Ninth Circuit Court of Appeals.. September 2015. Photo by Mike Scarcella/THE NATIONAL LAW JOURNAL. (Mike Scarcella)
A Morrison & Foerster associate who recently completed a U.S. Supreme Court clerkship will argue Wednesday against former solicitor general Seth Waxman in a major race discrimination case that involves the National Collegiate Athletic Association.
James Sigel, who clerked for Justice Sonia Sotomayor, will argue in the U.S. Court of Appeals for the Ninth Circuit on behalf of a volunteer girls basketball coach who is challenging NCAA policy that bans coaches with felony convictions from participating in certain recruitment events.
Sigel’s argument on behalf of Dominic Hardie will mark his first trip to the Ninth Circuit as an advocate. A Morrison & Foerster associate in San Francisco, Sigel clerked for Sotomayor in the 2014-15 term, and a year earlier for Judge David Tatel at the D.C. Circuit.
Waxman, co-chairman of the Supreme Court and appellate practice at Wilmer Cutler Pickering Hale and Dorr, is among the top tier of appellate lawyers, with more than 75 high court arguments and numerous others in federal and state courts around the country.
“Obviously, Seth Waxman is an incredibly accomplished attorney. But I feel prepared and I’m confident in our arguments,” Sigel said Tuesday.
In Hardie v. National Collegiate Athletic Association, Sigel contends NCAA policy violates the Civil Rights Act of 1964 because it has a disparate impact—a disproportionate effect—on African-Americans who are more than three times as likely as white Americans to have a felony conviction. Title II of the civil rights law prohibits discriminatory denials of access to places of public accommodation, such as sports arenas.
Hardie’s case originated with the Lawyers’ Committee for Civil Rights Under Law, which filed suit on his behalf in 2013. A federal district court ruled that Title II of the Civil Rights Act does not authorize disparate impact claims.
Morrison & Foerster has been involved in the case essentially from the beginning, said firm partner Brian Matsui, who is assisting Sigel. The firm, Matsui said, has a long history of working with the Lawyer’s Committee.
Matsui said Hardie’s case “presented interesting and important legal issues that James could dive into. And it is consistent with our firm’s approach of having a deep bench of appellate lawyers who are ready to argue important cases like this one.” He added: “This is how I got some of my first opportunities, so it’s vital that superb lawyers like James get them too.”
Hardie, 38, pleaded guilty in 2001 to possessing less than a gram of cocaine when he was 23. He served no jail time. He later became a social worker and co-founded Triple D Hoops, an organization that promotes responsibility and discipline in youths. Triple D, using basketball as a teaching tool, competes in recruitment tournaments certified by the NCAA.
From 2006 to 2010, the NCAA disqualified any coach who had been convicted of a violent felony, a sex offense, or a crime involving children. Individuals with any other type of felony conviction were granted approval unless the conviction was less than seven years old. The NCAA certified Hardie to coach in 2010 and 2011.
The organization, however, changed its policy in 2011 to bar anyone who had any kind of felony conviction from coaching in an NCAA-certified tournament.
For the NCAA, Waxman said the organization will not press its argument that there is no disparate impact liability under Title II. Instead, he contends the NCAA has no liability because tournament organizers and venue operators were free to follow or not the NCAA policy.
“As courts have recognized, only those who control access to a privilege of a public accommodation—and not those who, like the NCAA, merely influence those with such control—may be liable under Title II,” Waxman wrote in a brief in the Ninth Circuit.
Sigel, making his case, relies in particular on the Supreme Court’s 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. The justices, 5-4, held that the Fair Housing Act authorized disparate impact claims.
Before that Supreme Court decision, Sigel said, a handful of district courts had reached conflicting conclusions on the availability of such claims. The Second Circuit allowed such claims to proceed. A Ninth Circuit decision that stops Hardie’s claims from moving forward would create a split among appellate courts.
“The firm and I are ready to see this through to the very end,” he said.