876 F.3d 312
9th Cir.2017Background
- Plaintiff Dominic Hardie, an African American coach with a 2001 felony drug conviction, was denied approval to coach at NCAA-certified nonscholastic youth basketball tournaments under the NCAA’s Participant Approval Policy, which since 2011 disqualifies anyone with any felony conviction.
- Under NCAA rules, Division I coaches may attend only NCAA-certified nonscholastic tournaments to scout recruits; lack of certification reduces exposure for players and tournament viability.
- Hardie sued under Title II of the Civil Rights Act alleging a disparate-impact claim: the felony ban disproportionately excludes African Americans (Bendick economist report showed 1.52–1.72 overrepresentation among felony-denied applicants).
- The district court granted summary judgment to the NCAA; on appeal the Ninth Circuit assumed arguendo Title II permits disparate-impact claims but evaluated the claim under Wards Cove burden-shifting.
- At Wards Cove step one the court found Hardie established a prima facie disparate impact and the NCAA’s safety/integrity justification was legitimate; at step three Hardie proposed two alternatives (revert to pre-2011 rule; individualized assessments) but failed to show either would be equally effective and less discriminatory.
- The Ninth Circuit affirmed summary judgment for the NCAA and declined to decide whether Title II actually authorizes disparate-impact liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disparate-impact claims are cognizable under Title II | Hardie proceeded on disparate-impact theory; district court ruled they are not, but on appeal he assumed they are | NCAA did not press the issue on appeal but preserved it; alternatively argued other grounds for affirmance | Court assumed arguendo Title II permits disparate-impact claims but expressly did not decide the question |
| Whether Hardie established a prima facie disparate-impact case | Bendick report shows significant overrepresentation of African Americans among felony-denied applicants | NCAA did not contest the statistical disparity or causation to the amended felon ban | Court held Hardie met prima facie disparate-impact requirements |
| Whether NCAA’s Participant Approval Policy is justified by legitimate interests | Hardie argued policy is unnecessary and alternatives exist | NCAA argued policy legitimately protects safety of minors and integrity of recruiting; justification is substantial | Court held NCAA met step-two justification (legitimate interests) |
| Whether proposed less-discriminatory alternatives are ‘‘equally effective’’ and reduce disparate impact | Hardie proposed reverting to pre-2011 rule and individualized assessments | NCAA showed administrative burdens, ambiguity in violent/nonviolent distinctions, and lack of evidence that alternatives would be equally effective or reduce racial disparity | Court held Hardie failed Wards Cove step three; summary judgment for NCAA affirmed |
Key Cases Cited
- Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (framework for disparate-impact burden shifting)
- Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507 (U.S. 2015) (limits on disparate-impact liability and need for justification/less-discriminatory alternatives)
- Ricci v. DeStefano, 557 U.S. 557 (disparate-impact versus disparate-treatment distinctions)
- Griggs v. Duke Power Co., 401 U.S. 424 (business necessity concept in adverse-impact cases)
- Albemarle Paper Co. v. Moody, 422 U.S. 405 (requirement that alternatives serve legitimate interests and reduce disparate impact)
- Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (plaintiff’s ultimate burden in disparate-impact cases)
- El v. Se. Pa. Transp. Auth., 479 F.3d 232 (3d Cir. 2007) (upholding exclusion of violent felons for safety-sensitive positions)
- N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568 (safety-sensitive job exclusions justified despite disparate impact)