below again this is on summary judgment of questions whether there's and the basis of understand it is because more black people go to jail than white people a so that it's true in a general population level that the incidence of convictions among the black population is significantly evidence with respect to this particular pool so african americans represented eighty percent of those denied approval due to a felony conviction but were in fact only forty six percent of those granted approval you haven't done the equivalent analysis for the proposed policies you think they should do instead right that's correct what we have done is we pointed to the fact that the disparate incidence in the general population solely been demonstrated to translate into this particular pool  already know that but we don't know exactly how it translates or whether it's which sorts of felonies or who is out of prison and who's still in prison available to coach under each of the different policies for different years and you haven't given the evidence to compare the so again this is a summary judgment so all all reasonable inferences need to be resolved mr hardy's favor and i think especially given that we demonstrated that the overall discrepancy translates into this any expert discovery that still ongoing i mean it's have to go to trial on the evidence that we know now because no discovery is continuing we have what we have how are you going to answer their footnote nine i mean if that's the right standard how will you address it with the evidence you have if it's not enough now what's the inference you're going to said that they must be viewed with paasschen in certain circumstances when we're not you can't be certain that the incidents that exist in the general population will be expected to translate into the particular pool so for example i think i think we listen t example if there is a particular degree or other certification that's required for a given position teachers for example might be required to have a particular certification and so you have to look at the population of those who have sounds like an issue that's inherently fact based and would have to be sorted out on a remain an but assuming that title to applies can you address the degree of control that the n tournaments organizer is going to permit mr hardy to coach a basketball team in the tournament so what evidence do you have of n c double a control in gation this tournament would not occur so the n c a a certification is incredibly important because it gives the term and essentially the purpose for being that the purpose of these tournaments is to allow these athletes to participate so you're sol or ships and expose themselves  through that mechanism the n c a a is able to i think i still question you want us to decide whether that counts as controller counts as enough to make them a defendant i'm not clear on what you think the fact dispute is that needs to be resolved by a jury i think it's a complicated factual issue contested like i mean is there anything where you say the n c w invented this policy and they say no it was the venue and the jury has to listen to testimony and sort it out or is it everyone agrees on the facts and it's just the conclusion to be drawn from them this isn't a question of proximate question rather than one that should be decided by the court i think that the cats and back you go stream case which then says actually relying on for that or the idea that control is necessary here there the question that went to a bench trial and the court there's three judge panel and it's termed as a matter of fact that particular individual in that case you didn't have the technical legal ability control some of the theaters but not all the theaters that were engaged in discriminatory conduct and the court held as a matter of the ownership interest in the venue's did not know them no your honor that's the key distinction so we did have an ownership and actual legal control over some of those venues we didn't have it many of the others in fact the court emphasized that in some circumstances  was that because of his position and because of the influence he had over others and sort of his general expertise in the area he he was able to effectively control the decision of all of the theaters in the racially discriminatory policy of those theaters could be said helped another any or inside another and to adopt a racially discriminatory policy they have themselves adopted this policy they're the ones that implement the coaching approve a policy and determine which coaches will be allowed to participate in these n c a a certified tournaments a of them so again without the n c a a regulations the tournament organizers wouldn't necessarily have to ensure their tournaments would have to provide medical personnel there's extensive regulations that the n c a a imposes through this mechanism of ensuring that coaches can come and discrepancy of among those denied in a in a new policy wouldn't have to reduce what does have to reduce what we would have to show is that there is a disproportionate race so impact on those that would not be denied but are currently denied and so comparing the two policies comparing that population of individuals who would be allowed to participate under one policy under one under well there are currently lots of participate but would be allowed to participate under of our alternative policy if that is a disproportionately african american population then allowing those individuals for dissipate well maybe a less discriminatory alternative because it will remove part of the disparate racial impact pause by the n we have a current policy and a policy you want don't you have to show that under the policy you want it's more similar in terms percentage of african americans and white people that are denied the current policy is no and i'm sorry if i wasn't clear on that but we have to show it is a less discriminatory alternative and so we have to show that the policy would have less of a disparate racial impact there's a closer you have to show the percentage of african americans it's closer to the percentage of whites under the policy you're asked we have to show that there change between policies has a disproportionate benefit to african americans and so removing that added population when you say this portion of benefit are you comparing to the white population are you just counting african americans were  we're not we're comparing to the white population so in this population of those approved which which is a good sample of the all those who are applying it's forty six percent african american are those denied it eighty percent african  seventy percent of those coaches are african american then it has a disproportionate benefit to african americans relative to their presence in the overall population and is therefore a less discriminator alternative compared to the n c a a current policy