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NCAA Squeaks by on|Disparate Impact Claim

(CN) - An NCAA policy that prohibits felons from coaching NCAA-sanctioned high school sporting events does not violate Title II of the Civil Rights Act, a federal judge ruled.

Disparate impact claims are not viable claims under Title II, U.S. District Judge Gonzalo Curiel in San Diego ruled in granting the NCAA summary judgment.

The case stemmed from Dominic Hardie's preclusion from coaching NCAA-certified tournaments because of a 2001 Texas conviction for possession of a controlled substance with intent to distribute.

In 2003, the NCAA barred felons from coaching NCAA-certified tournaments held for recruiting athletes to NCAA Division I schools.

The NCAA modified its policy three years later to allow felons with nonviolent felonies older than 7 years to be NCAA-certified, but in 2011 reverted back to its policy barring all felons from certification.

When Hardie applied for certification for the 2012 and 2013 seasons, he was denied under the 2011 policy.

Hardie - who co-founded Triple D Hoops, a nonprofit organization for young athletes - said he was unable to coach his two high-school age girls' basketball teams at elite NCAA-certified basketball tournaments throughout the country.

"Mr. Hardie is now barred for life from coaching, or otherwise interacting with his teams, at NCAA-certified basketball tournaments" because of his single felony conviction in 2001, according to his complaint.

Hardie said the NCAA policy has a discriminatory impact on African-Americans.

"Policies that categorically exclude individuals with felony convictions are known to have a disparate impact on African Americans. Nationwide, African Americans are overrepresented in nearly every stage of the criminal justice process. African Americans are arrested at higher rates, convicted at higher rates, and incarcerated at disproportionate levels compared with their representation in the general population," he said in the lawsuit.

Hardie alleged violation of Title II of the Civil Rights Act of 1964 for disparate impact discrimination.

Neither the Supreme Court nor the 9th Circuit have settled the issue of whether disparate impact is available under Title II, Judge Curiel wrote, adding that many courts have avoided ruling on it because of the law's ambiguity and the lack of precedent.

"The decisions that have concluded that Title II encompasses disparate impact claims generally lack support for that conclusion. However, a number of courts have looked to the legislative history of Title II, Congress's wording of other civil rights statutes, and the statute's text and concluded that disparate impact claims are not cognizable under Title II," Curiel wrote.

Title II 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."

But Title II does not explicitly recognize disparate impact, nor does it include the terms "effect" or "affect," which have been used in federal regulations applying disparate impact analysis, Curiel said.

He added out that "the only significant difference between Title II and statutes under which disparate impact is not cognizable is that Title II prohibits 'segregation' in addition to 'discrimination.' However, the term 'segregation' is closer to 'discrimination' than to 'adversely affect' and thus does not justify the recognition of disparate impact under Title II."

Therefore, Curiel granted the NCAA summary judgment on Hardie's sole claim.

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