Title IX-Violating High School Loses Appeal

     (CN) – A San Diego high school must face claims that it fired the softball coach for demanding equal treatment in the girls’ sports program, the 9th Circuit ruled Friday.
     The ruling stems from a 2007 class action filed by five girls on the softball team at Castle Park High School in Chula Vista. Among other things, the girls contended that Sweetwater Union High School District discouraged girls from participating in athletics by giving boys more opportunities to play sports; gave boys better practice facilities, locker rooms and equipment; publicizing boys’ events more than girls’ events; and giving boys’ sports programs more funding.
     They also claimed the school district fired Chris Martinez, the girls’ softball coach, after two of the girls’ parents filed complaints under Title IX, the federal civil rights law that prohibits sexual discrimination in education.
     U.S. District Judge M. James Lorenz concluded      in February 2012 after a 10-day bench trial that Sweetwater had discriminated against female athletes and had retaliated against Coach Martinez in violation of Title IX.
     A three-judge panel with the 9th Circuit affirmed Friday.
     Sweetwater had claimed in its defense that the discrepancy between female and male participation in Castle Park athletics correlated to the school’s lower female enrollment generally. It also said that girls’ participation in sports was on the rise, but that Castle Park girls were not interested enough in certain sports to merit permanent teams.
     In siding with the girls Friday, the 9th Circuit highlighted that the disparity between girls’ enrollment at Castle Park and girls’ participation in sports was never less than 6.7 percent, and was often as high as 13 percent.
     As such, 47 girls could have played sports if opportunities were available to them, according to the ruling.
     Since Sweetwater could not explain why 47 girls were not enough to maintain at least one competitive team, its defense fails, the court found.
     Equal proportionality also would not help Sweetwater pass Title IX’s “effective accommodation” test because it lacks a steady history of expanding girls’ sports programs at Castle Park, the court found.
     In fact, it cut the girls’ field hockey team twice despite active interest in the sport and enough athletes to sustain a team, the ruling states.
     Sweetwater also failed to show that testimony from two of its expert witnesses – retired superintendant Peter Schiff and assistant principal Penny Parker – had been improperly excluded. Neither could support their opinions with clear, reliable methodology, according to the ruling.
     “Schiff and Parker based their proposed testimony on superficial inspections of the Castle Park facilities,” Judge Ronald Gould wrote for the court. “Even if a visual walkthrough, without more, could be enough in some cases to render expert testimony admissible under Rule 702, it certainly does not compel that conclusion in all cases. Moreover, as the district court found, Schiff and Parker’s conclusions were based on their ‘personal opinions and speculation rather than on a systematic assessment of [Castle Park’s] athletic facilities and programs.’ But personal opinion testimony is inadmissible as a matter of law under Rule 702, and speculative testimony is inherently unreliable.” (Emphasis and brackets in original.)
     As for the exclusion of 38 Sweetwater witnesses, the court found that Sweetwater improperly waited 15 months after the conclusion of discovery to disclose them.
     “The theory of disclosure under the Federal Rules of Civil Procedure is to encourage parties to try cases on the merits, not by surprise, and not by ambush,” Gould wrote.
     “That another witness has made a passing reference in a deposition to a person with knowledge or responsibilities who could conceivably be a witness does not satisfy a party’s disclosure obligations,” he added. “An adverse party should not have to guess which undisclosed witnesses may be called to testify.”
     It was neither justifiable nor harmless to spring a long list of new witnesses on the plaintiffs a mere eight months before trial, and the District Court did not abuse its discretion by excluding them, the ruling states.
     Pointing to the trial court’s finding, after reviewing some contemporaneous evidence, that improvements to the softball facilities were still inadequate, the appellate court said Sweetwater could not show an abuse of discretion.
     In light of the “systematic problem of gender inequality” still present in Castle Park’s sports programs, “an injunction based on past harm” was reasonable, Gould wrote. Sweetwater likewise could not show that the students did not have standing to bring Title IX retaliation claims for its firing of Coach Martinez.
     This argument “misunderstands plaintiffs’ claim, which asserts that Sweetwater impermissibly retaliated against them by firing Coach Martinez in response to Title IX complaints he made on [their] behalf,” Gould wrote (emphasis in original).
     After firing Martinez, Sweetwater took away the team’s assistant coaches, canceled their awards banquet and “forbade them from participating in a Las Vegas tournament attended by college recruiters,” injuries that affirm the girls’ standing, the ruling states.
     The timing of when the girls complained about sex discrimination, Coach Martinez’s firing and the canceling of the awards banquet is enough to show requisite causation, the ruling also states.
     Moreover, Sweetwater’s “shifting, inconsistent reasons” for firing Coach Martinez imply that the reasons it gave for firing him – including that he allegedly allowed an ineligible student to play and that it wanted to replace him with an on-site coach – were pretextual, and the district court correctly identified them as such, the court found.
     “We reject Sweetwater’s attempt to relitigate the merits of its case,” the ruling states. “Title IX helps level the playing field for female athletes. In implementing this important principle, the district court committed no error.” [p. 46 last graf]
     Paul Carelli IV with Stutz, Artiano, Shinoff & Holtz of San Diego argued the case for the school district.
     Elizabeth Kristen with Legal Aid Society Employment Law Center of San Francisco represented the plaintiffs, and Department of Justice attorney Erin H. Flynn, Fatima Goss Graves with the National Women’s Law Center in Washington, D.C. and Kristen Galles with Equity Legal filed amicus curiae briefs in support of the plaintiffs.
     Judge N.R. Smith and Chief U.S. District Judge Morrison England, sitting by designation from Sacramento, concurred.

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