Mansourian v. Regents of University of California

• Decision Date: 08 February 2010
• Docket Number: No. 08-16330.,08-16330.
• Citation: 602 F.3d 957
• Parties: Arezou MANSOURIAN; Lauren Mancuso; Christine Wing-Si Ng, Plaintiffs-Appellants, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, University of California at Davis; Lawrence Vanderhoef; Greg Warzecka; Pam Gill-Fisher; Lawrence Swanson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

602 F.3d 957

Arezou MANSOURIAN; Lauren Mancuso; Christine Wing-Si Ng, Plaintiffs-Appellants, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, University of California at Davis; Lawrence Vanderhoef; Greg Warzecka; Pam Gill-Fisher; Lawrence Swanson, Defendants-Appellees.

No. 08-16330.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2009.

Filed February 8, 2010.

Amended April 20, 2010.

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Noreen Farrell (argued), Debra Smith, James C. Sturdevant, Monique Olivier, San Francisco, CA; Kristen Galles, Alexandria, VA, for plaintiffs-appellants Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng.

Nancy J. Sheehan, Sacramento, CA, for defendants-appellees Regents of the University of California et al.

Before MARY M. SCHROEDER and MARSHA S. BERZON, Circuit Judges, and MILTON I. SHADUR,^* District Judge.

ORDER

The opinion filed on February 8, 2010, is hereby amended. The amended opinion is attached hereto. With this amendment, Judges Schroeder and Berzon have voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc, and Judge Shadur so recommends.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED. No future petitions for rehearing will be entertained.

OPINION

BERZON, Circuit Judge:

The statute known as Title IX, 20 U.S.C. § 1681, is widely recognized as the source of a vast expansion of athletic opportunities for women in the nation's schools and universities, so much so that a company that sells women's athletic apparel now mimics its name. See www.titlenine.com. Despite that renown, the district court in this case held that a university that receives federal funds cannot be held liable in damages for failing effectively to accommodate the athletic interests of both men and women unless the aggrieved women first provide the appropriate university officials with notice of their disadvantageous treatment and an opportunity to cure it.

We disagree and so, with respect to the central issue in this case, reverse the district court's grant of summary judgment on that ground. We hold as well that the defendant university is not entitled to summary judgment on the alternative ground that it has complied with Title IX. We also reverse the order dismissing the plaintiffs' equal protection claim and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng (hereafter plaintiffs or students) are women who wrestled in high school and chose to attend the University of California, Davis (UCD) so they could participate in the university's acclaimed wrestling program, which had long provided opportunities for women.¹ The plaintiffs participated in varsity wrestling and enjoyed the benefits associated with varsity status: training, coaching, and laundry services; academic tutoring; insurance; and access to varsity facilities and equipment.² UCD did not operate separate wrestling teams for men and women; a handful of women wrestlers participated in what was largely a men's team, practicing with the men and receiving coaching from Coach Mike Burch.

During the 2000-2001 academic year, UCD eliminated all women from the wrestling team. After the students protested to UCD administrators and filed a complaint with the Office for Civil Rights (OCR),³ UCD agreed to permit women again to participate in varsity wrestling. Their participation, however, was conditioned on their ability to beat male wrestlers in their weight class, using men's collegiate wrestling rules. (Prior to their elimination from the team, women wrestlers at UCD had competed only against other women and used international freestyle rules.) As a result of the new requirement that they compete against men under men's rules, the female students were unable to participate on the wrestling team and lost the benefits associated with varsity status, including scholarships and academic credit.

The students then filed a class action against UCD and several UCD officials in their individual and official capacities, on behalf of all current and future female UCD students denied equal athletic participation opportunities. The plaintiffs sought damages and injunctive relief under Title IX and also asserted equal protection claims under 42 U.S.C. § 1983.⁴

Just before the scheduled hearing on class certification, the plaintiffs requested a stay due to their attorney's serious illness. During the ten-month stay, Mancuso, the only named plaintiff still attending UCD at that point, graduated. As soon as the stay ended, the plaintiffs moved to add as plaintiffs three students, Kelsey Brust, Laura Ludwig, and Jessica Bulala, all still enrolled at UCD. The district court refused to allow the amendment, holding that the plaintiffs failed to meet the good cause required under Federal Rule of Civil Procedure 16 when such a motion is filed after the issuance of a scheduling order. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.1992). Without any named plaintiffs currently attending UCD, the plaintiffs stipulated to dismissal of the class claims for injunctive relief.

