December 30, 2015

Is the NCAA ban on felon coaches discriminatory? (hint: no)

By Wen Fa Attorney

The NCAA sponsors high school basketball tournaments and prohibits anyone who has been convicted of a felony from coaching in them. Dominic Hardie, a black high school basketball coach with felony conviction for drug possession on his record, has sued the NCAA for racial discrimination.

But how could that be? Few would associate the NCAA ban with racism, and even Hardie himself disavowed any claim of intentional discrimination during the trial court proceedings. Hardie’s only remaining claim on appeal is that the NCAA ban produces a disparate impact on his racial group because a larger proportion of blacks have been convicted of a felony. PLF, the Center of Equal Opportunity, and Competitive Enterprise Institute filed this Ninth Circuit amicus brief in support of the NCAA — and against disparate impact — earlier today. Disparate impact liability is problematic because it encourages what the Equal Protection Clause forbids: discrimination on the basis of race.

To see how this is so, imagine you are the NCAA. If you could be liable for any act that disproportionately affects one group or another (read: virtually every act), then you would be quite careful to make sure that any act you take leads to the exact same result for all racial groups. But that would require something untoward on your part: perpetual treatment of others not as individuals, but solely as members of their racial groups.

Real-world examples also show how an obsession with racial proportionality can lead to racial discrimination. In one case, a company instituted a “balanced workforce initiative” to ensure the type of racial proportionality that would immunize it from a disparate impact lawsuit. But since it turned out that blacks were overrepresented in the workplace, the initiative led to outright racial discrimination against minority employees.

The Equal Protection Clause promises racial neutrality in governmental decisionmaking for all people. PLF will continue to make sure that the government lives up to this promise.

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Hardie v. National Collegiate Athletic Association

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.

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