Ollier v. Sweetwater Union High Sch. Dist.

• Decision Date: 19 September 2014
• Docket Number: No. 12–56348.,12–56348.
• Parties: Veronica OLLIER; Naudia Rangel, by her next friends Steve and Carmen Rangel; Maritza Rangel, by her next friends Steve and Carmen Rangel; Amanda Hernandez, by her next friend Armando Hernandez; Arianna Hernandez, by her next friend Armando Hernandez, individually and on behalf of all those similarly situated, Plaintiffs–Appellees, v. SWEETWATER UNION HIGH SCHOOL DISTRICT; Arlie N. Ricasa; Pearl Quinones; Jim Cartmill; Jaime Mercado; Greg R. Sandoval; Jesus M. Gandara; Earl Weins; Russell Moore, in their official capacities, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

768 F.3d 843

Veronica OLLIER; Naudia Rangel, by her next friends Steve and Carmen Rangel; Maritza Rangel, by her next friends Steve and Carmen Rangel; Amanda Hernandez, by her next friend Armando Hernandez; Arianna Hernandez, by her next friend Armando Hernandez, individually and on behalf of all those similarly situated, Plaintiffs–Appellees,

v.SWEETWATER UNION HIGH SCHOOL DISTRICT; Arlie N. Ricasa; Pearl Quinones; Jim Cartmill; Jaime Mercado; Greg R. Sandoval; Jesus M. Gandara; Earl Weins; Russell Moore, in their official capacities, Defendants–Appellants.

No. 12–56348.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 3, 2014.

Filed Sept. 19, 2014.

Paul V. Carelli, IV (argued), Daniel R. Shinoff, and Patrice M. Coady, Stutz Artiano Shinoff & Holtz, APC, San Diego, CA, for Defendants–Appellants.

Elizabeth Kristen (argued), Robert Borton, and Kim Turner, Legal Aid Society Employment Law Center, San Francisco, CA; Vicky L. Barker and Cacilia Kim, California Women's Law Center, Los Angeles, CA; Joanna S. McCallum and Erin Witkow, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, for Plaintiffs–Appellees.

Erin H. Flynn (argued), United States Department of Justice, Civil Rights Division, Appellate Section; Philip H. Rosenfelt, Deputy General Counsel; Thomas E. Perez, Assistant Attorney General; Vanessa Santos, United States Department of Education Office of the General Counsel; Dennis J. Dimsey and Holly A. Thomas, United States Department of Justice, Civil Rights Division, Appellate Section, for Amicus Curiae United States of America.

Fatima Goss Graves, Neena K. Chaudhry, and Valarie Hogan, National Women's Law Center, Washington, D.C.; Lauren B. Fletcher and Anant K. Saraswat, Wilmer, Cutler, Pickering, Hale & Dorr LLP, Boston, MA; Megan Barbero, Dina B. Mishra, and Brittany Blueitt Amadi, Wilmer, Cutler, Pickering, Hale & Dorr LLP, Washington, D.C., for Amicus Curiae National Women's Law Center, et al.

Kristen Galles, Equity Legal, Alexandria, VA; Nancy Hogshead–Makar, Women's Sports Foundation, Jacksonville, FL, for Amicus Curiae Women's Sports Foundation, et al.

Appeal from the United States District Court for the Southern District of California, M. James Lorenz, Senior District Judge, Presiding. D.C. No. 3:07–cv–00714–L–WMC.

Before: RONALD M. GOULD and N.R. Smith, Circuit Judges, and

MORRISON C. ENGLAND, JR., Chief District Judge.^*

OPINION

GOULD, Circuit Judge:

Defendants–Appellants Sweetwater Union High School District and eight of its administrators and board members (collectively “Sweetwater”) appeal the district court's grant of declaratory and injunctive relief to Plaintiffs–Appellees Veronica Ollier, Naudia Rangel, Maritza Rangel, Amanda Hernandez, and Arianna Hernandez (collectively “Plaintiffs”) on Title IX claims alleging (1) unequal treatment and benefits in athletic programs; ¹ (2) unequal participation opportunities in athletic programs; and (3) retaliation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

On April 19, 2007, Plaintiffs filed a class action complaint against Sweetwater alleging unlawful sex discrimination under Title IX of the Education Amendments of 1972 (“Title IX”), see20 U.S.C. § 1681 et seq., and the Equal Protection Clause of the Fourteenth Amendment, see42 U.S.C. § 1983. ² They alleged that Sweetwater “intentionally discriminated” against female students at Castle Park High School (“Castle Park”) by “unlawfully fail [ing] to provide female student athletes equal treatment and benefits as compared to male athletes.” They said that female student athletes did not receive an “equal opportunity to participate in athletic programs,” and were “deterred from participating” by Sweetwater's “repeated, purposeful, differential treatment of female students at Castle Park.” Plaintiffs alleged that Sweetwater ignored female students' protests and “continued to unfairly discriminate against females despite persistent complaints by students, parents and others.”

