Hardie v. National Collegiate Athletic Association

Ban on felon-coaches is not racial discrimination

Cases > Equality Under the Law > Hardie v. National Collegiate Athletic Association
Won: The Ninth Circuit held that the Plaintiff did not establish a violation of Title II. The concurring opinion expressly adopted the arguments that PLF raised in its amicus brief.
Case Court: Ninth Circuit Court of Appeals

Dominic Hardie is a high school basketball coach who is prohibited from coaching in National Collegiate Athletic Association (NCAA)-sponsored tournaments because he is a convicted felon. He sued the NCAA on the theory that the felon-ban violates Title II of the Civil Rights Act, which prohibits racial discrimination in places of public accommodation, because it causes a disparate impact on African-Americans. As amicus, PLF argued that Title II does not permit disparate impact claims. The Ninth Circuit rejected Hardie’s lawsuit, holding that the felon-ban did not amount to a disparate impact violation, even if Title II does allow such claims. Hardie filed a motion for rehearing.

The NCAA sponsors high school basketball tournaments and prohibits anyone who has been convicted of a felony from coaching in them. Dominic Hardie, an African-American high school basketball coach with felony conviction for drug possession on his record, sued the NCAA for racial discrimination. Hardie disavowed any claim of intentional discrimination during the trial court proceedings, claiming only that the NCAA ban produces a disparate impact on his racial group because a larger proportion of African-Americans have been convicted of a felony.

The district court ruled in favor of the NCAA on the ground that Title II does not authorize disparate impact claims. The Ninth Circuit affirmed, but only by dodging the primary issue in the case. It held that refused to decide if Title II allows disparate impact claims then held that, even if it does, Hardie could not prevail because he didn’t show that an equally effective, less discriminatory policy would have achieved the same goals. However, Judge David Faber filed a concurring opinion adopting PLF’s argument that Congress must provide a clear statement of its intent whenever it wishes to impose disparate impact liability (which it didn’t do in Title II), because disparate impact liability raises significant constitutional concerns. Hardie filed a petition for rehearing, asking that his case be reinstated so that he may produce evidence as to how the felon-ban affects various populations.

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What’s at stake?

  • The Equal Protection Clause requires the government to treat everyone as individuals. Disparate impact liability, however, requires the government to treat everyone as components of a racial class and allocate political rights on that basis. The Constitution cannot countenance such a result.
  • If Congress wishes to permit disparate impact liability, which raises significant constitutional concerns, it must clearly say so in the text of the law.

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