Ninth Circuit Refuses Reconsideration of NCAA No-Felons Rule

On September 11, 2017, the Ninth Circuit refused to reconsider its ruling that the NCAA could continue its policy excluding convicted felons from coaching in NCAA youth basketball tournaments. The denial of reconsideration stems from a lawsuit brought by Dominic Hardie, a youth basketball coach, who had a drug-related felony from 2001.

Hardie sued the NCAA in February 2013 claiming that the NCAA had abandoned a policy that forgave nonviolent felonies after seven years. According to Hardie’s brief, African-Americans are more than three times as likely as white Americans to have felony convictions. The current NCAA policy bars felons from coaching in sanctioned tournaments, which Hardie claimed was intended to discriminate against African-American coaches in violation of Title II of the Civil Rights Act of 1964. Hardie also claimed the NCAA knew the policy would disproportionately affect African-Americans, but executed it anyway. Hardie claimed the change in the policy meant that either his players cannot meet with college coaches who are allowed to attend NCAA-certified tournaments or he cannot coach.

In March 2015, the California District Court granted the NCAA’s summary judgment motion because it found that disparate impact claims are not cognizable under Title II. Hardie appealed this decision, and attempted to argue that the Supreme Court’s ruling that policies that have the effect of segregating minorities into poor neighborhoods violates the Fair Housing Act should extend to Title II. However, the Ninth Circuit did not agree and held Hardie failed to show there were any alternatives to the NCAA’s policy that would be less discriminatory and equally effective. The concurring judge held Title II does not recognize disparate impact liability and that Hardie’s claim is precluded by Title II’s business necessity defense. The Ninth Circuit rejected a full reconsideration of this decision, leaving Hardie at the mercy of the NCAA’s convicted felons policy.

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