Our civil rights laws are designed to prohibit discrimination on the basis of certain traits. For example, Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in employment. Title VI of that same Act prohibits any entity that receives federal funds from discriminating on the basis of race. And Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex from any entity that receives federal funds. But what does it mean that these laws prohibit “discrimination?”

The answer, of course, is that discrimination occurs when someone or something makes its decision because of that trait. The business discriminates when it refuses to hire an employee because she is black. The school discriminates when it refuses to admit a student because he is Asian. Or, more simply, the carnival ride discriminates on the basis of height when it requires customers to be a certain height to ride. Those actions are intentional and discriminatory, and, save for the carnival ride, they are prohibited by our civil rights laws.

Some of our civil rights laws, however, also prohibit “discrimination” when an unintentional action has a disproportionate effect on a racial group. For example, when the City of Chicago administered a firefighter exam, and a higher percentage of white applicants passed the exam than black applicants, it was determined to be illegal “discrimination.” This form of “discrimination” is called disparate impact. Not only is it unnecessary to show that the decision resulting in the disparate impact was intentional, the absence of intentional discrimination “is the very premise” for disparate impact discrimination.

Disparate impact is very problematic in practice; indeed, it results in a radical upheaval of our civil rights laws. Under Title VII, which textually prohibits racially disparate impacts, employers must make decisions that avoid any racial imbalance. Accordingly, employment decisions are made because of race – to avoid a racially disparate impact – which is precisely what the law was crafted to avoid.

Not all of our civil rights laws prohibit racially disparate impacts. Title VII does, but Title VI does not. Two years ago there was a hotly contested fight before the Supreme Court to determine if the Fair Housing Act prohibited disparate impact. In a divided opinion, the Supreme Court held that it does. A case now before the Ninth Circuit asks whether Title II of the Civil Rights Act prohibits disparate impact. That case, Hardie v. NCAA, was the subject of recent Federalist Society Teleforum featuring Roger Clegg and myself.

Title II is a hallmark of the Civil Rights Act of 1964. It prohibits discrimination and segregation in places of public accommodation. “Whites only” swimming pools, movie theaters, golf clubs, hotels, and other places of public accommodation are prohibited by the landmark law. But nothing in the text of the statute indicates that Congress intended to prohibit actions in places of public accommodation that have a racially disparate impact. Hardie seeks to change that.

The facts of Hardie are fairly typical for a disparate impact suit. The NCAA adopted a policy that prohibited convicted felons from coaching in NCAA sponsored events. Hardie was convicted of a felony in 2001. He sought to coach in an NCAA-sponsored girls’ basketball tournament, but tournament sponsors forbade it. He sued the NCAA under Title II alleging that the policy both intentionally discriminated against him, and that the policy had a racially disparate impact against African-Americans.

Hardie quickly abandoned his intentional discrimination claim – there was simply no evidence that a policy prohibiting felon coaches was intentionally discriminatory – but he pressed forward with the disparate impact claim. The district court, however, dismissed that claim. In a very short opinion, the court explained that neither the text of the statute, nor the purpose of it, was to prohibit disparate impact.

That decision was quickly appealed, and, in a surprising twist, the NCAA abandoned its winning argument below. It now concedes that Title II cognizes disparate impact claims, and instead only disputes whether its actions caused the racially disparate impact. [In essence, the NCAA argues that the tournament organizers exercised independent judgment, and are the actors who denied Hardie the authority to coach in the tournament.] Pacific Legal Foundation, in this amicus brief joined by the Center for Equal Opportunity and the Competitive Enterprise Institute, were the only parties to support the lower court’s decision.

The Ninth Circuit recently held oral argument in the case, and, unfortunately, the court only briefly touched on whether Title II allows for disparate impact claims. Because the NCAA conceded that point, it does not appear as if the court will issue a binding decision on that question. Instead, it is much more likely that the court will rule, as other courts have in the past, only after assuming arguendo, that the statute covers disparate impact claims.

This issue – whether Title II covers disparate impact claims – is therefore unlikely to be decided in Hardie. Neverthelesss, I urge all those interested in this important issue to listen to the Teleforum. Both Roger and I go into much more detail about disparate impact, Title II, and the Hardie case.