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Hardie v. National Collegiate Athletic Association

United States Court of Appeals, Ninth Circuit

June 27, 2017

Dominic Hardie, Plaintiff-Appellant,
v.
National Collegiate Athletic Association, a nonprofit association, Defendant-Appellee.

          Argued and Submitted January 11, 2017 Pasadena, California

         Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding D.C. No. 3:13-cv-00346-GPC-DHB

          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.

          Before: Richard C. Tallman and Michelle T. Friedland, Circuit Judges, and David A. Faber, [*] District Judge.

         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 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.

          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-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 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 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 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 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.

         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 ...


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