After pleading guilty in 2001 to possessing less than a gram of crack cocaine, for which he served no jail time, former college basketball player Dominic Hardie got his life together. He got his social work degree. He worked as an investigator for the child protective services agency in Texas. And he helped launch a girls basketball program in Houston that has sent 30 girls to college on scholarships, including one of the top players at Northwestern University.
But in 2012, the NCAA shut down his coaching career. The collegiate association enacted a ban on anyone with a felony conviction participating in an NCAA-certified tournament, such as those where Hardie’s Triple D Hoops AAU team would play in front of Division 1 coaches. Now Hardie is alleging the ban has a disparate impact on African Americans, and challenging it as a violation of the Civil Rights Act. A federal appeals court in California heard oral arguments on the case earlier this month but has not yet ruled. The case could make its way to the Supreme Court and establish new precedent for how a key part of the Civil Rights Act is enforced.
Hardie’s case is emblematic of a growing trend in America to reintegrate convicted felons to society, rather than branding them as outcasts whose rights are permanently diminished, regardless of their backgrounds or post-conviction accomplishments. Many states are restoring voting rights to those who have completed their sentences, and the Justice Department last year held a “National Reentry Week” in which it created programs to help newly released felons find work and rejoin their families, and announced it would no longer use the stigmatizing terms “felon” or “convict.”
Hardie, 39, enlisted the help of the Lawyers’ Committee for Civil Rights Under Law, which filed suit in San Diego after Hardie was banned from coaching in a tournament there. Kristen Clarke, the committee’s executive director, said the NCAA’s ban was “discriminatory and serves no legitimate business purpose.” The committee found that 80 percent of those denied approval because of a felony conviction were African American.
“Unnecessary barriers,” Clarke said, “that arbitrarily exclude rehabilitated ex-offenders from public establishments and prevent them from reintegrating into society must be eradicated.”
Hardie said he had no idea of the reverberations his conviction would have 15 years later. “I accepted what I did, I admitted I was wrong,” Hardie said. “After I paid my debt to society, I thought I would move on. I was ignorant to the system. For somebody to get an economic death penalty for a drug sentence? I tell the kids, we have to be educated to the law.”
The NCAA is aggressively defending the ban, and hired former U.S. solicitor general Seth Waxman, who has argued 75 cases before the Supreme Court, to handle the appeal. The NCAA’s rule is technically aimed at its own coaches: they may not attend any event which is not NCAA-certified, and to be certified participants — organizers, coaches, referees — may not have a felony conviction. The NCAA created the rules in 2006 both to remedy the problem of sleazy middlemen, agents and recruiters exercising influence at youth tournaments and showcases, and to protect young players from possible predators.
The NCAA’s rule initially disqualified only coaches with violent or sex-related felonies, and those with any other felony conviction were granted approval if the conviction was more than seven years old. Hardie, who received probation and no jail time for his conviction, was approved in 2010 and 2011. But in 2011, the NCAA changed its rule to a blanket ban on all felonies, with no time limit. In 2012, the NCAA denied Hardie’s application for approval.
“The policy of excluding convicted felons from coaching,” Waxman wrote in his brief, “serves the NCAA’s legitimate interest in protecting the safety of children who participate in the tournaments and the integrity of the NCAA’s recruiting process and college athletics more generally.”
The law Hardie’s lawyers are targeting is the landmark Civil Rights Act of 1964, and in particular Title II, which states that “All persons shall be entitled to the full and equal enjoyment…of any place of public accomodation…without discrimination or segregation on the ground of race, color, religion, or national origin.” The lawyers argue that rules or laws which have a disparate impact on African Americans, even if that is not their intent, should be invalidated.
The NCAA conceded that the felons ban does have a disparate impact, but that the alternatives offered by Hardie’s lawyers — individual assessments of each coach, or reverting to the prior policy — would not make the situation any better. Though there was little case law on Title II violations, the NCAA asked U.S. District Judge Gonzalo Curiel to dismiss the case on summary judgment. In 2015, Curiel did so, saying that “the Supreme Court has indicated that the term ‘discrimination,’ without more, does not include disparate impact.”
Hardie appealed. But in front of a three-judge panel in Pasadena last week, two of the circuit court judges did not seem sympathetic. Senior U.S. District Court Judge David A. Faber, sitting by assignment in from his normal post in West Virginia, said, “I find it almost shocking that the organizers of a tournament like this can’t choose to exclude convicted felons from coaching, regardless of what race they come from.”
Waxman quickly agreed with Faber. “I also find it incredible,” the former solicitor general said, “to think that the NCAA can’t just say, ‘Listen, we’re not going to have our Division 1 coaches associated in any way with a tournament that allows felons to coach girls, or boys.”
And U.S. Circuit Court Judge Richard C. Tallman of Seattle declared, “In this 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. Why is this not a perfectly legitimate reason” to deny someone the ability to coach? Tallman asked.
James Sigel, Hardie’s lead attorney, replied that rules which have disparate impact are prohibited under Title II. “It’s not justified,” Sigel said after the hearing, ” to think that everybody who has ever suffered a felony conviction presents a risk to the children. And Mr. Hardie is a perfect example of that, he’s a social worker, he’s been certified to work with children in Texas. It requires a more nuanced calculation to determine if somebody presents a risk….We’re trying to get people like Mr. Hardie an opportunity that’s been denied to them based on overbroad categorization.”
Donald Remy, the NCAA’s chief legal officer, said after the hearing that the association’s policy “simply identifies which non-scholastic basketball tournaments its Division I coaches may attend as spectators,” and that it “provides important protection for prospects participating in those events, and for the integrity of the NCAA’s recruiting process.”
Robert Bloom, a civil rights law professor at Boston College Law School, said he was not optimistic about Hardie’s chances. “The question is,” Bloom said, “does Title II allow for this kind of lawsuit? That’s a real huge stretch.” Even though 80 percent of those rejected from coaching were black, Bloom said he did not think that qualified as prohibited discrimination. “It wasn’t because they were black,” he said, “it was because they were felons. If the rule banned all black felons, that would be a different story.”
Hardie said he watched the arguments as they were live streamed. “Hearing a judge say, ‘That’s a penalty you’re going to have to pay for the rest of your life,’ that’s hard to hear,” Hardie said. “That’s why I’m fighting it. We’re talking about mass incarceration and disparate impact. Hopefully we can change these prehistoric laws which pretty much everybody has concluded are ridiculous.”