Dominic Hardie v. Ncaa ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOMINIC HARDIE, No. 15-55576
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-00346-
GPC-DHB
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, a nonprofit
association, ORDER AND
Defendant-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted January 11, 2017
Pasadena, California
Filed June 27, 2017
Amended September 11, 2017
Before: Richard C. Tallman and Michelle T. Friedland,
Circuit Judges, and David A. Faber, * District Judge.
*
The Honorable David A. Faber, United States District Judge for
the Southern District of West Virginia, sitting by designation.
2 HARDIE V. NCAA
Order;
Opinion by Judge Tallman;
Concurrence by Judge Faber
SUMMARY **
Civil Rights Act / Title II
The panel affirmed the district court’s summary
judgment in favor of the National Collegiate Athletic
Association (“NCAA”) in an action brought by Dominic
Hardie, who is African-American, alleging that the NCAA’s
policy of excluding anyone with a felony conviction from
coaching at NCAA-certified youth athletic tournaments
violated Title II of the Civil Rights Act of 1964.
Title II of the Civil Rights Act of 1964 prohibits racial
discrimination in places of public accommodation. The
district court granted summary judgment for the NCAA on
the ground that disparate-impact claims were not cognizable
under Title II.
The panel did not decide whether Title II encompassed
disparate-impact claims.
The panel held that even if disparate-impact claims were
recognizable under Title II, Hardie had not shown that an
equally effective, less discriminatory alternative theory to
the NCAA’s felon-exclusion policy existed, as was required
under the three-step analysis for disparate-impact claims set
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HARDIE V. NCAA 3
forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642(1989).
Concurring in part and concurring in the judgment,
District Judge Faber agreed with the court that under Title II,
Hardie had not stated a cognizable claim. In his view, Title
II’s text did not recognize disparate-impact liability, and the
panel should have said so. Judge Faber also wrote that even
if Title II had authorized disparate-impact liability, the
business-necessity defense would immunize the NCAA’s
policy; and the majority’s application of extraneous
evidence was misplaced.
COUNSEL
James Sigel (argued) and Jack W. Londen, Morrison &
Foerster LLP, San Francisco, California; Brian R. Matsui,
Morrison & Foerster LLP, Washington, D.C.; Jon
Greenbaum, Lawyers’ Committee for Civil Rights Under
Law, Washington, D.C.; Jeffrey M. David, Call & Jensen,
Newport Beach, California; for Plaintiff-Appellant.
Seth P. Waxman (argued), Ari Holtzblatt, David M. Lehn,
and Daniel S. Volchok, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, D.C., for Defendant-Appellee.
Joshua P. Thompson and Wencong Fa, Pacific Legal
Foundation, Sacramento, California, for Amici Curiae
Pacific Legal Foundation, Center for Equal Opportunity, and
Competitive Enterprise Institute.
4 HARDIE V. NCAA
ORDER
The opinion and concurrence filed on June 27, 2017, are
amended as follows:
1. At page 17 of the slip opinion, delete the
sentence: .
2. At page 20 of the slip opinion, change to ,
and delete .
The concurring opinion is amended as follows:
1. At page 28 of the slip opinion, change to
.
2. At page 33 of the slip opinion, change to
.
The panel has voted to deny the petition for panel
rehearing. Judges Tallman and Friedland have voted to deny
the petition for rehearing en banc and Judge Faber so
recommends.
The full court has been advised of the petition for
rehearing and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
HARDIE V. NCAA 5
The petition for panel rehearing and the petition for
rehearing en banc are DENIED. No further petitions for
rehearing or rehearing en banc will be entertained.
OPINION
TALLMAN, Circuit Judge:
Plaintiff Dominic Hardie appeals the district court’s
entry of summary judgment in his suit against the National
Collegiate Athletic Association (NCAA). Hardie, who is
African American, alleges that the NCAA’s policy of
excluding anyone with a felony conviction from coaching at
NCAA-certified youth athletic tournaments violates Title II
of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a), which
prohibits racial discrimination in places of public
accommodation. Hardie’s suit rests on a disparate-impact
theory of Title II liability. We have never endorsed or
rejected disparate-impact liability under Title II, and we
need not decide this issue today. We hold that even if
disparate-impact claims are cognizable under Title II, Hardie
has not shown that an equally effective, less discriminatory
alternative to the NCAA’s felon-exclusion policy exists, as
he must do under the three-step analysis for disparate-impact
claims set forth in Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1989). We affirm summary judgment for the
NCAA.
I
The NCAA is a voluntary, unincorporated association of
over 1,200 colleges and universities. One of the functions of
the NCAA is to develop rules that govern intercollegiate
athletics, including rules that limit recruitment of student-
6 HARDIE V. NCAA
athletes. As part of their recruitment activities, coaches and
other athletics staff from NCAA member schools attend
nonscholastic 1 youth athletic tournaments to scout potential
recruits. Under NCAA rules, coaches and recruiters from
Division I schools may attend nonscholastic tournaments
only if the tournaments have obtained certification from the
NCAA to verify that they are in compliance with NCAA
guidelines. Without such attendance, the chances that
players might be scouted and later recruited to play for an
NCAA school are significantly diminished. This in turn
affects the willingness of teams to play in uncertified
tournaments and the profitability of private sponsors who
organize these events.
The NCAA’s guidelines impose a number of
requirements on tournament operators to ensure the safety of
participants and preserve the integrity of college athletics
recruiting. The guidelines restrict the number of games
athletes may play in, for example, and they mandate that
tournament operators obtain insurance and hire medical
personnel. Importantly here, the guidelines require that
tournament operators abide by the NCAA Participant
Approval Policy. The Participant Approval Policy provides
that anyone seeking to coach at an NCAA-certified
nonscholastic tournament must submit to a criminal
background check. Under the current version of the policy,
anyone who has been convicted of a felony is automatically
denied approval to coach in an NCAA-certified tournament.
If a tournament operator fails to comply with NCAA
guidelines, including the Participant Approval Policy, the
tournament will not receive NCAA certification, and NCAA
1
Nonscholastic tournaments are tournaments in which the
participating teams are unaffiliated with schools.
HARDIE V. NCAA 7
Division I coaches and recruiters may not attend the
uncertified tournament to scout for new talent.
The NCAA did not always ban anyone with a felony
conviction from coaching at certified tournaments. The first
Participant Approval Policy governing women’s basketball,
adopted in 2006, disqualified only prospective coaches who
had been convicted of a violent felony, 2 a sex offense, a
crime involving children, or a nonviolent felony if the
nonviolent felony conviction was less than seven years old.
