The NCAA prohibits felons from coaching in sponsored basketball tournaments. Dominic Hardie, a black basketball coach, sued the NCAA for racial discrimination. But Hardie doesn’t allege intentional discrimination. Instead, he’s suing the NCAA under a theory of liability known as disparate impact.
One problem: It’s an open question whether Title II of the Civil Rights Act even countenances disparate impact liability. We contend that it does not. Last Wednesday, the Ninth Circuit heard oral argument in the case.
The argument contained the good, the bad, and the ugly. The good: The court will likely hold that the felon ban is not discriminatory. The bad: the court seemed to take for granted that disparate impact was viable under Title II. The ugly: as Hardie’s counsel hinted, juries must engage in all kinds of racial thinking in disparate impact cases (e.g. whether blacks are overrepresented in the category of felons that the NCAA chooses to exclude).
Must we think this way? Of course not. As Justice Scalia pointed out long ago, the Constitution instructs the government to consider us all one race: American. Disparate impact requires the government to ignore that instruction and consider us as members of racial groups.