Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 1 of 17

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UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----00000----

11 AARHUS MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI
12 CHIANG; CHRISTINE WING-SI NG; and all those similarly
13 situated,

14

Plaintiffs,

NO. CIV. S-03-2591 FCD/PAN

15

v.

MEMORANDUM AND ORDER

16 BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA
17 at DAVIS; LAWRENCE "LARRY" VANDERHOEF; GREG WARZECKA;
18 PAM GILL-FISHER; ROBERT FRANKS; and LAWRENCE SWANSON,
19 Defendants.
20
----00000----
21 This matter is before the court on defendants' motion to
22 dismiss plaintiffs' complaint pursuant to Federal Rule of Civil
23 Procedure 12(b) (6).1 Plaintiffs Arezou Mansourian
24 ("Mansourian"), Lauren Mancuso ("Mancuso"), Nancy Nien-Li Chiang
25 ("Chiang"), and Christine Wing-Si Ng ("Ng") filed this action, on
26

27

1

Because oral argument will not be of material

assistance, the court orders this matter submitted on the briefs.

28 See E.D. Cal. Local Rule 78-230(h).

1

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 2 of 17

1 behalf of themselves and an uncertified class, on December 18,

2 2003. They named as defendants the Regents of the University of

3 California (erroneously sued as the "Board of Regents of the

4 University of California at Davis") (the "University"); Lawrence

5 Vanderhoef, Chancellor of the University; Robert Franks,

6 Associate Vice Chancellor, Student Affairs; Greg Warzecka,

7 University Athletic Director; and Pam Gill-Fisher and Lawrence

8 Swanson, Associate Athletic Directors (collectively, "individual

9 defendants").

10

Plaintiffs assert six claims for relief: (1) violation of

11 Title IX by the University, only, for failure to provide female

12 athletes with the same athletic opportunities as male athletes;

13 (2) violation of Title IX by the University, only, for failure to

14 provide female athletes with the same opportunities for financial

15 assistance as male athletes; (3) retaliation in violation of

16 Title IX and its interpretive regulation by the University, only;

17 (4) violation of 42 U.S.C. § 1983 on an equal protection theory;

18 said claim is asserted against the University for injunctive

19 relief and against the individual defendants for damages; (5)

20 violation of the California Unruh Civil Rights Act by all

21 defendants; (6) violation of public policy based on various

22 California statutes by all defendants.2

23

By this motion, defendants move to dismiss (1) plaintiffs'

24 Title IX retaliation claim on the basis that there is no private

25

26

2

Plaintiffs Chiang and Ng assert each of these claims

individually. Plaintiffs Mansourian and Mancuso assert said

27 claims individually and as class representatives, except in

regard to the retaliation claim. The Title IX retaliation claim 28 is not asserted as a class claim.

2

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 3 of 17

1 right of action for retaliation under Title IX and (2)

2 plaintiffs' Title IX, Section 1983, and Unruh Act claims on the

3 basis of the statute of limitations. 3

4

For the reasons set forth below, the court DENIES

5 defendants' motion on all grounds.

6

BACKGROUND

7

Plaintiffs Mansourian, Mancuso, and Chiang4 are female

8 students at the University of California at Davis ("UCD"). They

9 participated in high school wrestling and chose to attend UCD

10 because it offered them the opportunity to participate in

11 wrestling while in college. (Compl., ~~ 9-11, 24-51.) Plaintiff

12 Ng also participated in high school wrestling and chose to attend

13 UCD in order to wrestle; however, she is no longer a student at

14 UCD. (Id. at ~~ 12, 52-58.) Plaintiffs allege that each of the

15 defendants is responsible for the discriminatory actions and

16

17

3

Defendants also initially moved to dismiss (1)

18

plaintiff Ng's claims for injunctive relief and (2) plaintiffs' Section 1983 claim for injunctive relief against the University

19

and for damages against the individual defendants in their official capacities. As to plaintiff Ng's purported claims for

injunctive relief, plaintiffs clarified in their opposition that 20 since plaintiff Ng no longer is a student at the University, she

seeks by this action only monetary damages for her lost athletic 21 benefits, lost scholarship, and related damages. This basis for

22

dismissal is therefore moot. As to plaintiffs' Section 1983 claim, the parties stipulated to the dismissal of the Section

1983 claim against the University in exchange for defendants' 23 representation that the individual defendants have authority to

provide the injunctive relief sought by plaintiffs. The parties 24 further stipulated that under Section 1983, plaintiffs seek

prospective injunctive relief against the individual defendants 25 in their official capacities and monetary damages against the

individual defendants in their personal capacities. (Stip. re 26 Mot. to Dismiss, filed April 29, 2004.)

27

4

Chiang is currently on leave from UCD but plans to

return to school in the fall. (PIs.' Opp'n, filed April 16,

28 2004, at 1 n. 1.)

3

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 4 of 17

1 decisions set forth in the complaint. (rd. at ~~ 21-22.)

2

UCD has provided athletic participation opportunities in

3 wrestling to male students for many years. rn the early 1990's

4 it began providing such opportunities to female students,

5 including a women's division in the university's annual "Aggie

6 Open" wrestling tournament. (rd. at ~~ 82-83.) Some of UCD's

7 female wrestlers went on to national and international acclaim

8 after having trained at and received the benefits of wrestling at

9 UCD. (rd. at ~~ 85-87.)

10

Plaintiffs chose to attend UCD because of that history and

11 because of the promise of opportunities to participate in

12 wrestling at UCD. (rd. at ~~ 26-29, 37-40, 45-46, 55-56.)

13 Plaintiffs Mansourian, Chiang, and Ng filled out the NCAA and UCD

14 paperwork necessary for intercollegiate athletics, completed the

15 weight certification requirements for intercollegiate wrestling,

16 and participated in UCD's wrestling program for about 2 years.

17 (rd. at ~~ 27-30, 46-50, 55-59.) As varsity wrestlers,

18 plaintiffs received benefits such as medical and athletic

19 training services, laundry services, academic tutoring services,

20 strength and conditioning coaching, wrestling coaching,

21 insurance, access to the weight room, and access to varsity

22 facilities. (rd. at ~~ 33, 51, 58.)

23

Plaintiff Mancuso was recruited to wrestle for UCD. She was

24 awarded an athletic scholarship to do so. She enrolled, filled

25 out the necessary paperwork, and received the required

26 certifications to participate in intercollegiate wrestling. (rd~

27 at ~~ 40-42.) Shortly thereafter, however, defendants eliminated

28 women from UCD's wrestling program and Mancuso was denied her

4

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 5 of 17

1 scholarship. (Id. at ~~ 59-60.)

2

During the 2000-2001 academic year, defendants eliminated

3 wrestling athletic participation opportunities for female, but

4 not male, students (the "No Females Directive"). (Id. at ~~ 60-

5 62.) Plaintiffs and then-wrestling coach Michael Burch protested

6 this decision. Plaintiffs met with and/or complained to

7 defendants, asserting that the No Females Directive constituted

8 illegal sex discrimination. Defendants ignored the complaints.

9 (Id. at ~~ 63-69.) Plaintiffs filed a complaint with the Office

10 for Civil Rights of the United States Department of Education

11 ("OCR") in the Spring of 2001. (Id. at ~ 67.) Defendants later

12 agreed to rescind the "No Females Directive" and to allow women

13 to participate in wrestling. (Id. at ~ 70-74.)

14

Plaintiffs, including newcomer Mancuso, enrolled at UCD for

15 the 2001-2002 academic year in reliance upon defendants' promised

16 reinstatement of female wrestling participation opportunities.

17 They filled out their NCAA and UCD eligibility paperwork,

18 completed the weight certification requirements for varsity

19 wrestling, and were deemed eligible. (Id. at ~ 75.)

20 Unfortunately, plaintiffs returned to a wrestling team with a new

21 coach who did not support women wrestlers and failed to coach

22 them or treat them like the male wrestlers. (Id. at ~~ 75-76.)

23 Defendants informed plaintiffs that to participate in wrestling

24 they would have to be part of a mixed gender team and would have

25 to beat the men at their weight class under men's collegiate-

26 style rules, even though the women had previously only

27 participated as part of a women's wrestling program (not a mixed

28 gender team) using international freestyle wrestling rules. (Id.

5

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 6 of 17

1 at ~ 77.) Plaintiffs again complained, but defendants refused

2 and continue to refuse to remedy the situation and to provide

3 them with women's wrestling opportunities. (rd. at ~~ 75-79.)

4 As a result, to date, no women are allowed to participate in UCD

5 wrestling. (rd.)

6

As current UCD students who are currently being denied equal

7 educational benefits, plaintiffs Mansourian, Mancuso, and Chiang

8 seek an injunction requiring defendants to increase athletic

9 participation and scholarship opportunities for female students,

10 specifically in the sport of wrestling. (rd. at ~~ 32-33, 42,

11 51, 120-123.) Because UCD wrestling participates at the NCCA

12 Division r level with nationwide recruitment and scholarships,

13 plaintiffs allege that defendants could recruit and maintain a

14 full women's wrestling team now and in the future. (rd. at ~~

15 80-81, 125-135.) Plaintiffs, including plaintiff Ng, also seek

16 monetary and punitive damages for defendants' denial of these

17 educational benefits, lost scholarship money, and the

18 humiliation, emotional distress and related harm caused by

19 defendants' sex discrimination. (rd. at 55-56.)

20

STANDARD

21

On a motion to dismiss under Federal Rule of Civil Procedure

22 12(b) (6), the allegations of the complaint must be accepted as

23 true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is

24 bound to give the plaintiff the benefit of every reasonable

25 inference to be drawn from the "well-pleaded" allegations of the

26 complaint. Retail Clerks rnt'l Ass'n v. Schermerhorn, 373 U.S.

27 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily

28 plead a particular fact if that fact is a reasonable inference

6

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 7 of 17

1 from facts properly alleged. See ide

2

Given that the complaint is construed favorably to the

3 pleader, the court may not dismiss the complaint for failure to 4 state a claim unless it appears beyond a doubt that the plaintiff 5 can prove no set of facts in support of the claim which would 6 entitle him or her to relief. Conley V. Gibson, 355 U.S. 41, 45 7 (1957). In ruling upon a motion to dismiss, the court may 8 consider only the complaint, any exhibits thereto, and matters

9 which may be judicially noticed pursuant to Federal Rule of

10 Evidence 201. 5 See Mir V. Little Co. Of Mary Hospital, 844 F.2d

11 646, 649 (9th Cir. 1988).

12

ANALYSIS

13

A. Title IX Retaliation Claim

14

The question of whether Title IX provides a private right of

15 action for retaliation is an issue of first impression in the 16 Ninth Circuit. However, on March 16, 2004, this court issued an 17 order in the case of Burch, et ale V. Board of Regents of the 18

19

5

Rule 201 permits a court to take judicial notice of an

adjudicative fact "not subject to reasonable dispute," in that

20 the fact is either "(1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and

21 ready determination by resort to sources whose accuracy cannot

reasonably be questioned." Fed. R. Evid. 201(b). The court can

22 take judicial notice of matters of public record, such as

pleadings in another action and records and reports of

23 administrative bodies. Emrich V. Touche Ross & Co., 846 F.2d

1190, 1198 (9th Cir. 1988). Here, the existence of plaintiffs'

24 OCR complaints may be judicially noticed by this court. See

~, Pavone V. Citicorp Credit Services, 60 F. Supp. 2d 1040,

25 1045 (S.D. Cal. 1997). The truth of the allegations contained

therein, however, is not subject to judicial notice. See

26 Southern Cross Overseas Agencies, Inc. V. Wah Kwong Shipping

Group Ltd., 181 F.3d 410, 427 (3d Cir. 1999). Plaintiffs'

27 objection to defendants' request for judicial notice is therefore

OVERRULED, although reliance on said evidence is not necessary to

28 the decision on the instant motion. (Pls.'s Opp'n to Jud. Not.

Req., filed April 19, 2004.)

7

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 8 of 17

1 University of California at Davis, et al., Civ. No. S-04-0038

2 WBS/GGH, wherein Judge Shubb found that Title IX provides a

3 private right of action for retaliation. 6 (Mem. & Order, filed

4 March 16, 2004, denying defendants' motion to dismiss.) The

5 court finds no basis to depart from that order herein; the issue

6 before Judge Shubb was precisely the same as the issue in this

7 case, and the court finds Judge Shubb's reasoning and analysis

8 throuough and persuasive. (Id.) Accordingly, it does not repeat

9 that analysis here but rather adopts the order in full, applying

10 it to the instant case to deny defendants' motion to dismiss

11 plaintiffs' Title IX retaliation claim.

12

As Judge Shubb made clear, while Alexander v. Sandoval, 532

13 U.s. 275 (2001) may inform this court's decision on the matter,

14 it does not require a finding of no private right of action for

15 retaliation. Alexander did not consider the question of whether

16 retaliation was within the scope of Title IX's prohibition of

17 intentional discrimination. In answering this question

18 affirmatively, Judge Shubb correctly relied on the case of Peters 19 v. Jenney, 327 F.3d 307 (4 th Cir. 2003) (finding a private right

20 of action for retaliation under Title VI). This court agrees

21 that the Fourth Circuit's opinion on this issue is more

22 persuasive than the Eleventh Circuit's opinion in Jackson v.

23

24

6

The plaintiff in that case, Michael Burch, was the

former UCD wrestling coach; Burch alleges he was terminated for

25 supporting plaintiffs' desire to participate in varsity

wrestling. Burch alleges violations of Title IX and the First

26 Amendment. He sues the same defendants as plaintiffs herein.

Although both cases raise a similar legal issue of retaliation

27 under Title IX, due to the factual dissimilarities of the cases

and the class action component of this case, this court declined

28 to formally relate the cases under Local Rule 83-123. (NonRelated Case Order, filed Feb. 2, 2004.)

8

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 9 of 17

1 Birmingham Bd. of Educ., 309 F.3d 1333 (11 th Cir. 2002), the only

2 other circuit court to address the issue. The Eleventh Circuit

3 did not adequately consider the possibility that the anti-

4 retaliation regulation simply applies Title IX's statutory ban on

5 intentional discrimination. Finally, in reaching the decision to

6 apply Judge Shubb's order in Burch, the court finds particularly

7 important Supreme Court decisions which have interpreted

8 statutory prohibitions of discrimination to ban retaliation as

9 well. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

10 (1969); Perry v. Sindermann, 408 U.S. 593 (1972).

11

For all the reasons set forth above and in the Burch order,

12 the court denies defendants' motion to dismiss plaintiffs' Title

13 IX retaliation claim.

14

B. Statute of Limitations

15

1. Title IX

16

Defendants seek to dismiss plaintiffs' Title IX claims,

17 including plaintiffs' Title IX retaliation claim, on the basis of

18 the statute of limitations. Title IX, 20 U.S.C. § 1681 et seq.,

19 does not specify a limitations period. When Congress fails to

20 specify a statute of limitations for a federal claim for relief,

21 courts are to apply the most closely analogous statute of

22 limitations under state law. Reed v. United Transp. Union, 488

23 U.S. 319, 323 (1989). The Ninth Circuit has not considered the

24 issue under Title IX; however, the other federal appellate courts

25 that have considered the issue are in accord that a Title IX

26 claim is most closely analogous to a common law action for

27 personal injury. Doe v. Howe Military School, 227 F.3d 981, 987

28 (7 th Cir. 2000); M.H.D. v. Westminster Schools, 172 F.3d 797, 803

9

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 10 of 17

1 (11 th Cir. 1999) i Lillard v. Shelby County Bd. of Educ., 76 F.3d

2 716, 729 (6th Cir. 1996) i Egerdahl v. Hibbing Community College,

3 72 F.3d 615, 618 (8 th Cir. 1995) i Bougher v. University of 4 Pittsburgh, 882 F.2d 74, 77-78 (3 rd Cir. 1989). Moreover, in

5 Taylor v. Regents of the University of California, 993 F.2d 710,

6 712 (9 th Cir. 1993), the Ninth Circuit came to the same

7 conclusion with respect to a Title VI claim. In light of this

8 authority, and the fact that Title IX is to be construed

9 consistently with Title VI,7 the court applies California's

10 statute of limitations for personal injury actions to plaintiffs'

11 Title IX claims. 8

12

In California, an aggrieved party must commence an action

13 for personal injury caused by an alleged wrongful act or neglect

14 within two years of the act. Cal. Code Civ. Proc. § 335.1. The

15 two-year limitations period is a recent development. Before

16 2003, the limitations period for personal injury claims was one 17 year. Cal. Code Civ. Proc. § 340(3), repealed. Section 335.1

18 became effective January 1, 2003. This recent amendment impacts

19 this case, which was filed December 18, 2003. 20

21

7

Since Title IX has identical statutory language to

22 Title VI, except for the substitution of the word "sex" in Title

IX to replace the words "race, color, or national origin" in

23 Title VI, the Supreme Court has interpreted both statutes

interchangeably. Cannon v. University of Chicago, 441 U.S. 677,

24 694-99 (1979).

25

8

Plaintiffs' argument to the contrary, based on one

Northern District of California decision, is unavailing. Kramer

26 v. Regents of the University of California, 81 F. Supp. 2d 972

(N.D. Cal. 1999) (applying California's three-year statute of

27 limitations for actions "upon a liability created by statute" to

ADA and Rehabilitation Act claims). In the Title IX context, it

28 is contrary to the weight of the authority described above, most

particularly Taylor.

10

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 11 of 17

1

A legislative extension of the statute of limitations period

2 will extend the limitations period of an actionable claim if the

3 extension occurs before the claim for relief becomes time barred

4 under the old limitations period. Douglas Aircraft Co. v.

5 Cranston, 58 Cal. 2d 462, 465 (1962). On the other hand, once a

6 claim is time barred it will not be revived by the extension to

7 the applicable limitations period unless the legislature

8 expressly declared that the amendment of the limitations period

9 applied retroactively. Bartman v. Estate of Bartman, 83 Cal.

10 App. 3d 780, 787-78 (1978). Such an expression of retroactivity

11 was made here only for victims of the terrorist attacks of

12 September 11. Cal. Code Civ. Proc. § 340.10(b).

13

Defendants argue that plaintiffs' Title IX claims are based

14 on events beginning in the Fall of 2000, when the "No Females 15 DirectiveH was issued and ending, at the latest, in the Fall of

16 2001, when after their initial OCR complaint was resolved,

17 plaintiffs were placed back on the team but under different

18 conditions--conditions that plaintiffs' allege prevented them

19 from participating in wrestling. 9 The statute of limitations

20 then in effect was one year, and defendants thus argue

21 plaintiffs' claims were required to be filed no later than the

22 Fall of 2002.

23

24

9

Specifically with respect to plaintiffs' retaliation

claim, defendants contend plaintiffs have alleged four

25

"retaliatoryH acts, the last of 2001: (1) defendants instituted

whic the

h o "No

ccurred Females

in D

itrheectiFvaelHl

of in

the

26

Fall of the "No

2000; (2) the Females Direc

tUivneiHveirnsitthye

reneg Fall

ed of

on the 2001;

promise (3) the

to

remedy

27 University allowed the female wrestlers a chance to wrestle

against the male wrestlers for a position on the men's wrestling

28 team in the Fall of 2001; and (4) the University did not renew

Michael Burch's contract in mid-2001.

11

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 12 of 17

1

Defendants' argument ignores other allegations of

2 plaintiffs' complaint. Plaintiffs Mansourian, Mancuso, and

3 Chiang are current UCD students who are currently being subjected

4 to defendants' allegedly sex discriminatory practices. (Compl., 5 ~~ 9-11, 22, 85-86, 88, 89.) As UCD students, their claims

6 accrue each and every day they are denied equal access to 7 athletic participation and scholarship opportunities. (rd. at ~~

8 22, 66, 88-89. 133, 159.) At the time plaintiffs' filed the

9 instant complaint, plaintiffs allege they should have been

10 wrestling for ueD and receiving all the varsity benefits and

11 scholarships provided to male wrestlers but defendants refused, 12 and continue to refuse, to date, to allow their participation. 1o 13 (rd. at ~~ 9-12, 32, 42, 66, 88-89.) They have thus stated facts

14 sufficient to withstand a motion to dismiss, regardless of what

15 statute of limitations applies (one or two year) .

16

As plaintiffs acknowledge, plaintiff Ng presents a slightly

17 different situation since she is no longer a UCD student.

18 Similar to plaintiffs Mansourian, Mancuso, and Chiang, plaintiff

19 Ng alleges that each and every day she attended ueD she was

20 entitled to the same access to athletic participation and

21 scholarship opportunities in wrestling as the male students.

22 Plaintiffs thus argue that the statute of limitations on Ng's

23 claims did not begin to run until she left ueD. However, the

24 complaint does not allege when she left ueD. 25

26 10 As to the retaliation claim in particular, plaintiffs
27 allege defendants retaliated against them and continue to retaliate against them by, among the other things set forth in
28 footnote 9, continuing to refuse and failing to treat female athletes, especially wrestlers, equitably. (rd. at ~~ 147-160.)

12

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 13 of 17

1

Failure to allege said date is not fatal to plaintiff Ng's

2 claims. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9 th

3 Cir. 1980) (dismissal based upon statute of limitations proper

4 only if complaint, read with the required liberality, makes it

5 impossible for plaintiff to claim any set of facts that would

6 make her claim timely). It is possible given the facts alleged

7 in the complaint, that plaintiff Ng left UCD within the

8 applicable statute of limitations. Because the court must accept

9 the facts stated in the complaint as true, and must construe them

10 in favor of Ng, the court must likewise deny the motion to

11 dismiss as to her since there is a set of facts in which her

12 claim would survive. 11 Certainly if it is later discovered

13 during discovery that plaintiff Ng left UCD outside the statute

14 of limitations period, defendants can seek dismissal by a motion

15 for summary judgment.

16

With respect to the above findings, the court makes a final

17 point of clarification in light of the briefing submitted on the

18 motion. While the court finds that plaintiffs' Title IX claims

19 survive a motion to dismiss under Rule 12(b) (6), the court does

20 not determine herein whether any portion of said claims is

21 otherwise barred by the applicable statute of limitations. See

22 National Passenger Railroad Corp. v. Morgan, 536 U.S. 101 (2002)

23 (defining the "continuing violations" doctrine under Title 24

25

26

27

11 Because the court reaches this finding, it does not

consider plaintiffs' alternative argument regarding equitable

28 tolling during the OCR investigation.

13

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 14 of 17

1 VII) .12 Under Morgan, defendants argue that certain discrete

2 acts of discrimination and/or retaliation alleged by plaintiffs

3 in the complaint are not actionable because they are barred by

4 the statute of limitations; to the contrary, plaintiffs contend

5 that Morgan is inapplicable to Title IX, and even if it did

6 apply, the Court in Morgan specifically excepted from its

7 analysis "policy and practice" cases such as this one. These

8 arguments should be addressed on a motion for summary judgment.

9 The court only notes herein that nothing in this order prevents

10 defendants from raising these arguments in a motion for summary

11 judgment.

12

2 .

Section 1983 & Unruh Act Claims

13

The parties do not dispute that the applicable statute of

14 limitations for plaintiffs' Section 1983 claim is California's

15 personal injury statute of limitations described above, albeit

16 one-year before January 1, 2003, and two-years thereafter.

17 Wilson v. Garcia, 471 U.S. 261 (1985). As to plaintiffs' Unruh

18 Act claim, however, the parties dispute the applicable statute of

19 limitations. The court applies California law and finds that

20 California's personal injury statute of limitations likewise

21 applies to plaintiffs' Unruh Act claims. Gatto v. County of 22

23

12 Morgan overruled previous Ninth Circuit authority

holding that, if a discriminatory act took place within the

24 limitations period and that act was "related and similar to" acts

that took place outside the limitations period, all the related

25 acts, including the earlier acts, were actionable as part of a

continuing violation. In Morgan, the Court held to the contrary

26 that "discrete discriminatory acts are not actionable if time

barred, even when they are related to acts alleged in timely

27 filed charges." RK Ventures, Inc. v. City of Seattle, 307 F.3d

1045, 1061 (9 th Cir. 2003) (quoting Morgan, 122 S. Ct. at 2072) .

28 Rather, the statute of limitations begins to run from each

discrete act.

14

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 15 of 17

1 Sonoma, 98 Cal. App. 4th 744, 760 (2002) (acknowledging that all

2 Unruh Act violations do not necessarily have the same limitations

3 period, but finding that civil rights torts analogous to personal

4 injury claims are governed by the then one-year personal injury

5 limitations period); accord West Shield Investigations & Security

6 Consultants v. Superior Court, 82 Cal. App. 4th 935, 951-52

7 (2000). The court recognizes that the Ninth Circuit has

8 indicated in Olympic Club v. Those Interested Underwriters at 9 Lloyd's London, 991 F.2d 497, 502 n. 11 (9 th Cir. 1993) that

10 California's three-year statute of limitations for actions "upon

11 a liability created by statute" (Cal. Code Civ. Proc. § 338(a))

12 applies to Unruh Act claims; however, said finding was dicta and

13 made in a footnote without analysis. Later state court decisions

14 addressing the issue have expressly rejected Olympic Club and

15 held that the limitations period is generally one year (now two

16 years) for civil rights torts under the Unruh Act.l3 See Gatto,

17 98 Cal. App. 4th at 760. Moreover, the court notes, in light of

18 its finding with respect to plaintiffs' Title IX claims, a

19 consistent statute of limitations should apply to plaintiffs'

20 Unruh Act claims since they are based on the same operable facts.

21

Thus, for the same reasons as set forth above, defendants'

22 motion to dismiss plaintiffs' Section 1983 and Unruh Act claims

23 is denied; plaintiffs' allegations, described above, sufficiently

24 state facts within the applicable statute of limitations (one or
25

26 13 The court is not bound to follow other district court
27 decisions which have cited Olympic Club and applied California's three-year statute of limitations to the Unruh Act. See Kramer,
28 81 F. Supp. 2d at 977-78; Ind. Housing Servs. v. Fillmore Center Assocs., 840 F. Supp. 1328, 1359 (N.D. Cal. 1993).

15

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 16 of 17

1 two years) to sustain claims under Section 1983 and the Unruh

2 Act.

3

CONCLUSION

4

For the foregoing reasons, defendants' motion to dismiss

5 plaintiffs' complaint is DENIED.

6

IT IS SO ORDERED.

7 DATED: May ~ 2004

8

9

FRANK C. DAMRELL, Jr.

10

UNITED STATES DISTRICT JUDGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

Case 2:03-cv-02591-FCD-EFB Document 25 Filed 05/06/04 Page 17 odfa1w7 United States District Court for the
Eastern District of California May 6, 2004
* * CERTIFICATE OF SERVICE * *
2:03-cv-02591
Mansourian v.
Regents Davis

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on May 6, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Kristen Marie Galles Law Offices of Kristen Galles Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301
Nancy Joan Sheehan Porter Scott Weiberg and Delehant PO Box 255428 350 University Avenue Suite 200 Sacramento, CA 95865

MP/FCD

Jack L. Wagner, Clerk

BY:~

D pu

er

 
 Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 1 of 15

1 KRISTEN GALLES Cal. Bar No. 148740
2 EQUITY LEGAL 10 ROSECREST AVENUE
3 ALEXANDRIA, VA 22301 (703) 683-4491
4

5 UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

[Sacramento Division]

7

8

)

AREZOU MANSOURIAN; LAUREN MANCUSO; )

9 NANCY NIEN-LI CHIANG; CHRISTINE

)

WING-SI NG; and all those

)

10 similarly situated,

)

)

11

Plaintiffs)

)

12 v.

)

)

13 BOARD OF REGENTS OF THE UNIVERSITY)

of CALIFORNIA at DAVIS; LAWRENCE )

14 "LARRY" VANDERHOEF; GREG WARZECKA; )

PAM GILL-FISHER; ROBERT FRANKS;

)

15 and LAWRENCE SWANSON,

)

)

16

Defendants.)

17 -------------------------------)

Case No. S-03-259l-FCD-P
PLAINTIFFS' BRIEF IN SUPPORT OF CLASS CERTIFICATION

18

Plaintiffs Arezou Mansouriau, Nancy Chiang, and Lauren Mancuso, on behalf of

19 themselves and all those similarly situated ("Class Plaintiffs"), respectfully submit this brief in

20 support of the class action complaint they filed in December, 2003, and in support of the

21 motion for class certification filed herewith pursuant to Federal Rule of Civil Procedure 23.

22

FACTS

23

This case is about sex discrimination in the intercollegiate athletic program at the

24 University of California at Davis ("UCD"). Defendants provide male students with substantially

25 more opportunities to participate in varsity intercollegiate athletics than they provide to female

26 students. Defendants also provide some sports for males but not females even though there are

27 females who want to participate (e.g., wrestling). By discriminating against females in this way,

28 Defendants deny them equal opportunity to participate in intercollegiate athletics, to receive

1

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 2 of 15

1 athletic financial assistance, and to receive all the benefits commensurate with such athletic 2 participation (e.g., preferred admissions, priority registration, coaching, tutoring, access to 3 facilities, weight and conditioning training, medical services, equipment, transportation,

4 competition scheduling, etc.).

5

Named plaintiffs Arezou Mansourian, Lauren Mancuso, and Nancy Chiang are, or at all

6 times relevant herein, were female students at UCD who sought but were denied the opportunity to

7 participate in varsity intercollegiate athletics and to receive athletic financial assistance. More

8 particularly, Plaintiffs participated in the varsity wrestling program at UCD until Defendants

9 eliminated women but not men from the program.' Despite numerous complaints and public

10 protests, Defendants continue to refuse to reinstate a women's wrestling program. See

11 accompanying declarations.

12

There are many other prospective and future UCD female students who participate in

13 women's wrestling in California and elsewhere. There are more than 1,000 females who

14 participate on boys' high school wrestling teams in California alone. Ex. A. There are even more

15 females who participate on girls' high school and club wrestling teams. Others participate as

16 individuals in open meets as part of USAWrestling, the United States Girls' Wrestling Association

17 the California Women's Wrestling Association, and other groups. Even after Defendants quite

18 publicly eliminated the women's wrestling program and eliminated the women's division of the

19 UCD Aggie Open wrestling tournament, women continued to seek wrestling opportunities at UCD

20 Ex. B, Deposition of new wrestling coach Le1111ie Zalesky at pp. 24-28.. Although it is not possibl

21 to determine exactly how many of these females would apply to UCD ifit offered women's

22 wrestling, given the small number of college opportunities available to women, it is likely that the

23 vast majority of them would do so. Most, ifnot all, are deterred from applying or enrolling so Ion

24 as UCD fails to offer it. Certainly, none will be recruited to wrestle at UCD so long as UCD fails

25

26 ,/
27 28

Named plaintiff Christine Ng also participated in wrestling at UCD and was also denied equal opportunity when Defendants eliminated women's wrestling, but she graduated shOlily before the filing of this action. Thus, she is not proposed as a class representative. Complaint,-r,-r 12, 52-58.

2

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 3 of 15

I to provide the opportunity.

2

Defendants also fail and refuse to provide athletic participation and scholarship

3 opportunities for females in other sports, even though there are females who have the interest and

4 ability to participate in such varsity intercollegiate sports as wrestling, bowling, field hockey, and

5 rugby. Five years of UCD club sport rosters produced by Defendants indicate that hundreds of

6 UCD female students participate in these sports at the club level each and every year even without

7 recruiting, without scholarships, and without varsity benefits:

8

10-15 females

9

10-47 females

10

10-24 females

II

70-90 females

12

15-30 females

13

15-34 females

14

Horse Polo = 10-39 females

15

Rugby

54-62 females

16

Skating

II-IS females

17

Skiing

= 10-25 females

18 See UCD club sport rosters for 2000-2001 through 2004-2005 at Exs. C-G. See also UCD

19 women's bowling rosters at Ex. H. Female students have participated in some of these clubs for

20 more than 30 years. Many have formally requested varsity status without success. See sample

21 portions of varsity sport proposals at Exs. I (bowling), J (field hockey), K (rugby), L (horse polo).

22

These club sport athletes, unlike varsity athletes, must fund their own sports, hire their own

23 coaches, arrange their own schedules, find practice and competition facilities, and pay for their

24 own transportation. Defendants do not provide them with any of the benefits of varsity status or

25 with athletic scholarships. The fact that these women's club teanlS have existed for so long

26 without any of these benefits, each year attracting new students, confirms the high level of interest

27 that UCD's female students have in participating in these sports. They want to play so badly that

28 they are willing to pay to do it rather than be paid (via scholarships). Yet, Defendants continue to

3

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 4 of 15

1 deny them opportunity to do so on a varsity level.

2

Many prospective and future UCD female students throughout California and elsewhere

3 also participate in these sports. There are more than 5,000 who participate on ClF-sanctioned high

4 school teams and still more who participate on club teams and as individuals, including 4500 in

5 badminton, over 2900 in field hockey, and 432 in skiing. Ex. A. All of these females are or will

6 be denied the opportunity to participate in these sports at UCD unless and until Defendants are

7 ordered to increase the number of female athletic participation opportunities in order to achieve

8 gender equity.

9

More than 11,000 female undergraduates attend ucn every year, about 56% of the total

10 undergraduate population. But Defendants provide them with less than 400 varsity athletic

II opportunities. Thus, there is a huge untapped pool of females who are denied the opportunity to

12 participate in athletics or to receive athletic scholarships and who receive the message of second

13 class status that discrimination against them and their female classmates sends. Ex. M (enrollment

14 and participation numbers from recent UCD disclosures under the Equity in Athletics Disclosure

15 Act; Defendants have not yet produced the EADA form for 2004-2005).

16

So long as Defendants continue to fail and refuse to provide females with equal opportuni

17 to participate in athletics, to receive athletic financial assistance, and to receive the benefits

18 commensurate therewith, they will continue to violate Title IX of the Education Amendments of

19 1972 (20 U.S.C. 1621 et seq.), the Equal Protection Clause of the Fourteenth Amendment to the

20 U.S. Constitution (as enforced through 42 U.S.C. 1983), and various California state laws.

21

Plaintiffs filed this class action in order to remedy this sex discrimination against

22 themselves and the proposed class of current, prospective, future, and deterred female students wh

23 are denied equal opportunity in athletics. On behalf of the class and themselves, they seek

24 declaratory relief that identifies Defendants' discriminatory actions and injunctive relief that

25 requires Defendants to increase athletic participation and scholarship opportunities for women by

26 adding women's varsity sports, including wrestling. On behalf of themselves only, the named

27 plaintiffs seek incidental monetary damages associated with tile elimination of their own athletic 28 participation and scholarship opportunities. Complaint ~~ 32-33, 42, 51, 120-123.

4

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 5 of 15

1

CLASS DEFINITION

2

Class Plaintiffs request certification of the following propsed class:

3

All current, prospective, and future female students at the University

of California-Davis ("UCD") who are denied, and all females who

4

are deterred from enrolling at UCD because they would be denied, an

equal opportunity to participate in varsity intercollegiate athletics

5

and/or to receive athletic financial assistance because of their sex.

6

This definition includes females who want to participate in a varsity intercollegiate sport

7 but are denied the OpportUllity to do so because Defendants do not offer their sport(s) for women.

8

Certification of such classes in Title IX athletics cases is common, because the

9 discrimination itself is class-based - especially in sex-segregated programs such as athletics in

10 which males and females do not compete for the same opportunities. Cohen v. Brown Univ., 991

1J F.2d 888, 893 (lst Cir. 1993)(class of "all present and future Brown University women students

12 and potential students who participate, seek to participate, and/or are deterred from participating in

13 intercollegiate athletics funded by Brown"). Favia v. Indiana University of Pennsylvania, 7 F.3d

14 332,335-36 (3rd Cir. 1993) (class of "all present and future women students at LU.P. who

15 participate, seek to participate, or are deterred from participating in intercollegiate athletics at the

16 University"); Haffer v. Temple Univ., 678 F. Supp. 517, 521 (E.D. Pa. I 987)(class of "all current

17 women students at Temple University who participate, or who are or have been deterred from

18 participating because of sex discrimination in Temple's intercollegiate athletic program. "); Bouche

19 v. Syracuse University, 164 FJd 113 (2nd Cir. 1999); Paton v. New Mexico Highlands University,

20 275 F.3d 1274 (loth Cir. 2002); Ridgeway v. Montana High School Ass'n, 633 F. Supp. 1564,156

21 (D. Mont. 1986), affd 858 F.2d 579 (9th Cir. 1988); Bucha v. Illinois High School Ass'n, 351 F.

22 Supp. 69 (ND. Ill. 1982); Leffel v. Wisconsin Inter-scholastic Athletic Ass'n, 444 F. Supp. 1117,

23 1119 (E.D. Wis.1978); Communities for Equity v. Michigan High School Athletic Association,

24 192 F.RD. 568 (W.D.Mich. 1999).

25

CLASS PLAINTIFFS

26

Named plaintiff Lauren Mancuso is a female student at UCD. She participated in wrestlin

27 in high school and eurolled at UCD for the purpose of participating in varsity wrestling. She did s

28 until Defendants eliminated women from the program. She complained about Defendants'

5

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 6 of 15

I elimination of women from the program and Defendants' withdrawal of her athletic financial

2 assistance. She still seeks reinstatement of women's wrestling and elimination of Defendants'

3 discrimination against females in the UCD athletic program. See accompanying Declaration of

4 Lauren Mancuso.

5

Named plaintiff Arezou Mansourian was a female student at UCD at the time she filed this

6 class action complaint, at the time she provided Defendants with notice of the class action, and at

7 all times relevant herein. She also participated in wrestling .in high school and also emolled at

8 UCD for the purpose of participating in varsity wrestling. She did so until Defendants eliminated

9 women from the program. She also complained about Defendant' elimination of women from the

10 program and Defendants' withdrawal of her athletic financial assistance. She also seeks

II reinstatement of women's wrestling and elimination of Defendants' discrimination against females

12 in the UCD athletic program. See accompanying Declaration of Arezou Mansourian.

13

Named plaintiff Nancy Chiang was a female student at UCD and participated in varsity

14 wrestling until Defendants eliminated women from the wrestling program. She left UCD when it

IS eliminated women's wrestling. She now takes classes part time at Sacramento City College, but

16 she would return to UCD and participate in women's wrestling if Defendants reinstated the 17 program.

18

Plaintiffs filed this class action in December, 2003. They sought to file a motion for class

19 certification in the spring of 2004, but entered into an agreement with Defendants to delay doing s

20 until Defendants could engage in discovery, including depositions of the named plaintiffs.

21 Accordingly, Plaintiffs instead filed a notice of class action status to further preserve their rights.

22 By the time of the hearing on this matter, Defendants will have completed all such depositions.

23

ARGUMENT

24

The COUli should certifY the proposed class because Class Plaintiffs meet the requirements

25 ofFRCP 23(a) and (b)(2). Hanlon v. Chrysler Corp., ISO F.3d 1011, 1020,1022 (9th Cir. 1998)

26 (class must satisfY all four requirements of23(a) but only one of the requirements of23(b)); 27 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001 )(class of prisoners and parolees who sought

28 injunction to fix ADA violations). Class action status is necessary to effectively remedy

6

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 7 of 15

1 Defendants' ongoing discrimination against female students and to ensure that UCD offers more

2 equitable athletic participation and scholarship opportunities for females.

3

Courts liberally apply Rule 23 in recognition of the public policy favoring class actions to

4 police wrongdoing. Schwartz v. Harp, 108 F.R.D. 279, 281 (C.D.Cal. 1985), citing Blackie v. 5 Barrack, 524 F.2d 891, 903 (9th Cir. 1975), cert. denied 429 U.S. 816 (1976). Accordingly,

6 any doubts about whether a class should be certified must be resolved in favor of certification.

7 Slaven v. BP America, Inc., 190 F.R.D. 649, 651 (C.D.Cal. 2000), citing 4 Newberg on Class

8 Actions §7540 (3'd ed. 1992).

9

A. THE PROPOSED CLASS SATISFIES THE FOUR REOIDREMENTS OF

RULE 23(a)

10

11

Rule 23(a) provides that a proposed class must satisfY four requirements:

12

re One or more members of a class may sue or sued as representative

parties on behalf of all only if (1) the class is so numerous that joinder

13

of all members is impracticable, (2) there are questions of law or fact

common to the class, (3) the claims or defenses of the representative

14

parties are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests

15

ofthe class.

16 The proposed class satisfies all these requirements.

17

1. The proposed class is numerous and joinder of all class members is

impracticable

18

19

The proposed class is too numerous for joinder. As set forth above, it includes hundreds 0

20 current female students and thousands of prospective and future female students. A common

21 sense assessment of the number of females who participate or want to participate in sports not

22 offered for women at UCD confirms the impracticability ofjoinder. Moeller v. Taco Bell Corp.,

23 220 F.R.D. 604, 608 (N.D.Cal. 2004)(census data often used to estimate class size), citing

24 Newberg on Class Actions, §3:3 (4th Ed.2002); Perez-Funez v. District Director, 611 F.Supp. 990,

25 995 (C.D. Cal. 1984) (reasonable, conunon sense inferences of class size are sufficient); Orantes-

26

27

28

7

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 8 of 15

1 Hernandez v. Smith, 541 F.Supp. 351, 370 (C.D.Cal. 1982).2

2

Even ifthe numbers were not so large, the inclusion of prospective, future, and deterred3

3 female students also makes joinder impracticable. Jordan v. Connty of Los Angeles, 669 F.2d 4 1311,1319 (9th Cir. 1982), vacated on other gronnds 459 U.S. 810 (1982); LaDuke v. Nelson, 762 5 F.2d 1318 (9th Cir. 1985)(class of current and future migrant worker residents); Jones v. Shalala, 6 6 F.3d 510 (9th Cir. 1995); Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000); Probe v. Stat 7 Teachers' Retirement System, 780 F.2d 776,780 (9th Cir. 1986)(future teachers), citing 7A Wright 8 Miller, & Kane, Fed. Prac. Proc. §1760; Nat'! Ass'n of Radiation Survivors v. Walters, 111 F.R.D.

9 595, 599 (N.D.Cal. 1986)("Radiation Survivors")("'where the class includes unnamed, nnknown

10 future members, joinder of such nnknown individuals is impracticable and the numerosity 11 requirement is therefore met,' regardless of class size."); Ballard v. Equifax Check Services, Inc.,

12 186 F.R.D. 589 (E.D.Cal. 1999)(1. Damrell)(class included future victims of offending debt 13 collections practices).4

14 15 21 16 17 31 18 19 20 21 22 23 24 41 25 26 27 28

Moreover, the requirement is that joinder be impracticable, not impossible. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909,913-914 (9th Cir. 1964).
Because UCD fails to offers varsity sports like women's wrestling, bowling, field hockey, rugby, etc., females who want to participate in these sports are deterred from enrolling at or even applying to UCD, Pickern v. Holiday Ouality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002)(class included disabled persons who were deterred from patronizing store because of discrimination); Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991)(class included all females who took and all females who were deterred from taking the sergeant exam because it was discriminatory); Domingo v. New England Fish Co., 727 F.2d 1429, 1442 (9th Cir. 1984); Guzman v. Oxnard Lemon Assoc., 1992 WL 510094 (C.D.Cal. 1994) (class included future and deterred female job applicants; "by definition, such members are unknown and cannot be readily identified. By definition, such members are impracticable to join.").
See also Aiken v. Obledo, 442 F.Supp. 628 (E.D.Cal. 1977)(class included future applicants for food stamps); Doe v. Los Angeles Unified School Dist., 48 F.Supp.2d 1233 (C.D.Cal. 1999) (class of current and future limited English proficiency students); Littledove v. JBC & Associates. Inc., 2001 WL 42199 (E.D.Cal. 2001)(class included future recipients of debt collection letter); Cervantez v. Sullivan, 719 F.Supp. 899 (E.D.Cal. 1989)(class included future SSI beneficiaries); Valdivia v. California Dept. of Health Services, 1991 WL 80896 (E.D.Cal. 1991)(class included future residents of nursing home sued for failure to comply with federal nursing home reform law);

8

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 9 of 15

1

The inherently fluctuating nature the class, as each group of graduating students is replaced

2 by a new group of freshmen, also makes joinder impracticable. Doe v. Charleston Area Medical

3 Center, Inc., 529 F.2d 638 (4th Cir. 1975)(fact that class members existbut are not specifically

4 identifiable, supports rather tllan detracts from class certification, because joinder is impracticable)

5 citing Committee Notes to Revised Rule 23 and 3B Moore's Fed. Prac. '1123.01 (2nd ed.); Von

6 ColIn v. County of Ventura, 189 F.R.D. 583,590 (C.D.Cal. 1999)(class of pretrial detainees

7 fluctuates over time); Orantes-Hernandez v. Smith, 541 F.Supp. 351, 370 (C.D.Cal. 1982)

8 (fluctuating immigrant class); National Law Center on Homelessness and Poverty v. New York,

9 224 F.R.D 314, 324 (E.D.N.Y. 2004); Bullock v. Bd. of Ed. of Montgomery County, 210 F.R.D.

10 556,559 (D.Md. 2002); Jane B. v. New York City Dept. of Social Services, 117 F.R.D. 64, 70

II (S.D.N.Y. 1987). See also Leiken v. Squaw Valley Ski Cor:p., 1994 WL 494298 (E.D.Cal.

12 I 994)(difficulty identifYing class members supports class certification).

13

Other factors, such as geographic diversity, the unlikelihood that other members will be

14 able to bring separate suits, difficulty locating or identifYing class members, and the request for

15 injunctive relief to stop policies or actions applied to the class as a whole, also make joinder 16 impracticable. Jordan v. County of Los Angeles, 669 F.2d 1311,1319 (9th Cir. 1982), vacated on

17 other grounds 459 U.S. 810 (1982), citing I Newberg on Class Actions §II05; Santillan v.

18 Ashcroft, 2004 WL 2297990 at *9 (N.D.Cal. 2004); Radiation Survivors, 111 F.R.D. at 599;

19 Robidoux v. Celani, 987 F.2d 931 (2nd Cir. 1993); Paxton v. Union National Bank, 688 F.2d 552, 20 559 (8th Cir. 1982), cert. denied 460 U.S. 1083 (1983); Jones v. Diamond, 519 F.2d 1090, 1100 (5t

21 Cir. 1975); Arkansas Ed. Ass'n v. Bd. of Ed of the Portland, Arkansas School Dist., 446 F.2d 763, 22 765-766 (8th Cir. 1971); Santillan v. Ashcroft, 2004 WL 2297990 at *9 (N.D.Cal. 2004); Haley v.

23 Medtronic, Inc., 169 F.R.D 643, 648 (C.D.Cal. 1996), citing Crown, Cork & Seal Co. v. Parker,

24 462 U.S. 345 (l983)(primary purposes of class certification: (1) judicial economy by avoiding

25 multiple suits and (2) protect rights of those who could not bring claims on individual basis).

26

In sum, joinder of all the class members who are harmed by Defendants' discriminatory

27 actions is impracticable if not impossible.

28

9

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 10 of 15

1

2. Common questions of law and fact armly to the class

2

A plaintiff class satisfies the commonality requirement in Rule 23(a)(2) if the class claims

3 share a common question oflaw or fact or arise from the same remedial theory. Institutionalized

4 discrimination claims necessarily involve such common questions, as do challenges to illegal 5 policies or practices. Armstrong, 275 F.3d at 868; LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir.

6 1985) (commonality satisfied by challenge to system-wide practice or policy that affects all the

7 putative class members.); Bates v. United Parcel Service, 204 F.R.D. 440, 445 (N.D.Cal. 2001), 8 citing Hanlon v. Chrysler Corp., 150 F.3d lOll, 1019 (9th Cir. 1998); Arnold v. United Artists

9 Theatre Circuit, Inc., 158 F.R.D 439, 448-449 (N.D.Cal. 1994)(commonality "met by alleged

10 existence of common discriminatory practices"); Baird v. California Facultv Ass'n, 2000 WL

II 1028782, at *3 (B.D.Cal. 2000)(commonality exists when there are underlying facts or legal

12 theories that are common to the class); Ballard v. Equifax Check Services, Inc., 186 F.R.D. 589,

13 595 (E.D. Cal. 1999)(J. Darnrell)(commonality exists when "defendants have engaged in

14 standardized conduct toward members of the proposed class.").

15

The legal issues in this case are common to all class members. Defendants either engage in

16 sex discrimination or they do not. They either violate Title IX and the other civil rights laws or

17 they do not. They either fail to offer equal athletic participation and scholarship opportunities for

18 females or they do not. If they do, then Defendants will have to remediate their discrimination by

19 adding new sports and new opportunities for females. If they do not, then they need not do so. 20 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998); United States v. Sielaff, 546 F.2d 218, 222

21 (7th Cir. 1976)(class action proper to avoid mUltiple suits with possibly inconsistent verdicts);

22 Adderly v.Wainright, 58, F.R.D. 389,405 (M.D.Fla. 1972); Evans v. Buchanan, 416 F.Supp. 328,

23 337 (D.Del. I 976)(danger of inconsistent verdicts).

24

The factual issues in this case are also common to all class members. All proposed class

25 members seek to participate in sports that UCD does not offer for females. They all want UCD to

26 provide participation and scholarship opportunities in their sports. They are all currently denied 27 those opportunities.

28

10

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 11 of 15

I

In sum, all class members suffer the exact same harm, all seek the same remedy, and all

2 rely on the same legal theories of sex discrimination to obtain that remedy - more varsity athletic

3 participation and scholarship opportunities for females. The proposed class clearly satisfies the

4 requirements of Rule 23(a)(2).

5

3. The class representatives' claims are typical of those of

the class

6
Typicality merely requires that the claims of the class representatives are typical of or

7

"reasonably coextensive with" those of the class as a whole. Hanlon v. Chrysler Corp., 150 F.3d

8 lOll, 1020 (9th Cir. 1998). Typicality exists when "each cbss member's claim arises from the

9

same course of events, and each class member makes similar legal arguments to prove the

10

defendant's liability." Armstrong, 275 F.3d at 868. It is established whenever the class members

11

all suffer from a discriminatory policy or practice that is applied to the whole class. Armstrong,

12 275 FJd at 869; Ballard, 186 F.R.D. at 595 (class representative's claim is typical ifit ariases fro

13

the same event, practice, or course of conduct that gives rise to the claims of the class).

14
Plaintiffs' claims here are not only typical, but identical, to those ofthe class. All want to

15

participate in and to receive athletic scholarships for sports that Defendants do not offer for

16

women. All are denied access to this educational opportunity (varsity athletics) because

17

Defendants fail to offer equal athletic participation and scholarship opportunities for females. All

18

claim that this denial constitutes sex discrimination in violation of Title IX, the Equal Protection

19

Clause, and various California state laws. The legal claims and remedies are exactly the same.

20

21

4. The named plaintiffs and their counsel are adequate class

representatives

22

23

Class representation is adequate if"(I) the attorney representing the class is qualified and

24 competent; and (2) the class representatives do not have interests antagonistic to the remainder of

25 the class." Haley, 169 F.R.D. at 649-650. This requirement ensures that the representatives

26 do not have any conflicts with the other class members and they vigorously have prosecuted and

27 will continue to prosecute this action. Hanlon, 150 F3d at 1020, citing Lerwill v. Inflight Motion

28 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978).

11

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 12 of 15

1

Class counsel in this case has litigated complex cases for more than 15 years and is

2 experienced in Title IX class actions as both lead and advisery counsel (e.g., Fritson v. Minden;

3 Thomsen y. Fremont; Erickson v. Holdrege; Praster v. North Platte; Sabel v. Danbury; and Price v.

4 Wilton;). Counsel lectures widely on Title IX and has taught classes and continuing legal educatio

5 on the subject. See accompanying Declaration of Kristen Galles..

6

Class plaintiffs do not have any conflicts with the class. They all want to enjoin

7 Defendants to comply with gender equity laws and to add more athletic participation and

8 scholarship opportunities for women. Class plaintiffs have also already vigorously prosecuted this

9 case for two years, have responded to hundreds of document requests, have responded to extensive

10 interrogatories posed by each defendant, and have sat for depositions. They have more than

11 demonstrated their commitment to exposing Defendants' discrimination and to fixing it.

12

B. THE PROPOSED CLASS SATISFIES RULE 23(b)(2)

13

In addition to satisfYing the Rule 23(a) requirements, Plaintiffs must satisfY one of the thre

14 categories of Rule 23(b). This action falls squarely under Rule 23(b)(2), under which a class is

15 certifiable if:

16

the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final

17

injunctive relief or corresponding declaratory relief with respect

to the class as a whole ....

18

19

Here, Defendants have acted on grounds applicable to the class in that they have

20 discriminated against and continue to discriminate against females by failing to provide them with

21 equal opportunity in varsity athletics. In other words, Defendants choose to allocate more

22 opportunities and more resources to males than females. The class seeks declaratory and injunctiv

23 relief to expose this discrimination .and to remedy it.

24

Subsection 23(b)(2) was specifically added by Congress in 1966 to reaffirm that civil rights

25 cases such as this one could be brought as class actions. See 7A Wright & Miller, Federal Practice

26 and Procedure, § 1776, at p. 495 (1984 & Supp. 1994); Penson v. Terminal Transport Co., 634

27 F.2d 989, 993 (5th Cir. 1981). The advisory committee notes to Rule 23(b)(2) state that the rule is

28 satisfied "even if the action or inaction 'has taken effect or is threatened only as to one or a few

12

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 13 of 15

1 members ofthe class, provided it is based on grounds which have general application to the class.'"

2 Santiago, 72 F.RD. at 626, citing Advisory Committee's Notes to proposed Rules of Civil

3 Procedure, 39 F.RD. 69, 102 (1966). Thus, even ifthe named plaintiffs were the only female

4 athletes immediately threatened by Defendants' discriminatory practices, this action would satisfY

5 the requirements of Rule 23(b)(2) because the discriminatory practices are generally applicable to

6 all members of the prospective class.

7

Lawsuits alleging class-wide discriminatory practice8 are particularly well-suited for class

8 treatment, especially under Rule 23(b)(2), because they involve the same legal and factual issues

9 and are subject to a single injunctive remedy. EEOC v. General Telephone Company of the

10 Northwest, Inc., 599 F.2d 322 3228-329 (9th Cir. 1979)(discrimination cases are inherently class-

11 based); Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1986).

12

In order to effectively eradicate such discrimination and to implement the broad remedial

13 purposes of civil rights statutes, courts liberally apply all the requirements ofFRCP 23 to such 14 cases. Gay v. Waiters' and Dairy Lunclnnen's Union, 549 F.2d 1330, 1333 (9th Cir. 1977)(court

15 reversed district court's denial of class certification because it failed to consider broad remedial

16 purposes of Title VII); Jordan v. County of Los Angeles, 669 F.2d 1311, 1381-1319 (9th Cir. 1982) 17 vacated on other grounds 459 U.S. 810 (1982); Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.

18 1975)(court should consider generous policies underlying clfl~s action device in civil rights

19 litigation); Berlowitz v. Nob Hill Masonic Management, Inc., 1996 WL 724776 at *2 (N.D.Cal.

20 1996)(liberal application of class action rule in civil rights cases); Bartelson v. Dean Witter & Co.,

21 86 F.RD. 657, 662 (E.D.Pa. J980)(goal of sex discrimination class action was to create broad-

22 based reform, so FRCP 23 requirements must be applied liberally "to vindicate the important

23 public policy of equal employment opportUllity."). See also Crumon v. University of Chicago, 441

24 U.S. 677, 706 (1979)(discusses broad remedial purpose of Title IX).

25

The inherent class nation of discrimination cases is even more apparent in athletics cases,

26 because the educational progranl itself is sex segregated. Defendants offer entirely separate

27 athletic programs for males and females. Males compete against other males on male teams and

28 females compete with against other females. Males and females do not compete against each

13

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 14 of 15

1 other. Thus, Defendants have complete control over how many athletic opportunities to provide

2 only for males and how many to provide only for females. They do this by deciding which sports

3 to offer and how many participation opportunities to provide for each sport (based upon the nature

4 of the sport itself). Defendants also have complete control over how many athletic scholarships to

5 offer to male and athletes and how many to offer to female athletes.

6

Because Defendants have acted in a discriminatory manner with respect to all class

7 members, and because the named plaintiffs seek declaratory and injunctive relief to remedy that

8 discrimination, the proposed class is properly certifiable under Rule 23 (b)(2).

9

CONCLUSION

10

The class is so numerous, diverse, and fluid that joinder is impracticable. This action

11 involves facts and issues that are common to all class members, namely whether Defendants

12 discriminate against females in the allocation of athletic participation opportunities and athletic

13 financial assistance. The claims of the named class representatives are typical of those ofthe

14 proposed class, because Defendants denied them the opportunity to participate in a varsity sport

15 wrestling and to receive athletic financial assistance for that sport. The named plaintiffs and their

16 counsel will also provide adequate representation for the class as they already have for thus far in

17 this litigation. Accordingly, Class Plaintiffs request that this Court certifY this case as a class

18 action as set forth herein.

19

20

21

22

23

24

25

26

27

28

14

Case 2:03-cv-02591-FCD-EFB Document 69 Filed 12/08/05 Page 15 of 15

1 Dated: December 7, 2005
2

AREZOU MANSOURIAN, et aI., Plaintiffs.

3

4

Kristen Galles

5

Cal. State Bar No. 148740

EQUITY LEGAL

6

10 Rosecrest Avenue

Alexandria, VA 22301

7

(703) 683-4491

8

9
PROOF OF SERVICE
10 I hereby certifY that on this7 day of December, 2005, I served the foregoing pleading upon
11 counsel for Defendants via first class mail, postage prepaid, at the addresses listed below.

12

Nancy J. Sheehan

Porter, Scott, Weiberg & Delehant

13

350 University Avenue, Suite 200

Sacramento, CA 95825

14 15

~r;;~

Kristen Galles

16

17

18

19

20

21

22

23

24

25

26

27

28 15

 
 Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 1 of 12

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11 AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI
12 CHIANG; CHRISTINE WING-SI NG; and all those similarly
13 situated,

14

Plaintiffs,

NO. CIV. S-03-2591 FCD EFB

15

v.

MEMORANDUM AND ORDER

16 BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA
17 at DAVIS; LAWRENCE “LARRY” VANDERHOEF; GREG WARZECKA;
18 PAM GILL-FISHER; ROBERT FRANKS; and LAWRENCE SWANSON,
19 Defendants.
20 ----oo0oo----
21 This matter is before the court on plaintiffs’ motions to
22 modify the pretrial scheduling order, pursuant to Federal Rule of
23 Civil Procedure 16(b),1 and to amend their complaint pursuant to
24

25

1

Plaintiffs failed to address Rule 16's good cause

requirement in their moving papers. Although they addressed this 26 standard in their reply, plaintiffs assert that the 2nd Amended

Pretrial Scheduling Order (“PSO”) does not require compliance 27 with Rule 16. Plaintiffs are mistaken. The prior Pretrial

Scheduling Order in this case provided that “[N]o further joinder

28 of parties or amendments to pleadings is permitted without leave

1

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 2 of 12

1 Rule 15 to add new plaintiffs and allegations. Defendants oppose 2 the motion. For the reasons set forth below,2 plaintiffs’ motion

3 is DENIED.

4

BACKGROUND

5

This action was filed on December 18, 2003, alleging that

6 defendants violated Title IX of the Education Amendment of 1972,

7 20 U.S.C. 1681 et seq., the Equal Protection Clause of the

8 Fourteenth Amendment, and various state statutes “by eliminating

9 female athletic participation and scholarship opportunities in

10 wrestling” and that “[d]efendants continue to violate these civil

11 rights by refusing to reinstate the women’s wrestling program and

12 by failing to provide equitable athletic participation and

13 scholarship opportunities for women.” (Pls.’ Compl., filed Dec.

14 18, 2003, at 2). Two of the plaintiffs, Arezou Mansourian and

15 Lauren Mancuso, brought the action on behalf of themselves and

16 “as class representatives on behalf of all those similarly

17 situated, including all present and future female students at UC-

18 Davis who are denied equal athletic participation opportunities

19

20

21 of court, good cause having been shown.” (Docket #28 (citing Fed. R. Civ. P. 16 (b); Johnson v. Mammoth Recreations, Inc., 975
22 F.2d 604 (9th Cir. 1992)). The 2nd Amended PSO notes plaintiff’s request for leave to amend and defendant’s objection to that
23 request. The court set out a briefing schedule for plaintiffs “to bring the appropriate motions,” noting explicitly that
24 “Plaintiffs’ Motion to Amend the Complaint and/or Motion to Amend the Pretrial Scheduling Order” was to be submitted on or before
25 February 2, 2007. (Docket #156) (emphasis added). However, the court will consider the arguments relating to Rule 16 set forth
26 in plaintiffs’ reply.

27

2

Because oral argument will not be of material

assistance, the court orders this matter submitted on the briefs.

28 E.D. Cal. L.R. 78-230(h).

2

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 3 of 12

1 and scholarships, especially in wrestling, by Defendants’

2 discriminatory actions.” (Id. at 3).

3

The litigation in this case, albeit extended, has been

4 thorough. In March 2004, defendants filed a motion to dismiss,

5 which was denied. (See Mem. & Order, Docket #25, filed May 6,

6 2004). In December 2005, plaintiffs filed a motion to certify

7 the class and noticed the matter for hearing in February 2006.

8 (See Docket #62-70). Between December 2005 and April 2006, the

9 docket reflects that the parties engaged in discovery, and

10 various discovery disputes were filed before the magistrate

11 judge. Subsequently, plaintiffs amended their notice of hearing

12 for the class certification motion to change the hearing date to

13 April 21, 2006. (2d Amended Notice of Hearing, Docket #93, filed

14 Feb. 21, 2006). On April 4, 2004, defendants filed a lengthy

15 opposition to plaintiffs’ motion for class certification,

16 accompanied by voluminous attachments, exhibits, and objections.

17 (See Docket # 103-07, 121). Further, the docket reflects that 18 defendants were preparing to file a motion for summary judgment.3

19 (See Docket # 97-102; 108-110 (relating to defendants’ ex parte

20 motion to extend page limits for motions for summary judgment)).

21

Unfortunately, throughout the course of this litigation,

22 both defendants’ and plaintiffs’ counsel have suffered illnesses.

23 In October 2005, both parties stipulated to an extension of

24 deadlines due to defendants’ lead counsel’s diagnosis with breast

25 cancer, which would make her unavailable to travel to depositions

26 over the following two months. (Stipulation, Docket #57, filed

27

3

At this stage in the litigation, the dispositive motion

28 deadline was August 4, 2006.

3

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 4 of 12

1 Oct. 28, 2005). On April 14, 2006, one week before plaintiffs’

2 motion for class certification was to be heard by the court,

3 plaintiffs’ counsel filed an ex parte motion to stay and extend

4 scheduling based upon plaintiffs’ counsel’s serious health

5 issues. (Ex Parte Mot. to Stay, Docket #117, filed Apr. 14,

6 2006). Defendants opposed the motion. The court granted

7 plaintiffs’ motion and set a status conference for June 16, 2006.

8 (Order, Docket #125, filed Apr. 18, 2006). On June 6, 2006, the

9 parties stipulated to extend the stay and related scheduling

10 matters. (Stipulation to Extend Stay and Related Scheduling

11 Matters, Docket #130, filed June 6, 2006). On July 21, 2006,

12 plaintiffs moved to extend the stay in order to find new counsel

13 because of plaintiffs’ counsel’s serious medical condition.

14 (Motion to Extend, Docket #134, filed July 21, 2006). The court

15 granted the extension, directed plaintiffs’ counsel to file

16 either a motion to withdraw or substitution of counsel by August

17 18, 2006, and set a status conference for September 8, 2006.

18 (Order, Docket # 137, filed July 24, 2006). On August 18, 2006,

19 Monique Oliver filed a notice of appearance on behalf of

20 plaintiffs. (Docket # 140, filed Aug. 18, 2006). On August 23,

21 2006, and October 19, 2006, the parties stipulated to extend the

22 stay, based upon the appearance of new counsel in this matter.

23 (Docket #141, 147).

24

Finally, on January 19, 2007, the parties submitted a joint

25 status report. (Docket # 154). The parties raised issues

26 relating to plaintiffs’ desire to amend the complaint, further

27 discovery, and scheduling. On January 24, 2006, the court issued

28 a 2nd Amended Pretrial Scheduling Order, setting forth the

4

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 5 of 12

1 schedule by which the parties were to file the current motions.

2 (2d Am. Pretrial Scheduling Order, Docket # 156, filed Jan. 24,

3 2006).

4

STANDARD

5

Once the court has entered a pretrial scheduling order

6 pursuant to Rule 16, the standards of Rule 16 rather than Rule 15

7 govern amendment of the pleadings. See Johnson v. Mammoth

8 Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); Eckert

9 Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1232-33 (E.D. Cal.

10 1996).4 Orders entered before the final pretrial conference may

11 be modified only “upon a showing of good cause.” Fed. R. Civ. P.

12 16(b).

13

The good cause requirement of Rule 16 primarily considers

14 the diligence of the party seeking the amendment. The pretrial

15 scheduling order can only be modified “if it cannot reasonably be

16 met despite the diligence of the party seeking the extension.”

17 Mammoth Recreations, 975 F.2d at 609. When evaluating whether a

18 party was diligent, the Ninth Circuit has determined that “the

19 focus of the inquiry is upon the moving party’s reasons for

20 modification. If that party was not diligent, the inquiry should

21 end.” Id. at 610; see also Gestetner, 108 F.R.D. at 141.

22

23

4

To rely solely on Rule 15 after a pretrial scheduling

order has been entered would “render scheduling orders 24 meaningless and effectively would read Rule 16(b) and its good

cause requirement out of the Federal Rules of Civil Procedure.” 25 Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.

1998); see also Mammoth Recreations, 975 F.2d at 610 (adopting 26 Rule 15's standards for amending the complaint would “undermine

the court’s ability to control its docket, disrupt the agreed27 upon course of the litigation, and reward the indolent and the

cavalier”); Eckert Cold Storage, 943 F. Supp. at 1232 n.3.

28

5

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 6 of 12

1

When the proposed modification is an amendment to the

2 pleadings, the moving party may establish good cause by showing

3 “(1) that [he or she] was diligent in assisting the court in

4 creating a workable Rule 16 order; (2) that [his or her]

5 noncompliance with a rule 16 deadline occurred or will occur,

6 notwithstanding [his or her] diligent efforts to comply, because

7 of the development of matters which could not have been

8 reasonably foreseen or anticipated at the time of the Rule 16

9 scheduling conference; and (3) that [he or she] was diligent in

10 seeking amendment of the Rule 16 order, once it became apparent

11 that [he or she] could not comply with the order.” Jackson v.

12 Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)(citations

13 omitted).

14

Only after the moving party has demonstrated diligence under

15 Rule 16 does the court apply the standard under Rule 15 to

16 determine whether the amendment was proper. See Mammoth

17 Recreations, 975 F.2d at 608; Eckert Cold Storage, 943 F. Supp.

18 at 1232 n.3. Pursuant to Rule 15(a), “leave [to amend] is to be

19 freely given when justice so requires.” “[L]eave to amend should

20 be granted unless amendment would cause prejudice to the opposing

21 party, is sought in bad faith, is futile, or creates undue

22 delay.” Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir.

23 1997).

24

ANALYSIS

25

Plaintiffs seek to add new plaintiffs, who will also be

26 class representatives, and related allegations. Plaintiffs

27 assert that the three new plaintiffs and related allegations

28 “more fully reflect the experiences of current women student

6

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 7 of 12

1 athletes at UC Davis” and will “clarify certain allegations in

2 light of the scope of the relief sought, and the continuing

3 nature of the alleged violations.” (Pls.’ Mot. to Amend, filed

4 Feb. 2, 2007, at 1 (“Mot. to Amend”)). The proposed plaintiffs

5 are current UC Davis students, who are interested in varsity

6 opportunities in wrestling, rugby, and field hockey. (Pl.’s

7 Proposed 1st. Am. Complaint, filed Feb. 2, 2007, ¶¶ 13-15; 62-

8 69). Defendants oppose the motion on the grounds that plaintiffs

9 have failed to meet their burden of demonstrating good cause

10 under Rule 16 and that leave to amend should not be granted under

11 Rule 15. (Defs.’ Opp’n to Pls.’ Mot., filed Feb. 23, 2007

12 (“Opp’n”).

13

Defendants argue that plaintiffs fail to demonstrate the

14 requisite diligence under Rule 16 to add new plaintiffs who are

15 current UC Davis students because plaintiffs and their counsel

16 were on notice of facts giving rise to their current motion for

17 leave to amend long before their motion was filed. Plaintiffs

18 contend that the last remaining active student at UC Davis,

19 Lauren Mancuso, graduated in June 2006, during the ten-month stay

20 of this action, and therefore, “it is now proper to add

21 additional plaintiffs.” (Pls.’ Reply, filed Mar. 2, 2007, at 6).

22 As an initial matter, plaintiffs and their counsel were on notice

23 since 2004 that Arezou Mansourian, one of the two proposed class

24 representatives, graduated from UC Davis in June 2004 and that

25 Lauren Mancuso was the only proposed class representative that

26 currently attended UC Davis. Mancuso testified in her deposition

27 on January 30, 2006, that she filed to graduate from UC Davis in

28 late September or early October 2005. (Dep. of Lauren Mancuso,

7

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 8 of 12

1 Ex. 10 to Decl. of Nancy Sheehan in Supp. of Opp’n to Pls.’ Mot.

2 to Amend (“Sheehan Decl.”), filed Feb. 23, 2007, at 48:15-21).

3 Plaintiffs filed their original motion for class certification in

4 December 2005, after Mancuso had filed to graduate. Soon after

5 her deposition was taken, however, Mancuso was informed that she

6 needed another two classes in order to graduate, which she

7 enrolled in and successfully completed in order to graduate in

8 June 2006. (Decl. of Lauren Mancuso in Supp. of Pls.’ Mot. to

9 Amend, filed March 2, 2007, ¶ 2). As such, plaintiffs were on

10 notice (1) that Mancuso had filed to graduate in 2005; and (2)

11 that in early 2006, she had to take two more classes, which she

12 enrolled in Spring 2006. Therefore, months prior to the issuance

13 of the stay in April 2006, plaintiffs knew that Mancuso either

14 had graduated or would shortly be graduating from UC Davis, and

15 that none of the class representatives would be current UC Davis

16 students.

17

Plaintiffs’ prior counsel could have brought a motion to

18 amend the complaint to add new plaintiffs who were current UC

19 David students. However, she did not do so. Rather, plaintiffs

20 filed a motion to certify the class in December 2005 and noticed

21 a hearing date in April 2006. Defendants filed a lengthy

22 opposition to plaintiffs’ motion, arguing in part that Mansourian

23 and Mancuso do not have standing to be class representatives

24 because they had both graduated and exhausted their eligibility

25 to participate in varsity sports at UC Davis under N.C.A.A.

26 rules. Now, plaintiffs’ new counsel seeks a “second bite at the

27 apple,” by proposing new class plaintiffs who are current

28 students at UC Davis. However, the retention of new counsel does

8

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 9 of 12

1 not constitute good cause to amend the pretrial scheduling order

2 and add new party plaintiffs. The party’s diligence in seeking

3 the amendment must be demonstrated. Johnson, 975 F.2d at 609

4 (“If [the] party was not diligent, the inquiry should end.”).

5 Because plaintiffs and plaintiffs’ counsel was on notice of the

6 graduation status of the proposed class representatives well

7 before the stay of this action, plaintiffs have failed to

8 demonstrate diligence in bringing this motion to amend.

9

In regards to plaintiffs additional allegations relating to

10 field hockey and rugby, defendants contend that plaintiffs knew

11 as early as April 2004 that women’s sport club teams, such as the

12 rugby and field hockey club teams, requested elevation to varsity

13 status. (Sheehan Decl. ¶ 3) (stating that document requests

14 pertaining to requests from women’s sport club teams to be

15 elevated to varsity status were disclosed in April 2004 in

16 defendants’ initial Rule 26 disclosures). At that time, two

17 years prior to the stay in this action, plaintiffs had notice

18 that the named plaintiffs in this action only alleged that they

19 participated or wished to participate in a varsity wrestling

20 program. Plaintiffs could have moved to amend the complaint to

21 add proposed class representatives who participated in other

22 sport club teams at UC Davis. However, plaintiffs failed to do 23 so.5 Now, almost three years later, plaintiffs’ new counsel

24 seeks to add new class plaintiffs and new allegations relating to

25

26

5

Rather, plaintiffs filed their motion for class

27 certification in December 2005. In their opposition to the

motion, defendants asserted that plaintiffs were not adequate

28 class representatives of a class consisting of all female

student-athletes because their interests focused on wrestling.

9

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 10 of 12

1 rugby and field hockey “in light of the scope of the relief

2 sought.” (Pls.’ Mot. to Amend at 1). However, because

3 plaintiffs’ delayed in bringing a motion to amend after they

4 learned of the underlying facts which are the basis of this

5 motion, plaintiffs fail to demonstrate good cause under Rule 16.

6

Further, even if plaintiffs had demonstrated good cause, the

7 proposed amendments to the complaint would be prejudicial to 8 defendants.6 See Fed. R. Civ. Proc. 15; Martinez, 125 F.3d at

9 785 (9th Cir. 1997) (“[L]eave to amend should be granted unless

10 amendment would cause prejudice to the opposing party, is sought

11 in bad faith, is futile, or creates undue delay.”). Prior to the

12 stay, this case was vigorously litigated by the parties.

13 Defendants’ counsel has submitted evidence that, based upon the

14 allegations in the complaint and the facts relative to the

15 proposed class representatives, the majority of discovery in this

16 case has related to the participation of women in the wrestling

17 program at UC Davis. (See Sheehan Decl. ¶ 6). Defendants also

18 present evidence that significant resources have been expended in

19 drafting dispositive motions based upon the allegations in the

20 complaint. (Sheehan Decl. ¶ 7). Plaintiffs’ amendments would

21 require defendants to expend these resources again, after

22 defendants already vigorously litigated this case for over two

23

24

25

6

For the reasons set forth above in the court’s

26 discussion of plaintiffs’ diligence in bringing a motion to

amend, plaintiffs’ delay also raises concerns regarding undue

27 delay. See Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)

(holding that the district court did not abuse in denying leave

28 to amend where the “new” facts and theories had been known to the

party seeking amendment since the inception of the litigation).

10

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 11 of 12

1 years. See Kaplan, 49 F.3d at 1370 (“Expense, delay, and wear

2 and tear on individuals and companies count toward prejudice.”).

3

Plaintiffs contend that due to an extended discovery

4 deadline, defendants have “ample opportunity to conduct discovery

5 with respect to these new plaintiffs and to litigate any issues

6 arising from these amendments.” (Pls.’ Reply at 8-9). However,

7 this “opportunity” does not lessen the prejudice to defendants as

8 to the resources they have already devoted to this litigation

9 since its inception and up to the point, three years later, when

10 plaintiffs seek to amend the complaint. Plaintiffs contend that

11 the new plaintiffs and allegations do not change the scope of the

12 litigation, and thus, the prejudice is not substantial. The

13 court disagrees. While plaintiffs may have sought to bring

14 challenges on behalf of all women athletes at UC Davis, the

15 plaintiffs only alleged that they had experience and sought

16 opportunities in wrestling. The factual allegations in the

17 original complaint related only to the opportunities available

18 for women to participate in the UC Davis varsity wrestling

19 program and plaintiffs’ inability to receive the benefits of

20 being a varsity wrestler. Further, in the class action

21 allegations, plaintiffs alleged that “Class Plaintiffs seek to

22 represent the class of all present and future female students at

23 UC Davis who are denied equal athletic participation

24 opportunities and scholarships in women’s wrestling by

25 Defendants’ discriminatory actions.” (Compl. ¶ 108).

26 Plaintiffs’ original requested relief also focused on increasing

27 wrestling opportunities for women athletes at UC Davis. Now

28 plaintiffs seek to add more claims relating to rugby and field

11

Case 2:03-cv-02591-FCD-EFB Document 175 Filed 03/20/07 Page 12 of 12

1 hockey. Contrary to plaintiffs’ contentions, these amendments

2 would substantially broaden the scope of litigation in this

3 matter.

4

Finally, the court is not unaware that the proposed

5 amendments to plaintiffs’ complaint specifically address

6 arguments raised by defendants’ in their opposition to

7 plaintiffs’ previously filed motion for class certification.

8 While the court is sympathetic to the situation of plaintiffs’

9 prior counsel, these circumstances and the appointment of new

10 counsel does not justify giving plaintiffs a “second bite at the

11 apple” with the benefit of defendants’ previous filings.

12

Therefore, because plaintiffs have not demonstrated good

13 cause to modify the pretrial scheduling order to allow amendments

14 to the complaint, and because the proposed amendments would be

15 prejudicial to defendants, plaintiffs’ motion to amend the

16 complaint is DENIED.

17

IT IS SO ORDERED.

18 DATED: March 20, 2007

19

20

_______________________________________

21

FRANK C. DAMRELL, JR.

UNITED STATES DISTRICT JUDGE 22

23

24

25

26

27

28

12

 
 Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 1 of 42

PORTER, SCOTT, WEIBERG & DELEHANT
1 A Professional Corporation 2 Nancy 1. Sheehan, SBN 109419
George A. Acero, SBN 226709 3 350 University Avenue, Suite 200
Sacramento, California 95825 4 (916) 929-1481
(916) 927-3706 (facsimile)
5
6 Attorneys for Defendants: REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARR
VANDERHOEF (erroneously sued as LAWRENCE VANDERHOEF), GREG WARZECKA,
7 PAM GILL-FISHER, ROBERT FRANKS and LAWRENCE SWANSON

8

9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 AREZOU MANSOURIAN, LAUREN CASE NO. CIV. S-0302591 FCD/PAN

MANCUSO, NANCY NIEN-LI CHIANG, (JFM) 12 and CHRISTINE WING-SI NG; and all those

13 similarly situated,

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS

14

Plaintiffs,

CERTIFICATION

15 vs.

Date:

April 21, 2006

16

Time:

10:00 a.m.

BOARD OF REGENTS OF THE Courtroom: #2

17 UNIVERSITY OF CALIFORNIA AT

DAVIS, et ai.,

18

Defendants.
19

20

21

22

23

24

25

26

27

28

{OQ414607,DOC}

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 2 of 42

TABLE OF CONTENTS
1

2 PROCEDURAL HISTORY ....................................................................................................................... 1

3 FACTS PERTAINING TO CLASS CERTIFICATION MOTION ........................................................... 2

4 A.

Intercollegiate athletics, sport clubs, and intramural sports at U.C.Davis ................................. 2

5 B.

The U.C. Davis wrestling team .................................................................................................. 6

6 C.

Process for consideration of club sports for varsity status ......................................................... 8

7 D.

Interest in wrestling at the high school and collegiate leveL.................................................... 9

8 E.

Plaintiffs ................................................................................................................................... 11

9

I. AREZOU MANSOURIAN ...................................................................................................... 11

10

2. CHRISTINE NG ...................................................................................................................... 12

11

3. NANCY CHIANG .................................................................................................................. 13

12

4. LAUREN MANCUSO ............................................................................................................. 15

13 OVERVIEW OF LEGAL ISSUES PERTAINING TO THIS MOTION ................................................ 17

14

A.

Title IX and the three part test .................................................................................................. 17

15 B.

Class Certification Standards ................................................................................................... 18

16
THE CONFLICT OF INTEREST BETWEEN PLAINTIFFS AND OTHER FEMALE STUDENT
17 ATHLETES DEFEATS COMMONALITY AND TYPICALITY REQUIREMENTS .......................... 19

18

A.

Even if the Court limited the class to women wrestlers, Plaintiffs cannot establish the

19 requisite numerosity .............................................................................................................................. 24

20 THE CLAIMS OF THE PUTATIVE CLASS PLAINTIFFS ARE SUBJECT TO UNIQUE DEFENSES AND ARE NOT TYPICAL OF ANY CLAIM THAT MIGHT BE RAISED BY A CLASS MEMBER
21
.................................................................................................................................................................. 26
22
A. Plaintiffs' claims and experiences are different than any potential claim by a putative class 23 member .................................................................................................................................................. 26

24 B.

Plaintiffs' claims are subject to unique defenses such as the statute of limitations ................. 28

25 PLAINTIFFS DO NOT HAVE STANDING TO BE CLASS REPRESENTATIVES ........................... 29

26 PLAINTIFFS SHOULD BE LIMITED TO CONSIDERATION OF THE PROPOSED CLASS AND 27 REPRESENTATIVES IDENTIFIED IN THE COMPLAINT ................................................................ 32
28 THE SCOPE OF THE PROPOSED CLASS IS SPECULATIVE AND OVERBROAD ....................... 34

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Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 3 of 42
1 CONCLUSION ........................................................................................................................................35
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
18 19 20 21 22 23 24 25 26 27 28
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1 2
3 Federal Cases

TABLE OF AUTHORITIES

4 Abreu v. Ramirez, 284 F.Supp.2d 1250, 1255 (D.Cal.2003) ...................................................................29

5 Alston v Virginia High School League, 184 F.R.D. 587, 579 (D.Va. 1999) .....................................20, 21

6 Beasley v. Alabama State University, 3 F.Supp. 2d 1325, 1343 (D. Ala. 1998) .....................................30

7 Burrows v. Ohio High Sch. Athletic Ass'n, 891 F.2d 122,125 (6th Cir. 1989) ...................................... 18

8 Cohen v. Brown University. 991 F.2d 888,906 (1st Cir.1983) ................................................................ 18

9 Doe v. District of Columbia, 216 F.R.D. 5, 12 (D.D.C. 2003) ................................................................31

10 Elliotv. ITT Corp, 150F.R.D. 569, 572 (D.Ill.1992) ........................................................................ 17,34

11 Gevedon v. Purdue Pharmaceuticals, 212 F.R.D. 333, 338 (D.Ky.2002) ................................................24 12 Grandson v. University of Michigan, 272 FJd 568 (8th Cir. 2001) ..................................................31,32

13 Greene v. Southland Corp., 83 F.R.D. 117, 123 (D.Tex. 1979) ...............................................................23 14 Hanlon v. Chrysler Chevrolet, 150 FJd 1011, 1020 (9th Cir.1998) .........................................................21 15 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ....................................................................26

16 Harris v. General Dev. Corp., 127 F.R.D. 655, 659 (D.Il1.l989) .............................................................34

17 Jamerson v. Board of Trustees, 80 F.R.D.744, 746 (D.C.Ala.l978)........................................................20 18 Jones v. Blanas, 393 FJd 918, 927 (9th Cir. 2004) ..................................................................................29

19 Kohn v. Mucia, 776 F.Supp. 348, 353 (D.Il1.l991) .................................................................................25 20 Lowery v. Adams, 344 F.Supp.446,459 (D.C.Ky. 1972) .........................................................................20

21 Miami University Wrestling Club v. Miami University, 302 FJd 608, 615 (6th Cir. 2002) .................. 18 22 Molski v. Gleich, 318 F.3d 937, 947 (9th Cir. 2003) ................................................................................ 32

23 Neal v. Board of Trustees of the California State University, 198 F.3d 763, 768 (9th Cir. 1999) .......... 18

24 O'Connor v. Boeing North America, 180 F.R.D. 359,375 (D.Cal. 1997) ...............................................23

25 Pinkard v Pullman, 678 F.2d 1211,1214 (5th Cir. 1982) ........................................................................28

26 Rappaport v. Katz. 62 F.R.D. 512,513-514 (D.N.Y.1974) ......................................................................20

27 Ritacco v. Norwin School District, 361 F.Supp.930, 931 (D.Pa.1973) ....................................................30

28
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Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 5 of 42
1 Scofield v. Board of Trustees, 65 F.R.D.595, 602 (D.C.Miss.1975) ....................................................... 20 2 Siles v. ILGWU Nat' I Retirement Fund, 783 F.2d 923,930 (9th Cir. I 986) .............................................25 3 Stambaugh v. Kansas Dep't of Corrections, 151 F.R.D.664, 671 (D.Kan.1993) ....................................25 4 Stanley v. Trustees of the California State University, 443 F.3d 1129, 1134 (9th Cir. 2006) .................29 5 Stevens v. Harper, 213 F.R.D. 358, 367 (E.D.Cal. 2002) ..................................................................28,31 6 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227,1234 (9th Cir. 1996) ..................................................... 18 7 Wilson v. Zarhadnick, 534 F.2d 55, 57 (5th Cir. 1976) ...........................................................................32 8 United States Cases 9 Bryant v. Colgate, 1996 U.S. Dist. LEXIS 8393 (D.N.Y. 1996) .................................................22, 34, 35 10 City of Los Angeles v. Lyons, 461 U. S.95, 105-106 (1983) ....................................................................31 11 Gen'l Tel. v. Falcon, 457 U.S. 147, 156 (1982) ................................................................................. 18, 26 12 Hansberry v. Lee, 311 U.S .32, 45 (1940) .................................................................................................21 13 Price v. Wilton Public Sch. District, 1998 U.S. Dist. LEXIS 23139 .......................................................34
14
Statutes
15
California Code of Civil Procedure section 335.1 .................................................................................... 29
16
Federal Rule of Civil Procedure 23 (a) ................................................................................................ 18, 24
17
Federal Rule of Civil Procedure 23 (b) ............................................................................................... 18, 32
18
Other Authorities
19
Conte and Newberg on Class Actions, Vol. I at p. 411 (4th Ed.) ............................................................. 19
20
21
22
23
24
25
26
27
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1

1.