The NCAA asserts, however, that the 2006 policy caused
safety concerns and administrative difficulties. Certain
crimes classified as nonviolent, including financial crimes,
sports bribery, and possession of controlled substances,
nonetheless raised significant safety and ethical concerns
about coaches interacting with student-athletes.
Additionally, differences between states’ classification of
the same crimes led to inconsistent outcomes with respect to
who was approved as a tournament coach and who was not.
In light of these challenges, the NCAA amended the
Participant Approval Policy in 2011 to eliminate the violent-
nonviolent felony distinction. Now, anyone with a felony
conviction, no matter how old, is denied entry approval to
coach. Any prior sex offense conviction, regardless of the
charge level, and “active criminal cases” are also
disqualifying. Coaches approved under the Participant
Approval Policy may coach at NCAA-certified tournaments
for two years, and then must reapply.
In conformance with the amended Participant Approval
Policy, Dominic Hardie was denied approval to coach at the
2
The NCAA defined “violent felonies” as crimes committed against
a person and punishable by at least one year in prison.
8 HARDIE V. NCAA
2013 MidSummer Night’s Madness Western Tournament,
an annual NCAA-certified girls’ basketball tournament in
San Diego. In 2001, Hardie had pled guilty and was
convicted for possession of a controlled substance (cocaine),
a felony in Texas. Hardie’s felony conviction had not
affected his ability to coach in NCAA-certified tournaments
before the Participant Approval Policy was amended. Under
the pre-2011 version of the policy, Hardie had been able to
coach because his only conviction was over seven years old
and was for a nonviolent felony. But in 2012, when Hardie’s
coaching approval expired and he reapplied, he was barred
from coaching under the amended policy banning all felons.
Hardie was allowed to attend the 2013 MidSummer Night’s
Madness tournament as a spectator, but he could not
participate from the coaches’ bench. Hardie alleges this
prevented him from having personal contact with the
student-athletes he coaches during the tournament games,
which negatively affected his team members’ performance
and opportunities to earn college athletics scholarships to
NCAA schools.
After exhausting his administrative remedies without
obtaining approval to coach, Hardie sued the NCAA in
federal district court to enjoin enforcement of the Participant
Approval Policy. 3 Hardie alleges that the Participant
Approval Policy violates Title II of the Civil Rights Act of
1964, 42 U.S.C. § 2000a(a), by denying him the full and
3
Hardie’s First Amended Complaint also named the operator of the
MidSummer Night’s Madness tournament, the International Girls
Basketball Organization (IGBO), and the owners of the tournament
venues, Alliant International University and Town and Country Hotel,
LLC, as defendants. Hardie later jointly agreed to dismiss his claims
against these defendants.
HARDIE V. NCAA 9
equal enjoyment of a place of public accommodation.4
Originally, Hardie advanced both disparate-treatment and
disparate-impact theories of Title II liability; on appeal, he
now pursues only a disparate-impact theory. To prevail on
his claim, Hardie must prove that the Participant Approval
Policy has a “‘disproportionately adverse effect on
minorities’ and [is] otherwise unjustified by a legitimate
rationale.” See Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2513 (2015)
(quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)). He
need not show that the NCAA acted with a “discriminatory
intent or motive.” See id. Hardie alleges that “[t]he NCAA’s
categorical bar” on coaches with felony convictions “falls
disproportionately on African Americans like Hardie, who
are more than three times as likely as white Americans to
have suffered a felony conviction.”
To prove the Participant Approval Policy’s disparate
impact, Hardie offers a report prepared by economist Marc
Bendick. Bendick surveyed 541 applicants who sought
participant approval to coach at NCAA-certified
4
Title II provides that “[a]ll persons shall be entitled to the full and
equal enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of any place of public accommodation . . . without
discrimination or segregation on the ground of race, color, religion, or
national origin.” 42 U.S.C. § 2000a(a). “Public accommodations”
include, among other things, “sports arena[s], stadium[s] or other
place[s] of exhibition or entertainment,” so long as their “operations
affect commerce, or if discrimination or segregation by it is supported
by State action.” 42 U.S.C. § 2000a(b). The NCAA does not dispute
that coaching in NCAA-certified athletic tournaments constitutes a
“privilege” of a place of public accommodation. See Daniel v. Paul,
395 U.S. 298, 306 (1969) (holding that Title II protects from
discrimination “spectators,” “listeners,” and “those where entertainment
takes the form of direct participation in some sport or activity”).
10 HARDIE V. NCAA
nonscholastic youth basketball tournaments between 2011
and 2013. Among applicants surveyed, 46.5% of those
approved under the Participant Approval Policy were
African American, while 80.1% of those denied because of
a felony conviction were African American. Bendick’s
results thus show that African American applicants “were
represented among felony denied applicants at 1.72 times
their representation among approved applicants.” A
supplemental report Bendick prepared using “geocoding” 5
produced similar results. In the supplemental report, African
American applicants represented 40.3% of applicants denied
because of a felony conviction, compared to 26.5% of
approved applicants, meaning that African Americans were
represented among felony-denied applicants at a rate 1.52
times higher than among approved applicants. Bendick
states that the survey and geocoding results are statistically
significant. 6
The NCAA moved for summary judgment on Hardie’s
Title II claim. The district court granted summary judgment
for the NCAA, concluding that disparate-impact claims are
not cognizable under Title II. Hardie timely appealed. We
have jurisdiction under 28 U.S.C. § 1291.
5
“Geocoding” involves using U.S. Census Bureau data to predict
the race of applicants based on their home addresses. In his supplemental
report, Bendick used geocoding to predict the race of 1,105 applicants
using home addresses provided by the NCAA.
6
Bendick undertook these data-gathering efforts because the NCAA
did not itself collect information on the race of applicants for coaching
approval.
HARDIE V. NCAA 11
II
“We review a district court’s grant of summary judgment
de novo, and may affirm on any basis supported by the
record.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047
(9th Cir. 2009). On review of a grant of summary judgment,
we “must determine, viewing the evidence in the light most
favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Szajer v.
City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011)
(quoting Universal Health Servs., Inc. v. Thompson,
363 F.3d 1013, 1019 (9th Cir. 2004)).
III
On appeal, the NCAA does not challenge Hardie’s
argument that Title II encompasses disparate-impact claims.
Instead, the NCAA asks us to affirm entry of summary
judgment in its favor on either of two other grounds
advanced below, assuming arguendo that disparate-impact
claims are cognizable under Title II. First, the NCAA
contends that it did not deny Hardie a privilege of a place of
public accommodation because tournament operators, not
the NCAA, enforce the Participant Approval Policy.