The district court subsequently dismissed the § 1983 claim as "subsumed" by the Title IX claim, citing Middlesex County Sewerage Authority v. National Sea Clammers Ass'n., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). The district court then granted UCD's motion for summary judgment, holding that the students were required, to perfect their claim, to give UCD notice in advance of filing suit of the alleged Title IX violation and an opportunity to cure it, and had failed to do so. The students timely appealed.

ANALYSIS

We review de novo the district court's dismissal on the pleadings pursuant to Rule 12(c), Dunlap v. Credit Protection Ass'n, L.P., 419 F.3d 1011, 1012 n. 1 (9th Cir.2005), as well as the grant of summary judgment. Avista Corp. Inc. v. Wolfe, 549 F.3d 1239, 1246 (9th Cir.2008). We review the denial of a motion to amend under Rule 16(b) for abuse of discretion. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir.2007).

Before proceeding to discuss the merits of this case, we consider whether we have jurisdiction to decide the plaintiffs' challenge to the district court's denial of their motion to add Brust, Bulala, and Ludwig as plaintiffs. We hold that this issue is moot and so beyond our jurisdiction, for the reasons we now explain.

After the district court denied the motion, Brust, Bulala, and Ludwig initiated a separate lawsuit against UCD. The district court certified a class of "all present, prospective, and future women students at UCD who seek to participate in and/or who are deterred from participating in intercollegiate athletics at UCD." Stipulated Judgment and Order at 1, Brust v. Regents of the Univ. of Cal., No. 07-1488 (E.D.Cal. Oct. 19, 2009). The parties to the Brust action reached a settlement, approved by the district court, which "resolves all class member claims for injunctive relief." Id. at 10. Moreover, Brust, Ludwig, and Bulala have now graduated from UCD. It is therefore apparent that, even if the district court had erred in denying the motion to add Brust, Ludwig, and Bulala initially, which we do not decide, they would no longer be appropriate plaintiffs in this litigation for the purposes of injunctive relief, as the current plaintiffs recognize. See Flint v. Dennison, 488 F.3d 816, 824 (9th Cir.2007) ("Generally, once a student graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief against a school's action or policy, and his case is therefore moot."); Cole v. Oroville Union High Sch., 228 F.3d 1092, 1099 (9th Cir. 2000) (holding, where the two original plaintiffs had graduated and a third, later-joined plaintiff subsequently graduated before the appeal, that all three lacked standing to seek injunctive relief).

The plaintiffs contend, however, that the Brust settlement does not preclude current female students from seeking the specific injunctive relief—not awarded as part of the Brust settlement—of restoring the women's wrestling program. That may be so; we need not decide whether it is or not. There are no current students in this case seeking that relief; no identified, current students looking to intervene in this case to seek that relief; and no identified, current students whom the plaintiffs seek to add to the case for purposes of obtaining that relief.

We therefore may not reach the merits of the claim that the district court improperly denied the motion to add new plaintiffs, as there is presently no cognizable dispute that would be affected by such a determination.⁵See, e.g., McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir.2004) (holding that a prisoner's successful habeas petition and subsequent relief rendered moot his claim for injunctive and declaratory relief under § 1983); Porter v. Jones, 319 F.3d 483, 489 (9th Cir.2003) (noting that a case or issue becomes moot when "the parties lack a legally cognizable interest in the outcome" (quotation omitted)); Di Giorgio v. Lee (In re Di Giorgio), 134 F.3d 971, 974 (9th Cir.1998) (holding that tenants' challenge to a state statute permitting their eviction was moot after they voluntarily vacated the property).

Turning to the merits of the students' damages claims, we begin by setting out the statutory and regulatory framework governing Title IX athletics cases. Title IX provides that

no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or

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