2

PROCEDURAL HISTORY

3

This action was filed on December 18, 2003. Plaintiffs, three former and one current

4 undergraduate students at U.c. Davis have sued the REGENTS OF THE UNIVERSITY OF

5 CALIFORNIA ("UNIVERSITY"); the Chancellor ofU.C. Davis, the U.C. Davis Athletic Director and

6 two Assistant Athletic Directors, and a former Associate Vice Chancellor. They assert the following

7 claims for relief:

8

I. Violation of Title IX in regard to equal athletic participation opportunities. This claim is

9 asserted only against the UNIVERSITY. Plaintiffs MANSOURIAN and MANCUSO, who are

10 described in the Complaint as the "class plaintiffs" (Exhibit A, Complaint, ~ 107) assert this claim on

11 behalf of themselves and all others similarly situated under F.R.C.P. 23(a) and (b)(2). Plaintiffs NG and

12 CHIANG assert this claim on behalf of themselves only. Plaintiffs contend that "they and all present

13 and future female students at U.C. Davis should have equal access and opportunity to receive these

14 same benefits that male students at U.C. Davis already have, including athletic participation

15 opportunities in wrestling." (Exhibit A, ~ 127)

16

2. Violation of Title IX in regard to equal athletic financial assistance. This claim is

17 asserted against the UNIVERSITY only. MANSOURIAN and MANCUSO assert this claim on behalf

18 of the putative class, while Plaintiffs NG and CHIANG assert it only on behalf of themselves. Plaintiffs

19 contend that "they and all present and future female students at U.C. Davis should have equal access to

20 athletic scholarship funding and should receive the same benefits that male students at U.C. Davis

21 already have, including athletic scholarships for wrestling." (Exhibit A, ~ 138)

22

3. Retaliation in violation of Title IX. This claim is asserted against the UNIVERSITY

23 only and is not alleged on behalf of any putative class.

24

4. Violation of 42 U.S.C. section 1983 for alleged discrimination on the basis of gender in

25 regard to athletic participation opportunities, financial assistance, and wrestling opportunities. This 26 claim is asserted against the UNIVERSITY but only for injunctive relief, and against all individual 27 Defendants. MANSOURIAN and MANCUSO assert this claim on behalf of the putative class, while 28 Plaintiffs NG and CHIANG assert it only on behalf of themselves.

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1

5. Violation of the California Unruh Civil Rights Act. This claim is brought by

2 MANSOURIAN and MANCUSO on behalf of the putative class and by the remaining Plaintiffs on

3 behalf of themselves. It is asserted against all Defendants. Plaintiffs contend they were denied equal

4 opportunities in athletic participation, financial assistance, and opportunities to participate in wrestling.

5

6. The sixth claim for relief is entitled "California Public Policy." It is asserted against all

6 Defendants by MANSOURIAN and MANCUSO on behalf of the putative class and by the remaining

7 Plaintiffs on behalf of themselves. Relying on various sections of the California Education Code and

8 two portions of the California Constitution, Plaintiffs contend they were denied equal opportunities in

9 athletic participation, financial assistance, and opportunities to participate in wrestling.

10

Defendants filed an answer denying Plaintiffs' claims and that they are entitled to damages or

11 injunctive relief. This case is set for trial on November 28, 2006. Dispositive motions must be filed

12 by June 30, 2006 and the final pre-trial conference is on September 29, 2006.

13

By way of their motion, Plaintiffs seeks certification of the following class:

14

"All current, prospective, and future female students at the University of

15

California, Davis, who are denied, and all females who are deterred from enrolling at U.C. Davis because they would be denied, an equal

16

opportunity to participate in varsity intercollegiate athletics and/or to

receive athletic financial assistance because of their sex."

17

18 For the reasons set forth below, Defendants contend that Plaintiffs' motion should be denied.

19

II.

20

FACTS PERTAINING TO CLASS CERTIFICATION MOTION

21 A. Intercollegiate athletics, sport clubs, and intramural sports at U.C.Davis

22

U.C. Davis is a National Collegiate Athletic Association (N.C.A.A.) member institution. It is a

23 Division I( school in all intercollegiate sports except women's gynmastics and wrestling2 The campus

24 is in the process of moving from Division II to Division I, a transition that should be completed by

25

26

27
1 In general, the status of an institution in a particular N.C.A.A. division depends on the number of teams sponsored by the 28 institution. There are also requirements regarding competition and scheduling, and the availability of athletic financial aid.

2 See below. Those sports have competed in Division I for over ten years.

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1 February 2007. This change was supported by a student referendum that was passed in 2002, known as

2 Campus Expansion Initiative. (Exhibit K, Declaration of GREG WARZEKCA, ~ 2)

3

U.C. Davis sponsors 26 varsity (intercollegiate athletic) teams. The teams are: baseball, men's

4 basketball, women's basketball, men's and women's cross country, football, men's golf, women's golf,

5 women's gymnastics, women's lacrosse, women's rowing, men's soccer, women's soccer, softball,

6 men's and women's swimming and diving, men's tennis, women's tennis, men's and women's indoor

7 track, men's and women's outdoor track, volleyball, men's water polo, women's water polo and

8 wrestling. In total, there are twelve men's varsity sports and fourteen women's varsity sports. (Exhibit

9 K, ~ 3) This is signifi.cantly more than the national average of 8.45 women's sports per college or

10 university (See "Women in Intercollegiate Sport: A Longitudinal, National Study Twenty Seven Year

11 Update (1977-2006)" by Linda Jean Carpenter and R. Vivian Acosta in conjunction with the National

12 Association of Collegiate Women Athletic Administrators, Exhibit G).

13

There are also many sport clubs at U.C. Davis. The sport club program is designed to provide

14 students with the opportunity to learn sports skills, develop an individual potential in a particular sport,

15 become physically fit, engage in competition with teams from other colleges, universities and amateur

16 clubs, and to engage in social interaction and leadership opportunities. (Exhibit X, Declaration of Gary

17 Colberg, ~ 4) There are three levels of competition for sport clubs. Recreational teams focus on

18 instruction and recreational activities on campus. Competitive II teams travel and compete against

19 teams from other universities, colleges and amateur organizations. Competitive I teams also travel and

20 compete against teams from other universities, colleges and amateur organizations but in a format

21 leading up to a national championship. There are national championships for badminton, cycling,

22 gymnastics, horse polo, men's roller hockey, women's soccer, men's and women's ultimate sports,

23 men's and women's volleyball and water skiing. Most of the Competitive I and Competitive II club

24 sports belong to a conference, compete within that conference, and follow that conference's rules. In a

25 number of sports, the Competitive I club team is the equivalent to a junior varsity team. (Exhibit X, ~

26 2)

27

Any undergraduate student may participate in a club sport or submit an application to establish a

28 club sport. In general, the purpose of the club must be consistent with the sport club program; the club

3 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

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1 must engage in sporting activity; there must be a minimum of ten students interested in participating in

2 the club; suitable facilities must be available for practice and competitions; and the club must be

3 financially self-reliant. There are some funds available for distribution to sport clubs, but the bulk of

4 financial support for each club sport is the result of fundraising. The sport clubs use campus

5 recreational facilities and may use University vehicles for transportation to meets and tournaments.

6 (Exhibit X, ~ 3; Exhibit Y, Criteria for starting club sport and application).

7

There are currently 35 active sport clubs on campus. An application has been submitted to add

8 judo as a sport club this spring. The current club sports are alpine skiing, badminton, baseball, boxing,

9 Brazilian Ju Jitsu, men's crew, cycling, equestrian, fencing, field hockey, gymnastics, horse polo, men's

10 ice hockey, kendo, kung fu, men's and women's lacrosse, racquetball, men's roller hockey, men's and

11 women's rugby, men's and women's soccer, softball, squash, table tennis, tae kwon do, triathlon, men's

12 and women's ultimate, men's and women's volleyball, men's and women's water polo and water

13 skiing. Twenty-four of the teams are at the Competition I level; five are at the Competition II level; and

14 six are at the recreational level. The Competition I club sports include field hockey, horse polo and

15 women's rugby. There are 1,139 participants among the 35 active clubs. (Exhibit X, ~ 4)

16

There is also an extensive intramural sports program available to students. For most intramural

17 sports, there are a variety of leagues offered from "AA" to "c" for men's, women's and coed play.

18 "AA" teams are primarily made up of highly skilled, experienced (intercollegiate, club and

19 professional) and competitive team members. "A" teams consist primarily of athletes with above

20 average skills and a limited number of experienced members. "B" teams are designed for the average
21 athlete; no experienced players are permitted on the team. "c" teams are for beginners in a sport.

22 There are intramural teams for badminton, basketball (3-aside and 5-aside), flag football (4-aside, 7-

23 aside and 8-aside), floor hockey, dodgeball, grass volleyball, indoor soccer, innertube water polo,

24 kickball, poker, racquetball, soccer (9-aside and 7-aside), tennis, table tennis, ultimate frisbee,

25 volleyball, and wiffleball. For the university calendar year 2004-2005, there were 2528 intramural

26 teams with a total of 12,961 unique intramural participants among the 22 sports offered. (Exhibit H,

27 Declaration of Laura Hall, ~ 2)

28

U.C. Davis has received prominent recognition for the quality of its athletic program for

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1 women. In 1999 and 2000, it was named as the best Division II school for women athletes by Sports

2 Illustrated for Women. U.c. Davis has produced no less than three N.C.A.A. Women of the Year

3 winners since that program started in 1991. The Woman of the Year Award is given to senior student-

4 athletes who distinguish themselves in the area of academic achievement, athletics, service and

5 leadership. U.C. Davis was the N.C.A.A. Division II champion in women's tennis in 1990 and 1993; in

6 women's rowing in 2002 and 2003; and in softball in 2003. It has produced N.C.A.A. individual

7 champions in women's swimming (2003), women's indoor track (1996 and 2000), and diving (1996).

8 Six members of the women's gymnastics team have won thirteen individual championships at the

9 U.S.A.G. Collegiate National championships. Eleven U.c. Davis women's teams have participated in,

10 or been represented at, fifty-nine N.C.A.A. Division II championships and one N.C.A.A. Division I

11 championship since 1995. Between 1995 and 2005, U.C. Davis female student-athletes received a total

12 of 253 All-American awards. This status is determined either by order of finishing in the national

13 championships or via selection by coaches, media or another organization. (Exhibit I, Declaration of

14 Mike Robles, ~ 2)

15

The N.C.A.A. sponsors the following sports for men: baseball, basketball, cross country,

16 fencing, football, golf, gymnastics, ice hockey, lacrosse, rifle, skiing, soccer, swimming, tennis, indoor

l7 track, outdoor track, volleyball, water polo and wrestling. It sponsors the following sports for women:

18 basketball, bowling, cross country, fencing, field hockey, golf, gymnastics, ice hockey, lacrosse, rifle,

19 rowing, skiing, soccer, softball, swimming, tennis, indoor track, outdoor track, volleyball and water

20 polo. It also sponsors mixed gender teams for fencing and rifle. The N.C.A.A. does not sponsor

21 women's wrestling as a separate sport. (Exhibit J, Declaration of Wendy Walters, ~ 3) All of the

22 varsity sports sponsored by U.C. Davis are N.C.A.A. sponsored sports. (Exhibit K, ~ 3).

23

The change from Division II status to Division I status will also include a change in Conference

24 membership for U.C. Davis. It will become a full member of the Big West Conference in July 2007

25 after it obtains Division I status. The Big West Conference covers men's and women's basketball,

26 baseball, women's volleyball, softball, men's and women's soccer, men's and women's cross country,

27 men's and women's swimming and diving, men's and women's golf, men's and women's tennis and

28 men's and women's track and field. The remaining U.C. Davis teams compete in various other

5
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1 conferences. (Exhibit K, ~ 4)

2 B. The V.c. Davis wrestling team

3

In 1993, V.C. Davis made the decision to have its women's gymnastics team and the wrestling

4 team compete in Division I rather than Division II because of lack of available competition in Division

5 II schools in this geographic area. (Exhibit L, Declaration of Michelle Roppeau, ~ 4) The V.C. Davis

6 wrestling team competes in the Pac-IO conference. (Exhibit M, Declaration of LARRY SWANSON, ~

7 3)

8

Pursuant to 34 C.F.R. section 106.41, an educational institution that receives federal funds may

9 operate separate teams for members of each sex where selection for inclusion on the team is based on

10 competitive skill or the sport is a contact sport. Contact sports include boxing, wrestling, rugby, ice

11 hockey, football, basketball and any other sports that have a purpose or major activity that involves

12 bodily contact. If a school has a team for members of one sex but not the other, and opportunities for

13 the latter sex to participate in athletics have previously been limited, members of that sex must be

14 allowed to tryout for the team unless it is a contact sport. There is no requirement that the students be

15 placed on the team-they simply must be given a chance to try out, unless the sport is a contact sport.

16 Although wrestling is considered a contact sport under this regulation, for a number of years U.C. Davis

17 has permitted women to try out for the team. (Exhibit M, ~ 2). If, in the opinion of the head coach, a

18 woman has the necessary skills and abilities to earn a spot on the team, she will be given one. Selection

19 of members of the team on any varsity sport is the prerogative of the head coach.

20

The V.C. Davis wrestling team is counted as a men's sport for purposes of compliance with

21 N.C.A.A. regulations. (Exhibit M, ~ 2) There has never been a women's varsity wrestling team at V.C.

22 Davis. To the knowledge of the Associate Athletic Director who oversees the sport of wrestling, none

23 of the schools in the Pac-lO have a women's varsity wrestling team. (Exhibit M, ~ 3)

24

During the time that Michael Burch was the head wrestling coach at V.C. Davis (l995-June,

25 2001) he allowed women to work out with the team and to be part of the team, even though they did not

26 have to tryout or compete for a place on the roster (see subsection F, below). In 1998, V.C. Davis

27 instituted a roster management program designed to limit the number of team members in men's sports.

28 This was done in order to comply with the requirements of Title IX and for budgetary reasons. The

6
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1 Athletic Director gave the head coaches of the men's teams some time to adjust to the roster

2 management program, but by the fall of 2000 was requiring compliance with the upper limits assigned

3 to each team. The wrestling team was limited to 30 members on its roster. Burch petitioned Athletic

4 Director WARZECKA to add four more spots. His request was granted. Burch filled all of the

5 additional spots with men. (Exhibit F, deposition of Mike Burch, p. 308:12-p.309:5; p. 310:2-21);

6 Exhibit CC , e-mail from Burch to WARZEKCA) The issue of what Burch did, or did not do, with the

7 status of the women wrestlers after that is a key issue in the case of Burch v. Regents, et. aI., which is

8 pending before Judge Shubb. Defendants in that case (who are the same as the Defendants in this case)

9 contend Burch wrongfully told the women wrestlers the Athletic Department administration did not

10 want them on the team, when the truth was that Burch did not want to allot any of his limited roster

11 spots to the women because he knew they did not have the skills necessary to compete at the varsity

12 level. Burch's actions came to light in May 2001 when NG and MANSaURIAN filed a complaint with

13 the affice for Civil Rights. After conducting an investigation and working with a.C.R., the campus

14 agreed to reinstate the women to the wrestling team for what remained of the 2000/2001 season and set

15 forth criteria for selection for membership on the team for all candidates in the future. Consistent with

16 the past practice, students of both genders may try out for the team. The head coach retains the sale

17 discretion to select those who are most qualified for a place on the team. a.C.R. approved of this 18 approach.3 (Exhibit HH, Letter from a.C.R.)

19

In the spring of 2000, Assistant Athletic Director GILL- FISHER had spoken with some of the

20 women wrestlers and asked them if they were interested in forming a women's wrestling club team so

21 that they could actually spar against and compete against other women, rather than being a small, non-

22 competitive part of the primarily male wrestling team. Their response was to eschew the offer because
23 they claimed they were "varsity athletes". (Exhibit a, Declaration of PAM GILL-FISHER, ~ 4)
24 III 25 III

26

27
3 In their Complaint, Plaintiffs alleged that O.C.R. found that U.C. Davis had discriminated against them on the basis of 28 gender. This allegation is reiterated in the declaration submitted by MANSOURIAN in support ofthis motion. At a recent
hearing on an issue pertaining to discovery from the O.CR., Plaintiffs' counsel admitted that no such finding had ever been made. See Defendants' objections to evidence submitted by Plaintiffs.

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1 C. Process for consideration of club sports for varsity status

2

The Intercollegiate Athletics program is funded to a large degree by student fees as authorized

3 by various campus initiatives. The Athletic Director, in conjunction with the Vice Chancellor for

4 Student Affairs, has the authority to consider the addition of a new varsity sport if there is sufficient

5 room in the budget to fund the sport. (Exhibit K, ~~5, 7) Money is always an issue. When WARZECKA

6 became the Athletic Director in 1995, the Athletic Department budget was in a deep deficit. It took

7 until 2003 to eliminate the deficit. The budget for 2005/2006 is approximately $150,000.00 in the red.

8 In considering whether to add a new varsity sport, one of the factors taken into account is the budget.

9 Unfortunately, there has never been enough money in the budget to field a team in every sport that a

10 student or group of students might be interested in. (Exhibit K, ~ 5)

11

U.C. Davis has a detailed procedure that is followed when proposals for the addition of new

12 varsity sports are made. This process is specific to adding new women's varsity sports; there have not

13 been any newly added men's teams in many years. The club sport or organization seeking elevation to

14 varsity status must prepare a written proposal. It is the responsibility of those students who are

15 interested in having a sport considered for elevation to take the time and effort to prepare the proposal

16 or request that another person prepare it for them, and complete the entire review process. After the

17 proposals are received, the Athletic Director or his designee meets with the sport representative. A

18 committee comprised of representatives from the Athletic Administrative Advisory Committee, the

19 Student Athletic Advisory Committee, the Sports Club Council and the Athletic Administration reviews

20 the proposals and makes a recommendation to the Athletic Director. The Athletic Director then makes

21 a recommendation to the Vice Chancellor for Student Affairs. The recommendation is also reviewed

22 by the campus Title IX workgroup. (Exhibit K, ~ 6)

23

In 1995, a call was made to add new varsity sports for women. Proposals were submitted for

24 water polo, crew, badminton, lacrosse and field hockey. There was no proposal submitted on behalf of

25 women's wrestling. After going through the review process, the decision was made to add crew,

26 lacrosse and water polo, all of which had long histories as a club sport on campus and a solid source of

27 competition from other schools within the geographic area. (Exhibit K, ~ 7) In 2003, another call was

28 made for proposals to consider adding new women's varsity sports. Five women's sports submitted

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1 proposals: bowling, field hockey, golf, horse polo and rugby. Neither the Plaintiffs nor anyone else

2 submitted a proposal on behalf of women's wrestling. (Exhibit 0, ~ 2; Exhibit DD, Proposals for

3 Elevation to Varsity Status). The Committee prepared a review and summary of the proposals and

4 submitted it to the Athletic Director. (Exhibit 0, ~ 3; Exhibit EE, Report to Athletic Direc.)

5 WARZECKA recommended to the Vice Chancellor that women's golf be added as a new varsity sport.

6 The reasons he recommended golf over the other sports proposed were that golf is a championship sport

7 in the Big West Conference and per Conference rules, U.C. Davis is required to add sports that are

8 already part of that conference before adding non-conference sports; women's golf is offered by 451

9 universities, 27 community colleges, and 639 California high schools; the N.C.A.A. has a golf

10 championship in all three divisions; U.C. Davis received many inquiries from female high school

11 students who are interested in golf; and the local community had indicated a strong support of golf,

12 including use of a golf course. (Exhibit K, ~ 7; Exhibit FF, Recommendation to Vice Chancellor).

13 Women's golf was added as a varsity sport with competition starting in the 2005/2006 school year.

14 D. Interest in wrestling at the high school and collegiate level

15

The National Federation of State High School Associations IS the national servICe and

16 administrative organization for high school athletics (see www.nfhs.org). Each year it conducts a

17 nationwide survey of the participation levels in sports at the high school level. In 2002, 3,405 high

18 school girls participated in wrestling. The number of participants in that sport was much lower than

19 other girls' high school sports, such as basketball (456,169), volleyball (395,124) or even field hockey

20 (60,737) which was rated tenth out of ten of the top sports for girls that year. (Exhibit 0, NFSHSA 21 2002 Survey Results) In 2004, the number of girls participating in wrestling nationwide increased to

22 4,334 but it still lagged far behind the tenth out of ten most popular sports for that year, which was golf

23 (64,245). Girls' wrestling never came close to breaking into the top ten most popular sports. (Exhibit

24 R, NFSHSA 2004 Survey Results)

25

The California Interscholastic Federation (C.I.F.) gathers participation numbers for high school

26 students in the state of California, which is where the vast majority of students who attend U.C. Davis

27 live. During the 2004/2005 school year, there were 1,230 girls who participated in wrestling in this

28 state. (Exhibit S, C.I.F. Survey) That number was exceeded by the number of girls who played

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1 badminton (4,500), golf (5,972) and most other sports, which had participation numbers 111 the

2 thousands or tens of thousands.

3

During the time Burch coached the wrestling team, there were never more than five or six

4 female students who expressed an interest in wrestling. Lennie Zalesky took over as the head wrestling

5 coach in the fall of 200 1. In the four and a half years that he has held that position he has received only

6 somewhere between five to ten inquiries from female students, both at the high school and college

7 level, regarding participation in the wrestling program. (Exhibit N, Declaration of Lennie Zalesky, ~

8 7)

9

The number of women participating in wrestling at the collegiate level is very small, compared

10 to other sports. The N.C.A.A. does not sponsor women's wrestling as a separate sport. There are a few

11 schools that have women's teams, such as Menlo College, but those wrestlers compete primarily in

12 open tournanlents or with teanlS in Canada. (Exhibit T, Deposition of Lee Allen, p. 48: 1-17; p. 72: 10-

13 17; Exhibit V, Menlo College team schedule.) The participation numbers for women in N.C.A.A.

14 sponsored sports that are not currently varsity sports at U.C. Davis are notably larger than the number

15 of women who wrestle at the college level. In short, Plaintiffs are attempting to force the campus to

16 establish a varsity program for a sport that has very little interest among its students.

17

The limited nature of interest in women's wrestling at the collegiate varsity level, as compared

18 to other sports, is also reflected by the fact that it is not even considered an "emerging sport" by the

19 N.C.A.A. That entity has identified certain sports for women as "emerging sports". In order to be

20 considered an "emerging sport", the sport must meet the following criteria: (I) the activity must be 21 defined as a sport and there must be regularly scheduled head to head competition within a defined 22 competitive season and standardized rules ratified by regulatory agencies; (2) there must be twenty or 23 more varsity teams and/or competitive club teams that currently exist on college campuses in the sport; 24 (3) data must exist that demonstrates support for the sport; (4) there must be a demonstrated 25 understanding by potential participant schools that if the sport is identified as an emerging sport, all 26 N.C.A.A. member institutions will comply with that entity's regulations, and there must be a proposal 27 submitted to the N.C.A.A. outlining suggestions for championship rules and a format for the sport; and 28 (5) ten letters of support must be submitted by the president or athletic directors from member

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1 institutions confirming they will sponsor the sport. The women's sports that are currently identified as

2 "emerging" are archery, badminton, equestrian (Division I and II only), rugby, squash, synchronized

3 swinuning and team handball. Women's wrestling has never been included on the list of emerging

4 sports, nor has any organization (such as USA Wrestling) submitted a proposal requesting that it be

5 considering as an emerging sport. (Exhibit J, , 4)

6 E. Plaintiffs

7

1. AREZOU MANSOURIAN

8

MANSOURIAN started wrestling in her sophomore year in high school. (Exhibit B, Deposition

9 of MANSOURIAN, p. 66: 1-11). She was on the junior varsity team, and was not required to engage in

10 a wrestle-off' to secure a spot on the team, as was done for the varsity team. (Exhibit B, p. 70:17-24; p.

11 71:18-21) Plaintiff entered U.C. Davis in the fall of 2000 and graduated in June 2004. (Exhibit B, p.

12 22:24-p.23:6) She carried a full load of classes throughout the time she was in attendance and

13 graduated in four years. (Exhibit B, p. 119:9-13; p. 53: 1-6)

14

Per MANSOURIAN, Burch told her that if she attended U.C. Davis she could be on the

15 wrestling team but would not have to compete against any males. (Exhibit B, p. 103:13-24) He did not

16 encourage her to develop her skills to the point where she could compete against males, nor did

17 MANSOURIAN really have an interest in doing so. (Exhibit B, p. 105:1-12) Burch did not require

18 MANSOURIAN to compete against any other wrestler to earn a spot on the team, nor was she required

19 to compete with any other wrestler to determine who would be a starter in her weight class. (Exhibit B,

20 p. 147:8-16). In Burch's opinion, none of the women had the strength or skills to compete with males.

21 (Exhibit F, p. 218: 16-24; p. 372:22-24)

22

During her first year at U.C. Davis (2000/2001), MANSOURIAN observed only one other

23 female actively participating in wrestling - CHRISTINE NO. She and NO sparred with each other at

24 practices; they did not practice with the men on the team. (Exhibit B, p. 139:1-p.140:1)

25 MANSOURIAN and NO were never provided with team uniforms. (Exhibit B, p. 144:8-11; Exhibit C,

26 Deposition of NO, p. 127:19-22, p. 138:8-10) MANSOURIAN did not compete in any of the matches

27
28 4 A wrestle-off is a one on one competition between two wrestlers in the same weight class to determine who will make the team.

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1 or meets during the regular 2000/2001 season. The only tournament she competed in was the Aggie

2 Open in January 2001. MANSOURIAN wrestled against two women in the tournament and lost to

3 both. (Exhibit B, p. 27:23-p.29:5)

MANSOURIAN did not compete for a place on the wrestling team in the fall of 200 I, after

5 Burch was gone. (Exhibit N, ~ 4) Burch had sent an e-mail to NO, MANSOURIAN and MANCUSO
6 urging them to "make" new head coach Zalesky cut them from the team "because [the women1

7 supposedly can't compete with the men." In Burch's opinion, this would "help their case".

8 MANSOURIAN did not even bother to tryout. (Exhibit B, p. 326-327, Exhibit 00, e-mail from

9 Burch) She has never wrestled in a national wrestling tournament, has never participated in the Pan

10 American games, never tried out for the U.S. Olympic team, and never held any national or

11 international rankings as a wrestler. (Exhibit B, p. 32:20-p.34:3)s

12

2. CHRISTINE NG

13

NO started wrestling in her senior year of high school as part of the school team. (Exhibit C, p.

14 44:8-14) She was unable to defeat either the boys or the girls that she wrestled against at the high

15 school level. (Exhibit C, p. 51 :9-20) NO was not recruited by any school at the college level. (Exhibit

16 ~, p. 51 :21-24) She entered U.C. Davis as a freshman in the fall of 1998 and graduated in September

17 2002. (Exhibit C, p. 16: 14-21)

18

NO had no desire to practice or wrestle against men; she was more interested in simply working

19 out than she was in competing. (Exhibit C, p. 122:21-p.123:7). She admitted during her deposition that

20 "I guess the thing is for me, like I have a fear of competing. And so I tend to avoid it when I can. So

21 that's why I'm not exactly up for competing." (Exhibit C, p. 131:12-15)

22

NO was not required to compete for a place on the U.C. Davis wrestling team or engage in a

23 wrestle-off. (Exhibit C, p. 135:19-p.136:12; p. 146:19-24) She was never given a uniform or

24 equipment. (Exhibit C, p. 127:19-p. 128:12; p. 138:8-16) During the three years she participated in

25
5 In paragraphs 85 and 86 of their Complaint, Plaintiffs allege that before the purported end of women participating in 26 wrestling at U.C. Davis "female wrestlers had the opportunity to participate in wrestling ... and to improve their skills to
such an extent that some became nationally ranked, participated in national women's wrestling tournaments, participated at 27 members of the U.S. National women's wrestling team, finished high in the Pan-American games and World Wrestling
Championships and are expected to be members of the United States Olympic team in 2004 when women's wrestling 28 becomes a gold medal sport for the frrst time. Without the benefits obtained from their participation as female wrestlers at
U.c. Davis, these nationally and internationally ranked female wrestlers would not likely have achieved such a high level of success on their own." (Exhibit A." 85-86) None of the Plaintiffs have ever reached such levels in wrestling.

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1 wrestling when Burch was the coach, NG participated in only one match or tournament - the National

2 Girls Wrestling tournament in Michigan, held in the spring of 2000. (Exhibit C, p. 98:14-p. 99:4)

3 Burch did not accompany her to the tournament, she did not wear a U.C. Davis uniform during it, and

4 she did not place. (Exhibit C, p. 5-11; p. 25:22-p.26:5; p. 26:13-p.27:7) She signed up for the Aggie

5 Open wrestling tournament in her freshman and sophomore years at U.C. Davis but no one in her

6 weight class showed up to compete and thus she did not participate. (Exhibit C, p. 99:5-p.100:8)

7

As of the spring of her junior year (200 I), NG was aware of only herself and MANSOURIAN

8 as female U.C. Davis students interested in wrestling. Samantha Reinis and Abbe Schwartzburg had

9 participated in wrestling in the past, but Reinis was graduating and Schwartzburg had left school.

10 CHIANG had also left school, due to mental health reasons. (Exhibit C, p. 211:1-18)

11

NG tried out for the team in the fall of 2001. She understood that Coach Zalesky required all

12 hopefuls to engage in a wrestle-off to determine who would make the team. (Exhibit C, p. 211:23-

13 p.212:24; p. 245:14-20) NG participated in a wrestle-off with incoming freshman Plaintiff

14 MANCUSO, who pinned her. (Exhibit C, p. 254:22-p.255:20) NG was eliminated from a place on the

15 team after this defeat. She did not pursue Zalesky's suggestion that she consider wrestling at the club

16 sport level because she only wanted to be a varsity wrestler. (Exhibit C, p. 258:14-p.259: 4)

17

3.

NANCY CHIANG

18

CHIANG did not wrestle until her senior year of high school. (Exhibit D, Deposition of

19 CHIANG, p. 113:25- p. 114: 4; p. 123:22-25) She participated in only one wrestling match or

20 tournament in high school, losing once by decision and once by pin. (Exhibit D, p. 126: 13-p.127:23)

21

Burch did not sponsor her for admission, nor was she recruited. (Exhibit D, p. 134:23-p.136:1;

22 p. 138: 21-24; p. 169:16-p.170:3) Plaintiff entered U.C. Davis as a freshman in the fall of 1998 and

23 took a full load of classes. (Exhibit D, p. 93:25-p.94:1; p. 164:21-24) CHIANG was not cleared to

24 practice with the team until well into the. season, because she didn't obtain her required medical

25 clearance until January 1999. Prior to that time, she could only work out by herself. (Exhibit D, p.

26 185 :9-p.186: 11) Burch required the male students to engage in a wrestle-off to attain a spot on the

27 team, but did not make the women do so. (Exhibit D, p. 157:6-25; p. 158: 1-4).

28

CHIANG was not given a U.C. Davis uniform, nor did she ever observe a woman wrestler in

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lone. (Exhibit D, p. 154:10-22) The only match or tournament she participated in during her freshman

2 year was the Aggie Open in January 1999. CHIANG wrestled against a woman from a wrestling club

3 and was defeated. (Exhibit D, p. 196:10-13; p. 190:1-p.191:2)

4

Contrary to a principle rule of collegiate athletics, particularly at an institution such as U.c.

s Davis that prides itself on its students' academic success above all other interests, CHIANG purposely

6 flunked out of her general chemistry class during the winter of her freshman year because it conflicted

7 with wrestling practice and she knew she could take the course again. She also failed her introduction

8 to literature class because she didn't go to class. (Exhibit D, p. 200:2-14; p. 166:1-20)

9

CHIANG started her sophomore year in the fall of 1999. She attended wrestling practices, but

10 again was not required to engage in a wrestle-off for a place on the team as the male students were

11 required to do. (Exhibit D, p. 231:19-21; p. 234:11-14) The only match or tournament that CHIANG

12 participated in during her second year was the 2000 Aggie Open. She wrestled against two women,

l3 using freestyle rules, and was defeated both times. (Exhibit D, p. 218:7-p.219:22; p. 224:16-22)

14

During her second year at U.c. Davis, CHIANG struggled with pre-existing mental health

15 issues. Her mental health deteriorated to the point where she barely attended classes. (Exhibit D, p.

16 73:3-p.74:1; p. 75:8-13). CHIANG emolled in classes for the spring quarter, but went to only one class

17 and then withdrew. She chose instead to concentrate on working at her job at the Bakers Square

18 restaurant because "it was more beneficial for me to work than to go to school at that time." (Exhibit

19 D, p. 251: 7-p.252:2; p. 249: 19-23). In the summer of 2000, CHIANG was hospitalized following a

20 suicide attempt. (Exhibit D, p. 75:17-p.76:22). She attempted to return to U.c. Davis in the fall of

21 2000 but left again after in mid-October. Before leaving, CHIANG reverted to her practice of failing to

22 attend class. She dropped one course because she didn't like the instructor and he made her sleepy.

23 (Exhibit D, p. 80:13-p.81:23)

24

CHIANG never returned to U.C. Davis. Since 2001, she has been employed full time.

25 (Exhibit D, p. 19:23-p.21: 24). In the summer of 2002, CHIANG started attending Sacramento City

26 College, and is still doing so. Sacramento City College has a wrestling team but she has never tried out 27 for it because she does not have the time and is not certain she wants to wrestle at this point in her life. 28 (Exhibit D, p. 47:3-p.48:6; p. 274:6-24)

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1

CHIANG has never participated in any world wrestling cbampionship, nor has she participated

2 in the Pan American Games. She never competed in the World Wrestling Championships or tried out

3 for the Olympic wrestling team. CHIANG has never held a national or international ranking in

4 wrestling. (Exhibit D, p. 38:3-14; p. 38: 23-p.39:5)

5

4. LAUREN MANCUSO

6

MANCUSO attend St. Francis High School, which did not have its own wrestling team.

7 (Exhibit E, Deposition of Lauren Mancuso p. 59: 10-11; p. 72:9-21) She practiced with the wrestling

8 teams at Jesuit and Ponderosa High Schools. (Exhibit E. p.72:19-p.73:II) MANCUSO participated in

9 several tournaments at the high school level. (Exhibit E, p. 33:16-17; p. 58:19-25) She also was a

10 member of the St. Francis soccer team for four years. (Exhibit E, p. 72:22-73:4)

11

Plaintiff applied to U.C. Davis in her senior year, but was not accepted initially. (Exhibit E,

12 p.1l7:27-118:24) She had a G.P.A. of3.38 and SAT scores of 1100, well below the median scores for

13 accepted freshmen. (Exhibit E. p. 97:10-12; 99:25-100:6) MANCUSO spoke to Burch, who made

14 arrangements for her to be sponsored for admission by Mary Claire Robinson, the coach of the varsity

15 women's soccer team at U.C. Davis. MANCUSO understood that if she was sponsored for admission

16 by the soccer coach she was expected to tryout for the soccer team in a competitive process. Armed

17 with this sponsorship, she was then admitted. (Exhibit E, p.120:2-121:1; 126:15-21; 132:10-21)

18 Notwithstanding her promise to make a good faith effort to tryout for soccer because she was

19 sponsored by Robinson for admission, MANCUSO used the sponsorship solely as a vehicle to be

20 admitted so that she could participate in the wrestling program; she was not really interested in playing

21 soccer. (Exhibit E, p. 132:19-133:23) MANCUSO was never a member of the varsity soccer team at

22 U.C. Davis. (Exhibit E, p. 136:10-21) She was cut from the soccer team after attending a few practices

23 and was not disappointed that she was. (Exhibit E, p. 134:6-25; 135:12-19) MANCUSO did not want

24 to compete with men or wrestle against them; she simply wanted to use the wrestling facilities and

25 coaching staff at U.C. Davis to work toward her goal of reaching the Olympics. (Exhibit E, p. 184:21-

26 185:23; 188:15-23)

27

MANCUSO entered U.C. Davis as a freshman in the fall of 2001. She took a full-time course

28 load throughout her four and a half years at the campus. (Exhibit E, p.39:3-8; 40:5-13; 42:11-15; 43:7-

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1 18; 44:2-5;44:18-45:7; 46:21-25;47:1-25; Exhibit W, academic transcript) She filed to graduate in the

2 fall of 2005 and is awaiting an award of a degree in geology. (Exhibit E, p. 48:15-23) MANCUSO is

3 not currently enrolled in any classes. (Id.) She started a full-time job on January 31, 2006 (Exhibit E,

4 p.53:15-p.54:16)

5

Plaintiff has no personal knowledge about the events that took place during the 2000/2001

6 school year in regard to the U.C. Davis wrestling team as she was still in high school. (See

7 accompanying objections to Plaintiffs evidence) All of her "knowledge" is based on what others told

8 her or she read in the newspaper. She contends that in May 2001, either MANSOURIAN, Burch or a

9 friend named Beau Weiner told her that the campus had agreed to "reinstate opportunities in wrestling

10 as part of a resolution with O.C.R." MANCUSO believed this included an agreement that the women

11 would be permitted to wrestle with the team, receive coaching and use the facilities as they had when

12 Burch was the head coach. She did not know whether the University had actually agreed to this.

13 (Exhibit E, p. 152:23-153:17) In fact, the campus had made no such agreement. As noted above, the

14 Athletic Department administration learned that Burch had not told the women the truth about their

15 status. The campus entered into a Voluntary Resolution Plan with O.C.R. that stated: (I) all men and

16 women athletes are encouraged to try out for a position on the wrestling team. The coach will select

17 those athletes who demonstrate the highest skill and competitive ability in their weight class for a place

18 on the roster; (2) the coach will recruit the best qualified athletes for the team, regardless of gender; and

19 (3) in order to further the development of wrestling and to ensure opportunities for women to engage in

20 competitive wrestling, a wrestling sport club would be formed and operated along the same lines as all

21 other sport clubs. (Exhibit HH) There was no promise made that persons coming out for the team in the

22 fall of 200 I would not have to compete for a spot on the team, or that women would be permitted to try

23 out using freestyle rules. MANCUSO tried out for the wrestling team in the fall of 200 I, under Coach 24 Zalesky. She admitted she did not have the skill to beat any of the men who tried out. (Exhibit E, p. 25 192:25-193:4) MANCUSO and NG engaged in a wrestle-off match; MANCUSO prevailed with a pin. 26 (Exhibit E, p. 228:10-16) She then wrestled off against a male and was pinned. (Exhibit E, p. 229:127 230:3) MANCUSO was cut from the team as was the male who defeated her because neither had the 28 necessary skills. (Exhibit N, ~ 4) MANCUSO was never a member of the wrestling team or any

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1 varsity team at U.C. Davis. (Exhibit E, p. 233:17-21; 257:2-7)

2

In her declaration in support of this motion, MANCUSO claims that the fact she was not

3 personally alerted to the date of the Aggie Open wrestling tournament in January 2002 shows some

4 type of systemic discrimination against women. She admitted she did not ask Zalesky about the 2002

5 Aggie Open. (Exhibit E, p. 265:7-10) The Aggie Open is advertised in a number of places, including

6 the school newspaper and the wrestling team web site. (Exhibit N, ~ 6; Exhibit B, p. 302:9-12)

7 MANCUSO found out about the date of the Open and attended it. After she sent an accusatory e-mail

8 to the Chancellor and SWANSON because they didn't personally invite her to the Open, Zalesky sent a

9 message back to her pointing out the errors in her assumptions. (Exhibit N, ~ 6; Exhibit II, e-mail;

10 Exhibit E, p. 289:11-14)

11

MANCUSO has never participated 111 World Wrestling Championships, the Pam American

12 Games or held a national or international ranking. MANCUSO has never tried out for the Olympic

13 team but "plans to in the future". (Exhibit E, p. 91:5-92:10)

14

III.

15

OVERVIEW OF LEGAL ISSUES PERTAINING TO THIS MOTION

16 A. Title IX and the three part test

17

Although a motion for class certification is not addressed to the merits of the case, in ruling on

18 the motion the Court takes into account the elements of the plaintiffs' claims and the proof necessary on

19 them in order to envision the form the trial would take. Elliot v. ITT Corp, 150 F.R.D. 569, 572

20 (D.Il1.1992). Courts have looked to the three prong test established by Department of Education's

21 Office for Civil Rights regulations in determining whether an institution is in compliance with Title IX

22 and is offering equal athletic opportunities for men and women. "A university's athletic program is

23 Title IX-compliant if it satisfies one of the following conditions: (1) intercollegiate level participation

24 opportunities for male and female students are provided in numbers substantially proportionate to their

25 respective emollments, or (2) where the members of one sex have been and are underrepresented

26 among intercollegiate athletes, ...the institution can show a history and continuing practice of program

27 expansion which is demonstrably responsive to the developing interests and abilities of the members of

28 that sex, or (3) where the members of one sex are underrepresented among intercollegiate athletes, and

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1 the institution cannot show a continuing practice of program expansion such as that cited above, ...it can

2 be demonstrated that the interests and abilities of the members of that sex have been fully and

3 effectively accommodated by the current program." Neal v. Board of Trustees of the California State

4 University, 198 FJd 763, 768 (9th Cir. 1999). U.C. Davis has demonstrated a commitment to

5 continuous expansion of its women's intercollegiate athletic program (prong 2). In 1994, women's

6 indoor track and field was added. Three women's varsity sports were added in 1996 (water polo,

7 rowing and lacrosse). Women's golf was added in 2005. Each addition provided more opportunities for

8 female students to participate in varsity athletics.

9

There is no statutory or constitutional right to participate in college athletics or to be given a

10 spot on a particular team simply because a student desires to participate in that sport. Miami University

11 Wrestling Club v. Miami University, 302 F.3d 608, 615 (6th Cir. 2002); Burrows v. Ohio High Sch.

12 Athletic Ass'n, 891 F.2d 122, 125 (6th Cir. 1989). An educational institution is not required to field a

13 team in any particular sport; the decision on which teams will be sponsored lies solely within the

14 discretion of the school. "Title IX does not require institutions to fund any particular number or type of

15 athletic opportunities - only that they provide those opportunities in a non-discriminatory fashion if they

16 wish to receive federal funds." Cohen v. Brown University, 991 F.2d 888,906 (lst Cir.1983).

17 B. Class Certification Standards

18

A party seeking to certify a class must demonstrate that it has met all four requirements of

19 Federal Rule of Civil Procedure 23(a), and at least one of the requirements of Rule 23(b). Valentino v. 20 Carter-Wallace, Inc., 97 F.3d 1227,1234 (9th Cir. 1996). The Rule 23(a) factors are: (l) the class is so

21 numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to

22 the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of 23 the class; and (4) the representative parties will fairly and adequately represent the interests of the class. 24 These requirements of numerosity, commonality, typicality and adequacy effectively "limit the class 25 claims to those fairly encompassed by the named plaintiffs' claims by ensuring that the named plaintiffs 26 have suffered the same injury and possess the same interest as the other class members." Gen'l Tel. v. 27 Falcon, 457 U.S. 147, 156 (1982). If the moving parties establish the preliminary criteria ofF.R.C.P. 28 23(a), they must then establish at least one of the criteria ofF.R.C.P. 23(b). Plaintiffs contend this case

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1 falls within the parameters of subsection (b)(2). In Falcon, the Court signaled that plaintiffs cannot rely

2 on conclusory and speculative assertions in support of their class petitions. "After General Telephone

3 Co. v. Falcon, allegations alone of a pattern and practice of discrimination... are inadequate to satisfy

4 the commonality requirement. What is necessary is a specific showing of underlying facts which might

5 raise an inference of a common question of pattern and practice through allegations of specific incidents

6 ofdiscrimination, supporting affidavits or evidence at the class certification hearing. Pleadings should

7 be factual and specific. Newberg on Class Actions, sec.24.21, at 24-89-95 (3rd ed. 1992) (emphasis

8 added)

9

Plaintiffs' motion should be denied because (1) the interests of the Plaintiff conflict with the

10 interests of the proposed class, thus defeating commonality and typicality requirements; (2) the

11 individual nature of Plaintiffs' claims predominates, causing a conflict of interest with any potential

12 class members; (3) the proposed class representatives lack standing; and (4) the scope of the proposed

13 class, and the identified class representatives, exceeds the scope of the class and representatives

14 identified in the Complaint.

15

IV.

16

THE CONFLICT OF INTEREST BETWEEN PLAINTIFFS AND OTHER FEMALE

17 STUDENT ATHLETES DEFEATS COMMONALITY AND TYPICALITY REOUIREMENTS

18

Commonality and typicality are closely related issues, but there are differences. Commonality

19 requires an examination of the relationship of common facts and legal issues among the class members.

20 Typicality requires an examination of the relationship of facts and legal issues between the class

21 representatives and the class members. Conte and Newberg on Class Actions, Vol. I at p. 411 (4th Ed.)

22

Plaintiffs' motion fails to establish the commonality requirement. They contend that all current

23 and future female student athletes at U.C. Davis have been subjected to the same alleged discriminatory

24 treatment, but offer no evidence to support their argument other than the declarations of

25 MANSOURIAN and MANCUSO and statistics about the number of women participating in club

26 sports. The declarations of MANSOURlAN and MANCUSO delineate their unique experiences with

27 the wrestling program. There are no declarations from current or potential future female students who

28 are interested in sports other than wrestling. There are no declarations from anyone other than these

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1 two Plaintiffs setting forth allegations that the UNIVERSITY allegedly discriminates against women in

2 regard to athletic opportunities. There is no evidence that any other female students demanded to be

3 allowed to participate on a varsity team, even though they did not have the requisite skills or abilities to

4 earn a spot on the roster. To the contrary, the common or typical experience of a student who wants a

5 place on a varsity team is that she must compete with other hopefuls and that the head coach ultimately

6 makes a selection based on the skills and abilities demonstrated by the students during the try-outs.

7

The fact that there are other female student athletes attending the school is not sufficient to

8 establish commonality. Scofield v. Board of Trustees, 65 F.R.D.595, 602 (D.C.Miss.1975). Where the

9 experiences of the class representatives is different than those of the putative class, or where the trier of

10 fact would be required to make individual findings on each claim, commonality is not satisfied. See

11 e.g. Lowery v. Adams, 344 F.Supp.446,459 (D.C.Ky. 1972) [civil rights actions arising out of actions

12 of four university students who were disciplined for disrupting a school event could not be maintained

13 as class actions because actions were unique to the plaintiffs]; Jamerson v. Board of Trustees, 80

14 F.R.D.744, 746 (D.C.Ala.1978) ["But as to the class issue, the first question is whether others exist who

15 are similarly situated and who may pose the same or similar questions as their self-proclaimed

16 representative. Thus, the scope of this study [on commonality] is limited to determining whether there

17 are others like the named plaintiff and whether the class method suits the action."]

18

Typicality is also a problem for Plaintiffs. In Rappaport v. Katz, 62 F.R.D. 512,513-514

19 (D.N.Y.1974), the court relied on Wright & Miller in denying certification of a class that would

20 potentially include persons who met the definition of the proposed class but did not have the same

21 interests as the class representative. A putative class representative cannot meet the typicality

22 requirement simply by alleging that gender discrimination has occurred, as Plaintiffs do here. Alston v

23 Virginia High School League, 184 F.R.D. 587, 579 (D.Va. 1999). When considering the issue of 24 typicality the district court should seek to "uncover conflicts of interests between named parties and the 25 class they seek to represent" and ask whether class representatives "possess the same interest and suffer

26 the same injury" as the class members. Id. at p. 578. In Alston the district court refused to certify a 27 class where it was evident that most of the girls who would be included in the class did not have the 28 same interest in reclassifying the scheduling of girls' high school athletics as the proposed class

20 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

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1 representatives did. "This conflict prevents plaintiffs from satisfying the typicality requirement as well

2 as the adequacy of representation requirement. Plaintiffs have presented nothing to dispel the

3 defendant's suggestion that there is a schism between girls who may benefit from reclassification and

4 those who are injured by reclassification. A girl who could not previously play two sports because they

5 occurred in the same season may be able to play those two sports when a school is reclassified and the

6 seasons for some sports change. Such girls would not bring claims like the ones brought here by

7 plaintiffs. Thus it cannot be said that as goes the claim of these plaintiffs, so go the claims of all others

8 in the class." Id.. at p. 579.

9

Where the class representatives have interests different than the members of the proposed class,

10 due process issues are implicated. Hansberry v. Lee, 311 U.S.32, 45 (1940). Members of a rule

11 23(b)(2) class may not opt out of the class. Thus, the due process concerns of those who will be

12 included in the class become paramount, as they will be bound by any finding in the case. In

13 determining whether due process will be afforded to the class members, the Court must consider two

14 questions: (I) do the class representatives and their counsel have any conflicts of interest with other

15 class members; and (2) will the named plaintiffs and their counsel vigorously prosecute the action on 16 behalf of all class members. Hanlon v. Chrysler Chevrolet, 150 FJd 1011, 1020 (9th Cir.1998). In this

17 case, the answers to those questions are "Yes" and "No, they cannot because their interests are different

18 than the interests of other female student athletes." Plaintiffs' interest is in establishing a separate

19 women's wrestling team for the purpose of providing them with coaching and experience so they can

20 compete in open tournaments rather than in conference competition. Instead of going through the 21 established process for submitting a proposal to establish women's wrestling as a varsity sport, they are

22 attempting to jump to the front of the line via this suit. Their interests and actions are completely at 23 odds with the interests of the club sports that went through the effort to submit proposals for

24 consideration for varsity status and want to establish teams in their own sports. For example, the 25 women wrestlers would be competing with the women's field hockey club team. The latter has an 26 established track record as a club sport (women's wrestling does not), is an N.C.A.A. sponsored sport in 27 all three divisions (women's wrestling is not), is part of a conference (women's wrestling is not) and 28 has far more participants nationally (5,296 athletes among 252 N.C.A.A. teams) than women's

21
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1 wrestling. (Exhibit DD) These facts distinguish women's wrestling and suggest that there is a greater

2 and sustained level of interest in sports other than women's wrestling, one of the factors that must be

3 considered by U.C. Davis in determining whether a new varsity sport should be added. See 44 Fed.

4 Reg. 71413,71418(1979). Therefore, an inherent conflict exists between Plaintiffs and their goal of

5 establishing a female wrestling program and the goals of women participating in other club sports. The

6 irreconcilable nature of this conflict precludes Plaintiffs from representing the putative class.

7

The I.C.A. program is funded by a finite budget. (Exhibit K, ~ 5). Plaintiffs would be

8 competing for limited funding with women who participate or are interested in participating in other

9 sports. The court in Bryant v. Colgate, 1996 U.S. Dist. LEXIS 8393 (D.N.Y. 1996) recognized the

10 inherent conflict in the battle for limited funds: "In an era of static enrollment and increasing financial

11 demands on institutions of higher learning, the resources available for intercollegiate athletics are finite

12 and subject to larger budgetary concerns.... It would seem that where the number of programs available

13 are limited, plaintiffs' interests would be antagonistic to those of other interested and able athletes who

14 might desire elevation of their own sport. Such circumstances could render plaintiffs' representation

15 inadequate under Rule 23(a)." Id. Further, there are conflicts between women's wrestling and those

16 sports that are parts of a conference and are N.C.A.A. sponsored. The Athletic Director at U.C. Davis

17 would be very hesitant to recommend adding a varsity sport that is not part of a conference because of

18 the difficulties in scheduling competition. If the money was available to add a new sport, he would be

19 more inclined to recommend addition of a sport that is either a N.C.A.A. championship sport or an

20 emerging sport. Women's wrestling does not fall within either category. (Exhibit K, ~ 8)

21

Finally, many, if not all, of the women athletes participating in other sports that are not yet at the

22 varsity level would not consider Plaintiffs' attitudes or experiences to represent their concept of varsity

23 athletics. NG is afraid of competition, one of the hallmarks of varsity athletics. NG, MANSOURIAN

24 and CHIANG did not have to tryout for the wrestling team under Burch's coaching. A competitive

25 selection process to ensure that the most skilled athletes comprise the team's roster is an essential part

26 of varsity sports. The women wrestlers never competed in regular meets or matches; they only

27 participated in one or two open tournaments. Members of true varsity teams engage in head to head 28 competition in a regular season schedule. Perhaps most importantly, many women athletes in the

22
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1 existing club sports may well be offended by Plaintiffs' efforts to bypass the process for elevating a

2 sport to varsity status and their insistence that they are entitled to a place on a team even though they do

3 not have the skills or ability to earn one. This conclusion is bolstered by the absence of even one

4 declaration from a member of a club sport in support of this motion.

5

The fact that Plaintiffs are seeking establishment of a women's wrestling program via injunctive

6 relief sets them apart from other female students who may be interested in having a varsity team

7 established for another sport. This conflict defeats typicality. O'Connor v. Boeing North America, 180

8 F.R.D. 359,375 (D.Cal. 1997). It would be impossible for MANSOURIAN, MANCUSO or CHIANG

9 to adequately represent the interests of female field hockey players, female bowlers, female horse polo

10 players or any other female athletes because Plaintiffs will put their interest in having a women's

11 wrestling program established before all other interests. If the Court were to issue injunctive relief in

12 the form of ordering U.C. Davis to add one more women's varsity sport, Plaintiffs would argue for the

13 addition of wrestling. The due process rights of the other members of the class they seek to represent

14 would be trampled as the women interested in establishing other varsity sports would be bound by the

15 order, without having had a chance to make an argument for the addition of a different sport. Such a

16 conflict is fatal to Plaintiffs quest to have this action certified. Greene v. Southland Corp., 83 F.R.D.

17 117, 123 (D.Tex. 1979).

18

MANSOURIAN has already graduated from U.c. Davis, CHIANG dropped out of U.C. Davis,

19 and MANCUSO will graduate this June. Their.eligibility to participate in intercollegiate athletics has

20 expired (in the case of MANSOURIAN and CHIANG) or will shortly (in the case of MANCUSO).

21 Based on this status, it cannot be said that they have the same interests as currently eligible female

22 students, or students who may become eligible in the future.

23

In conclusion, Plaintiffs' unique experiences set them apart from other female student athletes,

24 as does their quest to establish a varsity team in a sport that does not have sufficient competition in the

25 local area and is not an N.C.A.A. sanctioned sport. This case consists of individual claims, not a class 26 claim. 27 /II

28 /II

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1 A. Even if the Court limited the class to women wrestlers, Plaintiffs cannot establish the

2

requisite uumerosity

3

Faced with the problems attendant to their typicality and commonality issues, Plaintiffs may

4 revert to the definition of the class asserted in the complaint (see infra) and instead ask the Court to

5 define the class to include only current and future female students at V.C. Davis who are eligible to, and

6 want to, participate in intercollegiate varsity wrestling. Even if this definition was used, Plaintiffs still

7 fail to establish the necessary showing for certification.

8

Rule 23(a)(1) raises the issue of numerosity; are there so many members of the proposed class

9 that joinder would be impracticable? While there is no specific minimum number of members in the

10 class, Plaintiffs have the burden of demonstrating the existence of the persons they seek to represent

11 and cannot rely on speculation or conclusory allegations to do so. Gevedon v. Purdue Pharmaceuticals,

12 212 F.R.D. 333, 338 (D.Ky.2002). Plaintiffs engage in significant speculation by arguing that "the vast

13 majority" of the 1,000 or so high school girls who participate in wrestling in California would apply to

14 V.C. Davis for admission. While it is theoretically possible that the "vast majority" might apply,

15 statistically, very few would meet the rigorous criteria for admission to U.C. Davis. In the past four

16 years, V.C. Davis received 30,000-32,000 freshmen applications per year. Overall, 55-65% of those

17 applicants (approximately 17,000-18,000) are offered admission. Of those offered admission, 24-26%

18 (4,300-4,600) actually enroll. (Exhibit V, Declaration of Judy Sakaki, ~ 2). Per the California Master

19 Plan for Higher Education, only 12.5% of the state's public high school graduates should be considered

20 for admission to the Vniversity of California system. The competition for admission to V.C. Davis is

21 stringent; the class entering in 2005 had a median grade point average of3.92 and a median SAT score

22 of 1,270. (Exhibit V, ~~ 3, 4) A student who is recruited to the campus because of athletic skills still

23 must meet V.C. eligibility standards. (Id. ~ 4)

24

When these figures are applied to Plaintiffs' speculative argument, its weaknesses become

25 obvious. The C.I.F. survey showed 1,230 girls wrestled in this state last year. There is no indication of

26 how many of those girls were seniors and of that group, how many enrolled at a college or university

27 after they graduated. Plaintiffs have not made any showing on how many of those girls have a median

28 grade point average of 3.92 or a median SAT score of 1,270. Absent these specific factors, Plaintiffs

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1 cannot rely on raw numbers. See Kohn v. Mucia, 776 F.Supp. 348, 353 (D.Ill.199l). Even if one were

2 to engage in hypotheticals and gross speculation, the numbers do not satisfy the numerosity
3 requirement. If all of the girls who wrestled last year intended to go to college and if all 1,230 applied

4 to the University of California system (which is statistically improbable), per the California Master Plan

5 only 12.5% or 153 would even be considered for admission to the U.C. system. There is no way to

6 determine how many of the theoretical 153 would apply to U.C. Davis, as opposed to the other nine

7 U.C. campuses. Even in the statistically improbable event that all 153 applied, only 50% would be

8 offered admission (see Exhibit U), bringing the number to 76. Of that 76, statistically only 25% would

9 actually enroll, bringing the number to 19. Of this small number, there is no guarantee that all would be

10 interested in wrestling at the collegiate level. Due to the heightened skill level required for participation

11 in varsity sports at the collegiate level as compared with the skills necessary to participate in high

12 school sports, as well as many other reasons such as the rigors of college academics, many students

13 choose not to continue their athletic pursuits at the college level. Per the deposition testimony of the

14 Plaintiffs, between 1998 and 2001 there were only six women who demonstrated an interest in

15 wrestling. Numbers in this low range are not sufficient to meet the numerosity requirement.

16

Citing to the number of women participating in sport clubs on campus does not help Plaintiffs

17 either. In Siles v. ILGWU Nat'l Retirement Fund, 783 F.2d 923,930 (9th Cir.1986) the Ninth Circuit

18 affirmed the lower court's denial of a request for class certification on the grounds that the plaintiff

19 offered evidence only that within certain years, 31,000 employees covered under the pension plan in

20 issue lost their jobs. The plaintiff failed to demonstrate how many of these employees failed to receive

21 a pension or met the criteria to receive one. Thus, numerosity was not satisfied. Similarly, in

22 Stambaugh v. Kansas Dep't of Corrections, 151 F.R.D.664, 671 (D.Kan.1993), the court did not accept 23 the plaintiffs' argument that simply because there were 794 female employees in the department, all 24 must have been subject to gender discrimination. "The wide gap between an individual's claim of 25 discrimination and the existence of a class of persons who have suffered the same injury cannot be 26 bridged by conclusory allegations of several instances of discrimination in a single D.O.C. facility." Id. 27 at p. 676. Here, Plaintiffs cannot bridge the gap between their claim that they were treated differently 28 in regard to the wrestling team under the lead of a coach other than Burch and their claim that the entire

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1 varsity sports program at U.C. Davis discriminates against women. They have not established the

2 requisite numerosity.

3

V.

4

THE CLAIMS OF THE PUTATIVE CLASS PLAINTIFFS ARE SUBJECT TO UNIQUE

5 DEFENSES AND ARE NOT TYPICAL OF ANY CLAIM THAT MIGHT BE RAISED BY A

6

CLASS MEMBER

7

In considering the issue of typicality the Court must look at the issues of whether focus on the

8 class issues will be subsumed by the individual claims and whether the claims made by the putative

9 class representatives are subject to unique defenses that threaten to become the focus of the litigation. 10 Hanon v. Dataproducts Corp" 976 F.2d 497 (9th Cir. 1992). The test of typicality "is whether the other

11 members have the same or similar injury, whether the action is based on conduct which is not unique to

12 the named plaintiffs, and whether other class members have been injured by the same course of

13 conduct. [citation]." Id. at p. 508. This is in keeping with the Supreme Court's directive that "A class

14 representative must be part of the class and possess the same interest and suffer the same injury as the

15 class members." Gen'l Tel. Of the West v. Falcon, supra at p. 156 . Plaintiffs in this case cannot meet

16 this standard because their experiences with the wrestling team are unique and have no application to,

17 or relevance to, the experiences of any female student athletes seeking to establish a sport as a varsity

18 team for purposes of intercollegiate competition. The primary focus of this litigation is Plaintiffs'

19 disparate treatment contentions that are based on the events that took place in the fall of 2000.

20 A. Plaintiffs' claims and experiences are different than any potential claim by a putative

21

class member

22

Plaintiffs purport to speak on behalf of, and represent the interests of, female student-athletes

23 who are currently participating in a number of club sports or who have an interest in doing so,

24 notwithstanding the fact their motion is devoid of even one declaration from a current or future U.C.

25 Davis female student (other than the Plaintiffs) who believes she has been denied the opportunity to

26 participate in athletics. There is a vast difference between the experiences of the Plaintiffs in regard to

27 their efforts to either be part of the wrestling team or to have the school establish a separate women's

28 wrestling program so that they can train for open meets, and the experiences of women who want to, or

26 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

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1 do, tryout for a place on the roster on a women's varsity team in an N.C.A.A. sanctioned sport.

2

NG, CHIANG and MANSOURIAN were never required to tryout for a place on the wrestling

3 team. This is an aberration in the world of varsity sports. The general process followed by head

4 coaches in selecting members of a varsity team is to have the candidates engage in competition with

5 each other to determine which athletes demonstrate exceptional skills. (Exhibit K, ~ 9). Former coach

6 Burch was of the opinion that none of the Plaintiffs had the skills necessary to actually make the team.

7 They were permitted to practice with the team, but it is questionable whether they had a true varsity

8 experience when their only taste of competition was one open meet, if that. There is a very significant

9 factual dispute as to the events that took place in the fall of 2000 which led to the women being left off

10 of the roster for the wrestling team. The Plaintiffs and their former coach contend some of the

11 Defendants told the coach that women were not permitted to be on the team. Defendants contend that

12 Burch was unwilling to allot any of his limited roster spots to the women, who could not come

13 anywhere close to competing against wrestlers in Division I schools. However, rather than tell them the

14 truth about his assessment of their skills and his unwillingness to give up a spot to them that could

15 otherwise go to a competitive male wrestler, Burch lied to the women and told them they were off the

16 team because of the desires of the Athletic Department administration. During this same period of

17 time, Burch was in an ongoing dispute with his employer because he wanted a full-time appointment as

18 the head wrestling coach. It is Defendants' belief that Burch used the issue of the women wrestlers for 19 his own purposes to attempt to leverage more pay for him6 Plaintiffs contend that the roster cap should 20 not apply to them because of their gender. Defendants dispute this. If women who could not earn a

21 place on the team by their skills were permitted to remain on the roster, they would be receiving

22 preferential treatment over males who could not make the team based on their skills.

23

These factual disputes constitute the bulk of this case. The focus of the case will be on the very

24 unique experiences ofNG, CHIANG, and MANSOURIAN, who contend they were "varsity wrestlers"

25 yet never had to tryout for a place on the team and engaged in no regular conference competition. The

26 focus will also be on the very unique experience of MANCUSO, who used a soccer sponsorship to gain

27

28 6 The extent of the factual dispute on this issue is reflected by the motion for summary judgment filed in the suit filed by Burch (Burch v. Regents of the Unversity of California, et. ar., [#S 04-38 WBS/GGHj See accompanying request for judicial notice.

27 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

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1 admittance to U.C. Davis even though she had no intention of actually trying to make the soccer team.

2 Instead, relying on hearsay (and erroneous hearsay at that) from others, she assumed she could simply

3 become part of the wrestling team without having to compete for one of the limited roster spots. The

4 coach who replaced Burch followed the long-standing tradition used in every competitive sport to

5 require those interested in obtaining a place on the team to demonstrate their athletic skills and abilities

6 and show they are the best qualified. These experiences are far different than the experiences of any yet

7 unnamed or identified female student athletes who tryout for a place on a women's varsity team.

8

Cases that are fact-specific such as this one are not appropriate for class action status. In

9 Pinkard v Pullman, 678 F.2d 1211, 1214 (5th Cir. 1982), four African-American plaintiffs sought class

10 certification in an action where they claimed systemic discrimination. The district court's denial of

11 certification was upheld by the Fifth Circuit, which stated "It is well settled that, where a case requires

12 detailed investigations of the circumstances surrounding the claims of the individual class members,

13 that case does not lend itself to treatment as a class action." Judge Levi's opinion in Stevens v. Hamer,

14 213 F.R.D. 358, 367 (E.D.Cal. 2002) is also instructive on this point. The plaintiffs alleged they were

15 entitled to certification of their claims as a class action against the California Youth Authority, even

16 though the claims arose out of different situations involving different wards at different institutions.

17 Judge Levi noted that the plaintiffs provided only minimal information concerning their right to

18 equitable relief, and that "nor are many of the claims for class-wide equitable relief tightly connected to

19 the present circumstances of the individual named plaintiffs." Id. at p. 367. After decrying the fact that

20 the plaintiffs had been content to simply allege one past violation at one CYA facility and then claim

21 standing and imminent harm on a system-wide basis, Judge Levi held that "in the absence of specific

22 factual allegations connecting the named plaintiffs' individual claims to particular CYA policies and

23 procedures, the complainant's class allegations provide no additional insight into whether the named

24 plaintiffs face a sufficient individual likelihood of future injury to pursue equitable relief." Id. at p.

25 368-9.

26 B. Plaintiffs' claims are subject to unique defenses such as the statute of limitations

27

Various affirmative defenses raised by Defendants threaten to shift the focus away from the

28 class. The statutes of limitations for a Title IX claim and a claim under 42 U.S.C. section 1983 are

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1 derived from the state law limitation for personal injury claims. Stanley v. Trustees of the California

2 State University, 443 F.3d 1129, 1134 (9th Cir. 2006). California Code of Civil Procedure section

3 335.1, which sets forth a two year statute of limitations for personal injury claims, becarne effective on 4 January 1,2003. Jones v. Blanas, 393 FJd 918, 927 (9th Cir. 2004). Prior to that date the statute of

5 limitations for such claims was one year. The new two year statute does not apply retroactively. rd.

6 Claims that accrued prior to that date are governed by the former one year statute. Abreu v. Ramirez,

7 284 F.Supp.2d 1250, 1255 (D.CaI.2003). The statute of limitations on a claim begins to run when the

8 plaintiff knows or has reason to know of the alleged injury which forms the basis of the action. Stanley,

9 supra at p. 1136.

10

MANSOURIAN and NG contend that in October 2000, they were told by Burch that "the

11 administration" did not want women on the wrestling team and thus they could not have a spot on the

12 roster. CHIANG was not at the meeting when he made this statement, but was still enrolled at U.C.

13 Davis at the time and heard about it from her co-plaintiffs. MANCUSO entered U.C. Davis in the fall

14 of 2001. Per the requirements of the new wrestling coach, all persons seeking a place on the roster of

15 the wrestling tearn had to compete with other hopefuls in a wrestle-off. MANCUSO participated in the

16 wrestle-offs but was defeated and not selected for the tearn. NG was also not selected because she was

17 defeated by MANCUSO. MANSOURIAN did not bother to tryout for the team in the fall of 2001 and

18 CHIANG failed to return to school that quarter. This suit was not filed until December 18, 2003. The

19 claims of MANSOURIAN and CHIANG had expired by October 2001. At the latest, the claims ofNG

20 and MANCUSO ripened on the day they were cut from the tearn, which was October 30,2001. Their

21 claims expired on October 30, 2002. All of these claims were "dead" when the complaint was filed on

22 December 18, 2003 as they all fell within the previous one year statute of limitations. Litigation of this

23 issue will playa key role in this case.

24

VI.

25

PLAINTIFFS DO NOT HAVE STANDING TO BE CLASS REPRESENTATIVES

26

CHIANG and MANSOURIAN contend they can adequately represent the interests of the

27 proposed class. Whether that class is the class of current or future female students who might be

28 interested in wrestling at the collegiate level, or whether it is the more broad definition suggested by

29 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

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1 Plaintiffs in this motion, CHIANG and MANSOURIAN do not fall into the proposed class because

2 they have both graduated and exhausted their athletic eligibility under N.C.A.A. rules. MANCUSO's

3 eligibility has not currently expired, but it will by June 2006 (see below). Even if the Court were to

4 certify a class, Defendants would move to decertify it upon MANCUSO's actual graduation.

s

A plaintiff in a Title IX case must have standing to assert each and every claim she makes in her

6 complaint. Beasley v. Alabama State University, 3 F.Supp. 2d 1325,1343 (D. Ala. 1998). A plaintiffs

7 claim must be live not only at the time the suit is filed, but throughout the litigation. If a plaintiff loses

8 her standing during the pendency of the suit, she loses the right to assert the claim. Id. at p. 1344. A

9 student-athlete who had N.C.A.A. eligibility and thus standing at the time a suit was filed, but whose

10 eligibility expires before the end of the suit and before a class is certified no longer has standing to

11 assert Title IX and related discrimination claims. Ibid. Similarly, a student who has graduated lacks

12 standing to complain about a school's athletic program. Ritacco v. Norwin School District, 361

13 F.Supp.930, 931 (D.Pa.1973); Cook v. Colgate,992 F.2d 17,18(2d Cir.1993)[compiling cases on

14 mootness of Title IX cases based on graduation]. The wrestling team at U.C. Davis is an N.C.A.A.

15 sponsored sport. Student-athletes who participate in intercollegiate athletics at U.C. Davis are subject

16 to that entity's eligibility rules. (Exhibit L, ~~ 3-4). As a general rule, a student-athlete cannot

17 participate in a Division I sport for more than four seasons of intercollegiate competition. Further, a

18 student-athlete must complete his/her seasons of eligibility within five years of the first quarter in which 19 the student is registered as a full-time student. (Id.) While the N.C.A.A. rule on this issue is couched in 20 terms of calendar years, as a practical matter it applies to academic years because there is no

21 intercollegiate competition or required practices in the summer months. MANSOURIAN entered U.C.

22 Davis in the fall of 2000 as a full-time student and graduated in June of 2004. Her N.C.A.A. eligibility 23 expired in June of2005. (Exhibit L, ~ 5) None of the exceptions to the five year rule (military service,

24 religious missions, Peace Corps service or pregnancy) apply to her. CHIANG entered U.C. Davis in

25 the fall of 1998 as a full time student. Her eligibility expired in June of 2003. Her ineligibility is

26 further compounded by the fact in the Winter Quarter of 2001 she became academically ineligible

27 because of her poor grades. (IQJ

28

MANCUSO has never been a member of the varsity wrestling team, or any other team, at U.c.

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1 Davis. (Exhibit E, p. 233:17-21; 257:2-7) She entered U.C. Davis in the fall of 2001 and filed to

2 graduate in November 2005. By the time this motion is heard, MANCUSO should have received her

3 degree and graduated. Her N.C.A.A. eligibility expires in June 2006 (Exhibit L, ~5)

4

None of the Plaintiffs can demonstrate that they are entitled to the injunctive relief they seek

5 because none of them can show that they face exclusion from participation in varsity wrestling (or any

6 other sport) at U.c. Davis in the future. Without this essential element, there is no basis for injunctive

7 relief and no basis for claiming they can act as class representatives. City of Los Angeles v. Lyons, 461

8 U.S.95, 105-106 (1983); Doe v. District of Columbia, 216 F.R.D. 5, 12 (D.D.C. 2003). Plaintiffs

9 cannot show they face imminent injury or damage. Courts are very hesitant to inject themselves into

10 the operation of state agencies under such circumstances. "In general, injunctive relief is to be used

11 sparingly, and only in a clear and plain case, especially when the court is enjoining the conduct of a

12 state agency. [citation] The rigorous preconditions to such injunctions reflect both federalism and

13 separation of powers principles.... Thus, the requirement that plaintiffs establish a particularized risk of

14 imminent injury before seeking prospective relief ensures that federal courts refrain from intervening in

15 the administration of state institutions absent a clearly defined legal dispute." Stevens v. Harper, 213

16 F.R.D. 358,367 (E.D.Cal. 2002)

17

In Grandson v. University of Michigan, 272 F.3d 568 (8th Cir. 2001) the university was notified

18 by the Office for Civil Rights in September 1996 that an administrative complaint had been filed

19 against it alleging it was not effectively accommodating the athletic interests and abilities of its female

20 students; that it failed to provide female athletes with proportional athletic financial assistance; and it

21 failed to provide female athletes with equal services such as training, travel and recruiting. In February

22 1997, plaintiff/student Julie Grandson filed suit against the University of Michigan, seeking injunctive 23 and monetary damages due to alleged gender discrimination. She was a member of the women's 24 varsity soccer team. Three months later, plaintiffs Thompson, Lindahl, and Jeffries (known collectively

25 as the "Thompson plaintiffs") filed suit on behalf of themselves and a purported class of all similarly 26 situated female students. Grandson's claims were dismissed by the trial court because she failed to 27 demonstrate that she complained to University officials about alleged disparate treatment and failed to

28 show intentional discrimination or deliberate disregard for women's athletics in regard to funding

31 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 37 of 42

1 issues. The claims of the Thompson plaintiffs were dismissed because they either had not played a

2 varsity sport or because their N.C.A.A. eligibility had expired. In upholding the trial court's rulings,

3 the Eighth Circuit Court of Appeals did not share the plaintiffs' vision that the judicial system act as "a

4 de-facto super-athletic department director." Id. at p. 573. Although the class certification issue was

5 decided on a timeliness basis rather than the merits, the Court held that plaintiffs Grandson, Thompson

6 and Jeffries had no standing to seek prospective injunctive relief because they had no further N.C.A.A.

7 eligibility, and that Lindahl lacked standing for such relief because she never played on a varsity team.

8 In this case, neither MANSOURIAN nor CHIANG have standing to seek the relief identified in their

9 Complaint because their N.C.A.A. eligibility has long expired. MANCUSO was never a member of a

10 varsity team at U.C. Davis, and her N.C.A.A. eligibility will expire prior to the time the issue of

11 injunctive relief will be before the Court.

12

Where class certification is sought under rule 23(b)(2), any claim for monetary damages

13 asserted must be secondary to the claim for irljunctive or declaratory relief. Molski v. Gleich, 318 F.3d 14 937,947 (9th Cir. 2003). If Plaintiffs do not have standing to claim entitlement to injunctive relief, their

15 damages claim is limited to their request for monetary damages, which would become predominant and

16 would render a rule 23(b)(2) class improper, given the unique factual allegations giving rise to their

17 damages claim.

18

Since Plaintiffs lack standing, they are not adequate class representatives.

19

VII.

20 PLAINTIFFS SHOULD BE LIMITED TO CONSIDERATION OF THE PROPOSED CLASS

21

AND REPRESENTATIVES IDENTIFIED IN THE COMPLAINT

22

The scope of the pleadings defines the issues to be adjudicated in a case, including issues

23 pertaining to a putative class. Wilson v. Zarhadnick, 534 F.2d 55, 57 (5th Cir. 1976). In their

24 Complaint, the "class plaintiffs" allege they "seek to represent the class of all present and future female

25 students at U.C. Davis who are denied equal athletic participation opportunities and scholarships in

26 women's wrestling by Defendants' discriminatory actions." (Exhibit A, ,; 108, emphasis added). A

27 perusal of the allegations in the Complaint shows that the vast majority of them pertain to wrestling at

28 U.C. Davis, not other sports. By this motion Plaintiffs seek to have a different class certified: "all

32 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 38 of 42

1 current, prospective, and future female students at the University of California, Davis, who are denied,

2 and all females who are deterred from enrolling at U.C. Davis because they would be denied, an equal

3 opportunity to participate in varsity intercollegiate athletics andlor to receive athletic financial

4 assistance because of their sex." This proposed definition greatly exceeds the definition set forth in the

5 Complaint as it includes females who do, or might, have an interest in participating in any sport at U.C.

6 Davis, not just wrestling. While there are passing references in the Complaint about alleged inequities

7 in athletic participation opportunities and financial assistance for females as a whole, the clear gist of

8 the Complaint is directed toward women participating in wrestling at U.C. Davis. The only

9 declarations submitted in support of the motion for class certification are those of MANSOURIAN and

10 MANCUSO. Their declarations focus solely on wrestling; there is no reference to any other sport.

11 Notably missing is even one declaration from a current or prospective female U.c. Davis student who

12 claims she did not or will not have the opportunity to participate in a sport other than wrestling, or was

13 denied athletic financial assistance.

14

There is also a disparity between the allegations made in the Complaint about which Plaintiffs

15 should be class representatives and the proposal regarding representatives made in this motion. In the

16 Complaint under the heading "Class Action Allegations", it is alleged that "Plaintiffs MANSOURIAN 17 and MANCUSO (the "Class Plaintiffs") bring claims I, 2, 4, 5, and 6 on behalf of themselves and on

18 behalf of those similarly situation under Federal Rules of Civil Procedure 23(a) and (b)(2)." (Exhibit

19 £b ~ 107) CHIANG is not identified as a "class plaintiff'. In each of the five claims for relief asserted

20 on behalf of both the Plaintiffs and the putative class, the following allegation is made: "Class Plaintiffs

21 bring this claim on behalf of themselves and the above-defined class. Plaintiffs CHRISTINE NG and

22 NANCY CHIANG bring this claim on behalf of themselves only." (Exhibit A, ~~ 126,137,162,171 and

23 181). Plaintiffs have never moved to amend the Complaint to include CHIANG as a "class plaintiff'

24 and the time for doing so has long expired. (See Pre-Trial (Scheduling) Order, as amended)

25

For purposes of this motion, Plaintiffs should be bound by the definition of the proposed class

26 and the identification of proposed class representatives pled in the Complaint.

27 1//

28 //1

33 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 39 of 42

1

VIII.

2

THE SCOPE OF THE PROPOSED CLASS IS SPECULATIVE AND OVERBROAD

3

Members of an identifiable class may be determined by reference to objective criteria but not if

4 membership is contingent on the prospective member's state of mind. Elliot v. ITT, supra at p. 574. In

5 Harris v. General Dev. Corp., 127 F.R.D. 655, 659 (D.Il1.l989) the court declined to certify a class

6 consisting of all African Americans who were deterred or discouraged from applying for a job with the

7 defendant because it would have required an inquiry into each putative class member's state of mind.

8 Similarly, in Price v. Wilton Public Sch. District, 1998 U.S. Dist. LEXIS 23139, the Court declined to

9 include "all future female athletes who participate, seek to participate or are deterred from participating

10 in athletics" as part of a proposed class on the ground that including such unknown persons in the class

11 would render it too broad. In this case, the Court would have to engage in speculation on whether any

12 of the girls who are currently wrestling at the high school level have an interest in pursuing the sport at

13 the collegiate level, and if so, whether they are interested in and can obtain admission to U. C. Davis.

14

As noted above, the requirements for admission to U.c. Davis are very strict. There is no way

15 to meaningfully peer into the mind of these high school girls and determine which, if any, plan to apply

16 to and attend U.c. Davis, and of those, which will be admitted. Even if the Court considered the much

17 broader proposed class of all female athletes, it would still have to engage in speculation as to which

18 members of that class have been "deterred" from enrolling at U. C. Davis because of alleged gender

19 discrimination in athletics.

20

In addition to being speculative, the class proposed by this motion is over-broad. In Bryant v.

21 Colgate University, supra, several members of the Colgate women's ice hockey sport club brought a 22 Title IX action seeking to have ice hockey elevated to a varsity sport and claiming that Colgate did not

23 provide adequate athletic opportunities for its female students. They sought to have the following class 24 certified: "all present and future Colgate University women students and potential students who 25 participate, seek to participate, and/or are deterred from participating in Colgate'S intercollegiate 26 athletics program." The court denied certification, finding that the proposed class included female 27 student athletes whose interests were already being accommodated. Further, it found that the suit was 28 focused on the ice hockey team; there was no evidence to support a finding that would justify

34
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 40 of 42

1 declaratory or injunctive relief for any female athletes except those in the ice hockey club. This holding

2 is directly applicable to the issues before this Court. Notwithstanding the broad reach of the proposed

3 class, the focus of this litigation is on women wrestlers, not all women athletes at U.C. Davis.

4

This action does not support certification of any proposed class. However, if the Court has any

5 inclination to certify a class, it should be limited to current or future female students who meet the

6 criteria for admission to U.C. Davis and who are interested in and able to participate in wrestling at the

7 collegiate level but are unable to do so because there is not a separate women's varsity wrestling team.

8 See Bryant v. Colgate University, supra at p. *26-28. Plaintiffs should be required to provide further

9 evidence of numerosity before such relief is granted. Id.

10

IX.

11

CONCLUSION

12

This case revolves around the experiences of four women who participated in the wrestling

13 program under criteria not applied to male members of the team or any other student athletes regardless

14 of gender. They did not have to tryout for the team and did not participate in regularly scheduled

15 competition. After a change in coaches, the women were required to try out like all other hopefuls.

