FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOMINIC HARDIE,

Plaintiff-Appellant,

v.

NATIONAL COLLEGIATE ATHLETIC 

ASSOCIATION, a nonprofit 

association,

Defendant-Appellee.

No. 15-55576

D.C. No.

3:13-cv-00346-

GPC-DHB

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

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

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

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 studentathletes. As part of their recruitment activities, coaches and 

other athletics staff from NCAA member schools attend
HARDIE V. NCAA 5

nonscholastic1 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.

 1 Nonscholastic tournaments are tournaments in which the 

participating teams are unaffiliated with schools.
6 HARDIE V. NCAA

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 violentnonviolent 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 

 2 The NCAA defined “violent felonies” as crimes committed against 

a person and punishable by at least one year in prison.
HARDIE V. NCAA 7

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 

 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.

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 
8 HARDIE V. NCAA

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 

 

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”).
HARDIE V. NCAA 9

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, 

 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.
10 HARDIE V. NCAA

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. Atonio7 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 

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 

 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).
HARDIE V. NCAA 11

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 burdenshifting framework that applies to disparate-impact claims.8 

490 U.S. at 658. Burden shifting serves to limit disparateimpact 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-

 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 

Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (applying the Wards 

Cove framework to the Age Discrimination in Employment Act).
12 HARDIE V. NCAA

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 

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, 
HARDIE V. NCAA 13

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 

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 
14 HARDIE V. NCAA

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 

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.

 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.
HARDIE V. NCAA 15

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, 

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 
16 HARDIE V. NCAA

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 

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.

 10 The Nakamura report measures general population risk including 

people with and without criminal histories.
HARDIE V. NCAA 17

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. Perhaps, 

because of self-selection or other factors, the coaching 

population differs from the population studied. 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 

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 
18 HARDIE V. NCAA

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 “safetysensitive” 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 

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 

 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.
HARDIE V. NCAA 19

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 

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 
20 HARDIE V. NCAA

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 predict the racial 

effect of individualized assessments on the NCAA’s 

applicant pool in particular. 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 

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.
HARDIE V. NCAA 21

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 disparateimpact 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 10, tells only part 

of the story. True, the NCAA chooses to devote no part of its brief before 

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 
22 HARDIE V. NCAA

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 resultoriented 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. 

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.).

 

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.
HARDIE V. NCAA 23

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.

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 
24 HARDIE V. NCAA

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 secondguess 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 

(2013) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 

(1991)).
HARDIE V. NCAA 25

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 

sovereign, like the States, must govern impartially.”); 

Bolling v. Sharpe, 347 U.S. 497, 499 (1954) 

(“Classifications based solely upon race must be scrutinized 
26 HARDIE V. NCAA

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 

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 
HARDIE V. NCAA 27

(1976) (emphasis added). Additionally, an outcomedeterminative 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 

intent and to minimize the role of any statistical disparities 

is the opposite of how disparate-impact liability operates.
28 HARDIE V. NCAA

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, 

Title II contains no “results-oriented phrase” such as 

“‘otherwise make unavailable.’” 135 S.Ct. at 2518—19 
HARDIE V. NCAA 29

(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 

is not a criterion that Title II prohibits. Perhaps in the 

NCAA’s eyes, a felony conviction disqualifies someone 
30 HARDIE V. NCAA

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 

figure out if the impact were disparate, her doing so would 

not elicit the public’s confidence in the legitimate 
HARDIE V. NCAA 31

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., 

concurring). Moreover, holding a defendant liable on that 

basis would set a pernicious precedent that the Supreme 
32 HARDIE V. NCAA

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 disparateimpact 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, publicservice 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 freeenterprise 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 

reason that Title II does not authorize disparate-impact 

liability.
HARDIE V. NCAA 33

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 17. 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 nonlegitimized 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 “predict the racial effect of 

individualized assessments on the NCAA’s applicant pool in 

particular.” Maj. op. at 20. 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 

fraught with flawed methodologies and philosophical, 

political, and other biases, to decide legal questions is 
34 HARDIE V. NCAA

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.