Ban on felon-coaches is not racial discrimination

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.