16 They did not make the team. Rather than choosing to engage in their sport at the club sport level,

17 increase their skills and then submit a proposal for elevation of women's wrestling to varsity status,

18 they filed a lawsuit. This suit relates to their unique experiences, not the interests of a purported class

19 of women athletes.

20

The women's intercollegiate athletics program at U. C. Davis is one of the best in the nation.

21 No women other than the Plaintiffs have an interest in making this a class action or having any of the

22 Plaintiffs represent their interests. Defendants respectfully request that the motion be denied in its

23 entirety. 24 1/1 25 11/ 26 1/1 27 11/ 28 11/

35
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 41 of 42

!f-, 1 Dated: April

2006

2

3

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13

14

15

16

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18

19

20

21

22

23

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28

. PORTER, SCOTT, WEIBERG & DELEHANT A Professional COl1loratio
By c./ Nancy J. Sheeh
George A. Acero Attorneys for Defendants, REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARRY VANDERHOEF, GREG WARZECKA, PAM GILLFISHER, ROBERT FRANKS and LAWRENCE SWANSON

36
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTiON FOR CLASS CERTIFICATION

Case 2:03-cv-02591-FCD-EFB Document 103 Filed 04/04/06 Page 42 of 42

I MANSOURIAN, et aJ. v. BOARD OF REGENTS, et aJ. U.S. DISTRICT COURT, EASTERN DISTRICT CASE NO. S-03-2591 FCDIPAN
2 (JFM)

3

PROOF OF SERVICE

4

I am a citizen of the United States and a resident of the County of Sacramento. I am

over the age of eighteen years and not a party to the above-entitled action; my business

5 address is 350 University Avenue, Suite 200, Sacramento, CA 95825.

6

On April 4, 2006, I served the following document(s):

7

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS

CERTIFICATION

8

l

BY MAIL. I caused such envelope with postage thereon fully prepaid to be placed

9

in the United States mail at Sacramento, California.

10

BY PERSONAL SERVICE. I caused such document to be delivered by hand to the

office of the person(s) listed above.

II

BY OVERNIGHT DELIVERY. I caused such document to be delivered by overnigh

12

delivery to the office of the person(s) listed above.

l3

BY FACSIMILE. I caused such document to be faxed to the office of the person(s)

listed above with a original or copy of said document placed in the United States mail

14

with postage thereon fully prepaid at Sacramento, California.

15 addressed as follows:

16 Kristen Galles Equity Legal
17 10 Rosecrest Avenue Alexandria, VA 22301
18

19

I hereby certifY that I am employed in the office of a member of the Bar ofthis Court

20 at whose direction the service was made. I hereby certifY under the penalty of perjury that

21 the foregoing is true and correct.

22

Executed on April 4, 2006, at sacramen, Cali~rni.a

23

J )
'f\

I"
\~{)1/

Kejda Carr

24

25

26

27
LAW OFFICES QF
WE:B~~~E:'~~'~:I~~~8
,\ J'RO'1i$S'''~AJ cORPORATION )," UNtYER,rr\' A'l'.. ,um;~rJO
PO B()Xl,~'l' S.ACRAMEN'O, CA 95~6'i
(916)929.1481
wwwpswdlaw,com

00262554.WPD

 
 Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 1 of 13

1 James C. Sturdevant, State Bar No. 94551 (jsturdevant@sturdevantlaw.com)
2 Mark T. Johnson, State Bar No. 76904 (mjohnson@sturdevantlaw.com)
3 Monique Olivier, State Bar No. 190385 (moliver@sturdevantlaw.com)
4 THE STURDEVANT LAW FIRM A Professional Corporation
5 475 Sansome Street, Suite 1750 San Francisco, CA 94111
6 Telephone: (415) 477-2410 Facsimile: (415) 477-2420

7 Debra Smith, State Bar No. 147863

8

(dsmith@equalrights.org) Noreen Farrell, State Bar No. 191600

9

(nfarrell@equalrights.org) EQUAL RIGHTS ADVOCATES

10

1663 Mission Street, Suite 250 San Francisco, CA 94103

11

Telephone: (415) 621-0672 Facsimile: (415) 621-6744

12 Kristen Galles, State Bar No. 148740 (kgalles@abanet.org)
13 EQUITY LEGAL 10 Rosecrest Avenue
14 Alexandria, VA 22301 Telephone: (703) 683-4491
15

Attorneys for Plaintiffs
16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

[Sacramento Division]
18

AREZOU MANSOURIAN; LAUREN 19 MANCUSO; NANCY NIEN-LI CHIANG;

CHRISTINE WING-SI NG; and all those similarly

20 situated,

Plaintiff,

21

vs.

BOARD OF REGENTS OF THE UNIVERSITY

22 OF CALIFORNIA AT DAVIS; LAWRENCE

“LARRY” VANDERHOEF; GREG WARZECKA;

23 PAM GILL-FISHER; ROBERT FRANKS; and

LAWRENCE SWANSON,

24

Defendant

25

26

27

CASE NO. S-03-2591 FCD EFB

CLASS ACTION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S APPLICATION FOR COURT APPROVAL OF VOLUNTARY DISMISSAL OF CLASS CLAIMS AND A DETERMINATION THAT NOTICE TO THE CLASS IS NOT REQUIRED

Date:

June 8, 2007

Time:

10:00 a.m.

Courtroom: 2

Complaint filed: December 18, 2003

Trial Date:

June 17, 2008

28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE
CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 2 of 13

1
I.
2
II.
3
III.
4
5
6
7
8
9
10
IV.
11

TABLE OF CONTENTS
INTRODUCTION........................................................................................................................... 1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY ................................................. 3
ARGUMENT .................................................................................................................................. 4
A. Subject to Court Approval, a Class Action or Class Claims in an Action May Be Dismissed Prior to Certification Where There Is No Prejudice to Class Members. ........................................................................... 4
B. Court Approval of the Dismissal of the Class Claims in this Case Is Appropriate Because the Rights and Interests of the Putative Class Will Not Be Prejudiced in Any Way And, in Fact, Will Be More Effectively Advanced in a Separate Action. ................................................ 6
C. Notice to the Class Is Not Required and Should Not Be Ordered as a Condition of Approving Dismissal of the Class Claims. ............................................. 7
CONCLUSION ............................................................................................................................. 10

12

13

14

15

16

17

18

19

20

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22

23

24

25

26

27

28

i

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 3 of 13

1

TABLE OF AUTHORITIES

2 Austin v. Pa. Department of Corrections,

876 F. Supp. 1437 (E.D. Pa.1995) ...................................................................................................9

3

Baker v. America’s Mortgage Servicing, Inc.,

4

58 F.3d 321 (7th Cir. 1995) .............................................................................................................4

5 County of Riverside v. McLaughlin,

500 U.S. 44 (1991)...........................................................................................................................3

6
Diaz v. Trust Territory of Pac. Islands,

7

876 F.2d 1401 (9th Cir. 1989) .............................................................................................4, 5, 7, 8

8 George W. v. U.S. Department of Education, 149 F. Supp. 2d 1195 (E.D. Cal. 2000)............................................................................................7

9
Kahan v. Rosenstiel,

10

424 F.2d 161 (3d Cir. 1970).............................................................................................................5

11 Larkin General Hospital, Ltd. v. America Telegraph & Telegraph Co., 93 F.R.D. 497 (E.D. Pa. 1982).........................................................................................................5

12
Preferred MSO of America-Austin LLC v. QuadraMed Corp.,

13

85 F. Supp. 2d 974 (C.D. Cal. 1999) ...............................................................................................9

14

Pressman v. America President Companies, Ltd., No. C94 1449 CAL, 1995 WL 705148 (N.D. Cal. Nov. 20, 1995).................................................9

15 Sheinberg v. Fluor Corp.,

16

91 F.R.D. 74 (S.D.N.Y. 1981) .........................................................................................................8

17

Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir. 1978) .........................................................................................................5

18 Shinsato ex rel. Shinsato v. Abbott Laboratories, No. C-02-1015 MMC, 2003 WL 22114265 (N.D. Cal. Sep. 5, 2003) ............................................8
19

Yaffe v. Detroit Steel Corp.,

20

50 F.R.D. 481 (N.D. Ill. 1970).........................................................................................................5

21
RULES
22
Fed. R. Civ. P. 23(e)(1)(A) ..........................................................................................................................5
23
OTHER AUTHORITIES
24
3 Conte & Newberg, Newberg on Class Actions § 8:18 (4th ed. 2002)........................................................5
25
4 Conte & Newberg, Newberg on Class Actions § 11.66 (4th ed. 2002)......................................................9
26

27

28

ii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 4 of 13

1 I. INTRODUCTION

2

Pursuant to Federal Rules of Civil Procedure, rule 23(e), plaintiffs Arezou Mansourian and

3 Lauren Mancuso hereby seek an Order approving the dismissal of their class claims in this action, by

4 which they originally sought injunctive relief on behalf of persons similarly situated. Subject to such

5 approval, plaintiffs Mansourian and Mancuso, along with plaintiff Christine Wing-Si Ng, intend to 6 pursue this action in their individual capacities only.1 Plaintiffs further seek an Order that notice to class

7 members is not required as a condition of the dismissal of the class claims, based upon the fact that the

8 proposed class has not yet been certified and based upon a finding that no class member will be bound

9 by or prejudiced by the dismissal of the class claims.

10

Plaintiffs filed this proposed class action in December of 2003, seeking injunctive relief for the

11 University of California, Davis’ (“UC Davis”) ongoing violations of federal and state civil rights laws.

12 Specifically, plaintiffs have alleged violations of Title IX of the Education Amendments of 1972 (20

13 U.S.C. § 1621 et seq.), the Equal Protection Clause of the Fourteenth Amendment to the United States

14 Constitution (as enforced through 42 U.S.C. § 1983), and various state statutes based upon defendants’

15 failure to provide women students at UC Davis with an equal opportunity to participate in varsity

16 athletics and to receive varsity athletic scholarships. In addition to classwide injunctive relief, plaintiffs

17 seek damages on behalf of the individual named plaintiffs arising from defendants’ termination of their

18 participation in varsity wrestling at UC Davis.

19

This motion is prompted by a series of events leading to the conclusion that it is now in the best

20 interest of the class and of plaintiffs that this action be prosecuted as an individual action for damages on

21 behalf of the named plaintiffs only, rather than as a class action with plaintiffs Mansourian and Mancuso

22 as class representatives. First, as the result of unavoidable delays in the prosecution of this action due to

23 the serious illness of counsel and the eventual substitution of plaintiffs’ counsel, more than three years

24 have elapsed since the filing of this action. In the interim, plaintiffs Mansourian and Mancuso both

25

26 1

Plaintiffs Nancy Nien-Li Chiang and Christine Wing-Si Ng filed this action in their individual

27 capacities only. Plaintiff Chiang’s claims were dismissed in their entirety by stipulation of the parties on March 29, 2007.

28

1

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 5 of 13

1 graduated from UC Davis and are no longer eligible to participate in varsity sports at UC Davis even if

2 their sport, women’s wrestling, were reinstated. Although plaintiffs sought classwide injunctive relief

3 beyond the reinstatement of varsity women’s wrestling, defendant Regents has challenged plaintiffs’

4 standing to seek any injunctive relief, as well as their capacity to represent the proposed class, on the

5 basis that they are no longer UC Davis students.

6

Second, in order to strengthen the class allegations, clarify the scope of the class claims and

7 address defendants’ arguments concerning the standing of plaintiffs Mansourian and Mancuso to seek

8 injunctive relief on behalf of the proposed class, plaintiffs sought leave from this Court to file a First

9 Amended Complaint. Among other things, the First Amended Complaint would have added three

10 additional plaintiffs and proposed class representatives, Laura Ludwig, Jessica Bulala, and Kelsey Brust,

11 each of whom are currently enrolled students at UC Davis. On March 20, 2007, this Court denied

12 plaintiffs’ motion for leave to file the proposed amended complaint.

13

Third, following the Court’s denial of leave to amend the complaint to add proposed plaintiffs

14 Ludwig, Bulala, and Brust, those individuals have decided to file their own action on behalf of currently

15 enrolled women at UC Davis based upon the Regents continuing failure to provide equal athletic

16 opportunities for women at UC Davis, in violation of Title IX.

17

The combination of these events justify the dismissal of the class claims in this case and the

18 continued prosecution of the case by plaintiffs in their individual capacities for damages. Since

19 voluntary dismissal of the class claims is sought prior to certification, no members of the proposed class

20 will be bound by the dismissal of the class claims. Moreover, no proposed class member will be

21 prejudiced by the dismissal of the action. The individuals who sought to enter this case in plaintiffs’

22 motion to amend now intend to file their own action for relief against the Regents. Plaintiffs’ class

23 claims in this case never sought damages on behalf of the members of the class, limiting class relief on

24 all claims to equitable relief in the form of an injunction and declaratory relief. Any members of the

25 proposed class will either be in the position of the current plaintiffs, having graduated from UC Davis

26

27

28

2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 6 of 13

1 and no longer having a personal stake in injunctive relief, or, if they are still students, will be 2 represented as class members in the new action.2

3

For these same reasons, there is no reason to require notice to proposed class members of the

4 dismissal of the class claims in this action. No proposed class member will have relied to her detriment

5 on the existence of this action as a class action. Nor will any class member have any basis to object to

6 the dismissal of the class claims in this action and the pursuit of those claims in a separate action

7 involving current students as class representatives. Accordingly, plaintiffs request that this Court

8 approve the dismissal of the class claims from this action without requiring notice to the class.

9 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

10

Plaintiffs filed their Complaint on December 18, 2003. (Docket # 1.) Defendants filed a motion

11 to dismiss the case under Rule 12(b)(6) of the Federal Rules of Civil Procedure on March 5, 2004

12 (Docket # 13-15), which this Court denied on May 6, 2004 (Docket # 18-21, 25).

13

Plaintiffs filed their motion for class certification on December 7, 2005 to be heard on February

14 24, 2006. (Docket # 62-70.) The hearing was continued to April 21, 2006. (Docket # 82 & 93.)

15 Defendants filed their opposition to plaintiffs’ motion for class certification on April 4, 2006. (Docket #

16 103-107.) Thereafter, the hearing on class certification was set for April 27, 2007, with supplemental

17 briefing to be filed prior to the hearing. (Docket # 156.) By stipulation of the parties, approved by the

18 Court, the hearing was further continued to May 25, 2007, the date on which it is now set. (Docket #

19 179.)

20

On April 18, 2006, for good cause shown, the Court granted a motion by plaintiffs for a stay of

21 all deadlines and scheduling matters due to the serious health problems of plaintiffs’ counsel, Kristen

22 Galles of Equity Legal. (Docket # 125.) In order to allow sufficient time for Ms. Galles to find

23 substitute or additional counsel, the Court vacated all deadlines and stayed the action until a status

24

2
25

Although plaintiffs Mansourian and Mancuso, as recent graduates, no longer have a personal

stake in the reinstatement of a wrestling team at UC Davis or other injunctive relief, they contend that

26 they continue to have standing to represent the class for such relief under the doctrine of inherently transitory claims. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). Defendants contend

27 otherwise, however. Given the desire of other women at UC Davis to pursue an action for classwide injunctive relief on behalf of current students, there is no reason to litigate the issue in this case.

28

3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 7 of 13

1 conference on June 16, 2006. (Id.) In response to a Stipulation by the parties, and a subsequent motion

2 by plaintiffs, the Court extended the stay until a status conference on September 8, 2006. (Docket #

3 137.)

4

Attorneys at The Sturdevant Law Firm and Equal Rights Advocates entered a Notice of

5 Appearance as new lead counsel for plaintiffs on August 18, 2006. (Docket # 140.) Monique Olivier of

6 The Sturdevant Law Firm and Noreen Farrell of Equal Rights Advocates immediately conferred with

7 Nancy Sheehan, counsel for defendants, about pending scheduling matters. On August 23, 2006, the

8 Court granted the parties’ stipulation to extend the stay and continue the status conference to November

9 3, 2006. (Docket # 143.) On October 20, 2006, the Court granted the parties’ further stipulation to

10 extend the stay and continue the status conference to January 26, 2007. (Docket # 149.)

11

The parties submitted their Joint Status Report on January 19, 2007. (Docket # 154.) In this

12 report, plaintiffs advised the Court of their desire to seek leave to amend the Complaint to add an

13 additional plaintiff and proposed class representative, and to add related allegations. (Id. at 2:4-7.) On

14 January 22, 2007, the Court vacated the status conference set for January 26, 2007 and stated it would

15 issue a written order. (Docket # 155.) On January 24, 2007, the Court issued the 2nd Amended Status

16 (Pretrial Scheduling) Order (Docket # 156), which granted plaintiffs’ request to move for leave to amend

17 the Complaint (id. at 1:27-2:9). Thereafter, the motion for leave to amend was filed and fully briefed by

18 the parties. (Docket # 158-161, 164-169.) On March 20, 2007, this Court denied plaintiffs’ motion for

19 leave to file the proposed amended complaint. (Docket # 175.)

20 III.
21 22

ARGUMENT A. Subject to Court Approval, a Class Action or Class Claims in an Action May Be
Dismissed Prior to Certification Where There Is No Prejudice to Class Members.
Rule 23(e)(1)(A) requires court approval of “any settlement, voluntary dismissal, or compromise

23 of the claims, issues, or defenses of a certified class.” Fed. R. Civ. P. 23(e)(1)(A). Although the rule, by

24 its terms, appears to apply only to the dismissal or settlement of a certified class, the majority of circuits

25 considering the issue, including the Ninth Circuit, have held that it applies to the pre-certification

26 dismissal or settlement of any action which includes class allegations. Diaz v. Trust Territory of Pac.

27 Islands, 876 F.2d 1401, 1408 (9th Cir. 1989); Baker v. America’s Mortgage Servicing, Inc., 58 F.3d 321,

28

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1 324 (7th Cir. 1995) (citing Glidden v. Chromalloy Am. Corp., 808 F.2d 621, 626 (7th Cir. 1986)); Kahan

2 v. Rosenstiel, 424 F.2d 161, 169 (3d Cir. 1970). But see Shelton v. Pargo, Inc., 582 F.2d 1298, 1303

3 (4th Cir. 1978) (taking the approach that a case with class allegations should not be considered a true

4 class action until the class has been certified).

5

The purpose of the requirement under Rule 23(e) that court approval be obtained for the

6 dismissal of class claims is “to discourage the use of the class action device by the individual

7 representative plaintiff to secure an unjust private settlement and to protect the absent class members

8 against the prejudice of discontinuance.” 3 Conte & Newberg, Newberg on Class Actions § 8:18, p. 219

9 (4th ed. 2002); see, e.g., Yaffe v. Detroit Steel Corp., 50 F.R.D. 481, 482-83 (N.D. Ill. 1970) (denying a

10 Rule 15(a) amendment as a matter of course where the amendment dismissing the class claims would

11 have clearly subverted the purpose of Rule 23(a)). The concern arises almost exclusively in the context

12 of a negotiated settlement or understanding between the parties, where the named plaintiff agrees to

13 dismiss or severely compromise the class claims and, as a result, receives a more advantageous

14 settlement than she otherwise might have obtained.

15

Notwithstanding the fact that Rule 23(e) applies to pre-certifications dismissals as well as efforts

16 to dismiss or compromise the claims of a certified class, a court’s “duty to inquire into a settlement or

17 dismissal differs before and after certification. Before certification, the dismissal is not res judicata

18 against the absent class members and the court does not need to perform the kind of substantive

19 oversight required when reviewing a settlement binding upon the class.” Diaz, 876 F.2d at 1408

20 (citation omitted); see Larkin Gen. Hosp., Ltd. v. Am. Tel. & Tel. Co., 93 F.R.D. 497, 501 (E.D. Pa.

21 1982) (when a dismissal is early in the action and prior to the certification period, “the judicial inquiry

22 under [Rule 23(e)] can be much more modest than it typically is after certification”).

23

“In no pre-certification dismissal would the court reject the dismissal and require anything more

24 than notice to the class and an opportunity to intervene.” Diaz, 876 F.2d at 1408. This is the case

25 because “any order entered in the uncertified case binds solely the individual plaintiff and not absentee

26 class members.” Id. at 1407 (citing Shelton v. Pargo, Inc., 582 F.2d at 1303). Moreover, where, as here,

27

28

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1 the proposed dismissal of class claims is unconnected to any settlement favoring the named plaintiffs, no

2 abuse of the class action mechanism has occurred and the underlying purposes of Rule 23 are satisfied.

3

B. Court Approval of the Dismissal of the Class Claims in this Case Is Appropriate

Because the Rights and Interests of the Putative Class Will Not Be Prejudiced in

4

Any Way And, in Fact, Will Be More Effectively Advanced in a Separate Action.

5

The proposed dismissal of the claims of the putative class in this action is unrelated to any

6 pending or suggested settlement or compromise of the claims asserted. Instead, it is the logical response

7 to plaintiffs’ unsuccessful effort to amend the complaint to add new class representatives who are

8 current UC Davis students. Rather than engage in extensive litigation in this action over the issue of

9 their standing to pursue injunctive relief on behalf of the class and their ability, as non-students, to

10 represent the interests of the proposed class, the named plaintiffs propose that the class claims be

11 dismissed from this action and pursued in a related action by current UC Davis students. Thus, there can

12 be no suggestion of collusion on the part of plaintiffs and defendants and no possibility that the named

13 plaintiffs will benefit in any manner, at the expense of the class, by the dismissal of the class claims.

14 Instead, plaintiffs Mansourian, Mancuso, and Ng will simply continue to pursue their claims in this

15 action in their individual capacities, seeking individual damages only, while the class claims for

16 injunctive relief are litigated in the related action.

17

Nor will there be any other prejudice to members of the putative class resulting from the

18 dismissal of the class claims in this action. First, as discussed above, since no class has yet been

19 certified in this case, the proposed class members are not bound by any decision of this court, including

20 a decision approving the dismissal of the class claims in their entirety. Second, the only relief this action

21 seeks on behalf of the class is injunctive relief based upon the alleged continuing violations by UC

22 Davis of Title IX and other applicable laws. No damages claims have ever been asserted on behalf of

23 the class. Accordingly, no argument can be made that dropping the class claims will result in the loss of

24 damages for individual class members. Further, since the entitlement to injunctive relief is based upon

25 the facts at the time such relief is sought, any class member’s ability to file an action for injunctive relief

26 is unaffected by the dismissal of the class claims for injunctive relief in this action.

27

28

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1

Finally, any doubt that the interests of the class are being protected in connection with the

2 voluntary dismissal of the class claims in this case is extinguished by the proximate filing of a related

3 action on behalf of current UC Davis women students seeking injunctive relief based upon the same type

4 of claims as asserted in this action. In this new action, several current women athletes at UC Davis,

5 including those who would have become named plaintiffs and proposed class representatives in this

6 action had plaintiffs’ motion for leave to amend the complaint been granted, will assert claims on behalf

7 of similarly situated individuals. As in this action, those claims are based upon the Regents’ failure to

8 provide women students at UC Davis with an equal opportunity to participate in varsity athletics and to

9 receive varsity athletic scholarships. Just as in this case, the claims alleged in that case include

10 violations of Title IX, the Equal Protection Clause of the Fourteenth Amendment to the United States

11 Constitution (as enforced through 42 U.S.C. § 1983), and violations of state statutes and public policy.

12 Thus, there is no possibility that class members whose claims plaintiffs are proposing to have dismissed

13 will go unrepresented on those claims. To the contrary, their claims will be fully litigated in the new

14 action, unencumbered by the issues raised in this case regarding the named plaintiffs’ standing to seek

15 the relief sought or their adequacy as class representatives.

16

The dismissal of the class claims in this case is fair and reasonable because it is without any

17 benefit to the named plaintiffs, is sought prior to any certification of the class, will not prejudice the

18 rights of absent potential class members, and will occur in the context of a new action being filed on

19 behalf of current UC Davis women students seeking the same relief. For each of these reasons, approval

20 of the dismissal of the class claims in this action should be granted.

21

C. Notice to the Class Is Not Required and Should Not Be Ordered as a Condition of

Approving Dismissal of the Class Claims.

22

23

Although Rule 23(e) requires notice in all certified class actions, notice to the class is not

24 necessarily required or appropriate in the case of a pre-certification dismissal. Diaz, 876 F.2d at 1408;

25 see George W. v. U.S. Dept. of Educ., 149 F. Supp. 2d 1195, 1202 (E.D. Cal. 2000) (“Notice serves no

26 purpose when judgment is entered against a plaintiff before a class has been properly certified and

27

28

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1 notified, for it is binding only on the named Plaintiff.” (citing Besinga v. United States, 923 F.2d 133,

2 136 (9th Cir. 1991))).

3

Under Diaz, notice of pre-certification dismissal has three purposes. First, it protects a defendant

4 by preventing a plaintiff from appending class allegations to extract a more favorable settlement.

5 Second, it protects the class from objectionable relief or depletion of limited funds available to pay class

6 claims. Third, notice protects the class from prejudice it would otherwise suffer if class members have

7 refrained from filing suit because of knowledge of the pending class action. Diaz, 876 F.2d at 1409-10.

8 Where “no one’s rights are being cut off and no potential abuses are present,” the Rule 23 notice

9 requirement should not be enforced. Sheinberg v. Fluor Corp., 91 F.R.D 74, 75 (S.D.N.Y. 1981)

10 (citations omitted).

11

Based on all of these factors, notice is not required in this case. Plaintiffs are asking the Court to

12 dismiss the class claims without prejudice to those claims and without settlement of their individual

13 claims. Plaintiffs are obtaining no benefit at all from dismissal of the class claims. There is, therefore,

14 no risk that plaintiffs used class allegations to obtain a more favorable settlement or that the class claims

15 are being dismissed in connection with a settlement that includes objectionable relief or depletion of

16 limited funds.

17

The only remaining inquiry for the Court is whether potential class members have refrained from

18 filing suit because of knowledge of the pending class action and will be prejudiced by relying on the

19 existence of this action. Diaz, 876 F.2d at 1409. Since no damages claims were ever asserted in this

20 case on behalf of the proposed class members, no putative class members could have relied upon the

21 pendency of this action for the potential recovery of any damages claims they might have had. With

22 respect to class wide injunctive relief, any female students at UC Davis who continue to be affected by

23 the defendants’ alleged unlawful conduct will benefit as absent class members in the class litigation filed

24 by other current students. See, e.g., Shinsato ex rel. Shinsato v. Abbott Laboratories, No. C-02-1015

25 MMC, 2003 WL 22114265, *1 (N.D. Cal. Sep. 5, 2003) (pendency of other class actions seeking the

26 same relief is a factor justifying the voluntary dismissal without notice to class members). Moreover,

27 even if new class litigation on the same claims were not being pursued, such individuals would remain

28

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CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 184 Filed 04/26/07 Page 12 of 13

1 free to bring their own action for injunctive relief as long as the alleged unlawful conduct persists.

2 Finally, to the extent that putative class members in this action are no longer directly affected by the

3 defendants’ ongoing violations of law (e.g., because they have graduated from or no longer attend UC

4 Davis), they would not benefit from classwide injunctive relief in this case and are, therefore, unaffected

5 by the dismissal of the class claims seeking such relief. The potential for prejudicial reliance on

6 plaintiff’s action by any putative class members, therefore, is virtually non-existent.

7

The conclusion that notice is not required here is consistent with a number of cases that have

8 held that no notice is required when a voluntary dismissal of an action is without prejudice to absent

9 class members and, therefore, consistent with the purpose of Rule 23(e). See Preferred MSO of

10 America-Austin LLC v. QuadraMed Corp., 85 F. Supp. 2d 974, 979-80 (C.D. Cal. 1999); Pressman v.

11 Am. President Companies, Ltd., No. C94 1449 CAL, 1995 WL 705148, *1 (N.D. Cal. Nov. 20, 1995);

12 Austin v. Pa. Dep’t of Corr., 876 F. Supp. 1437, 1455 (E.D. Pa.1995); see also 4 Conte & Newberg,

13 Newberg on Class Actions § 11.66, p. 257 (4th ed. 2002) (the language of Rule 23(e) “is sufficiently

14 flexible to permit the court to approve a dismissal or a compromise by the named plaintiff individually,

15 but to determine that no class notice at all is required, when the dismissal or compromise will not result

16 in any prejudice to the class”). Accordingly, this Court should approve plaintiffs’ request that the class

17 claims in this action be dismissed without requiring notice to putative class members.

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

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1 IV. CONCLUSION

2

For all of the reasons stated herein, plaintiffs respectfully request that the Court grant their

3 motion to dismiss their class claims from this action, permitting them to pursue the action in their

4 individual capacities only, seeking damages arising from defendants conduct. Plaintiffs also request that

5 the Court approve the requested dismissal of class claims without requiring notice to members of the

6 putative class.

7 DATED: April 26, 2007
8

THE STURDEVANT LAW FIRM A Professional Corporation

9

By: /s/ Mark T. Johnson

MARK T. JOHNSON

10

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COURT APPROVAL OF DISMISSAL OF CLASS CLAIMS, WITHOUT NOTICE

CASE NO. S-03-2591 FCD EFB

 
 Case 2:03-cv-02591-FCD-EFB Document 189 Filed 06/05/07 Page 1 of 29

1 PORTER, SCOTT, WEIBERG & DELEHANT
A Professional Corporation
2 Nancy J. Sheehan, SBN 109419
George A. Acero, SBN 226709
3 350 University Avenue, Suite 200
Sacramento, California 95825
4 (916) 929-1481
(916) 927-3 706 (facsimile)
5 Attorneys for Defendants: REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARRY
6 VANDERHOEF (erroneously sued as LAWRENCE VANDERHOEF), GREG WARZECKA, PAM GILL-FISHER, ROBERT FRANKS and LAWRENCE SWANSON
7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11

AREZOU MANSOURIAN, LAUREN MANCUSO, NANCY NIEN-LI CHIANG,

12 and CHRISTINE WING-SI NG; and all those

similarly situated,

13

Plaintiffs,

14
VS.

15 BOARD OF REGENTS OF THE
16 UNIVERSITY OF CALIFORNIA AT DAVIS, et aI.,

17

Defendants.

18 --------------------------~/

CASE NO. 2:03-CV-02591-FCD-EFB
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
Time: 10:00 a.m. Date: July 27, 2007 Courtroom: 2

19

20

21

22
23
24
25 26 27
28
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1

TABLE OF CONTENTS

2

3
I
4
II
5
III
6
7 IV
8
V
9
10
11
12

INTRODUCTION ....................................................... 1
FACTUAL SUMMARy .................................................. 1
THE ALLEGED "SECOND ELIMINATION" 0 WOMEN'S WRESTLING WAS, AS A MATTER OF LAW, A LAWFUL ACT ........................... 3
SINCE NO CONTINUING VIOLATION EXISTS, ALL FEDERAL LAW BASED CLAIMS ARE UNTIMELY ........................................ 5
PLAINTIFFS CANNOT SEEK REDRESS FOR THE NON-RENEWAL OF BURCH'S CONTRACT .................................................. 7
A. Plaintiffs Do Not Have Standing to Seek Redress for Actions Taken Against Others ................................................... 7
B. As a Matter of Law and Sound Judicial Policy, Plaintiffs Cannot Base Their Claim on Actions Relating to Their Coach ......................... 8

13
14
VI
15

C. Burch's Non-Renewal Was Not a Materially Adverse Employment Action ......................................................... 10
PLAINTIFFS CANNOT RECOVER PUNITIVE DAMAGES AGAINST THE UNIVERSITY UNDER TITLE IX .................................... 10

16 VII
17
VIII
18
IX
19
X
20

PLAINTIFFS CANNOT RECOVER EMOTIONAL DISTRESS DAMAGES AGAINST THE UNIVERSITY UNDER TITLE IX ........................... 11
PLAINTIFFS' 42 U.S.C. § 1983 CLAIM IS SUBSUMED BY TITLE IX .......... 12
THE UNIVERSITY IS IMMUNE TO ALL STATE LAW CLAIMS .............. 14
THERE IS NO CLAIM FOR RELIEF FOR DAMAGES UNDER ARTICLE I, SECTION 7 OF THE CALIFORNIA C<?NSTITUTION ...................... 14

21 XI 22

TWO OF THE EDUCATION CODE PROVISIONS UNDER WHICH PLAINTIFFS SUE DO NOT AUTHORIZE A PRIVATE RIGHT OF
ACTION ............................................................. 15

23 XII 24

VARIOUS STATE PROVISIONS UNDER WHICH PLAINTIFFS SUE DO NOT AUTHORIZE A PRIVATE RIGHT OF ACTION AGAINST
INDIVIDUALS ........................................................ 16

25 XIII THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO DISCRETIONARY
IMMUNITY .......................................................... 19
26 XIV CONCLUSION ........................................................ 20
27

28

Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings

00505458.WPD

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Case 2:03-cv-02591-FCD-EFB Document 189 Filed 06/05/07 Page 3 of 29

1

TABLE OF AUTHORITIES

2

3 Supreme Court Cases

4 Barnes v. Gorman

536 U.S. 181, 187, 122 S. Ct. 2097, 2101 (2002) ............................ 9,11

5

Bell Atl. Com. v. Twombly

6

2007 U.S. Lexis 5901 *35 (2007) ........ · .................................. 5

7 Burlington Northern and Santa Fe Ry. Co. v. White

126 S. Ct. 2405, 2414 (2006) ........... · ................................. 10

8

Canoon v. Universi!): of Chicago

9

441 U.S. 677, 694-96 S. Ct. 1956-57 (1979) ................................. 14

10 City of Rancho Palos Verdes, Cal. v. Abrams
544 U.S. 113,125 S. Ct. 1453, (2005) .... .................................. 13

11

Davis v. Monroe County Board of Education

12

526 U.S. 629,119 S. Ct. 1661 (1999) . . . . . · ................................. 12

13 Franklin v. Gwinoett County Public Schools

503 U.S. 60,112 S. Ct. 1028, (1992) ..... .................................. 12

14

Gebser v. Lago Vista IndeQendent School District

15

524 U.S. 274, 118 S. Ct. 1989 (1998) ..... · ................................. 12

16 Jackson v. Birmingham Board of Education

544 U.S. 167, 182, 125 S. Ct. 1497, 1509 (2005) ............................... 9

17

Middlesex COUll!): Sewerage Authori!): v. National Sea Clammers Association

18

453 U.S. 1,20,101 S. Ct. 2615, 2626 (1981 ) ................................. 12

19 Moose Lodge No. 107 v. Irvis

407 U.S. 163,166,92 S. Ct. 165, 1968 (1972) ................................. 7

20

Ne~ort v. Fact Concerts, Inc.

21

453 U.S. 247, 271, 101 S. Ct. 2748, 2762 · ................................. 10

22 Penhurst State Sch. & HosQ. v. Halderman

451 U.S. 1, 17, 101 S. Ct. 1531, 1540 (1981 ) .................................. 9

23

Powers v. Ohio

24

499 U.S. 400, 411, III S. Ct. 1364, 1370-71 (1991) ............................ 7

25 Warth v. Seldin 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975) ................................ 9
26

27

28

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11I

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I Federal Court Cases

2 Allen v. Chicago Transit Authority

2000 U.S. Dist. LEXIS 11499 *17-18 (E.D. Ill. 2000) ........................... 7

3

A.MJ. v. Royalton Public School

4

2006 U.S. Dist. LEXIS 90532 *6-7 (D. Minn. 2006) ........................... 11

5 BV Engineering v. University of California

858 F.2d 1394, 1395 (9'h Cir. 1988) ........................................ 14

6

Boulahanis v. Board of Regents

7

198 F.3d 633, 640 (7'h Cir. 1999) .......................................... 13

8 Bowers v. Baylor University

862 F.Supp. 142, 146 (W.o. Tex 1994) ..................................... 19

9

Brenden v. Independent School District

10

477 F.2d 1292, 1302 (8'h Cir. 1973) ......................................... 3

II Bronk v. Ineichen

54 F.3d 425, 429 fn 5 (7'h Cir. 1995) ........................................ 5

12

Bruneau v. South Kortright Central School District

13

163 F.3d 749, 758 (2nd Cir. 1998) .......................................... 13

14 Cherosky v. Henderson

330 F.3d 1243, 1247 (9'h Cir. 2003) ......................................... 7

15

Choike v. Slippery Rock Univ. ofPa. Of the State Sys. of Higher Educ.

16

2006 U.S. Dist. LEXIS 49886 *38-39 (W.D. Pa. 2006) ........................ 8, 9

17 Coalition for Economic Eguill v. Wilson

122 F.3d 692, 708, (9' Cir. 1997) ........................................... 4

18

Crawford v. Davis

19

109 F.3d 1281, 1284 (8'h Cir. 1997) ........................................ 13

20 Crawford by Jefferson v. School District

1998 U.S. Dist. LEXIS 8064 (E.D. Pa. 1998) ................................. II

21

Doe v. Town of Bourne

22

2004 U.S. Dist. LEXIS 10021 (D. Mass. 2004) ............................... 13

23 EEOC v. Custom Cos.

2004 U.S. Dist. LEXIS 5950 *34-37 (N.D. Ill. 2004) ........................... 7

24

Force v. Pierce City R-VI School District

25

570 F.Supp. 1020, 1031 (D. Mo. 1983) ...................................... 4

26 Fortin v. Darlington Little League, Inc. 514 F.2d 344, 351 (1st Cir. 1975) ........................................... 3
27

28

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1 Frechel-Rodriguez v. P.R. Department of Education
2007 U.S. Dist. LEXIS 21020 *20 (D.P.R. 2007) .......................... 11,13 2
3 Gifford6v8.5AFtc.2hdin1so1n4,9,T1.&15S3.F-5.R4.(9Ctho.Cir. 1982) .................... , .................. 6

4 Gilpin v. Kansas State High School Activities Association

377 F.Supp. 1233, 1241 (D. Kan. 1973) ...................................... 4

5

6

Grandson v. University of 272 F.3d 568, 576

(M8tihcChiigr.a2n001)

........................................... 5

7 Hankinson v. Thomas County School District

2005 U.S. Dist. LEXIS 25576 *7-8 (M.D. Ga. 2005) ............................ 8

8

Hamer v. Board of Regents

9

35 F.Supp.2d 1118,1123 (C.D. Ill. 1999) .................................... 5

10 Hendrichsen v. Ball State University

2003 U.S. Dist. LEXIS 3710 *7-8 (S.D. Ind. 2003) ............................ 13

11

Henkle v. Gregory

12

150 F.Supp.2d 1067, 1074 (D. Nev. 2001) ................................... 13

13 Hooverv. Meiklejohn

430 F.Supp. 164, 171 (D. Colo. 1977) ....................................... 4

14

15

lacobell1is20v.FS.3tadte17F1a,rm17F4i(r9eth&CCir.as1u9a9lt7y)

Company ..........................................

16

16 1ennings v. Nathanson

404 F.Supp.2d 380, 396 (D. Mass. 2005) .................................... 12

17

18

Kinman1v7.1OFm.3adh6a0P7u,6b1li0c-S1c1h(o8othl

District Cir. 1999)

....................................... 19

19 Landon v. Oswego Unit School District

143 F.Supp.2d 1011, 1014, (N.D. Ill. 2001) .................................. 11

20

Lantz v. Ambach

21

620 F.Supp. 663, 665-66 (S.D.N.Y. 1986) .................................... 3

22 Lever v. Northwestern University

979 F.2d 552, 556 (7th Cir. 1992) ........................................... 6

23

Levine v. Regents of the University of California

24

2003 U.S. Dist. LEXIS 26091 *10-11 (N.D. Cal. 2003) ........................ 13

25 Lowrey v. Texas A & M University System

117 F.3d 242, 251 (5th Cir. 1997) ........................................... 8

26

McCarthy v. Underhill

27

2006 U.S. Dist. LEXIS 25555 *9-10 (D. Nev. 2006) ........................... 13

28

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00505458.WPD

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I Mercer v. Duke University

401 F.3d 199, 202 (4th Cir. 2005) .......................................... 11

2

Miller v. Maxwell's International

3

991 F.2d 583, 587-88 (9th Cir. 1993) ....................................... 19

4 Neal v. Board of Trustees 198 F.3d 763, 771 (9th Cir. 1999) ........................................... 5

5

Pfeiffer v. Marion Center Area School District

6

917 F.2d 779, 789 (3,a Cir. 1990) .......................................... 13

7 Reed v. Nebraska School Activities Association

341 F.Supp. 258, 262 (D. Neb. 1972) ........................................ 4

8

Seamons v. Snow

9

84 F.3d 1226, 1233 (loth Cir. 1996) ........................................ 13

10 Shaposhnikov v. Pacifica School District

2006 U.S. Dist. LEXIS 18330 *25, n 9 (N.D. Cal. 2006) ......................... 8

11

12

Silva

v. Crain 169 FJd

608,

610

(9th

Cir.

1999)

........................................... 6

13 Smith v. Metropolitan School District Perry Twp.

128 FJd 1014,1019-20 (7'h Cir. 1997) ..................................... 19

14

15

Stanley4v3.3TFrsJ. dof1t1h2e9C, a1l1if3o6rn(9iath

State University Cir. 2006) ...

.

.

.

..

.

..

.

..

.

..

.

..

.

.

.

.

.

..

.

..

.

..

.

..

.

.

6,14

16

Thompson v. Los Angeles 885 F.2d 1439,1442-43

(9th

Cir.1989)

..................................... 14

17

Travis v. Folsom Cordova Unified School District

18

2007 U.S. Dist. LEXIS 11566 (E.D. Cal. 2007) ............................ 13,14

19 Waid v. Merrill Area Public School 91 F.3d857, 862 (7th Cir. 1996) ............................................ 13
20 21 Weisbuc1h19v.FCJodu7n7ty8,o7f8L3os(9Ath nCgierl.e1s997) ........................................... 5

22

23

24

25

26

27

28

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1 State Court Cases

2 Arriaga v. Loma Linda University

10 Cal.App.4th 1556, 1564 (1992) ......................................... 16

3

Blumhorst v. Jewish Family Services of Los Angeles

4

126 Cal.App.4th 993,1002 (2005) ......................................... 16

5 Caldwell v. Montoya

\0 Cal.4th 972, 986-89 (1995) ............................................ 20

6

Crusader Insurance Company v. Scottsdale Insurance Company

7

54 Cal.App.4th 121,133 (1997) ........................................... IS

8 Erlich v. Menezes

21 Cal.4th 543,558 (1999) ............................................... II

9

Gates v. Superior Court

10

32 Cal.App.4th 481,518 (1995) ........................................... 15

II Gatto v. County of Sonoma

98 Cal.App.4th 744, 760 (2002) ............................................ 6

12

Johnson v. State

13

69 Cal.2d 782, 795 (1968) ............................................... 19

14 Katzberg v. Regents of the University of California

29 Cal.4th 300, 306-07 (2002) ......................................... 14, 15

IS

McCorkle v. Los Angeles

16

70 Cal.2d 252, 261 (1969) ............................................... 19

17 Moradi-Shalal v. Fireman's Fund Insurance Companies

46 CalJd 287, (1988) ................................................... 16

18

Reno v. Baird

19

18 Cal.4th 640,663 (1998) ............................................... 19

20 Reynolds v. Bement

36 Cal.4th 1075, 1086 (2005) ............................................. 16

21

Rosales v. City of Los Angeles

22

82 Cal.App.4th 419, 428 (2000) ........................................... 15

23 Thornburg v. Superior Court

138 Cal.App.4th 42, 52 (2006) ............................................ 17

24

Vikco Insurance Services, Inc. v. Ohio Indemnity Company

25

70 Cal.App.4th 55, 62-63 (1999) ........................................... 16

26

27

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1 Federal Statutes

2 Federal Rules of Civil Procedure § 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3 California Constitutional Provisions and Statutes

4 42 U.S.C. § 1983 ...................................................... 1,6,11,12

5 Article I, section 7 of the California Constitution ..................................... 1 Article I, section 31 of the California Constitution .................................... 1
6 Article I, section 31 (a) of the California Constitution ................................ 17 Article I, section 31 (f) of the California Constitution ................................. 17
7
Education Code § 52 .......................................................... 18 8 Education Code § 210 ......................................................... 18
Education Code § 21 0.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 9 Education Code § 220 ......................................................... 17
Education Code § 221.7 ..................................................... 1, 17 10 Education Code § 262.3 ........................................................ 1
Education Code 66016 ..................................................... 15, 17 11 Education Code 66030 ..................................................... 15, 17
Education Code §66101 ........................................................ 1 12 Education Code § 66251 ....................................................... 18
Education Code § 66252 ..................................................... 1, 18 13 Education Code § 66292.4 ..................................................... 15
Education Code § 67620 ........................................................ 1 14
California Government Code § 820.2 ............................................. 19 15
Other Authority 16
Restatement (Second) of Contracts, § 353 (1981) ................................... 11 17 Restatement (Second) of Contracts, § 353 (1981)
Comments & Illustrations, Comment a ..................................... 12 18

19

20

21

22

23

24

25

26

27

28

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1

I

2

INTRODUCTION

3

Plaintiffs AREZOU MANSOURIAN, LAUREN MANCUSO, NANCY NIEN-LI CHIANG,

4 and CHRISTINE WING-SI NG filed this action, on behalf of themselves and an uncertified class, on

5 December 18, 2003. 1 The REGENTS OF THE UNIVERSITY OF CALIFORNIA (erroneously sued

6 as "Board of Regents of the University of California at Davis") hereafter (the "UNIVERSITY"), the

7 Chancellor of the University of California, Davis (LARRY VANDERHOEF), the Athletic Director at

8 the University of California, Davis (GREG WARZECKA), Associate Athletic Directors (PAM GILL-

9 FISHER and LAWRENCE SWANSON), and former Associate Vice Chancellor, Student Affairs

10 (ROBERT FRANKS) are named as Defendants in their individual and official capacities.

11

Plaintiffs assert six claims for relief: (1) violation of Title IX based on a theory that female

12 athletes are not afforded the same opportunities as male athletes (asserted against the UNIVERSITY

13 only); (2) violation of Title IX based on a theory that female athletes are not provided with the same

14 opportunities for financial assistance as male athletes (asserted against the UNIVERSITY only); (3)

15 retaliation in violation of Title IX and its interpretive regulations (asserted against the UNIVERSITY

16 only); (4) violation of 42 U.S.C. §1983 based on an equal protection clause (asserted against the

17 UNIVERSITY for injunctive relief and against the individual Defendants for damages); (5) violation

18 of the California Unruh Civil Rights Act (asserted against all Defendants); and (6) a claim of violation

19 of "public policy" based on various California statutes including Article I, section 7 of the State

20 Constitution, Article I, section 31 of the State Constitution, and Education Code sections 221.7, 262.3,

21 66101,67620 and 66252 (asserted against all Defendants).

22

Pursuant to Federal Rule 12(c), Defendants move to dismiss all claims as stated below.

23

II

24

FACTUAL SUMMARY

25

The gist of Plaintiffs' Complaint is that the UNIVERSITY effectively ended all opportunities

26 for female students to participate in intercollegiate varsity wrestling when they were initially cut from

27

28
1 Plaintiff CHIANG recently voluntarily dismissed all claims.

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1 the team in the Fall of2000 (Ex. A, Complaint, ~60) and then later in the Fall of2001, when they were

2 required to compete for a sport on the team by engaging in tryouts under the same terms and

3 conditions as male athletes (Id. at ~~ 77-78).

4

The alleged events forming the basis of the claims began in Fall of 2000. Plaintiffs allege they

5 participated in the wrestling program at U.C. Davis. (Id. at ~~ 30, 40, 48, 57.) They contend that in the

6 Fall of 2000, Michael Burch, then the head coach of the wrestling team, told them "that Defendants

7 had terminated all wrestling athletic participation opportunities for female students, but not for male

8 students." (Id. at ~~ 59-60.) Plaintiffs refer to this alleged act as the "No Female Directive." (Id. at ~

9 60) They further allege that as a result of the purported "Directive," they lost various benefits

10 including insurance, laundry, medical services, wrestling practice, early registration, and the

11 opportunity to receive academic credit for wrestling. (Id. at ~ 61.) Plaintiffs met with WARZECKA,

12 who suggested they form a club for women wrestlers. (Id. at ~ 63.) In April 2001, the women

13 wrestlers filed a complaint with the United States Department of Education's Office for Civil Rights,

14 which is the entity charged with investigating complaints of alleged violations of Title IX. (Id. at ~ 67;

15 Defendants' Request for Judicial Notice, Ex. E,jiled concurrently with this Motion.) Plaintiffs contend

16 that in June 2001, the UNIVERSITY agreed to reinstate them to the team. (Id. at ~~ 74-75.) In the Fall

17 of 2001, they attended wrestling practice and were informed they would be required to compete for a

18 spot on the team on the same terms and conditions as male athletes. (Id. at ~~ 75-78.)

19

The Office for Civil Rights ("OCR") received several complaints from the women wrestlers.

20 (See Request for Judicial Notice, Ex.'s E, G.) The initial complaint was filed on April 25, 2001.

21 Plaintiffs alleged they were discriminated against on the basis of sex because they were cut from the

22 team. (Exhibit A, Complaint, ~60-67; Request for Judicial Notice, Exhibit E.) In response, the

23 UNIVERSITY advised the OCR on May 14, 2001 that the Director of Athletics had communicated

24 with the coach of the wrestling team, telling him to add the four women students to the team roster

25 immediately, and that the four students had been advised of this. (Request for Judicial Notice, Exhibit

26 F.) In its letter issued to the Chancellor on May 31, 2001, the OCR stated "the OCR has learned that

27 the allegations have been resolved by the action taken by the University to re-instate the women

28 wrestlers to the wrestling team. OCR has therefore determined that there are no current allegations

2
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1 appropriate for resolution by OCR. OCR is closing the complaint as of the date of this letter." (Request

2 for Judicial Notice, Exhibit G.) A second complaint was filed on May 14,2001 by NG. NG alleged

3 claims of disparate treatment on the basis of gender in regard to the wrestling team. (Request for

4 Judicial Notice, Exhibit H.) After completing an investigation that included a campus visit and

5 interviews, the OCR issued its report on this and the remaining complaints on October 16, 2001.

6 (Request for Judicial Notice, Exhibit 1.) The OCR indicated it was closing the complaint due to a

7 Voluntary Resolution Plan submitted by the UNIVERSITY in which the UNIVERSITY agreed to

8 allow the women to participate on the team on the same terms and conditions as the male athletes.

9 The OCR noted that: "[i]nasmuch as the University has chosen to provide an intercollegiate athletic

10 wrestling team that is open to both men and women, it has undertaken to provide equivalent benefits,

11 services and opportunities, as required." (Id. at p. 3)

12
III
l3
THE ALLEGED "SECOND ELIMINATION" OF WOMEN'S
14
WRESTLING WAS, AS A MATTER OF LAW, A LAWFUL ACT
15
Plaintiffs contend the UNIVERSITY discriminated against them by requiring that "they could 16 only participate in wrestling as part of the men's team and only if they could beat male wrestlers using 17 men's collegiate style wrestling rules rather than women's freestyle rules." (Exhibit A, Complaint, pp. 18 21 :11-15, 42:3-7.) They refer to this act as the "second elimination of female wrestling athletic 19 participation opportunities." (Id. at 21 :24-22:2.) Plaintiffs cannot seek redress for this alleged
20 "second elimination" because, as a matter oflaw, Defendants' policy of equal treatment was lawful.

21

While case law in this area is sparse, it is unanimous in concluding (directly or in dicta) that

22 educational institutions need only allow women athletes to try out for a team -- not guarantee them a

23 place on the roster. Fortin v. Darlington Little League, Inc., 514 F.2d 344, 351 (1st Cir. 1975)

24 (holding that the Equal Protection clause only requires that female athletes be treated "upon the same

25 terms and conditions available ... to all others ..."); Brenden v. Independent School Dist., 477 F.2d

26 1292, 1302 (8th Cir. 1973) (noting that "[t]he failure to provide the plaintiffs with an individualized

27 determination of their own ability to qualify for positions on these teams is ... violative of the Equal

28 Protection Clause."); Lantz v. Ambach 620 F.Supp. 663, 665-66 (S.D.N.Y.1985) (holding that females

3
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1 are entitled to a "right to try"); Force v. Pierce City R-VI School District, 570 F.Supp. 1020,1031 (D. 2 Mo. 1983) (following Lantz); Hoover v. Meiklejohn, 430 F.Supp. 164, 171 (D. Colo. 1977) ("There is

3 no right to a position on an athletic team. There is a right to compete for it on equal terms"); Gilpin v.

4 Kansas State High School Activities Asso., 377 F.Supp. 1233, 1241 (D. Kan. 1973) ("The plaintiff has

5 not alleged that she has an absolute right to participate on any interscholastic team .,. and the court

6 certainly would not recognize such a right. She does, however, maintain that she has a right not to be

7 automatically disqualified from participating in interscholastic competition based solely upon her sex,

8 rather than upon her athletic ability"); Reed v. Nebraska School Activities Association, 341 F.Supp.

9 258,262 (D.Neb. 1972) (holding the plaintiffs right was not "the right to play golf. Her right is to be 10 treated the same as boys unless there is a rational basis for being treated differently"). An allegation

11 that the UNIVERSITY only allowed the female wrestlers to wrestle "if they could beat male wrestlers

12 using men's collegiate style wrestling rules" is simply an allegation of equal 'treatment not intentional 13 discrimination. Plaintiffs' contentions that they never had to tryout in prior years do not make

14 Defendants' later actions any less lawful: "Impediments to preferential treatment do not deny equal

15 protection." Coalition for Economic Equity v. Wilson, 122 F.3d 692, 708 (9th Cir. 1997).

16

Plaintiffs' contention that the "second elimination" is discriminatory is further undermined by

17 the fact that the OCR approved of the UNIVERSITY's policy. After conducting an investigation, the

18 OCR informed the UNIVERSITY that it was closing the female wrestlers' complaint contingent on

19 the UNIVERSITY implementing the approved Voluntary Resolution Plan ("VRP"). (Request for

20 Judicial Notice, Exhibit I.) The VRP contained a provision stating that:

21

All men and women athletes are encouraged to compete for a position on the Wrestling

Team. The coach of the Wrestling Team ("Coach") will select those athletes eligible for

22

the Wrestling Team's final squad list who demonstrate the highest skill and competitive

23

ability in their weight class. (Id.)

24

The VRP unambiguously states that the UNIVERSITY is only required to select athletes with

25 the highest skill level -- the very allegation the Plaintiffs contend is a discriminatory policy. Thus, the

26 "second elimination" allegation is nothing more than a contention that the UNIVERSITY acted

27 unlawfully by implementing a policy of equal treatment of male and female students who want to

28 wrestle. However, "the efforts [the UNIVERSITY] made in fulfilling its commitments under the

4
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1 compliance agreement with OCR, preclude a finding that [it] has been deliberately indifferent to its

2 overall compliance obligations under Title IX." Grandson v. Univ. of Minn., 272 F.3d 568, 576 (8th

3 Cir 2001).

4

"Title IX does not establish a right to participate in any particular sport at the college of one's

5 choice." Harper v. Board of Regents, 35 F.Supp.2d 1118, 1123 (C.D. Ill. 1999). Nor does Title IX

6 require "any education institution to grant preferential or disparate treatment to the members of one

7 sex on account of an imbalance which may exist with respect to the total number or percentage of

8 persons of that sex participating in or receiving the benefits of any federally supported program or

9 activity ...." 20 U.S.C. § 1681(b); Neal v. Board of Trustees, 198 F.3d 763, 771 (9th Cir. 1999).

10 Further, the statutes pertain to sex discrimination do not require "reasonable accommodations" for

11 persons who lack the appropriate qualifications. Bronk v. Ineichen, 54 F.3d 425, 429, fn 5 (7th Cir.

12 1995) ("it is not accommodation but equal treatment that is mandated"). Plaintiffs never had an

13 absolute right to participate on the U.C. Davis wrestling team. They only had a right to compete for a

14 spot on the roster on the same terms and conditions as male students -- something the complaint

15 expressly concedes occurred. The alleged "second elimination," as a matter of law, does not allege any

16 action "showing that [Plaintiffs] are entitled to relief." Fed. R. Civ. Pro 8(a). Accordingly,

17 Defendants request that the Court dismiss all claims based on the "second elimination" (i. e. the Fall

18 2001 tryouts).2

19

IV

20

SINCE NO CONTINUING VIOLATION EXISTS,

ALL FEDERAL LAW BASED CLAIMS ARE UNTIMELY
21

As the Ninth Circuit has observed, "a plaintiff may plead herself out of court." Weisbuch v.
22

County of Los Angeles, 119 F.3d 778, 783 (9th Cir. 1997). Plaintiffs previously escaped dismissal via
23

a Rule 12(b)(6) motion on the statue of limitations by relying on conclusory allegations of a
24

25 2 Previously, the standard in a judgment on the pleading was that "a complaint should not be dismissed for failure to state
26 a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The Supreme Court recently held that "after puzzling the profession for 50 years, this famous
27 observation has earned its retirement." Bell At!. Corn. v. Twombly. 2007 U.S. LEXIS 5901, *35 (2007). Thus, "a wholly conclusory statement of claim" coupled with the metaphysical possibility that the claim could survive on some undisclosed
28 set of facts no longer suffices. (ld. at 33.) As to the Fall 2001 try-outs, Plaintiffs have only disclosed that they were treated the same as the male athletes. The conclusory characterization of the "second elimination" as discriminatory is of no consequence.

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1 "continuing violation." A further examination of the complaint in light of the above discussion

2 warrants a different conclusion. Once an entity discontinues an allegedly discriminatory policy, the

3 clock starts running, even under the "pattern and practice" discrimination theory. Gifford v. Atchison,

4 T. & S. F. R. Co., 685 F.2d 1149, 1153-54 (9th Cir. 1982).

5

The applicable statute of limitations for all federal law based claims asserted is one year. See

6 Stanley v. Trs. of the Cal. State Univ., 433 FJd 1129, 1136 (9th Cir. 2006) (Title IX); Silva v. Crain,

7 169 FJd 608, 610 (9th Cir. 1999) (42 U.S.C. § 1983); also see Gatto v. County of Sonoma, 98

8 Cal.App.4th 744, 760 (2002) (Unruh Act). Plaintiffs seek damages in all three Title IX claims for

9 relief based on what they call the "No female directive" issued in the Fall of 2000 (Ex. A, Complaint,

10 ~~ 135, 146, 160), an alleged broken promise in June 2001 regarding reinstatement of wrestling

11 opportunities for women (Id. at ~~ 74-75), the failure to renew the contract of their coach (Id. at ~

12 157), and being required to compete for a spot on the wrestling team under the same terms and

13 conditions as male students in the Fall of 2001. (Id. at ~~ 75-78,155-156.) All actions which form the

14 basis of Plaintiffs' claims for damages in their complaint were completed by Fall 2001. The complaint

15 was not filed until December 18, 2003.

16

The conclusory allegations about "continuing violations" cannot salvage the untimely claims as

17 the complaint admits that the UNIVERSITY implemented a policy that was non-discriminatory in Fall

18 2001. The new policy effectively ended any purported continuing violation towards women wrestlers.

19 All prior claims based on "discrete acts" are untimely. Since the complaint admits that the

20 UNIVERSITY implemented a non-discriminatory policy, the continuing violations doctrine does not

21 apply.

22

With respect to the retaliation claim, the alleged "directive" took place in Fall 2000, before the

23 protected activity of filing an OCR complaint took place in the Spring of2001. (Exhibit A, Complaint,

24 ~~ 59-60, 153.) The only change that took place after the OCR complaints were filed was a

25 confirmation that all students who tryout for the wrestling team will be treated equally. (Id. at ~~ 155-

26 156.) The failure to change an existing policy after a plaintiff complains does not morph a systemic

27 discrimination claim into a systemic retaliation claim. Lever v. Northwestern Univ., 979 F.2d 552,

28 556 (7th Cir. 1992). More importantly, there are no allegations (conclusory or factually supported)

6
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1 that the University had a systemic policy of retaliating against female athletes who complain about sex

2 discrimination. EEOC v. Custom Cos., 2004 U.S. Dist. LEXIS 5950 *34-37 (N.D. Ill. 2004) (without

3 proof of systemic retaliation Morgan bars untimely claims); Allen v. Chicago Transit Auth., 2000 U.S.

4 Dist. LEXIS 11499 *17-18 (E.D. Ill. 2000) (noting that "there are no allegations that the CTA engaged

5 in a pattern or practice of retaliation. The only allegations of retaliation are the incidents against

6 individual plaintiffs"). Plaintiffs cannot bootstrap later allegedly retaliatory "individualized decisions"

7 that had no systemic effect to allegedly pre-existing systemic discriminatory acts to extend the statute

8 oflimitations on the later acts. Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003).

9
V
10
PLAINTIFFS CANNOT SEEK REDRESS
11
FOR THE NON-RENEWAL OF BURCH'S CONTRACT
12
Plaintiffs contend that "Defendants' termination of wrestling coach Michael Burch also
13
constituted retaliation against Plaintiffs and not just against Coach Burch, because Mr. Burch 14 supported women's wrestling and was willing to coach women wrestlers." (Exhibit A, Complaint, ~

15 157.) Their attempt to seek redress for an employment decision pertaining to Burch fails as matter of

16 law to constitute a claim for retaliation under Title IX.

17 A. Plaintiffs Do Not Have Standing to Seek Redress For Actions Taken Against Others

18

Absent "exceptional situations," a plaintiff "may not seek redress for injuries done to others."

19 Moose Lodge No. 107 v. Irvis 407 U.S. 163, 166,92 S. Ct. 1965, 1968 (1972). The Supreme Court

20 has determined that third party standing is proper only where: (I) the litigant has suffered an '''injury

21 in fact,' thus giving him or her a 'sufficiently concrete interest' in the outcome of the issue in dispute";

22 (2) "the litigant must have a close relation to the third party" and (3) "there must exist some hindrance

23 to the third party's ability to protect his or her own interests." Powers v. Ohio, 499 U.S. 400,411, III

24 S. Ct. 1364, 1370-71 (1991). Plaintiffs have not alleged a sufficiently close relationship to Burch to

25 justify third party standing. Further, Burch had no "hindrance" to protect his rights as he filed his own

26 lawsuit over this issue. (Request for Judicial Notice, Exhibit 1.)

27

In interpreting Title IX, other courts disallowed similar, but "reversed," claims based on the

28 standing concerns. These cases involve situations where a coach sues based on allegedly

7
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1 discriminatory acts taken against students. Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 251

2 (5th Cir. 1997) ("were we asked to afford Lowrey a remedy for the rights of her students, we would

3 hold that she does not have standing to assert the rights of third persons under Title IX"); Hankinson v.

4 Thomas County Sch. Dist., 2005 U.S. Dist. LEXIS 25576, * 7-8 (M.D. Ga. 2005) ("Plaintiff does not

5 have standing to bring a Title IX claim on behalf of the students participating in the softball

6 program").

7 B.
8

As a Matter of Law and Sound Judicial Policy, Plaintiffs Cannot Base Their Claims on Actions Relating to Their Coach.

9

Even if Plaintiffs contend that they are seeking redress for injuries done to them resulting from

10 Burch's departure, the retaliation claim still lacks merit. In Shaposhnikov v. Pacifica Sch. Dist., 2006

11 U.S. Dist. LEXIS 18330 *25, n 9 (N.D. Cal. 2006), the Northern District rejected a claim under Title

12 IX based on actions taken against others. There, the plaintiff asserted a Title IX retaliation claim

13 because of "defendants' 'apologetic' communications with the parents of the harassers and because

14 one of the harassers had his suspension reduced and was placed in a 'peer helper' class." The Court

15 found that such assertions could not form the basis of a retaliation claim noting that "[t]he Court does

16 not agree that these actions can qualifY as retaliation, as they did not involve plaintiff." (Id.)

17 Similarly, employment actions taken against Burch did not involve Plaintiffs.

18

In Choike v. Slippery Rock Univ. of Pa. of the State Sys. of Higher Educ., 2006 U.S. Dist.

19 LEXIS 49886, *38-39 (W.D. Pa. 2006), the Eastern District of Pennsylvania took a similar position.

20 There, a coach sought relief under Title IX where allegedly discriminatory decisions to cut women's

21 sports teams resulted in the loss of his coaching position on the cut teams. Coach Yeamans reasoned

22 that he had a viable Title IX discrimination claim because "he has lost his coaching positions as a

23 result of discrimination on the basis of sex." (Id. at 38.) The Court disagreed: "Yeamans' loss of

24 coaching jobs was a mere by-product of its decisions to eliminate the women's swimming and

25 women's water polo teams. No intentional discrimination was directed to Yeamans." (I4J Any

26 injuries that resulted from Burch's departure were similarly a "mere by-product" of the decision

27 related to Burch's employment.

28

The Court should also be guided by other policy considerations. First, Title IX is a spending

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1 clause statute. In crafting the scope of spending clause claims, Courts have required that the federal 2 government clearly delineate the scope of the cause of action to state entities that accept funds from 3 the federal government. Penhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 4 1540 (1981). Thus, a state entity can only be liable for claims "if the funding recipient is on notice 5 that, by accepting federal funding, it exposes itself to liability of that nature." Barnes v. Gorman, 536 6 U.S. 181, 187, 122 S. Ct. 2097, 2101 (2002). The Supreme Court has determined that the Penhurst 7 doctrine is not violated in allowing a direct victim of Title IX retaliation to sue for damages. Jackson 8 v. Birmingham Bd. of Educ., 544 U.S. 167, 182, 125 S. Ct. 1497, 1509 (2005). However, Jackson 9 cannot be interpreted as permitting claims based on secondary effects to "indirect victims." Choike, 10 2006 U.S. Dist. LEXIS 49886 at *38. Allowing Plaintiffs' claims based on Burch's non-renewal to 11 proceed would mean that every time a teacher, coach or counselor is terminated and the terminated 12 employee asserts a Title IX claim, a school could face lawsuits by dozens (or possibly even hundreds) 13 of students who claim they were affected by the discriminatory personnel decision. Surely, federal 14 funding recipients could not have contemplated such liability in accepting federal funds.

15

Second, allowing Plaintiffs to seek redress for Burch's non-renewal will create a "trial within a

16 trial." To combat Plaintiffs' contention that Burch's contract was not renewed in retaliation for their

17 protected activity, Defendants would be required to set forth the legitimate, non-retaliatory reasons for 18 Burch's non-renewal-- reasons which Plaintiffs would most likely seek to dispute. Resolving this one

19 alleged "adverse action" would necessarily require trying the entire Burch lawsuit in this case. This

20 "trial within a trial" would unduly burden this Court and the parties and would also result in a

21 duplication of the efforts made by the parties who have already litigated and resolved the Burch case 22 short of trial 3

23

Plaintiffs "cannot rest [their] claim to relief on the legal rights or interest of third parties."

24 Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975). The decision not to renew Burch's

25 contract was one discrete act which affected only Burch's employment relationship. As a matter of

26 standing law and the policy in favor of judicial efficacy, Defendants respectfully request the Court rule

27

28 Indeed, on January 30, 2004, the Court determined that this matter and the Burch case were not sufficiently

connected to warrant consolidating them. (Request for Judicial Notice, Exhibit B, Non-Related Case Order.l

.

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1 that Plaintiffs cannot seek redress for Burch's non-renewal as an "adverse action."
2 c. Burch's Non-Renewal Was Not a Materially Adverse Employment Action

3

In Burlington Northern and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414, (2006) the

4 Supreme Court held that in order to constitute a retaliatory adverse action, "a plaintiff must show that

5 a reasonable employee would have found the challenged action materially adverse." A retaliation

6 claim does not contemplate providing redress for "petty slights or minor annoyances." (lQJ Further,

7 the Court views the materiality requirement from the "objective" point of view of a reasonable person

8 in the plaintiffs circumstances. (lQJ Even if Plaintiffs could seek redress for damages suffered as a

9 result of Burch's non-renewal, such damages do not meet the materiality test.

10

The complaint alleges that "Coach Michael Burch informed the women that Defendants had

11 terminated all wrestling athletic participation opportunities for female students but not for male

12 students (the 'No Females Directive'''). (Exhibit A, ~ 60.) Plaintiffs further contend that as a result of

13 the "directive" they were denied the benefits given to varsity wrestlers. (Id. at ~~ 61-62.) They further

14 contend that Defendants initially "refused" to rescind the alleged directive after they protested it. (Id.

15 at ~ 63.) Eventually, the women wrestlers were reinstated. (Id. at ~ 74.) However, the Plaintiffs were

16 informed they could only wrestle if they beat any competing male wrestlers. (Id. at ~ 77.)

17

The complaint does not explain how the decision not to renew Burch's contract caused

18 Plaintiffs any "material" harm. Notwithstanding the fact that Burch did not seem inclined to treat

19 males and females equally by requiring both genders to try out for spots on the team, it is this

20 requirement that forms the basis of Plaintiffs' allegations. Plaintiffs cannot recover on a theory that

21 they were entitled under Title IX to a coach who gave preferential treatment to women by holding

22 them to lower standards for making the team than the standards applied to male students.

23

VI
24

PLAINTIFFS CANNOT RECOVER PUNITIVE

25

DAMAGES AGAINST THE UNIVERSITY UNDER TITLE IX

26

Plaintiffs seek punitive damages "to the extent permitted by law." (Exhibit A, Complaint, p.

27 55:2-3.) All claims for punitive damages under federal law are barred by Newport v. Fact Concerts,

28 Inc. (1981) 453 U.S. 247, 271,101 S. Ct. 2748, 2762, an opinion in which the Supreme Court held that

10
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1 punitive damages are not available against government entities under 42 U.S.c. § 1983. Other Courts 2 have determined that Newport is equally applicable to Title IX claims. Landon v. Oswego Unit Sch. 3 Dist. 308, 143 F.Supp.2d 1011, 1014 (N.D. Ill. 2001); Crawford by Jefferson v. School Dist. 1998 4 U.S. Dist. LEXIS 8064 (E.D. Pa. 1998); also see A.M.J. v. Royalton Pub. Sch., 2006 U.S. Dist. LEXIS 5 90532, *6-7 (D. Minn. 2006).

6

Plaintiffs' punitive damage claims under Title IX are also barred by the Barnes v. Gorman, 536

7 U.S. 181, 122 S. Ct. 2097 (2002) opinion. In Barnes, the Court held that "Title VI funding recipients

8 have not, merely by accepting funds, implicitly consented to liability for punitive damages." (Id. at

9 188, 2102.) Barnes also noted that the "Court has interpreted Title IX consistently with Title VI.. .."

10 Id. at 185,2100. Thus, Barnes' holding as to Title VI is equally applicable to Title IX. Mercer v.

11 Duke Univ., 401 FJd 199,202 (4th Cir. 2005) (noting in a Title IX suit that "the Supreme Court's

12 decision in Barnes compelled us to vacate Mercer's punitive damage award."); Frechel-Rodriguez v.

13 P.R. Dep't ofEduc., 2007 U.S. Dist. LEXIS 21020, *20 (D.P.R. 2007).

14
VII

15
PLAINTIFFS CANNOT RECOVER EMOTIONAL

16

DISTRESS DAMAGES AGAINST THE UNIVERSITY UNDER TITLE IX

l7

In Barnes, the Supreme Court noted that under "Title IX, which contains no express remedies,

18 a recipient of federal funds is nevertheless subject to suit for compensatory damages, [citation], and

19 injunction, [citation], forms of relief traditionally available in suits for breach of contract." Barnes,

20 536 U.S. at 187,2101 (emphasis added). In supporting this conclusion, the Supreme Court cited to the

21 Restatement Second of Contracts. As to claims for emotional distress, the Restatement (Second)

22 indicates that "Recovery for emotional disturbance will be excluded unless the breach also caused

23 bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a

24 particularly likely result." Restatement (Second) of Contracts § 353 (1981); also see Erlich v.

25 Menezes, 21 Cal.4th 543, 558 (1999) ("damages for mental suffering and emotional distress are

26 generally not recoverable in an action for breach of an ordinary commercial contract in California").

27 The Restatement clarifies that "common examples" of cases where emotional distress damages can be

28 recovered in a contract claim include "contracts of carriers and innkeepers with passengers and guests,

11
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1 contracts for the carriage or proper disposition of dead bodies, aDd contracts for the delivery of

2 messages concerning death." (lsL Comments & Illustrations: Comment a.) The Restatement adds that

3 breaches "resulting for example in sudden impoverishment or bankruptcy" may also justify damages

4 for emotional distress damages where "this was a particularly likely risk ...." (IQJ

5

The gravamen of the complaint is that the Plaintiffs were not allowed to participate on the

6 wrestling team unless they could defeat a male student to earn a sport on the roster. (Exhibit A,

7 Complaint, p. 42.) As noted above, emotional distress damages cannot be recovered for a breach of

8 contract absent extreme circumstaDces relating to matters such as impoverishment or death. Even

9 taking all allegations in the complaint as true, nothing in the complaint meets the threshold set out in

10 the Restatement. Jennings v. NathaDson, 404 F.Supp.2d 380, 396 (D. Mass. 2005) (interpreting

11 Massachusetts law aDd noting "the showing that a plaintiff must make is quite high" to recover

12 emotional distress in a contract claim).

13

In Davis v. Momoe County Bd. of Ed., 526 U.S. 629, 119 S. Ct. 1661 (1999), Gebser v. Lago

14 Vista Independent School Dist., 524 U.S. 274, 118 S. Ct. 1989 (1998), aDd Franklin v. Gwinnett

15 County Public Schools, 503 U.S. 60, 117 L. Ed.2d 208, 112 S. Ct. 1028 (1992) the Supreme Court

16 authorized claims for damages under Title IX without discussing whether such available damages

17 encompassed non-economic damages. Even assuming those cases impliedly approve of emotional

18 distress claims under Title IX, they are reconcilable with Barnes aDd the Second Restatement because

19 subjecting a student to "severe, pervasive, aDd objectively offensive" harassment (or being

20 "deliberately indifferent" to severe harassment) is the type of a breach of an obligation of which

21 "serious emotional disturbaDce was a particularly likely result." Thus, the standard set out by the

22 above Title IX trilogy is perfectly consistent with a contract-type emotional distress damage staDdard.

23

VIII

24

PLAINTIFFS' 42 U.S.C. §1983 CLAIM IS SUBSUMED BY TITLE IX

25

"When the remedial devices provided in a particular Act are sufficiently comprehensive, they

26 may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983."

27 Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1,20, 101 S. Ct. 2615,

28 2626 (1981). There is a split in authority on whether Title IX claims pre-empt 42 U.S.C. § 1983

12
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1 claims based on the same facts. Many courts have held that such claims are pre-empted. Boulahanis

2 v. Board of Regents, 198 F.3d 633,640 (7th Cir. 1999); Bruneau v. South Kortright Cent. Sch. Dist.,

3 163 F.3d 749, 758 (2nd Cir. 1998) ("a § 1983 claim based on the Equal Protection Clause is subsumed

4 by Title IX"); Waid v. Merrill Area Pub. Sch., 91 F.3d 857,862 (7th Cir. 1996) (a plaintiff may not

5 claim that a single set of facts leads to causes of action under both Title IX and § 1983"); Pfeiffer v.

6 Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3rd Cir. 1990) (same); Freche1-Rodriguez v. P.R.

7 Dep't of Educ., 2007 U.S. Dist. LEXIS 21020, *15 (D.P.R. 2007); McCarthy v. Underhill, 2006 U.S.

8 Dist. LEXIS 25555 *9-19 (D. Nev. 2006) (finding that Title VI claims subsume § 1983 claims based

9 on the same facts); Doe v. Town of Bourne, 2004 U.S. Dist. LEXIS 10021 (D. Mass. 2004) ("to the

10 extent the Does pursue § 1983 claims premised on equal protection violations or on violations of Title

11 IX, they are precluded by Title IX"); Levine v. Regents of the Univ., 2003 U.S. Dist. LEXIS 26091,

12 *10-11 (N.D. Cal. 2003); Hendrichsen v. Ball State Univ., 2003 U.S. Dist. LEXIS 3710, *7-8 (S.D.

13 Ind. 2003); and Henkle v. Gregory, 150 F.Supp.2d 1067, 1074 (D. Nev. 2001) ("it would be

14 inconsistent and contrary to the above authority to allow plaintiff to pursue constitutional claims

15 through § 1983 based on the identical facts as the Title IX claims"). Other courts have held that Title

16 IX has no pre-emptive effect on 42 U.S.C. section 1983 claims. See e.g. Crawford v. Davis, 109 F.3d

l7 1281, 1284 (8th Cir. 1997); Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir. 1996).

18

This issue was recently decided by the Eastern District. In Travis v. Folsom Cordova Unified

19 Sch. Dist., 2007 U.S. Dist. LEXIS 11566 (E.D. Cal. 2007), Judge England ruled that "Title VI is

20 sufficiently comprehensive to evince congressional intent to foreclose a § 1983 remedy." Id. at 15.

21 Judge England noted that Title VI has various interpretive regulations that provide administrative

22 remedies to enforce the statute and pointed out that the Supreme Court has also found that Congress

23 implied a private right of action. Id. at 15. The Court further noted that the Supreme Court's most

24 recent pronouncement on the § 1983 pre-emption issue, City of Rancho Palos Verdes, Cal. v. Abrams,

25 544 U.S. 113, 125 S. Ct. 1453, (2005), held that a more limited remedial scheme militated in favor of

26 pre-emption. The Court correctly noted that Title VI's remedies are narrower in scope than 42 U.S.C.

27 § 1983. Travis, 2007 U.S. Dist. LEXIS 11566 *15-16.

28

Judge England's reasoning is equally applicable to Plaintiffs' Title IX claims. The Supreme

13
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1 Court has treated Title IX and Title VI as being virtually interchangeable and acknowledged that both 2 statutes share the same remedial administrative scheme. Cannon v. University of Chicago, 441 U.S.

3 677,694-96,99 S. Ct. 1946, 1956-57 (1979) ("Except for the substitution of the word 'sex' in Title IX

4 to replace the words 'race, color, or national origin' in Title VI, the two statutes use identical language

5 to describe the benefited class. Both statutes provide the same administrative mechanism for

6 terminating federal financial support for institutions engaged in prohibited discrimination"). Since

7 Plaintiffs' 42 U.S.C. § 1983 claim is based on the same facts as their Title IX claim, it is pre-empted.

8

Plaintiffs may contend that Travis is inapplicable because they are only asserting 42 U.S.C. §

9 1983 claims against the individual Defendants. However, Judge England noted that the § 1983 claims

10 against individuals are also pre-empted as "[a]llowing Plaintiffs to plead around the detailed statutory

11 scheme created by Title VI by pleading a § 1983 claim against the defendant in his individual capacity

12 would be inconsistent with Congress' creation of restrictions on Title VI claims." Travis, 2007 U.S.
13 Dist. LEXIS 11566, at *16.

14

IX

15

THE UNIVERSITY IS IMMUNE TO ALL STATE LAW CLAIMS

16

The UNIVERSITY is an arm of the state for purposes of the Eleventh Amendment. Thompson

17 v. Los Angeles, 885 F.2d 1439, 1442-43 (9th Cir. 1989). Accordingly, it is immune to state law

18 claims in federal court unless the state has consented to such jurisdiction. Stanley v. Trs. of the Cal.

19 State Univ., 433 FJd 1129, 1133-34 (9th Cir. 2006) (holding that enactment of the Unruh Act "does

20 not specifically consent to federal court actions"); BV Engineering v. University of California, 858

21 F.2d 1394, 1395 (9th Cir. 1988). All claims asserted against the UNIVERSITY based on state law

22 must be dismissed.

23

X
24

THERE IS NO CLAIM FOR RELIEF FOR DAMAGES UNDER

25

ARTICLE I, SECTION 7 OF THE CALIFORNIA CONSTITUTION

26

Article I, Sections 7 is "self-executing" and creates a private right of action "against a proper

27 defendant for declaratory relief or for injunction." Katzberg v. Regents of the Univ. of Cal., 29

28 Cal.4th 300, 306-07 (2002). However, California courts have determined "there is no evidence of any

14
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1 intent on the part of the voters to permit the recovery of personal injury damages as a result of a

2 violation of the equal protection provisions of the California Constitution." Gates v. Superior Court, 32

3 Cal.App.4th 481,518 (1995); also see Katzberg, 29 Cal.4th 329 [same as to Article I, Section 7's due

4 process component]. Accordingly, all claims for damages based on this provision must be dismissed.

S

XI

6

TWO OF THE EDUCATION CODE PROVISIONS UNDER WHICH

PLAINTIFFS SUE DO NO AUTHORIZE A PRIVATE RIGHT OF ACTION
7

Plaintiffs' sixth claim for relief is premised on various state statutes.
8

Education Code §66016 provides that:
9

"It is the intent of the Legislature that opportunities for participation in intercollegiate

10

athletic programs in the community colleges, in the campuses of the California State

11

University, and in the campuses of the University of California be provided on as equal

a basis as is practicable to male and female students. The costs of providing these equal

12

opportunities may vary according to the type of sports contained within the respective

men's and women's athletic programs. Therefore, it is also the intent of the Legislature

13

that additional sources of revenue should be determined to provide additional funds for

14

these equal opportunity programs."

lS

Education Code §66030 provides that:

16

(a) It is the intent of the Legislature that public higher education in California strive

to provide educationally equitable environments which give each Californian, regardless

17

of ethnic origin, race, gender, age, disability, or economic circumstance, a reasonable

18

opportunity to develop fully his or her potential.

19

(b) It is the responsibility of the governing boards of institutions of higher education

to ensure and maintain multicultural learning environments free from all forms of
20
discrimination and harassment, in accordance with state and federal law.

21

22

Neither Education Code § 66016 nor § 66030 provide an express legislative grant of a private

23 right of action. Compare with Education Code §66292.4 (expressly authorizing a civil action for

24 violations of the Education Code sections within that Chapter). "[W)hen neither the language nor the

2S history of a statute indicates an intent to create a new private right to sue, a party contending for

26 judicial recognition of such a right bears a heavy, perhaps insurmountable, burden of persuasion."

27 Crusader Ins. Co. v. Scottsdale Ins. Co" 54 Cal.App.4th 121, 133 (1997); Rosales v. City of Los

28 Angeles, 82 Cal.App.4th 419, 428 (2000) ("The fact that a remedy or penalty for violation of its

15
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1 mandates was not included in the statute is a strong indication that such a right was not intended");

2 Vikco Ins. Servs., Inc. v. Ohio Indemnity Co., 70 Cal.App.4th 55, 62-63 (1999) (same).

3

The California Court of Appeal had, many years ago, adopted the three-part test used by the

4 Restatement of Torts, Second, to determine whether a statute implies a private remedy "(1) the

5 plaintiff belongs to the class of persons the statute is intended to protect; (2) a private remedy will

6 appropriately further the purpose of the legislation; and (3) such a remedy appears to be needed to

7 assure the effectiveness of the statute." Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 174 8 (9th Cir. 1997). The key factor in the test is whether "a private right of action is needed to assure the 9 effectiveness of the statute." Arriaga v. Lorna Linda University, 10 Cal.App.4th 1556, 1564 (1992) 10 (emphasis original) superseded by statute as stated in Blumhorst v. Jewish Family Services of Los 11 Angeles, 126 Cal.App.4th 993, 1002 (2005). The California Court of Appeal has suggested that this

12 test may not be valid after the California Supreme Court's decision in Moradi-Shalal v. Fireman's 13 Fund Ins. Companies, 46 Cal.3d 287 (1988). Arriaga, 10 Cal.App.4th at 1564. To the extent the Court

14 believes this test is still "useful for evaluating the appropriateness of a private cause of action" (see

15 Jacobellis, 120 F.3d at 174), the test does not favor Plaintiffs. Plaintiffs have sued to enforce the same 16 right under Title IX, the Unruh Act, and various Education Code sections that already authorize a

17 private right of action. Therefore, recognizing a private right of action under these sections is wholly

18 unnecessary.