Second, the NCAA argues that Hardie has failed to meet his
burden under Wards Cove Packing Co. v. Atonio 7 of
showing in support of his disparate-impact claim that an
equally effective, less discriminatory alternative to the
felony ban under the Participant Approval Policy exists. We
7
490 U.S. 642 (1989), superseded by statute on other grounds,
42 U.S.C. § 2000e-2(k), as recognized in Tex. Dep’t of Hous. & Cmty.
Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015).
12 HARDIE V. NCAA
affirm summary judgment for the NCAA on the latter
ground.
A
Neither the Supreme Court nor we have decided whether
disparate-impact claims are cognizable under Title II. A few
courts have found that Title II authorizes disparate-impact
claims, see Olzman v. Lake Hills Swim Club, Inc., 495 F.2d
1333, 1341–42 (2d Cir. 1974); Robinson v. Power Pizza,
Inc., 993 F. Supp. 1462, 1464–66 (M.D. Fla. 1998), while
others have rejected disparate-impact liability under Title II,
see, e.g., Akiyama v. U.S. Judo Inc., 181 F. Supp. 2d 1179,
1187 (W.D. Wash. 2002); LaRoche v. Denny’s, Inc., 62 F.
Supp. 2d 1366, 1370 n.2 (S.D. Fla. 1999). Several courts
have declined to decide the issue altogether. See, e.g.,
Arguello v. Conoco, Inc., 207 F.3d 803, 813 (5th Cir. 2000);
Jefferson v. City of Fremont, 73 F. Supp. 3d 1133, 1145–46
(N.D. Cal. 2014) (citing cases).
We express no view today on whether Title II
encompasses disparate-impact claims. Even if Title II
authorized such claims, Hardie has not met his burden under
Wards Cove of showing that an equally effective, less
discriminatory alternative to the Participant Approval Policy
exists.
B
In Wards Cove, the Supreme Court laid out a burden-
shifting framework that applies to disparate-impact claims. 8
8
The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105,
105 Stat. 1071, 1074 (1991), abrogated Wards Cove with respect to
claims under Title VII, but the Supreme Court has continued to apply
Wards Cove burden shifting to other antidiscrimination statutes. See
HARDIE V. NCAA 13
490 U.S. at 658. Burden shifting serves to limit disparate-
impact liability “in key respects that avoid the serious
constitutional questions that might arise . . . if such liability
were imposed based solely on a showing of statistical
disparities.” Inclusive Cmtys., 135 S. Ct. at 2522. Disparate-
impact liability may only condemn practices or policies that
are “artificial, arbitrary, and unnecessary.” Id. at 2524(internal quotation mark omitted) (quoting Griggs v. Duke
Power Co., 401 U.S. 424, 431 (1971)). The parties here
agree that, assuming Title II encompasses disparate-impact
claims, the Wards Cove framework would apply to Hardie’s
claim.
Wards Cove burden shifting proceeds in three steps.
First, a plaintiff must establish a prima facie case that the
defendant’s challenged policy or practice has a
“significantly disparate impact on nonwhites.” Wards Cove,
490 U.S. at 658. At the prima facie stage, the plaintiff must
point to “the application of a specific or particular . . .
practice that has created the disparate impact under attack.”
Id. at 657. This “robust causality requirement ensures that
‘[r]acial imbalance . . . does not, without more, establish a
prima facie case of disparate impact’ and thus protects
defendants from being held liable for racial disparities they
did not create.” Inclusive Cmtys., 135 S. Ct. at 2523 (quoting
Wards Cove, 490 U.S. at 653).
Next, if a plaintiff makes out a prima facie case, “the case
will shift to any business justification [defendants] offer for
their use of these practices.” Wards Cove, 490 U.S. at 658.
“This phase of the disparate-impact case contains two
components: first, a consideration of the justifications [a
Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (applying the Wards
Cove framework to the Age Discrimination in Employment Act).
14 HARDIE V. NCAA
defendant] offers for his use of these practices; and second,
the availability of alternative practices to achieve the same
. . . ends, with less racial impact.” Id.At the justification step of Wards Cove burden shifting,
the defendant must show that the “challenged practice
serves, in a significant way, the legitimate . . . goals of the
[defendant].” Id. at 659. The defendant’s practice need not
be “essential” or “indispensable” to achieving its stated goal,
but the relationship between the practice and its purpose
must be more than “insubstantial.” Id. While the defendant
must produce evidence that the practice serves legitimate
ends, “[t]he ultimate burden of proving that discrimination
against a protected group has been caused by a specific . . .
practice remains with the plaintiff at all times.” Id. (quoting
Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 997
(1988)).
Finally, if the defendant provides a legitimate
justification for the challenged practice, the plaintiff must
demonstrate that an alternative practice (1) would “serve the
[defendant’s] legitimate . . . interest[s],” and (2) would not
have a “similarly undesirable racial effect.” Id. at 660 (third
alteration in the original) (internal quotation mark omitted)
(quoting Albermarle Paper Co. v. Moody, 422 U.S. 405, 425
(1975)). The plaintiff’s proposed alternative(s) must be
“equally effective” as the defendant’s chosen policy at
serving the defendant’s interest(s), taking into account
“[f]actors such as the cost or other burdens” that alternative
policies would impose. Id. at 661 (alteration in original)
(quoting Watson, 487 U.S. at 998). A proposed alternative
lacks a “similarly undesirable racial effect” if it results in
“less disparate impact” compared to the challenged policy.
Inclusive Cmtys., 135 S. Ct. at 2518; Ricci, 557 U.S. at 578.
This means plaintiffs must show not merely that an
HARDIE V. NCAA 15
alternative policy would exclude fewer nonwhites, but that
the alternative would reduce the overall racial disparity
between whites and nonwhites. In some circumstances, an
alternative policy may exclude fewer nonwhites but, because
many more whites than nonwhites benefit under the
alternative policy, the alternative actually exacerbates racial
disparities. Alternative policies that are less restrictive than
the challenged policy but do not result in “less disparate
impact” will not withstand scrutiny at step three. 9
Applying the Wards Cove framework here, Hardie relies
on the Bendick report to establish a prima facie case of
disparate impact. The Bendick report reveals that African
Americans were significantly overrepresented—by a factor
of 1.52 to 1.72—among felony-denied applicants compared
to approved applicants. The NCAA does not contest that
Bendick’s results represent a significant racial disparity, and
we agree. Furthermore, because Bendick surveyed only
coaches who sought approval after the amended Participant
Approval Policy took effect, and because he identified
coaches who were denied specifically because of a prior
9
Hardie would have us frame the “less disparate impact” question
somewhat differently. He contends that, to satisfy this part of the third
step of the Wards Cove analysis, he would only need to show that
prohibiting coaches with nonviolent felonies independently has a
disparate impact on African Americans. By Hardie’s logic, if people
with nonviolent felonies, a group that is disproportionately African
American, were allowed to coach, African Americans would
disproportionately benefit. We need not evaluate this argument. As
explained below, one of Hardie’s proposed alternatives—reverting to the
pre-2011 policy—falters on the “equally effective” prong of the third
step of the Wards Cove analysis, not the “less disparate impact” prong.
