Neither the Supreme Court nor the Ninth Circuit has yet decided whether a violation of Title II of the Civil Rights Act of 1964 (42 USC 2000a(a)) can be proven on a disparate impact theory. This decision assumes arguendo that disparate impact is a viable theory, but affirms a defense summary judgment anyway in a case challenging the NCAA’s policy of banning anyone with a felony conviction from coaching at an NCAA-sponsored tournament. Plaintiff met the first step of the three-step burden shifting framework for a disparate impact case by showing that blacks have disproportionately more convictions than whites. But the NCAA met its burden at the second stage by showing that the policy furthered the NCAA’s legitimate interest in avoiding harm to minors who participated in its tournaments and avoiding liability for that harm. On the third stage, plaintiff failed to show there was an equally adequate, but less discriminatory alternative. Reverting to the NCAA’s pre-2011 policy of banning only those with violent felony convictions was not equally adequate since it would subject the NCAA to increased risk of liability, a risk that the NCAA did not have to accept.
Ninth Circuit Court of Appeals (Tallman, J.; Faber, J., concurring in part & concurring in the judgment); June 27, 2017; 2017 WL 2766096