19

XII

20

VARIOUS STATE PROVISIONS UNDER WHICH PLAINTIFFS SUE DO NOT

AUTHORIZE A PRIVATE RIGHT OF ACTION AGAINST INDIVIDUALS
21

22

Even with the sections that expressly (or impliedly) authorize a private right of action, there

23 still remains the question of whether a private right of action for damages exists against the individual

24 Defendants. Recently, the California Supreme Court indicated that the mere fact that a statute creates

25 liability against an entity does not mean that any of the entities, agents, or employees is also subject to

26 liability under that statute. Reynolds v. Bement, 36 Cal.4th 1075, 1086 (2005) (holding that managing

27 agents are not personally liable for wage and hour violations under the Labor Code).

28

In Reynolds, the Supreme Court determined that the "best indicator" to determine whether the

16
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1 California Legislature intended to hold individuals liable is "the language of the provision itself." Id.

2 at 1086. The statutes at issue in Reynolds required "an employer" to pay overtime under certain

3 conditions and authorized a private right of action to enforce that right without specifying who could

4 be held liable for violating that right. After reviewing the statute, applicable regulations, and common

5 law principles, the Court concluded that "[hlad the Legislature meant in section 1194 to expose to

6 personal civil liability any corporate agent who' exercises control' over an employee's wages, hours,

7 or working conditions, it would have manifested its intent more clearly than by mere silence after the

8 IWC's promulgation of Wage Order No.9." Id. at 1086-88. Thus, individual liability is not presumed.

9 Thornburg v. Superior Court, 138 Cal.App.4th 43, 52 (2006) ("[w]hen agents and employees are

10 acting in their official capacities on behalf of their principals and not as individuals for their own

11 advantage, their acts are generally privileged and do not give rise to liability in tort or under statutes

12 which impose duties on their principals").

13

The key inquiry as to the text of the provisions at issue shows no evidence of an intent to hold

14 individuals liable:

15

1. California Constitution, Article I, § 31 (a) provides that "The state shall not

16 discriminate" based on the enumerated characteristics. The "state" is defined to include various public

17 entities without making a single reference to an individual. Cal Const, Art I § 31(f).

18

2. California Education Code § 220 provides that: "No person shall be subjected to

19 discrimination on the basis of sex ... in any program or activity conducted by an educational institution

20 that receives, or benefits from, state financial assistance or emolls pupils who receive state student

21 financial aid."

22

3. California Education Code § 221.7 provides in, pertinent part, that:

23

"(a) The Legislature finds and declares that female pupils are not accorded opportunities

for participation in school-sponsored athletic programs equal to those accorded male

24

pupils. It is the intent of the Legislature that opportunities for participation in athletics be

25

provided equally to male and female pupils.

26

(b) Notwithstanding any other provisions of law, no public funds shall be used in

connection with any athletic program conducted under the auspices of a school district

27

governing board, or any student organization within the district, which does not provide

28

equal opportunity to both sexes for participation and for use of facilities. Facilities and

participation include, but are not limited to, equipment and supplies, scheduling of

17
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1

games and practice time, compensation for coaches, travel arrangements, per diem,

locker rooms, and medical services."
2

3

4. California Education Code § 66016 (Text is set out above on page 15.)

4

5. California Education Code § 66030 (Text is set out above on page 15.)

5

6. California Education Code § 66251 provides, in pertinent part, that: "It is the policy of

6 the State of California to afford all persons, regardless of their sex ... equal rights and opportunities in

7 the post-secondary institutions of the state. The purpose of this chapter is to prohibit acts that are

8 contrary to that policy and to provide remedies therefore."

9

7. California Education Code § 66252 provides, in pertinent part, that:

10

"(a) All students have the right to participate fully in the educational process, free from

discrimination and harassment.

11

12

(b) California's post-secondary educational institutions have an affirmative obligation to

combat racism, sexism, and other forms of bias, and a responsibility to provide equal

13

educational opportunity.

14

(f) It is the intent of the Legislature that each post-secondary educational institution

15

undertake educational activities to counter discriminatory incidents on school grounds

16

and, within constitutional bounds, to minimize and eliminate a hostile environment on

school grounds that impairs the access of students to equal educational opportunity.

17

(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent

18

with Article 9.5 [commencing with Section 11135] of Chapter I of Part I of Division 3

19

of Title 2 of the Government Code, Title VI of the Federal Civil Rights Act of 1964 (42

U.S.C. Sec. 1981, et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C.

20

Sec. 1681, et seq.), Section 504 of the Federal Rehabilitation Act of 1973 (29 U.S.C.

Sec. 794(a», the Federal Individuals with Disabilities Education Act (20 U.S.C. Sec.

21

1400 et seq.), the Federal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et

22

seq.), the Unruh Civil Rights Act (Sees. 51 to 53, incl., Civ. C.), and the Fair

Employment and Housing Act (Pt. 2.8 [commencing with Sec. 12900), Div. 3, Gov. C.],

23

except where this chapter may grant more protections or impose additional obligations,

and that the remedies provided herein shall not be the exclusive remedies, but may be

24

combined with remedies that may be provided by the above statutes."

25
The first five provisions make absolutely no suggestion that any individual could be held liable
26
for damages arising from a violation of the statute. The second and third provisions do not even apply
27
to the UNIVERSITY or its employees as they only govern elementary and "secondary" (high) schools.
28
See Education Code §§ 52,210-210.1. The fifth provision makes no direct reference to individual

18
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1 liability, but does incorporate the remedies of other state and federal anti-discrimination statutes. It

2 further states that it should be "interpreted consistently" with the cited statutes. The most pertinent

3 statute is Title IX. Cases interpreting Title IX have consistently held that Title IX only creates liability

4 for federal funding recipients, not individuals. Kinman v. Omaha Pub. Sch. Dis!., 171 FJd 607,610-

5 11 (8th Cir. 1999); Smith v. Metropolitan Sch. Dis!. Perry Twp., 128 F.3d 1014, 1019-20 (7th Cir.

6 1997); Bowers v. Baylor Univ., 862 F.Supp. 142, 146 (W.D. Tex. 1994); also see Miller v. Maxwell's

7 Int'l, 991 F.2d 583, 587-88 (9th Cir. 1993) (no individual liability under Title VII or the ADEA); Reno

8 v. Baird, 18 Cal.4th 640, 663 (1998) ("individuals who do not themselves qualify as employers may

9 not be sued under the FEHA for alleged discriminatory acts"). Since none of the above-cited

10 provisions suggest that any of the individuals may be subject to a private right of action for damages,

11 Defendants respectfully request that the Court dismiss all claims under these statutes against all

12 individual Defendants.

13

XIII

14 THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO DISCRETIONARY IMMUNITY

15

California Government Code §820.2 states:

16

Except as otherwise provided by statute, a public employee is not liable for an injury

resulting from his act or omission where the act or omission was the result of the

17

exercise of the discretion vested in him, whether or not such discretion be abused.

18
Government Code § 820.2 immunity applies where a public employee makes a discretionary,
19
as opposed to a ministerial, decision. A decision is discretionary where an employee consciously
20
balances risks and advantages of such a decision. Johnson v. State, 69 Cal.2d 782, 795 (1968). An act
21
is said to be ministerial when it amounts "only to an obedience to orders, or the performance of a duty
22
in which the public employee is left no choice of his own." McCorkle v. Los Angeles, 70 Cal.2d 252,
23
261 (1969).

24
To the extent any state claims survIve, they are barred by discretionary immunity. The

25
complaint alleges that "each of the individual defendants has authority over the athletic programs at

26
UC-Davis and has participated in the discriminatory actions and decisions ...." (Exhibit A, Complaint,

27
p. 10:1-4.) The complaint goes on to allege Plaintiffs version of the events, including an alleged "no

28
female directive" prohibiting the women wrestlers from participating on the team (Id. at 18: 1-7),

19
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1 discussions with WARZECKA about the matter (Id. at 18: 13-20), a suggestion by WARZECKA that

2 the women wrestlers form a club team (Id. at 18:17-20), a meeting with FRANKS (Id. at 19:16-20),

3 Defendants' participation in a Student Senate meeting on the issue (Id. at 19:21-24), significant media

4 publicity (Id. at 20: 1-5), interactions with a member of the State Legislature who "threatened to

5 withhold state funding" over the matter (Id. at 20:6-11), and, finally, the creation and implementation

6 of a policy that the female wrestlers could tryout for the wrestling team based on the same terms and

7 conditions as male athletes (Id. at 21: 11-15) made in conjunction with the OCR (Request for Judicial

8 Notice, Exhibits E-K.). The allegations in the complaint and the evidence provided via judicial notice

9 leave no room for doubt that Defendants made discretionary decisions with respect to Plaintiffs'

10 demands after much deliberation and in light of many external factors such as legislative,

11 administrative, and media intervention. As a matter of law, the individual Defendants are entitled to

12 discretionary immunity as to all state law claims. Caldwell v. Montoya, 10 Cal.4th 972, 986-89 (1995)

13 (dismissing FEHA claim via a demurrer under § 820.2).

14

XIV

15

CONCLUSION

16

Under section VI of the Pre-Trial Scheduling Order, Defendants are required to seek resolution

17 of a ruling on legal issues via a pre-trial motion. A ruling on these issues will eliminate the need to

18 address them in a later motion for summary judgment which will focus on issues of mixed law and

19 fact.
20 Dated: June ~, 2007
21

PORTER, SCOTT, WEIBERG & DELEHANT A Professional Corporation

22

By ~/]4 ( (t.J:__C/! ((

23

George K.Acero, Attorney for Defendants,

REGENTS OF THE UNIVERSITY OF

24

CALIFORNIA, LARRY VANDERHOEF, GREG

25

WARZECKA, PAM GILL-FISHER, ROBERT

FRANKS and LAWRENCE SWANSON

26

27

28

20
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1 MANSOURIAN v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. United States District Court, Eastern District of California, Case No. 2:03-CV-02591-FCD-EFB
2

3

PROOF OF SERVICE

4

I am a citizen of the United States and a resident of the County of Sacramento. I am over the

age of eighteen years and not a party to the above-entitled action; my business address is 350 5 University Avenue, Suite 200, Sacramento, CA 95825.

6

On June ~, 2007, I served the following document(s):

7

MEMORANDUM OF POINTS AND AUTHORITIRS IN SUPPORT OF DEFENDANTS'

8

MOTION FOR JUDGMENT ON THE PLEADINGS

BY MAIL. I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Sacramento, California.

BY PERSONAL SERVICE. I caused such document to be delivered by hand to the office of the person(s) listed below.

BY OVERNIGHT DELIVERY. I caused such document to be delivered by overnight delivery to the office of the person(s) listed below.

BY FACSIMILE. I caused such document to be faxed to the office of the person(s) listed above with an original or copy of said document placed in the United States mail with postage thereon fully prepaid at Sacramento, California.

17 addressed as follows:

18 IJ-----------------------------------~------------------------------------~

Kristen Galles

James C. Sturdevant

19 EQUITY LEGAL

Mark T. Johnson

20 10 Rosecrest Avenue Alexandria, VA 22301

Monique Olivier THE STURDEVANT LAW FIRM

21 Facsimile: (703) 683-4636

A Professional Corporation

22 Noreen Farrell

475 Sansome Street, Suite 1750 San Francisco, CA 94111

23 Debra Smith EQUAL RIGHTS ADVOCATES

Facsimile: (415) 477-2420

24 1663 Mission Street, Suite 250

San Francisco, CA 94103
25

26

I declare under penalty of perjury that the foregoing is true and correct and was executed on

June £,2007, at Sacramento, California.

r

27
28

A<;-/~/~)~~# A~n-,/

Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings
{00500957.DOq

 
 Case 2:03-cv-02591-FCD-EFB Document 196 Filed 07/13/07 Page 1 of 29

1 James C. Sturdevant, State Bar No. 94551 (jsturdevant@sturdevantlaw.com)
2 Mark T. Johnson, State Bar No. 76904 (mjohnson@sturdevantlaw.com)
3 Monique Olivier, State Bar No. 190385 (moliver@sturdevantlaw.com)
4 THE STURDEVANT LAW FIRM A Professional Corporation
5 475 Sansome Street, Suite 1750 San Francisco, CA 94111
6 Telephone: (415) 477-2410 Facsimile: (415) 477-2420
7
Debra Smith, State Bar No. 147863 8 (dsmith@equalrights.org)
Noreen Farrell, State Bar No. 191600 9 (nfarrell@equalrights.org)
EQUAL RIGHTS ADVOCATES 10 1663 Mission Street, Suite 250
San Francisco, CA 94103 11 Telephone: (415) 621-0672
Facsimile: (415) 621-6744
12
Kristen Galles, State Bar No. 148740 13 (kgalles@abanet.org)
EQUITY LEGAL 14 10 Rosecrest Avenue
Alexandria, VA 22301 15 Telephone: (703) 683-4491

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

18

[Sacramento Division]

19 AREZOU MANSOURIAN; LAUREN MANCUSO; CHRISTINE WING-SI NG

20 ,

Plaintiffs,

21
vs.

22
BOARD OF REGENTS OF THE UNIVERSITY OF

23 CALIFORNIA AT DAVIS; LAWRENCE “LARRY” VANDERHOEF; GREG WARZECKA; PAM GILL-

24 FISHER; ROBERT FRANKS; and LAWRENCE SWANSON,

25

Defendants

CASE NO. S-03-2591 FCD EFB

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

Date:

July 27, 2007

Time:

10:00 a.m.

Courtroom: 2

Complaint filed: December 18, 2003

Trial Date:

June 17, 2008

26

27

28

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Case 2:03-cv-02591-FCD-EFB Document 196 Filed 07/13/07 Page 2 of 29

TABLE OF CONTENTS
1
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1

3
III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 3

4

A. The Standard for a Motion for Judgment on the Pleadings Is a High Standard,

5

Particularly in Civil Rights Cases, Which Defendants Cannot Overcome. . . . . . . . . . . . . . . . . . 3

6

B. Defendants’ Attempt to Recast its Second Elimination of Plaintiffs from Varsity

Athletics as a Lawful Act Does Not Support Judgment on the Pleadings as to Any

7

of Plaintiffs’ Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8

1. The Second Elimination Is But One of Many Unlawful Acts that Support Plaintiffs’

Claims of Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9

2. Defendants Cannot Establish as a Matter of Law on the Pleadings that

10

the Second Elimination of Plaintiffs from Varsity Athletics Was Lawful. . . . . . . . . . . . 5

11

3. Plaintiffs’ Federal Claims Are Timely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 7

12

C. Plaintiffs Have Properly Pled a Retaliation Claim Under Title IX. . . . . . . . . . . . . . . . . . . . . 9

13

1. The Court Has Already Ruled that Plaintiffs’ Retaliation Claim Is Timely. . .. . . . . . . . 10

14

2. Plaintiffs’ Retaliation Claim Is Based on the Personal Harm Plaintiffs Suffered

15

Including Coach Burch’s Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

16

D. Plaintiffs Have Properly Pled a § 1983 Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17

E. Plaintiffs Have Properly Pled a Violation of California Public Policy. . . . . . . . . . . . . . . . . 15

18

1. Plaintiffs Allege Multiple Sources of California’s Public Policy. . . . . . . . .. . . . . . . . . . 15

19

2. Public Policy Torts Do Not Require That a Private Right of Action Exist in

Constitutional or Statutory Provisions that Form the Basis of the Public

20

Policy Tort. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 16

21

3. Defendants’ Private Right of Action Argument Is No More Availing When

Made Specifically on Behalf of the Individual Defendants. . . . . . . . . . . . . . . . . . . . . . 17

22

F. Plaintiffs Have Properly Requested Emotional Distress and Punitive Damages. . . . .. . . . . 18

23

1. Plaintiffs Have Properly Requested Emotional Distress Damages Under Title IX. . . . . . . . 18

24

2. Plaintiffs Have Properly Requested Punitive Damages Under Title IX. . . . . .. . . . . . . . . . 19

25

G. Defendants Are Not Entitled to Immunity as a Matter of Law. . . . . . . . . . . . . . . . . . . .. . 20

26 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

27

28 i
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Case 2:03-cv-02591-FCD-EFB Document 196 Filed 07/13/07 Page 3 of 29

1

TABLE OF AUTHORITIES

2

CASES

3
In re Amica, Inc.,

4

130 B.R. 792 (Bankr. N.D.Ill. 1991.).................................................................................5, 10, 15, 18

5 Azer v. Connell,

6

306 F.3d 930 (9th Cir. 2002) ...............................................................................................................8

7 Barner v. Leeds, 24 Cal. 4th 676 (2000) .......................................................................................................................21

8

Barnes v. Gorman,

9

536 U.S. 181 (2002)...........................................................................................................................19

10
Brenden v. Independent Sch. District,

11

477 F.2d 1292 (8th Cir. 1973) .............................................................................................................6

12 Bruneau ex rel. Schofield v. South Kortright Central School District, 163 F.3d 749 (2nd Cir. 1998).............................................................................................................15
13

14 Caldwell v. Montoya, 10 Cal. 4th 972 (1995) .......................................................................................................................20

15

Cannon v. University of Chicago,

16

441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979) .....................................................................14

17 Choike v. Slippery Rock University of Pennsylvania,

18

2006 WL 2060576 .......................................................................................................................10, 11

19 City of Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005).....................................................................................................................13, 15
20

Crawford v. Davis,

21

109 F.3d 1281 (8th Cir. 1997) ...........................................................................................................14

22
Crusader Insurance Co. v. Scottsdale Insurance Co.,

23

54 Cal. App. 4th 121 (1997) ..............................................................................................................16

24 Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)...........................................................................................................................19
25
26 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001) .............................................................................................................9
27

28 ii
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Case 2:03-cv-02591-FCD-EFB Document 196 Filed 07/13/07 Page 4 of 29

Doe v. Oyster River Co-op. Sch. District,

1

992 F. Supp. 467 (D.N.H. 1997)........................................................................................................20

2
Douglas Aircraft Co. v. Cranston,

3

58 Cal. 2d 462 (1962) ..........................................................................................................................8

4 Erlich v. Menezes, 21 Cal. 4th 543 (1999) .......................................................................................................................19
5

6 Foman v. Davis, 371 U.S. 178 (1962)...........................................................................................................................22

7

Fortin v. Darlington Little League, Inc.,

8

514 F.2d 344 (1st Cir. 1975)................................................................................................................6

9 Franklin v. Gwinnett County Public Schs.,

10

503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992) .......................................................14, 18, 19

11 Frazier v. Fairhaven Sch. Committee,
276 F.3d 52 (1st Cir. 2002)................................................................................................................12
12

Gebser v. Lago Vista Independent Sch. District,

13

524 U.S. 274 (1998)...........................................................................................................................19

14
General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church,

15

887 F.2d at 230 ....................................................................................................................................3

16 Green v. Ralee Engineering Co.,

17

19 Cal. 4th 66 (1998) .........................................................................................................................15

18 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 (9th Cir. 1989) .......................................................................................................4, 20

19

Hankerson v. Thomas County Sch. District,

20

2005 U.S. Dist. LEXIS 25576 (M.D. Ga. 2005)................................................................................11

21
Hernandez v. City of Hartford,

22

959 F. Supp. 125 (D.Conn. 1997)......................................................................................................20

23 Hoover v. Meiklejohn, 430 F. Supp. 164 (D.Colo. 1977).........................................................................................................6
24

25 Hudson v. Craft, 33 Cal. 2d 654 (1949) ........................................................................................................................16

26

Jackson v. Birmingham Board of Education,

27

544 U.S. 167 (2005).......................................................................................................................9, 12

28 iii
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Case 2:03-cv-02591-FCD-EFB Document 196 Filed 07/13/07 Page 5 of 29

Johnson v. State,

1

69 Cal. 2d 782 (1968) ........................................................................................................................20

2
Lamke v. Sunstate Equipment Co.,

3

387 F. Supp. 2d 1044 (N.D.Cal. 2004) ................................................................................................8

4 Lantz v. Ambach, 620 F. Supp. 663 (S.D.N.Y. 1985).......................................................................................................6
5

6 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ...............................................................................................................4

7

Lillard v. Shelby County Board of Education,

8

76 F.3d 716 (6th Cir.1996) ................................................................................................................14

9 Lowrey v. Texas A&M,

10

117 F.3d 242 (5th Cir. 1997) .............................................................................................................11

11 Lucchesi v. Bar-O Boys Ranch,
353 F.3d 691 (9th Cir. 2003) ...............................................................................................................9
12

Middlesex County Sewerage Authority v. National Sea Clammers Association,

13

453 U.S. 1 (1981).........................................................................................................................14, 15

14
Mississippi University for Women v. Hogan,

15

458 U.S. 718 (1982)...........................................................................................................................14

16 Monell v. New York City Department of Social Services,

17

436 U.S. 658 (1978)...........................................................................................................................13

18 Moran v. Peralta Community College District, 825 F. Supp. 891 (N.D. Cal. 1993) ......................................................................................................4

19

Neary v. Regents of University of Cal.,

20

185 Cal. App. 3d 1136 (1986) ...........................................................................................................21

21
Pandazides v. Virginia Board of Education,

22

13 F.3d 823 (4th Cir. 1994) ...............................................................................................................20

23 Pfeiffer v. Marion Ctr. Area Sch. District, 917 F.2d 779 (3d Cir.1990)................................................................................................................15
24

25 Philbrook v. Ansonia Board of Education, 757 F.2d 476 (2d Cir. 1985).................................................................................................................7

26

Qwest Communications Corp. v. City of Berkeley,

27

208 F.R.D. 288 (N.D. Cal. 2002.)........................................................................................................3

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R.J. Corman Derailment Services, LLC v. International Union of Operating Engineers Local 150,

1

335 F.3d 643 (7th Cir. 2003) ...............................................................................................................4

2
Ray v. Herndeson,

3

217 F.3d 1234 (9th Cir. 2000) ...........................................................................................................10

4 Renni & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208 (9th Cir. 1957) .............................................................................................................11
5

6 Reno v. Baird, 18 Cal. 4th 640 (1998) .......................................................................................................................18

7

Reynolds v. Bement,

8

36 Cal. 4th 1075 (2005) .....................................................................................................................17

9 Rojo v. Kliger,

10

52 Cal. 3d 65 (1990) ..........................................................................................................................15

11 Rowinsky v. Bryan Independent School District,
80 F.3d 1006 ........................................................................................................................................7
12

Runyon v. Super. Ct.,

13

187 Cal. App. 3d 878 (1986) .............................................................................................................21

14
Seamons v. Snow,

15

84 F.3d 1226 (10th Cir. 1996) ...........................................................................................................14

16 Shaposhikov v. Pacifica Sch. District,

17

2006 WL. 931731 (N.D. Cal. 2006) ..................................................................................................11

18 Shechter v. Comptroller of City of New York, 79 F.3d 265 (2d Cir. 1996)...................................................................................................................4

19

Smith v. Robinson,

20

468 U.S. 992 (1984)...........................................................................................................................13

21
Stanley v. Trustees of the California State University,

22

433 F.3d 1129 (9th Cir. 2006) .............................................................................................................8

23 State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003)...........................................................................................................................19
24

25 Stevenson v. Super. Ct., 16 Cal. 4th 880 (1997) .......................................................................................................................15

26

Taylor v. Los Angeles Department of Water & Power,

27

144 Cal. App. 4th 1216 (2006) ............................................................................................................4

28 v
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Thompson v. City of Shasta Lake,

1

314 F. Supp. 2d 1017 (E.D.Cal. 2004)................................................................................................8

2
Thornburg v. Superior Court,

3

138 Cal. App. 4th 43 (2006) ..............................................................................................................17

4 Travis v. Folsom Cordova Unified Sch. District, 2007 U.S. Dist. LEXIS 11566 (E.D. Cal. 2007) ................................................................................15
5

6

STATUTES AND RULES

7 20 U.S.C. § 1682 .............................................................................................................................................14

8 29 U.S.C. § 704 .................................................................................................................................................4

9 42 U.S.C. § 1983 .........................................................................................................................................3, 15

10
Federal Rules of Civil Procedure

11

Rule 12(b)(6)........................................................................................................................................2

Rule 12(c).......................................................................................................................3, 4, 10, 15, 18
12

Federal Rules of Evidence Rule 201 .................................................................................................................4
13

14 California Government Code § 820.2 .......................................................................................................20, 21

15 Cal. Code Civ. Proc. § 335.1.............................................................................................................................7

16

17
OTHER AUTHORITIES
18
5 Wright & Miller, Federal Practice and Procedure § 1255 (3d ed. 2004) ...................................................18
19

20

21

22

23

24

25

26

27

28 vi
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1 I. INTRODUCTION

2

Plaintiffs Mansourian, Mancuso, and Ng are former female university wrestlers who filed this civil rights

3 action in December 2003 seeking relief for ongoing violations of federal and state civil rights laws arising from

4 discrimination by the Regents of the University of California and university administrators against women athletes

5 at the University of California at Davis (“UCD”). Defendants’ Motion for Judgment on the Pleadings is an

6 improper piecemeal attack on the pleadings, which fails on all fronts. In addition to raising several arguments that

7 have already been rejected by this Court in this case, defendants continue to misapprehend the scope of plaintiffs’

8 Complaint and the basic principles that guide federal civil rights laws, misconstrue or ignore the multitude of

9 discriminatory practices on which plaintiffs base their claims for relief, and misapply the law related to public policy

10 torts, remedies, and immunity. The motion should be denied in its entirety.

11 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

12

Beginning in the 1990s, varsity wrestling at UCD included both men and women. Women wrestlers at UCD

13 received highly qualified coaching, wrestled using women’s freestyle rules rather than men’s collegiate rules, and

14 received all of the benefits of varsity status. Complaint at ¶¶ 82, 85, Olivier Decl., Exh. A. UCD sponsored a

15 women’s division in its annual Aggie Open wrestling tournament. Id. at ¶. 83. Some women wrestlers from UCD

16 went on to become nationally ranked and compete at a high level nationally and internationally. Id. at ¶¶ 85-88.

17

The Regents of the University of California are charged with overseeing the administration and operation of

18 UCD, including its athletics program. Id. at ¶¶ 13-15, 23. The individual defendants, Larry Vanderhoef, Robert

19 Franks, Greg Warzecka, Lawrence Swanson and Pam Gill-Fisher are responsible for the day-to-day administration

20 of UCD and its athletic program. Id. ¶¶ 16, 18-20. They are also the individuals responsible for managing the

21 wrestling program and ensuring non-discrimination in the athletic program. Id.

22

Plaintiffs are women wrestlers, who wrestled throughout high school and attended UCD, in large part, to

23 wrestle. Id. at ¶¶ 26, 29, 37, 38, 55. During their tenure at UCD, Mansourian and Ng participated in varsity

24 wrestling until UCD administrators abruptly forced all women out of the wrestling program. Id. at ¶¶ 30, 56-60.

25 Prior to that, Mansourian and Ng received coaching by UCD’s head wrestling using women’s freestyle rules. Id. at

26 ¶ 82. They also received all of the benefits usually bestowed upon varsity athletes at a university including health

27 insurance, medical and athletic training services, academic tutoring services, strength and conditioning coaching,

28 1
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1 laundry services, and access to varsity training facilities. Id. at ¶¶ 33, 51.

2

In the Fall of 2000, Mansourian and Ng, completed the requirement to become eligible to participate in varsity

3 wrestling and began attending wrestling practice. Id. at ¶ 59. Thereafter, they were informed that defendants had

4 terminated all athletic participation opportunities for female, but not for male, wrestlers. Id. at ¶ 60. Defendants

5 barred Mansourian and Ng from the wrestling and other varsity facilities, and withdrew all of their varsity benefits.

6 Id. at ¶¶ 61, 62. Mansourian and Ng, along with other women wrestlers at UCD, met with defendant Warzecka, the

7 UCD Athletic Director, to request reinstatement of the women’s wrestling team. He refused and instead suggested

8 that they form a women’s wrestling club team at their own expense. Id. at ¶ 63. As club team members, they would

9 receive none of the benefits that had previously received as varsity athletes. Id. The women wrestlers also reached

10 out to UCD Chancellor Larry Vanderhoef, but he refused to meet with them. Id. at ¶ 64. In addition, UCD

11 terminated Coach Burch. Id. at ¶ 73.

12

In the Spring of 2001, having exhausted their efforts within UCD to reinstate their status as varsity athletes,

13 Mansourian and Ng filed a complaint with the United States Department of Education’s Office of Civil Rights

14 (“OCR”). Id. at ¶ 67. In June 2001, after significant media attention, student protests, and the involvement of a

15 California state assemblywoman, defendants promised to fully reinstate women’s wrestling athletic participation

16 opportunities. Id. at ¶¶ 71-75.

17

In the fall of 2001, Mansourian and Ng arrived at wrestling practice expecting to participate in the wrestling

18 program. They were joined by Lauren Mancuso who had enrolled in UCD intending to participate in varsity

19 wrestling and had obtained athletic financial assistance. All three athletes had completed the eligibility

20 requirements for varsity wrestlers, and were deemed eligible. Id. at ¶¶ 37-41, 75. The new wrestling coaches,

21 however, ignored them. When the women complained, defendants informed them that they could only participate in

22 wrestling if they could beat the male wrestlers using men’s collegiate wrestling rules. Id. at ¶¶ 75-77. This had

23 never been a condition of women’s participation in wrestling at UCD. Id. at ¶¶ 78, 82.

24

At all times relevant to this action, UCD has offered substantially more athletic participation opportunities and

25 more athletic financial assistance to male students than to female students. Id. at ¶¶ 129, 140. In addition, UCD

26 does not have a history or continuing practice of athletic program expansion. Id. at ¶ 131. Instead, UCD eliminated

27 opportunities for women athletes by forcing women wrestlers out of the varsity wrestling program despite their

28 2
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1 interest in, and prior participation in, varsity wrestling at UCD. Id. at ¶ 66. UCD also eliminated athletic financial

2 assistance by withdrawing the athletic scholarship to Lauren Mancuso, and by denying Mansourian, Ng and

3 Mancuso the benefits of varsity status. Id. at ¶¶ 40, 61-62.

4

The Complaint was filed on December 18, 2003 and asserts six claims for relief: (1) violation of Title IX for

5 failure to provide equal athletic opportunities to women; (2) violation of Title IX for failure to provide equal athletic

6 financial assistance to women; (3) retaliation in violation of Title IX; (4) violation of 42 U.S.C. sec. 1983 based on

7 the equal protection clause of the U.S. Constitution; (5) violation of the California Unruh Civil Rights Act; and (6)

8 violation of public policy based upon the California Constitution and the California Education Code. Docket #1.

9

Defendants filed a Rule 12(b)(6) motion on March 5, 2004 (Docket # 13-15), which was denied on May 6,

10 2004. Docket # 18-21, 25. There has been a substitution of plaintiffs’ lead counsel in the case and discovery

11 continues. Docket # 125, 137, 140, 143, 149. On January 24, 2007, the Court issued the 2nd Amended Status

12 (Pretrial Scheduling) Order. Docket #156. Plaintiffs then moved for leave to amend the Complaint to add

13 additional plaintiffs and related allegations. Docket ## 158-161. The Court denied plaintiffs’ motion. Docket #

14 175. Plaintiffs subsequently voluntarily dismissed the class allegations of the Complaint. Defendants filed the

15 instant motion on June 5, 2007. Docket # 188.

16 III. ARGUMENT

17

A. The Standard for a Motion for Judgment on the Pleadings Is a High Standard, Particularly in

Civil Rights Cases, Which Defendants Cannot Overcome.

18

19

Like a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a motion for judgment on the

20 pleadings pursuant to Rule 12(c) must be denied “unless it appears to a certainty that no relief under any state of

21 facts in support of his claim. Mostowy v. United States, 966 F.2d 668, 672 (Fed. Cir. 1992) (noting standard is

22 “stringent”); Qwest Communications Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal. 2002.) (noting

23 standard same under Rule 12(b)(6) and Rule 12(c).) Defendants must establish that no material issue of fact

24 remains to be resolved and that they are entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard

25 Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). A court must assume the truthfulness of the material facts

26 alleged in the complaint and construe all inferences reasonably drawn from these facts in favor of the responding

27 party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887

28 3
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1 F.2d at 230; Hal Roach Studios, 896 F.2d at 1550. Defendants are not entitled to judgment if the complaint raises

2 issues of fact which, if proven, would support recovery. Id. at 230. This standard is applied with “particular

3 strictness” in civil rights cases. Shechter v. Comptroller of City of New York, 79 F.3d 265, 270 (2d Cir. 1996).

4

In addition, the court may only consider the facts stated within the four corners of the complaint. The court

5 may not examine any external facts, unless they are facts that are subject to judicial notice under Federal Rules of 6 Evidence rule 201.1 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); R.J. Corman Derailment Servs.,

7 LLC v. International Union of Operating Engineers Local 150, 335 F.3d 643, 647 (7th Cir. 2003).

8

Rule 12(c) does not specifically authorize a motion for partial judgment on the pleadings. Cases allowing

9 partial judgment on the pleadings have been limited to judgment as to an entire count. See, e.g., Moran v. Peralta

10 Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993); In re Amica, Inc., 130 B.R. 792, 796 (Bankr. N.D.Ill.

11 1991.) Thus, a Rule 12(c) motion cannot be used to parse claims for relief and remedies or to strike less than an

12 entire count. Finally, the law prefers resolution on the merits and that cases be “tried on the proofs rather than the

13 pleadings,” Renni & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 213 (9th Cir. 1957).

14

B. Defendants’ Attempt to Recast its Second Elimination of Plaintiffs from Varsity Athletics as a

Lawful Act Does Not Support Judgment on the Pleadings as to Any of Plaintiffs’ Claims.

15

16

Much of defendants’ motion hinges on the argument that their second elimination of plaintiffs from the

17 wrestling program in the Fall of 2001 by requiring that women wrestle and beat the men using men’s collegiate rules

18 was a lawful act. From this false assertion, defendants argue that plaintiffs’ federal claims are time barred, because

19 the “lawful” second elimination ended defendants’ discrimination against plaintiffs, such that there is no “continuing

20 violation” and plaintiffs’ claims as to defendants’ earlier acts of discrimination are rendered untimely.

21

At its core, this argument is the very same that this Court rejected when it denied defendants’ motion to

22 dismiss over three years ago. The Court held then that defendants could not defeat plaintiffs’ Complaint by parsing

23 portions of plaintiffs’ claims. Docket #25, pp. 13-14. Further, the Court specifically held that any argument that

24 portions of plaintiffs’ federal claims may be barred by the applicable statute of limitations must be raised in a motion

25 for summary judgment. Id. Defendants ignore this mandate, however, and again seek dismissal based upon

26

27 1 Though defendants seek judicial notice of a number of documents, the requests are improper or otherwise not determinative of this
28 motion for the reasons set forth below and in Plaintiffs’ Opposition to Defendants’ Request for Judicial Notice, filed herewith. 4
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1 plaintiffs’ pleadings. Defendants’ argument continues to fail for several reasons.

2

1. The Second Elimination Is But One of Many Unlawful Acts that Support Plaintiffs’

Claims of Discrimination.
3

Defendants urge the Court to “dismiss all claims based on the ‘second elimination’ (i.e. the Fall 2001

4

tryouts).” See Defs’ MPA at 5. None of plaintiffs’ claims, however, are based solely on this act. Rather, as the

5

Court noted the first time it denied defendants’ motion to dismiss, this act is one of many unlawful acts in a policy

6

and practice of discrimination by defendants. Docket #25, pp. 12-16.

7

Defendants cannot seek dismissal of only portion of a claim. See In re Amica, 130 B.R. at 796. Plaintiffs

8
allege that defendants have violated their civil rights because from the moment defendants refused to allow women

9
to wrestle in the varsity program, defendants began to discriminate against plaintiffs on the basis of their gender.

10
That discrimination continued each and every day that plaintiffs attended UCD because women’s wrestling

11
opportunities were never reinstated as they had existed. As detailed in the Complaint and summarized above,

12
defendants’ discrimination took several forms, included multiple acts on discrimination, constituted a policy and

13

practice of discrimination, and continues to this day. Importantly, all of this discrimination was against the

14

backdrop of defendants’ ongoing discrimination against women because it was failing, and continues to fail, to

15

provide equal athletic opportunities and athletic financial assistance to women throughout the UCD athletic

16

program. Olivier Decl., Exh. A, ¶¶ 129, 131, 140. Indeed, defendants were in violation of Title IX even before they

17

eliminated women’s wrestling. Id. Thus defendants’ second elimination was but one example of the discrimination

18
plaintiffs have had to endure. Plaintiffs’ claims, therefore, do not rise or fall upon defendants’ second elimination of

19
plaintiffs from the wrestling program.

20

2. Defendants Cannot Establish as a Matter of Law on the Pleadings that the Second

21

Elimination of Plaintiffs from Varsity Athletics Was Lawful.

22
Although the only facts before the Court on this motion are those that were considered on the prior Rule
23
12(b)(6) motion defendants now claim that those allegations establish that their conduct was lawful. Specifically,
24
defendants claim that the decision to require plaintiffs to wrestle and beat male athletes on the team using men’s
25
collegiate rules in order to participate in varsity wrestling was a lawful, nondiscriminatory policy. This argument
26
that such a policy is lawful because it “treats women the same as men” is disingenuous at best.
27
First, as this Court noted, defendants’ act in the Fall of 2001 to “allow” plaintiffs to participate in wrestling
28 5
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1 was under “different conditions – conditions that plaintiffs allege prevented them from participating in wrestling.”

2 Docket #25 at p. 11. Defendants changed their behavior toward women wrestlers in a manner that increased the

3 discrimination, already prevalent at UCD, against women in athletics. Olivier Decl., Exh. A at ¶¶ 75-78, 82.

4 Previously, defendants had maintained a varsity’s wrestling program in which women practiced and competed only

5 against women using freestyle as opposed to collegiate rules. Id. at ¶¶ 82, 85. Defendants removed all women from

6 the program in 2000, and then a year later allowed them back on the team only if they could meet the new

7 conditions. Not only were defendants’ actions part of a continuing discriminatory scheme against women in

8 athletics at UCD, but they were also in retaliation for plaintiffs complaining about discrimination in athletics at

9 UCD. Id. at ¶¶ 154-158.

10

Second, requiring that women compete against men in a contact sport generally applicable to men, in order

11 to have a varsity athletic opportunity, is hardly non-discriminatory. If such a policy were generally permitted there

12 would be a substantial risk that boys would dominate the girls thereby denying them a real opportunity to compete.

13 This is precisely why courts have repeatedly upheld separate but equal athletic programs under Title IX as

14 constitutionally permissible. See, e.g., O’Conner v. Bd. of Educ., 449 U.S. 1301 (1980).

15

The cases cited by defendants provide them no support. Most stand for the unremarkable proposition that

16 the Constitution and federal civil rights laws require equal treatment of the sexes and involve women and men

17 competing against each other in non-contact sports or at young ages before size and strength difference between

18 male and female become an issue. See Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975)

19 (holding that prohibiting girl from trying out for boys’ little league baseball violated equal protection); Brenden v.

20 Independent Sch. Dist., 477 F.2d 1292 (8th Cir. 1973) (holding that high school failed to demonstrate a rational

21 basis for excluding women from non-contact men’s sports teams). None of the cases stand for the proposition that a

22 university that had previously provided separate women’s athletic opportunities acted in a nondiscriminatory

23 manner by suddenly requiring women to compete against men. See, e.g., Lantz v. Ambach, 620 F. Supp. 663, 665-

24 66 (S.D.N.Y. 1985) (where no separate team, girl must be allowed to try out for boys’ junior varsity football team);

25 Hoover v. Meiklejohn, 430 F. Supp. 164, 171 (D.Colo. 1977) (where no separate girls’ soccer team, school

26 obligated to allow girls to try out for boys’ team or to field separate teams).

27

Third, defendants improperly attempt to use documents from the OCR as evidence in support of their claims

28 6
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1 that the second elimination policy is lawful. These documents are not the proper subject of judicial notice and may

2 not be relied on by defendants as support of their version of an ultimate issue in this case. See Plts’ Opp. to Defs’

3 RJN, filed concurrently herewith. The OCR documents do not provide an evidentiary basis for the argument in any

4 case. The documents are inadmissible hearsay under Federal Rules of Evidence 801. In addition, several OCR

5 letters merely reflect a decision to close the complaint files without a full investigation or consultation with

6 plaintiffs, after voluntary action taken by defendants. OCR does not conclude the absence of discrimination or

7 retaliation. Moreover, any such finding would not be determinative here. Rowinsky v. Bryan Independent School

8 District, 80 F.3d 1006, 1015-1016 (OCR findings accorded little weight); Philbrook v. Ansonia Bd. of Education,

9 757 F.2d 476, 481 (2d Cir. 1985) (probable cause by an administrative agency not determinative).

10

3. Plaintiffs’ Federal Claims Are Timely.

11

Defendants further argue that plaintiffs’ federal claims are time barred, because the “lawful” second

12 elimination ended defendants’ discrimination against plaintiffs, such that there is no “continuing violation” and

13 plaintiffs’ claims as to defendants’ earlier acts of discrimination are rendered untimely. The second elimination of

14 plaintiffs from varsity wrestling is not lawful as a matter of law. Thus, defendants’ timeliness argument fails.

15 Further, to the extent that defendants claim that the second elimination was the final “act” upon which plaintiffs’

16 claims could accrue, the Court has already decided this very issue in plaintiffs’ favor.

17

In their first motion to dismiss, defendants argued that the last of defendants’ actions which could form the

18 basis for plaintiffs’ claim for damages occurred in the Fall of 2001, when defendants required plaintiffs to meet the 19 new conditions in order to participate in varsity wrestling.2 The Court held, however, that plaintiffs do not allege

20 discrete acts of discrimination, but instead allege a policy and practice of discrimination such that the statute of

21 limitations does not turn on a specific act of defendants:

22

“Defendants’ argument ignores other allegations of plaintiffs’ complaint. Plaintiffs Mansourian [and

Mancuso] are current UCD students who are currently being subjected to defendants’ allegedly sex

23

discriminatory practices. [Citations.] As UCD students, their claims accrue each and every day they are

denied equal access to athletic participation and scholarship opportunities. [Citations.] At the time plaintiffs

24

filed the instant complaint, plaintiffs allege they should have been wrestling for UCD and receiving all the

varsity benefits and scholarships provided to male wrestlers, but defendants refused, and continue to refuse,

25

to date, to allow their participation. They have thus stated facts sufficient to withstand a motion to dismiss,

regardless of what statute of limitations applies.” Docket #25, p. 12:1-13.

26

27 2 Plaintiffs incorporate by reference their opposition to defendants’ motion to dismiss in 2004, which remains fully applicable to
28 defendants’ repeated arguments here. Docket # 98. 7
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1
Similarly, the Court held that although plaintiff Ng had graduated at the time the Complaint was filed,
2
because her graduation date is not on the face of the Complaint, and because “the Court must accept the facts stated
3
in the complaint as true, and must construe them in favor on Ng, the court must likewise deny the motion to dismiss
4
as to her since there is a set of facts in which her claim would survive.” Docket #25, p. 13.
5
Both holdings remain as applicable now as they were when this Court first issued them. Moreover, the
6
Court in its order specifically stated that any further argument related to the statute of limitations must be raised in a
7
summary judgment motion, not in yet another motion to attack the pleadings. Docket #25, pp. 9-16. Defendants’
8
blatant disregard for this Court’s order warrants summary denial of its motion for judgment on the pleadings.
9
Moreover, defendants continue to misconstrue the proper limitations analysis. Defendants were failing to
10
provide equal athletic opportunities to women even before they barred plaintiffs from the wrestling program. For
11
purposes of the statute of limitations, plaintiffs had a right each and every day of their enrollment at UCD to equal
12
access to educational benefits. Thus plaintiffs’ claims began to accrue at least as early as defendant’s termination of
13
women’s wrestling at UCD in the Fall of 2000 and continued to accrue until they left UCD.
14
The applicable limitations period for Title IX and for § 1983 actions is governed by California’s general
15
personal injury statute. See Stanley v. Trustees of the California State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006)
16
(“Title IX claims are subject to the applicable state statute of limitations for personal injury actions.”); Azer v.
17
Connell, 306 F.3d 930, 935 (9th Cir. 2002) (§ 1983 actions governed by state statute of limitations for personal
18
injury actions). Defendants erroneously cite to Stanley to argue that the statute of limitations is one year. The Ninth
19
Circuit in Stanley held, as is consistent with “every other federal circuit to consider this issue,” that “Title IX claims
20
are subject to the applicable state statute of limitations for personal injury actions.” Stanley¸ 433 F.3d at 1135-36.
21
California’s personal injury statute of limitations was amended to extend to two years. See Cal. Code Civ.
22
Proc. 335.1. As this Court has already held in this case on this issue, section 335.1 “extend[s] the limitations period
23
of an actionable claim if the extension occurs before the claim for relief becomes time barred under the old
24
limitations period.” Docket #25, p. 11, citing Douglas Aircraft Co. v. Cranston, 58 Cal. 2d 462, 465 (1962)); see
25
also Lamke v. Sunstate Equipment Co., 387 F. Supp. 2d 1044, 1052 (N.D.Cal. 2004) (“[t]he extension of the
26
statutory period within which an action must be brought [here, from one year to two] is generally held to be valid if
27
made before the cause of action is barred.”) (citation omitted); Thompson v. City of Shasta Lake, 314 F. Supp. 2d
28 8
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1 1017, 1024 (E.D.Cal. 2004) (same).

2

Section 335.1 became effective on January 1, 2003. Thus, as long as the claim accrued on January 2, 2002

3 or later, the two year statute of limitations applies. And, because the Complaint was filed on December 18, 2003,

4 any such claims are timely. Moreover, even if a one year statute of limitations applies, the claim is timely if it 5 accrued on or after December 18, 2002.3 Plaintiffs Mansourian and Mancuso were still students at UCD when the

6 Complaint was filed and their claims are therefore timely. Plaintiff Ng had graduated, but as noted above, her

7 graduation date is not stated on the face of the Complaint. As this Court has already held, any argument regarding

8 the statute of limitations, therefore, has to be raised in a motion for summary judgment. Docket #25, p. 13.

9

D. Plaintiffs Have Properly Pled a Retaliation Claim Under Title IX.

10

The Supreme Court has explicitly recognized a cause of action for retaliation under Title IX. Jackson v.

11 Birmingham Bd. of Educ., 544 U.S. 167 (2005). To establish such a claim, plaintiffs must show that they were

12 retaliated against because they complained of sex discrimination. Id. at 184 and 1510. Plaintiffs have alleged facts,

13 which if accepted as true and construed in their favor, adequately support their claim that defendants unlawfully

14 retaliated against them. In particular, plaintiffs have alleged that they repeatedly complained and protested about

15 Defendants’ failure to comply with Title IX based on their sex and that defendants retaliated against them by

16 refusing to reverse their decision to eliminate women from the wrestling program, reneging on their subsequent

17 promise to reverse their decision, firing the wrestling coach who supported and trained women wrestlers, and

18 forcing plaintiffs and other women wrestlers to compete against and beat men under different rules – conditions that

19 had never previously been imposed – in order to participate in varsity wrestling. Olivier Decl., Exh. A, ¶¶ 151-158.

20

Despite these allegations, defendants argue once again that plaintiffs’ retaliation claim is untimely and that it

21 is barred as a matter of law because just one of the above allegations references a third party, Coach Burch. Neither

22 argument has merit. The Court has already rejected defendants’ argument that plaintiffs’ Title IX retaliation claim is

23 time barred and defendants have failed to state any legal basis that would bar plaintiffs’ retaliation claim -- even if

24 the only allegation underlying such claim was based on defendants’ termination of plaintiffs’ coach. Finally,

25 Defendants’ efforts to parse out just one factual basis for plaintiffs’ retaliation claim should fail because it would not

26

27 3 Any statute of limitations also would be equitably tolled while plaintiffs sought administrative relief through the OCR. Daviton v.
28 Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001); Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691 (9th Cir. 2003). 9
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1 bar the claim in its entirety as a matter of law.

2

1. The Court Has Already Ruled that Plaintiffs’ Retaliation Claim Is Timely.

3

This Court has already rejected defendants’ argument, made again here, that plaintiffs’ retaliation claim is

4 time barred because no retaliation occurred after plaintiffs engaged in the protected activity of filing the OCR

5 complaint in the Spring of 2001. Defendants misapprehend plaintiffs’ allegations: the protected activity is not

6 limited to the OCR complaint but extends to plaintiffs’ complaints to UCD about its discrimination. Olivier Decl.,

7 Exh. A, ¶¶ 151-153. In addition, as the Court noted previously: “As to the retaliation claim in particular, plaintiffs

8 allege defendants retaliated against them and continue to retaliate against them by, among the other [specific

9 retaliatory acts alleged in the Complaint], continuing to refuse and failing to treat female athletes, especially

10 wrestlers, equitably.” Docket #25, p. 12, fn. 10. For these very same reasons, defendants’ Rule 12(c) motion on the

11 timeliness argument should be denied.

3. Plaintiffs’ Retaliation Claim Is Based on the Personal Harm Plaintiffs Suffered,

12

Including Coach Burch’s Termination.4

13

Plaintiffs’ retaliation claim seeks to redress the harm they personally suffered as a result complaining about

14 the discrimination they experienced based on their sex. This harm includes plaintiffs being “denied their civil right

15 to enjoy an equal opportunity to participate in varsity athletics and to receive athletic financial assistance.” Olivier

16 Decl., Exh. A, ¶ 160. Courts have determined that the harm Title IX plaintiffs suffer as a result of losing the

17 benefits accorded to women athletes who compete interscholastically can be irreparable. See, e.g., Choike v.

18 Slippery Rock University of Pennsylvania, 2006 WL 2060576 at *9 (lost opportunities to “develop skill, self

19 confidence, learn team cohesion and sense of accomplishment, increase their physical and mental well-being, and

20 develop a life long healthy attitude”). Plaintiffs here also suffered emotional distress, lost self-esteem, and

21 humiliation as a result of defendants’ retaliation. Olivier Decl., Exh. A, ¶¶ 135, 146, 160.

22

Despite plaintiffs’ clearly pled claims of personal harm, defendants seek to bar plaintiffs’ retaliation claim

23 because they lack “third party standing.” Defendants argue that plaintiffs do not meet the criteria to seek redress for

24 injuries done to others, referencing Coach Burch and citing cases that are inapposite to the circumstances underlying

25

26

27 4 Once again, defendants improperly ask this Court to parse portions of plaintiffs’ claims and subject them to judgment on the pleadings. Plaintiffs have alleged multiple retaliatory actions in support of their retaliation claim, only one of which is firing coach Burch. Defendants
28 are not entitled to judgment on only a portion of a particular claim. See, e.g., In re Amica, Inc., 130 B.R. at 796. 10
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1 plaintiffs’ claims.5 This argument fails as it is based on the clearly erroneous assumption that plaintiffs are seeking

2 to redress the injury suffered by Coach Burch.

3

Defendants argue in the alternative, that “even if plaintiffs contend that they are seeking redress for injuries

4 done to them resulting from Burch’s departure, the retaliation claim still lacks merit.” Defs’ MPA at 8. Neither

5 case upon which defendants rely supports this claim. In Shaposhikov v. Pacifica Sch. Dist., 2006 WL 931731 (N.D.

6 Cal. 2006), the Court ruled that plaintiff’s allegations of retaliation -- that defendants were too lenient on a student

7 sexual harasser – related to actions that did not involve the plaintiff and therefore were not actionable under Title

8 IX. Here, the removal of Coach Burch had an immediate, severe and direct impact upon plaintiffs who were

9 deprived of the physical training and moral support Coach Burch provided each of them individually, a deprivation

10 that continued when the replacement coach not only refused to train and support plaintiffs but imposed even greater

11 barriers to their being able to participate in wrestling. Olivier Decl., Exh. A, ¶¶ 75-79, 151-158. Choike also does

12 not assist defendants, as it did not involve students being directly harmed by the coach’s termination but rather

13 involved a coach’s claim that a school’s elimination of the teams he coached violated Title IX. 2006 WL 2060576.

14 The court reasoned there that the loss of his coaching job was not the result of intentional discrimination directed at

15 plaintiff but a “mere by-product” of their decision to eliminate the teams. Here, the decision to terminate Burch was

16 not a “mere by-product” of defendants’ decision to eliminate the women’s wrestling team because the job he

17 performed continued to exist and defendants hired a new coach to replace him. Moreover, plaintiffs allege that fired

18 Coach Burch in direct retaliation for plaintiffs’ complaints of discrimination.

19

Undaunted, defendants assert that in order to state a claim for retaliation based upon Burch’s firing,

20 plaintiffs must also demonstrate that Burch’s firing was a “materially adverse employment action.” Defendants’ 21 suggestion that a termination is not “materially adverse” is nonsensical.6 Moreover, to the extent that what

22 defendants are attempting to argue is that Burch’s termination must be “materially adverse” to plaintiffs, (1)

23 defendants have failed to offer any law to support this assertion; and (2) plaintiffs have sufficiently alleged that

24

25 5 Lowrey v. Texas A&M, 117 F.3d 242, 251 (5th Cir. 1997) and Hankerson v. Thomas County Sch. Dist. 2005 U.S. Dist. LEXIS 25576 *7-
26 8 (M.D. Ga. 2005) are irrelevant to the analysis of plaintiffs’ retaliation claim on behalf of themselves because they involve claims brought by coaches on behalf of their students.
27 6 Defendants rely upon Title VII law for this argument. But the inquiry there is entirely different: courts evaluating whether an adverse employment action is retaliatory look to whether it is “materially adverse” as a measure of the severity of the action taken against the
28 plaintiff. See, e.g., Ray v. Herndeson, 217 F.3d 1234, 1243 (9th Cir. 2000). 11
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1 Burch’s termination was material in that it caused plaintiffs further harm.

2

To the extent that “materiality” is relevant to any inquiry at all, it would be in the context similar to the First

3 Circuit’s adaptation of Title VII’s retaliation framework to the education context. There, the Court held that

4 retaliation claims include four elements: (1) plaintiffs engaged in protected activity; (2) alleged retaliator knew of

5 protected activity; (3) alleged retaliator subsequently undertook some disadvantageous action against plaintiffs; and

6 (4) retaliatory motive played a substantial role. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002).

7 Plaintiffs specifically alleged facts in the Complaint sufficient to make a showing of retaliation under these four

8 elements: (1) plaintiffs complained about gender discrimination in athletics and the removal of women wrestlers to

9 UCD adminstrators and to the OCR through formal complaints; (2) defendants knew of plaintiffs’ protected activity;

10 (3) defendants subsequently withdrew their promise to reinstate women’s wrestling, imposed conditions on women

11 wrestlers that effectively barred them from participating, terminated their coach, and continued to refuse to provide

12 equal athletic opportunities each day plaintiffs remained as students as UCD; and (4) defendants’ adverse actions

13 were in direct response to and were intended to discriminate against plaintiffs in retaliation for the exercise of their

14 rights under Title IX. Olivier Decl., Exh. A, ¶¶ 60-79, 151-158. To assert that this harm to plaintiffs, which was so

15 shocking as to draw the attention of the media, the state legislature, and fellow students, is not a materially adverse

16 action is not only spurious but also raise a material issue of fact. It cannot be a basis for judgment on the pleadings.

17

Finally, defendants’ policy arguments are equally unpersuasive. First, defendants’ suggestion that allowing

18 plaintiffs’ claim to proceed would subject schools to hundreds of lawsuits claiming the effect of a discriminatory

19 personnel decision is hyperbolic fantasy and, in any event, is unsupported by its legal argument that “federal funding

20 recipients could not have contemplated such liability in accepting federal funds.” Defs’ MPA at 8. To the extent a

21 school’s retaliatory actions are taken against a teacher and a student, as is the case here, the school is liable to the

22 student, as well as the teacher, under Title IX. See, e.g., Jackson, 544 U.S. at 182 (stating that “funding recipients

23 have been on notice that they could be subjected to private suits for intentional sex discrimination under Title XI

24 since 1979”). Having agreed to comply with Title IX and its federal regulations and having accepted and spent

25 federal Title IX funding, Defendants cannot avoid the obligations to which it previously agreed by now arguing that

26 plaintiffs’ claim that Coach Burch’s firing was one of several retaliatory acts against plaintiffs is an invalid exercise

27 of the spending clause. Indeed, it would offend every principle of equity to permit Defendants to enjoy the benefits

28 12
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1 and at the same time avoid the terms of Title IX. Defendants’ alternative policy argument, that allowing plaintiffs to

2 seek redress based on Coach Burch’s termination would require a “trial within a trial” regarding whether his

3 departure constituted an adverse” action, is unsupported by any authority.

4

E. Plaintiffs Have Properly Pled a § 1983 Claim.

5

Plaintiffs assert a claim against defendants under 42 U.S.C. § 1983 for violation of the equal protection

6 clause of the U.S. Constitution. Defendants’ assertion that this claim is subsumed by Title IX is incorrect. The

7 significance and practical importance of § 1983 cannot be understated. It was “intended to provide a remedy, to be

8 broadly construed, against all forms of official violation of federally protected rights.” Monell v. New York City

9 Dept. of Social Servs., 436 U.S. 658, 700-701 (1978).

10

Federal rights are presumptively enforceable under § 1983. This presumption may be defeated only in

11 exceptional cases by showing clear congressional intent to restrict plaintiffs to the set of remedies that are available

12 under the violated statute itself, thereby precluding § 1983 enforcement. See City of Rancho Palos Verdes v.

13 Abrams, 544 U.S. 113, 120 (2005); Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453

14 U.S. 1 (1981).

15

The Supreme Court has found a statutory scheme to bar enforcement of rights under § 1983 in only three

16 cases, all of which are fundamentally different than the claims before this Court. In Sea Clammers, the Court found

17 that the “unusually elaborate enforcement provisions” of two federal environmental laws that “created so many

18 specific statutory remedies” suggested that Congress did not intend to preserve a § 1983 right of action based on the

19 federal statute (as opposed to any constitutional right). 453 U.S. at 20-21. In Smith v. Robinson, 468 U.S. 992

20 (1984), the Supreme Court foreclosed a § 1983 action because it found that Congress intended that the Education of

21 the Handicapped Act to be the “exclusive avenue” through which a plaintiff may assert those claims. Id. at 1009. In

22 Rancho Palos Verdes, the Supreme Court barred reliance on § 1983 to enforce the Telecommunications Act of 1996

23 based on the “detailed scheme” and “limited remedies” of the statute and the legislative history that suggests

24 Congress intended TCA to be an exclusive remedy. 544 U.S. at 120. Significantly, the Court stated that the

25 determinative inquiry is whether Congress intended the statute at issue to be the exclusive remedy such that it is

26 incompatible with enforcement under § 1983. Id.

27

To be clear, plaintiffs’ § 1983 claim is based on the equal protection clause, not on their rights under Title

28 13
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1 IX. Although the Ninth Circuit has not ruled on the issue, three other circuits have expressly held that a plaintiff’s

2 1983 claim based on the equal protection clause is not subsumed by Title IX. As the Eighth Circuit found: “To the

3 extent that [plaintiff’s] § 1983 claims are premised on alleged violations of the Equal Protection Clause, we believe

4 that the application of Sea Clammers to her claims is plainly inapposite. Sea Clammers in no way restricts a

5 plaintiff's ability to seek redress via § 1983 for the violation of independently existing constitutional rights, even if

6 the same set of facts also gives rise to a cause of action for the violation of statutory rights.” Crawford v. Davis, 109

7 F.3d 1281, 1284 (8th Cir. 1997); see also Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir. 1996) (plaintiff has

8 independent rights under Title IX and under § 1983 for violations of constitutional rights); Lillard v. Shelby County

9 Bd. of Educ., 76 F.3d 716, 722- 23 (6th Cir.1996) (plaintiff’s § 1983 action did not purport to gain remedies

10 unavailable under Title IX, but instead sought to enforce distinct and independent substantive due process rights.)

11

The holdings of these Circuit Courts are further supported by the fact that there is no evidence of

12 Congressional intent to make Title IX the exclusive or even a comprehensive remedy for a plaintiff asserting a claim

13 of discrimination based on gender. As the Eighth Circuit held in finding that plaintiff was entitled to pursue her

14 Title IX claim both independently and under § 1983:

15

To the extent that [plaintiff’s] § 1983 claims are based on alleged violations of Title IX, we find

16

unpersuasive the defendants' argument that Title IX contains a “sufficiently comprehensive” remedial scheme. The only enforcement mechanism that Title IX expressly provides is a procedure to terminate

17

federal support to institutions that violate Title IX. See 20 U.S.C. § 1682; see also Cannon v. Univ. of

Chicago, 441 U.S. 677, 683, 99 S.Ct. 1946, 1950, 60 L.Ed.2d 560 (1979). This is a far cry from the

18

“unusually elaborate enforcement provisions” of the statutes at issue in Sea Clammers, 453 U.S. at 13, 101

S.Ct. at 2622, which expressly provided for citizen suits and enforcement by government agencies. By

19

holding that Title IX contains not only an implied private right of action, Cannon, 441 U.S. at 709, 99 S.Ct.

20

at 1964, but also a damages remedy, Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 76, 112 S.Ct. 1028, 1038, 117 L.Ed.2d 208 (1992), moreover, the Supreme Court has indicated that the sole express

21

enforcement mechanism contained in Title IX is not exclusive. We believe, therefore, that there is no

evidence that Congress intended to foreclose the use of § 1983 to redress violations of Title IX. Crawford,

22

109 F.3d at 1284.

23

Moreover, plaintiffs’ Title IX claims substantially differ from their claims under § 1983, in that courts have

24 found violations of the equal protection clause but not Title IX. See, e.g., Mississippi Univ. for Women v. Hogan,

25 458 U.S. 718, 732-33 (1982) (striking down female-only nursing school policy under Equal Protection Clause,

26 while noting that it might not violate Title IX).

27

Further, the reasoning of the Circuits that reached the opposite conclusion is unpersuasive. Each of those

28 14
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1 cases reads Sea Clammers as applying whenever a remedial scheme is available elsewhere. See e.g, Bruneau ex rel.

2 Schofield v. South Kortright Cent. School Dist. 163 F.3d 749, 758 (2nd Cir. 1998); Pfeiffer v. Marion Ctr. Area Sch. 3 Dist., 917 F.2d 779, 789 (3d Cir.1990). 7 As Rancho Palos Verdes recently made plain, the proper inquiry is

4 whether Congress intended the statutory scheme to be the only remedy available to plaintiff. Rancho Palos Verdes,

5 544 U.S. at 120. Indeed, the Second Circuit noted in its analysis that “plaintiff had a constitutional right,” but then

6 held that Title IX provides the exclusive remedy. Bruneau, 163 F.3d at 758. Title IX, however, does not provide a

7 remedy for constitutional rights. That is the province of § 1983.

8

E. Plaintiffs Have Properly Pled a Violation of California Public Policy.

9

1. Plaintiffs Allege Multiple Sources of California’s Public Policy.

10
Defendants improperly seek dismissal of plaintiffs’ single public policy cause of action by addressing

11
separately each Constitutional or statutory provisions on which it is based and arguing, as to each, that it does not

12
provide a private right of action. A Rule 12(c) motion must dispose of an entire cause of action. See Moran, 825 F.

13

Supp. at 893; In re Amica, Inc., 130 B.R. at 796.

14

Further, it is not the specific statute or regulation that forms the basis for the tort, but the underlying policy

15

reflected in it. Green v. Ralee Eng’g Co., 19 Cal. 4th 66 (1998). Courts have consistently upheld tort claims based

16

on California’s public policy against discrimination. See, e.g., Stevenson v. Super. Ct., 16 Cal. 4th 880 (1997) (Fair

17

Employment and Housing Act declares a fundamental public policy against age discrimination); Rojo v. Kliger, 52

18
Cal. 3d 65 (1990) (California Constitution (Art. 1, § 8) declares a fundamental public policy against sex

19
discrimination). Plaintiffs have pled allegations sufficient to satisfy the following requirements:

20

First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must

21

be “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of

the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy

22

must be “fundamental” and “substantial.”

23
Stevenson, 16 Cal. 4th at 890.
24
Plaintiffs’ Complaint provides two sources of public policy—California Constitution and Education Code—
25
and both of these sources meets the prerequisites set forth above. As to each, plaintiffs make the necessary
26

27 7 Travis v. Folsom Cordova Unified Sch. Dist., 2007 U.S. Dist. Lexis 11566 (E.D. Cal. 2007) is inapposite. There, the court considered
28 whether Title VI subsumed a sec. 1983 claim based on Title VI, not based on the equal protection clause as is the case here. 15
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1 allegations described above. For instance, the Complaint cites to California Constitution Article 1, Section 7, which

2 states “this amendment is necessary to serve compelling public interests.” Id. at ¶ 183. The Complaint also relies

3 upon the Education Code, which states it is the intent of the Legislature that “opportunities for participation in

4 athletics be provided equally to male and female pupils” and that “opportunities for participation in intercollegiate

5 athletic programs. . . in the campuses of the University of California be provided on as equal a basis as is practicable

6 to male and female students.” Id. at ¶¶ 187, 189. These statutes clearly establish the fundamental and substantial

7 public policy against gender discrimination.

8

The Complaint further alleges that defendants violate public policy by treating male and female students

9 differently by (1) failing to provide female students with equal athletic participation opportunities; (2) failing to

10 provide female students with equal athletic financial assistance; and (3) providing male but not female students with

11 participation opportunities in the sport of wrestling.” Olivier Decl., Exh. A, ¶ 196.

12

4. Public Policy Torts Do Not Require That a Private Right of Action Exist in Constitutional

or Statutory Provisions that Form the Basis of the Public Policy Tort.

13

14

Defendants’ argument that the sections of the Education Code and California Constitution on which

15 plaintiffs rely for their public policy claim do not contain a private right of action is misdirected. Because plaintiffs’

16 claim is a tort claim, not a statutory claim, it does not depend upon a showing that the Constitutional and statutory

17 provisions from which the public policy emanates also authorize a private right of action. When a legislative

18 provision embodying a public policy is enacted for the protection of a particular class of persons, as is the case here,

19 its violation may give rise to civil liability to an injured plaintiff who is a member of the class. Hudson v. Craft, 33

20 Cal. 2d 654 (1949).

21

Even assuming a private right of action is necessary, plaintiffs have an implied right of action under the

22 Education Code and the Constitution. California courts have applied two separate but similar tests to imply a

23 private right of action: (1) “legislative intent;” and (2) “Restatement 2d.” See, e.g., Crusader Ins. Co. v. Scottsdale

24 Ins. Co., 54 Cal. App. 4th 121 (1997). Both tests consider factors such as whether a private right to sue is

25 “appropriate” and “needed.” Id. It is clear from the language in the constitutional and statutory provisions

26 California has created to prohibit gender discrimination that California law is intended to increase statewide

27 compliance with Title IX, not simply to enact a toothless clone of the federal law. The California Legislature

28 16
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1 expressly stated with respect to the Education Code, that “[w]hile significant progress has been made since the

2 passage of Title IX [of the Education Amendments] in 1972, the numbers indicate that female athletes are still not

3 provided equal athletic opportunity at many high schools, colleges, and universities throughout the state.” Section 1

4 of Stats. 2002, ch. 1060 (A.B. 2295), as amended by Stats. 2003, ch.62 (S.G. 600), § 345. Therefore, a private right

5 of action is appropriate and necessary to ensure the effectiveness of the law.

6

5. Defendants’ Private Right of Action Argument Is No More Availing When Made

Specifically on Behalf of the Individual Defendants.
7
Relying principally on Reynolds v. Bement, 36 Cal. 4th 1075 (2005), defendants argue that, even where a

8

private right of action is authorized, “there still remains the question” of whether individual agents or employees are

9
liable “under that statute.” Defs’ MPA, p. 16. The very manner in which defendants phrase the argument reveals its

10

flaws. As stated above, plaintiffs’ claim for violation of public policy is a tort claim, based upon the important

11

public policy, against discrimination in education. Accordingly, the question is not whether there is a private right

12
of action for violation of a specific statute, but whether the defendants engaged in tortious conduct in violation of

13

public policy.

14

Moreover, the individual defendants in Reynolds against whom the plaintiffs sought liability had not

15
engaged in any actions themselves in violation of the statute in question. They were merely officers, directors and

16

shareholders of the corporate employer. Plaintiff sought to impose individual liability for the employer’s wage and

17
hour violations on such persons by virtue of their positions, rather than their conduct, based upon a broad definition

18

of “employer” adopted by the Industrial Welfare Commission. The Court rejected that definition as a basis for

19

identifying the scope of persons who would be individually liable under the statute. At the same time, the Court

20
acknowledged that “directors may be ‘jointly liable with the corporation and may be joined as defendants if they

21
personally directed or participated in the tortious conduct.’” Reynolds, 36 Cal. 4th at 1089-90. Here, the individual

22

defendants are not merely officers or agents of the Regents but are individuals who, were directly involved in and

23
participated in the conduct which constituted the violation of public policy.

24

Nor does Thornburg v. Superior Court, 138 Cal. App. 4th 43 (2006) support defendant’s position. That

25
case sought to establish statutory liability, not tort liability. Moreover, the conduct at issue in Thornburg consisted

26

of charging patients an excessive amount for copying medical records. The court specifically found that the public

27

interest there was not so vital as to assume that the legislature intended to impose liability on every agent or

28

17

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1 employee of the defendant. Id. at 51. Here, by contrast, the public interest in preventing gender based

2 discrimination is fundamental and substantial.

3

The only other case involving California public policy on which defendants rely for their argument that

4 individuals cannot be held liable for violations of such policy is Reno v. Baird, 18 Cal. 4th 640, 660, 663 (1998), in

5 which the Supreme Court held that individual supervisors are not liable for employment discrimination either under

6 FEHA or violation of public policy. Id. at 663. However, the specific language of the statute limited liability for

7 discrimination to an “employer” while imposing liability for retaliation and harassment on employers and other

8 “persons.” The Court found individual supervisors were not “employers” under FEHA for the purpose of

9 discrimination claims. It also determined that it would be incongruous to impose tort liability on a class of persons

10 who the legislature excluded from statutory liability for the same conduct. Id. at 650-51, 664. This rationale is

11 inapplicable here. The law relied upon by plaintiffs for their public policy claim is silent as to who might not be

12 liable. Instead, it makes clear that it is a fundamental public policy of California that discrimination in education be

13 eliminated and that “each Californian, regardless of ethnic origin, race, gender, age, disability, or economic

14 circumstance” be given “a reasonable opportunity to develop fully his or her potential.” There is no reason to

15 believe that the tortious violation of this policy by an individual is any less egregious, or any less actionable, when

16 engaged in by individuals than when engaged in by an institution.

17

F. Plaintiffs Have Properly Requested Emotional Distress and Punitive Damages.

18

Even when courts allow partial judgment on individual causes of action as opposed to an entire action, a

19 prayer for relief is not considered part of the cause of action for purposes of testing the sufficiency of the pleading.

20 See 5 Wright & Miller, Federal Practice and Procedure § 1255 (3d ed. 2004); In re Amica, Inc., 130 B.R. at 796.

21 Accordingly, plaintiffs’ requested remedies of emotional distress damages and punitive damages under Title IX are

22 not properly subject to dismissal on a Rule 12(c) motion.

23

3. Plaintiffs Have Properly Requested Emotional Distress Damages Under Title IX.

24

Title IX provides plaintiffs with an implied private cause of action and entitles plaintiffs to compensatory

25 damages, especially where, as here, there are allegations that the defendants’ discrimination was intentional.

26 Franklin, 503 U.S. 60. The Supreme Court in Franklin set forth broad parameters of relief: “where legal rights

27

28 18
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1 have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use

2 any available remedy to make good the wrong done.” Id. at 66.

3

Defendants’ argument that plaintiffs are not entitled to emotional distress damages because Title IX was

4 enacted pursuant to the Spending Clause and therefore limited to contractual remedies is in error. In Gebser v. Lago

5 Vista Independent Sch. Dist., 524 U.S. 274 (1998) and Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999),

6 the Supreme Court analyzed the scope of liability under Title IX and affirmed the availability of compensatory

7 damages – which necessarily include emotional distress damages -- despite the fact that Title IX is partially derived 8 from the Spending Clause.8 In both cases, the Court reasoned that Title IX described sexual harassment with

9 sufficient clarity to provide adequate notice to school officials that they could be liable for this form of

10 discrimination, thereby satisfying the notice requirement of Spending Clause legislation. Here, plaintiffs’

11 allegations regarding their denial of Title IX opportunities directly track the language of Title IX, thereby placing

12 defendants on notice of their potential liability. Moreover, unlike back pay and other economic damages that are

13 equitable in nature, see, e.g., Franklin, 503 U.S. at 1038, emotional distress damages are considered compensatory

14 damages in the civil rights context. Defendants concede this point in their reliance on Barnes v. Gorman, 536 U.S.

15 181, 187 (2002) which notes that under “Title IX, which contains no express remedies, a recipient of federal funds is

16 nevertheless subject to suit for compensatory damages….”

17

Defendants further concede that emotional distress damages are available even as a contractual remedy

18 where serious emotional distress is a particularly likely result. Defs’ MPA at 11. Emotional distress damages are

19 also available in contract when the aggrieved party is subjected to more than economic damages. State Farm Mut.

20 Auto Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003); Erlich v. Menezes, 21 Cal. 4th 543, 558-59 (1999). Plaintiffs

21 allege that they experienced significant harm at the hands of defendants. Olivier Decl., Exh. A, ¶¶ 120, 146.

22 Defendants contend that plaintiffs’ emotional distress was not severe enough to warrant compensation under a

23 contractual analysis. This is a factual dispute that cannot be decided on the pleadings.

24

4. Plaintiffs Have Properly Requested Punitive Damages Under Title IX.

25

Defendants’ argument that punitive damages are not available under Title IX as a matter of law is incorrect.

26 At least one court has left open the possibility that punitive damages may be available under Title IX to serve public

27

28 8 The Court in Franklin refused to reach the question of which congressional power was used to enact Title IX. Id. at 75 n.8. 19
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1 policy. See Doe v. Oyster River Co-op. Sch. Dist., 992 F. Supp. 467, 483 (D.N.H. 1997). Also, some courts have

2 recognized that punitive damages awards are available under section 504 of the Rehabilitation Act of 1973, 29

3 U.S.C. § 704, a statute whose enforcement regime, as well as legislative history, closely tracks that of Title IX. See,

4 e.g., Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830-32 (4th Cir. 1994); Hernandez v. City of Hartford, 959

5 F.Supp. 125, 133-34 (D.Conn. 1997).

6

G. The Individual Defendants Are Not Entitled to Immunity as a Matter of Law.

7

Defendants argue that the actions of the individual defendants in this case involved “a discretionary, as

8 opposed to a ministerial” decision, and that they are, therefore, immune from liability under California Government

9 Code § 820.2. The California Supreme Court has long established, however, that the issue of whether discretionary

10 immunity applies requires a policy based analysis, based upon the underlying purpose of immunity, rather than a

11 mechanical or literal approach of determining whether discretion was involved. Johnson v. State, 69 Cal.2d 782,

12 795 (1968).

13

The sole purpose of discretionary immunity is to prevent judicial inquiry into sensitive policy decisions of

14 government employees that are best left to agencies other than the courts. Johnson, 69 Cal. 2d at 795 n.8. Thus,

15 immunity only applies for those, “‘basic policy decisions [which have] . . . been [expressly] committed to coordinate

16 branches of government,’ and as to which judicial interference would thus be ‘unseemly.’” Caldwell v. Montoya, 10

17 Cal. 4th 972, 981 (1995). The proper approach to determining whether discretionary immunity applies, therefore,

18 requires that a court “find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive

19 to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the

20 governmental decision.” Johnson, 69 Cal. 2d at 794. “Accordingly, to be entitled to immunity the [defendant] must

21 make a showing that such a policy decision, consciously balancing risks and advantages, took place.” Id. at 795 n.8.

22 Defendants here concede that this is the proper standard. Defs’ MPA at 19.

23

Defendants have made no such showing here and cannot do so. The only support defendants offer for their

24 argument that the individual defendants “consciously balanced risks and advantages” of any decision on which this

25 action is based is the reference to a handful of allegations in the Complaint, none of which assert any facts regarding

26 the process by which the defendants decided to take the actions they did against plaintiffs. Based upon these

27 allegations, including the fact that defendants’ conduct engendered media and legislative attention, and unspecified

28 20
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1 “evidence provided via judicial notice,” defendants urge this court to accept the remarkable conclusion that there is

2 “no doubt that defendants made discretions decisions with respect to plaintiffs’ demands after much deliberation and

3 in light of many external factors . . .” That conclusion is mere wishful thinking on defendants’ part. Nothing in the

4 Complaint or in the materials submitted by defendants establishes that any conscious balancing of risks and

5 advantages actually occurred. Nor are defendants’ stated “ultimate facts and conclusions of law” sufficient to

6 establish discretionary immunity. Neary v. Regents of Univ. of Cal., 185 Cal. App. 3d 1136, 1143 (1986); Runyon v.

7 Super. Ct., 187 Cal. App. 3d. 878, 882 (1986). Thus, simply asserting that defendants made decisions in light of

8 external factors does not establish that their conduct was the result of a weighing of risks and advantages.

9

Additionally, even where a government employee’s actions involve complex decisions which require the

10 exercise of skill and judgment, they do not enjoy discretionary immunity unless they constitute basic policy

11 decisions rather than the implementation of a basic policy already formulated. Barner v. Leeds, 24 Cal. 4th 676, 685

12 (2000). In Barner, the Supreme Court noted that the scope of the discretionary act immunity “should be no greater

13 than is required to give legislative and executive policymakers sufficient breathing space in which to perform their

14 vital policymaking functions.” Id. at 685. Thus, routine duties which are a part of the normal operations of the

15 employee’s office or position are not discretionary, while basic policy decisions made at the planning stage of

16 operations qualify employees for immunity. Taylor v. Los Angeles Dep’t of Water & Power, 144 Cal. App. 4th

17 1216, 1238-39 (2006).

18

Similarly, even where discretion, as that term is commonly used, is actually exercised, immunity under §

19 820.2 does not apply unless such discretion in exercised in the context of a basic policy decision. Barner, 24 Cal.

20 4th at 685. Here, defendants’ actions were ministerial in nature because they were contrary to the existing policies

21 designed to promote equal opportunities for women in athletic programs. Defendants’ actions were operational

22 decisions, not part of the Regents’ “basic policy decisions” made at the “planning” stage, and they contravened

23 existing policies established by the California Legislature through the California Education Code and Congress

24 through Title IX. They did not entail “quasi-legislative” determinations of any kind. Accordingly, holding the

25 individual defendants accountable for their tortious actions would not involve the type of judicial oversight that the

26 Legislature feared in enacting § 820.2.

27

28 21
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1 IV.
2

CONCLUSION For all of the reasons stated herein, defendants’ motion for judgment on the pleadings should be denied.9

3 DATED: July 13, 2007

Respectfully Submitted,

4

THE STURDEVANT LAW FIRM

5

By: /s/ Monique Olivier

6

MONIQUE OLIVIER

7

Attorneys for Plaintiffs

8

EQUAL RIGHTS ADVOCATES

9

10

By: /s/ Noreen Farrell

NOREEN FARRELL

11

Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 9 If the Court is inclined to grant defendants’ motion, in whole or in part, plaintiffs request leave to amend their Complaint. Federal policy strongly favors determination of cases on their merits. Foman v. Davis, 371 U.S. 178, 182 (1962).
28 22
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11 AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI CHIANG;
12 and CHRISTINE WING-SI NG; and all those similarly situated,
13 PlaintiffS,
14 v.
15 BOARD OF REGENTS OF THE
16 UNIVERSITY OF CALIFORNIA at DAVIS; LAWRENCE “LARRY”
17 VANDERHOEF; GREG WARZECKA; PAM GILL-FISHER; ROBERT FRANKS;
18 and LAWRENCE SWANSON,

NO. CIV. 2-03-02591-FCD-EFB MEMORANDUM AND ORDER

19

Defendants.

20

----oo0oo----

21

This matter is before the court on defendants’ motion for

22 judgment on the pleadings pursuant to Federal Rule of Civil

23 Procedure 12(c) filed on June 5, 2007. Plaintiffs oppose

24 defendants’ motion. The court heard oral argument on the motion

25 on July 27, 2007 and allowed the parties to submit supplemental

26 briefing addressing new arguments raised at the hearing. Based

27 upon the submissions of the parties and the arguments made by

28 counsel, and for the reasons set forth below, defendants’ motion

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 2 of 44

1 for judgment on the pleadings is GRANTED in part and DENIED in

2 part. 3

BACKGROUND1

4

Plaintiffs Arezou Mansourian (“Mansourian”), Lauren Mancuso

5 (“Mancuso”), and Christine Wing-Si Ng (“Ng”) (collectively 6 “plaintiffs”)2 are former female wrestlers at the University of

7 California, Davis (“UCD”). (Pls.’ Compl. [Docket #1]

8 (“Compl.”), filed Dec. 18, 2003, at 5-7.) Plaintiffs filed this

9 action on behalf of themselves and a putative class on December

10 18, 2003. Plaintiffs named as defendants in their individual and

11 official capacities the following parties: the Regents of the

12 University of California (“UCD”); the Chancellor of the

13 University, Larry Vanderhoef; the Athletic Director at the

14 University, Greg Warzecka; Associate Athletic Directors of the

15 University, Pam Gill-Fisher and Lawrence Swanson; and former

16 Associate Vice Chancellor, Student Affairs, Robert Franks

17 (collectively, the “individual defendants”). (Compl. at 2.)

18

In the 1990s, varsity wrestling at UCD included both women

19 and men. (Id. at ¶ 82.) Female wrestlers at UCD received high

20 quality coaching, wrestled under women’s freestyle rules rather

21 than men’s collegiate rules, and received the various benefits of

22 varsity status. (Id. at ¶¶ 82, 85.) Some of UCD’s female

23 wrestlers went on to national and international acclaim after

24 having trained at and received the benefits of wrestling at UCD.

25

1

The following facts are primarily derived from

26 plaintiffs’ complaint filed December 18, 2003.

27

2

Plaintiff Nancy Nien-Li Chiang (“Chiang”) voluntarily

dismissed all claims in this action on June 12, 2007. (Mem. & 28 Order [Docket #195], filed July 12, 2007).

2

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 3 of 44

1 (Id. at ¶¶ 85-87.)