And Hardie’s logic does not even apply to his other alternative—
individual assessments—because not all prospective coaches with
nonviolent felonies would necessarily be allowed to coach under that
policy.
16 HARDIE V. NCAA
felony conviction, the Bendick report also establishes a
“causal connection” between the Participant Approval
Policy’s blanket felon ban and the disproportionate effect on
African American coaching applicants. See Inclusive
Cmtys., 135 S. Ct. at 2523.
At Wards Cove step two, the NCAA contends that the
Participant Approval Policy serves the NCAA’s interest in
“protecting the safety of the children who participate in the
tournaments and the integrity of the NCAA’s recruiting
process and college athletics more generally.” For the most
part, Hardie accepts that the NCAA’s proffered rationale for
the Participant Approval Policy is legitimate. We also agree.
The parties’ disagreement thus focuses on step three of
the Wards Cove analysis. To satisfy his burden at step three,
Hardie proposes two alternatives to the Participant Approval
Policy: (1) the NCAA could revert to the pre-2011 version
of the policy, which disqualified applicants with violent but
not nonviolent felony convictions that were at least seven
years old; or (2) the NCAA could conduct individualized
assessments of applicants with felony convictions to
determine if they would pose an unacceptable risk to the
safety of tournament participants. We hold that Hardie has
failed to show that either of his proposed alternatives would
be both equally effective compared to, and less
discriminatory than, the current policy. We address each of
these alternatives in turn.
1
Hardie first proposes that the NCAA revert to the version
of the Participant Approval Policy that was in effect before
2011. The pre-2011 policy excluded applicants convicted of
a violent felony, a sex offense, or a crime involving children,
HARDIE V. NCAA 17
no matter how old, or a nonviolent felony conviction if the
conviction was less than seven years old.
We find Hardie has failed to establish that the pre-2011
policy would be equally effective as the current policy in
serving the NCAA’s legitimate interests. Hardie contends
that the pre-2011 policy was proven equally effective
because no documented safety incidents occurred during the
few years when that version of the policy was in force. But
the NCAA could have reasonably concluded that the level of
risk under the pre-2011 policy was unacceptable, even if no
tournament participants had yet been harmed. Cf. El v. Se.
Pa. Transp. Auth., 479 F.3d 232, 244 (3d Cir. 2007) (“In a
broad sense, hiring policies . . . ultimately concern the
management of risk.”). Indeed, Hardie has not rebutted the
NCAA’s assertion that under the pre-2011 policy, certain
nonviolent felonies, such as financial crimes, possession of
controlled substances, and sports bribery, posed
unreasonable risks for the safety of student-athletes and the
integrity of the recruiting process.
To compare the relative effectiveness of the pre-2011
policy and the current policy, Hardie submits a report by Dr.
Kiminori Nakamura, a criminologist and expert on
recidivism. The Nakamura report concludes that the
probability that someone with a prior conviction will
recidivate decreases the longer that person goes without
committing another crime. At some point, known as the
“redemption time,” the risk that someone with a prior
conviction will reoffend becomes equal to the risk of arrest
for the general population. 10 For people convicted of violent
crimes, the redemption time is four to seven years; for drug
10
The Nakamura report measures general population risk including
people with and without criminal histories.
18 HARDIE V. NCAA
and property crimes, the redemption time is shortened to
about four years. Nakamura states that, because Hardie has
not committed another criminal offense since 2001, and
because of his age, employment, and educational
achievements, his risk of future arrest is in fact lower than
that of the general population.
For several reasons, the Nakamura report does not
establish that the pre-2011 Participant Approval Policy
overall screens coaching applicants as effectively as the
current policy. First, it does not attempt to quantify and
compare the risk of future arrest for those permitted to coach
under the current Participant Approval Policy with the risk
of those permitted under the pre-2011 version. Second,
Nakamura acknowledges that, even after many years have
passed, the risk of future arrest for someone who has a
criminal record may remain higher than the risk of future
arrest for someone who has never been arrested. Hardie has
offered no evidence to suggest that this difference in risk,
even if small, is immaterial to achieving the NCAA’s
interests. Particularly considering that NCAA-approved
coaches work with minors, we cannot conclude on the record
before us that this additional risk is insignificant.
We view this case as similar to El v. Southeastern
Pennsylvania Transportation Authority, 479 F.3d 232 (3d
Cir. 2007), in which the Third Circuit affirmed summary
judgment for a local transit authority in a Title VII suit. Id.
at 235. The transit authority in that case refused to hire
anyone who had been convicted of a violent crime as a
paratransit driver for disabled residents. In support of its
policy, the transit authority offered unrebutted evidence that,
even after many years, people convicted of violent crimes
“are at least somewhat more likely than members of the
general population to commit a future violent act.” Id. at
HARDIE V. NCAA 19
246. The transit authority’s expert testified that, even if the
additional risk that a former violent felon posed “might be
small,” “given the marked sensitivity of the paratransit
position at issue, a small but extant difference is sufficient”
to justify the policy. Id. at 246–47. Analogizing to Hardie’s
Title II claim here, Hardie has offered no evidence to suggest
that the increased risk posed by coaches with prior felony
convictions, even if small, is immaterial to protecting the
safety of young athletes. Cf. N.Y.C. Transit Auth. v. Beazer,
440 U.S. 568, 587 n.31 (1979) (holding that transit authority
was justified in refusing to hire methadone users for “safety-
sensitive” positions). Nor does he offer evidence to address
the increased risk to preserving the integrity of college
athletics from nonviolent crimes like sports bribery. 11
We must also note that reverting to the pre-2011 policy
would impose some increased administrative burden on the
NCAA’s participant approval process. The NCAA
submitted evidence that the 2011 amendment to the
Participant Approval Policy was motivated in part by
administrative difficulties in distinguishing between violent
and nonviolent crimes given states’ differing definitions of
the same offenses. While costs and other administrative
burdens are only a “factor” in the equal effectiveness
analysis, see Wards Cove, 490 U.S. at 661, and perhaps only
a small one in this case, the increased administrative burden
11
We do not mean to suggest that the small risk posed by individuals
with nonviolent felony convictions will always be material. In some
cases, the risk presented by a felony conviction will be a generalized one,
attenuated from the work of the organization in question. We are not
presented with that situation here, though. In this context, where coaches
often travel with, are responsible for, and have a great deal of influence
over minors, and where certain crimes are particularly relevant to the
integrity of college athletics recruiting, the risk is material.
