The 9th U.S. Circuit Court of Appeals has affirmed the ruling of a district court, finding that the NCAA did not violate Title II of the Civil Rights Act of 1964 when it implemented a policy where it precluded anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments.
Central to the court’s ruling was that plaintiff Dominic Hardie, who is African-American, failed to show that there was an equally effective, less discriminatory alternative to the NCAA’s participant approval policy, which he was required to do under the three-step analysis for disparate-impact claims set forth in Wards Cove Packing Co. v. Atonio.
By way of background, Hardie was a 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 Feb. 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 complaint 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, which the court granted, finding that disparate-impact claims are not cognizable under Title II and, that there was not an equally effective, less discriminatory, alternative to the NCAA’s participant approval policy. The plaintiff appealed.
On appeal, the NCAA stuck to the ground that the plaintiff was obligated to show an equally effective, less discriminatory alternative to the policy existed, pursuant to Wards Cove, in which the Supreme Court laid out a burden-shifting framework that applies to disparate-impact claims.8 490 U.S. at 658.
If a plaintiff makes it to the end of the framework, where a defendant “provides a legitimate justification for the challenged practice, the plaintiff must demonstrate” that there is an “alternative practice” that would achieve the same objective without having a “similarly undesirable racial effect.” Id. at 660
To satisfy the burden, Hardie proposed two alternatives to the Participant Approval Policy: (1) the NCAA could revert to the pre-2011 version of the policy, which disqualified applicants with violent but not nonviolent felony convictions that were at least seven years old; or (2) the NCAA could conduct individualized assessments of applicants with felony convictions to determine if they would pose an unacceptable risk to the safety of tournament participants. “We hold that Hardie has failed to show that either of his proposed alternatives would be both equally effective compared to, and less discriminatory than, the current policy,” wrote the court.
Dominic Hardie v. National Collegiate Athletic Association, et al; 9th Cir.; No. 15-55576, 2017 U.S. App. LEXIS 11409; 6/27/17
Attorneys of Record: (for plaintiff) James Sigel (argued) and Jack W. Londen, Morrison & Foerster LLP, San Francisco, California; Brian R. Matsui, Morrison & Foerster LLP, Washington, D.C.; Jon Greenbaum, Lawyers’ Committee for Civil Rights Under Law, Washington, D.C.; Jeffrey M. David, Call & Jensen, Newport Beach, California.
(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.