2

Plaintiffs participated in high school wrestling and chose

3 to attend UCD because it offered them the opportunity to

4 participate in wrestling while in college. (Compl., ¶¶ 9-11, 24-

5 51.) Mansourian and Ng filled out the NCAA and UCD paperwork

6 necessary for intercollegiate athletics, completed the weight

7 certification requirements for intercollegiate wrestling, and

8 participated in UCD’s wrestling program for about 2 years. (Id.

9 at ¶¶ 27-30, 46-50, 55-59.) As varsity wrestlers, plaintiffs

10 received benefits such as medical and athletic training services,

11 laundry services, academic tutoring services, strength and

12 conditioning coaching, wrestling coaching, insurance, access to

13 the weight room, and access to varsity facilities. (Id. at ¶¶

14 33, 51, 58.) Mancuso was recruited to wrestle for UCD and

15 awarded an athletic scholarship. (Id. ¶ 39.) She enrolled,

16 filled out the necessary paperwork, and received the required

17 certifications to participate in intercollegiate wrestling. (Id.

18 at ¶¶ 40-42.) Shortly thereafter, however, defendants eliminated

19 women from UCD’s wrestling program, and Mancuso was denied her

20 scholarship. (Id. at ¶¶ 59-60.)

21

During the 2000-2001 academic year, defendants eliminated

22 wrestling athletic participation opportunities for female, but

23 not male, students (the “No Females Directive”). (Id. at ¶¶ 60-

24 62.) Plaintiffs and then-wrestling coach Michael Burch protested

25 this decision. Plaintiffs met with and/or complained to

26 defendants, asserting that the No Females Directive constituted

27 illegal sex discrimination. Defendants ignored the complaints.

28 (Id. at ¶¶ 63-69.) Plaintiffs filed a complaint with the Office

3

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1 for Civil Rights of the United States Department of Education

2 (“OCR”) in the Spring of 2001. (Id. at ¶ 67.) Defendants later

3 agreed to rescind the No Females Directive and to allow women to

4 participate in wrestling. (Id. at ¶ 70-74.)

5

Plaintiffs, including newcomer Mancuso, enrolled at UCD for

6 the 2001-2002 academic year in reliance upon defendants’ promised

7 reinstatement of female wrestling participation opportunities.

8 They filled out their NCAA and UCD eligibility paperwork,

9 completed the weight certification requirements for varsity

10 wrestling, and were deemed eligible. (Id. at ¶ 75.)

11 Unfortunately, plaintiffs returned to a wrestling team with a new

12 coach who did not support women wrestlers and failed to coach

13 them or treat them like the male wrestlers. (Id. at ¶¶ 75-76.)

14 Defendants informed plaintiffs that to participate in wrestling

15 they would have to be part of a mixed gender team and would have

16 to beat the men at their weight class under men’s collegiate-

17 style rules, even though the women had previously only

18 participated as part of a women’s wrestling program (not a mixed

19 gender team) using international freestyle wrestling rules. (Id.

20 at ¶ 77.) Plaintiffs again complained, but defendants refused

21 and continue to refuse to remedy the situation and to provide

22 women’s wrestling opportunities. (Id. at ¶¶ 75-79.) As a

23 result, to date, no women are allowed to participate in UCD

24 wrestling. (Id.)

25

As a result of defendants’ actions, plaintiffs could not

26 attend wrestling practice, could not use the wrestling facilities

27 or weight room, lost their laundry benefits, lost their insurance

28 they received as wrestling athletes, were banned from receiving

4

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 5 of 44

1 instruction from the UCD coaching staff, and were denied athletic

2 training and other medical benefits they received as UCD

3 wrestlers. (Id. at ¶ 61.) Plaintiffs also lost the academic

4 credit associated with UCD wrestling athletes, and were denied

5 early class registration. (Id. at ¶ 62.)

6

Subsequently, plaintiffs brought this action and alleged six

7 claims for relief: (1) violation of Title IX for failure to

8 provide equal athletic opportunities for women; (2) violation of

9 Title IX for failure to provide equal athletic financial

10 assistance to women; (3) retaliation in violation of Title IX;

11 (4) violation of 42 U.S.C. § 1983 based on the Equal Protection

12 clause of the U.S. Constitution; (5) violation of the California

13 Unruh Civil Rights Act; (6) violation of public policy based upon

14 violations of the California Constitution and the California

15 Education Code. (Id. at 35-53). Defendants filed a motion to

16 dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on

17 March 5, 2004. (Defs.’ Mot. to Dismiss [Docket #13-15], filed

18 March 5, 2004.) The court denied the motion on May 6, 2004.

19 (Mem. & Order [Docket #25], filed May 6, 2007.)

20

Unfortunately, throughout the course of this litigation,

21 both defendants’ and plaintiffs’ counsel have suffered illnesses.

22 In October 2005, both parties stipulated to an extension of

23 deadlines due to defendants’ lead counsel’s illness, which made

24 her unavailable to travel to depositions over the following two

25 months. (Stipulation [Docket #57], filed Oct. 28, 2005.) On

26 April 14, 2006, one week before plaintiffs’ motion for class

27 certification was to be heard by the court, plaintiffs’ counsel

28 filed an ex parte motion to stay and extend scheduling based upon

5

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 6 of 44

1 plaintiffs’ counsel’s serious health issues. (Ex Parte Mot. to

2 Stay [Docket #117], filed Apr. 14, 2006.) The court granted

3 plaintiffs’ motion, and thereafter, on June 6, 2006, the parties

4 stipulated to extend the stay and related scheduling matters.

5 (Order [Docket #125], filed Apr. 18, 2006; Stipulation to Extend

6 Stay and Related Scheduling Matters [Docket #130], filed June 6,

7 2006.) On July 21, 2006, plaintiffs moved to extend the stay in

8 order to find new counsel because of plaintiffs’ counsel’s

9 serious medical condition, which the court granted. (Motion to

10 Extend [Docket #134], filed July 21, 2006; Order [Docket #137],

11 filed July 24, 2006.) On August 18, 2006, Monique Oliver filed a

12 notice of appearance on behalf of plaintiffs. (Docket #140,

13 filed Aug. 18, 2006.) On August 23, 2006, and October 19, 2006,

14 the parties stipulated to extend the stay based upon the

15 appearance of new counsel in this matter. (Docket #141, 147.)

16

On February 2, 2007, plaintiffs filed a motion to amend the

17 complaint to add new plaintiffs, who would also be class

18 representatives, and related allegations. (Pls.’ Mot. to Amend

19 [Docket #158], filed Feb. 2, 2007.) The court denied plaintiffs’

20 motion. (Mem. & Order [Docket #175], filed Mar. 20, 2007.)

21 Subsequently, by stipulation of both parties, the class claims in

22 this action were dismissed on June 12, 2007. (Mem. & Order

23 [Docket #195], filed June 12, 2007.) Defendants filed the

24 instant motion on June 5, 2007. (Docket #188.) At oral

25 argument, plaintiffs’ counsel conceded that plaintiffs no longer

26 seek injunctive relief. However, plaintiffs do claim that they

27 are entitled to monetary and punitive damages for defendants’

28 denial of educational benefits, lost scholarship money, and the

6

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 7 of 44

1 humiliation, emotional distress, and related harm caused by

2 defendants’ sex discrimination. (Id. at 55-56.)

3

STANDARD

4

Rule 12(c) of the Federal Rules of Civil Procedure provides,

5 in relevant part, that “[a]fter the pleadings are closed but

6 within such time as not to delay the trial, any party may move

7 for judgment on the pleadings.” Fed. R. Civ. Proc. 12(c).

8 Moreover, Rule 12(h)(2) of the Federal Rules of Civil Procedure

9 provides in relevant part that a defense of failure to state a

10 claim upon which relief can be granted, may be made by motion for

11 judgment on the pleadings. Fed. R. Civ. Proc. 12(h).

12

When considering a motion for judgment on the pleadings

13 presenting a defense of failure to state a claim upon which

14 relief can be granted, a court should employ those standards

15 normally applicable to a motion to dismiss for failure to state a

16 claim upon which relief can be granted pursuant to Rule 12(b)(6)

17 of the Federal Rules of Civil Procedure. See Enron Oil Trading &

18 Transp. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 528-29 (9th

19 Cir. 1997); 5B Wright & Miller, Federal Practice and Procedure,

20 Civil § 1368 at 515-16 (3d ed. 2007). On a motion to dismiss,

21 the allegations of the complaint must be accepted as true. Cruz

22 v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give

23 plaintiff the benefit of every reasonable inference to be drawn

24 from the “well-pleaded” allegations of the complaint. Retail

25 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963).

26 Thus, the plaintiff need not necessarily plead a particular fact

27 if that fact is a reasonable inference from facts properly

28 alleged. See id.

7

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 8 of 44

1

Nevertheless, it is inappropriate to assume that the

2 plaintiff “can prove facts which it has not alleged or that the

3 defendants have violated the . . . laws in ways that have not

4 been alleged.” Associated Gen. Contractors of Calif., Inc. v.

5 Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983).

6 Moreover, the court “need not assume the truth of legal

7 conclusions cast in the form of factual allegations.” United

8 States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th

9 Cir. 1986).

10

Ultimately, the court may not dismiss a complaint in which

11 the plaintiff has alleged “enough facts to state a claim to

12 relief that is plausible on its face.” Bell Atlantic Corp. v.

13 Twombly, 127 S.Ct. 1955, 1974 (2007). Only where a plaintiff has

14 not “nudged [his or her] claims across the line from conceivable

15 to plausible,” is the complaint properly dismissed. Id. “[A]

16 court may dismiss a complaint only if it is clear that no relief

17 could be granted under any set of facts that could be proved

18 consistent with the allegations.” Swierkiewicz v. Sorema N.A.,

19 534 U.S. 506, 514 (2002) (quoting Hudson v. King & Spalding, 467

20 U.S. 69, 73 (1984)).

21

In ruling upon a motion to dismiss, the court may consider

22 only the complaint, any exhibits thereto, and matters which may

23 be judicially noticed pursuant to Federal Rule of Evidence 201.

24 See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th

25 Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United

26 States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).

27 /////

28 /////

8

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 9 of 44

1

ANALYSIS

2 I. Title IX

3

Alleged violations of Title IX in the area of athletics are

4 typically divided into claims of either equal treatment or

5 effective accommodation. Pederson v. Louisiana State Univ., 213

6 F.3d 858, 865 n.4 (5th Cir. 2000). This division arises from

7 regulations promulgated by Title IX. Id. Claims under an equal

8 treatment theory “derive from the Title IX regulations found at

9 34 C.F.R. §§ 106.37(c) 106.41(c)(2)-(10), which call for equal

10 provision of [] athletic benefits and opportunities among the

11 sexes.” Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.2 (2d

12 Cir. 1999). Claims brought under an effective accommodation

13 theory stem from the implementing regulations that provide:

14

in determining whether equal athletic opportunities for

members of both sexes are available, the Office of

15

Civil Rights of the Department of Education (the office

charged with enforcement of Title IX) will consider,

16

among other factors, “[w]hether the selection of sports

and levels of competition effectively accommodate the

17

interests and abilities of members of both sexes.”

18 Pederson, 213 F.3d at 865 n.4 (citing Boucher, 164 F.3d at 115

19 n.1; 34 C.F.R. § 106.41(c)(1)).

20

As clarified by both arguments made at hearing and the

21 supplemental submissions of the parties, plaintiffs are asserting

22 claims against defendant UCD under both an unequal treatment

23 theory and an ineffective accommodation theory. Defendant UCD

24 moves for judgment on the pleadings as to both theories.

25

A. Unequal Treatment Claims

26

Pursuant to an “unequal treatment” theory, plaintiffs seek

27 damages arising out of the No Females Directive issued in the

28 fall of 2000; an alleged broken promise in June 2001 to reinstate

9

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 10 of 44

1 the female wrestling program at UCD; the failure to renew the

2 contract of their wrestling coach; and requiring females to

3 compete for membership on the UCD wrestling team under the same

4 terms and conditions as male athletes in the fall of 2001.

5 Plaintiffs contend that these were discriminatory acts made by

6 defendant pursuant to a “policy and practice” of discrimination,

7 and as such, these allegations establish a “continuing violation”

8 of federal law. (Pl.’s Opp’n, filed July 13, 2007, at 5.)

9 Conversely, defendant asserts that plaintiffs merely allege a

10 series of discrete acts. (Def.’s Reply to Pl.’s Opp’n (“Reply”),

11 filed July 20, 2007, at 4-6.) According to defendant UCD, the

12 last discrete act occurred on October 16, 2001 with the

13 resolution of plaintiffs’ OCR complaint, and thus, plaintiffs’

14 claims tolled in October 2002. Id. at 5.

15

1. Discrete Acts

16

“A discrete retaliatory or discriminatory act ‘occurred’ on

17 the day that it happened.” National R.R. Passenger Corp. v.

18 Morgan, 536 U.S. 101, 110 (2002). Where a discrete act is the

19 basis for a discrimination claim, the timely filing period begins

20 to run from that date. Id. Such acts “are not actionable if

21 time barred, even when they are related to acts alleged in timely

22 filed charges.” Id. at 113.

23

In Morgan, the Supreme Court found that, with regard to the

24 applicability of the continuing violation doctrine, the term

25 “practice” does not convert related discrete acts into a single

26 unlawful practice for the purposes of timely filing. 536 U.S.

27 101, 111 (2002). The Court defined a “discrete act” of

28 discrimination as one that constitutes a separate, actionable

10

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 11 of 44

1 unlawful employment practice that is temporally distinct. Id. at

2 114. In the employment context, the Court pointed to

3 “termination, failure to promote, denial of transfer, [and]

4 refusal to hire” as examples of such discrete acts. Id. The

5 Court held that the cause of action accrued when the discrete,

6 unlawful action occurred, and that “a new violation does not

7 occur, and a new charging period does not commence, upon the

8 occurrence of subsequent nondiscriminatory acts that entail

9 adverse effects resulting from the past discrimination.” See

10 Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162,

11 2169 (2007) (discussing the Court’s holding in Morgan and other

12 related cases).

13

Subsequently, the Supreme Court has reiterated that the

14 current effects of discriminatory conduct “cannot breathe life

15 into [that] prior, uncharged conduct.” Id. In Ledbetter, a

16 female retiree sued her former employer under Title VII and the

17 Equal Pay Act for alleged sex discrimination reflected in

18 negative evaluations, which resulted in her receiving lower

19 paychecks than her male counterparts. Id. at 2163-64. The

20 plaintiff argued that each of the paychecks she received

21 constituted a new, actionable discriminatory act. Id. at 2169.

22 The Court rejected this argument, holding that the actionable

23 discrete conduct occurred when the pay decision was made, not

24 when a paycheck was issued pursuant to that allegedly

25 discriminatory decision. Id. at 2175-76.

26

In this case, the heart of plaintiffs’ Title IX claims based

27 upon an unequal treatment theory stems from discrete acts taken

28 against three women wrestlers over roughly a year’s time.

11

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 12 of 44

1 Plaintiffs claim that defendant UCD first blatantly excluded them

2 from the wrestling program and then failed to give them a fair

3 opportunity to obtain a position on the team by requiring them to

4 compete against men, using men’s rules. These claims are akin to

5 a claim of termination and failure to hire or promote in the

6 employment context. As such, they are appropriately

7 characterized as discrete acts. Plaintiffs further claim that

8 the discriminatory acts continued because they were unable to

9 wrestle each and every day that they were students at UCD.

10 However, this inability was merely the effect of defendant’s

11 prior, allegedly discriminatory conduct. As set forth in

12 Ledbetter, the current effects of discriminatory conduct “cannot

13 breathe life into [that] prior, uncharged conduct.” 127 S. Ct.

14 at 2169.

15

The rationale applied by the Ninth Circuit in Cherosky v.

16 Henderson is similarly applicable to this case. 330 F.3d 1243

17 (9th Cir. 2003). In Cherosky, current and former employees

18 brought suit against the United States Postal Service under the

19 Americans with Disabilities Act, challenging the denial of their

20 requests to wear respirators while on duty. Id. at 1244-45. The

21 Ninth Circuit found that the heart of the plaintiffs’ complaint

22 stemmed from the individualized decisions to deny the plaintiffs’

23 requests and, as such, were discrete acts. Id. at 1247.

24 Similarly, in this case, the gravamen of plaintiffs’ complaint

25 stems from individualized decisions by defendant regarding the

26 UCD wrestling program, which affected each individual plaintiff.

27 As such, these decisions are discrete acts.

28 /////

12

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 13 of 44

1

Plaintiffs contend that the reasoning of Morgan, Ledbetter,

2 and Cherosky does not apply in this case because each of those

3 cases arose out of an employment relationship between the

4 plaintiffs and the defendants. (Pls.’ Supp. Mem., filed Aug. 10,

5 2007, at 7-9.) The crux of plaintiffs’ argument is that because

6 Title VII claims arise in the employment context, the Supreme

7 Court’s holdings in Morgan and Ledbetter should not control the 8 analysis of plaintiffs’ Title IX unequal treatment claims.3

9

Plaintiffs’ argument is unpersuasive. Title VII and Title

10 IX are sufficiently analogous that the “discrete discriminatory

11 acts” analysis prescribed in Morgan applies to the unequal

12 treatment claims brought by plaintiffs in this case. Both Title

13 VII and Title IX address sex discrimination, and the legislature

14 has emphasized the close relationship between the two.

15 Specifically, the House Report on Title IX explicitly referenced

16 the relationship between Title VII and Title IX:

17

Title VII . . . specifically excludes educational

institutions from its terms. [Title IX] would remove

18

that exemption and bring those in education under the

equal employment provision.

19

20 Education Amendments Act of 1972, Pub. L. No. 92-318, 1972

21 /////

22 /////

23

3

Plaintiffs, citing Gebser v. Lago Vista Indep. School

24 Dist., assert that under Title IX, courts “have a measure of

latitude to shape a sensible remedial scheme that best comports 25 with the statute.” 524 U.S. 274, 284 (1998). This motion does

not raise issues regarding remedies, and thus, plaintiffs’ 26 reliance on Gebser in this context is misplaced. While Gebser

demonstrates the “manifest” difference between Title VII and 27 Title IX in terms of available remedies, the Court’s analysis in

Gebser did not address the analytical framework for assessing a 28 Title IX claim on the merits. Id.

13

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 14 of 44

1 U.S.C.C.A.N. (86 Stat. 253) 2462, 2512.4 The purposes that

2 Titles VII and Title IX are both intended to serve, eliminating

3 discrimination and providing protection against it, suggest that

4 Title VII’s analytical framework with respect to discrete acts

5 should be applied to a Title IX claim for sex discrimination.

6 See Mabry v. State Bd. of Community Colleges & Occupational

7 Educ., 813 F.2d 311, 316 n. 6 (10th Cir. 1987) (“Because Title

8 VII prohibits the identical conduct prohibited by Title IX, i.e.,

9 sex discrimination, we regard it as the most appropriate analogue

10 when defining Title IX’s substantive standards . . . .”), cert.

11 denied, 484 U.S. 849 (1987); see also Patricia H. v. Berkeley

12 Unified School Dist., 830 F. Supp. 1288, 1293 (N.D. Cal. 1993)

13 (“As the Supreme Court acknowledged in [Franklin], a student

14 should have the same protection in school that an employee has in

15 the workplace.”).

16

Further, the Ninth Circuit’s decision in Cherosky reinforces

17 the conclusion that the Morgan Court’s significant restriction of

18 the continuing violations doctrine applies outside the Title VII 19 context.5 330 F.3d at 1246. “Although Morgan involved Title VII

20 of the Civil Rights Act of 1964, the Supreme Court’s analysis of

21 the continuing violations doctrine is not limited to Title VII

22 actions. It applies with equal force to the Rehabilitation Act

23 and to actions arising under other civil rights laws.” Id.

24

4

On the day Title IX was enacted, Senator Bayh stated,

25 “this amendment [applies] Title VII’s widely recognized standards

of equality of employment opportunity to educational 26 institutions.” 118 Cong. Rec. 5807 (1972).

27

5

In restricting the continuing violations doctrine, the

Court applied the “discrete discriminatory acts” analysis. 28 Morgan, 536 U.S. at 122.

14

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 15 of 44

1 (emphasis added); see e.g., RK Ventures, Inc. v. City of Seattle,

2 307 F.3d 1045 (9th Cir. 2002) (applying Morgan’s rationale in an

3 action brought pursuant to 42 U.S.C. § 1983); Kaster v. Safeco

4 Ins. Co. of Am., 212 F. Supp. 1264 (D. Kan. 2002) (applying

5 Morgan’s rationale to the Age Discrimination in Employment Act).

6

Therefore, plaintiffs’ claims under the unequal treatment

7 theory arise out of a series of discrete acts and do not arise

8 out of a continuing violation of federal law.

9

2. Pattern and Practice

10

Alternatively, plaintiffs argue that the Court’s holding in

11 Morgan does not apply to their case because they are alleging a

12 pattern or practice theory of the type explicitly excluded from

13 the Court’s analysis and opinion in Morgan. 536 U.S. at 115 n.9.

14 Defendant contends that, while evidence of such a claim can

15 support an individual’s claim of discrimination, the pattern or

16 practice method of proof cannot apply to a private, non-class

17 cause of action. Whether individual plaintiffs can rely on a

18 pattern or practice method of proof is an issue that has not been

19 addressed by the Ninth Circuit.

20

“A pattern or practice case is not a separate and free-

21 standing cause of action, . . . but is really ‘merely another

22 method by which disparate treatment can be shown.” Celestine v.

23 Petroleos de Venezuela SA, 266 F.3d 343, 355 (5th Cir. 2001)

24 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir.

25 1995). Specifically, a pattern or practice theory of

26 discrimination carries with it a different method of proof than

27 an individual claim of discrimination. See Int’l Brotherhood of

28 Teamsters v. United States, 431 U.S. 324, 334-40; Lowery v.

15

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 16 of 44

1 Circuit City Stores, Inc., 158 F.3d 742, 759 (1998) (overruled on

2 other grounds). In these cases, typically, the government

3 (either through the EEOC or the Attorney General) or a plaintiff

4 class charges systematic discrimination against a protected

5 group. Lowery, 158 F.3d at 759; see Bacon v. Honda of Am. Mfg.,

6 Inc., 370 F.3d 565, 575 (6th Cir. 2004); Celestine, 266 F.3d at

7 355 (5th Cir. 2001). The plaintiff bears the initial burden of

8 demonstrating a prima facie case by a preponderance of the

9 evidence that the defendant’s standard operating procedure

10 included discriminatory practices. Teamsters, 431 U.S. at 336.

11 “At this initial ‘liability’ stage, the [plaintiff] is not

12 required to prove that any particular employee was a victim of

13 the pattern or practice; it need only establish a prima facie

14 case that such a policy existed.” Lowery, 158 F.3d at 760

15 (citing Teamsters, 431 U.S. at 360). Once such a prima facie

16 case is established, the burden shifts to the defendant to

17 demonstrate that the plaintiff’s showing is either inaccurate or

18 insignificant. Id. If the defendant fails to rebut the

19 plaintiff’s case “the resulting finding of a discriminatory

20 pattern or practice gives rise to an inference that all employees

21 subject to the policy were its victims and are entitled to

22 appropriate remedies.” Id. at 759 (citing Teamsters, 431 U.S. at

23 362). Such a finding justifies an award of prospective relief,

24 but if individual relief is sought, the plaintiff must

25 demonstrate that the individual employees were actual victims of

26 the policy. Id.

27

Although plaintiffs no longer assert class claims or seek

28 prospective injunctive relief, they assert that they may still

16

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 17 of 44

1 press a pattern or practice theory of relief. “The Supreme Court

2 has never applied the Teamsters method of proof in a private,

3 non-class suit.” Id. at 761. “Rather, the Court has noted that

4 there is a ‘manifest’ and ‘crucial’ difference between an

5 individual’s claim of discrimination and a class action alleging

6 a general pattern or practice of discrimination.” Id. (quoting

7 Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876

8 (1984). Where the government or plaintiff class must first

9 litigate the common question of whether there was a

10 discriminatory policy, individual plaintiffs must litigate “the

11 discrete question of whether the employer discriminated against

12 that plaintiff in a specific instance.” Id. (citing McDonnell

13 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

14

Pattern or practice class-action suits also differ from

15 individual, private discrimination suits because of the “nature

16 of remedies.” Id. Pattern or practice class-action suits

17 typically seek to cure systemic discrimination and the harm

18 suffered by the group subjected to that discrimination. Id.

19 Therefore, plaintiffs typically seek injunctions for broad

20 relief, and the “need for such remedies can be determined without

21 referring to matters such as the qualifications of a particular

22 employee.” Id. Conversely, in an individual discrimination

23 case, the plaintiff generally seeks damages specific to the

24 individualized harm inflicted upon him, such as reinstatement,

25 hiring, back-pay, or damages. Id. “Such remedies typically

26 require the examination of the circumstances surrounding a single

27 employment action involving the plaintiff.” Id.

28 /////

17

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 18 of 44

1

Because a pattern or practice theory of recovery is focused

2 on establishing a policy of discrimination and not on individual

3 decisions affecting specific plaintiffs, “it is inappropriate as

4 a vehicle for proving discrimination in an individual case.”

5 Bacon, 370 F.3d at 575; see Celestine, 266 F.3d at 356 (holding

6 that the pattern and practice method of proof was inapplicable to

7 an individual claim of discrimination “given the nature and

8 purpose of the pattern and practice method of proof”).

9 Therefore, the court holds that the pattern or practice method of

10 proof set forth in Teamsters and excluded from the Court’s

11 analysis in Morgan is not available to individual plaintiffs. As

12 such, plaintiffs’ claims based upon unequal treatment that stem

13 from discrete acts by defendant UCD are not exempt from the

14 timely filing analysis set forth in Morgan and Ledbetter.

15

3. Applicable Statute of Limitations

16

Defendant UCD moves for judgement on the pleadings as to

17 plaintiffs’ Title IX unequal treatment claims on the basis that

18 they are barred by the statute of limitations. Title IX, 20

19 U.S.C. § 1681 et seq., does not specify a limitations period.

20 When Congress fails to specify a statute of limitations for a

21 federal claim for relief, courts must apply the most closely

22 analogous statute of limitations under state law. Reed v. United

23 Transp. Union, 488 U.S. 319, 323 (1989). The Ninth Circuit has

24 not considered the issue under Title IX; however, the other

25 federal appellate courts that have considered the issue are in

26 accord that a Title IX claim is most closely analogous to a

27 common law action for personal injury. Doe v. Howe Military

28 School, 227 F.3d 981, 987 (7th Cir. 2000); M.H.D. v. Westminster

18

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 19 of 44

1 Schools, 172 F.3d 797, 803 (11th Cir. 1999); Lillard v. Shelby

2 County Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996); Egerdahl

3 v. Hibbing Community College, 72 F.3d 615, 618 (8th Cir. 1995);

4 Bougher v. University of Pittsburgh, 882 F.2d 74, 77-78 (3d Cir.

5 1989). Moreover, in Taylor v. Regents of the University of

6 California, 993 F.2d 710, 712 (9th Cir. 1993), the Ninth Circuit

7 came to the same conclusion with respect to a Title VI claim. In

8 light of this authority, and the fact that Title IX is to be 9 construed consistently with Title VI,6 the court applies

10 California’s statute of limitations for personal injury actions 11 to plaintiffs’ Title IX claims.7

12

In California, an aggrieved party must commence an action

13 for personal injury caused by an alleged wrongful act or neglect

14 within two years of the act. Cal. Code Civ. Proc. § 335.1. The

15 two-year limitations period is a fairly recent development.

16 Before 2003, the limitations period for personal injury claims

17 was one year. Cal. Code Civ. Proc. § 340(3), repealed. Section

18 335.1 became effective January 1, 2003. This amendment impacts

19 this case, which was filed December 18, 2003.

20

21

6

Since Title IX has identical statutory language to

Title VI, except for the substitution of the word “sex” in Title 22 IX to replace the words “race, color, or national origin” in

Title VI, the Supreme Court has interpreted both statutes 23 interchangeably. Cannon v. University of Chicago, 441 U.S. 677,

694-99 (1979). 24

7

Plaintiffs’ argument to the contrary, based on one

25 Northern District of California decision, is unavailing. Kramer

v. Regents of the University of California, 81 F. Supp. 2d 972 26 (N.D. Cal. 1999) (applying California’s three-year statute of

limitations for actions “upon a liability created by statute” to 27 ADA and Rehabilitation Act claims). In the Title IX context, it

is contrary to the weight of the authority described above, most 28 particularly Taylor.

19

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 20 of 44

1

A legislative extension of the statute of limitations period

2 will extend the limitations period of an actionable claim if the

3 extension occurs before the claim for relief becomes time barred

4 under the old limitations period. Douglas Aircraft Co. v.

5 Cranston, 58 Cal. 2d 462, 465 (1962). On the other hand, once a

6 claim is time barred it will not be revived by the extension to

7 the applicable limitations period unless the legislature

8 expressly declared that the amendment of the limitations period

9 applied retroactively. Bartman v. Estate of Bartman, 83 Cal.

10 App. 3d 780, 787-78 (1978). Such an expression of retroactivity

11 was made here only for victims of the terrorist attacks of

12 September 11. Cal. Code Civ. Proc. § 340.10(b).

13

Plaintiffs’ first claim for relief alleges that defendant

14 UCD violated Title IX by failing to provide equal athletic

15 opportunities. Specifically, plaintiffs allege that defendant

16 (1) chooses “to make fewer athletic participation opportunities

17 to female students than to male students;” and (2) intentionally

18 discriminates against female students by only providing male

19 students with the opportunity to wrestle and by issuing the No

20 Females Directive. (Compl. ¶¶ 129-30). Viewing the complaint in

21 the light most favorable to plaintiffs, their first claim for

22 relief alleges both (1) an ineffective accommodation theory; and

23 (2) an unequal treatment theory under Title IX. As set forth

24 above, plaintiffs’ unequal treatment claims stem from discrete

25 discriminatory acts by defendant. The last discrete

26 discriminatory act alleged by plaintiffs occurred, at the latest,

27 /////

28 /////

20

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 21 of 44

1 in October 2001, when their OCR complaint was resolved.8 The

2 statute of limitations then in effect was one year, and thus,

3 plaintiffs’ claims were required to be filed no later than the

4 Fall of 2002. Therefore, plaintiffs’ first claim for relief for

5 unequal treatment is barred by the statute of limitations, and 6 defendant UCD’s motion with respect to this claim is GRANTED.9

7

Plaintiffs’ second claim for relief alleges that defendant

8 UCD violated Title IX by failing to provide equal athletic

9 financial assistance by offering athletic scholarship funding to

10 male students and by intentionally discriminating against female

11 students by choosing to make less athletic financial assistance

12 available. In order to allege a claim under Title IX with

13 respect to scholarships, the plaintiff must be a member of a

14 varsity team. See Pederson, 213 F.3d at 872 (finding that

15 “[s]tanding to challenge effective accommodation does not

16 automatically translate into standing to challenge the treatment

17 of existing varsity athletes” with respect to claims for unequal

18 treatment in scholarship opportunities). At the latest,

19 plaintiffs were members of the varsity team in the Fall of 2001.

20 The statute of limitations then in effect was one year, and thus,

21 plaintiffs’ claims were required to be filed no later than the

22 Fall of 2002. Therefore, plaintiffs’ second claim for relief for

23

24

8

Here, the existence of plaintiffs’ OCR complaints may

be judicially noticed by this court. See e.g., Pavone v.

25

Citicorp Credit Services, 60 F. Supp. 2d 1040, 1045 (S.D. Cal. 1997). The truth of the allegations contained therein, however,

26

is not subject to judicial notice. See Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410,

27 427 (3d Cir. 1999).

28

9

The court addresses the viability of plaintiffs’

ineffective accommodation claims, infra.

21

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 22 of 44

1 unequal treatment is barred by the statute of limitations, and

2 defendant UCD’s motion with respect to this claim is GRANTED.

3

Plaintiffs’ third claim for relief alleges that defendant

4 UCD retaliated against plaintiffs. Specifically, plaintiffs

5 allege four “retaliatory” acts, the last of which occurred in the 6 Fall of 2001: (1) defendant instituted the No Females Directive

7 in the Fall of 2000; (2) defendant reneged on the promise to

8 remedy the No Females Directive in the Fall of 2001; (3) 9 defendant did not renew Michael Burch’s contract in mid-2001; and

10 (4) defendant allowed the female wrestlers a chance to wrestle

11 against the male wrestlers for a position on the men’s wrestling 12 team in the Fall of 2001.10 Again, the statute of limitations

13 then in effect was one year, and thus, plaintiffs’ claims were

14 required to be filed no later than the Fall of 2002. Therefore, 15 plaintiffs’ third claim for relief for retaliation is barred by

16 the statute of limitations, and defendant UCD’s motion with

17 respect to this claim is GRANTED.11

18

19

10 Again, plaintiffs allege that this retaliation resulted in a policy of discrimination. (Compl. ¶ 150). As set forth

20

above, however, the heart of plaintiffs’ complaint relates to these discrete acts against the individual plaintiffs. (Compl.

21

¶¶ 151-57). Plaintiffs have cited no authority for the proposition that an ineffective accommodation claim can be raised

22 through a retaliation claim.

23

11 Plaintiffs argue that this court should follow the rationale in its prior Memorandum and Order, filed May 6, 2004,

24

which found that plaintiffs’ claims, as alleged, were timely and which directed the parties to further brief the statute of

25

limitations issues on a motion for summary judgment. Since that order, there have been substantial changes in this litigation,

26

namely the dismissal of class allegations. Moreover, the parties’ arguments and submissions have further clarified the

27

legal theories advanced by plaintiffs. The court’s prior order reflected its analysis of plaintiffs’ ineffective accommodation

28 claim, as set forth infra.

The court did not specifically (continued...)

22

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 23 of 44

1

B. Ineffective Accommodation

2

In their first claim for relief, plaintiffs allege that

3 defendant UCD violated Title IX by “choosing to make fewer

4 athletic participation opportunities to female students than to

5 male students.” (Compl. ¶ 129). The court construes that by

6 this allegation, plaintiffs are alleging an ineffective

7 accommodation claim. Defendant argues that plaintiffs’

8 ineffective accommodation claim should be dismissed because

9 plaintiffs (1) alleged insufficient facts to support standing for

10 an ineffective accommodation claim; (2) failed to give s notice

11 of their claims; and (3) cannot assert a claim for damages based 12 specifically upon the lack of opportunity to wrestle.12

13

1. Standing

14

Defendant UCD contends that plaintiffs have not alleged

15 sufficient facts to set forth an ineffective accommodation claim.

16 Specifically, defendant contends that (1) plaintiffs failed to

17 allege that there was sufficient interest and ability among

18 females at UCD to field a women’s wrestling team; (2) plaintiffs

19 have failed to allege that there was a reasonable expectation of

20 intercollegiate competition in women’s wrestling; and (3)

21 plaintiffs were allowed to try out for the wrestling team on an

22 equal basis with male students.

23 /////

24

25

11(...continued) address plaintiffs’ unequal treatment claims.

However, to the

26

extent that this order is inconsistent with the court’s Memorandum and Order, filed May 6, 2004, the court reconsiders

27 that Order. Fed. R. Civ. Proc. 54(b).

28

12 Defendant does not argue that plaintiffs’ ineffective

accommodation claims are barred by the statute of limitations.

23

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 24 of 44

1

The allegations in the complaint adequately demonstrate that

2 there was sufficient interest and ability among females at UCD to

3 field a team. The complaint contains allegations that in the

4 early 1990s UCD began providing wrestling opportunities to female

5 students, including a women’s division in the university’s annual

6 “Aggie Open” wrestling tournament. Some of UCD’s female

7 wrestlers went on to national and international acclaim after

8 having trained at and received the benefits of wrestling at UCD.

9 Plaintiffs chose to attend UCD because of that history and

10 because of the promise of opportunities to participate in

11 wrestling at UCD. Mansourian, Chiang, and Ng filled out the NCAA

12 and UCD paperwork necessary for intercollegiate athletics,

13 completed the weight certification requirements for

14 intercollegiate wrestling, and participated in UCD’s wrestling

15 program for about 2 years. Mancuso similarly fulfilled the NCAA

16 and UCD requirements and attended UCD in order to wrestle.

17 Plaintiffs also allege that there are nearly 1,000 female

18 students who participate in wrestling at California high schools,

19 and there are other female students who participate in wrestling

20 at California community colleges. As such, viewing the

21 allegations in the light most favorable to plaintiffs and drawing

22 all reasonable inferences therefrom, plaintiffs allege that they

23 were able and ready to wrestle at UCD and that sufficient

24 interest existed in the female student population at UCD to field

25 a women’s wrestling team.

26

With respect to defendant’s assertion that plaintiffs have

27 failed to allege with particularity that there is a reasonable

28 expectation of intercollegiate competition, defendant asks this

24

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 25 of 44

1 court to impose too heavy a burden on plaintiffs at this stage in

2 the litigation. On a motion challenging the sufficiency of the

3 pleadings, plaintiffs are not required to plead specific facts

4 establishing a prima facie case of ineffective accommodation.

5 Swierkiewicz, 534 U.S. at 510-11. Rather, all that is required

6 is a plain statement of the facts sufficient to give the

7 defendant notice of the claims against it. Id. at 514. In

8 Swierkiewicz, the Court of Appeals had affirmed the district

9 court’s dismissal of a case brought by an employee against his

10 former employer under Title VII and the ADEA because the

11 plaintiff failed to allege the elements of a prima facie case of

12 discrimination in his complaint. Id. at 509-10. The Supreme

13 Court reversed the dismissal, holding that pursuant to Federal

14 Rule of Civil Procedure 8(a), a complaint requires only a “short

15 and plain statement of the claim showing that the pleader is

16 entitled to relief” in order to survive a motion to dismiss. Id.

17 at 510-11. The Court rejected applying a heightened pleading

18 standard to discrimination claims. Id. at 511. Even if

19 plaintiffs have not specifically alleged a reasonable expectation

20 of intercollegiate competition, plaintiffs have complied with

21 Rule 8(a) and given sufficient notice to defendant of the basis

22 for their claims. Therefore, defendant’s motion to dismiss on

23 this basis is without merit.

24

Finally, defendant contends that plaintiffs do not have

25 standing to bring an ineffective accommodation claim because they

26 allege that they were able to compete with men on an equal basis

27 for a position on the wrestling team. However, the crux of

28 plaintiffs’ claim is that this accommodation was not effective

25

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 26 of 44

1 because they were forced to compete in a contact sport against

2 men using men’s rules. At this stage in the litigation, viewing

3 the allegations in the light most favorable to the plaintiffs,

4 the court cannot find as a matter of law that defendant’s

5 proffered opportunity constituted an effective accommodation.

6

Therefore, defendant’s motion for judgment on the pleadings

7 with respect to plaintiffs’ ineffective accommodation claim on

8 the grounds that plaintiffs lack standing to sue is DENIED.

9

2. Notice

10

Defendant UCD asserts that plaintiffs’ ineffective

11 accommodation claim must fail because plaintiffs “have not

12 alleged that they gave defendant notice or opportunity to remedy

13 any purported systemic non-compliance with Title IX.” (Defs.’

14 Reply to Pls.’ Supp. Brief. at 5, filed August 17, 2007.)

15 Defendant cites Grandson v. Univ. of Minn., 272 F.3d 568 (8th

16 Cir. 2001), in support of their assertion. Id. In Grandson, the

17 Eighth Circuit affirmed dismissal of similar damage claims

18 without leave to amend because the complaint made “no allegation

19 of prior notice of their complaints to appropriate UMD officials,

20 no allegation of deliberate indifference by such officials, and

21 no allegation they had afforded UMD a reasonable opportunity to

22 rectify the alleged violations.” Grandson, 272 F.3d at 575.

23

Plaintiffs allege that they filed a complaint with the OCR

24 in the Spring of 2001. (Id. at ¶ 67.) Contrary to defendant’s

25 assertions, under the Rule 12(b)(6) standard, this allegation

26 reasonably supports the inference that plaintiffs did provide

27 notice to defendant of their ineffective accommodation claim.

28 /////

26

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 27 of 44

1

Defendant requests that the court take judicial notice of

2 letters and reports from the OCR relating to plaintiffs’

3 complaints. Rule 201 permits a court to take judicial notice of

4 an adjudicative fact “not subject to reasonable dispute,” in that

5 the fact is either “(1) generally known within the territorial

6 jurisdiction of the trial court or (2) capable of accurate and

7 ready determination by resort to sources whose accuracy cannot

8 reasonably be questioned.” Fed. R. Evid. 201(b). The court can

9 take judicial notice of matters of public record, such as

10 pleadings in another action and records and reports of

11 administrative bodies. Emrich v. Touche Ross & Co., 846 F.2d

12 1190, 1198 (9th Cir. 1988). Here, the existence of plaintiffs’

13 OCR complaints may be judicially noticed by this court. See

14 e.g., Pavone v. Citicorp Credit Services, 60 F. Supp. 2d 1040,

15 1045 (S.D. Cal. 1997). The truth of the allegations contained

16 therein, however, is not subject to judicial notice. See

17 Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping

18 Group Ltd., 181 F.3d 410, 427 (3d Cir. 1999). Because the court

19 cannot take judicial notice of the content of the OCR documents,

20 the court cannot determine whether plaintiffs provided defendant

21 with notice of their OCR complaint. Moreover, none of the

22 proffered documents includes plaintiffs’ complaint to the OCR;

23 rather, the only relevant documents contain the OCR’s

24 characterizations and descriptions of plaintiffs’ complaint. The

25 accuracy of the OCR’s conclusions is a factual dispute that must

26 be resolved on summary judgment or at trial.

27 /////

28 /////

27

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 28 of 44

1

Therefore, defendant’s motion for judgment on the pleadings

2 on the basis that plaintiffs provided insufficient notice of 3 their ineffective accommodation claim is DENIED.13

4

3. Damages

5

Finally, defendant argues that plaintiffs’ ineffective

6 accommodation claim must fail because the damages they seek are

7 too speculative. (Defs.’ Reply at 5-7, filed August 17, 2001.)

8 Specifically, defendant argues that plaintiffs cannot assume that

9 they would have been able to wrestle at UCD if it had been in

10 compliance with Title IX.

11

This case is analogous to the Fifth Circuit’s decision in

12 Pederson, 213 F.3d 858, where the court found that plaintiffs,

13 female soccer players, had standing to sue for damages under an

14 ineffective accommodation theory. In Pederson, the plaintiffs

15 alleged that Louisiana State University discriminated against

16 females by ineffectively accommodating female students in the

17 provision of teams and facilities for intercollegiate

18 competition. 213 F.3d at 863. The court held that under an

19 ineffective accommodation theory, the injuries to a plaintiff

20 “resulted from the imposed barrier – the absence of a varsity

21 team for a position on which a female student should be allowed

22 to try out.” Id. at 871. Therefore, so long as a plaintiff

23 alleged that she was willing and able to compete for a position

24 on that team, the injury and resulting damages were not unduly

25

26

13 For the purposes of this motion and because plaintiffs

27 have made sufficient allegations with respect to defendant’s argument, the court assumes, without deciding, that Title IX

28 requires that a plaintiff give a defendant notice and an opportunity to respond.

28

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 29 of 44

1 speculative such that plaintiffs’ claims should be dismissed on

2 the pleading. Moreover, the court held that to the extent “LSU

3 violated the individual rights of the plaintiffs by failing to

4 accommodate effectively the interests and abilities of female

5 students” and to the extent such violations caused actual

6 damages, the plaintiffs were entitled to be compensated for those

7 damages. Id. at 875.

8

In this case, viewing the allegations in the light most

9 favorable to plaintiffs and drawing all reasonable inferences

10 therefrom, plaintiffs allege that they suffered actual damages

11 because of the absence of a varsity team, specifically a

12 wrestling team, for a position on which a female student should

13 be allowed to compete. Therefore, based upon the rationale of

14 the Fifth Circuit in Pederson, plaintiffs’ claim for damages are

15 not unduly speculative.

16

Defendant relies primarily on National Wrestling Coaches

17 Association v. Department of Education, 366 F.3d 930 (D.C. Cir.

18 2004), in support of its assertion that plaintiffs’ claim must

19 fail because damages are too speculative. However, the facts in

20 National Wrestling Coaches are distinguishable from the facts in

21 this case. In National Wrestling Coaches, the plaintiffs

22 represented athletics organizations that supported college

23 wrestling. Id. at 933. These organizations asked the court to

24 declare Title IX’s three-part test invalid because it allegedly

25 encouraged universities to cut male wrestling programs. Id. at

26 936-37. The court reasoned that “[e]ven if the court invalidated

27 the department’s three-part test, schools might nevertheless

28 continue to eliminate or cap men’s wrestling teams in order to

29

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 30 of 44

1 comply with Title IX or the 1975 regulations or for some other

2 unrelated reason. Save for their speculation about ‘better

3 odds,’ appellants would be no better off than they are under the

4 department’s current policies.” Id. at 944. Therefore, the

5 court found that plaintiffs lacked standing because they failed

6 to show that their alleged injury could be redressed by

7 invalidating the challenged policy. Id.

8

Conversely, in this case, plaintiffs seek monetary and

9 punitive damages for injury resulting from lost opportunities

10 while they were students at UCD. Plaintiffs allege actual

11 injury, including lost educational opportunities, increased

12 education expenses, and emotional distress, all arising from

13 defendant’s alleged violations of Title IX. As such, plaintiffs

14 have sufficiently demonstrated that the monetary relief sought in

15 this case would sufficiently redress their alleged injury.

16 Therefore, defendant’s reliance on National Wrestling Coaches is

17 misplaced.

18

Thus, defendant’s motion for judgment on the pleadings

19 regarding plaintiffs’ ineffective accommodation claim based upon

20 an unduly speculative claim for damages is DENIED.

21

C. Punitive Damages

22

Defendant UCD argues that plaintiffs’ claims for punitive

23 damages under Title IX must be dismissed because they are not

24 permitted under federal law. In discussing the available

25 remedies under Title IX and by comparison, Title VI, the Supreme

26 Court has found that “[a] funding recipient is generally on

27 notice that it is subject not only to those remedies explicitly

28 provided in the relevant legislation, but also to those remedies

30

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 31 of 44

1 traditionally available in suits for breach of contract.” Barnes

2 v. Gorman, 536 U.S. 181, 187 (2002) (citing Franklin v. Gwinnett

3 County Pub. Sch., 503 U.S. 60, 76 (1992)). The Court has also

4 noted that “punitive damages, unlike compensatory damages and

5 injunction, are generally not available for breach of contract.”

6 Id. (citations omitted). Therefore, the Court has held that

7 “Title VI funding recipients have not, merely by accepting funds,

8 implicitly consented to liability for punitive damages.” Id. at

9 188. It is well established that Title IX is modeled after Title

10 VI and is interpreted and applied in the same manner. See id. at

11 185; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

12 274, 286 (1998). As such, because the Supreme Court has found

13 that punitive damages may not be awarded in private suits under

14 Title VI, it follows that they may not be awarded in private

15 suits under Title IX. See id. at 185-90; see also Mercer v. Duke

16 Univ., 401 F.3d 199, 202 (4th Cir. 2005) (stating that punitive

17 damages are not available under Title IX); Frechel-Rodriguez v.

18 Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191, 198-99 (D.P.R.

19 2007) (same); Hooper v. North Carolina, 379 F. Supp. 2d 804, 811

20 (M.D.N.C. 2005) (same); Alston v. North Carolina A & T Univ., 304

21 F. Supp. 2d 774, 784 (M.D.N.C. 2004) (same). Moreover, this

22 conclusion is supported by the Supreme Court’s “traditional

23 presumption against imposition of punitive damages on government

24 entities.” Vermont Agency of Natural Res. v. United States ex

25 rel. Stevens, 529 U.S. 765, 784-85 (2000); Newport v. Fact

26 Concerts, Inc., 453 U.S. 247, 262-63 (1981).

27

Plaintiffs contend that punitive damages are not unavailable

28 for Title IX claims as a matter of law. However, plaintiffs

31

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 32 of 44

1 wholly fail to address the Supreme Court’s analysis in Barnes.

2 The only cases cited by plaintiffs in support of their position

3 are cases that pre-date the Court’s decision in Barnes by at

4 least five years. Such sparse analysis is unpersuasive in light

5 of the Supreme Court’s ruling in Barnes and the decisions of 6 subsequent courts that have addressed this issue.14

7

Therefore, defendant’s motion for judgment on the pleadings

8 regarding plaintiffs’ claims for punitive damages under Title IX

9 is GRANTED.

10

D. Emotional Distress Damages

11

Defendant UCD also argues that plaintiffs’ claims for

12 emotional distress damages under Title IX must be dismissed

13 because they are not permitted under federal law. Specifically,

14 defendant contends that relief under Title IX is limited to the

15 forms of relief traditionally available in suits for breach of

16 contract and that, absent extreme circumstances, emotional

17 distress damages are not normally recoverable in contract claims.

18 However, defendant fails to cite any case law to support its

19 position that emotional distress damages are not recoverable in

20 an ineffective accommodation claim under Title IX. Rather,

21 defendant acknowledges that the Supreme Court has implicitly

22 approved of damages claims for emotional distress in sexual

23 harassment claims brought pursuant to Title IX. Davis v. Monroe

24

25

14 Plaintiffs also contend that it is improper for this

26 court to consider the viability of remedies on a motion for judgment on the pleadings. This contention is without merit.

27 The treatise cited by plaintiffs in support of their argument does not support their assertion. Further, partial judgment on

28 the pleadings serves to expedite the litigation and narrow the claims for discovery and trial.

32

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 33 of 44

1 County Bd. of Educ., 526 U.S. 629 (1999); Gebser, 524 U.S. 274;

2 Franklin, 503 U.S. 60. Defendant simply argues that those cases

3 are inapplicable because the alleged breach of a duty to provide

4 equal accommodation in athletic programs is not sufficiently

5 severe to justify the award of emotional damages.

6

At this stage in the litigation, in the absence of any

7 authority on point, the court cannot find as a matter of law that

8 plaintiffs are not entitled to emotional distress damages.

9 Therefore, defendant’s motion for judgment on the pleadings

10 regarding plaintiffs’ claims for emotional distress damages is

11 DENIED.

12 II. 42 U.S.C. § 1983

13

Plaintiffs bring claims under 42 U.S.C. § 1983 against the

14 individual defendants for monetary damages based upon alleged 15 violations of the Equal Protection Clause.15 Defendants argue

16 that plaintiffs’ § 1983 claim must be dismissed because it is

17 subsumed by Title IX. Alternatively, plaintiffs claim that their

18 section 1983 claim can coexist with their Title IX claims.

19

There is presently a split in circuit authority as to

20 whether Title IX subsumes a claim under § 1983. Compare Bruneau

21 v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 758 (2d Cir.

22 1998) (“[A] § 1983 claim based on the Equal Protection Clause is

23 subsumed by Title IX), and Waid v. Merrill Area Pub. Sch., 91

24 F.3d 857, 862 (7th Cir. 1996) (holding that a plaintiff may not

25

26

15 Plaintiffs brought this claim against defendant UCD for

27 injunctive relief only and against the individual defendants for all available remedies. Because plaintiffs conceded that they

28 are no longer seeking injunctive relief, plaintiffs’ § 1983 claims against defendant UCD are DISMISSED.

33

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 34 of 44

1 claim that a single set of facts leads to causes of action under

2 both Title IX and section 1983), and Pfeiffer v. Marion Ctr. Area

3 Sch. Dist., 917 F.2d 779, 789 (3d Cir. 1990) (same), and Travis

4 v. Folsom Cordova Unified Sch. Dist., 2007 U.S. Dist. LEXIS 11566

5 (E.D. Cal. 2007) (holding that “Title VI is sufficiently

6 comprehensive to evince congressional intent to foreclose a §

7 1983 remedy”), with Crawford v. Davis, 109 F.3d 1281, 1284 (8th

8 Cir. 1987) (holding that Title IX has no preemptive power over

9 section 1983 claims), and Seamons v. Snow, 84 F.3d 1226, 1233

10 (10th Cir. 1996) (holding that plaintiff has independent rights

11 under Title IX and under § 1983), and Lillard v. Shelby County

12 Bd. of Educ., 76 F.3d 716, 722-23 (6th Cir. 1996) (holding that a

13 § 1983 claim seeks to enforce distinct and independent

14 substantive due process rights).

15

Section 1983 does not create substantive rights, but

16 provides the procedural framework for a plaintiff to bring suit

17 for violations of federal rights. “Section 1983 supplies a cause

18 of action to a plaintiff when a person acting under the color of

19 state law deprives that plaintiff of any ‘rights, privileges, or

20 immunities secured by the Constitution and laws of the United

21 States.’” Bruneau, 163 F.3d at 756 (citing 42 U.S.C. § 1983).

22 However, § 1983 does not provide a remedy for violations of all

23 federal statutes. “When the remedial devices provided in a

24 particular Act are sufficiently comprehensive, they may suffice

25 to demonstrate congressional intent to preclude the remedy of

26 suits under § 1983.” Middlesex County Sewerage Auth. v. Nat’l

27 Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). While the Ninth

28 Circuit has not decided the specific issue of whether § 1983

34

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 35 of 44

1 claims are subsumed by Title IX, it has recognized that federal

2 statutes may preclude a § 1983 remedy if they are sufficiently

3 comprehensive. See, e.g., Dittman v. California, 191 F.3d 1020,

4 1028 (9th Cir. 1999); Dep’t of Educ. v. Katherine D., 727 F.2d

5 809, 820 (9th Cir. 1983). The court agrees with the reasoning

6 of the Second Circuit in Bruneau that, under the Sea Clammers

7 doctrine, Title IX’s enforcement scheme is sufficiently

8 comprehensive to subsume plaintiffs’ section 1983 claims and

9 demonstrate that Congress intended to preclude § 1983 claims when

10 it enacted this statute. See Bruneau, 163 F.3d at 756-57.

11

Title IX’s administrative enforcement scheme is complex and

12 designed to ensure compliance with its mandates. Id. at 756.

13 Under the enforcement scheme, injured persons can file a

14 complaint with the Department of Education (“DOE”), see 34 C.F.R.

15 § 100.7(b) (1997), and the DOE must then investigate the

16 allegations. Id. § 100.7(c); Bruneau, 163 F.3d at 756. The DOE

17 may also periodically conduct its own compliance reviews without

18 a complaint. Id. § 100.7(a); Bruneau, 163 F.3d at 756. If the

19 DOE concludes that a complaint has merit or discovers violations

20 stemming from its own reviews, the DOE will notify the

21 institution and attempt to reconcile the situation through

22 informal means. Id. § 100.7(d); Bruneau, 163 F.3d at 756. If

23 the DOE is unsuccessful, it may ultimately terminate federal

24 funding to the institution after an administrative hearing. Id.

25 § 100.8; Bruneau, 163 F.3d at 756. As such, Title IX provides a

26 comprehensive administrative remedial scheme.

27

Further, in addition to the robust administrative remedial

28 scheme, the Supreme Court has held that Title IX provides

35

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1 individuals with a private cause of action. See Cannon v. Univ.

2 of Chicago, 441 U.S. 677, 709 (1979). “Once in court, the Title

3 IX plaintiff has access to a full panoply of remedies including

4 equitable relief and compensatory damages.” Bruneau, 163 F.3d at

5 756 (citing Franklin, 503 U.S. 60, 73-76 (1992)). The fact that

6 Title IX provides a private remedy in the courts provides further

7 support for Congress’ intent to subsume a section 1983 remedy

8 with Title IX.

9

Therefore, given Title IX’s administrative and judicial

10 remedies, the court adopts the rationale of the Second Circuit

11 and finds that it was Congress’ intent “that a claimed violation

12 of Title IX be pursued under Title IX and not § 1983.” Bruneau,

13 163 F.3d at 757; see Pfeiffer, 917 F.2d at 789; Travis, 2007 U.S.

14 Dist. LEXIS 11566 at *15-16 (holding that Title VI precludes

15 claims brought pursuant to § 1983 arising from the same facts).

16

Plaintiffs contend that Title IX does not provide a remedy

17 for constitutional rights and thus, it cannot subsume a claim for

18 violation of their rights to equal protections. In support of

19 their assertion, plaintiffs cite the decisions from the Sixth,

20 Eighth, and Tenth Circuits, which have carved out an exception to

21 the Sea Clammers doctrine for constitutional rights. See

22 Crawford, 109 F.3d at 1284; Seamons, 84 F.3d at 1233; Lillard, 76

23 F.3d at 722-23. Generally, these Circuits reasoned that although

24 the claims may arise from the same factual basis, the Equal

25 Protection clause gives rise to distinct and independent

26 substantive due process rights separate and apart from those

27 rights protected by Title IX.

28 /////

36

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1

Plaintiffs’ argument is unpersuasive. In Sea Clammers, the

2 Supreme Court focused on the available remedies in deciding

3 whether a claim under § 1983 was precluded by a federal statutory

4 scheme. 453 U.S. at 13, 20. The constitutional right exception

5 focuses on the nature of the underlying right, an inquiry not

6 focused upon by the Court in Sea Clammers. Rather, in Smith v.

7 Robinson, the Supreme Court found that the Education of The

8 Handicapped Act (“EHA”) provided a sufficiently comprehensive

9 enforcement scheme, such that it demonstrated Congress’ intent to

10 preclude a claim under § 1983 for an alleged Equal Protection 11 Clause violation. 468 U.S. 992, 101316 (“We conclude, therefore,

12 that where the EHA is available to a handicapped child asserting

13 a right to a free appropriate public education, based either on

14 the EHA or on the Equal Protection Clause of the Fourteenth

15 Amendment, the EHA is the exclusive avenue through which the

16 child and his parents or guardian can pursue their claim.”)

17 (emphasis added). Therefore, the court finds that there is not

18 an exception to the Sea Clammers doctrine based upon plaintiffs’

19 assertion of a constitutional right.

20

Plaintiffs also argue that their § 1983 claim cannot be

21 subsumed by their Title IX claim because their § 1983 claim is

22 pressed against different defendants, the individual defendants,

23 not UCD. Plaintiffs misconstrue the doctrine of preemption. See

24 Boulahanis v. Bd. of Regents, 198 F.3d 633, 640 (7th Cir. 1999).

25

26

16 Congress subsequently amended the EHA to explicitly

provide that the EHA is not the exclusive remedy. 20 U.S.C. §

27 1415(f). However, this subsequent amendment to statute does not modify the analysis of the Supreme Court and its clear indication

28 that there is not a constitutional exception to the Sea Clammers doctrine.

37

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1 Through the enactment of Title IX and its remedial scheme,

2 Congress created a regime “for the redress of sex discrimination

3 in athletic opportunities at federally-funded institutions.” Id.

4 That regime need not include the ability to press claims against

5 both the institution and the individuals involved. Id. Rather,

6 “[t]he fact that individual claims are not available under Title

7 IX means that Congress has chosen suits against institutions as

8 the means of redressing such wrongs.” Id. (citing Sea Clammers,

9 435 U.S. at 20); see also Waid v. Merrill Area Pub. Sch., 91 F.3d

10 857, 862 (7th Cir. 1996) (“Congress intended to place the burden

11 of compliance with civil rights law on educational institutions

12 themselves, not on the individual officials associated with those

13 institutions.”); Travis, 2007 U.S. Dist. LEXIS 11566 at *16

14 (“Allowing Plaintiffs to plead around the detailed statutory

15 scheme created by Title VI by pleading a § 1983 claim against

16 [the defendant] in his individual capacity would be inconsistent

17 with Congress’ creation of restrictions on Title VI claims.”).

18 As such, plaintiffs’ argument that their § 1983 claim is not

19 subsumed by Title IX because it is asserted against the

20 individual defendants, not UCD, is without merit.

21

Therefore, because plaintiffs’ § 1983 claim is subsumed by

22 Title IX, defendant’s motion for judgment on the pleadings

23 regarding plaintiffs § 1983 claim is GRANTED.

24 III. State Law Claims

25

Finally, defendants argue that plaintiffs’ state law claims

26 against them should be dismissed because they are immune from

27 suit. Plaintiffs conceded at oral argument that Eleventh

28 Amendment immunity applies to bar their state law claims against

38

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 39 of 44

1 UCD. The individual defendants contend that they are immune from

2 suit based upon the discretionary immunity accorded public 3 employees pursuant to California Government Code § 820.2.17

4

Section 820.2 provides immunity to a public employee for

5 injuries resulting from “his act or omission where the act or

6 omission was the result of the exercise of the discretion vested

7 in him, whether or not such discretion be abused.” Cal. Gov’t

8 Code § 820.2 (West 2007). Generally, “a discretionary act is one

9 which requires the exercise of judgment or choice.” Kemmerer v.

10 County of Fresno, 200 Cal. App. 3d 1426, 1437 (1988). However,

11 California courts have not set forth a definitive rule which

12 resolves every case. Id. Rather, the California Supreme Court

13 has adopted an analysis that relies on the “policy considerations

14 relevant to the purpose of granting immunity to the governmental

15 agency whose employees act in discretionary capacities.” Id.

16 (internal citations omitted).

17

Immunity is reserved for those basic policy decisions

which have been expressly committed to coordinate

18

branches of government, and as to which judicial

interference would thus be “unseemly.” Such areas of

19

quasi-legislative policy-making are sufficiently

sensitive to call for judicial abstention from

20

interference that might even in the first instance

affect the coordinate body’s decision-making process.

21

22 Barner v. Leeds, 24 Cal. 4th 676, 685 (2000) (emphasis added).

23 “Immunity applies only to deliberate and considered policy

24 decisions in which a conscious balancing of risks and advantages

25

26

17 Defendants assert numerous arguments in support of

their assertion that plaintiffs’ state law claims against them

27 should be dismissed. However, as set forth infra, because the court finds that discretionary immunity applies to defendants’

28 alleged conduct, the court does not address the merits of those arguments.

39

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 40 of 44

1 took place.” Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995)

2 (internal quotation omitted). As such, the California Supreme

3 Court has drawn a distinction “between the ‘planning’ and

4 ‘operational’ levels of decision-making.” Johnson v. State, 69

5 Cal. 2d 782, 795 (1968).

6

The California Supreme Court has also noted that in order

7 for § 820.2 immunity to apply, a decision by the public employee

8 need not be “a strictly careful, thorough, formal, or correct

9 evaluation.” Caldwell, 10 Cal. 4th at 983 (“[C]laims of improper

10 evaluation cannot divest a discretionary policy decision of its

11 immunity.”). The Caldwell court reasoned that “[s]uch a standard

12 would swallow an immunity designed to protect against claims of

13 carelessness, malice, bad judgment, or abuse of discretion in the

14 formulation of policy.” Id. at 983-84.

15

A fair reading of the complaint reveals allegations that the

16 individual defendants made actual, conscious, and considered

17 collective policy decision. See id. at 984. Plaintiffs allege

18 that “each of the individual defendants has authority over the

19 athletic programs at UC Davis and has participated in the

20 discriminatory actions and decisions” set forth in the complaint.

21 (Compl. ¶ 21). As such, plaintiffs have alleged that the conduct

22 was within the scope of the individual defendants’ duties.

23 Plaintiffs also allege that they spoke or tried to speak to

24 various individual defendants regarding reinstatement of women’s

25 wrestling, but defendants either refused to change their policies

26 or refused to meet with them. (Compl. ¶¶ 63-64). This

27 allegation reveals that the individual defendants were at least

28 aware and informed of plaintiffs’ opposition to their decisions.

40

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 41 of 44

1 Further, plaintiffs allege that each of the individual defendants

2 was “instrumental in the decision to eliminate wrestling

3 participation and scholarship opportunities for female students.”

4 (Compl. ¶ 22). As such, plaintiffs have alleged that defendants

5 made actual, conscious decisions relating to the alleged

6 discriminatory conduct.

7

Moreover, plaintiffs’ allegations demonstrate that the

8 alleged discriminatory decisions made by the individual

9 defendants were policy decisions. Plaintiffs allege that the No

10 Females Directive issued by the individual defendants denied “the

11 then-current female wrestlers and all future female wrestlers the

12 many benefits obtained by these female alumni from participating

13 in wrestling at UC Davis.” (Compl. ¶ 88). As such, the

14 allegations in the complaint allege that defendants’ conduct

15 resulted in a wide-spread effect, not only to the plaintiffs, but

16 also to all future female wrestlers. Plaintiffs’ allegations

17 also describe the public response to the individual defendants’

18 decisions. The media supported plaintiffs, writing articles in

19 newspapers and attending the 2001 Student Senate meeting.

20 (Compl. ¶ 70). A member of the California state assembly

21 expressed her concerns about the individual defendants’ decision

22 to eliminate women’s athletic participation opportunities and

23 threatened to withhold state funding if the decision was not

24 reversed. (Compl. ¶ 71). Thus, it is clear from the face of the

25 complaint that the elimination of a female wrestling program is a

26 “sensitive” issue with “fundamental policy implications.”

27 Caldwell, 10 Cal. 4th at 983.

28 /////

41

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 42 of 44

1

Plaintiffs contend that the court cannot find that § 820.2

2 immunity applies to the individual defendants at the pleading

3 stage because the allegations in the complaint do not reveal the

4 process by which defendants made their decision and thus, do not

5 establish a considered decision. However, the Supreme Court of

6 California rejected this argument in Caldwell. 10 Cal. 4th at

7 983. In Caldwell, the court upheld defendants’ demurrer based

8 upon § 820.2 immunity where board members allegedly voted to

9 replace the superintendent based upon improper motives of race

10 and age. Id. at 976. The court held that the complaint need not

11 disclose a “strictly careful, thorough, formal, or correct

12 evaluation.” Id. at 983. Rather, the court found that the

13 application of § 820.2 immunity could be decided at the pleading

14 stage where “a fair reading of the complaint” demonstrate that

15 the defendant’s conduct “involved an actual exercise of

16 discretion.” Id. In this case, as set forth above, plaintiffs’

17 allegations demonstrate that the conduct by defendants

18 constituted “actual, conscious, and considered” collective policy

19 decisions. Id. at 984.

20

Finally, plaintiffs assert that defendants’ actions were

21 operational decisions, not policy decisions. In support of this

22 assertion, plaintiffs argue that defendants’ actions contravened

23 existing policies established under the California Education Code

24 and Title IX. However, the policies at issue in this case are

25 not those set forth by the legislature, but rather, the policies

26 of the University, as promulgated by the individual defendants.

27 Plaintiffs’ complaint alleges that defendants’ actions had a

28 wide-spread effect at UCD by eliminating athletic opportunities

42

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 43 of 44

1 for women. Such conduct is not the mere implementation of an

2 already established policy, but the creation of a new, allegedly

3 discriminatory policy. As such, plaintiffs’ assertion that

4 alleged conduct of defendants were operational decisions is

5 without merit.

6

Therefore, because a fair reading of plaintiffs’ complaint

7 reveals allegations that the individual defendants made actual,

8 conscious, and considered collective policy decisions, the

9 individual defendants are entitled to immunity pursuant to 820.2.

10 Thus, defendants’ motion for judgment on the pleadings regarding 11 plaintiffs’ state law claims18 is GRANTED.

12

CONCLUSION

13

For the foregoing reasons, defendants’ motion for judgment

14 on the pleadings is GRANTED in part and DENIED in part.

15

(1) Defendant UCD’s motion for judgment on the pleadings

16

regarding plaintiffs’ first claim for relief under

17

Title IX based upon a theory unequal treatment is

18

GRANTED.

19

(2) Defendant UCD’s motion for judgment on the pleadings

20

regarding plaintiffs’ first claim for relief under

21

Title IX based upon a theory of ineffective

22

accommodation is DENIED.

23

24

18 The Supreme Court has explicitly found that § 820.2

provides immunity against a public policy tort. Caldwell, 10

25

Cal. 4th at 984. Moreover, § 820.2 immunity will only fail to apply to basic policy decision where there is a “clear indication

26 of legislative intent that statutory immunity is withheld or withdrawn” in a particular case. The court has found nothing in

27 the Unruh Civil Rights Act which clearly evinces such an intent. See id. at 987-88 (finding that FEHA did not carve out an

28 exception to immunity through the phrase “[e]xcept as otherwise provided by statute”).

43

Case 2:03-cv-02591-FCD-EFB Document 226 Filed 10/18/07 Page 44 of 44

1

(3) Defendant UCD’s motion for judgment on the pleadings

2

regarding plaintiffs’ second claim for relief under

3

Title IX is GRANTED.

4

(4) Defendant UCD’s motion for judgment on the pleadings

5

regarding plaintiffs’ third claim for relief for

6

retaliation in violation of Title IX is GRANTED.

7

(5) Defendant UCD’s motion for judgment on the pleadings

8

regarding plaintiffs’ claims for punitive damages under

9

Title IX is GRANTED.

10

(6) Defendant UCD’s motion for judgment on the pleadings

11

regarding plaintiffs’ claims for emotional distress

12

damages under Title IX is DENIED.

13

(7) The individual defendants’ motion for judgment on the

14

pleadings regarding plaintiffs’ claims brought pursuant

15

to 42 U.S.C. § 1983 is GRANTED.

16

(8) Defendants’ motion for judgement on the pleadings

17

regarding plaintiffs’ state law claims is GRANTED.

18

IT IS SO ORDERED.

19 DATED: October 18, 2007

20

21

_______________________________________

22

FRANK C. DAMRELL, JR.

UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

44

 
 Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 1 of 46

I 1 PORTER

SCOTT

2 A PROFESSIONAL CORPORATION

Nancy J. Sheehan, SBN 109419

3 George A. Acero, SBN 226709 350 University Avenue, Suite 200

4 Sacramento, California 95825 (916) 929-1481

5 (916) 927-3706 (facsimile)

6 Attorneys for Defendants: REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARRY 7 VANDERHOEF (erroneously sued as LAWRENCE VANDERHOEF), GREG WARZECKA, PAM
GILL-FISHER, ROBERT FRANKS and LAWRENCE SWANSON 8

9

IN THE UNITED STATES DISTRICT COURT

10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11

12 AREZOU MANSOURIAN, LAUREN 13 MANCUSO,NANCYNIEN-LICHIANG,and
CHRISTINE WING-SI NG; and all those 14 similarly situated,

15

Plaintiffs,

16 vs.
17 REGENTS OF THE UNIVERSITY OF
18 CALIFORNIA, et a!.,

19 Defendants.
20

CASE NO. 2:03-CV-02591-FCD-EFB
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Date: March 28, 2008 Time: 10:00 a.m. Courtroom: 2

21

22

23

24

25

26

27

28
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
00549923.WPD

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 2 of 46

1

TABLE OF CONTENTS

2

3 I

INTRODUCTION ....................................................... 1

4 II
5 III 6
IV 7
8

PROCEDURAL HISTORY RELEVANT TO THIS MOTION .................... 2 SCOPE OF THIS MOTION ............................................... 3 STATEMENT OF FACTS ................................................ 3 A. Varsity Intercollegiate Wresting at UC Davis ............................ 3

9

B. Women and Varsity Wrestling at UC Davis ............................. 4

10

C. While Plaintiffs MANSOURIAN and NG Did Participate With the

11

Wrestling Team During the Years Burch was the Head Coach, They

Were Not Required to Demonstrate the Skills Necessary to Wrestle

12

at the Varsity Level, Nor did They Compete at the Same Level as

Other Members of the Team ......................................... 7 13

D. MANCUSO Was Never a Member of the Wrestling Team ................ 11 14

15

E. Events in 2000/2001 .............................................. 12

16

F. OCR Complaints ................................................. 13

17 V 18
19

DURING THE TIME PERIOD IN QUESTION, UC DAVIS MET PRONG TWO OF THE THREE PRONGED TEST AND THUS EFFECTIVELY ACCOMMODATED THE INTERESTS AND ABILITIES OF ITS FEMALE STUDENTS .......................................................... 16

20 VI 21 22
VII 23 24 25 26 27

UC DAVIS DID NOT "ELIMINATE" A WOMEN'S WRESTLING TEAM OR OPPORTUNITIES FOR WOMEN TO TRY OUT FOR THE WRESTLING TEAM ............................................................... 27
THERE IS NO EVIDENCE OF INTENTIONAL DISCRIMINATION OR DELIBERATE INDIFFERENCE BY THE UNIVERSITY ...................... 32
A. The UNIVERSITY Acted Promptly Upon Receiving Notice of the OCR Complaint and Resolved the Matter to the Satisfaction of the OCR .......................................................... 32
B. Declination of the Request for Separate Roster Caps was Reasonable ....... 33

28

Memorandum of Points and Authorities in Supp~~t of Defendant's Motion for Summary Judgment

00549923. WPD

11

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 3 of 46

1 2 3 VIII 4 5 IX

C. There is Insufficient Interest to Establish a Women's Varsity Wrestling Team .................................................. 34
PLAINTIFFS' CLAIM OF ENTITLEMENT TO DAMAGES IS BARRED BECAUSE OF THEIR LACK OF NOTICE TO THE UNIVERSITY ............. 37
CONCLUSION ........................................................ 39

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Memorandum of Points and Authorities in SUPP?~t of Defendant's Motion for Summary Judgment

00549923.WPD

111

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 4 of 46

1 2 3 Supreme Court Cases

TABLE OF AUTHORITIES

4 Alexander v. Sandoval

5

532 U.S. 275, 280-81,121 S. Ct. 1511, 1516 ................................. 32

6 Barnes v. Gorman
536 U.S. 181, 185, 122 S. CT. 2097, 2100 (2002) ............................. 32 7

8 Cannon v. University o/Chicago 441 U.S. 677, 694-96, 99 S. Ct. 1946, 1956-57 (1979) ......................... 32

9

Gebser v. Lago Vista Independent School District

10

524 U.S. 274, 290,118 S. Ct. 1989, 1999 (1998) ........................... 32,37

11

12
Federal Court Cases
13

14 Barrett v. West Chester University 2003 U.S. Dist. LEXIS 21095 (E.D. Pa. 2003) ................................ 20

15

Coalition/or Economic Equity v. Wilson

16

122 F.3d 692, 708 (9th Cir. 1997) .......................................... 33

17 Cohen v. Brown University [Cohen IJ

18

809 F.Supp. 978, 983-84 (D. Rhode Is. 1992) .......................... 17,18,38

19 Cohen v. Brown University [Cohen II]

20

991 F.2d 888, 903 (1't Cir. 1993) ....................................... 23,38

21 Force v. Pierce City R-VI School District

570 F.Supp. 1020, 1031 (D. Mo. 1983) ..................................... 30 22

23

Grandson v. University 0/Minnesota
272 F.3d 568, 576 (8th Cir. 2001) ....................................... 33,37

24

Horner ex reI. Horner v. Kentucky High School Athletic Association

25

206 FJd 685, 696-97 (6th Cir. 2000) ....................................... 32

26 Lesser v. Neosho County Community College

27

741 F.Supp. 864 861 .................................................... 30

28

Memorandum of Points and Authorities in SuPP?rt of Defendant's Motion for Summary Judgment

00549923.WPD

IV

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 5 of 46

1 Miami University Wrestling Club v. Miami University

2

302 F.3d 608, 615 (6th Cir. 2002) .......................................... 30

3 National Wrestling Coaches Association v. Department ofEducation
263 F.Supp.2d 82, 92-93 (D.C. 2003) ....................................... 17 4

5 Neal v. Board ofTrustees ofthe California State University 198F.3d763, 768 (9th Cir. 1999) .................................... 17,31,33

6

Nelson v. Pima Community College

7

83 F.3d 1075, 1080 (9th Cir. 1996) ......................................... 33

8 Pederson v. Louisiana State University

9

912 F.Supp. 892, (M.D. LA. 1996) ................................ 19,23,33,37

10 Reese v. Jefferson School District No. 14J

11

208 F.3d 736, 739 (9th Cir. 2000) .......................................... 32

12 Roberts v. Colorado Board ofAgriculture 998 F.2d 824, 828 (loth Cir. 1993) ................................... 17,19,34
13
14 Weiker v. Mesa County Valley School 2007 U.S. Dist. LEXIS 11956, *25-26 (D. Colo. 2007) ......................... 35
15 Statutes
16
17 20 U.S.C. § 1681(a) .......................................................... 16 34 C.F.R. Part 106 ............................................................ 16
18 34 C.F.R. Part 106.41(b) ....................................................... 29 44 Fed. Reg. 71413 ........................................................... 16
19 44 Fed. Reg. No. 239, 71418 ................................................... 34 20 44 Fed. Reg., Vol. 44, No. 239, 71417-8 .......................................... 37

21 Other Authority

22 Women in Intercollegiate Sport: A Longitudinal, National Study

23

Twenty Seven Year Update (1997-2006) .................................... 39

24

25

26

27

28

Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment

00549923.wPD

V

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 6 of 46

1

I.

2

INTRODUCTION

3

At the outset this case included six claims for relief asserted by four Plaintiffs against the

4 REGENTS OF THE UNIVERSITY OF CALIFORNIA (hereafter UNIVERSITY) and five individual

5 Defendants. The case has been considerably narrowed via a series of motions. Plaintiffs abandoned

6 their attempt to have the case certified as a class action. Defendants' motion to dismiss disposed of all

7 but one claim. The sole claim for relief remaining is for alleged violation of Title IX under a theory of

8 ineffective accommodation of athletic interests and abilities of female students at UC Davis.

9

This case is an attack on a women's athletic program that has long been a leader among

10 institutions of higher education in providing and promoting equitable opportunities for female student-

11 athletes. The basis for the remaining claim asserted by MANSOURIAN, NG and MANCUSO arises

12 out of their participation, or attempted participation, in the wrestling program at UC Davis. During the

13 time Michael Burch was the head wrestling coach, the few women who came out for the wrestling team

14 were not required to earn a spot on the team roster via a hallmark of varsity athletics -- the

15 demonstration of sufficient skill and ability to compete at the varsity level. Plaintiffs did not complain

16 about this differential treatment; to the contrary, they insisted and continue to insist to this day that they

17 had an entitlement to membership on the team throughout their college career because they are female

18 and should not have been required to earn a spot on the roster as male students must do.

19

The focus of this motion is on the UNIVERSITY's compliance with what is known as Title

20 IX's three-pronged test. The UNIVERSITY meets prong two of the test as it has a history and practice

21 of continuous expansion of its women's athletic program, thus defeating Plaintiffs' ineffective

22 accommodation claim. The claim also fails because they cannot show there was sufficient interest,

23 ability, or expectation for intercollegiate competition to support a separate women's wrestling team.

24 Title IX law makes it very clear that in the absence of sufficient interest, ability, or expectation of

25 competition for an intercollegiate team, a university need not establish a new team simply because a

26 few students make a request for one. Finally, Plaintiffs' claim fails on the issue of notice, as the

27 complaints two of them filed with the Office for Civil Rights (OCR) focused solely on their

28 experiences with the wrestling team -- they did not contain the wholesale attack on the entire women's

1
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
{00537741DOC}

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 7 of 46

1 athletic program that Plaintiffs now attempt to mount. The narrow focus of the OCR complaints, as

2 well as the scope of the allegations set forth in the complaint filed with this Court, was one of the

3 reasons the Court denied Plaintiffs' attempt earlier this year to add new party plaintiffs who are current

4 students interested in varsity sports other than wrestling. In denying the motion to amend the

5 Complaint Judge Darnrell stated:

6

"While plaintiffs may have sought to bring challenges on behalf of all women athletes at

7

UC Davis, the plaintiffs only alleged that they had experience and sought opportunities in

wrestling. The factual allegations in the original complaint related only to the

8

opportunities available for women to participate in the UC Davis varsity wrestling

program and plaintiffs' inability to receive the benefits of being a varsity wrestler."

9

(Order dated 3/20107, Docket item 175, emphasis added.)

10
For the reasons set forth below, the UNIVERSITY requests that the Court grant summary

11
judgment in its favor on the sole remaining claim.

12
II

13

PROCEDURAL HISTORY RELEVANT TO THIS MOTION

14

This action was filed on December 18, 2003. Plaintiffs asserted six claims for relief: (I)

15 violation of Title IX based on a theory that female athletes are not afforded the same opportunities as

16 male athletes; (2) violation of Title IX based on a theory that female athletes are not provided with the

17 same opportunities for financial assistance as male athletes; (3) retaliation in violation of Title IX and

18 its interpretive regulations; (4) violation of 42 U.S.C. §1983 based on an equal protection clause; (5)

19 violation of the California Unruh Civil Rights Act; and (6) a claim of violation of "public policy" based

20 on various California statutes including Article I, section 7 of the State Constitution, Article I, section

21 31 of the State Constitution, and Education Code sections 221.7, 262.3, 66101, 67620 and 66252. On

22 October 18, 2007 the Court issued its order on Defendants' motion for judgment on the pleadings

23 (Docket item 226), granting the motion in all respects except for one aspect of the first claim for relief.

24 Plaintiffs' first claim for relief under a theory of unequal treatment was dismissed, but the motion was

25 denied in regard to the other theory asserted in the first claim for relief (ineffective accommodation of

26 interests). As a result of this order, all remaining claims for relief have been dismissed as a matter of

27 law, including the claims asserted against the individual Defendants.

28

Faced with strong opposition to their motion for class certification and the denial of their

2
Memorandum oCPoints and Authorities in Support oCDeCendant's Motion Cor Summary Judgment
{0053774l.DOC)

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 8 of 46

1 motion to add new party plaintiffs, Plaintiffs moved to dismiss their class claims earlier this year. In

2 March, 2007 NANCY CHIANG voluntarily dismissed her claims. (Docket item 178.)

3

III.

4

SCOPE OF THIS MOTION

5

In its ruling on Defendants' motion for judgment on the pleadings, the Court identified the first

6 claim for relief as stating both a theory of unequal treatment based on gender, and a theory of

7 ineffective accommodation of the Plaintiffs' athletic interests. On page 9 of its order (Docket item

8 226), the Court noted that the unequal treatment claim was based on (1) issuance of what Plaintiffs call

9 the "No Females Directive"! in the fall of2000; (2) an alleged broken promise in June 2001 to reinstate

10 women to the wrestling team; (3) the failure to renew the contract of wrestling coach Mike Burch; and

11 (4) requiring women to compete for membership on the wrestling team in the fall of 2001 under the 12 same terms and conditions as male students. The Court held that all of these events were time- barred 13 and granted the motion insofar as the theory of unequal treatment is concerned. In regard to the 14 surviving theory of ineffective accommodation, the Court based its ruling on allegations in the 15 Complaint that Plaintiffs "were able and ready to wrestle at UCD and that sufficient interest existed in

16 the female student population at UCD to field a women's wrestling team." Id. at p. 24. This ruling 17 defines the scope of the remaining claim.

IB

IV.

19

STATEMENT OF FACTS

20 A. Varsity Intercollegiate Wrestling at DC Davis

21

During the time period in issue in this case, UC Davis was a National Collegiate Athletic

22 Association (NCAA) Division II school. However, its wrestling team competed at the Division I level

23 because of a lack of available competition among Division II schools in its geographic area.

24 (Undisputed Material Fact (UMF) 7) UC Davis wrestles in the Pac-l 0 Conference. The other schools

25 that are members of the Pac-!0 Conference for the sport of wrestling are Arizona State, Boise State, Cal

26

27
This moniker was coined by the attorney representing the Plaintiffs at the time the suit was filed. Plaintiffs
28 admitted in interrogatory responses that they never saw or heard anything issued by the UNIVERSITY or its employees
entitled "No Females Directive."