20 HARDIE V. NCAA
here is an additional factor that weighs slightly in the
NCAA’s favor.
In sum, Hardie has not carried his burden at step three of
the Wards Cove framework with respect to this proposed
alternative. He has not adduced sufficient evidence from
which a reasonable jury could conclude that excluding
violent felons, but not nonviolent felons, from coaching
would be equally effective at achieving the NCAA’s goals
as the current policy. While we recognize that the plaintiff’s
burden at the alternatives stage is a demanding one, courts
must take caution before displacing reasonable business
judgments. Wards Cove, 490 U.S. at 661 (“Courts are
generally less competent than employers to restructure
business practices.” (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 578 (1978))). Because we hold that
Hardie has failed to prove that the pre-2011 Participant
Approval Policy would serve the NCAA’s legitimate
interests as effectively as the current policy, we need not
decide whether reverting to the pre-2011 policy would result
in a lesser adverse racial effect.
2
As a second alternative, Hardie proposes that the NCAA
conduct individualized assessments of applicants with a
felony conviction to calculate the actual risks posed by an
applicant. Hardie’s expert on human resources practices,
Lester S. Rosen, states that individualized assessments may
take into account factors such as “any mitigating
circumstance about the offense, the age of the offense, . . .
past employment, educational achievements since the
offense, and other signs of rehabilitation.”
Hardie’s individualized assessments alternative fails at
step three of the Wards Cove analysis, because he has put
HARDIE V. NCAA 21
forward no evidence from which a reasonable jury could
conclude that individualized assessments would have less
disparate impact than the current Participant Approval
Policy. None of Hardie’s experts analyze the expected racial
impact of individualized assessments using the criteria
Hardie proposes. The Rosen report only remarks generally
that “[t]here is widespread recognition that a policy of
automatically rejecting an applicant on the basis of a felony
conviction, without any consideration of the offense, the
position in question, the age of the offense, and evidence of
rehabilitation, is both unfair and potentially violates Civil
Rights laws.” Hardie also points to EEOC Guidelines that
recommend employers adopt individualized assessments as
a tool to avoid Title VII liability in the employment context.
U.S. Equal Emp. Opportunity Comm’n, No. 915.002, EEOC
Enforcement Guidance: Consideration of Arrest and
Conviction Records in Employment Decisions Under Title
VII of the Civil Rights Act of 1964 18 (2012). Neither the
Rosen report nor the EEOC Guidelines analyze the racial
effect of individualized assessments. Without more, we
cannot say that Hardie has met his burden to show that
individualized assessments would be a less discriminatory
alternative to the current Participant Approval Policy.
Because neither of Hardie’s proposed alternatives to the
Participant Approval Policy pass muster at the final stage of
Wards Cove burden shifting, the NCAA is entitled to
summary judgment.
C
Alternatively, the NCAA urges us to affirm summary
judgment on the ground that it has not actually denied Hardie
a “privilege[] . . . of [a] place of public accommodation,”
42 U.S.C. § 2000a(a), because tournament operators, rather
than the NCAA, actually enforce the Participant Approval
22 HARDIE V. NCAA
Policy. Because we find that Hardie failed to produce
sufficient proof at step three of the Wards Cove analysis, we
need not reach this alternative basis for upholding summary
judgment.
IV
We do not decide today whether Title II of the Civil
Rights Act of 1964 encompasses disparate-impact claims.
Even assuming arguendo that disparate-impact claims are
cognizable under Title II, Hardie has not created a genuine
issue of material fact that one of his proposed alternatives to
the NCAA’s Participant Approval Policy would be both
equally effective and less discriminatory. The NCAA is
therefore entitled to summary judgment.
AFFIRMED.
FABER, District Judge, concurring in part and concurring in
the judgment:
I agree with the Court that under Title II, Appellant
Dominic Hardie has not stated a cognizable claim. Yet the
Court skirts a key issue that this case squarely presents:
Whether disparate-impact claims are cognizable under Title
II.
In my view, Title II’s text does not recognize disparate-
impact liability, and we should clearly say so. 1 Title II
1
The Court’s statement that “the [National Collegiate Athletic
Association (‘NCAA’)] does not challenge Hardie’s argument that Title
II encompasses disparate-impact claims,” Maj. op. at 11, tells only part
of the story. True, the NCAA chooses to devote no part of its brief before
HARDIE V. NCAA 23
recognizes only disparate-treatment claims: claims
involving intentional discrimination. Even if Title II did
recognize disparate-impact liability, the “business[-
]necessity” defense, as the Court makes clear, requires us to
reject Hardie’s claim. Tex. Dep’t of Hous. & Cmty. Affairs
v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2517
(2015). Lastly, extraneous evidence such as human
resources experts’, economists’ and criminologists’ reports
is not helpful in determining what Title II requires. Such
evidence is malleable and enables a court to adopt the result-
oriented expedient it prefers.
I. Title II’s Text Precludes Disparate-Impact Liability.
The text of Title II does not authorize disparate-impact
liability, which typically flows from “practices that have a
‘disproportionately adverse effect on minorities’ and are
otherwise unjustified by a legitimate rationale.” Inclusive
Cmtys. Project, 135 S. Ct. at 2513 (quoting Ricci v.
DeStefano, 557 U.S. 557, 577 (2009) (internal quotation
marks omitted)). Under disparate-impact liability, “a
facially neutral . . . practice may be deemed [unlawfully
discriminatory] without evidence of the [defendant’s]
subjective intent to discriminate that is required in a
‘disparate-treatment’ case.” Wards Cove Packing Co. v.
this Court on that issue. However, the NCAA did raise it below,
prevailed on that ground before the district court, and preserved that
ground for our consideration. In fact, the NCAA stated: “In light of the
NCAA’s decision not to defend the district court’s reasoning, the Court
may deem it appropriate to appoint an amicus curiae to do so.” In other
words, the NCAA strategically chose to focus on the narrower reasons
in its brief. However, amici Pacific Legal Foundation (“PLF”), the
Competitive Enterprise Institute (“CEI”), and the Center for Equal
Opportunity (“CEO”) have argued most ably that Title II does not
authorize disparate-impact liability.
