Hardie v. National Collegiate Athletic Ass'n
2017 U.S. App. LEXIS 11409
| 9th Cir. | 2017Background
- Dominic Hardie, an African American coach, was denied approval to coach at NCAA-certified nonscholastic youth tournaments under the NCAA Participant Approval Policy, which (since 2011) disqualifies anyone with any felony conviction.
- Hardie previously coached under an earlier (pre-2011) policy that excluded only violent felons, sex offenders, crimes involving children, or nonviolent felons within seven years; the 2011 change eliminated the violent/nonviolent distinction and any time limit.
- Hardie sued the NCAA under Title II of the Civil Rights Act, alleging a disparate-impact claim: the categorical felony ban disproportionately excludes African Americans and thus violates 42 U.S.C. § 2000a(a).
- Hardie submitted statistical evidence (Bendick report and geocoding) showing African Americans were overrepresented among those denied for felony convictions; offered two less-discriminatory alternatives: (1) revert to the pre-2011 policy, or (2) use individualized assessments.
- The district court entered summary judgment for the NCAA holding disparate-impact claims not cognizable under Title II; the Ninth Circuit affirmed on different grounds: even assuming disparate-impact claims are cognizable, Hardie failed Wards Cove step three (no equally effective, less discriminatory alternative).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title II authorizes disparate-impact claims | Hardie: Title II liability may be premised on disparate impact; intent not required | NCAA: (preserved below) Title II does not authorize disparate-impact claims; court need not decide here | Court: Did not decide the question; assumed arguendo disparate-impact is cognizable for analysis |
| Whether the Participant Approval Policy has a disparate impact causally connected to the felony ban | Hardie: Bendick report shows significant overrepresentation of African Americans among felony-denied applicants | NCAA: Statistical disparity alone insufficient without legitimate justification and alternative analysis | Held: Prima facie disparate impact established (Bendick data sufficient to show disparity and causal link) |
| Whether the NCAA’s rationale is a legitimate justification under Wards Cove step two | NCAA: Policy serves safety of minors and integrity of recruiting; legitimate interest | Hardie: NCAA’s interests are pretextual or could be met by narrower means | Held: NCAA’s safety and integrity justifications are legitimate and significant |
| Whether Hardie identified an equally effective, less discriminatory alternative (Wards Cove step three) | Hardie: (1) revert to pre-2011 policy; (2) adopt individualized assessments | NCAA: Both alternatives are not shown to be equally effective and may pose increased risk or administrative burdens | Held: Hardie failed to show either alternative would be both equally effective and would reduce disparate impact; summary judgment for NCAA affirmed |
Key Cases Cited
- Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (three-step disparate-impact burden‑shifting framework)
- Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507 (2015) (disparate‑impact standards and limits; business‑necessity discussion)
- Ricci v. DeStefano, 557 U.S. 557 (2009) (disparate‑impact phrasing on alternatives and less disparate effect)
- Griggs v. Duke Power Co., 401 U.S. 424 (1971) (disparate‑impact liability condemns practices that are arbitrary and unnecessary; business necessity concept)
- Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (plaintiff retains ultimate burden to show specific practice caused disparity)
- El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007) (upholding categorical exclusion for safety‑sensitive positions despite small residual risk)