3
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
(0053774!.DOC)

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 9 of 46

1 Poly, Cal State Bakersfield, Cal State Fullerton, Oregon, Oregon State, Portland State and Stanford.

2 (UMF 8) UC Davis has not declared wrestling to be a contact sport. Accordingly, students of both

3 genders may tryout for the team. (UMF 9) The head coach of the wrestling team is solely responsible

4 for determining which students will be awarded a slot on the team roster based on his assessment of

5 which candidates are most skilled and qualified to participate in collegiate level wrestling at the

6 Division I level. (UMF 10) Any student who is selected for the wrestling team must meet NCAA

7 eligibility requirements, comply with all applicable NCAA regulations relating to wrestling, and

8 comply with UC Davis athletic eligibility requirements. (UMF 11)

9

The UC Davis wrestling team competes in a set schedule of competition each year. The

10 competition includes dual meets with other schools in the Pac-10 conference and participation in

11 invitational tournaments, one or two open tournaments, and NCAA championship events (if

12 applicable). Collegiate style wrestling rules are used in dual meets and NCAA sponsored tournaments.

13 The wrestling team practices and competes in those events using collegiate style rules, not freestyle or

14 folk-style rules. (UMFs 12, 14)

15 B. Women and Varsity Wrestling at UC Davis

16

There has never been a separate women's wrestling team at UC Davis. (UMF 15) Women's

17 wrestling has always had an "unofficial status" on campus. This is reflected in the media guides issued

18 by the Department of Intercollegiate Athletics. The 1996/97 wrestling media guide included a section

19 on "women's freestyle wrestling." Two graduate students, Afsoon Roshanzamir and Jennifer Martin,

20 were described as members of the Davis Wrestling Club, a local city freestyle club. 2 The description

21 of the wrestling team in the 1996/97 media guide is devoid of any mention of women wrestlers; the

22 focus is solely on male wrestlers. There were no women listed on the team roster in the guide. (UMFs

23 16-18) The 1997/98 wrestling media guide described wrestling as "the only NCAA Division I men's

24 sport on the UC Davis campus." (Emphasis added.) Page 11 of that year's guide states: "For several

25 years UC Davis has had women participate in its program. Women's amateur wrestling is a new but

26 rapidly growing sport in the U.S., with championships at the national and international level. At UC

27

28

In her deposition, Ms. Roshanzamir (now known as Afsoon Johoston) testified that the "Davis Wrestling Club"

was actually some members of the varsity wrestling team and "some older guys who had already graduated" who were

practicing in the off-season.

4
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
{00537741DOC)

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 10 of 46

1 Davis, women's wrestling has an unofficial status, but women are encouraged to participate to develop

2 their skills." The roster listed in the media guide for that year did not contain any women. (UMF 19)

3

Women are included on the roster in the 1998/99 media guide. There was nothing that would

4 signify the existence of a separate women's wrestling team, such as a separate roster for them. Women

5 continued to be described as having unofficial status. The records for the 1997/98 season which are

6 included in the 1998/99 guide do not contain any information about women. (UMF 20) The 1999/00

7 media guide continued to describe women's wrestling as having unofficial status. No women were 8 listed on the roster in the guide and there were no entries for women in the section setting forth

9 individual results for the previous year. (UMF 21) No women were included on the roster in the 10 2000/01 media guide, nor was there any reference to women in the summary of individual records. In

11 this guide, there was a reference to the "women's wrestling club program," which goes on to reiterate

12 the same language contained in previous guides about women's wrestling having unofficial status at

13 UC Davis. (UMF 22)

14

There has never been a separate budget for a purported women's wrestling team. (UMF 23)

15 There has never been a competition schedule submitted by a head wrestling coach indicating the

16 existence of a separate women's wrestling team. (UMF 24)

17

Afsoon Johnston (nee Roshanzamir) was a member of the first women's national wrestling

18 team3 in high school. She earned a place on the national team by competing against other women.

19 (UMF 26) Johnston entered UC Davis in the fall of 1990 and graduated in 1995. (UMF 27) When she

20 entered UC Davis, she advised the coach (Bob Grant) that her interest was in pursuing wrestling to

21 compete on the national level. Throughout the time she attended UC Davis, her participation in dual 22 meets4 was limited to an exhibition match with a female Chico State wrestler and an open meet with

23 San Francisco State. (UMF 28)

24

During Johnston's first and second year at UC Davis, she was the only woman who participated

25 with the wrestling team. In her senior year, veterinary school student Jennifer Martin trained with

26

27

The women's national wrestling team is part of USA Wrestling. It is not associated with UC Davis.

28

A dual meet is a contest between two school teams. An open meet or tournament is one where members of a

school team wrestle "unattached" to their school; anyone can compete in an open tournament.

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1 Johnston. (UMF 29) After Burch became the head wrestling coach in 1995, Johnston continued to be

2 ilie only woman who participated on the team. Johnston never participated in a match or a meet

3 wearing a UC Davis uniform. Burch did not provide her with coaching for any nationaJ or international

4 tournaments. Johnston considered herself to be a member of the UC Davis wrestling team only during

5 her freshman year because after that she was a member of the USA Wrestling national team. (UMF 30)

6 The primary focus of her wrestling activities was to train so that she could compete with the national

7 team, not with the UC Davis team. She was not interested in being affiliated with the UC Davis team

8 after her freshman year because doing so would adversely affect her standing on the national team.

9 (UMF 31)

10

Samanilia Reinis entered UC Davis in September, 1997. She participated on the wrestling team

11 in 1998/99, but did not wrestle at aJl in 1999/00 and 2000/01 because of a chronic injury. (UMF 32)

12 While she was at UC Davis, the only match or tournament iliat she competed in was ilie Aggie Opens.

13 She attempted to wrestle in a tournament hosted by Southern Oregon, but could not do so because she

14 did not have an opponent. She never competed in a UC Davis uniform. (UMF 33)

15

Former plaintiff Nancy Chiang entered UC Davis as a freshman in the fall of 1998. (UMF 35)

16 Chiang was not cleared to practice with the team until well into the season because she did not obtain

17 her required medical clearance until January 1999. (UMF 36) Chiang was not given a UC Davis

18 uniform, nor did she ever observe a woman wrestler in one. (UMF 37) The only match or tournament

19 she participated in during her freshman year was the Aggie Open in January 1999. Chiang wrestled

20 against a woman from a wrestling club and was defeated. (UMF 38) The only match or tournament

21 that Chiang participated in during her second year was the 2000 Aggie Open. She wrestled against two

22 women, using freestyle rules and was defeated both times. (UMF 39) During that school year

23 (1999/00), Chiang struggled with heaJth problems that eventually deteriorated to the point where she

24 barely attended classes. She emolled in classes for the spring quarter, but only went to one class and

25

26
For a number of years the wrestling team held an annual open tournament called the Aggie Open. This event was 27 primarily a fundraiser but also provided opportunities for wrestlers from other schools or clubs to compete in an open
tournament (as opposed to a scheduled meet). In recent years, UC Davis has discontinued the Aggie Open wrestling 28 tournament because it conflicted with Big West conference basketball games. (UMF .)

6
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1 then withdrew. Chiang attempted to return to UC Davis in the fall of 2000 but left again in mid-

2 October. She did not return again and was deemed academically ineligible for intercollegiate sports as

3 of January, 2001. (UMF 40) Chiang never participated in world wrestling championships, the Pan

4 American Games, nor has she ever tried out for the U. S. Olympic Wrestling team. (UMF 41)

5

A student named Abby Schwartzburg is identified in the wrestling team media guide for

6 1999/2000. Schwartzburg appeared to be participating with the team, but had not completed the

7 necessary paperwork to do so. This came to the attention of Compliance Officer Jennifer Cardone in

8 the spring of 2000, who in turn alerted Associate Athletic Director Pam Gill-Fisher of the issue. Gill-

9 Fisher met with Schwartzburg and Reinis (who was also missing required paperwork) to have them

10 complete the documentation. (UMF 42) Schwartzburg had entered UC Davis as a transfer student in

11 the fall of 1999. She was no longer registered as a student at UC Davis as of February, 2001. (UMF

12 43) A student named Stacey Massola trained with the UC Davis wrestling team in 1996/97 but then

13 quit. A student named Alexis Bell participated in the wrestling program for a very short period of time

14 (two months) in 2000101. (UMF 44)

15

During the years Burch was the head coach of the wrestling team, there were never more than

16 four women at anyone time participating in the wrestling program. (UMF 45) Other than the pre-

17 season practices and the try-outs (wrestle-off) that MANCUSO and NG attended in the fall of2001 (see

18 below), no women have tried out for the wrestling team since that time. (UMF 46) Neither Burch nor

19 his successor, Lennie Zalesky, are aware of any NCAA Division I school that has a separate women's

20 wrestling team. (UMF 47)

21 C.
22 23

While Plaintiffs MANSOURIAN and NG Did Participate With the Wrestling Team During the Years Burch was the Head Coach, They Were Not Required to Demonstrate the Skills Necessary to Wrestle at the Varsity Level, Nor Did They Compete at the Same Level as Other Members of the Team.

24

Burch was hired as the head wrestling coach for UC Davis in 1995. He continued in that

25 position until June 2001, at which time his contract expired and was not renewed. Lennie Zalesky was

26 then hired as the head coach for the UC Davis wrestling team and remains in that position today.

27

A fundamental aspect of coaching is holding try-outs for walk-on (non-recruited) students who

28 hope to gain a spot on a varsity team roster. (UMF 49, 109) At the collegiate varsity level, there is a

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1 presumption that those student-athletes who earn a spot on the team have a skill level commensurate

2 with varsity competition. Conducting wrestle-offs (one-on-one competitions between wrestlers in a

3 weight class) is the process by which a coach determines which students in each weight class have the

4 skills and abilities necessary to compete with the other schools in the conference. (UMF 49) Coach

5 Zalesky, who has competed on the national and international level, and has coached high school and

6 collegiate wrestling, has always conducted try-outs to determine which students will be placed on the

7 team. During the pre-competition practice period, students who hope to obtain a spot on the tearn must

8 come to practice, engage in conditioning and weight training, and participate in drills. Shortly before

9 the competition season begins, he conducts wrestle-offs so he and the assistant coaches can determine

10 which student-athletes are the most skilled in each weight class. (UMF 51) Under Burch's leadership

11 of the wrestling tearn, women were not required to engage in a wrestle-off or any type of competition to

12 earn a spot on the tearn. Burch knew they did not have the skill necessary to compete even at the

13 lowest weight class. (UMF 48) In his opinion, none of the women had the strength or skills to compete

14 with males; specifically, he stated that they "didn't have a prayer in beating the men on this tearn."

15 (UMF 50) Burch did not provide the women with UC Davis wrestling uniforms. (UMF 53)

16

When asked in a deposition why the media guides did not contain any information about

17 accomplishments of women wrestlers, Burch stated that the women were not large enough to compete

18 in even the lowest weight class of 125 pounds. (UMF 52) The 1999/00 wrestling media guide contains

19 an extensive discussion about the hopes for the team that year. Coach Burch is quoted as saying this

20 was the best tearn he had had. The guide goes on to describe the contenders in each weight class -- the

21 description is devoid of any mention of women, even in the lightest weight class. (UMF 54) Similarly,

22 the 2000/01 media guide contains an "Outlook" section that touts the hopefuls for that year. Again,

23 there is no mention of women. Coach Burch is quoted as saying "The guys are hungry. They believed

24 that for the past five years we've been building. We are still building but now it is time to see some of

25 the fruits of that labor. We want to see more dual meet wins, more Pac-IO place-winners and more

26 national qualifiers this year." (UMF 55)

27

The primary types of competition engaged in by the UC Davis wrestling tearn are dual meets

28 (against tearns in the Pac-l 0), invitational tournaments and post-season championships. Open

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1 tournaments are attended at most only once or twice per year. Any person can compete in an open

2 tournament, whether associated with a team or not. During the time Burch was the head wrestling

3 coach, the only type of competition the women wrestlers participated in was open tournaments,

4 primarily the Aggie Open. The only exception was Reinis' attempt to wrestle in one dual meet, which

5 was thwarted because she had no competition. (UMFs 12,13,33,38,63,69)

6

Prior to the 1998/99 school year, UC Davis could not offer athletic scholarships to its students

7 per the rules of the conference it belonged to at the time. Thereafter, the campus moved to a different

8 conference and grants-in-aid consistent with NCAA guidelines were available to student-athletes.

9 (UMF 57) Burch submitted grant-in-aid (athletic scholarship) worksheets for 1998/99, 1999100 and

10 2000101. He never offered any scholarships to women via this process. (UMF 58) On May 29, 2001

11 Burch learned that his contract was not going to be renewed. Two weeks later (just shortly before he

12 departed UC Davis) he sent an e-mail to Compliance Coordinator Jennifer Cardone and attempted, for

13 the first time, to award scholarship money to MANSOURIAN, NG and MANCUSO. In light of the

14 belated submission of tlris request, the status of the wrestling team budget, and the fact that the request

15 was made only after Burch learned his contract would not be renewed, Athletic Director Warzecka

16 made the decision to hold the request in abeyance, pending hiring of a new coach. (UMF 59)

17

All student-athletes who participate in any manner in varsity athletics must complete certain

18 required paperwork such the NCAA Student-Athlete Statement and Drug-Testing Consent Form, and

19 the UC Davis required Academic Plan Form. Failure to submit the required paperwork means that a

20 student is not eligible to practice or compete in intercollegiate athletics. Burch did not believe the

21 women needed to complete the mandated paperwork (such as an Academic Plan Form) because the

22 NCAA does not recognize women's wrestling. (UMF 60)

23

MANSOURIAN entered UC Davis in the fall of 2000 and graduated in June 2004. (UMF 61)

24 During her first year at UC Davis (2000/2001), she observed only one other female actively

25 participating in wrestling -- CHRISTINE NG. (UMF 62) MANSOURIAN did not compete at any dual

26 meets during the 2000/2001 season. The only tournament she competed in was the Aggie Open in

27 January 2001. MANSOURIAN wrestled against two women in the tournament and lost to both. (UMF

28 63) She has never wrestled in a national wrestling tournament, has never participated in the Pan

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1 American games, never tried out for the U.S. Olympic team, and never held any national or

2 international rankings as a wrestler. (UMF 64) 6

3

MANSOURIAN did not try out for a place on the wrestling team in the fall of 2001. On

4 October 10,2001 she sent an e-mail to Coach Zalesky in which she stated that she had a new job and a

5 heavy class load. MANSOURIAN wrote "I have found it extremely exhausting to wrestle as well. I

6 am thinking that maybe intercollegiate wrestling is too much for me right now and that I would rather

7 be in a club (like you suggested earlier) blc I only have time for practice about 3 times a

8 week... however, I do not by any means want to stop wrestling. I can just not commit to it as much."

9 (UMF 65)

10

NG entered UC Davis in the fall of 1998 and graduated in September 2002. (UMF 67) During

11 the three years she participated in wrestling, NG competed in only one match or tournament -- the

12 National Girls Wrestling tournament in Michigan held in the spring of 2000. Burch did not accompany

13 her to the tournament, she did not wear a UC Davis uniform while she competed, and she did not place.

14 NG signed up for the Aggie Open wrestling tournament in her freshman and sophomore years at UC

15 Davis, but no one in her weight class showed up to compete and thus she did not participate. (UMF 69)

16 During the 1998/99 season, NG was ineligible to practice or compete from the start of the season in

17 November until February 1999 because she failed to turn in an Academic Plan Form. (UMF 68)

18

NG had no desire to practice or wrestle against men; she was more interested in simply

19 working out than she was in competing. She testified during her deposition that "I guess the thing is for

20 me, like I have a fear of competing. And so I tend to avoid it when I can. So that's why I'm not exactly

21 up for competing." (UMF 70) NG has never been a member of the U.S. National Wrestling Team, has

22 never participated in the Pan American Games, and has never participated in the World Wrestling

23

24

25 In paragraphs 85 and 86 of their Complaint, Plaintiffs allege that before the purported end of women participating
26 in wrestling at UC Davis "female wrestlers had the opportunity to participate in wrestling ... and to improve their skills to such an extent that some became nationally ranked, participated in national women's wrestling tournaments, participated at
27 members of the U.S. National women's wrestling team, fmished high in the Pan-American games and World Wrestling Championships and are expected to be members of the United States Olympic team in 2004 when women's wrestling
28 becomes a gold medal sport for the fIrst time. Without the benefIts obtained from their participation as female wrestlers at UC Davis, these nationally and internationally ranked female wrestlers would not likely have achieved such a high level of
success on their own." (Exhibit A, 'If'lf 85-86.) None of the Plaintiffs have ever reached such levels in wrestling.

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1 Championships. She has never tried out for the U. S. Olympic team nor does she have any plans to do 2 so. (UMF 71)

3

As of the spring of her junior year (2001), NG was aware of only herself and MANSOURIAN

4 as female UC Davis students interested in wrestling. Samantha Reinis was graduating and Abbey

5 Schwartzburg had left school, as had Chiang. (UMF 72) In the fall of2001, NG and MANSOURIAN

6 spoke to Coach Zalesky. They told him they did not have the strength or skills necessary to compete

7 against males for a place on the team. In light of these statements, he urged them to consider

8 developing their skills by participating on a wrestling club sport team. Coach Zalesky did not preclude

9 the women from trying out. NG understood that Coach Zalesky required all hopefuls to engage in a

10 wrestle-off to determine who would make the team. She participated in a wrestle-off with incoming

11 freshman Plaintiff MANCUSO, who pinned her. (UMFs 73,82) 12 D. MANCUSO Was Never a Member of the Wrestling Team

13

MANCUSO wrestled in high school and competed in various high school tournaments and

14 competitions. She also once competed in the U. S. National Wrestling Championships while in high

15 school, using freestyle rules, and participated in fue Aggie Open tournament in early 2001, also while

16 still in high schoo!. (UMF 74)

17

MANCUSO entered UC Davis in the fall of2001 and received her degree in September, 2006.

18 Her eligibility to participate in varsity athletics expired in June, 2006. (UMFs 75) MANCUSO was

19 gone from the Davis campus most of her college career. She spent her junior year (2003/04) abroad

20 studying in New Zealand and then spent November 2004 through January, 2005 traveling in New

21 Zealand and working fuere while she was on a planned educational leave from UC Davis. She re-

22 emolled as a full-time student in February 2005, took classes, and then went to Ireland for a SUlllffier

23· session. MANCUSO returned from Ireland in September 2005 and attended a program in Washington,

24 D.C. from September through December 2005. (UMF 76-77)

25

MANCUSO, who was the most skilled of the Plaintiffs in regard to wrestling, admitted she

26 could not defeat any of the males who were trying out for the team in the fall of2001 and testified that

27 she had no desire to wrestle against men at the collegiate level because "they would squash me." (UMF

28 81) Consistent with his usual practice and the agreement approved by fue OCR (see infra), Coach

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1 Zalesky held try-outs for the wrestling team in the fall of 2001 by having students in the same weight 2 class engage in wrestle-offs against each other. Coach Zalesky had MANCUSO engage in a wrestle-off 3 against NG first, as both were in the lightest weight class and comparable in their weights.

4 MANCUSO pinned NG quickly and went on to wrestle-off against a male in the same weight class.

5 The male student pinned MANCUSO within 30 seconds. (UMF 82)

6

As a result of the wrestle-offs, Coach Zalesky cut a number of students, including NG and

7 MANCUSO, as well as the male who defeated MANCUSO in the wrestle-off and several other males.

8 These students were cut because they did not have the skills and abilities to wrestle at the NCAA

9 Division I level. Coach Zalesky was allowed a roster maximum of thirty wrestlers and filled that roster

10 with the most skilled and competitive wrestlers in each weight class. (UMF 83) MANCUSO has never

11 participated in a world wrestling competition or the Pan American Games, nor has she made any effort

12 to do so. (UMF 84)

13 E. Events in 2000/2001

14

UC Davis Athletic Director Greg Warzecka instituted a roster management program. Under the

15 terms of the program, each men's varsity team had an upper limit on the number of student-athletes

16 who could be on the team roster. Although both sexes can try out for a place on the UC Davis wrestling

17 team, it is considered a men's sport because the NCAA only sponsors men's wrestling and thus subject

18 to roster management. The purpose of roster management, which is used for both budgetary and gender

19 equity purposes, is to limit spending on men's teams. The head coaches of all men's teams were

20 notified in writing of this requirement. (UMF 85)

21

In the fall of 2000, Burch was told via a letter from Warzecka that the limit on the size of the

22 wrestling team roster was thirty student-athletes. Burch had advised the students that because of the

23 roster management program, "it could might come down to some people who really want to be out here

24 not being able to be out here." He did not say this to the women because in his opinion, the roster cap

25 did not apply to females. (UMF 86) After receiving the letter, Burch sent an e-mail to Warzecka asking

26 him to raise the roster maximum to 32-34 spots. Warzecka agreed to increase the cap to 34. Burch

27 filled all 34 roster spots with males. (UMF 87) Warzecka did not care whether Burch had all men, or

28 men and women on the wrestling team roster so long as the total number of student-athletes did not

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1 exceed the expanded maximum of 34. He considered the roster management program, including roster

2 maximums or caps, to apply to all members of the men's team no matter what the gender of any

3 particular athlete was. In his opinion, if women who did not have the skill necessary to earn a spot on

4 the team were permitted to remain on a team over and above the roster cap, that would be unfair to

5 males who were not selected for the team because they did not have the necessary skill. (UMF 88)

6

Warzecka and Burch had a discussion about the wrestling team roster in October, 2001. Burch

7 contends that Warzecka requested he move the women to club sport status. Warzecka contends they

8 discussed Burch's roster and his request to increase the allowable number. During the course of the

9 discussion, Warzecka asked Burch what he was going to do with the women as they were not included

10 on his proposed roster. Burch responded that they were not competitive, and that he did not have the

11 time to devote to them7• Warzecka replied that in that case, a wrestling sport club should be formed so

12 the women could participate in wrestling at a level that was commensurate with their skills and

13 abilities. (UMF 89) On October 30, 2001 Burch submitted a roster of 34. None of the 34 student

14 athletes listed were women. (UMF 90) At the end of October or early November 2000, Burch told

15 MANSOURIAN, NG and Bell that the administration was not supportive of women's wrestling and

16 that he had been told to take them off the team. He also told them that notwithstanding the fact they

17 were not on the team, they could continue coming to practices, which they did. (UMF 91) Burch did

18 not tell the women about the imposition of the roster limit or that he had not allotted any of the limited

19 spots to them. (UMF 92)

20 F. OCR Complaints

21

On April 25, 2001 NG and MANSOURlAN submitted a written complaint to the OCR. They

22 alleged they had been subject to gender discrimination because they were told they could no longer

23 participate on the wrestling team. (UMF 93) Warzecka and Associate Athletic Directors Swanson and

24 Gill-Fisher were notified of the existence of the complaint in early May via a memo from NG,

25 MANSOURlAN and Reinis dated April 30, 2001. This was the first notice they had of the complaint.

26 This was also the first complaint relating to gender issues in the intercollegiate athletic program that the

27

28 Burch was one of several part-time head coaches. In addition to his coaching duties, he also had obligations
associated with his position as a lecturer in the Religious Studies department.

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1 campus had received during Director Warzecka' s employment. The campus administrators understood

2 the complaint to relate solely to the wrestling team, not to the intercollegiate athletic program as a

3 whole. (UMF 94)

4

On May 14,2001 NG and MANSOURIAN filed a second (supplemental) OCR complaint. This

S complaint contains a list of allegations pertaining to the wrestling program and the participation of

6 women in it. (UMF 95) On June 26, 2001 NG submitted a third complaint to OCR on behalf of

7 herself, MANSOURIAN, and MANCUSO. This complaint was based on athletic scholarships issued

8 to various members of the wrestling team, and Warzecka's response to Burch's effort to give female

9 wrestlers scholarship money only after he leamed his contract would not be renewed. (UMF 96) In

10 August 2001, MANSOURIAN filed a fourth OCR complaint. This one was based on the decision not

11 to renew Burch's contract. Plaintiffs contended that decision constituted retaliation against women

12 wrestlers. (UMF 97)

13

After OCR representatives advised members of the Athletic Department administration of the

14 substance of the April 25, 2001 complaint, Associate Vice Chancellor Robert Franks conducted an

lS inquiry into the allegation made by MANSOURIAN and NG that the Athletic Director had removed

16 the women from the wrestling team roster. He spoke with a number of people regarding the allegation

17 including Warzecka, Dennis Shimek (the campus Title IX compliance officer), Swanson, Gill-Fisher

18 and Burch. As a result of his investigation, Franks concluded that Burch had submitted a roster for the

19 2000/01 season that did not include the women wrestlers and, thus, they were indeed not part of the

20 wrestling team. Burch denied removing the women from the team, as did Warzecka. It was Franks'

21 opinion that Burch had not included the women on the roster that year because there was a roster cap,

22 and he had wrestlers more qualified than the women that he wanted to use to fill the limited roster

23 spots. (UMF 98) The women had not been told of this decision. (UMF 92)

24

On May 9, 2001, Warzecka sent a letter to Burch requesting that he add NG, MANSOURIAN,

2S Reinis and CHIANG to the team roster provided they met NCAA, UC Davis, and Burch's requirements

26 for membership on the team. Burch declined to do so; accordingly, Vice Chancellor Franks notified the

27 women of the decision. When he made this offer to the women, it was Franks' understanding that if the

28 women desired to remain on the team the following year, they would have to compete for a position

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1 just like any other student who wanted to be a member of a varsity team. (UMF 99) On May 14, 200 I,

2 Shimek sent a letter to the OCR investigator advising her that the women had been placed on the

3 wrestling team roster for the 2000/200 I school year. As a result of this notification, the OCR closed

4 the initial complaint. (UMF 100)

5

Franks met with MANSOURIAN and NG on May 16, 2001. Plaintiffs asked if the campus

6 would consider having two roster caps for the wrestling team -- one for men and one for women.

7 Franks passed on their inquiry to Gill-Fisher, Warzecka and Shimek. (UMF 101) They consulted with

8 others, including legal counsel, to determine whether such a suggestion was feasible. The conclusion

9 was that it was not, for a variety of reasons. Of those reasons, the foremost was that as a practical

10 matter, not all students who are interested in participating in varsity athletics have the skill necessary to

11 earn a spot on the team and not all students who want to be a member of a varsity team can be

12 accommodated. Each year, the Athletic Department receives eligibility forms from many more students

13 who want to participate in intercollegiate sports than can actually be accommodated on the varsity

14 teams. There was an upper limit to the total number of student athletes who could be on the wrestling

15 team, which was the roster cap assigned by the Athletic Director. (UMF 102,105,106) Franks

16 communicated this to Plaintiffs in an e-mail. (UMF 103) Plaintiffs asked whether the campus would

17 waive the minimum number of participants necessary for a club sport team because they did not know

18 if they could come up with the ten female students who were interested in wrestling, which was the

19 minimum number of participants required for a club sport. Franks advised them via e-mail that the

20 minimum would be waived for them. (UMF 104)

21

Mr. Shimek advised the OCR that he believed a resolution could be reached that addressed the

22 issues raised by the supplemental complaint. (UMF 107) As a result, UC Davis and the OCR entered

23 into a Voluntary Resolution Plan. The campus administration chose to enter into the Voluntary

24 Resolution Plan because in its opinion, the marmer in which Burch had dealt with the issue of women

25 who wanted to participate on the varsity wrestling team had created confusion. The Voluntary

26 Resolution Plan was not an admission by the campus that there had been any violation of state or

27 federal law; rather, it was a specific plan to develop wrestling as a club sport and, where warranted by

28 the eligibility and qualifications of female student-athletes, support their participation on the wrestling

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1 team. The Voluntary Resolution Plan contained the following points, among others: (1) male and

2 female students will be encouraged to compete for a position on the varsity wrestling team. The coach

3 of the wrestling team will select those athletes eligible for the final squad list who demonstrate the

4 highest skill and competitive ability in their weight class; and (2) the coach will recruit the best

5 qualified wrestlers, regardless of gender, for the varsity intercollegiate (ICA) team. (UMF 108)

6

V.

7

DURING THE TIME PERIOD IN QUESTION, UC DAVIS MET PRONG TWO OF THE

8

THREE PRONGED TEST AND THUS EFFECTIVELY ACCOMMODATED THE

INTERESTS AND ABILITIES OF ITS FEMALE STUDENTS

9

10

Title IX of the Educational Amendments of 1972 holds that no person shall, on the basis of sex,

11 be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any

12 education program receiving federal financial assistance. 20. U.S.C. § 1681(a). The Regulation

13 implementing Title IX as it relates to athletics is found at 34 C.F.R. Part 106: "No person shall, on the

14 basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from

15 another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or

16 intramural athletics offered by a recipient [of federal funding] and no recipient shall provide any such

17 athletics separately on such basis." Subsection (c) requires that an institution which operates or

18 sponsors interscholastic, intercollegiate, club or intramural athletics do so in a manner that provides

19 equal athletic opportunity to members of both sexes. In determining whether equal opportunities are

20 available, the Director (of the Office for Civil Rights, which is primarily charged with investigating and

21 making findings on Title IX allegations) will consider, among other factors, "whether the selection of

22 sports and levels of competition effectively accommodate the interests and abilities of members of both

23 sexes,"

24

In 1979, the Department of Health, Education and Welfare issued a Policy Interpretation on the

25 athletics aspect of Title IX. See 44 Fed. Reg. 71,413. This Policy Interpretation set forth what is

26 referred to as the three-prong test for compliance. "A university's athletic program is Title IX-
27 compliant if it satisfies one of the following conditions [prongs1: (l) intercollegiate level participation

28 opportunities for male and female students are provided in numbers substantially proportionate to their

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1 respective enrollments, or (2) where the members of one sex have been and are underrepresented

2 among intercollegiate athletes, ... the institution can show a history and continuing practice of program

3 expansion which is demonstrably responsive to the developing interests and abilities of the members of

4 that sex, or (3) where the members of one sex are underrepresented among intercollegiate athletes, and

5 the institution cannot show a continuing practice of program expansion such as that cited above, ... it

6 can be demonstrated that the interests and abilities of the members of that sex have been fully and

7 effectively accommodated by the current program." Neal v. Board of Trustees of the California State

8 University, 198 F.3d 763,768 (9th Cir. 1999). The three-prong test has been universally accepted by

9 the courts (see e.g. Cohen v. Brown University [Cohen IV), 101 F. 3d 155 (lst Cir.1996)) and the courts

10 have given substantial deference to the Department's interpretation of its own regulations. Roberts v.

11 Colorado State Bd. OfAgriculture, 998 F.2d 824, 828 (loth Cir. 1993). Equally accepted by the courts

12 is the authority of the Department of Education and its Office for Civil Rights to issue ·Clarifications on

13 the implementing regulation. These Clarifications, as well as OCR's 1990 "Title IX Athletics

14 Investigator's Manual," have been used by courts as sources of guidance for OCR investigators and for

15 courts that are faced with making a determination on whether an institution is in compliance with Title

16 IX in regard to a claim of ineffective accommodation. Cohen v. Brown University [Cohen I}, 809

17 F.Supp. 978, 983-84 (D. Rhode Is. 1992).

18

The UNIVERSITY contends that as a matter of law, it is and has been during the time period in

19 issue in this case in compliance under prong two. The 1996 "Clarification ofIntercollegiate Athletics

20 Policy Guidance: The Three-Part Test" issued by OCR provides the roadmap for determining

21 compliance. See Nat 'I. Wrestling Coaches Ass 'n. v. Dep't. of Education, 263 F.Supp.2d 82, 92-93

22 (D.C. 2003). In what is commonly referred to as the "Dear Colleague" letter from Norma Cantu,

23 Assistant Secretary for Civil Rights, that accompanied the Clarification, Cantu noted the Clarification

24 confirmed that a school need only comply with one of the three prongs, and that prong two involves "an

25 examination of an institution's good faith expansion of athletic opportunities through its response to

26 developing interests of the underrepresented sex at that institution." She also stated "the Clarification

27 does not provide strict numerical formulas or 'cookie cutter' answers to the issues that are inherently

28 case-and fact-specific. Such an effort not only would belie the meaning of Title IX, but would at the

17
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1 same time deprive institutions of the flexibility to which they are entitled when deciding how best to

2 comply with the law." The 1996 Clarification itself states as follows in regard to prong two:

3

"There are no fixed intervals of time within which an institution must have added

4

participation opportunities. Neither is a particular number of sports dispositive. Rather,

the focus is on whether the program expansion was responsive to the developing interests

5

and abilities of the underrepresented sex." (emphasis added)

6

"OCR will consider the following factors, among others, as evidence that may indicate a

7

history of program expansion that is demonstrably responsive to the developing interests

and abilities of the underrepresented sex: [I] an institution's record of adding

8

intercollegiate teams, or upgrading teams to intercollegiate status, for the

underrepresented sex; [2] in institution's record of increasing the numbers of participants

9

in intercollegiate athletics who are members of the underrepresented sex; and [3] an

10

institution's affirmative response to requests by students or others for addition or

elevation of sports." (emphasis added)

11

"OCR will consider the following factors, among others, as evidence that may indicate a

12

continuing practice of program expansion that is demonstrably responsive to the

13

developing interests and abilities of the underrepresented sex: [1] an institution's current

implementation of a nondiscriminatory policy or procedure for requesting the addition of

14

sports (including the elevation of club or intramural teams) and the effective

communication of the policy or procedure to students; and [2] an institution's current

15

implementation of a plan of program expansion that is responsive to developing interests

16

and abilities." (emphasis added)

17

In the 1996 Clarification, the OCR provided hypothetical examples to illustrate the principles

18 set forth in the document. One such hypothetical is:

19

"At the inception of its women's program in the mid-1970s, Institution C established

seven teams for women. In 1984 it added a women's varsity team at the request of

20

students and coaches. In 1990 it upgraded a women's club sport to varsity team status

21

based on a request by the club members and an NCAA survey that showed a significant

increase in girls high school participation in that sport. Institution C is currently

22

implementing a plan to add a varsity women's team in the spring of 1996 that has been

identified by a regional study as an emerging sport in the region. The addition of these

23

teams resulted in an increased percentage of women participating in varsity athletics at

24

the institution. Based on these facts,. OCR would find Institution C in compliance with

part two because it has a history of program expansion and is continuing to expand its

25

program for women to meet their developing interests and abilities."

26
The few courts that have addressed the issue of compliance under prong two were faced with
27
women's intercollegiate athletic programs that bear no resemblance to the women's intercollegiate 28 athletic program at UC Davis. The seminal case of Cohen v. Brown, supra, is illustrative. Brown

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1 University downgraded two longstanding women's varsity teams (gymnastics and volleyball) to club 2 status in 1991. Almost all women's varsity teams at Brown were created between 1971 and 1977. The 3 only women's team created after that period was winter track in 1982. 908 F.Supp. at p. 981. When
4 the District Court first ruled on the request for a preliminary injunction in 1992, it found that Brown did 5 not meet the criteria for prong two compliance. The Court of Appeal did not disturb that finding. 991
6 F.2d at p. 903. In Roberts v. Colorado State Bd. OfAgriculture, supra, suit was filed in June 1992 after 7 the university discontinued its women's fast pitch softball team and did not replace it with another 8 sport. The District Court issued an injunction reinstating the team. Both the District Court and the 9 Court of Appeal found that the university could not claim compliance under prong two because, apart 10 from creating a women's sports program in the 1970's consisting of eleven sports and then adding 11 women's golf in 1977, it had done nothing more to expand the program. To the contrary, Colorado had 12 dropped three women's sports and its overall opportunities for women had decreased by 34%. In sum, 13 Colorado had not added any new teams between 1977 and 1992 and had dropped three teams during 14 that time.
Louisiana State University was sued for ineffective accommodation in 1994. Pederson v.
15
Louisiana State University, 912 F.Supp. 892 (M.D. LA. 1996). Women's intercollegiate athletics
16
started at LSU in 1977. Fast pitch softball was added in 1979, but was dropped following the 1982/83
17
season "with no credible reason given." No additional women's sports were added until 1993 when the
18
decision was made to add fast pitch softball and soccer in the 1995 season. By the time the District
19
Court ruled in 1996, the softball and soccer teams had been established but, per an agreement with the
20
Southeastern Conference schools, actual competition had been delayed. LSU's prong one (substantial
21
proportionality between intercollegiate athletic participation numbers for men and women and their
22
respective enrollments) numbers were staggeringly disproportionate: 51% of the student body was male
23
and 49% female, but the male athletic participation rate was 71 % while the female participation rate
24
was 29%. In addressing prong two and finding that LSU was not in compliance under that test, the
25
Court stated "this Court finds that historically LSU has demonstrated a practice not to expand women's
26
27 athletics at the university before it became absolutely necessary to do so." Id. at p. 916. Prior to the decision made in 1993, no new women's teams had been added for 14 years. In addition, although
28
softball and soccer were added after the 1993 decision, by the time the Court ruled those teams were
19
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1 both operating under "considerable handicaps" which called into issue the adequacy of LSU's

2 commitment to expansion. Finally, in Barrett v. West Chester University, 2003 U.S. Dist. LEXIS

3 21095 (E.D. Pa. 2003), the school announced in 2003 that it was dropping women's gymnastics and

4 men's lacrosse. Several members of the gymnastics team sued for an injunction mandating the

5 reinstatement of the team. The university made the decision to drop gymnastics notwithstanding a

6 strong recommendation against doing so by the campus' Sports Equity Committee which oversees Title

7 IX issues. This was one of the factors considered by the District Court in coming to the conclusion that

8 the school did not meet prong two. The school had last added a new women's sport (soccer) in 1992.

9 Prior to that, its last addition ofa women's sport was in 1979.

10

In contrast to Brown University, LSU, Colorado State and West Chester University, UC Davis

11 has demonstrated both a history and practice of program expansion for women. UC Davis had an

12 established women's sports program prior to the passage of Title IX. The teams in this program were

13 akin to competitive club teams that competed with comparable teams from other schools. UC Davis

14 was a founding member of the Association of Intercollegiate Athletics for Women (AlAW) which was,

15 in the 1970's, the national governing body for women's intercollegiate athletics. (UMF 113) To the

16 best recollection of persons who were involved in women's athletics at UC Davis when Title IX went

17 into effect, the women's teams that existed at that time were basketball, field hockey, swimming,

18 softball, tennis, volleyball and track/field. These teams competed under AlAW rules and, thus, were

19 considered varsity sports. Women's gymnastics, which had previously been a club team, was added in

20 1974. Women's cross-country, which had also previously been a club team, was added in 1977. (UMF

21 114)

22

When the NCAA agreed to sponsor championships in certain women's sports in 1981, UC

23 Davis switched its membership in the AlAW to the NCAA, in regard to women's intercollegiate

24 athletics. (UMF 115) The only women's varsity sport that has been eliminated at UC Davis since the

25 passage of Title IX is field hockey. The field hockey team last competed in the 1982/83 school year. It

26 was dropped as a varsity sport because all other schools in the conference that UC Davis was in at the

27 time had dropped the sport, causing a lack of competition. There was also a decrease in interest in that

28

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1 sport at the high school level. In the fall of 1983 UC Davis replaced field hockey with varsity women's

2 soccer, which was a much more popular sport at the high school and collegiate level. (UMF 116)

3

In the mid 1990's the entire University of Califomia system was undergoing severe budget cuts.

4 These budget cuts threatened to significantly affect the intercollegiate and recreational sport programs

5 on campus. A vote was put to the student body via a referendum process in 1994 and as a result, an

6 initiative called the Student Activities and Services Initiative (SASI) was passed. The effect of the

7 SASI was to increase student fees, with the extra money being used for intercollegiate athletics,

8 intramural and club sports, recreation programs, the Equestrian Center, the Student Health Center, and

9 the Women's Resource and Research Center. (UMF 117)

10

As a result of the passage of SASI, there were funds available to expand the intercollegiate

11 athletics program. In the spring of 1995, consideration was given to adding new varsity teams for

12 women. The campus had a formal written process for evaluating information relating to new varsity

13 teams and for obtaining proposals from students or other persons who were advocating on behalf of a

14 particular sport. (UMF 118) Proponents of five sports (water polo, crew, badminton, lacrosse and field

15 hockey), all of which had existing club sport teams except badminton, submitted proposals for

16 elevation to varsity status. After receiving input from various student athlete groups, the Director of

17 Intramural and Club Sports, and the New Women's Sports Advisory Committee the Acting Athletic

18 Director (Keith Williams) recommended that women's water polo, lacrosse, and crew be elevated to

19 varsity status. These three sports became varsity sports in the fall of 1996. (UMF 119)

20

Indoor and outdoor track are two different sports. There are different requirements for them

21 under NCAA regulations. When Deanne Vochatzer, the head coach for women's track and field at UC

22 Davis started in her position in 1991, the campus only had an outdoor track team. In her opinion, the

23 lack of an indoor track team adversely affected her ability to recruit student-athletes to UC Davis.

24 Vochatzer met with the Athletic Director in order to make a proposal and to obtain authorization to

25 have women student-athletes compete in indoor track events. She received the authorization to do so as

26 long as the cost of entering such events came out of the outdoor track budget. (UMF 120) Women first

27 started competing in indoor track events in approximately 1994, but the sport was not actually

28 established as a team at UC Davis until 1999. At that time, there were a sufficient number of student-

21
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1 athletes to meet the NCAA minimum requirements for an indoor team. The indoor track events that the

2 women competed in prior to 1999 and continuing through today were and are all head-to-head

3 competitions with other Division II (now Division I) teams. (UMF 121)

4

In 2003, another call was made for proposals to consider adding a new women's varsity sport.

5 Again, this was done pursuant to a formal process with written guidelines that specifically set forth the

6 process and the criteria used to select a new sport. Those criteria include (l) the overall impact on

7 gender equity; (2) interest level; (3) sport sponsorship and available competition; and (4) facilities.

8 Proposals were submitted on behalf of five women's sports: bowling, field hockey, golf!, horse polo

9 and rugby. (UMF 122) Ms. Gill-Fisher chaired a committee consisting of a representative of Athletic

10 Administration Advisory Committee, a representative of the Student Athlete Advisory Committee, and

11 a representative of the Sports Club Council. The committee met with a representative of each sport that

12 submitted a proposal, reviewed the written proposals, and then summarized the information. (UMF

13 123) This information was passed on to Athletic Director Warzecka who reviewed it and made the

14 recommendation that women's golf be added as a varsity sport. The reasons he recommended golf

15 over the other sports proposed are (1) golf is a championship sport in the Big West Conference and per

16 Conference rules, UC Davis was required to add sports that are already part of that conference before

17 adding non-conference sports; (2) women's golf was offered by 451 universities nationally, which

18 reflects the interest level in the sport; (3) the NCAA has a golf championship in all three divisions; (4)

19 UC Davis received many inquiries from female high school students who were interested in golf; and

20 (5) the local community had indicated a strong support of golf, including use of the El Macero Country

21 CIub in Davis. Funding for this additional team came from the intercollegiate athletics budget. In

22 addition, start-up costs and additional funding were provided by supporters of women's golf and

23 alumni donations. Warzecka set forth the basis for his recommendations in a memorandum to the Vice

24 Chancellor for Student Affairs. (UMF 124) Since an NCAA championship existed for women's golf,

25

26

Plaintiffs have made much ado about the fact that the proposal for women's golf was prepared by Associate

Athletic Director Robert Bullis, rather than by a student. There is no requirement that such proposals be submitted by a

27 particular person. The 1996 Clarification refers to an institution's response to requests by students or others for addition or

elevation of sports. Mr. Bullis supervised the sport of men's golf. There was no women's golf club team (golf club teams

28 are rare because of the need for a golf course on which to play and practice), so it made sense for Mr. Bullis to submit the

proposal. (See Exhibit G, Declaration of Robert Bullis, 1I2.) The fact that a proposal was submitted by Mr. Bullis has no

importance to a prong two analysis. (Exhibit J, Declaration of Christine Grant, 1115.)

22
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1 it was not unusual to add it as a varsity sport in the absence of an existing club sport team. (UMF 125)

2 Women's golf was selected as the new varsity sport. Kathy DeYoung was appointed as the head coach

3 for the team in 2004. She spent the 2004/2005 school year developing and recruiting a team, and the

4 team started competition in the 2005/2006 school year. (UMF 127)

5

Every Court that has decided the issue of prong two compliance has made its decision based on

6 facts pertaining to the history of the women's athletic program in issue. The Courts of Appeal have

7 recognized that a determination by a District Court on the issue of whether a school is in compliance

8 under one of the three prongs is a judgment call which will not be disturbed absent a finding of

9 unreasonableness. Cohen v. Brown University [Cohen II}, 991 F.2d. 888, 903 (1st Cir. 1993). The facts

10 relating to the addition of new varsity sports for women at UC Davis are not in dispute. In the early

11 1970's there were seven teams. A team was added in 1974 and another in 1977. Field hockey was

12 discontinued after the 1982/83 season and replaced by soccer in the fall of 1983. Three sports were

13 added in 1996. Indoor track was added in 1999. Golf was added in 2004 and began competing the

14 following year. This pattern shows a continuing expansion of the women's intercollegiate program, and

15 is consistent with the hypothetical set forth in OCR's 1996 Clarification, particularly in regard to the

16 changes made between 1996 and 2005. While it is true new sports were not added as frequently prior

17 to 1996, the law does not require an institution to "leap to gender parity in a single bound." Cohen v.

18 Brown [Cohen II}, supra at p. 898. Plaintiffs did not enter UC Davis until 1998 at the earliest (NG) and

19 2001 at the latest (MANCUSO). To the extent they attempt to argue the campus was not in compliance

20 in the 1970's and 1980's, they will be unable to show that had any impact on them. See Pederson,

21 supra at p. 907 [LSU's violation of Title IX did not personally impact three of the plaintiffs.]

22

Both sides in this case have expert witnesses on the issue of whether UC Davis complies with

23 prong two. Defendant contends that based on the facts set forth above alone, the Court can determine

24 whether UC Davis complies under prong two. However, the expert's positions may assist the Court in

25 coming to a conclusion.

26

The UNIVERSITY's expert is Dr. Christine Grant. Dr. Grant served as the Women's Athletic

27 Director at the University ofIowa between 1973 and 2000. She holds a Ph.D. and a bachelor's degree

28 in physical education, and has taught extensively on the issue of Title IX and gender equity in athletics.

23
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1 She has coached at the high school, collegiate, and international levels. (UMF 13 3) Dr. Grant has

2 served as the President of the Association for Intercollegiate Athletics for Women, which was the

3 governing body for women's intercollegiate athletics before the NCAA. She also served as a member

4 of the Board of Directors of the National Association of Collegiate Women Athletic Administrators

5 (NACWAA), and then as NACWAA's President between 1987 and 1989. (UMF 134) Dr. Grant has

6 received numerous awards and recognitions for her work in women's intercollegiate athletics, has

7 published extensively on the subject, and has been consulted by the Department of Education on Title

8 IX issues. She has served as and qualified as an expert on Title IX issues in numerous cases including

9 the seminal case of Cohen v. Brown University. (UMF 135)

10

Plaintiffs' expert is Dr. Donna Lopiano who was, until recently, the Chief Executive Officer of

11 the Women's Sports Foundation. Dr. Lopiano usually finds herself on the same side of a case as Dr.

12 Grant. Their opinions on many issues in this case are harmonious. They agree that a school has many

l3 options regarding compliance with Title IX. There is nothing in Title IX that mandates that a college or

14 university have every sport available for both genders. (UMF 138) They agree there is nothing in the

15 Regulations or Clarifications pertaining to Title IX that delineates how often a school must add a new

16 sport in order to comply under prong two. (UMF 139) They both disagree with the prong two

17 hypothetical set forth in the 1996 Clarification to the extent it indicates the addition of a new team

18 every six years is acceptable for a school that is not in compliance on prong one. Grant and Lopiano

19 believe that a more reasonable span is two to three years. (UMF 139)

20

In Dr. Grant's opinion, UC Davis is in compliance under prong two because of its demonstrated

21 history and practice of program expansion. She focuses on the fact that UC Davis voluntarily added

22 three new women's varsity sports at one time in 1996 (crew, lacrosse and water polo), followed by the

23 addition of women's indoor and women's golf. This qualifies as a history of program expansion that

24 complies with prong two. (UMF 142) UC Davis was under no obligation to add three sports at one

25 time -- it could have elected to phase in each new sport every six years (if OCR's example is accepted)

26 or every three years (if the positions of Lopiano and Grant are accepted). Instead, it voluntarily

27 established the three new sports at the same time, significantly expanding participation opportunities

28 for women. Dr. Grant is of the opinion that the addition of the three sports in 1996 should be viewed

24
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1 the same as if it had added one new sport in 1996/96, one in 1998/99, and one in 2001102. To do

2 otherwise would have the result of penalizing prong two schools that add more than sport at once.

3 (UMF 143)

4

Lopiano rejects this approach and contends the addition of three sports at once has the same

5 effect as the addition of one sport. Her position is contrary to purpose of Title IX. If Lopiano's

6 approach is followed, schools that rely on prong two for compliance will be strongly discouraged from

7 adding more than one new women's sport at any point in time because they will lose the ability to rely

8 on the single addition of multiple sports as evidence of a history of program expansion. Instead, those

9 schools will add the new sports one at a time, spaced out over two to three year intervals, which will

10 result in the unnecessary delay of program expansion and the unnecessary loss of competitive

11 opportunities for young women, the majority of whom have only a four year window in which to

12 compete at the varsity level. (UMF 144) There is nothing in the Title IX statute, Regulation or

13 Clarification that delineates how a school can comply under prong two. To the contrary, the OCR has

14 specifically chosen to avoid a "cookie cutter" approach and instead allows flexibility. Dr. Grant's

15 approach is consistent with OCR's approach.

16

Dr. Grant also found that UC Davis has a continuing practice of program expanSIOn, III

17 addition to a history of expansion, based on the following: (1) the campus has a formalized procedure

18 for considering proposals to add new varsity sports, including a list of the criteria used to assess the

19 proposals and the process that must be followed; (2) this procedure has been used to determine which

20 new women's sports should be added; (3) UC Davis established a Title IX Coordinator position and a

21 Title IX Workgroup in the 1980's, at a time when most universities were ignoring Title IX; (4) UC

22 Davis has had an Athletic Administrative Advisory Committee and a Coach's Advisory Committee for

23 many years indicating a commitment to broad-based input on athletics issues; (5) the campus conducted

24 self-assessments on its women's athletics program in the 1980's, even when Title IX was not being

25 enforced at all because of the Grove City College v. Bell case; and (6) the campus has a Title IX

26 grievance process available to students. All of these factors are indicative of an institution that is

27 dedicated to the ongoing expansion of athletic opportunities for women. (UMF 145)

28

Plaintiffs contend prong two carmot be used when a school has eliminated a team. This is not

25
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1 correct. Per the 1996 Clarification, "in the event that an institution eliminated any team for the 2 underrepresented sex, OCR would evaluate the circumstances surrounding this action in assessing

3 whether the institution could satisfy part two of the test." One of the hypothetical examples of prong 4 two compliance in the 1996 Clarification includes a school that eliminates a team for a valid reason.

5 UC Davis eliminated women's field hockey because of a lack of competition and a lack of interest in 6 the sport at that time. Field hockey was replaced by soccer, which was much more popular with

7 students. (UMF 116) Unlike LSU, which dropped women's softball "without a credible explanation"

8 for its actions and without replacing it with another sport, UC Davis had a rationale for its actions.

9 Certain sports can decrease in popularity, which in turn leads to a lack of student interest and a

10 corresponding lack of available competition. (UMF 147) The fact that UC Davis dropped varsity field

11 hockey and replaced it with women's varsity soccer is not indicative of a failure to demonstrate

12 program expansIOn.

13

In a prong two analysis, another issue that must be considered is whether (notwithstanding a

14 history of program expansion) there has been a decrease in the number of participation opportunities.

15 The presence of a decrease does not preclude reliance on prong two; rather, the reason for the decrease

16 must be examined. The OCR will consider a valid reason for a decrease. (UMF 148) When first

17 approached about testifying for UC Davis, Dr. Grant noted there were fluctuations in the number of 18 women participating in intercollegiate athletics at UC Davis between 1995 and 2004 per the Equity in

19 Athletics Disclosure Act (EADA) reports. She inquired as to the reason and was satisfied with the 20 information provided which was that the campus had eliminated "B" or junior varsity water polo and

21 lacrosse teams because of lack of available competition. Dr. Grant, who has considerable experience as

22 an Athletic Director, is well aware of the problem of lack of available competition for intercollegiate

23 junior varsity teams, and was surprised to find that UC Davis maintained its JV teams for as long as it

24 did. (UMF 149)

25

The experience of the water polo team demonstrates this point. When the water polo team was a

26 club team, in addition to the "A" team, it also had a "B" or secondary team which was equivalent to a

27 JV team. After water polo became a varsity sport, it became increasingly difficult to find competition

28 for the "B" team. Other schools within UC Davis' geographic competition area were dropping their

26
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1 junior varsity teams and junior colleges did not want to compete with a Division II team. In addition to 2 lack of competition, it became logistically challenging for the head coach try to maintain practices for 3 both teams which in turn adversely affected the quality of the coaching and experience that the student4 athletes were receiving. (UMF 128) At the end of the 2001 season, head coach Jamey Wright, with the 5 agreement of the leaders of the "B" water polo team, worked with the "B" team members to reestablish 6 the water polo club team and have those athletes compete at the club level where there was available 7 competition for them. As a result, the number of student-athletes on the roster for the varsity water polo 8 team changed from a number in the forties to a number in the high twenties or low thirties. In the

9 coach's opinion, the quality of the varsity experience for the members of the team increased as a result

10 of the change in the roster size, as he is able to spend more time coaching each athlete. (UMF 129)

11

Notwithstanding the fluctuations in the participation numbers, in less than one decade (1995-

12 2004), UC Davis increased women's participation in varsity sports from 32% to 50%, despite being

13 challenged by the fact that the female undergraduate population has increased at greater rates than the

14 male undergraduate population. In Dr. Grant's expert opinion, this is good progress and indicative of

15 continuous program expansion under prong two. (UMF 150)

16

In conclusion, UC Davis has exercised its right to comply with Title IX under prong two and

17 has demonstrated a continuing history of program expansion at a pace that is compliant with the statute,

18 as well as a continuing practice of expansion. Accordingly, Plaintiffs' ineffective accommodation claim 19 is without basis.

20

VI.

21

UC DAVIS DID NOT "ELIMINATE" A WOMEN'S WRESTLING TEAM OR

OPPORTUNITIES FOR WOMEN TO TRY OUT FOR THE WRESTLING TEAM
22

23

Plaintiffs claim UC Davis violated Title IX and eliminated their opportunity to participate in

24 wrestling by requiring them to try out for a spot on the team roster under the same terms and conditions

25 as male students. Their argument is based on the fact that Burch did not require MANSOURIAN or NG

26 to do so. Burch's preferential treatment of MANSOURIAN and NG did not entitle them, or

27 MANCUSO (who entered Davis after Burch departed) to a guaranteed spot on the roster for each year

28 they were undergraduate students.

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1

Coach Zalesky requires hopefuls for the wrestling team to demonstrate they have the skill and

2 ability necessary to wrestle at the NCAA Division I level before they will be given a place on the team.

3 Competition is the cornerstone of intercollegiate competition -- it begins with team try-outs. The head

4 coach of an intercollegiate team has the sole responsibility of determining which students have the

5 skills necessary to earn a spot on the team. In wrestling, that determination is made by conducting

6 wrestle-offs. (UMFs 10,49,51,109) Trying out for a team is an integral part of varsity athletics. Not

7 everyone who wants to be on a team can be. (UMF 109) The privilege of being a member of a varsity

8 team is earned via demonstration of the necessary skill and ability to compete at the varsity level.

9 Those who do not possess the skills at the varsity level may pursue their athletic interests at the club

10 sport level. (UMF 109) The club sport program at UC Davis is very robust. Club teams compete at

11 the Recreational, Competitive II and Competitive I levels. Recreational teams focus on instruction and

12 recreational activities on campus. Competitive II teams travel and compete against teams from other

13 schools and amateur organizations. Competitive I teams also travel and compete with teams from other

14 schools, but in a format leading up to a national championship. Similar to varsity sports, most

15 Competitive I and Competitive II club sports belong to a conference. In some sports, such as co-ed

16 cycling, the Competitive I club team is equivalent to a varsity team in regard to the level of competition

17 because it is the highest level of intercollegiate competition offered for that sport. (UMF 110, Ill)

18 Any enrolled student may participate in a club sport. (UMF 112) Thus, there are many participation

19 opportunities available for those who have not reached the elite level of skill that is necessary for

20 varsity intercollegiate athletics.

21

Coach Zalesky'S approach to selection of team members is not only consistent with the method

22 followed almost universally by coaches whose teams exist in the highly competitive environment of

23 intercollegiate athletics but also with the Plan approved by the OCR: "The coach of the wrestling team

24 will select those athletes eligible for the wrestling team's final squad list who demonstrate the highest

25 skill and competitive ability in their weight classes." (UMF 108, Exhibit 24) The reason it was

26 necessary to put this basic premise into writing was because Burch (whom Plaintiffs hold up as their

27 champion) did not require women to tryout for the team, nor did he hold them to the same standards as

28 males who wanted to wrestle. (UMF 48) In his opinion, the women were not competitive at the

intercollegiate level. (UMFs 48, 50) Burch was willing to allow them to practice and to compete in an

28
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1 occasional open tournament, but his willingness to walk the walk rather than just talk the talk regarding

2 women ended at that point. He did not provide the women with uniforms, nor did they compete in

3 regular intercollegiate competition (dual meets) as the male wrestlers did. He did not offer the women

4 any scholarship money, except for a belated attempt to do so after he found out that his contract was not

5 going to be renewed. (UMFs 33, 37, 38, 53, 58, 59, 63, 69) When Warzecka told Burch (and the

6 coaches of the other men's teams) that they must comply with roster limits in the fall of 2000, Burch

7 did not allot any of his limited roster spots to the women, even after he was given four more spots at his

8 request. (UMFs 87, 90) The reason Burch did so is understandable; NO and MANSOURIAN did not

9 even have the skills to earn a spot on the team, no less compete against UC Davis' wrestling rivals.

10

While Burch may have been willing, prior to the enforcement of roster management, to have

11 female students on the team who could only compete at the open tournament level, Zalesky is not. The

12 UC Davis wrestling team participates in very few open tournaments. Its primary form of competition is

13 dual meets with other Pac-lO schools and the NCAA championships. Coach Zalesky would never

14 recruit or otherwise give a place on the varsity roster to a student, regardless of gender, who was solely

15 interested in participating in open tournaments. Although all wrestlers selected for the team may not

16 always compete (such as when they are red-shirting), it is his expectation that every wrestler selected

17 for the team will at some point be able to viably compete in dual meets and championships. (UMFs 12,

18 13) Those students who try out for the team but cannot demonstrate the necessary level of wrestling

19 skill are cut, regardless of their gender. (UMF 83)

20

Burch's approach to the women did not bind the campus or his replacement, nor does Title IX

21 require that a school treat females preferentially as opposed to equally. There is nothing in 34 CFR

22 106.41 (b) or any case interpreting Title IX that requires a coach to place students on a varsity team

23 simply because they are female and want to participate in the sport. Title IX does not mandate that

24 women be treated preferentially, nor does it require that women who try out for a team that is also

25 populated by men be allowed to do so under differential criteria. (UMF 161)

26

The drafters of Title IX and its Regulations recognized there are differences between males and

27 females and that those differences may affect the ability of members of one sex to compete with

28 members of the other sex. 34 CFR part 106.4I(b) states that schools may operate sex-segregated teams

29
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1 for members of each sex where selection for membership on the team is based on competitive skill or

2 where the activity involved is a contact sport. Despite the fact that OCR considers wrestling to be a

3 contact sport, UC Davis has always allowed women to tryout for the team. (UMF 9) Per subsection

4 (b), if a school has a team for one sex but not the other and athletic opportunities for that sex have 5 previously been limited, "members of the excluded sex9 must be allowed to try-out for the team offered

6 unless the sport involved is a contact sport." There is no requirement that members of the "excluded

7 sex" be placed on a team simply because they are female, or because they cannot otherwise earn a spot

8 on the team based on skill and ability. All that is required is an opportunity for a student to show that

9 she or he has the necessary skill and ability, in the opinion of the coach, to warrant inclusion on the

10 team. Judge Roberts of the Western District of Missouri summed it up succinctly in the context of a

11 equal protection argument arising from a girl's desire to tryout for a boys' middle school football team:

12 "Nichole Force obviously has no legal entitlement to a starting position on the Pierce City Junior High

13 School eighth grade football team, since the extent to which she plays must be governed solely by her

14 abilities, as judged by those who coach her. But she seeks no such entitlement here. Instead she seeks

15 simply a chance, like her male counterparts, to display those abilities. She asks, in short, only the right

16 to try." Force v. Pierce City R-VI School Dist., 570 F.Supp.1020, 1031(D. Mo. 1983). Plaintiffs and all

17 other wrestling team hopefuls were given the right to try.

18

There is no statutory or constitutional right to participate in college athletics or to be given a

19 spot on a particular team simply because a student desires to participate in that sport. Miami University

20 Wrestling Club v. Miami University, 302 F.3d 608, 615 (6th Cir. 2002); Burrows v. Ohio High Sch.

21 Athletic Ass 'n, 891 F.2d 122, 125 (6th Cir. 1989). Under Plaintiffs' theory, they were absolutely

22 entitled to a place on the intercollegiate wrestling team throughout their college careers because the

23 former coach permitted them to practice with the team and because they participated in one open

24 competition. Title IX does support their claim of entitlement. Participation in intercollegiate athletics

25 is a privilege, not a right. Lesser v. Neosho County Comm. College, 741 F.Supp. 854, 861.

26

Plaintiffs also argue females should not be counted under a team's roster cap or maximum.

27

28 This reference most often applies to women, not men.

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1 Roster management or "capping" is used for both budgetary and gender equity purposes. (UMF 85)

2 There are no established limits on caps; rather, the decision is again left up to the institution. (UMFs 3 105, 106) While the practice of limiting the number of males on a team for gender equity purposes

4 passes constitutional muster (see Neal v. Trustees, supra) there is nothing in Title IX or its regulations

5 that requires a school to put otherwise unqualified women on a varsity team over and above the roster

6 maximum established for the team. Roster management is based on the understanding that there is a

7 limit to the number of students who can participate on a varsity team -- not everyone who wants to do

8 so can be a member of a varsity team. By its nature, intercollegiate athletics is not an "all comers"

9 event. The size of a team is determined by a competitive process that narrows down the squad to the

10 size that is right for the institution. (UMF 106) Athletic Director Warzecka did not care whether the

11 wrestling coach filled the roster spots with males or females, so long as he did not exceed the

12 maximum. If UC Davis allowed women who do not have the skill or ability to earn one of the roster

13 spots to be on the intercollegiate team nonetheless, it would be discriminating against males who are

14 not given a roster spot because they too lack the requisite abilities. (UMF 88)

15

Finally, to the extent Plaintiffs argue that a separate women's wrestling team existed at UC

16 Davis and was later "eliminated", this is simply not borne out by the facts. There has never been a

17 separate schedule of competition for women. There has never been a separate media guide for a

18 women's wrestling team. The media guides for the wrestling team consistently described women's

19 wrestling as having unofficial status. (UMFs 19,20,21,2224) The women never wrestled in a UC

20 Davis uniform or competed in dual meets with other members of the conference. At most, they

21 participated or attempted to participate in a fundraiser tournament once a year. (see above) The UC

22 Davis wrestling team was not a mixed varsity team as the women did not compete against other varsity

23 teams. A mixed gender team is one that has both male and female members, and both male and female

24 members of the team compete against male and female members of comparable teams from other

25 schools. (UMF 159) The situation that existed during the Burch years was that a few female students

26 participated in a very limited manner with the other members of the team, all of whom were male. That

27 limited participation did not morph into a separate team for women. Since there was no separate team,

28 there is no basis to the claim that UC Davis eliminated a women's wrestling team.

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1

VII.

2

THERE IS NO EVIDENCE OF INTENTIONAL

3

DISCRIMINATION OR DELIBERATE INDIFFERENCE BY THE UNIVERSITY

4
A Title IX plaintiff may not recover damages absent proof of intentional discrimination.
5
Alexander v. Sandoval, 532 U.S. 275, 280-81, 121 S. Ct. 1511, 1516 (2001); Ferguson v. City of
6
Phoenix, 157 F.3d 668, 674-75 (9th Cir. 1998).10 Since Plaintiffs have dismissed their class and 7 injunctive claims (and only damage claims remain), fuey must provide sufficient evidence that any 8 alleged Title IX violations were "intentional" in order to proceed to trial. See Horner ex reI. Horner v. 9 Kentucky High Sch. Ath. Ass'n, 206 F.3d 685,696-97 (6th Cir. 2000) (granting summary judgment on 10 Title IX claim due to lack of evidence of intentional discrimination). In the alternative, they may prove 11 that an educational institution is "deliberately indifferent" to a plaintiffs Title IX rights. Gebser v.

12 Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290,118 S. Ct. 1989, 1999 (1998). Deliberate indifference

13 occurs where a defendant's actions are "clearly unreasonable in light of the known circumstances."

14 Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 139 (9th Cir 2000). There is no evidence that

15 representatives of the UNIVERSITY acted with the intent to discriminate against Plaintiffs or that their

16 actions were "clearly unreasonable in light of the know circumstances."

17 A.
18 19

The UNIVERSTlY Acted Promptly Upon Receiving Notice of the OCR Complaint and Resolved the Matter to the Satisfaction of OCR.
When the UNIVERSITY learned of the OCR complaint filed by MANSOURIAN and NG, it

20 quickly took steps to investigate the accusations and, with the guidance of the OCR, develop a

21 resolution. (UMFs 94-104, 107-108) The resolution did not include any finding by the OCR that the

22 UNIVERSITY violated Title IX, and resulted in a Voluntary Resolution Plan which specifically

23 delineated that male and female students would be encouraged to compete for a position on the

24 intercollegiate team, and that the coach would select those students who demonstrate the highest skill 25 and competitive ability in their weight class. (UMF 108) This Court may consider the letter issued by

26

27 10

Both Sandoval and Ferguson discuss the requirement of intentional discrimination in the context of Title VI.

With one inconsequential exception, Title VI and Title IX use identical language to describe the benefited class. Cannon v.

28 University of Chicago, 441 U.S. 677, 694-96, 99 S. Ct. 1946, 1956-57 (1979). Accordingly, the statutes are interpreted

consistently. Barnes v. Gorman, 536 U.S. 181, 185 122 S. Ct. 2097,2100 (2002).

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1 the OCR (Defendant's Exhibit 24) and its conclusions, along with the Voluntary Resolution Plan.

2 Nelson v. Pima Community College, 83 F.3d 1075, 1080 (9th Cir. 1996). In the fall of 2000 and 3 thereafter, UC Davis complied with the Plan by having Coach Zalesky conduct try outs and select those

4 students who demonstrate the highest skill and competitive ability for membership on the

5 intercollegiate team. (UMFs 82-83) Compliance with a Plan approved by the OCR carmot be used as

6 the basis for a claim of intentional discrimination. Grandson v. Univ. ofMinn., 272 F.3d 568, 576 (8th

7 Cir 2001). Holding try-outs and selecting the most skilled athletes for the team is an approach that 8 courts have recognized as valid and fair. See Pederson v. LSU, supra at p. 906 ["Whether the Pinedas 9 are in that group [who make the team] depends, in part, upon the level of competition among the 10 athletes who desire to get on the team and the subjective evaluations made by the university"]' The fact

11 that Plaintiffs do not agree with the plan accepted by the OCR also does not equate to deliberate 12 indifference.

13 B. Declination of the Request for Separate Roster Caps Was Reasonable.

14

UC Davis declined Plaintiffs' request to create separate roster caps for males and females on the

15 wrestling team. This is not evidence of intentional discrimination or deliberate indifference. Neal v.

16 Board of Trustees ofthe California State University, supra, is the Ninth Circuit's imprimatur for the use

17 of roster management. The problem arose in this case not because of the use of roster management, but

18 because Burch did not tell MANSOURIAN and NG in the fall of 2000 that roster management for the

19 wrestling team was in effect and that he had not allotted any of the limited roster spots to them. (UMF

20 92) II The proposal posited by Plaintiffs for a "separate roster cap" for women is nothing more than a

21 request for preferential treatment, something that is not required by law. Coalition for Economic Equity

22 v. Wilson, 122 F.3d 692,708 (9th Cir. 1997) ["Impediments to preferential treatment do not deny equal

23 protection. ... While the Constitution protects against obstructions to equal treatment, it erects

24 obstructions to preferential treatment by its own terms"]. The UNIVERSITY considered Plaintiffs'

25 request, researched the issue, and concluded that the request was not well founded. (UMF 102-103)

26

27
11

The dispute between Burch and Warzecka about what each said, or did not say during their meeting in the fall of

28 2000 about the status of the women wrestlers is not material for the purpose of the sole remaining issue in this case. It is

undisputed that even though they were not on the roster for that season, to some extent MANSOURIAN and NG continued

to come to practices.

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1 c. There is Insufficient Interest to Establish a Women's Varsity Wrestling Team

2

That UC Davis has not created a women's varsity wrestling team is also not evidence of

3 intentional discrimination or deliberate indifference. The fact that a few female students were interested

4 in varsity wrestling does not mandate that UC Davis create a team for them. As stated by the Women's

5 Sports Foundation, "Remember, if a complaint is filed, the investigator must find if there is interest by

6 the underrepresented sex in adding opportunities. It is not enough for you and one or two friends to scry

7 you want to play soccer -- there have to be enough females interested to form a team." (UMF 151)

8 The issues of interest level and available competition playa large role in Title IX compliance. Per the

9 1979 Clarification, institutions are not required to upgrade teams to intercollegiate status or otherwise

10 develop intercollegiate sports absent a reasonable expectation that intercollegiate competition in the

11 sport will be available within the school's normal competitive regions. Federal Reg. Vol. 44, No. 239,

12 p. 7I 418. The 1996 Clarification states that the OCR will consider whether there is unruet interest in a

13 sport, sufficient interest to sustain a team in the sport, and a reasonable expectation of competition for

14 the team.

15

There have never been more than a few women who wanted to participate on the wrestling

16 team. (UMF 45) When MANSOURIAN and NG met with Vice Chancellor Franks in the spring of

17 2001, they asked if the campus would waive the minimum number of students required to form a club

18 sport team (l0), leading to the conclusion the interest level was low enough that even that minimum

19 requirement could not be met. (UMF 104) The "indifference" appears to exist on the part of female

20 students who purportedly have an interest in a varsity wrestling team. When UC Davis asked for

21 proposals for addition of new women's varsity sports, neither Plaintiffs nor any other students or

22 representatives submitted one on behalf of women's wrestling. (UMF 119, 122) Surveys of freshmen

23 students conducted by UC Davis in 2004 and 2005 showed almost non-existent interest in wrestling at

24 the intercollegiate level by female students. (UMF 132)

25

Even though wrestling is an "individual" sport (meaning that wrestlers compete on a one-on-

26 one basis in each contest) this does not mean that a school has an obligation to establish a varsity team

27 for just a handful of students. In Roberts v. Colorado, supra at fn. 10, the Court dismissed the notion

28 that one or two students could demand the creation of a varsity team. "The Investigator's Manual

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1 addresses and obviates the possibility that one talented softball player could force the creation of an

2 entire team. The Manual instructs investigators ... to review 'whether the institution failed to

3 accommodate 'expressed interest,' for example, athletes of the underrepresented sex participating in a

4 club sport express interest in intercollegiate ... competition or sufficient numbers ofindividuals to form

5 a team request that a sport be offered." (Emphasis in original.) Similarly, in Pederson v. LSU, the

6 Court stated "the existence of one or two students with interest and ability to participate in sports likely

7 would not constitute a basis for a claim of ineffective accommodation and thus, violation of Title IX."

8 Id. at p. 906. See also Wieker v. Mesa County Valley School, 2007 U.S. Dist. LEXIS 11956, *25-26

9 (D. Co. 2007) [summary judgment granted for school because plaintiff failed to demonstrate sufficient

10 interest in volleyball to sustain a team].

11

Although a men's wrestling team at an NCAA member school may have women wrestlers on it,

12 the NCAA does not sponsor women's wrestling as a sport. (UMF 1) The NCAA has identified certain

13 sports for women as "emerging sports." The criteria for consideration as an NCAA emerging sport are:

14 (a) the activity in issue must meet the definition of a sport, there must be scheduled individual or team

15 head-to-head competitions (at least five) within a defined competitive season, and standardized rules

16 ratified by official agencies or governing bodies; (b) there must be 20 or more varsity teams and/or

17 competitive club teams that currently exist on college campuses for the sport; (c) data must exist that

18 demonstrates support for the sport such as collegiate or intramural sponsorship, high school

19 sponsorship, non-scholastic competitive programs and associational and organizational support; (d) a

20 demonstrated understanding that if the sport is identified as an emerging sport, all NCAA member

21 institutions wishing to sponsor the sport will abide by NCAA rules and regulations; (e) a proposal

22 setting forth suggestions for championship rules and a format for the sport must be submitted; and (f)

23 10 letters of support from the president or athletic directors of member institutions confirming they will

24 sponsor the sport as an emerging sport must be submitted; the letters must be dated within one year of

25 the submission of the proposal requesting identification as an emerging sport. Archery, badminton,

26 equestrian, rugby, squash, synchronized swimming and team handball are emerging sports. Women's

27 wrestling has never been included on the list of emerging sports, nor has any organization or person

28

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1 submitted a proposal meeting the above criteria for consideration of women's wrestling as an emerging

2 sport. (UMFs 2-4)

3

Neither the NCAA nor the NAIA offers a women's wrestling championship. (UMF 156) The

4 head coach of the wrestling team has never seen a woman compete for any of the teams that UC Davis

5 regularly competes against in its conference. (UMF 154) To the knowledge of Defendant's expert,

6 there are only approximately five women's collegiate wrestling teams in the country. Plaintiffs' expert

7 does not know what UC Davis' normal geographic competition is for the sport of wrestling, nor does

8 she know of any intercollegiate athletic conferences that sponsor women's wrestling. (UMF 153) An

9 important consideration on the issue of adding new sports is whether the sport is sponsored by a

10 conference, as that guarantees a number of scheduled matches. (UMF 126) The one collegiate

11 women's wrestling team that exists at a California college is a club team. (UMFs 155) This does not

12 constitute a reasonable expectation of intercollegiate competition at the varsity level.

13

While there has been a gradual increase in the number of female students in California who

14 participate in wrestling at the high school level, those numbers pale in comparison to high school

15 participation in other sports. For example, according to the California Interscholastic Federation

16 website, in 2001 out of a total of 271,214 female high school students, 752 participated in wrestling

17 while 4,588 high school girls participated in golf that year. In 2005, 1,230 girls participated in

18 wrestling, as compared to 5,972 in golf. (UMF 6) The decision as to which sports a school will sponsor

19 lies solely within the discretion of the administration and/or the Athletic Director. (UMF 152)

20 In the past twelve years, UC Davis has elected to add water polo, rowing, lacrosse, indoor track and

21 golf because there is sufficient interest in those sports and regular competition is available. (UMF s 119,

22 122, 123, 124) Due to the lack of sufficient interest to field a team and the lack of available regular

23 competition (as opposed to a few open tournaments), the campus has chosen not to add women's

24 wrestling as a varsity sport at this time.

25

In conclusion, the UNIVERSITY's handling of the issue of the women wrestlers does not

26 constitute intentional discrimination or deliberate indifference. UC Davis is not mandated to maintain

27 parallel sports for both sexes. "In the selection of sports, the regulation does not require institutions to

28 integrate their teams nor to provide exactly the same choice of sports to men and women. 44Fed. Reg.

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1 Vol. 44, No. 239, p. 71417-8. Intentional discrimination is demonstrated where the defendant intended

2 to treat women differently. Pederson v. LSU, supra at p. 881. UC Davis treated males and females 3 exactly the same in regard to earning a place on the varsity wrestling team. Those students who

4 possess exemplary skills are placed on the team. Those students whose skill levels are not at the varsity

5 level may participate at the club sport level, or chose not to wrestle at all.

6

VIII.

7

PLAINTIFFS' CLAIM OF ENTITLEMENT TO DAMAGES IS

8

BARRED BECAUSE OF THEIR LACK OF NOTICE TO THE UNIVERSITY

9

The Supreme Court has held that under Title IX, an institution receiving federal funding may

10 not be held liable for damages unless an official of the institution who has the authority to take

11 corrective action was given actual notice of the specific Title IX violation alleged and was deliberately

12 indifferent to it. Gebser v. Lago Vista Indep.. School Dist., 524 U.S. 274, 118 S. Ct. 1989 (1998). The

13 Title IX statute (20 U.S.c. § 1682) prohibits the OCR, as the enforcing agency, from taking action

14 against a recipient of federal funds until the OCR has advised the recipient of its failure to comply with

15 section 901 and has determined that compliance cannot be obtained by voluntary means. In Grandson

16 v. Univ. ofMinn., supra, the Court upheld the dismissal of a Title IX damages claim because there was

17 no evidence the plaintiffs gave prior notice of their complaints to university officials, that the university

18 had a reasonable opportunity to rectify the alleged violations, or that the officials were deliberately

19 indifferent to the allegations. In reaching its conclusion, the Grandson Court used the same reasoning

20 as the Supreme Court. Recovery of damages for an alleged Title IX violation is the result of a

21 judicially implied system of enforcement, while the OCR's authority to enforce is expressly stated in

22 the statute. It would be unsound to allow for the recovery of damages without notice and an

23 opportunity to rectifY, while the same is required by the express wording of the statute.

24

MANSOURIAN and NO admitted in the OCR complaint they filed in late April 2001 that they

25 had not tried to resolve their complaint through the school's internal grievance procedure. The

26 complaint makes reference only to the wrestling team and their experience with it. (UMF 93) The May

27 14, 2001 supplemental complaint also refers only to wrestling, as does the June 26, 2001 complaint.

28 (UMF 95-96) A claim of ineffective accommodation encompasses the entire athletic program for the

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1 underrepresented sex -- not just one specific aspect. See Cohen v. Brown [Cohen IJ supra at p. 989

2 ["There is no rule of number of disparities that when reached constitutes a violation. Generally, the

3 determination is whether, in reviewing the program as a whole, the disparities add up to a denial of

4 equal opportunity to athletes of one sex"]; Cohen v. Brown [Cohen IIJ, supra at p. 906 ["Title IX does

5 not require institutions to find any particular number or type of athletic opportunities -- only that they

6 provide those opportunities in a nondiscriminatory fashion if they wish to receive federal funds"].

7 There is nothing in the OCR complaints filed by MANSOURIAN and NG that notified UC Davis they

8 were making an allegation that the intercollegiate athletic program fails to effectively accommodate the

9 interests and abilities of female students. There is no evidence that MANSOURIAN or NG ever

10 participated in, or attempted to participate in, any varsity sport other than wrestling. MANCUSO used

11 sponsorship via the soccer coach to gain entry to UC Davis after she was initially not accepted as a

12 student, but had no interest in participating in varsity soccer and was cut from the team before she ever

13 became a member of it. She was never a member of the varsity soccer team. (UMFs 78-80) The OCR

14 complaints contain only allegations pertaining to Plaintiffs' experiences with wrestling, which is the

15 limited extent of their involvement in intercollegiate athletics at UC Davis.

16

UC Davis would have no reason to believe a program-wide failure to accommodate claim was

l7 being made. The OCR complaint filed by MANSOURIAN and NG was the first complaint Warzecka

18 and the Title IX compliance officer had received about UC Davis' athletic program. They understood

19 the complaint related solely to an unusual set of circumstances involving women and the wrestling

20 team (UMF 94) The UC Davis women's intercollegiate athletic program has received national

21 recognition for excellence. Sports Illustrated for Women named UC Davis as the best Division II

22 school for women athletes in 1999 and 2000. UC Davis has produced no less than three NCAA

23 Women of the Year winners since that program started in 1991. The Woman of the Year Award is

24 given to senior student-athletes who distinguish themselves in the area of academic achievement,

25 athletics, service and leadership. Its women athletes have many national championships, and more than

26 250 female student athletes at UC Davis have been named as All-Americans. (UMF 163) The campus

27 sponsors fourteen women's varsity teams: basketball, cross-country, golf, gymnastics, lacrosse, rowing,

28 soccer, softball, swimming/diving, tennis, indoor track, outdoor track, volleyball and water polo. (UMF

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1 164) This is far more than the national average of 8.45. 12 In 2002, Assembly Member Thomson named

2 Senior Associate Athletic Director Gill-Fisher her Assembly District "Woman of the Year" because of

3 Gill-Fisher's efforts and accomplishments in the area of women's collegiate athletics. (UMF 165) 4 These milestones are reflective of a women's sports program that embodies the spirit and substance of 5 Title IX.

6

In conclusion, Title IX worked as it was designed to work in this case in regard to the

7 allegations pertaining to the wrestling team. Plaintiffs MANSOURIAN and NG made a specific

8 complaint relating to the wrestling team to the OCR. UC Davis responded to the complaint and with the

9 blessing of the OCR, devised a plan to ensure that all students understand that selection for inclusion on

10 the varsity intercollegiate wrestling team requires competition with the other students who want to be

11 on the team and demonstration of the requisite skills and abilities. There was no notice to UC Davis of

12 an alleged program-wide failure of effective accommodation. Accordingly, Plaintiffs' claim for

13 damages is barred.

14

IX.

15

CONCLUSION

16

"Opportunity is the possibility of participation, not the guarantee of participation." Pederson v.

17 LSU, supra at p. 905. Plaintiffs had the possibility of participation, as did other students who were

18 interested in being part of the varsity wrestling team. At the time they tried out for the team, Plaintiffs'

19 wrestling abilities had not developed to the point where they were skilled enough to compete at the

20 Division I level. Plaintiff NG did not even have a desire to compete. Their demand for preferential

21 treatment in the form of inclusion on the varsity team in the absence of the requisite skill is not

22 mandated by Title IX, and UC Davis' declination of their demand for preferential treatment is not a

23 violation of the statute.

24

Plaintiffs MANSOURIAN and NG place great weight on the fact they were members of the

25 team for a year or two during Burch's tenure. Their participation on the team was not at all comparable

26 to the participation level of the male members of the team. The women never wrestled in a dual meet

27

28 12

See "Women in Intercoliegiate Sport: A Longitudinal, National Study Twenty Seven Year Update (]977-2006)"

by Linda Jean Carpenter and R. Vivian Acosta in conjunction with the National Association ofColiegiate Women Athletic

Administrators.

39
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
{00537741DOC}

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 45 of 46

1 against another Pac-! 0 school. They never wrestled in a UC Davis unifonn. They didn't use collegiate

2 wrestling rules. At most, once a year they participated in the Aggie Open fundraiser tournament. The

3 media guides do not contain any infonnation about their wrestling records because they didn't have

4 any. They were not given scholarships. At first blush, one may think this difference would fonn the

5 basis for a claim by Plaintiffs that gender inequity existed. Not so. Plaintiffs have no interest in being

6 held to the same standards as the male members of the team. Instead, they want to be varsity wrestlers

7 and reap the benefits of that privilege without having to earn a spot on the team via competition with

8 other students who have the same desire. Fonner coach Burch's lax approach to the women, and their

9 acceptance of it, did not guarantee Plaintiffs a spot on the varsity roster throughout their college career.