24 HARDIE V. NCAA
Atonio, 490 U.S. 642, 645—46 (1989), superseded by statute
on other grounds, Civil Rights Act of 1991, §105, 105 Stat.
1074—1075, 42 U.S.C. § 2000e—2(k) (1994 ed.).
42 U.S.C. § 2000a(a) (“Equal Access”), which is the
relevant Title II provision, states:
All persons shall be entitled to the full and
equal enjoyment of the goods, services,
facilities, privileges, advantages, and
accommodations of any place of public
accommodation, as defined in this section,
without discrimination or segregation on the
ground of race, color, religion, or national
origin.
Title II imposes no liability on organizations based on an
individual’s exclusion from public places over which the
organization did not have actual control, or at least some
close connection. In order to impose Title II liability, a court
must find that the defendant intentionally has engaged in
racial discrimination in the enjoyment of public
accommodations—also known as disparate treatment.
Hence, the defendant itself must have denied someone or
withheld from someone a privilege of a public
accommodation or, at a bare minimum, have a concrete,
material link to the public accommodation in question. See
Clegg v. Cult Awareness Network, 18 F.3d 752, 756 (9th Cir.
1994) (twice using the phrase “closely connected”); Welsh
v. Boy Scouts of America, 993 F.2d 1267, 1272 (7th Cir.
1993) (deploying the “close[] connect[ion]” test). Only in
that circumstance is a plaintiff’s exclusion from such a
privilege fairly attributed to the defendant. Otherwise, the
defendant may not be subjected to the cost and the
opprobrium that Title II liability inflicts.
HARDIE V. NCAA 25
The National Collegiate Athletic Association (“NCAA”)
does not have such a connection to any place or activity from
which Hardie was allegedly excluded, nor does it have such
a connection to any act of exclusion itself. Any decision to
exclude Hardie was made and carried out by entities separate
from the NCAA; the NCAA had no authority or control over
those entities. Such places and activities were free to
continue these tournaments, albeit without NCAA approval.
The federal courts must be extremely hesitant to second-
guess the decisions of non-governmental entities charged
with the responsibility of developing standards and running
activities. Here, the NCAA has that responsibility, and is
better equipped to exercise it than the courts are. Therefore,
any exclusion of Hardie should not be attributed to the
NCAA.
Furthermore, the courts must demand that Title II
contain a “clear statement” of congressional intent in order
to infer that it authorizes disparate-impact liability. I.N.S. v.
St. Cyr, 533 U.S. 289, 298—99 (2001). The Supreme Court
has instructed that we must employ a “clear statement” rule
when we confront a question of statutory construction that
“invokes the outer limits of Congress’ power.” Id. at 299.
The rule requires “the clearest statement of congressional
intent,” id. at 312 n.35, so that the courts can be “perfect[ly]
confiden[t] that Congress in fact intended” to wade into
areas of “special constitutional concern[].” Dellmuth v.
Muth, 491 U.S. 223, 231 (1989). The rule ensures “that the
legislature . . . intended to bring into issue . . . the critical
matters involved in the judicial decision.” United States v.
Bass, 404 U.S. 336, 349 (1971). Requiring a clear statement
from Congress suggests that “‘Congress does not exercise
lightly’ the ‘extraordinary power’ to legislate.” Arizona v.
Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2256
26 HARDIE V. NCAA
(2013) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460
(1991)).
Disparate-impact liability implicates two constitutional
concerns: equal protection and federalism. With respect to
equal protection, when the courts racially balance the
participants in public accommodations, they impose what is
effectively a quota—be it fixed or moving. This quota
arrangement confines a participant to the playing room
allotted to her race; like Linda Brown and her
contemporaries more than sixty-three years ago, today’s
participant must learn to tailor her aspirations to the quota
system’s ingenious separate but equal regime. See Brown
v. Board of Education, 347 U.S. 483 (1954). Shifting quotas
such as those which disparate-impact liability foists on us are
“[g]overnment action[s]” that “divid[e] us by race.” Parents
Involved in Community Schools v. Seattle School Dist. No.
1, 551 U.S. 701, 746 (2007) (plurality opinion). They are
“inherently suspect because such classifications promote
notions of racial inferiority and lead to a politics of racial
hostility, reinforce the belief, held by too many for too much
of our history, that individuals should be judged by the color
of their skin, and endorse race-based reasoning and the
conception of a Nation divided into racial blocs, thus
contributing to an escalation of racial hostility and conflict.”
Id. (plurality opinion) (citations and internal quotation marks
omitted). “One of the principal reasons race is treated as a
forbidden classification is that it demeans the dignity and
worth of a person to be judged by ancestry instead of by his
or her own merit and essential qualities.” Rice v. Cayetano,
528 U.S. 495, 517 (2000). Since an impartial sovereign
ordinarily may not make one set of rules for one race and
another set of rules for another race, disparate-impact
liability triggers equal-protection concerns. See Hampton v.
Mow Sun Wong, 426 U.S. 88, 100 (1976) (“The federal
HARDIE V. NCAA 27
sovereign, like the States, must govern impartially.”);
Bolling v. Sharpe, 347 U.S. 497, 499 (1954)
(“Classifications based solely upon race must be scrutinized
with particular care, since they are contrary to our traditions,
and hence constitutionally suspect.”).
As for federalism, federal anti-discrimination statutes
like Title II often deter state and local governments from
implementing their own affairs, including their traditional
police-power prerogatives. See, e.g., Inclusive Cmtys.
Project, 135 S. Ct. 2507 (state agency); Magner v.
Gallagher, 619 F.3d 823 (8th Cir. 2010), cert. dismissed,
565 U.S. 1187 (2012) (municipal government); In re
Employment Discrimination Litigation Against State of Ala.,
198 F.3d 1305 (11th Cir. 1999) (state agency). After all,
Title II imposes the same obligations on state and municipal
actors as it does on private actors. “The constitutionally
mandated balance of power between the States and the
Federal Government” exists “to ensure the protection of our
fundamental liberties.” Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 242 (1985) (citations and internal quotation
marks omitted). Because disparate-impact liability would
“radically readjust[] the balance of state and national
authority” under Title II’s aegis, its text need clearly say that
this is the proper result. BFP v. Resolution Trust Corp.,
511 U.S. 531, 544 (1994) (citations omitted).
Title II contains no such clear statement. “All persons
shall be entitled to the full and equal enjoyment . . . without
discrimination or segregation,” Title II says. 42 U.S.C.
