Hardie
Hardie v. National Collegiate Athletic Ass'n
Opinion
Lead Opinion
Tallman, J.
ORDER
The opinion and concurrence filed on June 27, 2017, are amended as follows:
The concurring opinion is amended as follows:
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.
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.
Concurrence by Judge Faber
OPINION
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…
Concurring Opinion
Faber, J.
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 recognizes only disparate-treatment claims: claims involving intentional discrimination. Even if Title II did recognize disparate-impact liability, the “business! jnecessity” 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., — U.S. —, 135 S.Ct. 2507 , 2517, 192 L.Ed.2d 514 (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 Prechides Disparate-Impact Liability.
The text of Title II does not authorize disparate-impact liability, which typically flows from “practices…