10

The UNIVERSITY requests that the Court issue judgment in its favor on the sale remaining

11 claim in this case.

12 Dated: January -l-t-,2008
13 14
15 16 17

PORTER SCOTT
::4:;;JE-~ George A. Acero Attorney for Defendant, REGENTS OF THE UNIVERSITY OF CALIFORNIA

18

19

20

21

22

23

24

25

26

27

28

40
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
{00537741DOC}

Case 2:03-cv-02591-FCD-EFB Document 284 Filed 01/11/08 Page 46 of 46

1 MANSOURIAN v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et aL 2 United States District Conrt, Eastern District of California, Case No. 2:03-CV-02S91-FCD-EFB

3

PROOF OF SERVICE

4

I am a citizen of the United States and a resident of the County of Sacramento. I am over the

5 age of eighteen years and not a party to the above-entitled action; my business address is 350 University Avenue, Suite 200, Sacramento, CA 95825.

6

$ , On January

2008, I served the following document(s):

7

8
9
XXX
10

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFEDANT'S MOTION FOR SUMMARY JUDGMENT
VIA ELECTRONIC-FILING to the office of the person(s) listed below.

11

BY PERSONAL SERVICE. I caused such document to be delivered by hand to the

office of the person(s) listed below.

12

BY OVERNIGHT DELIVERY. I caused such document to be delivered by overnight

13

delivery to the office of the person(s) listed below.

14
BY FACSIMILE. I caused such document to be faxed to the office of the person(s)

15

listed below with an original or copy of said document placed in the United States mail

with postage thereon fully prepaid at Sacramento, California.
16

17 addressed as follows:

18 Kristen Galles 19 EQUITY LEGAL
10 Rosecrest Avenue 20 Alexandria, VA 22301
Facsimile: (703) 683-4636
21
22 Noreen Farrell Debra Smith
23 EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250
24 San Francisco, CA 94103

James C. Sturdevant Mark T. Johnson Monique Olivier THE STURDEVANT LAW FIRM A Professional Corporation 475 Sansome Street, Suite 1750 San Francisco, CA 94111 Facsimile: (415) 477-2420

25
I ~are under penalty of perjury that the foregoing is true and correct and was executed on

26 January , 2008, at Sacramento, California.

.

27

/

28

41
Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment
{0053774I.DOC}

 
 Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 1 of 47

1 James C. Sturdevant, State Bar No. 94551 (jsturdevant@sturdevantlaw.com)
2 Mark T. Johnson, State Bar No. 76904 (mjohnson@sturdevantlaw.com)
3 Monique Olivier, State Bar No. 190385 (molivier@sturdevantlaw.com)
4 THE STURDEVANT LAW FIRM A Professional Corporation
5 354 Pine Street, Fourth Floor San Francisco, CA 94104
6 Telephone: (415) 477-2410 Facsimile: (415) 477-2420
7
Debra Smith, State Bar No. 147863 8 (dsmith@equalrights.org)
Noreen Farrell, State Bar No. 191600 9 (nfarrell@equalrights.org)
Angela Perone, State Bar No. 245793 10 EQUAL RIGHTS ADVOCATES
1663 Mission Street, Suite 250 11 San Francisco, CA 94103
Telephone: (415) 621-0672 12 Facsimile: (415) 621-6744

13 Kristen Galles, State Bar No. 148740 (kgalles@comcast.net)

14 EQUITY LEGAL 10 Rosecrest Avenue

15 Alexandria, VA 22301 Telephone: (703) 683-4491

16
Attorneys for Plaintiffs

17
UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA

[Sacramento Division]

19
AREZOU MANSOURIAN; LAUREN MANCUSO;

CASE NO. S-03-2591 FCD EFB

20 CHRISTINE WING-SI NG; and all those similarly situated,

PLAINTIFFS’ OPPOSITION TO

21

Plaintiffs,

22

vs.

23 BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA AT DAVIS,

DEFENDANT’S MOTION SUMMARY JUDGMENT

Date:

April 25, 2008

Time:

10:00 a.m.

Courtroom: 2

24
Defendant

Complaint filed: December 18, 2003

25

Trial Date:

August 7, 2008

26

27

28

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 2 of 47

1

TABLE OF CONTENTS

2 I. INTRODUCTION.......................................................................................................................................1

3 II. SUMMARY OF THE ARGUMENT.......................................................................................................3

4 III. STATEMENT OF FACTS.........................................................................................................................5

5

A. UCD’s Athletic Program...............................................................................................................5

6

1. UCD’s Failure to Provide Women’s Athletic Opportunities

Proportionate to Women’s Enrollment..........................................................................5

7
2. UCD’s Failure To Expand Participation Opportunities For Women Athletes..........5

8

3. UCD’s Refusal to Fully and Effectively Accommodate the

9

Interests and Abilities of Its Female Students................................................................9

10
B. UCD’s Elimination of Existing Women’s Wrestling Varsity Opportunities. ...................... 10

11
1. The Elimination of the Women’s Wrestling Program After a

12

Decade of Women’s Varsity Wrestling at UCD. ...................................................... 10

13

2. Plaintiffs Attendance at UCD With the Desire and Intent to Wrestle.. ................... 10

14

3. UCD’s Removal Women Wrestlers From the Varsity Wrestling Program........... 11

15 IV. ARGUMENT................................................................................................................................................. 14

16

A. UCD Has Not Met the High Standard That Limits Summary Judgment............................. 14

17

B. The Evidence Establishes That Disputed and Undisputed Facts Exist Which Support a Finding That UCD Discriminates Against Female

18

Athletes in Violation of Title IX, Making Summary Judgment Improper............................ 15

19

1. The Legal Framework for Evaluating Effective Accommodation Claims Under Title IX. ................................................................................................. 15

20

2. UCD Discriminated Against Female Students, Including Plaintiffs,

By Failing All Three Prongs of Title IX’s Three Pronged Test for

21

Measuring Equal Accommodation... .......................................................................... 16

22

a. UCD Admits Its Failure to Satisfy Both Prong One and Prong Two

of the Three-Pronged Test, Because It Has Neither Achieved

23

Substantial Proportionality Nor Effectively and Fully Accommodated

Female Interest in Athletics.................................................................................. 17

24

b. UCD Did Not Satisfy the Requirements of Prong Two Because

25

It Has Never Had A History And Continuing Practice Of Program

Expansion For Women......................................................................................... 18

26

27
i 28
PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT
CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 3 of 47

1

3. UCD Has No History or Continuing Practice of Program Expansion.................... 20

2

a. UCD Failed to Expand Female Participation Opportunities At All

From 1971 to 1996................................................................................................ 20

3

b. UCD Did Not Expand Participation Opportunities From 1998-2005... ......... 20

4

c. UCD’s Theory That It Should Be “Credited” For Adding Multiple

5

Sports In 1995-1996 Is Without Legal Support And Cannot Form

The Basis For Establishing Program Expansion............................................... 23

6
d. UCD Eliminated Existing Female Participation Opportunities,

7

Including Women’s Varsity Wrestling... ........................................................... 25

8

e. The Mere Existence of Title IX Committees, Policies, and Plans

Do Not Constitute a History and Continuing Practice of

9

Program Expansion... ........................................................................................... 27

10

4. Assuming Arguendo That UCD Expanded Participation Opportunities

for Women Athletes, It Did Not Do So in a Manner That Was

11

Demonstrably Responsive to The Developing Interest and

Abilities of Its Female Students................................................................................... 27

12

5. Genuine Issues of Material Fact Exist As To Whether UCD Also

13

Violated Title IX By Failing To Establish A Separate Women’s Varsity Wrestling Team..... .......................................................................................... 28

14

6. UCD’s Conduct Constituted Intentional Discrimination, and in

15

Any Event, Triable Issues of Material Fact Preclude Summary Judgment on This Ground............................................................................................ 31

16

7. UCD Is Not Entitled to Summary Judgment on Notice Grounds..... ...................... 34

17

a. UCD Misapprehends and Misapplies Gebser’s Notice Requirement............. 34

18

b. The Evidence Establishes That UCD Was On Notice of Plaintiffs’

19

Ineffective Accommodation Charge................................................................... 37

V. CONCLUSION............................................................................................................................................... 40
20

21

22

23

24

25

26

27
ii 28
PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT
CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 4 of 47

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3

Adickes v. S. H. Kress & Co.,

4

398 U.S. 144 (1970) .................................................................................................................................................15

5 Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................................................................................................................14

6
Bangerter v. Orem City Corp.,

7

46 F.3d 1491 (10th Cir. 1995) .................................................................................................................................32

8 Barrett v. West Chester University of Pa., No. 03-CV-4978, 2003 WL. 22803477 (E.D. Pa. 2003) ........................................................................19, 25, 27

9

Bennett v. Schmidt,

10

153 F.3d 516 (7th Cir. 1998) ...................................................................................................................................39

11 Cannon v. University of Chicago, 441 U.S. 677 (1979) .......................................................................................................................................... 31, 34

12 Celotex Corp. v. Catrett,

13

477 U.S. 317 (1986) .................................................................................................................................................14

14

Cherry v. University of Wis. System Board of Regents, 265 F.3d 541 (7th Cir. 2001) ...................................................................................................................................36

15 Choike v. Slippery Rock University of Pa., No. CIVA 06-622,

16

2006 WL. 2060576 (W.D. Pa. Jul. 21, 2006)........................................................................................................27

17

Cohen v. Brown University (Cohen I), 809 F. Supp. 978 (D. R.I. 1992), aff'd, 991 F.2d 888 (1st Cir. 1993)...............................................18, 19, 22, 29

18 Cohen v. Brown University (Cohen II),

19

991 F.2d 888 (1st Cir. 1993).......................................................................................................... 15, 16, 24, 25, 28

Communities. for Equity v. Mich. High Sch. Athletic Association,

20

459 F.3d 676 (6th Cir. 2006) ...................................................................................................................................31

21 Cripps v. Life Insurance Co. of N. America, 980 F.2d 1261 (9th Cir. 1992) .................................................................................................................................39
22

Davis v. Monroe County Board of Education,

23

526 U.S. 629 (1999) ......................................................................................................................................... 32, 35

24 Easter v. American West Financial,

381 F.3d 948 (9th Cir. 2004) ...................................................................................................................................14
25

Favia v. Ind. University of Pa.. ("Favia I"),

26

812 F. Supp. 578 (W.D. Pa. 1993), aff'd, 7 F.3d 332 (3d Cir. 1993)......................................................15, 26, 31

27

28

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1 Favia v. Ind. University of Pa. ("Favia II"),

7 F.3d 332 (3d Cir. 1993) ........................................................................................................................................27

2

Ferguson v. City of Phoenix,

3

157 F.3d 668 (9th Cir. 1998) ...................................................................................................................................36

4 First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968) ..................................................................................................................................15

5

Franklin v. Gwinnett County Public Schs.,

6

503 U.S. 60 (1992)....................................................................................................................................................34

7 Frontiero v. Richardson, 411 U.S. 677 (1973) .................................................................................................................................................33

8

Gammoh v. City of La Habra,

9

395 F.3d 1114 (9th Cir. 2005) .................................................................................................................................14

10 Gebser v. Lago Vista Independent Sch. District, 524 U.S. 274 (1998) .......................................................................................................................................... 34, 35

11
Glover v. Johnson,

12

478 F. Supp. 1075 (E.D. Mich. 1979) ....................................................................................................................31

13

Grandson v. University of Minn., 272 F.3d 568 (8th Cir. 2001) ...................................................................................................................................37

14 Haffer v. Temple University,

15

678 F. Supp. 517 (E.D. Pa. 1987) ...........................................................................................................................31

16

Haines v. Kerner, 404 U.S. 519 (1972) .................................................................................................................................................39

17 Hunt v. Cromartie,

18

526 U.S. 541 (1999) .................................................................................................................................................33

19

Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) .......................................................................................................................................... 36, 37

20 Johnson v. Clovis Unified Sch. District, No. 04-CV-6719 AWI DLB, 2007 WL. 1456062 (E.D. Cal. May 17, 2007)....................................................37
21

Litman v. George Mason University,

22

186 F.3d 544 (4th Cir. 1999) ..................................................................................................................................36

23 Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985) ..................................................................................................................................33
24

Lyons v. England,

25

307 F.3d 1092, 1117 (9th Cir. 2002) .....................................................................................................................14

26 Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................................................14
27

28

iv

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CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 6 of 47

Michelle M. v. Dunsmuir Joint Union Sch. District,

1

No. 04-CV-2411 MCE PAN, 2006 WL. 2927485 (E.D. Cal. Oct. 12, 2006) ...................................................37

2 Neal v. Board. of Trustees,

198 F.3d 763 (9th Cir.1999) ....................................................................................................................................16

3

Neal v. Board of Trustees,

4

No. CV-F-97-5009-REC-SMS, 1997 WL. 1524813 (E.D. Cal. Dec. 26, 1997)..............................................17

5 Nissan Fire & Marine Insurance Co. v. Fritz Cos.,

210 F.3d 1099 (9th Cir. 2000) .................................................................................................................................15

6
O'Connor v. Board of Education,

7

449 U.S. 1301 (1980) ...............................................................................................................................................26

8 Orr v. Bank of America NT & SA, 285 F.3d 764 (9th Cir. 2002) ...................................................................................................................................13

9

Pederson v. La. State University("Pederson I"),

10

912 F. Supp. 892 (M.D. La. 1996),

aff'd in part, rev'd in part on other grounds, 213 F.3d 858 (5th Cir. 2000)........................................................20

11
Pederson v. La. State University (“Pederson II”),

12

213 F.3d 858 (5th Cir. 2000) ...............................................................................................................31, 32, 33, 36

13

Reese v. Jefferson Sch. District No. 14J, 208 F.3d, 736 (9th Cir. 2000) ..................................................................................................................................37

14 Roberts v. Colo. State Board of Agriculture,

15

998 F.2d 824 (10th Cir. 1993) .........................................................................................................................passim

16

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................................................................................................................32

17 Self Directed Placement Corp. v. Control Data Corp.,

18

908 F.2d 462 (9th Cir. 1990) ...................................................................................................................................39

19

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ................................................................................................................... 14, 22

20 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) ................................................................................................................... 14, 15
21

UAW v. Johnson Controls, Inc.,

22

499 U.S. 187 (1991) .................................................................................................................................................32

23 United States v. Virginia, 518 U.S. 515 (1996) .................................................................................................................................................32
24

Williams v. Sch. District of Bethlehem, Pa.,

25

998 F.2d 168 (3d Cir. 1993) ............................................................................................................................. 16, 38

26

27

28

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1

FEDERAL STATUTES & REGULATIONS

2
Fed. R. Civ. P. ..............................................................................................................................................................8(a)&(e)
3
20 U.S.C. § 1681(a) ...............................................................................................................................................................15 4 Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq........................................................................................................40

5 34 C.F.R.

§ 106.4(a) ..................................................................................................................................................................36

6

§ 106.41(b) ................................................................................................................................................................28

§ 106.41(c).......................................................................................................................................................... 15, 23

7

§ 106.41(c)(1) ...........................................................................................................................................................15

8 45 C.F.R § 86.41(b) ...............................................................................................................................................................28

9

OTHER AUTHORITIES

10 Title IX of the Education Amendments of 1972; a Policy Interpretation;

Title IX and Intercollegiate Athletics,

11

44 Fed. Reg. 71,413 (1979) ............................................................................................................................passim

12 OCR, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996) ...........................passim

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

This case is rooted in Defendant’s history, over more than thirty-five years, of failing to provide equal

3 athletic opportunities to its female students, including Plaintiffs, as required by Title IX of the Education

4 Amendments of 1972. Despite a continuing and steady growth of women’s interest in sports over this period of

5 time, Defendant, the Regents of the University of California (“UCD”), continually and repeatedly refused to “fully 6 and effectively accommodate” that interest as contemplated by Title IX.1 For Plaintiffs in particular, this case is

7 about UCD’s denial of their opportunity to participate in women’s wrestling — an opportunity that existed for years 8 for women at UCD, then was arbitrarily ripped away from them and never restored.2

9

In an effort to justify its actions, conceal its otherwise clear liability for violations of Title IX, and make a

10 case for summary judgment, UCD has attempted to recast the history of women’s wrestling and mischaracterize the

11 status of Plaintiffs and other women wrestlers. In the face of persuasive evidence to the contrary, it contends that

12 there never was a women’s wrestling program at UCD, that the plaintiffs and other female wrestlers were not varsity

13 athletes and that they were merely practicing with the men’s wrestling team. UCD also contends that the

14 elimination and continued denial of existing opportunities for women to participate in varsity wrestling at UCD was

15 merely the result of the inability of the plaintiffs to beat male wrestlers, despite evidence that these unprecedented

16 competitions for positions on the “team” were required by newly imposed pretextual “roster caps” and governed by

17 men’s rules rather than women’s freestyle rules.

18

19

1 The Regents shall be referred to as “UCD” because the events of this case took place on the campus of the University of California at Davis.

20

2 UCD also attempts to miscast the scope of this motion. This mischaracterization of the scope of the motion is in error and cannot save UCD’s motion from its substantial defects. First, although the Court previously found that

21

Plaintiffs’ unequal treatment claim under Title IX is time-barred, it does not follow that UCD’s actions in removing Plaintiffs from the varsity wrestling program, refusing their request for reinstatement, and forcing all women to

22

wrestle against men to earn a varsity wrestling position are irrelevant. To the contrary, each of these actions contributed to UCD’s ongoing failure to fully and effectively accommodate its women athletes, as Title IX requires.

23

As such, it is proper for the Court to consider them with respect to Plaintiffs’ ineffective accommodation claim. Indeed, one wonders why UCD would focus so much of its efforts on claiming its version of facts around these

24

events are “material” if they cannot be considered at all. Second, UCD incorrectly contends that Plaintiffs’ ineffective accommodation claim is cabined by this Court’s statement in denying UCD’s motion for judgment on

25

the pleadings that Plaintiffs “were able and ready to wrestle at UCD and that sufficient interest existed in the female student population at UCD to field a women’s wrestling team.” (Def’s MPA at 3.) This statement was simply the

26

basis for Plaintiffs’ standing to assert an ineffective accommodation claim, not the legal basis for such a claim. As UCD admits, in order to demonstrate compliance with Title IX, it must demonstrate compliance with at least one of

27

the Three Prongs. Even still, UCD may be found to violate Title IX in circumstances such as these where it eliminated women’s varsity opportunities in a contact sport.

28

1

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 9 of 47

1

UCD’s position not only affirms its disregard for the fundamental civil rights of its students, it highlights the

2 fundamental disputes of genuine material facts at issue in this case. At the macro level, such material facts include

3 the foundational factual issues alluded to above, i.e. whether UCD had an existing varsity women’s wrestling

4 program in which women were considered varsity athletes, whether UCD eliminated that program and the

5 opportunities for women to participate in varsity sports that went with it, and whether UCD used roster caps and the

6 requirement that women compete against men, using men’s rules, as pretext for eliminating these opportunities.

7 Other fundamental and disputed material facts determinative of UCD’s Title IX liability in this case include the

8 question of whether UCD expanded or reduced the number of opportunities for women to participate in varsity

9 sports during the relevant time period, whether UCD had a demonstrated history and continuing practice of

10 expanding opportunities for women, and, assuming it did, whether such practice was demonstrably responsive to

11 student interest and abilities.

12

These are a mere sampling of the material issues of fact in this case, of which there are hundreds, which

13 preclude summary judgment. Separate and apart from these disputed material issues of fact, there are many

14 undisputed issues of fact which, when the law is properly applied, preclude summary judgment. For example, it is

15 undisputed that the actual number of women athletes today is less than what it was in 1999, even though over 2,200

16 more women students attend UCD today than in 1999. Yet UCD contends that it has a history of continuing

17 expansion of athletic opportunities for women, based upon an analysis that only looks at the addition of teams (as

18 opposed to actual opportunities) since 1996 and then gives itself “credit” for adding three teams at once, despite the

19 fact that such additions still left UCD far below proportionality and failed to represent an overall expansion of

20 opportunities over time.

21

UCD’s motion for summary judgment must also be denied because the legal arguments on which it

22 depends are flawed and do not entitle UCD to judgment as a matter of law. It invents a new and unfounded

23 argument about “intentional discrimination” that is simply legally erroneous. Likewise, in an apparent effort to

24 confuse the Court, it raises the completely inapplicable and legally unsupportable argument that it has not been on

25 “notice” of its obligations under a law to which it must agree to comply in order to receive its substantial federal

26 funds. For these, and all of the reasons set forth herein, UCD’s motion for summary judgment should be denied.

27 //

28

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CASE NO. S-03-2591 FCD EFB

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1 II. SUMMARY OF THE ARGUMENT

2

Each of UCD’s contentions that it is entitled to summary judgment is without merit. The principal measure

3 to guide the Court’s analysis of UCD’s conduct is referred to as the Three- Pronged Test promulgated in 1979 by the

4 Office of Civil Rights as a policy interpretation of Title IX and embraced by courts as a basis for evaluating

5 compliance. UCD must (1) provide female student athletic opportunities that are substantially proportionate to their

6 enrollment; or (2) demonstrate a history and continuing practice of expanding opportunities for women that is

7 demonstrably responsive to student interest and abilities; or (3) fully and effectively accommodate the interest and

8 abilities of its students. Applying this analysis and considering the additional arguments that UCD makes in support

9 of its motion, it is clear that summary judgment must be denied.

10

First, UCD admits utter failure with respect to Prongs One and Three. Specifically, UCD has been short of

11 substantial proportionality by over a hundred varsity slots each year for more than thirty years. Rather than

12 effectively and fully accommodating the interest of female students in athletics, UCD has rejected varsity

13 applications from hundreds of women club team members since 1995 alone.

14

Second, UCD instead contends that it has satisfied Prong Two by having a history and continuing practice

15 of expanding female participation opportunities that has been demonstrably responsive to the interest and abilities of

16 female students. The evidence belies this assertion and compels the denial of this motion. Moreover, despite

17 exhaustive research of court filings and OCR letters of findings, Plaintiffs’ counsel are not aware of a single instance

18 in which a college has successfully used a Prong Two defense. To the contrary, the defense is routinely rejected as a

19 last ditch attempt to claim compliance when actual discrimination is facially apparent under Prong One and when

20 many females who have been denied opportunities for years have the interest and ability to participate under Prong

21 Three.

22

Compliance with Prong Two requires expansion of actual female participation opportunities. Thus, UCD’s

23 reliance on a increase in the relative percentage of women in the Athletic Department, or its purported addition of

24 teams (as opposed to actual participation opportunities) is not determinative here where undisputed evidence in this

25 case establishes that: (1) from 1976 to 1996, UCD did not expand female opportunities at all; and (2) from 1998-

26 2005, a period during which UCD’s female enrollment increased by 2,200 students, UCD dropped over 60 female

27 participation opportunities, enough to field several women’s varsity teams. UCD did nothing to replace these

28

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1 opportunities much less expand opportunities during this period. By 2005, UCD’s participation numbers were at

2 their lowest point since 1997. UCD added women’s golf in 2005 when prompted by this litigation. However, this

3 addition did not replace eliminated female opportunities and was not responsive to developing interest and ability of

4 women’s club teams at UCD. These facts alone warrant the denial of UCD’s motion in its entirety.

5

Third, UCD’s elimination of Plaintiffs’ existing female wrestling varsity opportunities at a time where it did

6 not satisfy any of the three prongs is a further violation of Title IX. UCD’s motion rests primarily on the false

7 premise that Plaintiffs’ positions were not opportunities for women but that they were members of a men’s team and

8 that they ultimately were not skilled enough to remain on the roster. This assumption is contested with an

9 abundance of evidence that establishes that the Plaintiffs were participating as varsity athletes against other women

10 using women’s rules. UCD’s imposition of the impossible requirement that the women wrestlers compete against

11 men to remain on the team resulted in the elimination of the women’s program in its entirety. This evidence further

12 supports the denial of the motion.

13

Fourth, summary judgment must be denied on the additional ground that UCD was required to create a new

14 women’s varsity team even if none previously existed. Where an institution has a male team in a contact sport, it

15 must offer also a separate women’s team where there is sufficient ability and interest to sustain a team, and a

16 reasonable expectation of competition. Plaintiffs present sufficient evidence to raise a triable issue of fact with

17 respect to all three of these requirements to survive summary judgment.

18

Fifth, UCD’s contention that summary judgment is proper because it did not “intentionally” discriminate

19 against Plaintiffs misconstrues the intent requirement for Title IX. Plaintiffs need not prove that UCD specifically

20 intended to violate Title IX, but only that UCD meant to treat its female wrestlers and other female athletes as it did.

21 Evidence establishes that UCD intended to limit the offerings of women’s sports as it did and it intended to eliminate

22 the women’s wrestling program. This is sufficient to prove intentional discrimination under equal accommodation

23 precedent. At the very least, the evidence raises a genuine issue of material fact.

24

Sixth, UCD’s argument that Plaintiffs did not provide proper notice under Title IX of UCD’s program-wide

25 failure to provide equal opportunities is legally untenable and, alternatively, factually disputed. UCD has not

26 established that the notice requirements of Title IX sexual harassment cases apply to an equal accommodation case,

27 where respondeat superior is not at issue. Even if it did apply, plaintiffs present sufficient evidence that UCD was on

28

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1 ample notice that it was not providing them and its other female students equal athletic participation opportunities.

2

The Court should reject UCD’s attempts to confuse the issues with red herrings, should deny summary

3 judgment, and should let a jury decide the true facts and impose the appropriate remedy. For all of the foregoing

4 reasons, UCD’s motion for summary judgment must be denied.

5 III. STATEMENT OF FACTS

6

A. UCD’s Athletic Program.

7

Defendant, the Regents of the University of California, is charged with overseeing the administration and

8 operation of the University of California at Davis, including its athletics program. (Plaintiffs’ Statement of

9 Additional Disputed Facts In Support of Plaintiffs’ Opposition to Defendant’s Motion For Summary Judgment

10 (“ADF”) 1.) As an institution that receives federal funds, UCD is subject to Title IX’s requirement that it provide

11 equal athletic opportunities to its female athletes. (ADF 2.) Plaintiffs are former UCD students who wrestled in

12 high school and attended UCD, in large part, to wrestle. (ADF 3.) In 2000, UCD ordered that all women be

13 removed from the wrestling program solely on the basis of their gender. (ADF 4.) UCD’s elimination of Plaintiffs’

14 varsity wrestling opportunities occurred against the backdrop of UCD’s long and continuous history of failing to

15 provide adequate athletic opportunities for its female students.

16

1. UCD’s Failure to Provide Women’s Athletic Opportunities Proportionate to

Women’s Enrollment.

17

18

Prong One of OCR’s Title IX equal accommodation test requires that the provision of opportunities for

19 females be equal to their enrollment. Title IX of the Education Amendments of 1972; a Policy Interpretation; Title

20 IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,418 (1979) (hereinafter “Policy Interpretation”), a version

21 of which is attached as Exh. A to Def’s Appendix of Title IX Clarifications Cited In Support of MSJ. Despite

22 decades of warnings about its failure to comply with Title IX, UCD has never provided females with athletic

23 opportunities that are substantially proportionate to their enrollment. (ADF 6.) UCD admits this fact. (ADF 5.)

24

2. UCD’s Failure To Expand Participation Opportunities For Women Athletes

25

Prong Two requires an institution to demonstrate a history and current practice of expansion of participation

26 opportunities for women. Policy Interpretation, 44 Fed. Reg. 71,413, 71,418. Since the passage of Title IX, UCD

27 has failed to expand female participation opportunities. (ADF 17, 27.)

28

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1

Between 1971 and 1996, UCD failed to expand athletic opportunities for women whatsoever. (ADF 17.)

2 In 1976, UCD produced a report showing serious deficiencies in Title IX compliance. (ADF 7.) Between 1976 and

3 1991, UCD took no steps to review its compliance with Title IX. (ADF 8.) In fact, UCD drastically eliminated

4 opportunities during this time when the participation of women athletes was reduced by nearly 100 opportunities

5 between 1989 and 1991. (ADF 18.) UCD also dropped women’s golf and field hockey during this time period. 6 (ADF 19.)3

7

Then in 1991, UCD issued a report by a committee instituted to study compliance with Title IX in UCD

8 athletics (“UCD 1991 Title IX Report”). (ADF 9.) The Report warned of “resistance within the Athletic

9 Department to UC Davis’s efforts to ensure total compliance with Title IX …” (ADF 9.) The Report also revealed

10 that “participation by females [in varsity athletics] is clearly not substantially proportionate to their enrollment” at

11 UCD. (ADF 9.)

12

UCD administrators and staff continued to warned about a lack of compliance and falling female

13 participation rates over the next ten years. (ADF 11.) Between 1991 and 2002, over fourteen Athletic Department

14 memos, reports, and emails warn UCD about it serious and continuous backslides in the participation rates of

15 women. (ADF 11.) Then in 1996, at a time when female participation rates were 20% lower than female

16 enrollment, UCD added three women’s varsity teams. (ADF 12, 21.) Even so, the participation rates of women

17 remained disproportionate to their enrollment by eleven percent, which translates to 184 varsity opportunities. (ADF

18 12.)

19

In 1997, UCD again stated: “Total participation levels for men and female athletes are not substantially

20 proportionate to the undergraduate population of the institution. This suggests potential non-compliance with Title

21 IX participation level requirements.” (ADF 13.) In 1998, Athletic Director Greg Warzecka acknowledged that a

22 gender imbalance in the athletic department “is not a new issue.” (ADF 14.)

23

In this litigation, UCD claims that it added women’s indoor track in the winter of 1999. However, UCD

24

25 3 A former field hockey coach recalls the elimination: “With a number of schools participating in our field hockey

26

conference in this region during the 1980’s and beyond, our conference remained active and extremely competitive at the national level. . . . Davis’ decision to discontinue its women’s field hockey team in 1983 in this competitive

27

environment was very surprising to me and others in the conference. Other schools in the conference were not discontinuing their field hockey programs.” (ADF 20.)

28

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1 treated indoor and outdoor track as a combined sport. (ADF 23, 25.) Moreover, the extension of the varsity track

2 season to include indoor track did not add new opportunities for females because the same athletes who participated

3 in outdoor track participated in the indoor season and, as UCD admits, it added the men’s indoor track season at the

4 same time. (ADF 25.) As such, even if the additional season counted as a new opportunity, there was no expansion

5 in the opportunities provided for females. Further, UCD’s claim that it added indoor track as an additional sport

6 does not exist in UCD gender equity documents generated prior to this litigation. (ADF 26.)

7

Then in 2000, UCD removed all women, including Plaintiffs, from the varsity wrestling program, and

8 denied their pleas, and the entreaties of their coach, for reinstatement. (ADF 4, 68-67.) Yet in November 2002,

9 UCD admitted that the participation rates of its female athletes dropped further so that the participation rates of

10 women remained disproportionate by nearly ten percent. (ADF 15.) Indeed, UCD’s Chief Title IX Compliance

11 Officer admitted had a continuing concern about UCD’s female participation rates throughout his tenure and

12 believed UCD should be doing more to achieve Title IX compliance, stating “we could and should be doing more.”

13 (ADF 16.) In 2005, three years after this lawsuit was filed, UCD added women’s varsity golf, which added only

14 seven opportunities for women at UCD. (ADF 22.)

15

The actual number of participation opportunities at UCD dropped between 1999-2005, a reduction that

16 UCD’s expert agrees was “drastic.” (ADF 29.) As the below chart indicates, over time, UCD has in fact provided 17 less, not more, opportunities for women athletes. (ADF 27, 30, 31.)4

18 Year
19 20

Female enrollment

Female enrollment %

Female athlete %

% difference between female enrolment & participation

Female athletes #

Male athletes #

Add’l females varsity opportunities to achieve proportionality

21 1995-1996 9,352

52%

1996-1997 10,054 53%

32% -20% 42% -11%

211

441

267

348

472

184

22 1997-1998 10,118 54%

42.7% -11.3%

383

513

219

1998-1999 10,596 23 1999-2000 10,446

55% 56.6%

47.8% 50.5%

-7.2% -6.1%

426

466

144

424

416

119

24 2000-2001 11,783 56%

49.2% -6.8%

407

420

128

2001-2002 12,494 25 2002-2003 11,331

56.2% 56.4%

47.3% 49.2%

-8.9% -7.2%

361

403

156

389

401

130

26

27 4 Plaintiff’s expert Dr. Donna Lopiano created this chart using data submitted by UCD to OCR to track gender

28 equity. (See ADF 31.)

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2003-2004 11,660 1 2004-2005 12,834

55.9% 50.1% -5.8% 55.34% 50.25% -5.1%

371

373

102

368

363

101

2
As the chart indicates, to reach proportionality, in any given year, UCD would have had to add at least 100

3
additional opportunities for women athletes. (ADF 30.) In addition, the actual number of women athletes has

4
decreased, rather than increased. (ADF 30.) In the1998-1999 school year, 426 women were participating in varsity

5
athletics. (ADF 27.) By 2000-2001, the number had fallen to 407. (ADF 27.) In 2001-2002, the same year that

6
women’s varsity wrestling was eliminated, the number fell to 361. (ADF 27.) In 2002-2003, 389 women

7
participated in the varsity program. (ADF 27.) In 2003-2004, the number dropped again to 371 women

8
participants. (ADF 27.) In 2004-2005, the number dropped further to 363. (ADF 27.) Thus, between 1999 and

9
2005, UCD dropped a total of 63 female participation opportunities from its athletic department, enough to field

10
several women’s varsity teams. (ADF 32.)

11
Notably, although the number of women athletes was decreasing, women student enrollment experienced

12
significant growth. (ADF 30.) In 1999-2000, 424 female athletes were participating, yet in 2004-2005, only 368

13
female athletes were participating. (ADF 30.) During this same time period, however, UCD experienced an

14
increase of over 2,200 women students. (ADF 30.) Further, evidence suggests that UCD's participation numbers

15
are artificially inflated. (ADF 28.) Thus, UCD claims improvement during a period in which the number of

16
participation opportunities for women actually declined. (ADF 29.)

17
UCD excuses its drastic drop in participation opportunities by contending they resulted in part from the

18
elimination of “B” teams in varsity lacrosse and water polo. UCD presents no evidence to support the contention

19
that the lacrosse slots eliminated were B team slots and UCD concedes that it dropped the varsity water polo B

20
teams to club status despite the existence of competition. (ADF 33.) At the same time it eliminated these varsity

21
opportunities, UCD further reduced the varsity opportunities for females by eliminating opportunities for women

22
wrestlers, despite their proven interest in participation. (ADF 4, 74.)

23
UCD knew about this significant reduction, but did not replace the eliminated participation opportunities or

24
expand opportunities during this time period. (ADF 34, 35.) In 2003, UCD solicited applications for varsity

25
applications and received strong applications from five existing club teams. (ADF 36.) UCD rejected each of these

26
requests for elevation to varsity status, and instead selected golf. (ADF 37.) There was no existing women’s club

27
team and unlike all of the other applications, the golf application was actually completed by the UCD administration,

28

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1 rather than any student group. (ADF 39.) It required a full year of off-campus recruitment before it could field a

2 golf team. (ADF 38, 39.) Although UCD claimed that golf was selected to comply with a Big West Conference

3 rule, that selection criterion was never communicated to applicants for varsity status. (ADF 38.) Golf added only

4 seven opportunities for women athletes, whereas any of the other pre-existing club teams that applied for varsity

5 status would have added considerably more participation opportunities. (ADF 22, 40.)

6

UCD’s expert opined that Title IX requires institutions set forth a specific timetable for Title IX compliance.

7 (ADF 41.) The purported equity plans to which it points largely contain warnings about non-compliance, not

8 specific timetables or plans for increasing women’s athletic opportunities. (ADF 41.)

9

3. UCD’s Refusal to Fully and Effectively Accommodate the Interests and Abilities of

Its Female Students.

10

11

If an institution does not provide substantially proportionate athletic opportunities and cannot demonstrate a

12 history and continuing practice of expansion, its last resort is to argue that it fully and effectively accommodates the

13 interest and abilities of its female students (“Prong Three”). Policy Interpretation, 44 Fed. Reg. at 71,418. UCD

14 admits that it has not accomplished this at all times relevant to this case. (ADF 42.) In 1991, UCD was urged to

15 conduct a survey of its students to determine the interest and ability of women in varsity athletics. (ADF 6.) UCD

16 waited 13 years to do so. (ADF 43.) In 1996, UCD denied requests by the women’s badminton and field hockey

17 club teams to be elevated to varsity status. (ADF 44.)

18

Even as its female participation opportunities spiraled downward, UCD did not elevate any teams to varsity

19 status. Between 1995 and 2003, UCD did not even communicate to female students that they could seek the

20 addition of a new women’s varsity sport, or the process for doing so. (ADF 45.) Nor did UCD did make any effort

21 to survey student interest and ability on campus, or to consider the addition of another women’s team, until after

22 Plaintiffs’ complaint of discrimination was filed and after the participation rates of its female athletes had plunged.

23 (ADF 43, 41.)

24

In 2003, UCD received applications for elevation to varsity status from existing women’s club teams in field

25 hockey, rugby, equestrian, bowling, and badminton which demonstrated strong interest in the sports and a high level

26 of ability in its club athletes. (ADF 36.) The applications also confirmed competitive opportunities at the varsity

27 level. (ADF 36.) UCD rejected these applications despite its failure to achieve substantial proportionality. (ADF

28

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1 37.)

2

B. UCD’s Elimination of Existing Women’s Wrestling Varsity Opportunities.

3

1. The Elimination of the Women’s Wrestling Program After a Decade of Women’s

Varsity Wrestling at UCD.

4

5

Since 1992, when women first began wrestling at UCD, the varsity wrestling program included both men

6 and women, each competing against their respective sex. (ADF 46, 49.) Women wrestlers at UCD received highly

7 qualified coaching, wrestled using women’s freestyle rules rather than men’s collegiate rules, and received all of the

8 benefits of varsity status. (ADF 49, 50.) UCD sponsored a women’s division in its annual Aggie Open wrestling

9 tournament. (ADF 51.)

10

In 1995, UCD hired Michael Burch as a wrestling coach. (ADF 47.) Burch was interviewed for the job by

11 a panel that included a Afsoon Johnston, a female wrestler at UCD. (ADF 47.) Johnston asked Burch during his

12 UCD interview whether he would be supportive of women’s wrestling; he assured the panel that he would be.

13 (ADF 47.) Women continued to wrestle at UCD as varsity athletes under the coaching of Burch throughout his

14 tenure. (ADF 48.) As members of the team, women wrestlers attended practice regularly and had the same

15 responsibilities as any other team member. (ADF 52.) They received coaching and attention unique to the needs of

16 women wrestlers. (ADF 50.)

17

There was thus a women’s varsity wrestling program at UCD. (ADF 53.) Women wrestlers received

18 benefits attendant to varsity status, including lockers, training services, academic support services, laundry services,

19 and varsity coaching. (ADF 54.) Club sports athletes do not receive any of these benefits. (ADF 54.) The women

20 wrestlers were listed as varsity athletes on participation lists, roster lists, and in the Aggie Open programs. (ADF

21 55.) They also attended the end of the year team banquet and received honors from the coach. (ADF 56.) The

22 NCAA certification paperwork, not required of club athletes, was required of the women wrestlers. (ADF 57.)

23 Further, UCD admits that Plaintiffs were varsity athletes. (ADF 58.) Athletic Director Greg Warzecka testified that

24 women were varsity athletes on the wrestling roster. (ADF 59.)

25

2. Plaintiffs Attendance at UCD With the Desire and Intent to Wrestle.

26

Plaintiffs Christine Ng, Arezou Mansourian, and Lauren Mancuso came to UCD to contribute to this strong

27 tradition of women’s wrestling at UCD. (ADF 3.) Plaintiff Ng was a high school wrestler who selected Davis

28

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1 because it offered her the opportunity to wrestle. (ADF 60.) She entered Davis in 1998 and participated in the

2 wrestling program each year until UCD eliminated the women’s wrestling program. (ADF 60.) She attended

3 practice six days a week, received benefits as a varsity team member, and considered herself part of the team. (ADF

4 61.)

5

Plaintiff Mansourian was also a competitive high school wrestler. (ADF 62.) She received early acceptance

6 into a prestigious program at UC Riverside that would have put her on track for acceptance at medical school. (ADF

7 62.) She chose not to attend that UC Riverside because it did not have a wrestling program, instead attending UCD

8 because she would have the opportunity to wrestle. (ADF 62.) Mansourian was a dedicated team member as a

9 freshman in 2000. (ADF 63.) She received the benefits of varsity team membership, including medical assistance

10 from trainers when she was injured. (ADF 63.)

11

Plaintiff Mancuso choose to attend UCD because it afforded her the opportunity to continue wrestling.

12 (ADF 64.) She was a highly-skilled wrestler in high school who planned to train for the Olympic team. (ADF 65.)

13 Prior to coming to UCD in 2001, she was aware of the controversy about women’s wrestling, but understood that

14 the women had been reinstated on the team. (ADF 66.) She thought that reinstatement meant that women were

15 allowed to wrestle as they had previously, against other women. (ADF 66.) She entered in 2001 and attended

16 practices in the fall of 2001 along with Ng and Mansourian. (ADF 67.) However, when she was forced to wrestle-

17 off against a man in order to participate on the team, she was cut from the wrestling program. (ADF 67.)

18

3. UCD’s Removal Women Wrestlers From the Varsity Wrestling Program.

19

In October 2000, the UCD athletic department administration instructed Burch to remove the women from

20 the wrestling team. (ADF 68.) Although Burch objected to the athletic department, he informed the women

21 wrestlers of the athletic department’s directive. (ADF 68.) Burch permitted the women to continue to practice with

22 the wrestling team. (ADF 68.) Mansourian was injured during a wrestling practice in January 2001 and sought

23 assistance from a varsity trainer. (ADF 69.) When the administration learned of Mansourian’s use of this varsity

24 benefit, the Athletic Director met with the women wrestlers and directed them not to participate in wrestling. (ADF

25 70.) He also told them could not participate on the wrestling team because they were a liability to the university.

26 (ADF 71.)

27

UCD eliminated women’s varsity wrestling despite evidence of great interest and ability in the sport, and a

28

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1 reasonable expectation of competition. (ADF 73.) The strongest indicator of interest was already present at UCD:

2 women were participating on the team and competing in open events. (ADF 72.) Coach Burch testified that he

3 could have easily recruited enough women to field several women’s varsity teams. (ADF 72.)

4

Numerous individuals, including coaches and tournament organizers, with knowledge of the participation

5 rates of high school women in wrestling agree that there was sufficient interest to field a collegiate team in 2001.

6 (ADF 73.) Pacific University in Oregon started its varsity women’s wrestling team in 2002 and has competed each

7 year since then with a full varsity schedule. (ADF 74.) Additionally, ample intercollegiate competition for women’s

8 wrestling existed throughout UCD’s competitive regions with over 40 colleges and universities fielding varsity

9 women programs or wrestlers. (ADF 73.) Despite this interest, ability, and available competition for women

10 wrestlers, UCD admits that it did not consider interest in women’s wrestling before it directed the removal of

11 women from the program. (ADF 75.)

12

In the spring of 2001, as the decision by UCD to eliminate women’s wrestling became public knowledge,

13 there was a strong public backlash. (ADF 76.) Assemblywoman Helen Thomson threatened to withhold a

14 significant source of funding on a UCD building, a protest was held at UCD’s annual Aggie Auction fundraiser,

15 flyers and petition were distributed, both campus and statewide newspapers published news articles, and UCD’s

16 administration received emails from concerned alumni. (ADF 76.)

17

In April 2001, Ng and Mansourian submitted a complaint of sex discrimination with the Department of

18 Education’s Office for Civil Rights (OCR). (ADF 77.) They charged they had been subject to gender

19 discrimination due to the elimination of intercollegiate athletic opportunities for women. (ADF 77.) Subsequently,

20 Ng, Mancuso and Mansourian filed supplemental complaints of sex discrimination with OCR. (ADF 77.) Each of

21 the complaints was based on the UCD’s acts of sex discrimination in violation of Title IX. (ADF 77.)

22

After the OCR complaints were filed, OCR never interviewed a single plaintiff, or any other women

23 wrestler. (ADF 78.) Similarly, UCD’s Chief Title IX Compliance Officer, Dennis Shimek, admits that the UCD

24 did not investigate the Plaintiffs’ complaints. (ADF 79.) Nor did Shimek even speak to any of the Plaintiffs. (ADF

25 79.) As UCD acknowledges, the OCR investigation examined UCD’s compliance with Title IX as a whole, not

26 solely its elimination of women’s wrestling. (ADF 80.) At this same time, soon after the OCR complaints were

27 filed, UCD fired Burch for his support of women’s wrestling. (ADF 81.)

28

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1

It was in this context that UCD posed and OCR accepted a “voluntary resolution” of Plaintiffs’ OCR

2 complaints. (ADF 82.) With this “voluntary resolution plan” UCD agreed to reinstate the women on the team as a

3 resolution of Plaintiffs’ complaints. (ADF 82.) However, the plan conditioned reinstatement on Plaintiffs’ ability to

4 compete against men for slot in the program, a condition that had never previously existed for their participation in

5 the varsity program where they had competed against women. (ADF 83.) Significantly, UCD did not advise OCR

6 that the women wrestlers had previously only competed against other women. (ADF 84.)

7

In May 2001, UCD reinstated the women to the team by placing them on the roster list. (ADF 85.) The

8 reinstatement occurred after the 2000-2001 wrestling season was over and there were no opportunities for the

9 women to participate. (ADF 85.) UCD’s purported reason for requiring the women to wrestle-off against the men

10 was because the places on the team were limited by roster caps. (ADF 86.) Plaintiffs inquired whether, as females,

11 they would have to comply with a roster cap intended to limit the number of men participating in order to move

12 toward gender equity. (ADF 87.) The women were told that they would have to comply with the male roster caps.

13 (ADF 87.) UCD’s expert testified that forcing women in a women’s program to be counted within a roster cap for

14 the men’s team and to compete against men to be on the team is the effective elimination of the women’s program.

15 (ADF 88.) Other than UCD’s women wrestlers, roster caps have not been applied to any women’s team at UCD.

16 (ADF 89.)

17

In the fall of 2001, Mansourian, Ng and Mancuso attended wrestling practices with the team. At the

18 practices Coach Zalesky was hostile to the women and did not provide them with any coaching, tips, or support.

19 (ADF 90, 91.) Feeling unwelcome and humiliated, Mansourian stopped attending practices. (ADF 92.) Ng

20 wrestled off against Mancuso, who beat her. (ADF 93.) Mancuso then wrestled off against a male wrestler, who

21 beat her. (ADF 93.) Ng and Mancuso were not allowed to participate in the program. (ADF 93.)

22

Plaintiffs Mansourian, Ng and Manscuso were devastated by their dismissal from varsity wrestling. All

23 struggled with their remaining years at UCD without wrestling. (ADF 94.) Though Plaintiffs filed suit and

24 requested reinstatement of the women’s wrestling program, UCD continues to refuse to provide wrestling

25 opportunities to women, even though high schools girls from throughout the state continue to inquire about

26 wrestling opportunities at UCD. (ADF 95.)

27 //

28

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1 IV. ARGUMENT

2

A. UCD Has Not Met the High Standard That Limits Summary Judgment.

3

UCD has not met its burden on summary judgment to establish that no genuine issue of material fact exists

4 as to whether they provided equal accommodation in athletics to female students as required by law. Federal Rule

5 of Civil Procedure 56(c) states that summary judgment may be rendered only if

6

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

7

party is entitled to judgment as a matter of law.

8

All such evidence submitted must be interpreted in the light most favorable to the non-moving parties (here,

9 plaintiffs Mansourian, Ng and Mancuso). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Gammoh v.

10 City of La Habra, 395 F.3d 1114, 1122 (9th Cir. 2005). All evidence submitted on their behalf must be believed

11 and all justifiable inferences must be drawn in their favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

12 475 U.S. 574, 587 (1986); Easter v. American West Fi., 381 F.3d 948, 949, 960 (9th Cir. 2004). The nonmoving

13 party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.

14 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Unlike the non-moving party, evidence submitted by the

15 moving party that would be inadmissible at trial may not be considered on a motion for summary judgment.

16 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Orr v. Bank of Am. NT & SA, 285 F.3d 764,

17 773 (9th Cir. 2002).

18

All “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are

19 jury functions, “not suitable for resolution or summary judgment.” Anderson, 477 U.S. at 255; Soremekun, 509 F.3d

20 at 984; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). At this stage, a

21 court must not weigh the evidence or decide the truth of the matter, but rather, determine whether there is a genuine

22 dispute for a jury to decide at trial. Lyons v. England, 307 F.3d 1092, 1117 (9th Cir. 2002) (citing Glenn K. Jackson

23 Inc. v. Roe, 273 F.3d 1192, 1196 (9th Cir. 2001)). “[T]he issue of material fact required by Rule 56(c) . . . to entitle a

24 party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather,

25 all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or a

26 judge to resolve the parties' differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391

27 U.S. 253, 288-89 (1968); T.W. Elec. Serv., Inc., 809 F.2d at 630.

28

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1

Finally, UCD – not Plaintiffs– has “the burden of showing the absence of a genuine issue as to any material

2 fact.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

3 210 F.3d 1099, 1102 (9th Cir. 2000) (noting that the moving party has the “initial burden of production and the

4 ultimate burden of persuasion on a motion for summary judgment”). As set forth below, UCD cannot carry this

5 burden.

6

B. The Evidence Establishes That Disputed and Undisputed Facts Exist Which Support a

Finding That UCD Discriminates Against Female Athletes in Violation of Title IX, Making

7

Summary Judgment Improper.

8

1. The Legal Framework for Evaluating Effective Accommodation Claims Under Title

IX.

9

Plaintiffs’ claim arises under Title IX of the Education Amendments of 1972 (20 U.S.C. section 1681 et

10
seq.), which provides in part:

11

No person in the United States shall, on the basis of sex, be excluded from participation in, be

12

denied the benefits of, or be subjected to discrimination under any education program or activity

receiving federal financial assistance . . . .
13

20 U.S.C. § 1681(a).

14

Title IX prohibits sex discrimination in the operation of any education program or activity,

15

including intercollegiate athletics. The regulations promulgated pursuant to Title IX require educational

16

institutions receiving federal funds to “provide equal athletic opportunity for members of both sexes.” 34

17

C.F.R. § 106.41(c) (emphasis added).

18

The critical factor in this case is “[w]hether the selection of sports and levels of competition effectively

19

accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). It is well-established

20

that “an institution may violate Title IX simply by failing to accommodate effectively the interests and abilities of

21
student athletes of both sexes.” Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993); Cohen v.

22
Brown Univ. (Cohen II), 991 F.2d 888, 897-98 (1st Cir. 1993); Favia v. Ind. Univ. of Pa., (“Favia I”), 812 F. Supp.

23

578, 584-85 (W.D. Pa. 1993), aff’d, 7 F.3d 332 (3d Cir. 1993).

24

In 1979, the Department of Health, Education & Welfare’s Office for Civil Rights (“OCR”) issued a Policy

25

Interpretation to provide further guidance on the meaning of equal athletic opportunity under an equal

26

27

28

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1 accommodation claim.5 Policy Interpretation, 44 Fed. Reg. 71,413, 71,417, Part VII.B.5. The Policy Interpretation

2 confirms that Title IX approaches the question of compliance on a programmatic rather than sport-specific basis.

3 Assessment is according to whether the institution’s “program as a whole” is satisfactory. Id. at 71,422, App. B,

4 Resp. to Add’l Comments (8). Because of the historic discrimination against females in athletics, Title IX requires

5 “continued affirmative steps” by institutions to achieve equity, which “‘in most cases . . . will entail development of

6 athletic programs that substantially expand opportunities for women to participate and compete at all levels.’”

7 Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 176 (3d Cir. 1993) (quoting Policy Interpretation, 44 Fed.

8 Reg. 71,413, 71,414).

9

2. UCD Discriminated Against Female Students, Including Plaintiffs, By Failing All

Three Prongs of Title IX’s Three Pronged Test for Measuring Equal

10

Accommodation.

11
UCD has failed to provide female students including plaintiffs, with an equal opportunity to

12
participate in varsity athletics. OCR’s 1979 Policy Interpretation sets forth a three-pronged test with respect

13
to such a claim, analyzing:

14

(1) Whether intercollegiate level participation opportunities for male and female students are

15

provided in numbers substantially proportionate to their respective enrollments; or

16

(2) Where the members of one sex have been and are under-represented among intercollegiate

athletes, whether the institution can show a history and continuing practice of program expansion

17

which is demonstrably responsive to the developing interest and abilities of the members of that

sex; or

18

(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the

19

institution cannot show a continuing practice of program expansion such as that cited above,

whether it can be demonstrated that the interests and abilities of the members of that sex have been

20

fully and effectively accommodated by the present program.

21
Policy Interpretation, 44 Fed. Reg. at 71,418.
22
In evaluating Title IX effective accommodation claims, Courts have embraced and applied this three-
23
pronged test and viewed it as a whole:
24

25

26

5 The Department of Education, acting through the OCR, is the administrative agency charged with administering Title IX. Neal v. Brd. of Ts., 198 F. 3d 763, 770 (9th Cir.1999) (citing Pub. L. No. 93-380, § 844, 88 Stat. 612 [sic]

27

(1974)). The Policy Interpretation is a “considered interpretation” of the applicable regulations, and is entitled to deference by the courts. Id.; Cohen II, 991 F.2d at 896-97.

28

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Put another way, Part (1) provides that if institutions have not distributed athletic opportunities in

1

numbers ‘substantially proportionate’ to the gender composition of their student bodies, they have

presumptively violated Title IX. The rest of the test recognizes that there are circumstances under

2

which, as a practical matter, something short of substantial proportionality will suffice to rebut the

presumption that Title IX has been violated.

3

Neal v. Bd. of Trs., No. CV-F-97-5009-REC-SMS, 1997 WL 1524813, at *9 (E.D. Cal. Dec. 26, 1997).

4
Plaintiffs contend that they were entitled to the women’s wrestling opportunities taken from them because

5
UCD was not in compliance with Title IX under any of the three prongs. As the evidence presented by the parties

6
on this motion reveals, the merits of this claim, based upon the above-described basic Title IX law, depends upon

7
disputed issues of material fact which preclude the entry of summary judgment.

8

a.

UCD Admits Its Failure to Satisfy Both Prong One and Prong Two of the

9

Three-Pronged Test, Because It Has Neither Achieved Substantial

Proportionality Nor Effectively and Fully Accommodated Female Interest in

10

Athletics.

11

UCD concedes that it cannot rely on Prongs One or Three of the three prong test as a basis for

12 establishing compliance with Title IX in this case. First, UCD admits, and the evidence establishes, that at

13 all times relevant to this case, the participation rates of women in varsity athletics were short of substantial

14 proportionality by hundreds of varsity slots. (ADF 27.) Indeed, in 2001-2002, the very year that UCD

15 forced women to compete against men, UCD’s female participation proportionality rates fell to their worst

16 level since 1997. (ADF 27.) UCD would have needed to add 156 varsity opportunities for women to make

17 up for this proportionality shortfall. (ADF 27.) Thus, no claim can be made that Prong One’s

18 proportionality test was satisfied.

19

Second, UCD also admits that it failed to fully and effectively the interest and ability of female

20 students in varsity athletics in violation of Prong-Three. (ADF 42.) Hundreds of female students have

21 sought varsity status at Davis, only to be rejected time and time again. Importantly, UCD’s own admissions

22 establish that the institution has known for decades that it does not accommodate the significant interest and

23 ability of women in athletics. (ADF 10.)

24

Thus, this motion turns on whether UCD has established, by evidence of undisputed material facts,

25 that it was in compliance with Prong Two of the Three Prong test and is entitled to judgment as a matter of

26 law. As set forth below, UCD cannot establish as a matter of law that it satisfied Prong Two’s requirement

27 of having a history and continuing practice of program expansion for women during the periods relevant to

28

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1 this case, much less that it acted responsively to the developing interests of its female students. To the

2 contrary, undisputed and disputed facts support Plaintiffs’ contention that UCD failed to satisfy those

3 requirements. Summary judgment should be denied accordingly.

4

b.

UCD Did Not Satisfy the Requirements of Prong Two Because It Has Never

Had A History And Continuing Practice Of Program Expansion For

5

Women.

6
The intensely factual nature of a Prong Two analysis coupled with the significant disputes in
7
material fact precludes summary judgment here. Prong Two saves non-proportional schools from violation
8
if they can show “a history and continuing practice of program expansion which is demonstrably responsive
9
to the developing interest and abilities of the members of that sex.” Policy Interpretation, 44 Fed. Reg. at
10
71,418 (emphasis added). In 1996, OCR issued a clarification of the Three Part Test which provides, in
11
part: “In effect, part two looks at an institution’s past and continuing remedial efforts to provide
12
nondiscriminatory participation opportunities through program expansion.” OCR, Clarification of
13
Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996) (hereinafter “1996 OCR
14
Clarification”), attached as Exh. B to Def.’s Appendix of Title IX Clarifications Cited in Support of MSJ
15
(“Title IX Appx.”), at 7. Of paramount importance under Prong Two is not the addition of teams, but rather
16
whether an institution has expanded actual participation opportunities for women. “Part two focuses on
17
whether an institution has expanded the number of intercollegiate participation opportunities provided to the
18
underrepresented sex.” 1996 OCR Clarification (Title IX Appx., Exh. B) at 11, n.2 (see also, Plaintiffs’
19
Response to Defendant’s Undisputed Material Facts (“UMF”) 141, 148).
20
The Title IX experts on both sides of this case agree that an institution must expand actual
21
participation opportunities every two to three years to remain in compliance with Prong Two.6 (UMF 141.)
22
Both the OCR and the few courts that have looked at the Prong Two analysis have confirmed that it is a
23
factually intensive analysis, which considers the number of students enrolled and the number of students
24
participating in athletics, as well as the developing interest and abilities of other students. 1996 OCR
25
Clarification (Title IX Appx., Exh. B) at 7; Cohen v. Brown University (Cohen I), 809 F. Supp. 978, 981-82
26

27

28

6 Plaintiffs’ Title IX expert is Dr. Donna Lopiano. (See ADF 31.)
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1 (D. R.I 1992) aff’d, 991 F.2d 888 (1st Cir. 1993). Court decisions involving this issue have not defined the

2 permissible outer limits of non-expansion under Prong Two, but have confirmed that periods of non-

3 expansion in excess of nine years is too long. Cohen I, 809 F. Supp. at 979-80, (court approval of

4 preliminary injunction to stop elimination of team where no expansion from 1982 to 1991); Barrett v. West

5 Chester Univ. of Pa., No. 03-CV-4978, 2003 WL 22803477, at *7 (E.D. Pa. 2003) (“periods in excess of a

6 decade are too long to constitute continued expansion”). Notably, Plaintiffs are unaware of any court

7 decision affirming a Prong Two defense asserted by an institution.

8

UCD bears the burden of proof to establish compliance with Prong Two. Policy Interpretation, 44

9 Fed. Reg. at 71,418; Roberts, 998 F.2d at 830. UCD has not met its burden on summary judgment where its

10 own documents and other admissions establish that (1) UCD did not expand opportunities for women

11 whatsoever from 1971 to 1996, and (2) female participation opportunities actually contracted from 1997 to

12 2005, regardless of what teams UCD claims it added during this period, in large part because UCD

13 eliminated existing varsity opportunities in wrestling and other sports. (ADF 17-27.) Additionally, even if

14 the evidence established that UCD has expanded athletic opportunities for women, which it does not, it did

15 not do so in a manner that was demonstrably responsive to the developing interest and abilities of women.

16 In fact, the evidence demonstrates that UCD rejected application for varsity status from hundreds of UCD

17 female club sports athletes between 1995 and 2005, as well as terminated existing varsity opportunities,

18 including Plaintiffs’. (ADF 22, 37.)

19

UCD attempts to distract the Court from the inevitable consequences of this evidence by focusing

20 its motion instead on (1) the percentage increase of women’s relative participation in UCD’s athletic

21 program; (2) the addition of women’s varsity teams between 1995 and 2005 in conjunction with a baseless

22 crediting theory; and (3) Committees, plans, and policies purportedly related to Title IX compliance. None

23 establish the expansion required by Prong Two.

24 //

25 //

26 //

27 //

28

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3. UCD Has No History or Continuing Practice of Program Expansion.
1

a. UCD Failed to Expand Female Participation Opportunities At All From

2

1971 to 1996.

3
UCD cannot establish compliance with Prong Two as a matter of law because, among other
4
reasons, it did not expand female participation opportunities one iota from 1971 to 1996. (ADF 17.) While
5
UCD makes much of the existence of women’s teams at UCD before the passage of Title IX, the law’s
6
enactment did nothing to prompt UCD to expand its women’s program to ensure equity. UCD did not
7
expand opportunities for 25 years. Instead, UCD eliminated women’s golf and women’s field hockey
8
during this time period. (ADF 19.) UCD contends that it eliminated women’s field hockey because all
9
other teams in its conference eliminated their teams, but a sworn declaration of the coach of another
10
women’s field hockey team in UCD’s conference at the time confirms the continued availability of
11
competition from all other schools in the region’s field hockey conference. (ADF 20.) Though UCD added
12
women’s soccer in 1983 after it eliminated women’s field hockey, UCD admits that the addition did not
13
result in program expansion for women. (ADF 17.)
14
UCD argues that Plaintiffs may not rely on its historic failure to expand opportunities to defeat
15
summary judgment because “they will be unable to show that had any impact on them” as they were not
16
students in the 1970’s and 1980’s. (Def’s MPA at 23.) The argument should be rejected outright, as UCD’s
17
entire history is relevant to Prong Two regardless of the tenure of these particular plaintiffs. 1996 OCR
18
Clarification at 7. UCD mis-cites Pederson v. La. State Univ.(“Pederson I”), 912 F. Supp. 892 (M.D. La.
19
1996), aff’d in part, rev’d in part on other grounds, 213 F.3d 858 (5th Cir. 2000), for this argument.
20
Pederson I in no way limited or modified the required analysis of history under Prong Two. Rather, the
21
court addressed the issue of whether plaintiffs who had not established the requisite skill to compete at the
22
varsity level could claim impact by the university’s failure to provide equal varsity athletic opportunities
23
program-wide. Id. at 907.
24
b. UCD Did Not Expand Participation Opportunities From 1998-2005.
25

26

UCD cannot prevail on summary judgment where it did not expand actual female opportunities

27 from 1998 to 2005. (ADF 27.) Rather, UCD eliminated dozens of varsity opportunities, without replacing

28

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1 them or engaging in further expansion, during a time period in which female enrollment grew by over 2,200

2 students. (ADF 27, 30.) Having failed to expand actual opportunities, UCD failed to satisfy Prong Two.

3

UCD’s reliance on the relative percentage increase of women in varsity sports does not save this motion.

4 UCD claims “expansion” because the percentage of women athletes relative to their enrollment increased between

5 1995 and 2005. But this fact alone tells an incomplete story and is insufficient to satisfy Prong Two’s requirement

6 of a history and continuing practice of expanding opportunities for women. In 1995, UCD was out of compliance by

7 20%. For a brief period, until 1999, it increased the actual athletic opportunities for women as well as narrowed the

8 margin between the percentage of women athletes and the percentage of women students. But from 1999 until

9 2005, that margin fluctuated (that is improved in 2000, but then worsened in 2001, 2002, 2003 and again in 2005),

10 and the actual number of women’s athletic opportunities declined – from 426 in 1999 to 368 in 2005. The only way

11 that the percentage of women relative to enrollment increased at all during 1999-2005 was because UCD capped the

12 number of men’s teams at the same time they were eliminating women’s opportunities, thus improving the

13 appearance, but not the reality, of women’s athletics at Davis. As conceded by UCD’s Title IX expert, reductions in

14 the men’s athletic program is not program expansion for women under Prong Two. (UMF 50.) As noted in the

15 OCR’s 1996 Clarification:

16

OCR will not find a history and continuing practice of program expansion where an institution

increases the proportional participation opportunities for the underrepresented sex by reducing

17

opportunities for the overrepresented sex alone or by reducing participation opportunities for the

overrepresented sex to a proportionately greater degree than for the underrepresented sex. This is

18

because part two considers an institution's good faith remedial efforts through actual program

expansion.

19

20 1996 OCR Clarification (Title IX Appx. Exh. B) at 8.

21 The court in Roberts v. Colorado State Board of Agric. agreed: “[T]he ordinary meaning of the word “expansion”

22 may not be twisted to find compliance under this prong when schools have increased the relative percentage of

23 women participating in athletics by making cuts in both men’s and women’s sports programs.” Roberts, 998 F.2d at

24 830.

25

UCD’s reliance on its addition of teams similarly fails to support Title IX compliance as a matter of law.

26 UCD asserts that it has satisfied Prong Two because it added three women’s varsity sports in 1996, women’s indoor

27

28

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1 track in 1998 and women’s golf in 2005.7 As a preliminary matter, UCD’s addition of three women’s varsity teams

2 in 1996 did not compensate for 25 years of non-expansion and did not bring UCD even close to substantial

3 proportionality. (ADF 21, 22.) Moreover, UCD’s contention that it added women’s indoor track in 1998-1999 is 4 disputed. UCD treats indoor and outdoor track a combined sport.8 (ADF 23-25.) The credibility of UCD’s claim

5 that it was added as a new sport is strained by documents addressing the addition of new women’s sports generated

6 before this litigation, which make no mention of women’s indoor track as a new and separate sport. (ADF 26.)

7 Such credibility determinations are within the proper province of the jury. Soremekun, 509 F.3d at 984. Most

8 importantly, UCD documents establish that the purported addition of indoor track did not actually add female

9 participation opportunities at UCD. (ADF 25.)

10

The evidence thus establishes that UCD added three teams in 1996, but then rested on its laurels until

11 prompted by this litigation to add another team in 2005. In the meanwhile, UCD dropped female participation

12 opportunities on existing varsity teams, such as women’s lacrosse, water polo and wrestling. (ADF 4, 33.) UCD

13 contends that at least some of the drop in female participation opportunities can be explained by UCD’s elimination

14 of “B” teams on the women’s varsity lacrosse and water polo teams, which was a “valid reason” in its view. Even if

15 a drastic drop in participation opportunities could be justified under Prong Two, which Plaintiffs do not concede, the 16 validity of UCD’s reason is a factual dispute not suitable for resolution here.9 UCD merely asserts why lacrosse

17 slots were eliminated; it does not present any evidence to support this assertion. (ADF 33.) UCD’s suggestion that

18 water polo slots were eliminated because of lack of competition is contradicted by the declaration of water polo

19 coach Jamey Wright, who admitted that competition existed for the “B” teams against club teams at other institution.

20 (ADF 33.) UCD’s expert agrees that the elimination of varsity opportunities is not appropriate where competition

21

22 7 While UCD claims that it started women’s golf in 2004, its own admissions indicate otherwise. Women’s golf did

23

not begin competition until the 2005-2006 school year. (ADF 22.) 8 Rejecting the attempt to rely on purported “women’s indoor track” as a team for the purposes of Prong Two is not

24

without precedent. In Cohen I, the court was not impressed with and did not credit Brown for the addition of women’s winter track as evidence of expansion under Prong Two, characterizing it as “a sport that merely involved

25

providing indoor space to the existing women’s track team.” Cohen I, 809 F. Supp. at 991. 9 Plaintiffs’ Title IX Expert Donna Lopiano opined that it is normal to see a fluctuation in participation opportunities

26

by 4-7 athletes program-wide at an institution in any given year, and that these very minimal fluctuations may be acceptable under Prong Two if made up for immediately and expanded upon. However, both the volume drop in

27

participation rates and its continued drop over a number of years at UCD disqualifies it from relying on Prong Two. (UMF 148.)

28

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1 exists for the athletes, including competition against other club teams. (UMF 156.) Moreover, even if such

2 justification for the elimination of existing opportunities existed, it does not excuse the lack of expansion of

3 opportunities that must be shown to satisfy Prong Two.

4

What is clear is that UCD took no action to replace these eliminated participation opportunities much less

5 engage in program expansion. Between 1998 and 2005, female enrollment at UCD went from 10,596 to 12,834,

6 adding over 2,200 women to UCD. (See ADF 27.) At the same time, 63 female participation opportunities were

7 dropped at UCD, a drop that UCD’s expert conceded was “drastic.” (ADF 29.) By 2005, the athletic participation

8 rates for women were at the lowest point since 1997. (ADF 27.) UCD’s addition of seven women’s varsity golf

9 opportunities did not compensate for the loss of several teams worth of opportunities during this period. (ADF 22.)

10 UCD’s failure to expand opportunities is determinative of the Prong Two analysis, or at the least, it is sufficient to

11 raise a genuine issue of material fact on this motion.

12

c. UCD’s Theory That It Should Be “Credited” For Adding Multiple

Sports In 1995-1996 Is Without Legal Support And Cannot Form The

13

Basis For Establishing Program Expansion.

14

The Court should also reject UCD’s effort to avoid its obligation to expand opportunities under Title IX

15

through an unprecedented “crediting” theory. UCD proposes that it be given two to three years credit for each of the

16

three sports it added in 1995, as though it added a team in 1995, another in 1998, and another in 2001. The crediting

17

theory does not establish compliance under Prong Two because the addition of teams, even if credited somehow,

18

fails to remedy UCD’s failure to expand opportunities during this time period.

19

Moreover, UCD expert Grant herself admits that she has never advanced her crediting theory before this

20

case, and that it has no basis in Title IX regulations, OCR guidelines or case precedent. (UMF 142.) See 34 C.F.R.

21

§ 106.41(c), Policy Interpretation, 44 Fed. Reg. 71,413, and 1996 OCR Clarification (Title IX Appx. Exh. B), none

22

of which provide for a Prong Two “crediting” where more than one team has been added at once. As noted by

23

Plaintiffs’ Title IX Expert, Dr. Lopiano, based on her vast experience developing Title IX regulations, and advising

24

OCR on its Title IX interpretations and guidelines: “[T]his is not Verizon and banking minutes. There is no concept

25

like that that has ever been contemplated byThere is no concept like that that has ever been contemplated by OCR

26

and I think it is a patently ridiculous concept. . . It doesn’t make sense logically. It’s made up. . . It is inconsistent

27

with everything [Grant] has said previously.” (UMF 142.)

28

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1

The crediting theory has also been flatly rejected by all courts that have considered it, and for good reason.

2 In Cohen II, Brown University challenged a decision by the lower court to grant a motion for preliminary injunction

3 to stop the elimination of two women’s varsity teams on the grounds that the lower court did not sufficiently credit

4 Brown’s dramatic expansion of the women’s program in the 1970’s. Cohen II, 991 F.2d at 903. All but one of

5 Brown’s 15 women’s teams were created between 1971 and 1977. Cohen I, 809 F.Supp. at 981. Women’s indoor

6 track was added five years later in 1982, nine years before the analysis period by the Court. In upholding the district

7 court’s decision, the Court of Appeal refused to credit Brown’s rapid expansion of the women’s program through

8 the addition of fourteen women’s team during a six year period:

9

While a university deserves appreciable applause for supercharging a low voltage athletic program

in one burst rather than powering it up over a longer period, such an energization, once undertaken

10

does not forever hold the institution harmless. Here, Brown labored for six years to weave a broad

array of new activities into the fabric of its palestrian offerings. The district court apparently

11

believed, however, that Brown then rested on its laurels for at least twice as long. The very length

of this hiatus suggests something far short of a continuing practice of program expansion.

12

13 Cohen II, 991 F.2d at 903.

14

The crediting theory was similarly rejected in Roberts, 998 F.2d 824, 830. The institution challenged a

15 district court’s failure to give greater weight to its dramatic expansion of women’s athletic opportunities in the

16 1970’s. Id. CSU added eleven teams in the1970’s, with the last sport added in 1977, but the district court found that

17 it had not demonstrated a history and continuing practice of program expansion. Id. The Court of Appeal rejected

18 the argument, noting “In essence, defendant suggests reading the words ‘continuing practice’ out of this prong of the

19 test.” Id. The Court upheld the district court’s decision, especially in light of the fact that women’s participation

20 opportunities declined steadily after the expansion of the program in the 1970’s.

21

As in Cohen and Roberts, applying Dr. Grant’s crediting theory here would lead to absurd results. It would,

22 in essence, allow UCD to sit back and wait until prodded by an embarrassing disparity between women’s athletic

23 opportunities and women’s enrollment, at which time it would add a few teams, still not reach proportionality, and

24 rest on its laurels once more. This is the antithesis of the “continuing practice of program expansion” that Prong

25 Two requires. As Dr. Lopiano noted: “We would probably see a stoppage of the addition of women’s sports within

26 the next two decades.” (UMF 142.)

27

28

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1

Even more importantly, the reason Dr. Grant’s crediting theory fails is that it neglects to carefully examine

2 whether an institution is actually expanding women’s athletic opportunities by looking at “teams” rather than

3 “opportunities,” which is the goal of Title IX and the mandate of Prong Two. In other words, an institution cannot

4 claim compliance with Title IX just by adding teams when it is in fact (by capping men’s teams and/or reducing the

5 sizes of other women’s teams) not adding more opportunities for women. (UMF 150.) UCD offered less athletic

6 opportunities for women in 2005 than it did in 1999. (UMF 30.) This cannot, by any stretch, be considered

7 program expansion.
8

d. UCD Eliminated Existing Female Participation Opportunities, Including Women’s Varsity Wrestling.

9

UCD’s elimination of women’s wrestling opportunities at a time when it was not otherwise complying with

10 Title IX also precludes its reliance on Prong Two on summary judgment. Where an institution is not in compliance

11 with Title IX, its elimination of existing and viable female participation opportunities is evidence that Prong Two is

12 not satisfied and constitutes a further violation of Title IX. See Barrett, 2003 WL 22803477, at *7 (elimination of

13 women’s gymnastic team was evidence of violation of Title IX and non-compliance with Prong Two where

14 institution was not otherwise in compliance with Title IX); Cohen II, 991 F.2d at 897-98 (elimination women’s

15 volleyball and gymnastic teams was evidence of violation of Title IX and non-compliance with Prong Two);

16 Roberts, 998 F.2d at 830 (elimination of women’s softball team was evidence of violation of Title IX and non-

17 compliance with Prong Two.)

18

To refute this, UCD suggests a wide variety of contradictory arguments. UCD first contends it did not

19 eliminate a women’s wrestling program because Plaintiffs were not existing varsity athlete and/or they were not

20 participating in a women’s program. Ample evidence disputes both assertions. To suggest that Plaintiffs and other

21 women wrestlers were not official varsity participants, UCD relies heavily on UCD media guides produced as

22 promotional materials, not official statements about team status. (Response to UMF 19.) Moreover, this evidence is

23 refuted by evidence establishing that Plaintiffs and other women wrestlers were on team rosters, competed in events

24 and completed varsity athlete eligibility requirements. (ADF 52, 55.) UCD provided them with the benefits of

25 varsity status, including coaching, trainers, facilities, laundry, lockers, medical insurance, and academic tutoring.

26 (ADF 54.) OCR recognizes these as indicators of varsity participant status:

27

As a general rule, all athletes who are listed on a team's squad or eligibility list and are on the team as of the

team's first competitive event are counted as participants by OCR. . . . . In determining participation

28

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opportunities, OCR includes, among others, those athletes who do not receive scholarships (e.g., walk-ons),

1

those athletes who compete on teams sponsored by the institution even though the team may be required to

raise some or all of its operating funds, and those athletes who practice but may not compete.

2

3

1996 OCR Clarification (Title IX Appx., Exh. B) at 6.

4

In addition, even though ample evidence exists that Plaintiffs competed while at UCD, whether they did so

5 is not determinative. (Id.) Nor is the type of competition in which they participated. Both parties’ experts agree that

6 it is acceptable for varsity athletes in a developing sport to obtain competition in open or amateur events. (UMF

7 156.) As an expert in Favia v. Indiana University of Pennsylvania, Dr. Grant “testified that it was good for student

8 athletes to compete in championship meets no matter who sponsored them, or how prestigious they might be, and

9 that whether or not it was the N.C.A.A. that sponsored them should not be a factor.” Favia, 812 F.Supp. at 582.

10 UCD’s argument that Plaintiffs were not part of a women’s program is belied by admissions of UCD’s Athletic

11 Director, who admitted that UCD had a women’s varsity program. Ample evidence thus exists that UCD

12 eliminated an existing women’s varsity wrestling program.

13

UCD next contends that its elimination of the women’s varsity program was not discriminatory because it

14 sufficed to provide Plaintiffs with the opportunity to try out for the men’s wrestling team. UCD argues that what

15 Plaintiffs sought was preferential inclusion on the men’s team where they lacked the necessary skills. However, as

16 noted by the Court in denying UCD’s motion for judgment on the pleadings on this point: “[T]he crux of plaintiffs’

17 claim is that this accommodation was not effective because they were forced to compete in a contact sport against

18 men using men’s rules.” (Memo. & Order [Docket # 226] at 25:27-26:2.) The facts bear this out. (See ADF 88,

19 93.) Requiring that women compete against men in a contact sport generally applicable to men, in order to have a

20 varsity athletic opportunity, is hardly non-discriminatory. If such a policy were generally permitted there would be a

21 substantial risk that boys would dominate the girls thereby denying them a real opportunity to compete. This is

22 precisely why courts have repeatedly upheld separate but equal athletic programs under Title IX as constitutionally

23 permissible. See, e.g., O’Connor v. Bd. of Educ., 449 U.S. 1301 (1980).

24

UCD’s cases on this point are inapposite, as all of the cases considered a different issue, that is, whether

25 women were entitled to try out for a position on a men’s team. Here, no matter how UCD bends the facts, Plaintiffs

26 never sought such an opportunity. (ADF 49, 66.) Instead, Plaintiffs were varsity wrestlers who were eliminated

27 from the wrestling program because of their gender, and were then refused the creation of a separate women’s team

28

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1 by UCD. (ADF 4, 87.) UCD eliminated equal opportunities and replaced them with discriminatory requirements

2 for continued participation. This violates Title IX.

3

e. The Mere Existence of Title IX Committees, Policies, and Plans Do Not

Constitute a History and Continuing Practice of Program Expansion.

4

UCD’s last-ditch effort to establish a history and continuing practice of program expansion through the

5
existence of Title IX committees, policies, and plans is also insufficient to support summary judgment. None of

6
these factors constitute compliance with Prong Two where an institution has not engaged in actual expansion.

7
Barrett, 2003 WL 22803477 at * 7 (the formation of a Title IX committee is insufficient under Prong Two,

8
especially where institution ignores Title IX compliance warnings from that committee); Favia I, 812 F.Supp. at

9
585. (“You can’t replace programs with promises.”) See also Choike v. Slippery Rock Univ. of Pa., No. CIVA 06-

10
622, 2006 WL 2060576 (W.D. Pa. Jul. 21, 2006), at *7 (“Having a plan to ameliorate inequities is not the same as

11
having ameliorated them.”)

12
Here, UCD had committees that issued repeated warnings over a ten year period to UCD that it was not

13
complying with Title IX. (ADF 11.) Despite these warning, these committees did not implement plans with

14
specific timetables to reach Title IX compliance. (ADF 41.) Plans that fail to set forth a specific timetable for Title

15
IX compliance are inadequate. (UMF 145.) Favia v. Ind. Univ. of Pa. (“Favia II”), 7 F.3d 332, 343 (3d Cir. 1993)

16
aff’g, 812 F. Supp. 578 (W.D. Pa. 1993)) (in upholding a preliminary injunction issued by the district court, the

17
Third Circuit noted that the institution “did not have a specific overall plan in place to achieve total compliance at

18
any projected future date.”) Moreover, whether UCD’s policies regarding the addition of women’s sports were

19
adequate is disputed by evidence that suggests that they were not regularly communicated or utilized by UCD.

20
UCD also admits that it deviated from the criteria which were supposed to govern the selection of new women’s

21
sports when it added women’s varsity golf. (UMF 122.) Because UCD’s committees, policies, and plans did little

22
to ensure actual gender equity and program expansion for women, they are insufficient to establish Prong Two

23
compliance on summary judgment.

24

4. Assuming Arguendo That UCD Expanded Participation Opportunities for

25

Women Athletes, It Did Not Do So in a Manner That Was Demonstrably

Responsive to The Developing Interest and Abilities of Its Female Students.

26

To the extent that UCD created female varsity opportunities during the period of 1997-2005, it did not

27
create opportunities that were demonstrably responsive to UCD student interest in sports such as wrestling,

28

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1 badminton, field hockey, bowling, and equestrian. (ADF 37, 39, 40.) This alone is sufficient grounds to deny

2 summary judgment. As noted in Cohen II: “[A] university must design expansion in whatever form and at

3 whatever pace to respond to the flux and reflux of unserved interests. . . . The issue of responsiveness is fact-

4 intensive and in most instances, as here, its resolution will be within the trier's province. Cohen II, 991 F.2d at 903.

5

UCD rejected applications for varsity status from women’s field hockey and badminton teams in

6 1995, and made no effort to expand opportunities in response to this developing interest, despite the fact that

7 female participation opportunities spiraled downward over the next ten years. (ADF 19.) Instead, UCD

8 rejected applications for varsity teams submitted for these same sports again in 2003, along with

9 applications for varsity status from the women’s rugby, bowling, and equestrian club teams. (ADF 37.)

10 Then, in 2005, UCD added women’s golf despite the fact that no women’s golf club team existed on

11 campus, and it had to recruit for a year in order to actually field a team. (ADF 39.) Such evidence is

12 sufficient to raise a genuine issue of material fact as to whether UCD acted in a manner that was

13 demonstrably responsive to developing interest and ability of its female students.

14

5. Genuine Issues of Material Fact Exist As To Whether UCD Also Violated

Title IX By Failing To Establish A Separate Women’s Varsity Wrestling

15

Team.

16

Even assuming arguendo that a women’s varsity wrestling program never existed at UCD, UCD violated

17 Title IX when it failed to create a separate women’s wrestling team at Plaintiffs’ request. For purposes of Title IX,

18 wrestling is a contact sport. 34 C.F.R. § 106.41(b), 45 C.F.R § 86.41(b). OCR’s 1979 Title IX Policy Interpretation

19 explains the application of the Policy Interpretation in the selection of sports by an institution, including an

20 institution’s obligations with respect to contact sports. Specifically, it provides that:

21

Effective accommodation means that if an institution sponsors a team for members of one

22

sex in a contact sport, it must do so for members of the other sex under the following circumstances:

23

(1) The opportunities for members of the excluded sex have historically been limited; and

(2) There is sufficient interest and ability among the members of the excluded sex to

24

sustain a viable team and a reasonable expectation of intercollegiate competition for that

team.