§ 2000a(a). Since “[t]he statute does not define
‘discriminat[ion]’” or “segregation,” I consult “the ordinary
meaning[s] of the word[s].” CSX Transp., Inc. v. Ala. Dept.
of Revenue, 562 U.S. 277, 286 (2011). The ordinary
meaning of the word “discrimination” refers to the
28 HARDIE V. NCAA
defendant’s “mak[ing] a difference in treatment or favor on
a class or categorical basis in disregard of individual merit.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 648
(1976) (emphasis added). Additionally, an outcome-
determinative Supreme Court opinion has defined
“discrimination” as “[p]referring members of any one group
for no reason other than race or ethnic origin.” Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of
Powell, J.) (emphasis added).
In this context, making personnel selection or preferring
one person over another on an impermissible basis
presupposes the defendant’s subjective intent; it involves
disparate treatment. No actor can absentmindedly, by
relying on subconscious stereotypes, or otherwise without a
deliberately discriminatory intent or motive slip into
intentional behavior such as preferring persons on a racial or
ethnic basis. That would be an oxymoron. When English
speakers say that someone has discriminated against a
person on a forbidden ground, they are saying that
committing discrimination was the actor’s intent or motive.
Statistical disparities indicating that certain “practices . . .
fall more harshly on one group than another,” International
Broth. of Teamsters v. United States, 431 U.S. 324, 335, n.
15 (1977), do not establish that the defendant’s disfavor on
the basis of “the protected trait . . . actually motivated [her]
decision” to prefer some persons over others. Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610 (1993). By contrast,
disparate-impact liability bars practices that generate
disproportionately adverse consequences, even when the
organizer’s motivations appear neutral, so long as there
exists “an available alternative . . . practice that has less
disparate impact and serves the [organization’s] legitimate
needs.” Ricci, 557 U.S. at 578. Accordingly, Title II’s
decision to maximize the role of the defendant’s subjective
HARDIE V. NCAA 29
intent and to minimize the role of any statistical disparities
is the opposite of how disparate-impact liability operates.
Similarly, under Title II, “segregation” is the “[unlawful]
policy of separating people on the basis of color, nationality,
religion, or the like.” BLACK’S LAW DICTIONARY 1388 (8th
ed. 2004) (emphasis added). This definition, too,
presupposes the actor’s subjective intent; it involves
disparate treatment. No actor can absentmindedly, by
relying on subconscious stereotypes, or otherwise without a
deliberately segregation-effectuating intent or motive slip
into intentional behavior such as separating persons on a
forbidden basis. When English speakers say that someone
has segregated members of one group from members of
another group on a prohibited basis, they are saying that
committing segregation was the actor’s intent or motive.
Racially-correlated statistical disparities do not establish that
the defendant’s disfavor on the basis of “the protected trait .
. . actually motivated [her] decision” to segregate persons
from one another. Hazen Paper Co., 507 U.S. at 610.
Contrast this with disparate-impact liability, which
eradicates practices that generate disproportionately adverse
effects, even when the organizer’s motivations appear
neutral, so long as there exists “an available alternative . . .
practice that has less disparate impact and serves the
[organization’s] legitimate needs.” Ricci, 557 U.S. at 578.
It follows that Title II’s decision to maximize the role of the
defendant’s subjective intent and to minimize the role of any
statistical disparities is the opposite of how disparate-impact
liability works.
Besides, Title II lacks a catch-all mechanism
encompassing disparate-impact claims. Unlike the Fair
Housing Act (“FHA”), which the Inclusive Cmtys. Project
Court understood to authorize disparate-impact liability,
30 HARDIE V. NCAA
Title II contains no “results-oriented phrase” such as
“‘otherwise make unavailable.’” 135 S.Ct. at 2518—19
(quoting 42 U.S.C. § 3604(a)). Consequently, Title II
authorizes only disparate-treatment liability.
II. Business-Necessity Defense under Title II Protects the
NCAA.
Even if Title II had authorized disparate-impact liability,
the business-necessity defense would immunize the
NCAA’s policy. In Inclusive Cmtys. Project, the Supreme
Court highlighted the long pedigree of the “‘business[-
]necessity’ . . . defense to disparate-impact claims.”
135 S.Ct. at 2517 (citations and internal quotation marks
omitted). The defense must also apply to Title II, if we
assume that Title II covers such claims. As long as there is
“a manifest relationship” between the requirement and the
organizational necessity, the court will uphold the
requirement. Griggs v. Duke Power Co., 401 U.S. 424, 432
(1971) (citations and internal quotation marks omitted). But
“it remains open to the complaining party to show that other
tests or selection devices, without a similarly undesirable
racial effect, would also serve the [organizer’s] legitimate
interest in efficient and trustworthy workmanship.”
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)
(citations and internal quotation marks omitted). Hardie has
demonstrated nothing of the sort. Nor could he.
The NCAA’s or, for that matter, similar organizations’
legitimate, bona fide interest in setting up a wholesome
environment with good role models for youth cannot be
outweighed by some need to give former felons a chance to
assimilate into society at this level. The NCAA’s interest in
promoting “efficient and trustworthy [relationships]” among
the athletes and their coaches, id., cannot be served without
having coaches who are good role models for youth, which
HARDIE V. NCAA 31
is not a criterion that Title II prohibits. Perhaps in the
NCAA’s eyes, a felony conviction disqualifies someone
from being a good role model. Moreover, the NCAA might
not want to enhance its risk of exposure to liability, if the
former felon should commit a crime or a tort while he is a
participant. Thus, the NCAA does not wish to be affiliated
with youth athletic tournaments coached by former felons.
The NCAA has the right, one with robust constitutional
dimensions, to decide with whom it will associate, see Boy
Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (“The
forced inclusion of an unwanted person in a group infringes
the group’s freedom of expressive association [under the
First Amendment] if the presence of that person affects in a
significant way the group’s ability to advocate public or
private viewpoints.”)—and no one can fault the NCAA.
This limited restriction is consistent with Title II. Had the
NCAA wanted to impose a blanket ban on former felons,
Title II would have so permitted.
III. Resorts to Irrelevant and Extraneous Evidence are
Impermissible.
The majority’s application of extraneous evidence such
as human resources experts’, economists’ and
criminologists’ reports to this case is, in my view, misplaced.
First, considering such materials for the purposes of
applying Title II to certain facts does not fall within the
judicial function’s province. Second, it gives litigants the
license to cherry-pick the convenient evidence they wish to
submit and thus the ability to game the litigation. Third, it
is not something that federal judges untutored in statistics,
economics, sociology, criminology, and other social
sciences are even competent to ascertain and adjudicate.