the words cove analysis that is for purposes of the issue on appeal we've conceded that there is that our policy as it exists now has a racially disparate impact in that as dr report shows african american coaches were one point seven times more likely to be denied the non african american coaches and they have conceded for purposes of the appeal that our policy of not allowing our division one coaches from attending tournaments in which convicted felons coach girls high school and middle middle school girls has a legitimate justification consistent with our equally achieve its legitimate objective in a manner that reduces the percentage the degree of racial disparities such that a reasonable fact finder could conclude that maintenance of our insistence on maintaining our current policy is so arbitrary as to quote amount to a pretext for discrimination that's that that's the words close standard now the record in this case it is their burden on step three to show that this was a case in which there was lavish and full factual discovery prior to the briefing an argument of this point on summary judgment that not only was there a full briefing an argument on this there was full briefing an argument on three motions to strike certain aspects of the testimony that they feel they purport to use to show their case they a deuced no evidence whatsoever from which a reasonable fact finder could conclude that either of their proffered alternatives would lower the degree of racial disparity dr ben deck studied the impact of the current policy only not any alternative as mr hardee to expressly told the district court in the summary judgment papers dr beckett's report doesn't even address the relevant population she has general population statistics and the supreme court in the beezer case and this court in a number of cases have said that absent a showing that the relevant population which in this case would be those convicted felons that not only were capable of coaching girls basketball wanted to coach girls basketball and had been hired as a girls basketball coach reflected the general population and their own witness testified that that was not the case dr beckett's even if you leave aside the inappropriate in impropriety or insufficiency of a lying on general testimony the evidence that she says that her report indicates and this is on page two seventy three of the excerpts of record is plainly insufficient to show to tell you anything about whether the degree of racial disparity would increase or disk decrease and that's for at least three reasons number one the change in policy from two thousand and seven to two thousand and eleven had to do with the fact that what the n c double lake considers to be non violent felons would be excluded only if their conviction was within the last seven years her report has nothing whatsoever to say about how recent a non violent felon conviction would be number to her report doesn't say anything about violent vs nonviolent felony convictions she expresses she shows a graph and again this is on page two seventy three she has to to sticks for property felonies violent felonies drug felonies and weapons felonies and what she says is that on a national basis violent felonies there's a three point six percent disparity property felonies which are certainly nonviolent felonies there's a two point seven percent disparity drug felonies which could be either violent or nonviolent because if mr hardy had been convicted of the crime for which she was arrested which was that while serving as a substitute high school teacher he was arrested for selling crack cocaine across the street from the school that would be considered a violent felony but even leaving that aside all we know from from her report is that the the degree of disparity involving violent felons is greater than the degree involving nonviolent property felonies but less than that of three involving drug felonies and so therefore there is she has nothing to say over that whether or not going back to the two thousand and seven policy which is hardy's alternative number one would reduce the degree of racial disparity now neither dr bendix nor dr baca have anything to say about what would happen to the degree of racial disparity if you adopted their alternative to which is the sort of holistic review of all twenty five thousand people who applied to cochin these tournaments they suggested in their brief in this case that another expert dr rosen had said that but that is false dr rosen told the court and this is in its district court document one forty  page three quote this is this is what hardy told the court at no point does dr rosen purport to be testifying as to the racial disproportionality used caused by any alternative policies and so the simply is a failure of proof that under step three of the wards cove analysis either of the proposed alternatives would lower the degree of racial disparity not judge your question which was our first alternative grounds for a farm and the issue here is not whether or not we're responsible for our policy the question is whether we were the ones that actually excluded coach hardy from the tournament and because title two does not cover inducement or other forms of secondary liability it reaches only those persons or entities who have authority by contract or property right to exclude or those who actually physically block access as was the case in three of the cases they cited in other words liability primary liability only applies to those entities that actually exclude then use apply anything like this policy in tournaments that are not and c w approved well we actually don't know what we don't know anything in the record with respect to the tournament that was the issue of the dispute in this case the midsummer night's madness san diego turn a minute we do know that coach hardy coaches sits as a poach in girls non school lastic tournaments that she's not to be sure to fide by the shit i choose not to have themselves certified by the n c double a such that division one coaches can go as spectators and there was a suggestion by my friend that sam a leader who was the proprietor of the international girls basketball association which was the sponsor of the midsummer night's madness tournaments that he had to have this otherwise  wouldn't put it on but simply in fact testified in this is a page nine of the second supplemental excerpts of record that if he didn't get if he doesn't get envy and see double a certification he makes less money and that is really what the nub of this case is that tournaments organizers and then use there are plenty of them that put on tournaments that division one coaches don't come to the testimony was they make less money and therefore they are in no different position than for example if it had been the case that the n c double a didn't have this policy but let's just say you know the yukon women's basketball coach