Only the Supreme Court remains for disparate impact crusaders

September 19, 2017 | By JOSHUA THOMPSON

A few months ago my colleague Wencong Fa blogged about the Ninth Circuit’s decision in Hardie v. NCAA. Hardie, a convicted felon, sought to have the NCAA’s ban on felon coaches struck down as illegal under Title II of the Civil Rights Act of 1964. That is the tenet of our civil rights laws that prohibits hotels and lunch counters from discriminating against patrons on the basis of race. Hardie, and his team of disparate impact lawyers, sought to apply disparate impact theory to Title II. They argued that prohibiting felons from coaching at NCAA events violates Title II, because the prohibition has a disparate impact on black individuals. The Ninth Circuit rejected his claim, and the concurring opinion of Judge Faber explicitly relied on PLF’s brief in explaining why Title II does not cover disparate impact claims.

As expected, Hardie’s team of disparate impact advocates petitioned the Ninth Circuit for rehearing and rehearing en banc. That petition was denied this week. The legal theory pushed by these attorneys is as radical as it is offensive. I am glad the Ninth Circuit rejected this claim, but I suspect we shall be seeing a petition to the Supreme Court in a few months.