based Triple D Hoops basketball programs. Hardie, who coaches several teams that compete in national tournaments, was formally an NCAA Division I basketball student-athlete at the University of Houston and University of North Texas.
In 2000, at age 23, Hardie was arrested and charged with possession with intent to distribute less than one gram of cocaine. In 2001, Hardie pled guilty to the charge and received a five year probated sentence. He has not been arrested or convicted since and recently graduated from the University of North Texas. In addition to his duties as a basketball coach, he is a full-time social worker in the child foster care system.
Hardie had been coaching at NCAA-certified basketball contests for several years. From 2006-2010, the NCAA’s policies on felons coaching at NCAA-certified basketball events allowed for coaches to coach their teams as long as it was a non-violent felony conviction and the conviction was older than seven years. The policy at that time distinguished between violent and non-violent felonies. In January 2011, the NCAA removed the distinction between violent and non-violent felonies.
On February 22, 2012, Hardie re-applied for certification to coach at NCAA certified basketball events for 2012 and 2013. On March 13, 2012, the NCAA informed Hardie that he was denied certification because of his past felony conviction. As a result, Hardie was unable to coach his teams at any basketball event certified by the NCAA.
In February 2013, Hardie sued the NCAA and a host of other organizations, claiming the new rule constitutes “unlawful racial discrimination in places of public accommodation.” Hardie further claimed that the defendants have devised a policy that denied him “the full and equal enjoyment of places of public accommodation in violation of Title II by permanently denying coaching certification to him and all other persons with felony convictions without regard to the time passed since conviction, type of conviction, extent of rehabilitation, or the relatedness of the conviction to any legitimate business or organizational purpose.” Hardie argued in his compliant that the NCAA policy has a disparate impact on African Americans because African Americans are “overrepresented in nearly every stage of the criminal justice system.” Hardie pointed to statistics that show African Americans are 4.5 times more likely than American Caucasians to have a felony conviction.
The NCAA moved for summary judgment on eight grounds: (1) Plaintiff cannot establish intentional discrimination, (2) Title II does not include a disparate impact theory of discrimination, (3) any disparate impact claims are governed by Wards Cove, (4) Plaintiff cannot establish a prima facie case of disparate impact on African-American girls basketball coaching applicants, (5) Plaintiff cannot establish a prima facie case of disparate impact on African-Americans, (6) Plaintiff cannot show that the NCAA’s felon exclusion policy does not serve significant legitimate business objectives, (7) Plaintiff cannot show that there is a lesser discriminatory alternative, and (8) Plaintiff cannot show that the NCAA denied him access to a place of public accommodation.
The court noted that its decision on the first two issues are sufficient to rule on the NCAA’s motion and thus it did not address the remaining six issues.
The plaintiff voluntarily withdrew the intentional discrimination claim under Title II, leaving only the plaintiff’s disparate impact claim, and whether or not it is available under Title II.
Initially, the court noted that there are only “a paucity of cases analyzing (the issue).” One of the reasons for this is the law’s ambiguity. Nevertheless, “the decisions that have concluded that Title II encompasses disparate impact claims generally lack support for that conclusion,” wrote the court.
“However, a number of courts have looked to the legislative history of Title II, Congress’s wording of other civil rights statutes, and the statute’s text and concluded that disparate impact claims are not cognizable under Title II.”
The court continued, noting that Title II provides that “all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
But what the statute does not do is recognize disparate impact.
“(T)he only significant difference between Title II and statutes under which disparate impact is not cognizable is that Title II prohibits ‘segregation’ in addition to ‘discrimination,’” wrote the court. “However, the term ‘segregation’ is closer to ‘discrimination’ than to ‘adversely affect’ and thus does not justify the recognition of disparate impact under Title II.”
Dominic Hardie v. National Collegiate Athletic Association, et al; S.D. Cal.; Case No. 13cv346-GPC (DHB), 2015 U.S. Dist. LEXIS 43609; 3/24/15
Attorneys of Record: (for plaintiff) Jane Lynn Dolkart, Noel Roycroft, LEAD ATTORNEYS, PRO HAC VICE, Lawyers’ Committee for Civil Rights Under Law, Washington, DC; Mark Andrew Woodmansee, LEAD ATTORNEY, Morrison and Foerster, San Diego, CA; Thomas H Prouty, LEAD ATTORNEY, Troutman Sanders LLP, Irvine, CA; Jeffrey M. David, Morrison & Foerster LLP, San Diego, CA.
(for defendant National Collegiate Athletic Association) Allan G King, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, P.C., Dallas, TX; Heather L. Shook, LEAD ATTORNEY, Bingham McCutchen, Palo Alto, CA; Tanja L Darrow, Littler Mendelson, Los Angeles, CA.