the stanford women's basketball coach the notre dame women's basketball coach the power coach is basically said we don't want to have our staff attending tournaments where felons are coaching girls and as a result a lot of tournaments organizers say that i'm not going to be able to get many teams unless i can get the you know the really notable women's basketball coach is there the whole notion i mean that that's that's that may be different in degree between three coaches deciding we're five coaches deciding and the n c double way but it's not different in kind and i mean if we agree with you about this  why wouldn't like the p g a tour then just hire an intermediary i mean you know people have wedding planners why don't you have tournament planners and then you blame the tournament planner for having this policy judged that's an interesting question i hadn't thought of you know a wedding planner in that context but i  choice even though maybe the wedding planner chose the colors right so here here's the point the point is look there's no monetary law there no damages liability under title to the point of title two is two and policies that deny people the enjoyment of public accommodations the n c a the p g a was responsible and was an appropriate defendant in the casey martin case because it was putting on the tournament planner wouldn't be liable as a principal but the p g a as the sponsor of the tournament the p g a is the one who's actually saying you can't participate is liable and so there were three other defendants in this a tournament like this can't use the x glued convicted felons from coaching regardless of what race they go well that i think judge faber i got two points to make one i also find it incredible to think that they can't that the n c double i can't just say listen we're not going to have our division one coaches associated in any way with a tournament that allows felons to coach girls or boys we do concede and i think we we we have to concede that the tournaments themselves as the tournament in k c was are public accommodations that is the turn him in as a public accommodation the question is whether we are the ones who are actually excluding coaches or whether we are simply saying look we don't want our division one coaches to attend unless the following things occur if you want to put on tournament that doesn't follow these rules that doesn't have health insurance that makes the girls play five you know games a day that allows felons to sit on the bench that's fine we don't control that we're simply saying that we won't send rule the n c double is making a rule about when it's coaches were attempt would attend just as would be the case for example if i don't know the national organization for women that urge or the national women's ladies got the national women's golfers association said ok our preferred women's professional golfers are no longer to play in p g a tournaments that allow men to participate who have a domestic violence conviction ok and as a result the p g a says fine we're not going to sponsor tournaments anymore in which somebody with a convicted who was convicted of a domestic violence offense can play that doesn't make the women's professional golfing association responsible under title two they have provided tut that the p g a as the sponsor of the turn a met with a compelling financial reason to change its policies but liability goes to the p g a and the consequence will pay this very same thing really if they if they hadn't settled with and dismissed the other defendants in this case and their theory really well  up and this court held as a presidential matter both that disparate impact standard applies and that it was satisfied in this case by the statistics there either wouldn't be and the one coaches wouldn't attend any more non girl's tournaments or that n c double a would change its rules to allow its coaches to attend something and that's that's really the sum and substance of our position here thank you so just to my limited amount of time i'd like to emphasize the extent to which these are these are questions of fact and they are disputed questions of fact so example my colleague on the other side is arguing sensibly about the lack of control that the n c a a exercises here that is the epitome of a question venue they could always preclude another organizer from coming in whether they're a sponsor or not and prevent them from doing whatever discriminatory policy they might choose to do i think it's worth also emphasizing the point just purely as a legal matter the question of who would  be the proper defend in this case would be the same regardless of the nature of the n c a a s policy so for example the n c a a said no african americans make in our certified tournaments they would still claim they're arguing would still hold that they can't be liable for that that's certainly not the sort of result that congress intended with title to tell it to is also directed in part for example it and members of the k k k your response to the question about whether or not it's perfectly permissible to simply say we don't want convicted felons coaching boys and girls basketball we pointed to ample evidence that demonstrates that that is at least an overbroad policy that there are numerous individuals mr harvey is one of them who do have a felony conviction but given the length of time since that conviction has  occurred their age their employment history their various other factors they actually pose no more risk than someone who has never offended a society we accept the fact that a felony conviction carries with it a number of consequences including denying the right to vote denying the right to possess or buy firearms that's true why why is this not a perfectly it's actually been recognized in the title seven contacts for example this kind of policy would  assuming i can figure out what your differences but then can you point me to something in any expert report that does the kind of comparison under your view of what the test should be because i read the reports and i didn't see comparisons between under any kind of interpretation of the history at least since the fifty's or sixty's there's data taken from a number of i don't think there's any reason to think that the racial discrepancy between african americans and whites is changing any relevant when last seven years at how do we decide if the drug crimes are violent or not violent drug so the statistics the drug i think is the drug category controlled substances category is has a higher rate of african americans how do we know if that counts as violent or not under the alternative  we would also characterize those as nonviolent might want to carve out some subset of those that it would classify as violent and that's that's something that we wouldn't necessarily have a view on that at this point that's something that could be hashed out and the remedial order we would