Specifically, Plaintiffs accused Sweetwater of “knowingly and deliberately discriminating against female students” by providing them with inequitable (1) practice and competitive facilities; (2) locker rooms and related storage and meeting facilities; (3) training facilities; (4) equipment and supplies; (5) transportation vehicles; (6) coaches and coaching facilities; (7) scheduling of games and practice times; (8) publicity; (9) funding; and (10) athletic participation opportunities. They also accused Sweetwater of not properly maintaining the facilities given to female student athletes and of offering “significantly more participation opportunities to boys than to girls [.]” Citing Sweetwater's “intentional and conscious failure to comply with Title IX,” Plaintiffs sought declaratory and injunctive relief under 20 U.S.C. § 1681 et seq. for three alleged violations of Title IX: (1) unequal treatment and benefits in athletic programs; (2) unequal participation opportunities in athletic programs; and (3) retaliation.³

A

In July 2008, Plaintiffs moved for partial summary judgment on their Title IX claim alleging unequal participation opportunities in athletic programs. Sweetwater conceded that “female athletic participation” at Castle Park was “lower than overall female enrollment,” but argued that the figures were “substantially proportionate” for Title IX compliance purposes, and promised to “continue to strive to lower the percentage.” As evidence, Sweetwater noted that there are “more athletic sports teams for girls (23) than ... for boys (21)” at Castle Park.

The district court gave summary judgment to Plaintiffs on their unequal participation claim in March 2009. See Ollier v. Sweetwater Union High Sch. Dist., 604 F.Supp.2d 1264 (S.D.Cal.2009). The court found that “substantial proportionality requires a close relationship between athletic participation and enrollment,” and concluded that Sweetwater had not shown such a “close relationship” because it “fail[ed] to provide female students with opportunities to participate in athletics in substantially proportionate numbers as males.” Id. at 1272. Rejecting one of Sweetwater's arguments, the district court reasoned that it is the “actual number and the percentage of females participating in athletics,” not “the number of teams offered to girls,” that is “the ultimate issue” when evaluating participation opportunities. Id. After finding that Plaintiffs had met their burden on each prong of the relevant Title IX compliance test, the district court determined that Sweetwater “failed to fully and effectively accommodate female athletes and potential female athletes” at Castle Park, and that it was “not in compliance with Title IX based on unequal participation opportunities in [the] athletic program.” Id. at 1275; see Neal v. Bd. of Trs. of Cal. State Univs., 198 F.3d 763, 767–68 (9th Cir.1999) (laying out the three-prong test for determining whether a school has provided equal opportunities to male and female students).

B

Before trial, the district court decided three other matters at issue in this appeal. First, it granted Plaintiffs' motion to exclude the testimony of two Sweetwater experts because (1) the experts' conclusions and opinions “fail[ed] to meet the standard of Federal Rule of Evidence 702” because they were based on “personal opinions and speculation rather than on a systematic assessment of [the] athletic facilities and programs” at Castle Park, and (2) the experts' methodology was “not at all clear.”

Second, it granted Plaintiffs' motion to exclude 38 of Sweetwater's witnesses because they were not timely disclosed, reasoning that “[w]aiting until long after the close of discovery and on the eve of trial to disclose allegedly relevant and non-cumulative witnesses is harmful and without substantial justification.” Because Sweetwater “offered no justification for [its] failure to comply with” Federal Rule of Civil Procedure 26(a) and (e), the district court concluded that exclusion of the 38 untimely disclosed witnesses was “an appropriate sanction” under Federal Rule of Civil Procedure 37(c)(1).

Third, it considered Sweetwater's motion to strike Plaintiffs' Title IX retaliation claim as if it were a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss that claim, and denied it on the merits. See Ollier v. Sweetwater Union High Sch. Dist., 735 F.Supp.2d 1222 (S.D.Cal.2010). In so doing, the district court determined that Plaintiffs had standing to bring their Title IX retaliation claim—a claim the court viewed as premised on harm to the class, not harm to the softball coach whose firing Plaintiffs alleged was retaliatory. See id. at 1226 (“Plaintiffs ... have set forth actions taken against the plaintiff class members after they complained of sex discrimination that are concrete and particularized.”). The district court also concluded that Plaintiffs' retaliation claim was not moot after finding that class members were still suffering the effects of Sweetwater's retaliatory conduct and that Sweetwater's actions had caused a “chilling effect on students who would complain about continuing gender inequality in athletic programs at the school.” Id. at 1225.

C

After a 10–day bench trial, the district court granted Plaintiffs declaratory and injunctive relief on their Title IX claims alleging (1) unequal treatment of and benefits to female athletes at Castle Park, and (2) retaliation. See Ollier v. Sweetwater Union High Sch. Dist., 858 F.Supp.2d 1093 (S.D.Cal.2012).

The district court concluded that Sweetwater violated Title IX by failing to provide equal treatment and benefits in nine different areas, including recruiting, training, equipment, scheduling, and fundraising. Id. at 1098–1108, 1115. Among other things, the district court found that female athletes at Castle Park were supervised by overworked coaches, provided with inferior competition and practice facilities, and received less publicity than male...