Even if, by dint of luck, the designated federal judge were
capable of engaging in competent social-science analysis to
32 HARDIE V. NCAA
figure out if the impact were disparate, her doing so would
not elicit the public’s confidence in the legitimate
discharging of the judicial role. Never does Article III, when
investing the “judicial [p]ower,” U.S. Const., Art. III, § 1, cl.
1, in the federal courts, allow our reasoning to be informed
by “questionable social[-]science research rather than [legal]
principle.” Missouri v. Jenkins, 515 U.S. 70, 114 (1995)
(Thomas, J., concurring). The Framers of our Constitution
would have seen the federal courts’ considering such
evidence as mere “pretext for” the Third Branch to
“gradual[ly] and unobserved[ly] usurp[]” the policy-making
“power” that the Constitution commits to our coordinate
branches. The Federalist No. 42, p. 265 (C. Rossiter ed.
1961) (J. Madison).
That a disproportionately high number of felons might
self-identify as members of any particular race(s) does not
somehow convert the NCAA policy into a racially
discriminatory one. Certainly, “[s]ome activities may be
such an irrational object of disfavor that, if they are targeted,
and if they also happen to be engaged in exclusively or
predominantly by a particular class of people, an intent to
disfavor that class can readily be presumed. A tax on
wearing yarmulkes is a tax on Jews,” for instance. Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 270
(1993) (emphasis added). A causal relationship between
yarmulkes and Jewish people is obvious. But committing
felonies is not “predominantly” co-extensive with or an
essential element of self-identifying with certain races; and
saying otherwise is both inaccurate and demeaning to
individuals who do self-identify with those races. Id. The
latter assertion might be the result of invidious
discrimination, of the soft bigotry of low expectations, or of
both. In any event, it “rests on an assumption of [racial]
inferiority.” Jenkins, 515 U.S. at 114 (Thomas, J.,
HARDIE V. NCAA 33
concurring). Moreover, holding a defendant liable on that
basis would set a pernicious precedent that the Supreme
Court expressly has rejected in materially indistinguishable
circumstances. See, e.g., McCleskey v. Kemp, 481 U.S. 279,
312 (1987) (rejecting “study indicat[ing] a discrepancy that
appears to correlate with race.”).
The future need not be grim with limitless disparate-
impact claims under Title II. Think of the children and
young adults, some of the most vulnerable members of our
society. What will happen to entertainment platforms for
young people to demonstrate their gifts and diligence? Must
such platforms admit former felons, just because those
former felons belong to certain races? Does it depend on
what some criminologist, sociologist, statistician or other
social scientist has to say about the matter today? No and it
should not. What about swimming meets where coaches can
see the swimmers in compromising attire? Do former felons
who happen to self-identify with particular races get a free
pass in hiding behind their races and taking part in those
meets? Why would Hardie’s argument not apply to both
coaches and judges at athletic and performing-arts
competitions? (If the coaches can be former felons, then so
too can the judges and many other stakeholders be!) Indeed,
the more subjective the craft, the worse it will be for the
organizers because then they have to worry about handling
both felonious coaches and felonious judges. Could this not
lead the organizers to shut down various productive, public-
service enterprises altogether, thereby depriving our youth
(and all of us) of countless opportunities? Will this not
wreak havoc on our Nation’s “vibrant and dynamic free-
enterprise system[s],” Inclusive Cmtys. Project, 135 S. Ct. at
2518, committed to altruistic or profit-minded endeavors?
Since the opportunity costs would be so devastating, the
prospect is an unwelcome one, which—yet again—is the
34 HARDIE V. NCAA
reason that Title II does not authorize disparate-impact
liability.
The courts undoubtedly have no power to so authorize
on the basis of fickle evidence, namely protean materials like
the Nakamura report, with respect to which the Court says
that “Hardie has offered no evidence to suggest that this
difference in risk, even if small, is immaterial to achieving
the NCAA’s interests.” Maj. op. at 18. But what if Hardie
had—and the Court had thought it valid? What if tomorrow
Dr. Kiminori Nakamura expands or contracts the study’s
scope, makes new findings and devises Version 2.0 of the
same report? Does Title II’s meaning or application have to
evolve based on what these non-vetted, democratically non-
legitimized academic studies have to say? The federal
courts’ privileging certain sympathetic studies without
adequately investigating their probative value or the
prejudicial effect they will have is akin to our “look[ing]
over the heads of the crowd and pick[ing] out [our] friends.”
ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW 36 (1997).
Likewise, today “[n]either the Rosen report nor the
[Equal Employment Opportunity Commission (‘EEOC’)]
Guidelines” happen to “analyze the racial effect of
individualized assessments.” Maj. op. at 21. So the Court
deems them insufficiently helpful to Hardie’s claim.
However, if just a few years down the road the Rosen report,
the EEOC Guidelines, and other extraneous evidence do end
up predicting such a “racial effect,” id., will we then allow
an identical claim to proceed? I hope not, for that would turn
us into dilettante social scientists and, worse, into
omnipotent social engineers, a role we have neither the
expertise nor the authority to fulfill. Consulting the
cognoscenti’s social-science research, which frequently is
HARDIE V. NCAA 35
fraught with flawed methodologies and philosophical,
political, and other biases, to decide legal questions is
tantamount to putting a thumb on the scales to produce a
palatable result.
None of this reflects the limitations attending a federal
judicial commission. Alexander Hamilton believed that the
federal courts would be “the best expedient which can be
devised in any government” because they help “secure a
steady, upright, and impartial administration of the laws”
that the whole of the American People, not just the conclave
of experts, have enacted. The Federalist No. 78, p. 465 (C.
Rossiter ed. 1961) (A. Hamilton). Accountable to and
representative of the American People, the political branches
are composed of members “sufficiently numerous to feel all
the passions which actuate a multitude.” The Federalist No.
47, p. 332 (C. Van Doren ed. 1945) (J. Madison). Neither of
these traits is true of the experts or, for that matter, of the
federal courts. Designed to be “the least dangerous” branch,
The Federalist No. 78, p. 465, one without any “political
rights,” id., we are empowered to exercise “neither force nor
will but merely judgment,” id. (capitalization altered), when
we construe our People’s statutory and constitutional
commands.
* * *
Since Title II lacks “unmistakably clear” language
authorizing disparate-impact liability, it does not reach such
claims. Atascadero State Hosp., 473 U.S. at 242. Also clear
is the business-necessity defense, which precludes Hardie’s
claim.
I respectfully concur in part and concur in the judgment.