25 OCR 1979 Policy Interpretation, 44 Fed. Reg. at 71418.

26

UCD disregards this aspect of Title IX in its entirety. Instead, it claims that it had no obligation to allow

27 women to try out for the men’s wrestling team, but did so anyway, suggesting that in doing so it exceeded its

28

28

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1 obligations under Title IX. UCD’s argument – and its conduct -- misses the mark completely. As the Policy

2 Interpretation makes clear, because wrestling is a contact sport from which women have been historically excluded,

3 and because, as the evidence demonstrates, there was and continues to be sufficient interest and ability to sustain a

4 viable women’s wrestling team with a reasonable expectation of intercollegiate competition, UCD violated Title IX

5 by refusing to field a women’s wrestling team after being asked repeatedly by Plaintiffs to do so.

6

While OCR has not provided specific guidance about how to evaluate interest and ability for the purpose of

7 this provision, its discussion of factors to be considered in evaluating interest and ability under Prong Three is

8 instructive. Interest factors include: (1) requests by students and admitted students that a particular sport be added;

9 (2) participation in particular sports by admitted students; and (3) participation rates in high schools, amateur athletic

10 associations and community sports leagues from which the institution draws its students in order to ascertain likely

11 interest and abilities of its students and admitted students in a particular sport. 1996 OCR Clarification (Title IX

12 Appx., Exh. B) at 9-10. OCR’s ability factors include: (1) the athletic experience and accomplishments – in

13 interscholastic, club or intramural competition – of students and admitted students interested in playing the sport; (2)

14 opinions of coaches, administrators, and athletes at the institution regarding whether interested students and admitted

15 students have the potential to sustain a varsity team; and (3) if the team has previously competed at the club or

16 intramural level, whether the competitive experience of the team indicates that it has the potential to sustain an

17 intercollegiate team. Id. Neither a poor competitive record nor the inability of interested students or admitted

18 students to play at the same level of competition engaged in by the institution's other athletes is conclusive evidence

19 of lack of ability. Id. It is sufficient that interested students and admitted students have the potential to sustain an

20 intercollegiate team. Id.

21

OCR does provide specific guidance with respect to requirement in the Contact Sport Provision that there be

22 a reasonable expectation of competition for the separate contact sport team. The 1990 OCR Title IX Athletics 23 Investigator’s Manual10 clarifies that an institution must look within its normal competitive regions for the

24

25

26 10 Cohen I, 809 F. Supp. at 988 (recognizing that the unpublished Investigator’s Manual does “not carry the force of

27

law or establish controlling standards,” but concluding that it is, to some extent, an important guide “in unraveling the requirements of the athletic regulation”), see also Roberts, 998 F.2d at 828-30 ( looking to Investigator’s Manual

28

for guidance determining the substantial proportionality test governing the effective accommodation requirement).
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1 possibility of competition. OCR, Title IX Investigator’s Manual (1990), (hereinafter “1990 OCR Manual”) at 2711

2 The 1990 Manual also provides: “Institutions may be required by the Title IX regulation to actively encourage the

3 development of such competition … when overall athletic opportunities within that region have been historically

4 limited for members of one sex.” (Id.)

5

Plaintiffs present sufficient evidence to raise a genuine issue of material fact as to interest, ability, and

6 competition for women’s wrestling under these standards. Women have been competing in UCD’s varsity

7 wrestling program consistently since 1992. (ADF 46, 48.) Plaintiffs were actively participating in the varsity

8 wrestling program when UCD unlawfully removed them, establishing interest and ability. (ADF 72.) Plaintiffs

9 such as Lauren Mancuso competed at a high level in the sport and came to UCD to do so as well. (ADF 65.) Coach

10 Burch testified that he could have easily recruited a team from the immediate region alone. (ADF 72.) Thousands

11 of girls and women were competing in California and nationwide. (ADF 73.) Many high school girls continued to

12 inquire about wrestling opportunities at UCD once the program was cut. (ADF 95.)

13

In this case, UCD’s normal competitive region during this time period spanned the country. (UMF 6.)

14 Substantial intercollegiate competition for women’s wrestling existed throughout UCD’s competitive regions,

15 including national championships. (ADF 73.) Moreover, whether UCD actively encouraged the development of

16 intercollegiate competition for women wrestlers is a matter of disputed material fact. (ADF 74.) Several athletic

17 administrators admitted that they did not develop competition for women wrestlers, in sharp contrast to UCD efforts

18 to create an entirely new football conference to enable its team to play because the Big West Conference did not

19 have football. (ADF 74.)

20

Because Plaintiffs present substantial evidence confirming sufficient interest and ability to sustain a

21 women’s wrestling team, and evidence demonstrating a reasonable expectation of competition, they have raised a

22 genuine issue of fact sufficient to defeat summary judgment on this ground alone.

23 //

24 //

25 //

26

27

11 Relevant portions of which are attached as App. Ex. KKKK. Defendant’s evidence in support of its motion is appended to their Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, filed herein on

28

January 11, 2008 (Docket # 287-308). All references to these exhibits will be referenced as “App. Ex.”
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6. UCD’s Conduct Constituted Intentional Discrimination, and in Any Event,

1

Triable Issues of Material Fact Preclude Summary Judgment on This

Ground.

2

3

UCD wrongly contends that Plaintiffs lack evidence that UCD’s Title IX violations were intentional or

4 deliberately indifferent. According to UCD, the school is insulated from liability for Title IX damages because it

5 tried to work with OCR to resolve Plaintiffs’ complaints, because it thought Plaintiffs’ request to participate in

6 wrestling was not well-founded, and because it believed there was insufficient interest to establish a women’s

7 wrestling team. (Def.’s MPA at 32-37.) None of these are grounds for judgment against Plaintiffs as a matter of

8 law.

9

As an initial matter, UCD misconstrues the intent requirement for Title IX. Plaintiffs need not prove that

10 UCD specifically intended to violate Title IX, but only that UCD meant to treat its female wrestlers and other female

11 athletes the way it did—in other words, all that is required is that UCD behaved volitionally, as opposed to

12 accidentally, with regard to its treatment of women athletes. Pederson v. La. State Univ. (“Pederson II”), 213 F.3d

13 858, 881 (5th Cir. 2000) (university need not have intended to violate Title IX to be held liable for damages); Favia

14 I, 812 F. Supp. at 584 (in an equal accommodation case, court confirmed that “Title IX and the implementing

15 regulations can be violated without showing a specific intent on the part of the educational institution to discriminate

16 against women”); see Cannon v. Univ. of Chi., 441 U.S. 677, 680 (1979) (plaintiff’s exclusion from participation in

17 defendant’s medical program because of her sex is intentional discrimination that violates Title IX); Cmtys. for

18 Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 696 (6th Cir. 2006) (proof of discriminatory animus not

19 necessary to establish Title IX violation: “The Court's task is to analyze the resulting athletic opportunities for girls

20 and boys from the different treatment that they experience …, and if girls receive unequal opportunities, Title IX has

21 been violated”); Haffer v. Temple Univ., 678 F.Supp. 517, 527, 539-40 (E.D. Pa. 1987) (finding requisite “intent” in

22 university’s explicit classification of intercollegiate athletic teams on the basis of gender; denying summary

23 judgment; holding plaintiffs need not prove discriminatory animus to succeed on Title IX claim in action

24 challenging gender inequity in university's intercollegiate athletic program).

25

Courts refer to “disparate treatment” as “intentional discrimination” because disparate treatment means an

26 intent to treat differently. In sex segregated cases like athletics, intent is established as a matter of law because males

27 and females are separated into different groups from the outset. Any different treatment of these segregated groups

28

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1 constitutes sex-based disparate treatment. Haffer, 678 F. Supp. at 527; Glover v. Johnson, 478 F. Supp. 1075, 1080

2 (E.D. Mich. 1979). No evil motive is required to prove a violation. A defendant is liable even if its motive is

3 benevolent or if its intent is to “help” females. Such paternalism and archaic views of females are merely another

4 form of discrimination. United States v. Virginia, 518 U.S. 515, 532-34 (1996); Frontiero v. Richardson, 411 U.S.

5 677, 684-85 (1973); UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (“[w]hether an employment practice

6 involves disparate treatment through explicit facial discrimination does not depend on why the employer

7 discriminates”); Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995) (absence of malevolent intent

8 does not convert facially discriminatory policy into neutral policy with discriminatory effect).

9

Title IX’s prohibitions against discrimination require that students “are not only protected from

10 discrimination, but also specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits of”

11 any ‘education program or activity receiving Federal financial assistance.’ [20 U.S.C.] § 1681(a). The statute makes

12 clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on

13 the basis of gender.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1990). Thus, a university’s

14 “intentional decision not to accommodate effectively the interests of their female students by not providing sufficient

15 athletic opportunities” is intentional discrimination in violation of Title IX. Pederson II, 213 F.3d at 880.

16

As the Court in Pederson noted, for example, treatment of women based on outdated attitudes about gender

17 constitute intentional discrimination. Defendant “need not have intended to violate Title IX, but need only have

18 intended to treat women differently.” Id.; citing United States v. Virginia, 518 U.S. at 533 (holding that an

19 institution's refusal to admit women is intentional gender discrimination in violation of the Equal Protection Clause

20 because, inter alia, of “overbroad generalizations about the different talents, capacities, or preferences of males and

21 females”); Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984) (warning of the dangers posed by gender

22 discrimination based on “archaic and overbroad assumptions”). Just as the Pederson II court held a university liable

23 for Title IX damages over its protests that it never intended to violate the statute and had even invited an OCR

24 investigation into its women’s athletic program, it is no defense to UCD’s damages liability here that the school

25 may not have intended to discriminate against women, or that it worked with OCR in an effort to resolve Plaintiffs’

26 complaints. 213 F.3d at 880-81. Moreover, as the facts demonstrate, far from resolving the discrimination, the

27 OCR’s plan compounded it by requiring plaintiffs to wrestle off against men thus effectively barring them from the

28

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1 wrestling program. (ADF 83.)

2

Equally unavailing is UCD’s attempt to disprove intent on grounds of the purported reasonableness of its

3 refusal to separate the women wrestlers from the roster cap.12 First, UCD’s handling of the wrestling team roster

4 cap is just a tiny sliver of the evidentiary pie in this case, which addresses not just UCD’s treatment of women

5 wresters but the administration of women’s athletics as a whole. But more to the point, UCD’s subjective and self-

6 serving belief in the reasonableness of its conduct toward women wrestlers in particular—or, for that matter, women

7 athletes generally—does not negate that the university acted intentionally within the meaning of Title IX. Pederson

8 II, 213 F.3d at 880-82 (university’s steadfast belief its women’s athletic program was “wonderful” does not negate

9 Title IX intent).

10

Moreover, assessing motive “is an inherently complex endeavor” that is most appropriately resolved by the

11 factfinder at trial upon consideration of a full record. Hunt v. Cromartie, 526 U.S. 541, 546 (1999). Without such a

12 “searching inquiry” by the factfinder, “‘those [acting for impermissible motives] could easily mask their behavior

13 behind a complex web of post hoc rationalizations.’” Lowe v. City of Monrovia, 775 F.2d 998, 1009, (9th Cir.

14 1985), amended by 784 F.2d 1407 (9th Cir. 1986) quoting Peacock v. Duval, 694 F.2d 644, 646 (9th Cir. 1982)).

15

Finally, UCD argues at length that judgment should be entered against Plaintiffs as a matter of law due to an

16 ostensibly insufficient interest in women’s wrestling at UCD. (Def.’s MPA at 34-37.) This argument is particularly

17 troubling not because it presents any threat to the sufficiency of Plaintiffs’ claims, but because it speaks volumes

18 about the insidious and systemic problem of sex discrimination in UCD’s women’s athletic program. As aptly

19 explained by the Fifth Circuit in the Pederson II case:

20

Appellees argue brazenly that the evidence did not demonstrate sufficient interest and ability in fast-

pitch softball at LSU and that, therefore, they cannot be liable under Title IX. The heart of this

21

contention is that an institution with no coach, no facilities, no varsity team, no scholarships, and no

recruiting in a given sport must have on campus enough national-caliber athletes to field a

22

competitive varsity team in that sport before a court can find sufficient interest and abilities to exist.

It should go without saying that adopting this criteria would eliminate an effective accommodation

23

claim by any plaintiff, at any time.

24 Pederson II, 213 F.3d at 878.

25

Nonetheless, as set forth above, Plaintiffs have presented ample evidence of interest sufficient to raise a

26

27 12 UCD’s claim that Plaintiffs requested a “separate roster cap” is disputed. (UMF 85.)

28

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1 genuine issue of material fact to be decided by a jury. (ADF 73; UMF 156.)

2

The motion should be denied accordingly.

3

7. UCD Is Not Entitled to Summary Judgment on Notice Grounds.
4
UCD contends that Plaintiffs’ claim for damages under Title IX is barred as a matter of law because UCD

5
did not have notice of Plaintiffs’ ineffective accommodation charge. UCD’s argument is legally and factually

6
untenable.

7

a. UCD Misapprehends and Misapplies Gebser’s Notice Requirement.

8

As the United States Supreme Court has made clear, where, as here, plaintiffs allege that a recipient of

9 federal funds (i.e., a university) is engaged in intentional sex discrimination in violation of Title IX, that recipient is

10 necessarily on notice of its obligations to comply with the law as a result of receiving federal funds. No further

11 notice is required. Additional notice has been required only in the context of Title IX teacher-student and

12 student-student sexual harassment claims, because the concern in those cases is holding a university liable for acts of

13 which it has no knowledge.

14

Title IX jurisprudence in this area is firmly established. In Cannon v. Univ. of Chi., the Supreme Court held

15 that a plaintiff alleging discrimination in admissions against a university had an implied right of action. In so

16 holding, the Court noted that in enacting Title IX, Congress had two objectives: first, it “wanted to avoid the use of

17 federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective

18 protection against those practices.” Cannon, 441 U.S. at 704. Then in Franklin v. Gwinnett County Pub. Schs., 503

19 U.S. 60 (1992), the Court held that a plaintiff asserting a Title IX claim was entitled to monetary damages, finding

20 that “the traditional presumption in favor of any appropriate relief for violation of a federal right” applies to Title IX.

21 Franklin, 503 U.S. at 73. The Court flatly rejected the school’s argument that it had insufficient notice of its

22 obligations to face liability for monetary damages. Finding that Title IX “unquestionably” placed upon the school

23 the duty not to discriminate on the basis of sex, the Court further stated, “Congress surely did not intend for federal

24 moneys to be expended to support the intentional actions it sought by statute to proscribe.” Id. at 75.

25

Each Supreme Court case since Franklin to address the issue has similarly explained that Title IX itself

26 provides sufficient notice to recipients of federal funds of their obligations under Title IX not to discriminate on the

27 basis of sex. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), upon which UCD principally relies, is

28

34

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1 inapposite. Plaintiff Gebser, a high school student who was sexually harassed by a teacher who involved her in a

2 secret sexual relationship, sought damages from her school district under Title IX. Gebser, 524 U.S. at 274. Based

3 on the record before it, the Supreme Court affirmed the district court’s finding that the school district reasonably

4 lacked any knowledge of the teacher’s clandestine discriminatory harassment, and thus had no opportunity to initiate

5 remedial action before the plaintiff resorted to litigation. Id. at 278-79. The Court held that, under the facts

6 presented, the school district could not be held liable for Title IX damages for its teacher’s unlawful conduct on a

7 pure respondeat superior and constructive notice theory; there must be some evidence that an authorized employee

8 or official actually knew or should have known of the underlying sexual abuse before Title IX damages liability

9 attaches. Id. at 274-76. The Supreme Court carefully circumscribed the intended reach of its holding:

10

[P]etitioners seek not just to establish a Title IX violation but to recover damages based on theories

11

of respondeat superior and constructive notice. It is that aspect of their action, in our view, that is

most critical to resolving the case.
12

13 Id. at 283.

14

Gebser’s narrow holding—that a funding recipient is not liable for Title IX damages on a respondeat

15 superior and constructive notice theory absent any evidence that it knew or should have known of an employee’s

16 underlying acts of discriminatory harassment—imposes no unmet burden on Plaintiffs in this equal

17 accommodations case. Plaintiffs here do not, and need not, rely on a “respondeat superior and constructive notice”

18 theory to establish UCD’s violation of Title IX because UCD was fully (and perhaps even uniquely) aware of the

19 level and extent of athletic opportunities afforded to female students. Quite unlike the school district that was

20 oblivious to a teacher’s covert abuse of a student in Gebser, the evidence here establishes that UCD administration

21 officials had direct oversight and responsibility for all aspects of the women’s athletic program relevant to Plaintiffs’

22 ineffective accommodation claim, including ensuring the university’s compliance with Title IX. (ADF 1,2.)

23 Nothing further is required. (ADF 1, 2); Gebser, 524 U.S. at 297 (“because respondent assumed the statutory duty

24 set out in Title IX as part of its consideration for the receipt of federal funds, that duty constitutes an affirmative

25 undertaking that is more significant than a mere promise to obey the law”).

26

The Supreme Court has repeatedly reaffirmed this principle. In Davis, 526 U.S. at 641-42, the Court stated

27 that notice “is not a bar to liability where a funding recipient intentionally violates the statute.”

28

35

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1

Then in 2005, the Supreme Court again reiterated that recipients of federal funds consent to be subjected to

2 suit for alleged intentional discrimination in Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005). In

3 concluding that Title IX encompassed a private right of action for retaliation and rejecting defendant’s “notice”

4 argument, the Court stated that recipients of federal funds “have been on notice that they could be subjected to

5 private suits for intentional sex discrimination under Title IX since 1979, when we decided Cannon.” Id. at 182.

6 The Court drove its point home by stating that notice “does not bar a private damages action under Title IX where

7 the funding recipient engages in intentional conduct that violates the clear terms of the statute.” Id. at 183 (citations

8 and internal quotations omitted). Title IX thus “encompass[es] diverse forms of intentional sex discrimination.” Id.

9

Where, as here, school officials had direct access to and oversight responsibility for all relevant aspects of

10 the women’s athletic program including the obligation to ensure its compliance with Title IX, the university was “on

11 notice” and appropriately may be called to account for its failure to effectively accommodate women’s athletic

12 interests and abilities. (ADF 1, 2.) See generally Pederson II, 213 F.3d at 878-83 (holding university accountable

13 for Title IX damages on equal accommodation theory).

14

The Pederson II case is directly on point. It addressed whether the notice requirements in Title IX sexual

15 harassment cases applied where the claim was a university’s failure to provide equal athletic opportunities. The

16 court held: “In the instant case, it is the institution itself that is discriminating. The proper test is not whether it knew

17 of or is responsible for the actions of others, but is whether Appellees intended to treat women differently on the

18 basis of their sex by providing them unequal athletic opportunity, and, as we noted above, we are convinced that

19 they did.” Id. at 882. See also Ferguson v. City of Phoenix, 157 F.3d 668, 677 (9th Cir. 1998) (noting the rationale

20 in Gebser to limit damages under a theory of respondent superior is “clearly distinguishable” where the federal

21 recipient’s liability “arises from its own acts and official policies”); Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265

22 F.3d 541, 555 (7th Cir. 2001) (“In short, when the Board accepted federal education funds under Title IX, it was

23 clearly put on notice that it may not discriminate in its programs on the basis of sex, 20 U.S.C. § 1681(a); “that if it

24 does discriminate on the basis of sex, it may be sued by a private individual. . . .”; Litman v. George Mason Univ.,

25 186 F.3d 544, 553 (4th Cir. 1999) (same). This conclusion, of course, goes hand in hand with UCD’s affirmative

26 obligations to comply with Title IX’s provisions. See, e.g., 34 C.F.R. § 106.4(a).

27

This ample authority shuts the door on UCD’s argument that it was not on notice that it may face liability

28

36

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT

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1 for its intentional discrimination against women in athletics. This is conduct clearly prohibited by Title IX which

2 itself provided notice to UCD of its obligations. Having agreed to comply with Title IX, and having accepted and

3 spent federal funding, UCD cannot now avoid the obligations to which it previously agreed by arguing that it has not

4 been on notice of those obligations. See Jackson, 544 U.S. at 183-84 (“[t]he Board could not have realistically

5 supposed that, given this context, it remained free” to violate Title IX).

6

UCD’s reliance on Grandson v. Univ. of Minn., 272 F.3d 568 (8th Cir. 2001) is entirely misplaced.

7 Grandson, is neither controlling nor persuasive. Indeed, it stands alone in applying Gebser to a claim of intentional

8 discrimination by a university. The reason for this is evident. As Davis (which Grandson did not even cite, let alone

9 address) and Jackson (which post-dates Grandson) make plain – Gebser applies, even if stretched beyond its context

10 of sexual harassment – only when there is a question as to whether the federal recipient itself received actual notice

11 of the wrongful acts of third parties. See, e.g., Gebser, 524 U.S. at 287-88 (it is “sensible to assume that Congress

12 did not envision a recipient’s liability in damages” when the recipient “was unaware of the discrimination”); Davis,

13 526 U.S. at 643 (Gebser sought “to eliminate any risk that the recipient would be liable in damages not for its own

14 official decision but instead for its employees’ independent actions” (citations and internal quotations omitted)).

15 Moreover, the Ninth Circuit has applied Gebser and Davis only in the context of sexual harassment claims. See.,

16 e.g., Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d, 736, 739 (9th Cir. 2000); see also Johnson v. Clovis Unified

17 Sch. Dist., No. 04-CV-6719 AWI DLB, 2007 WL 1456062, at *3 (E.D. Cal. May 17, 2007); Michelle M. v.

18 Dunsmuir Joint Union Sch. Dist., No. 04-CV-2411 MCE PAN, 2006 WL 2927485, at *4 (E.D. Cal. Oct. 12, 2006).

19

Moreover, whereas Grandson accepted the district court’s questionable determination that administrators at

20 the University of Minnesota’s Duluth campus (“UMD”) somehow were unaware of the unequal treatment of

21 women in athletics, 272 F.3d at 575-76, the evidence here plainly establishes that UCD was well aware of its

22 obligations and of facts giving rise to Plaintiffs’ ineffective accommodation claim.

23

b. The Evidence Establishes That UCD Was On Notice of Plaintiffs’

Ineffective Accommodation Charge.

24

25

As explained above, there is no additional requirement of “notice” to UCD beyond their agreement to

26 receive federal funds which contains affirmative obligations to comply with Title IX’s provisions. Even if the Court

27 were persuaded that some sort of “notice” was required, however, evidence abounds that UCD was on notice both

28

37

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT

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1 of Plaintiffs’ claims and of its ineffective accommodation of women athletes long before the commencement of this

2 suit.

3

UCD admits, as it must, that it received notice of Plaintiffs’ claims that they were not being effectively

4 accommodated in the university’s athletic program when it received Plaintiffs’ OCR complaints. UCD argues,

5 however, that because Plaintiffs’ complaints related to wrestling, this cannot be notice that Plaintiffs were claiming

6 that UCD was not effectively accommodating women athletes as a whole in violation of Title IX. This is a

7 ridiculous and nonsensical argument, made plain by this admission by UCD: “A claim of ineffective

8 accommodation encompasses the entire athletic program for the underrepresented sex – not just one specific aspect.”

9 (Def’s MPA at 37:28-38:1.) This is, in fact, the law. Title IX approaches the question of compliance on a

10 programmatic rather than sport-specific basis. Policy Interpretation, 44 Fed. Reg. at 71,417, Part VII. B.5.

11 Assessment is according to whether the institution’s “program as a whole” is satisfactory. Id. at 71,422, App. B,

12 Resp. to Add’l Comments (8) See Williams, 998 F.2d at 174-75 (Title IX regulations require inquiry regarding

13 overall opportunities rather than opportunities in a particular sport). Plaintiffs’ complaint to the OCR about UCD’s

14 failure to effectively accommodate women in the varsity wrestling program is therefore necessarily a claim that

15 UCD was failing to effectively accommodate women in UCD athletics program in violation of Title IX.

16

Here, it is beyond dispute that UCD was on notice of Plaintiffs’ complaints of discrimination, from, among

17 other things, Plaintiffs’ meetings and attempted meetings with Defendants Warzecka, Franks and Vanderhoef (UMF

18 93), the filing of their OCR complaints (ADF 77, 80), the involvement of state legislators, the student senate, and the

19 media (ADF 76), and the filing of both Coach Burch’s and plaintiffs’ civil rights complaints. In addition, UCD

20 knew about the protests, flyers, letters, news articles and the response of Assemblywoman Helen Thomson

21 generated by UCD’s elimination of varsity wrestling opportunities for women. (ADF 76.) These events repeatedly

22 raised broad questions about UCD’s gender discrimination and Title IX compliance in regards to its athletic

23 program. (UMF 93.)

24

Further, UCD acknowledged Plaintiffs’ civil rights complaint to OCR and the OCR investigation process.

25 UCD argues that it took Plaintiffs’ OCR complaints to mean only that there was “an unusual set of circumstances

26 involving women and the wrestling team,” and not an overall failure of the athletic program to effectively

27 accommodate women under Title IX. (See Def.’s MPA at 37:25-38:17.) In fact, the evidence shows that UCD

28

38

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT

CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 46 of 47

1 regarded the OCR complaints and OCR’s investigation as a program-wide grievance. (ADF 80, 90.)

2

Moreover, UCD’s awareness of its program wide non-compliance is evidenced by dozens of internal

3 memos and official reports in which UCD admits that it is concerned about its compliance status regarding Title

4 IX. (ADF 10.) Reports, Memorandum and emails from 1991, 1992, 1993, 1994, 1997, 1998, 2000 and 2002

5 acknowledge and warn of UCD’s failure to comply with Title IX. (UMF 93.) In light of the vast evidence

6 demonstrating its own awareness of non-compliance with Title IX, it is, at best, disingenuous of UCD to claim

7 ignorance in the face of Plaintiffs’ complaints. Finally, UCD’s litigation position proves it knows and understands

8 that a complaint from women athletes about unequal treatment is a complaint that goes to UCD’s athletic program

9 as a whole. UCD has, from the outset, defended this action on the basis of the sufficiency of its entire women’s

10 athletic program. (Docket # 34.). In a letter brief in September 2007 that “Title IX does not establish a right to

11 participate in any particular sport at the college of one’s choice. Absent program wide non-compliance, a student

12 has no cause of action merely because they cannot earn a spot on any current varsity team.” (Docket # 221

13 [citations and quotation marks omitted; emphasis added]. Indeed, UCD has explained in this motion its

14 understanding that Title IX requires programwide compliance. (See Def’s MPA at 37-38.)

15

Indeed, the Court should reject UCD’s notice argument because it would impose upon ordinary students a

16 burden to provide an unprecedented, unwarranted, and likely prohibitively high level of specificity in their OCR

17 complaints. The crux of UCD’s argument is not that Plaintiffs gave it no notice, but rather that Plaintiffs’ OCR

18 complaints were insufficiently comprehensive and failed to specify all potential legal theories for UCD’s Title IX

19 liability, such that UCD only concerned itself with wrestling team issues. To require OCR complaints to allege

20 exhaustive facts and legal theories with such particularity would be to import into Title IX a far more burdensome 21 standard than applies even to pleadings prepared by counsel under Rule 8 of the Federal Rules of Civil Procedure.13

22

23

24 13 Pleading requirements under Rule 8 are—by express congressional design—non-technical and extremely liberal.

25

Fed. R. Civ. P. 8(a)&(e). Complaints prepared by pro se litigants are held to an even more forgiving standard than those prepared by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972); Cripps v. Life Ins. Co. of N. Am., 980 F.2d

26

1261, 1266 (9th Cir. 1992). Exhaustive pleading is not required; indeed, “a complaint is not required to allege all, or any, of the facts logically entailed by the claim.” Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (internal

27

quotation marks omitted). A complaint need not even specify the precise nature of the claim asserted where the facts alleged put the defendant on notice. Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th

28 Cir. 1990).

39

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT

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Case 2:03-cv-02591-FCD-EFB Document 342 Filed 03/06/08 Page 47 of 47

1 Especially in light of the remedial intent of Title IX, this cannot possibly be the law.14 Compare Civil Rights Act of

2 1964, 42 U.S.C.A. § 2000e et seq. (under Title VII, a plaintiff’s Equal Employment Opportunity Commission

3 charge need not each and every fact that combines to form basis of each legal claim). Since it is undisputed that

4 Plaintiffs’ OCR complaints asserted Plaintiffs’ right to participate on the varsity wrestling team—a right that by

5 UCD’s own analysis does not exist independently of program-wide noncompliance with Title IX, UCD is barred

6 from strategically pleading ignorance now in an effort to stamp out Plaintiffs’ ineffective accommodation claims as a

7 matter of law.

8 V. CONCLUSION

9

For each of the reasons argued herein and supported by the accompanying declarations, exhibits and other

10 documents, Plaintiffs respectfully request that this Court deny UCD’s motion for summary judgment in its entirety.

11
DATED: March 6, 2008
12

Respectfully Submitted,

13

EQUAL

RIGHTS ADVOCATES

14
15
NOREEN
16

By: /s/ Noreen Farrell FARRELL
Attorneys for Plaintiffs

17

Respectfully submitted,

18

THE

19

STURDEVANT LAW FIRM A Professional Corporation

20
MONIQUE
21

By: /s/ Monique Olivier OLIVIER
Attorneys for Plaintiffs

22
Z:\417_Mansourian\Pleadings\MSJ OPPOSITION\MSJ Opp - Brief Draft-FINAL.doc
23

24

25

26

14 That the OCR complaint form itself does not request (or even provide space for) such particularity thoroughly undermines UCD’s argument to the contrary. (See ADF 77.) UCD’s argument would result in a highly undesirable

27

side effect: students would be better off proceeding directly to litigation than first taking their concerns to school officials early if there was a risk that unless they exhaustively set forth all legal theories in an OCR complaint, their

28 claims would later be foreclosed.

40

PLAINTIFFS’ OPPOSITION TO DEFENDANT’ MOTION FOR SUMMARY JUDGMENT

CASE NO. S-03-2591 FCD EFB

 
 Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 1 of 22

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

----oo0oo----

12 AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI CHIANG;
13 CHRISTINE WING-SI NG; and all those similarly situated,
14 Plaintiffs,
15 v.
16 BOARD OF REGENTS OF THE
17 UNIVERSITY OF CALIFORNIA AT DAVIS; LAWRENCE VANDERHOEF;
18 GREG WARZECKA; PAM GILLFISHER; ROBERT FRANKS; and
19 LAWRENCE SWANSON,

NO. CIV. S 03-2591 FCD EFB MEMORANDUM AND ORDER

20

Defendants.

21

----oo0oo----

22

This matter is before the court on a motion for summary

23 judgment, pursuant to Federal Rule of Civil Procedure 56, filed

24 by defendants Board of Regents of the University of California,

25 Davis, Lawrence Vanderhoef (“Vanderhoef”), Greg Warzecka

26 (“Warzecka”), Pam Gill-Fisher (“Gill-Fisher”), and Lawrence

27 Swanson (“Swanson”) (collectively “defendants” or “UCD”).

28 Plaintiffs Arezou Mansourian (“Mansourian”), Lauren Mancuso

1

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 2 of 22

1 (“Mancuso”), and Christine Wing-Si Ng (“Ng”) (collectively

2 “plaintiffs”)1 oppose the motion. For the reasons set forth

3 below,2 defendants’ motion is GRANTED.

4

BACKGROUND3

5

In the 1990s, varsity wrestling at UCD included both women

6 and men. (DRAF ¶ 53.) Plaintiffs Mansourian, Mancuso, and Ng

7 are former female wrestlers at UCD. (DRAF ¶ 3.) In 2000, UCD

8 ordered that all women be removed from the wrestling program.

9 (DRAF ¶ 4.)

10

Subsequently, plaintiffs filed a number of complaints with

11 the U.S. Department of Education’s (“DOE”) Office for Civil

12 Rights (“OCR”). Plaintiff Ng filed the first complaint on April

13

14

1

Plaintiff Nancy Nien-Li Chiang voluntarily dismissed

15

all claims in this action on June 12, 2007. (Docket #195), filed July 12, 2007.)

(See Mem. & Order

16

2

Because oral argument will not be of material

17

assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 78-230(h).

18

3

Unless otherwise noted, the facts contained herein are

19

undisputed. (See Pls.’ Response to Defs.’ Stmt. of Undisputed Facts (“PRUF”), filed Mar. 6, 2008.) Where the facts are

20

disputed, the court recounts plaintiffs’ version of the facts. (Defs.’ Response to Pls.’ Stmt. of Additional Disputed Facts

21 (“DRAF”), filed Mar. 31, 2008.)

22

The court notes that both parties filed motions to strike and numerous objections, objecting to various aspects of evidence

submitted in support of and in opposition to the motion for 23 summary judgment. (See Pls.’ Mot. to Strike (Docket #320), filed

Mar. 6, 2008; Pls.’ Opp’n to Judicial Notice (Docket #323), filed 24 Mar. 6, 2008; Pls.’ Objections to Evidence (Docket #338), filed

Mar. 6, 2008; Defs.’ Objections to Evidence (Docket #344), filed 25 Mar. 31, 2008; Defs.’ Mot. to Strike (Docket #348), filed Mar.

31, 2008; Pls.’ Objections to Evidence (Docket #366), filed Apr. 26 17, 2008.) Except where otherwise noted herein, the court finds

the parties’ objections irrelevant to the motion, as the court 27 does not rely upon the subject evidence in rendering its

decision. As such, the parties’ motions to strike are DENIED and

28 the objections of both parties are OVERRULED as moot.

2

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 3 of 22

1 25, 2001, alleging “[t]he Athletic Administration will not allow

2 me to wrestle, nor any other female, and I strongly believe it is

3 due to my sex.” (PRUF ¶ 93; Defs.’ Ex. GGG, filed Jan. 11, 2008, 4 at W46.)4 Plaintiff Ng filed a second supplemental complaint

5 with the OCR on May 14, 2001, which included allegations that UCD

6 “recruits ‘student-athletes’ for its wrestling program but

7 prohibits such recruitment of females,” “prohibits females from

8 participating in regularly scheduled competition,” “denies women

9 wrestlers the use of the ‘intercollegiate training room,’” and

10 “denies women wrestlers the services of its athletic trainers.”

11 (PRUF ¶ 95; Defs.’ Ex. HHH, filed Jan. 11, 2008, ¶¶ 1-4.) On

12 June 26, 2001, plaintiff Ng submitted a third supplemental

13 complaint on behalf of herself and plaintiffs Mansourian and

14 Mancuso. (PRUF ¶ 96.) This complaint alleged the “UC-Davis

15 athletic department granted the male members of the wrestling

16 team the scholarships awarded by wrestling coach, Mike Burch in

17 June 2001, but not to the females.” (Defs.’ Ex. KKK, filed Jan.

18 11, 2008, at W419.) Finally, plaintiff Mansourian filed a fourth

19 supplemental complaint on August 13, 2001, alleging the “firing

20 [of Mike Burch] was in retaliation against him and us, because he

21 fought to keep us on UCD’s intercollegiate wrestling team.”

22

23

4

Plaintiffs object to defendants’ Exhibit GGG as

improperly authenticated and hearsay. (See Pls.’ Objections to 24 Evidence at 39:6-8 (Docket # 338), filed Mar. 6, 2008.) However,

because plaintiffs also submitted this evidence, (Pls.’ Ex. A:80 25 (Docket #330-2), filed Mar. 6, 2008), it is self-authenticating,

Orr v. Bank of Am., 285 F.3d 764, 777 n.20 (9th Cir. 2002); 26 Alexander Dawson, Inc. v. N.L.R.B., 586 F.2d 1300, 1302 (9th Cir.

1978). Moreover, the court considers the evidence not for the 27 truth of the matters asserted, but rather for the effect they had

on UCD (i.e. notice). United States v. Payne, 944 F.2d 1458,

28 1472 (9th Cir. 1991). Plaintiffs’ objection is overruled.

3

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 4 of 22

1 (Defs.’ Ex. LLL, filed Jan. 11, 2008, at W417.)

2

Following an investigation by the OCR, UCD posed and the OCR

3 accepted a voluntary resolution plan. (DRAF ¶ 82.) The plan

4 required UCD to permit female athletes to try out for the

5 wrestling team. (DRAF ¶ 83.) Plaintiffs Ng and Mancuso

6 subsequently competed for a spot on the wrestling team, but

7 neither plaintiff was given a spot on the team. (DRAF ¶ 93.)

8

On December 18, 2003, plaintiffs filed the instant action on

9 behalf of themselves and a putative class, asserting six claims

10 for relief: (1) violation of Title IX based on unequal

11 opportunities; (2) violation of Title IX based on unequal

12 financial assistance; (3) retaliation in violation of Title IX;

13 (4) violation of 42 U.S.C. § 1983; (5) violation of the

14 California Unruh Civil Rights Act; and (6) violation of public

15 policy. Defendant filed a motion to dismiss pursuant to Federal

16 Rule of Civil Procedure 12(b)(6) on March 5, 2004. (Defs.’ Mot.

17 to Dismiss (Docket #13-15), filed Mar. 5, 2004.) The court

18 denied the motion on May 6, 2004. (Mem. & Order (Docket #25),

19 filed May 6, 2004).

20

Unfortunately, both defendants’ and plaintiffs’ counsel

21 suffered illnesses throughout the course of the litigation. As a

22 result, both parties stipulated to extend deadlines and to stay

23 proceedings. In August 2006, plaintiffs obtained new counsel.

24 (Notice of Appearance (Docket #134), filed Aug. 18, 2006.) The

25 parties submitted a joint status report on January 19, 2007, and

26 active litigation resumed. (Joint Status Report (Docket #154),

27 filed Jan. 19, 2007.)

28 /////

4

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1

On February 2, 2007, plaintiffs’ filed a motion to amend the

2 complaint to add new plaintiffs and allegations. (Pls.’ Mot. to

3 Amend (Docket #158), filed Feb. 2, 2007.) The court denied the 4 motion on March 20, 2007.5 (Mem. & Order (Docket #175), filed

5 Mar. 20, 2007.) The parties thereafter stipulated to dismiss the

6 class claims. (Mem. & Order (Docket #195), filed June 12, 2007.)

7

On June 5, 2007, defendants filed a motion for judgment on

8 the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

9 (Defs.’ Mot. for J. on Pleadings (Docket #188), filed June 5,

10 2007.) The court granted the motion for all claims, except

11 plaintiffs’ claim for ineffective accommodation. (Mem. & Order

12 (Docket #226), filed Oct. 18, 2007.) Defendants’ filed the

13 instant motion on January 11, 2008. (Defs.’ Mot. for Summ. J.

14 (Docket #280), filed Jan. 11, 2008.)

15

STANDARD

16

The Federal Rules of Civil Procedure provide for summary

17 judgment where “the pleading, depositions, answers to

18 interrogatories, and admissions on file, together with the

19 affidavits, if any, show that there is no genuine issue as to any

20 material fact. Fed. R. Civ. Proc. 56(c); see California v.

21 Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must

22 be viewed in the light most favorable to the nonmoving party.

23

5

Specifically, the court denied plaintiffs’ request to

24 amend the complaint to assert claims for denied opportunities in

women’s rugby and field hockey. The court found that “[w]hile 25 the plaintiffs may has sought to bring challenges on behalf of

all women athletes at UC Davis . . . [t]he factual allegations in 26 the original complaint related only to the opportunities

available for women to participate in the UC Davis wrestling 27 program and plaintiffs alleged inability to receive the benefits
of being a varsity wrestler.” (Mem. & Order at 11:13-20 (Docket 28 #175), filed Mar. 20, 2007.)

5

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 6 of 22

1 See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en

2 banc).

3

The moving party bears the initial burden of demonstrating

4 the absence of a genuine issue of fact. See Celotex Corp. v.

5 Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to

6 meet this burden, “the nonmoving party has no obligation to

7 produce anything, even if the nonmoving party would have the

8 ultimate burden of persuasion at trial. Nissan Fire & Marine

9 Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

10 However, if the nonmoving party has the burden of proof at trial,

11 the moving party only needs to show “that there is an absence of

12 evidence to support the nonmoving party’s case.” Celotex Corp.,

13 477 U.S. at 325.

14

Once the moving party has met its burden of proof, the

15 nonmoving party must produce evidence on which a reasonable trier

16 of fact could find in its favor viewing the record as a whole in

17 light of the evidentiary burden the law places on that party.

18 See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th

19 Cir. 1995). The nonmoving party cannot simply rest on its

20 allegations without any significant probative evidence tending to

21 support the complaint. See Nissan Fire & Marine, 210 F.3d at

22 1107. Instead, through admissible evidence the nonmoving party

23 “must set for specific facts showing that there is a genuine

24 issue for trial.” Fed. R. Civ. Proc. 56(e).

25

ANALYSIS

26

Defendants assert that plaintiffs’ ineffective accommodation

27 claim must fail because plaintiffs have not alleged they gave

28 defendant notice and an opportunity to remedy any purported

6

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 7 of 22

1 systemic non-compliance with Title IX. Defendants’ argument

2 presents an issue of first impression in this jurisdiction. The

3 court concludes that money damages cannot be awarded unless a

4 plaintiff has given notice of and an opportunity to rectify the

5 specific violation alleged by a Title IX plaintiff. The court

6 also concludes that plaintiffs have failed to demonstrate a

7 triable issue of fact regarding whether such notice and

8 opportunity were given in this case.

9 A. Notice and Opportunity to Cure in Title IX Cases

10

Title IX prohibits sex discrimination in education programs,

11 including athletic programs, at institutions receiving federal

12 funding. 20 U.S.C. § 1861 (West 2008). Although the statute is

13 silent on the question of private remedies, the Supreme Court has

14 held that Title IX provides individuals with a private cause of

15 action. Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979).

16 However, because a private cause of action is judicially implied,

17 a court must “shape a sensible remedial scheme that best comports

18 with the statute.” Id.

19

The express system of enforcement in Title IX provides a

20 robust administrative remedial scheme. Bruneau v. S. Kortrigth

21 Ctr. Sch. Dist., 163 F.3d 749, 756 (2d Cir. 1998). Under the

22 enforcement scheme, injured persons can file a complaint with the

23 DOE, which is required to investigate the allegations. 34 C.F.R.

24 § 100.7(b)-(c); Bruneau, 163 F.3d at 756. The DOE is also

25 permitted to conduct periodic compliance reviews without a

26 complaint. 34 C.F.R. § 100.7(a). If the DOE concludes based on

27 its investigation of a complaint or a periodic review that an

28 institution has violated Title IX, it may terminate federal

7

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1 funding to the institution or institute other proceedings

2 authorized by law. 20 U.S.C. § 1682. Significantly, the DOE may

3 not initiate any enforcement proceedings until it “has advised

4 the appropriate person or persons of the failure to comply with

5 the requirement and has determined that compliance cannot be

6 secured by voluntary means.” Id. Similarly, the administrative

7 regulations require resolution of compliance issues “by informal

8 means wherever possible,” id. § 100.7(d)(1), and prohibit

9 enforcement proceedings absent a showing the aid recipient “has

10 been notified of its failure to comply and of the action to be 11 taken to effect compliance,” id. § 100.8(d).6 Thus, both the

12 statute and its implementing regulations condition enforcement

13 proceedings on notice and an opportunity to cure non-compliance.

14

“A central purpose of requiring notice of the violation . .

15 . and an opportunity for voluntary compliance before

16 administrative enforcement proceedings can commence is to avoid

17 diverting education funding from beneficial uses where a

18 recipient was unaware of discrimination in its programs and is

19 willing to institute prompt corrective measures.” Gebser v. Lago

20 Vista Ind. Sch. Dist., 524 U.S. 274, 289 (1998). When an

21 institution’s athletic program is out of compliance with Title

22 IX, knowledge of the violation cannot be imputed to the

23 institution simply because it oversees the program. Grandson v.

24 Univ. of Minn., 272 F.3d 568, 575 (8th Cir. 2001). Even if

25 knowledge of failure to provide full and effective accommodation

26

6

The court notes that the cited regulations pertain to

27 Title VI of the Civil Rights Act of 1964. However, the

implementing regulations of Title IX expressly incorporate by 28 reference these provisions. See 34 C.F.R. § 106.71.

8

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 9 of 22

1 of interest could be imputed, an institution may otherwise be in

2 compliance with Title IX because (1) there is substantial

3 statistical proportionality between athletic participation and

4 enrollment rates of an underrepresented sex; or (2) the

5 institution has a continuing practice of program expansion to

6 accommodate an underrepresented sex. Neal v. Bd. of Trustees of

7 Cal. St. Univs., 198 F.3d 763, 767-68 (9th Cir. 1999) (listing

8 three ways in which an institution may comply with Title IX: (1)

9 full and effective accommodation interest; (2) substantial

10 statistical proportionality between participation and enrollment;

11 or (3) continuing practice of program expansion). Thus, failure

12 to provide notice prior to filing suit may result in the type of

13 harm the notice requirement is intended to prevent, that is, a

14 court order diverting education funds where an institution is

15 unaware of the violation and willing to take corrective measures.

16

Moreover, “[i]t would be unsound . . . for a statute’s

17 express system of enforcement to require notice to the recipient

18 and an opportunity to come into voluntary compliance while a

19 judicially implied system of enforcement permits substantial

20 liability without regard to the recipient’s knowledge or its

21 corrective actions upon receiving notice.” Gebser, 524 U.S. at

22 289-90 (emphasis in original). This is particularly true given

23 that Congress has conditioned the statute’s most severe sanction

24 -- termination of federal funding -- upon notice and an

25 opportunity for voluntary compliance. 20 U.S.C. § 1682; 34

26 C.F.R. §§ 100.7(d)(1), 100.8(d). The court does not find that

27 Congress intended to create an implied enforcement scheme that

28 may impose greater liability, in the form of monetary damages

9

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 10 of 22

1 potentially exceeding the level of federal funding, absent

2 comparable conditions. Gebser, 524 U.S. at 290. “Because the

3 express remedial scheme under Title IX is predicated upon notice

4 to an ‘appropriate person’ and an opportunity to rectify any

5 violation . . . [the court] conclude[s], in absence of further

6 direction from Congress, that the implied damages remedy should

7 be fashioned along the same lines.” Id.

8

In similar circumstances, the Eighth Circuit has also held

9 that notice and an opportunity to cure alleged violations of

10 Title IX are required to sustain a private damages action.

11 Grandson, 272 F.3d at 575-76. In Grandson, female student

12 athletes filed actions for monetary relief claiming a funding

13 disparity between the men’s and women’s soccer teams and

14 ineffective accommodation. Id. Relying on Gebser, the Eighth

15 Circuit upheld the district court’s grant of summary judgment to

16 the University of Minnesota because “[t]here was no allegation of

17 prior notice of [plaintiffs’] complaints to appropriate UMD

18 officials, no allegation of deliberate indifference by such

19 officials, and no allegation [plaintiffs] afforded UMD a

20 reasonable opportunity to rectify the alleged violations.” Id.

21 Because defendants in this case also seek summary judgment on the

22 basis plaintiffs failed to provide notice and an opportunity to

23 cure an ineffective accommodation claim, Grandson provides

24 persuasive support for the court’s conclusion that notice and an

25 opportunity to cure are required to sustain a private damages

26 action.

27

In asserting that notice is not required because plaintiffs

28 are asserting a claim for ineffective accommodation, plaintiffs

10

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 11 of 22

1 argue the court’s reliance on Gebser is misplaced. Specifically,

2 plaintiffs contend the Supreme Court’s holding in Gebser is

3 limited to cases of sexual harassment because, in such cases, the

4 institution may not be aware of the alleged violation.

5 Plaintiffs contend an institution necessarily has knowledge of an

6 ineffective accommodation violation because it oversees the

7 athletic program. Thus, plaintiffs assert they may seek damages

8 without giving notice to the institution and an opportunity to

9 cure. However, the Gebser Court’s reasoning applies equally to

10 both sexual harassment and ineffective accommodation claims. The

11 Supreme Court in Gebser was concerned about creating a judicially

12 implied remedial system that was broader than the express

13 enforcement scheme created by Congress, particularly where

14 damages may exceed a recipient’s level of federal funding. 524

15 U.S. at 289-90. The Court therefore required that the remedial

16 scheme for private plaintiffs mirror the remedial scheme mandated

17 for federal enforcement agencies. Id. If the court adopted

18 plaintiffs’ position, it would create an implied enforcement

19 scheme with the potential to impose greater liability on an

20 institution without conditions comparable to the express remedial

21 scheme provided by Congress. See id. The Supreme Court’s

22 analysis in Gebser is therefore equally applicable to this case.

23

Moreover, there is nothing in the statute or its

24 implementing regulations to support the argument that Congress

25 intended a different remedial scheme to apply based on the nature

26 of the Title IX claim. Section 902 broadly advises that no

27 remedial actions shall be taken by a federal enforcement agency

28 until it “has advised the appropriate person or persons of the

11

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 12 of 22

1 failure to comply with the requirement and has determined that

2 compliance cannot be secured by voluntary means.” 20 U.S.C. §

3 1682. Similarly, the regulations instruct agencies to resolve

4 matters “by informal means wherever possible” and abstain from

5 taking action until “the responsible Department official has

6 determined that compliance cannot be secured by voluntary means

7 [and] the recipient or other person has been notified of its

8 failure to comply and of the action to be taken to effect

9 compliance.” 34 C.F.R. §§ 100.7(d)(1), 100.8(d). Notably absent

10 from these provisions is language limiting their application to

11 sexual harassment claims. The court will not infer an intent on

12 the part of Congress to create an implied scheme differentiating

13 between sexual harassment and ineffective accommodation claims

14 where the express scheme contains no such distinction.

15

Plaintiffs argue that under Davis v. Monroe County Bd. of

16 Educ., 526 U.S. 629, 642 (1999), and Jackson v. Birmingham Bd. of

17 Educ., 544 U.S. 167, 174 (2005), notice is not required where an

18 institution intentionally violates Title IX. However, Davis and

19 Jackson implicitly support the conclusion that notice and an

20 opportunity to cure specific violations are prerequisites for

21 private damages claims under Title IX. In Davis, the Supreme

22 Court held that an institution can be liable for student-to-

23 student sexual harassment where it exhibited “deliberate

24 indifference to known acts of harassment.” 526 U.S. at 643

25 (emphasis added). In that case, the complaint alleged that the

26 defendants had knowledge of the alleged violation because

27 plaintiff or her mother reported each of the incidents to the

28 classroom teacher, another classroom teacher, and the school

12

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 13 of 22

1 principle over several months. Id. at 634-35. Further, the

2 institution had an opportunity to cure the violation over several

3 months after such notice was given, but it deliberately failed to

4 take action. Id. at 635, 644. Rather, it was only after more

5 than three months of reported harassment, that plaintiff was

6 allowed to change her classroom seat so that she no longer sat

7 next to petitioner. As such, the Supreme Court’s holding in

8 Davis supports the holding that notice and an opportunity to cure

9 is required.

10

Similarly, in Jackson, the Court held an institution is

11 liable for retaliation against a coach that complains of sex

12 discrimination. 544 U.S. at 183. In that case, the complaint

13 alleged that the defendant had knowledge of the alleged violation

14 because the plaintiff basketball coach complained to his

15 supervisors about the unequal treatment of the girls’ basketball

16 team at the institution. Id. at 171. The plaintiff’s complaints

17 went unanswered. Id. at 171. Subsequently, instead of

18 addressing the complaints or curing the alleged violations, the

19 defendant allegedly retaliated against the plaintiff by giving

20 him negative work evaluation and , ultimately, removing him from

21 his position as the girls’ basketball coach. Id. at 172. Thus,

22 in Jackson, the defendant had an opportunity to cure the alleged

23 violations, but chose to take retaliatory action instead.

24 Therefore, like Davis, the Court’s holding in Jackson supports,

25 rather than refutes, the court’s holding that notice and an

26 opportunity to cure are required in Title IX cases.

27

Finally, plaintiffs contend that any reliance on Grandson is

28 misplaced because “it stands alone in applying Gebser to a claim

13

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 14 of 22

1 of intentional discrimination.” (Pls.’ Opp’n to Defs.’ Mot. for

2 Summ. J. (Docket #342), filed Mar. 6, 2008, at 37). However,

3 plaintiffs fail to recognize that there are less than two dozen

4 reported Title IX cases, and Grandson is the only reported case

5 to address the specific issue of notice and opportunity to cure

6 presented by this case. While Grandson is not controlling on

7 this court, it is persuasive authority for addressing whether

8 notice and an opportunity to rectify specific violations of Title

9 IX are required to sustain a private damages action.

10 B. Notice and Opportunity to Cure in this Case

11

Having concluded notice and an opportunity to cure specific

12 violations alleged by Title IX plaintiffs are required to sustain

13 a private damages action, the court considers whether plaintiffs

14 have raised a triable issue of fact as to notice and opportunity

15 to cure in this case. Alleged violations of Title IX are

16 generally divided into two categories of claims: unequal

17 treatment claims and ineffective accommodation claims. Unequal

18 treatment claims focus on, inter alia, inequalities of

19 scholarships, coaches’ salaries, facilities, training, and travel

20 between male and female athletic programs. See 34 C.F.R. §

21 106.37(c), 106.41(c)(2)-(10); Pederson v. La. State Univ., 213

22 F.3d 858, 865 n.4 (5th Cir. 2000). Ineffective accommodation

23 claims determine whether equal athletic opportunities for members

24 of both sexes are available and effectively accommodate the

25 interest and abilities of members of both sexes. See 34 C.F.R. §

26 106.41(c)(1); Pederson, 213 F.3d at 865 n.4.

27

The undisputed evidence establishes that plaintiffs did not

28 provide defendants with notice and an opportunity to cure a

14

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 15 of 22

1 violation of Title IX for ineffective accommodation. Plaintiffs’

2 complaints filed with the OCR provide no indication of a claim

3 for a failure to provide sufficient athletic opportunities for

4 women. Plaintiff Ng’s complaints allege unequal treatment in

5 recruiting, scholarships, competitive schedules, facilities, and

6 services at UCD. (Defs.’ Ex. HHH ¶¶ 1-4;Defs.’ Ex. KKK at W419.)

7 Similarly, plaintiff Mansourian’s complaint alleges “ongoing

8 sexual discrimination” and asks for “equal rights, as women, so

9 that we can again wrestle on UCD’s intercollegiate wrestling

10 team.” (Defs.’ Ex. LLL at W417.) Thus, the complaints do not

11 indicate that plaintiffs were challenging UCD’s entire athletic 12 program.7 Rather, the complaints allege specific acts of unequal 13 treatment with respect to women’s wrestling.8 Plaintiffs

14

15

7

Plaintiffs argue that UCD was given adequate notice of

an ineffective accommodation claim with respect to the wrestling

16

team and, thereby, was given notice of a challenge to the athletic program. Assuming arguendo a challenge to a single team

17

would notify an institution of a challenge to its entire athletic program, plaintiffs’ proffered evidence does not support their

18

assertion. Plaintiffs’ complaints to defendants and the OCR do not set forth an ineffective accommodation claim with respect to

19

either wrestling or UCD’s entire athletic program. Rather, plaintiffs’ complaints allege unequal treatment of female

wrestlers. 20

8

In its Memorandum and Order addressing defendants’

21 motion for judgment on the pleadings, the court construed that

22

plaintiffs’ allegation that UCD violated Title IX by “choosing to make fewer athletic opportunities to female students than to male

students” as sufficient to state a claim for ineffective 23 accommodation. (Mem. & Order at 23:2-7 (Docket #226), filed Oct.

18, 2007 (citing Pls.’ Compl. ¶ 129 (Docket #1), filed Dec. 18, 24 2007.)) However, it was not clear until oral argument on

defendants’ motion that plaintiffs were pressing such a claim. 25 As such, in keeping with the spirit of liberal notice pleading,

the court allowed the parties to submit supplemental briefing on 26 this issue due to the failure to incorporate such arguments with

any type of specificity or particularity in the moving papers. 27 In this supplemental briefing, defendants argued they were not

aware plaintiffs were pressing this theory of liability. (See

28 Defs.’ Reply to Pls.’ Supplement Br. at 1:12-18 (Docket #212),

15

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 16 of 22

1 complaints therefore fail to raise a triable issue of fact as to

2 whether defendants received notice and an opportunity to cure an

3 ineffective accommodation claim.

4

Plaintiffs argue they are not required to file a complaint

5 with the OCR to satisfy notice and opportunity to cure. The

6 court agrees. Indeed, plaintiffs could have satisfied these

7 requirements in any number of ways. However, the only evidence

8 of potential notice, beyond the complaints filed with the OCR, is

9 a meeting that occurred in January 2001 between defendant

10 Warzecka and plaintiffs Mansourian and Ng. (DRAF ¶ 70.) The

11 deposition testimony of Mansourian and Ng indicates the parties

12 discussed why women were removed from the wrestling team.

13 Specifically, Mansourian and Ng assert the parties discussed that

14 women wrestlers were “way too much liability for the UC,” that

15 female wrestlers could not waive liability, that the NCAA does

16 not support mixed wrestling teams, and that women interested in

17 wrestling needed to “do the club sports.” (See Pls.’ Ex. B:33 at

18 189-199 (Docket #334), filed Mar. 6, 2008; Pls.’ Ex. B:38 at 173-

19 76 (Docket #335), filed Mar. 6, 2008.) Thus, the evidence fails

20 to establish plaintiffs notified defendants of a complaint for

21 ineffective accommodation during the meeting with Warzecka.

22 Accordingly, plaintiffs have not raised a triable issue of fact

23 as to whether they otherwise provided UCD notice and an

24 opportunity to cure.

25

Plaintiffs also assert that requiring notice of specific

26 violations of Title IX imposes an unprecedented burden on

27

28 filed Aug. 17, 2007.)

16

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 17 of 22

1 plaintiffs to allege violations with a high degree of specificity

2 in OCR complaints. Plaintiffs contend that requiring potential

3 litigants to distinguish between an unequal treatment claim and

4 an ineffective accommodation claim is a burden not contemplated

5 by the statute or even required by the pleading standard set

6 forth in the Federal Rules of Civil Procedure. Contrary to

7 plaintiffs’ assertion, the court’s holding does not require Title

8 IX plaintiffs to plead their allegations with precision or

9 specificity. However, the allegations must provide some

10 indication of the basis for the institution’s non-compliance so

11 that an institution may attempt to remedy the situation

12 voluntarily. The evidence simply fails to establish that

13 plaintiffs gave defendants notice of a Title IX claim for failing

14 to provide enough athletic opportunities to female athletes.

15

In the alternative, plaintiffs contend that even if they did

16 not provide notice of an ineffective accommodation claim,

17 defendants should have been on notice that plaintiffs were making

18 such a claim because the OCR actively investigated program-wide

19 non-compliance with Title IX as a result of plaintiffs’ 20 complaints.9 However, the evidence proffered by plaintiffs fails

21 to support this assertion. Moreover, even if the OCR conducted

22

9

Plaintiffs implicitly argue that if defendants knew of

23 the alleged ineffective accommodation violation, the absence of

any complaints directed at this specific type of violation by 24 plaintiffs is immaterial. The court notes that this argument

neglects the requirement that defendants be given an opportunity 25 to cure the violations alleged by an aggrieved party. However,

because, as set forth infra, plaintiffs have not presented 26 evidence that the OCR actively investigated a complaint of

program-wide violations, that defendants were aware the OCR was 27 conducting such an investigation, or that defendants were

informed by the OCR that there were any such violations, the

28 court need not reach the merits of this argument.

17

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 18 of 22

1 an investigation into alleged program-wide violations, plaintiffs

2 fail to present evidence that defendants were on notice of any

3 program-wide violation as a result.

4

First, plaintiffs cite to the deposition testimony of

5 Swanson, which they allege demonstrates that “the majority of the

6 [OCR investigation] was spent on the issue of women’s

7 opportunities.” (Pls.’ Ex. B:55 at 104:19-20 (Docket #336),

8 filed Mar. 6, 2008.) The deposition testimony does not support

9 this assertion. Swanson’s testimony establishes that the OCR

10 investigated the issue of women’s athletic opportunities in

11 wrestling:

12

I think that the meeting was much more directed to the

opportunity for women on the team, what had taken place

13

in the past, what we were willing to do from this point

forward. Concerns that had we really discriminated

14

against these women, had we taken away the opportunity

to be involved as they had been in the past.

15

16 (Pls.’ Ex. B:55 at 104:1-8.) Swanson’s testimony does not

17 establish that the OCR investigated the athletic program’s

18 compliance with Title IX. Therefore, plaintiffs have not raised

19 a triable issue of fact as to notice and opportunity to cure

20 based on this testimony.

21

Second, plaintiffs cite a letter from a UCD official in

22 support of their contention that the OCR investigated program-

23 wide compliance with Title IX. The letter opens, “[UCD]

24 welcome[s] the opportunity to have the [OCR] review [UCD’s]

25 athletic gender equity compliance with Title IX.” (Pls.’ Ex.

26 A:35 (Docket #335), filed Mar. 6, 2008.) This statement is

27 merely an introductory paragraph containing a basic salutation to

28 the OCR, not a concession that UCD was aware of a claim for

18

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 19 of 22

1 ineffective accommodation. In fact, the very next paragraph of

2 the letter begins, “I would like to take this opportunity to

3 respond to the sexual discrimination complaint filed by three UC

4 Davis female students who participate with our NCAA Division I

5 men’s wrestling team.” (Pls. Ex. A:35 ¶ 2.) Thus, the letter

6 indicates the OCR investigated discrete acts of discrimination

7 with respect to women’s wrestling. Plaintiffs therefore have not

8 raised a genuine issue of material fact on the basis of this

9 letter.

10

Third, plaintiffs argue the deposition testimony of Warzecka

11 establishes that the OCR investigated the amount of athletic

12 opportunities UCD provided all female athletes. In his

13 deposition, Warzecka was asked whether the OCR investigated all

14 Title IX issues at UCD or merely the issues surrounding women’s

15 wrestling. (Pls.’ Ex. B:65 at 368:24-369:1 (Docket #337), filed

16 Mar. 6, 2008.) Warzecka responded:

17

[The OCR] responded to a complaint that the four women

made. And did their--did they take latitude to look at

18

other things outside of that complaint? Yes, they did.

. . . And I feel a lot of the questions they asked

19

helped them provide background of how we do things at

UC Davis and how we handle club sports.

20

21 (Pls.’ Ex. B:65 at 369:2-12.) While Warzecka’s response

22 indicates the OCR asked questions about matters outside the

23 complaints, it does not establish the OCR investigated program-

24 wide compliance with Title IX. Rather, Warzecka indicates he

25 understood such questions to provide necessary background

26 information. Because Warzecka’s testimony does not establish the

27 OCR investigated program-wide compliance or that UCD understood

28 the OCR was conducting such an investigation, plaintiffs have

19

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 20 of 22

1 failed to raise a triable issue of fact with respect to actual

2 notice and opportunity to cure.

3

Plaintiffs’ assertion that the OCR investigated program-wide

4 compliance also fails because the voluntary resolution plan

5 adopted by the OCR following its investigation made no findings

6 with respect to program-wide violations. Instead, the plan dealt

7 exclusively with women’s wrestling. Specifically, the plan

8 required UCD, inter alia, to encourage all men and women “to

9 compete for a position on the wrestling team,” to “recruit the

10 best qualified wrestlers, irrespective of gender,” to allow

11 members of the club wrestling team to practice concurrently with

12 members of the varsity wrestling team, to provide the club

13 wrestling team medical insurance service and use of facilities

14 equal to other university club sports, and to encourage members

15 of the club wrestling team to participate in the open wrestling

16 tournament sponsored by UCD. (Pls.’ Ex. A:34 at 2 (Docket #32717 5), filed Mar. 6, 2008.)10 The OCR found that by taking these

18 steps, a “rapid resolution of the issues” could be reached.

19 (Pls.’ Ex. A:34 at 1.) The plan’s limited subject matter and

20 finding that issues could be resolved through action directed

21 solely at the wrestling team indicates that no investigation was

22 taken into UCD’s program-wide compliance. At the very least, it

23 indicates that UCD was not on notice of any program-wide

24 violation as a result of the OCR’s investigation. Thus, there is

25

26

10 Plaintiffs object to defendants’ request for judicial

notice of the cited evidence. (See Pls.’ Opp’n to Judicial 27 Notice (Docket #323), filed Mar. 6, 2008.) The court overrules

this objection as plaintiffs also submitted the very evidence to

28 which it objects.

20

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 21 of 22

1 no evidence to support the assertion that the OCR investigated

2 anything other than the unequal treatment of female wrestlers at

3 UCD.

4

Finally, plaintiffs contend that UCD was on notice of an

5 ineffective accommodation claim due to the public outcry in

6 response to removal of females from the wrestling team. However,

7 “[a] vigorous public debate on these issues does not demonstrate

8 that [the university] knew of systemic non-compliance.”

9 Grandson, 272 F.3d at 575. The evidence submitted by plaintiffs

10 demonstrates that the public outcry in this case was in response

11 to the allegedly gender biased and discriminatory removal of

12 women from the wrestling team. None of the evidence relating to

13 the public’s response contains allegations or statements relating

14 to program-wide compliance or the failure of UCD to sufficiently 15 provide athletic opportunities to women.11 Accordingly, the

16 cited evidence is not sufficient to raise a triable issue of fact

17 as to notice and opportunity to cure.

18

The court is mindful that Congress enacted Title IX to

19 prevent the use of federal resources to support sex-based

20 discrimination. 20 U.S.C. § 1681; Cannon, 441 U.S. at 704.

21 There is no question that student athletes are discriminated

22

23

11 Defendants’ object to various letters, flyers,

newspaper articles, and other evidence of the public’s outcry 24 following the removal of women from the wrestling team as

hearsay. (See Defs.’ Objections to Evidence ¶¶ 1-10 (Docket 25 #344), filed Mar. 31, 2008.) However, the court does not

consider the subject evidence for the truth of the matter 26 asserted, but rather for the effect it had on UCD (i.e. notice).

Payne, 944 F.2d at 1472. Moreover, consideration of this 27 evidence does not prejudice defendants as it is not sufficient to

raise a triable issue of fact as to notice. Defendants’

28 objection is overruled.

21

Case 2:03-cv-02591-FCD-EFB Document 368 Filed 04/23/08 Page 22 of 22

1 against and suffer harm when subject to unequal treatment or

2 ineffective accommodation on the basis of their sex. However,

3 the limited issue presented by the facts of this case on this

4 motion is whether an institution may be held liable for damages

5 for a claim of ineffective accommodation, absent a showing of

6 notice by plaintiffs and an opportunity for defendants to rectify

7 the alleged non-compliance. Given Title IX’s express enforcement

8 scheme, the Supreme Court’s analysis in Gebser, and the Eighth

9 Circuit’s opinion in Grandson, the court concludes a suit for

10 private damages cannot be sustained until notice and opportunity

11 to cure are given to an institution allegedly out of compliance

12 with Title IX. Plaintiffs have failed to demonstrate a triable

13 issue of fact regarding whether such notice and opportunity were

14 given in this case.

15

CONCLUSION

16

For the foregoing reasons, defendant’s motion for summary

17 judgment is GRANTED. The Clerk is directed to close the file.

18

IT IS SO ORDERED

19 DATED: April 23, 2008.

20

21

FRANK C. DAMRELL, Jr.

22

UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

22

 
 Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 1 of 8

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

----oo0oo----

12 AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI CHIANG;
13 CHRISTINE WING-SI NG; and all those similarly situated,
14 Plaintiffs,
15 v.
16 BOARD OF REGENTS OF THE
17 UNIVERSITY OF CALIFORNIA AT DAVIS; LAWRENCE VANDERHOEF;
18 GREG WARZECKA; PAM GILLFISHER; ROBERT FRANKS; and
19 LAWRENCE SWANSON,

NO. CIV. S 03-2591 FCD EFB MEMORANDUM AND ORDER

20

Defendants.

_____________________________/

21

22

----oo0oo----

23

This matter is before the court on plaintiffs’ objections to

24 defendants’ bill of costs and motion to deny defendants’ bill of

25 costs in its entirety, pursuant to Federal Rule of Civil

26

27

28

1

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 2 of 8

1 Procedure 54. For the reasons set forth below,1 plaintiffs’

2 motion to deny defendants’ bill of costs is GRANTED.

3

BACKGROUND

4

This case arises out of the lack of opportunities for female

5 students to participate in varsity wrestling at the University of

6 California, Davis (“UCD”) and, more generally, the effective

7 accommodation of athletic opportunities for women at UCD.

8 Plaintiffs Arezou Mansourian (“Mansourian”), Lauren Mancuso

9 (“Mancuso”), and Christine Wing-Si Ng (“Ng”) (collectively 10 “plaintiffs”)2 are former female wrestlers at UCD. Plaintiffs

11 filed this action on behalf of themselves and a putative class on

12 December 18, 2003. Plaintiffs named as defendants in their

13 individual and official capacities the following parties: the

14 Regents of the University of California; the Chancellor of the

15 University, Larry Vanderhoef; the Athletic Director at the

16 University, Greg Warzecka; Associate Athletic Directors of the

17 University, Pam Gill-Fisher and Lawrence Swanson; and former

18 Associate Vice Chancellor, Student Affairs, Robert Franks.

19

On December 18, 2003, plaintiffs filed a complaint on behalf

20 of themselves and a putative class, asserting six claims for

21 relief: (1) violation of Title IX based on unequal opportunities;

22 (2) violation of Title IX based on unequal financial assistance;

23 (3) retaliation in violation of Title IX; (4) violation of 42

24

25

1

Because oral argument will not be of material

assistance, the court orders these matters submitted on the

26 briefs. E.D. Cal. L.R. 78-230(h).

27

2

Plaintiff Nancy Nien-Li Chiang (“Chiang”) voluntarily

dismissed all claims in this action on June 12, 2007. (Mem. &

28 Order (Docket #195), filed July 12, 2007).

2

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 3 of 8

1 U.S.C. § 1983; (5) violation of the California Unruh Civil Rights

2 Act; and (6) violation of public policy. Defendant filed a

3 motion to dismiss pursuant to Federal Rule of Civil Procedure

4 12(b)(6) on March 5, 2004. (Defs.’ Mot. to Dismiss (Docket #13-

5 15), filed Mar. 5, 2004.) The court denied the motion on May 6,

6 2004. (Mem. & Order (Docket #25), filed May 6, 2004.)

7

On February 2, 2007,3 plaintiffs’ filed a motion to amend

8 the complaint to add new plaintiffs and allegations. (Pls.’ Mot.

9 to Amend (Docket #158), filed Feb. 2, 2007.) The court denied

10 the motion on March 20, 2007. (Mem. & Order (Docket #175), filed

11 Mar. 20, 2007.) The parties thereafter stipulated to dismiss the

12 class claims. (Mem. & Order (Docket #195), filed June 12, 2007.)

13

On June 5, 2007, defendants filed a motion for judgment on

14 the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

15 (Defs.’ Mot. for J. on Pleadings (Docket #188), filed June 5,

16 2007.) The court granted the motion for all claims, except

17 plaintiffs’ claim for ineffective accommodation. (Mem. & Order

18 (Docket #226), filed Oct. 18, 2007.) Defendants filed a motion

19 for summary judgment on the sole remaining claim on January 11,

20 2008. (Defs.’ Mot. for Summ. J. (Docket #280), filed Jan. 11,

21 2008.) On April 23, 2008, the court granted defendants’ motion

22 on the grounds that plaintiffs had failed to give adequate notice

23 of their more general claim of ineffective accommodation and

24

3

Unfortunately, both defendants’ and plaintiffs’ counsel

25 suffered illnesses throughout the course of the litigation. As a

result, both parties stipulated to extend deadlines and to stay 26 proceedings. In August 2006, plaintiffs obtained new counsel.

(Notice of Appearance (Docket #134), filed Aug. 18, 2006.) The 27 parties submitted a joint status report on January 19, 2007, and

active litigation resumed. (Joint Status Report (Docket #154), 28 filed Jan. 19, 2007.)

3

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 4 of 8

1 entered judgment. (Mem. & Order (Docket #368), filed Apr. 23,

2 2008; Judgment (Docket #369), filed Apr. 23, 2008.)

3

Defendants submitted a bill of costs, requesting an award of

4 $32,353.84.4 Plaintiffs object to defendants’ bill of costs.

5

ANALYSIS

6

Pursuant to Rule 54(d) of the Federal Rules of Civil

7 Procedure, a prevailing party should be awarded costs, unless “a

8 court order provides otherwise.” Fed. R. Civ. P. 54 (2008). As

9 such, “the rule creates a presumption in favor of awarding costs

10 to a prevailing party.” Ass’n of Mexican-American Educators

11 (“AMAE”) v. State of California, 231 F.3d 572, 592 (9th Cir.

12 2000) (en banc) (citing Nat’l Info. Servs., v. TRW, Inc., 51 F.3d

13 1470, 1471 (9th Cir. 1995)); Champion Produce, Inc. v. Ruby

14 Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (“[C]osts

15 are to be awarded as a matter of course in the ordinary case.”).

16 The losing party bears the burden of making a showing that the

17 award of costs would be inequitable under the circumstances.

18 Nat’l Info. Servs., 51 F.3d at 1472. While a district court has

19 discretion to deny costs, it must “specify reasons,” explaining

20 “why a case is not ‘ordinary’ and why, in the circumstances, it

21 would be inappropriate or inequitable to award costs.” Champion

22 Produce, 342 F.3d at 1022.

23

The district may consider nonpunitive reasons for denying

24 costs to a prevailing party. AMAE, 231 F.3d at 592.

25

4

This amount reflects the requested costs after

26 defendants reduced the initially requested amount by $4,314.49

due to the erroneous inclusion of costs associated with plaintiff 27 Chiang’s claims as well as other items. (Defs.’ Response to

Pls.’ Preliminary Objections (Docket #390), filed July 3, 2008, 28 at 20.)

4

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 5 of 8

1 Specifically, while costs may be denied to punish a prevailing

2 party’s misconduct, the Ninth Circuit has also approved as

3 appropriate reasons for denying costs: (1) the losing party’s

4 limited financial resources and the degree of economic disparity

5 between the parties; (2) “the chilling effect of imposing such

6 high costs on future civil rights litigants”; (3) the losing

7 party’s litigation in good faith; and (4) the closeness and

8 difficulty of the issues raised in the case. Id. at 592-93.

9

While there is no evidence that defendants engaged in any

10 misconduct in the course of litigation, a combination of several

11 other factors weighs against the award of costs to defendants in

12 this case. First, although plaintiffs have not presented

13 evidence of actual indigence, they have sufficiently demonstrated

14 that they are graduate students and recent college graduates with 15 limited financial resources.5 Plaintiff Mansourian recently

16 graduated from graduate school and has accrued a substantial

17 amount of debt as a result of both student loans and other debts.

18 Her current salary barely covers her monthly expenses, and the

19 anticipated increase in interest rates will also increase her

20 monthly expenses. Plaintiff Ng is a graduate student. Her

21 current income is insufficient to meet her monthly expenses.

22 Similarly, plaintiff Mancuso is a recent college graduate whose

23 current income does not cover her monthly expenses. She will

24 also begin graduate school in the fall. Moreover, in contrast,

25 /////

26

27

5

The court has reviewed the evidence filed by plaintiffs

under seal. The court discusses the evidence in general terms in

28 order to protect the privacy of plaintiffs.

5

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 6 of 8

1 UCD has a substantial budget. As such, there is a significant 2 economic disparity between plaintiffs and defendants.6

3

Second, the imposition of the cost bill on plaintiffs would

4 lead to a harsh result that could chill student litigants from

5 vindicating important civil rights under Title IX. See Stanley

6 v. Univ. of Southern California, 178 F.3d 1069, 1080 (9th Cir.

7 1999). This litigation raised important issues regarding

8 discrimination against individual female athletes and the

9 effective accommodation of varsity athletic opportunities for

10 women generally. Title IX litigation will frequently be brought

11 by students, who, as defendants concede, must often finance

12 education with a significant amount of student loans. Risking

13 the imposition of thousands of dollars in costs in addition to

14 these loans in order to vindicate rights they are guaranteed as

15 students would likely deter potential litigants from “test[ing]

16 the boundaries of our laws” and making progress in the realm of

17 Title IX civil rights. See id. Moreover, there was great public

18 concern for the conduct that was the impetus of this litigation.

19 Thus, while this litigation may not affect the entire state of

20 California or the public education system as a whole, plaintiffs

21 sought to vindicate important public interests that had garnered

22

6

Defendants argue that the court should disregard cases

23 considering the disparity between the parties because UCD is not

a private corporation, but a public entity paid with money 24 belonging to the citizens of California. However, in AMAE, the

Ninth Circuit upheld the district court’s reasons for denying 25 recovery, which included the economic disparity between the

plaintiffs and the State of California. 231 F.3d at 593; see 26 also Washburn v. Fagan, No. 03-0869, 2008 WL 361048 (Feb. 11,

2008) (denying costs to the defendants because, inter alia, 27 “there exists a significant economic disparity between

[p]laintiff and the City and County of San Francisco”). As such,

28 defendants’ argument is without merit.

6

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 7 of 8

1 the attention of UCD students, the community, and the media. See

2 Washburn, 2008 WL 361048 at *2 (holding that the great public

3 concern over defendants conduct helped demonstrate that, while

4 the issues were not of the magnitude of the civil rights relief

5 in AMAE, plaintiffs sought to vindicate important civil rights by

6 bringing suit).

7

Finally, plaintiffs pursued this litigation in good faith

8 and presented issues that were both difficult and close. From

9 the outset of this litigation, the court has been presented with

10 legal issues of first impression in the Ninth Circuit, including

11 issues over which other Circuits are split. Both plaintiffs and

12 defendants argued meritful positions. In the end, the court

13 found defendants’ positions to be persuasive on dispositive

14 issues. However, at no time during this litigation, did 15 plaintiffs press frivolous claims or arguments.7

16

Considering the totality of the circumstances, plaintiffs

17 have overcome the presumption in favor of costs by sufficiently

18 demonstrating that this is an extraordinary circumstance in which

19 an award of costs would be inequitable. Therefore, the court, in

20 its discretion, declines to award costs in this matter.

21 /////

22 /////

23 /////

24 /////

25

26

7

Moreover, because the court found that plaintiffs’

claims failed with respect to primarily legal issues, such as the 27 statute of limitations, preemption, and the requirement of notice

and the opportunity to cure, it never reached the gravamen of the

28 factual basis for plaintiffs’ claims.

7

Case 2:03-cv-02591-FCD-EFB Document 400 Filed 07/15/08 Page 8 of 8

1

CONCLUSION

2

For the foregoing reasons, plaintiffs’ motion to deny

3 defendants’ bill of costs is GRANTED.

4

IT IS SO ORDERED.

5 DATED: July 15, 2008

6

7

FRANK C. DAMRELL, Jr.

8

UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AREZOU MANSOURIAN; LAUREN



MANCUSO; CHRISTINE WING-SI NG,

Plaintiffs-Appellants,

v.

No. 08-16330

REGENTS OF THE UNIVERSITY OF CALIFORNIA, UNIVERSITY OF CALIFORNIA AT DAVIS; LAWRENCE

 D.C. No. 2:03-cv-02591-FCDEFB

VANDERHOEF; GREG WARZECKA;

OPINION

PAM GILL-FISHER; LAWRENCE

SWANSON,

 Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted October 8, 2009—San Francisco, California
Filed February 8, 2010
Before: Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Milton I. Shadur,* District Judge.
Opinion by Judge Berzon

*The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.
2209

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2213
COUNSEL Noreen Farrell (argued), Debra Smith, James C. Sturdevant, Monique Olivier, San Francisco, California; Kristen Galles, Alexandria, Virginia, for plaintiffs-appellants Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng. Nancy J. Sheehan, Sacramento, California, for defendantsappellees Regents of the University of California et al.
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 oppor-

2214 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
tunities 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 WingSi 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
1Nancy Chiang, an additional plaintiff named in the complaint, was on a leave of absence from UCD when the complaint was filed. She dismissed her claims in June 2007. Mansourian, Ng, and Mancuso graduated from UCD during the course of the litigation.
2UCD disputes the very existence of a women’s varsity wrestling program, insisting that the plaintiffs were merely “permitted to practice with the wrestling team.” UCD acknowledges, however, that the plaintiffs “par-

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2215
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
ticipated in wrestling” and that Mansourian, at least, was “on the wrestling team roster” and received varsity-associated benefits. Moreover, UCD listed four female varsity wrestlers in its 1999-2000 athletics report pursuant to the Equity in Athletics Disclosure Act, 20 U.S.C. § 1092(g). Viewing the facts in favor of the plaintiffs on UCD’s motion for summary judgment, we conclude that the plaintiffs were varsity wrestlers for purposes of Title IX.
3OCR is the division of the United States Department of Education charged with enforcing Title IX.
4The Title IX claims are asserted only against the university. The individual defendants are Larry Vanderhoef, University Chancellor; Greg Warzecka, Athletic Director; Pam Gill-Fisher and Lawrence Swanson, Associate Athletic Directors; and Robert Franks, Associate Vice Chancellor for Student Affairs. We refer to the individual defendants and the University collectively as “UCD.”

2216 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
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 Sewer Authority v. National Sea Clammers Ass’n., 453 U.S. 1 (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. 2006).
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

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2217
Brust, Bulala, and Ludwig as plaintiffs. We hold that this issue is moot and so beyond our jurisdiction, for the reasons we now explain.
[1] After the district court denied the motion, Brust, Bulala, and Ludwig initiated a separate lawsuit against UCD. The district court certified a class of “[a]ll 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

2218 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
plaintiffs seek to add to the case for purposes of obtaining that relief.
[2] 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.5 See, 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).
[3] 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
[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the
5The parties did not inform this court before oral argument that (1) the putative additional plaintiffs had also all graduated and (2) those plaintiffs had settled their separate lawsuit for class injunctive relief and were awaiting approval of that settlement by the district court. We as judges take our responsibilities seriously, preparing carefully before argument on all issues presented in the briefs. Where, as here, the complexion of the case has entirely changed while the appeal is pending, counsel for both parties have an obligation to so inform the court. That is so even if a party believes it has a basis for arguing that the issue should still be decided.
No such notice of changed circumstances was given here. Instead, the panel learned only at argument that Brust, Ludwig, and Bulala had graduated, and learned only after independent post-argument research that there was a motion pending, to be heard in a matter of days, for approval of a settlement for broad-ranging injunctive relief in the Brust litigation.

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2219
benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
20 U.S.C. § 1681(a). As applied to intercollegiate athletics, the Department of Education’s Title IX regulations interpret the statute as requiring funding recipients to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c).6
[4] The regulations establish two components of Title IX’s equal athletic opportunity requirement: “effective accommodation” and “equal treatment.” “Effective accommodation” Title IX requirements derive from the Title IX regulation at 34 C.F.R. § 106.41(c)(1), which bases Title IX compliance in part on whether “the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.”7 The “equal treatment” Title IX standard, in contrast, derives from 34 C.F.R. § 106.41(c)(2)-(10), which has been interpreted by OCR to require “equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided male and female athletes.”8
6The existence of a private right of action to enforce Title IX is wellestablished and not at issue in this case. See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).
7“Effective accommodation” as a doctrine within Title IX jurisprudence is analytically distinct from similarly titled doctrines under other statutes — for example, the obligation to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” under the Americans with Disabilities Act, 42 U.S.C. § 12112(b)(5).
8The regulation requires OCR to consider, in assessing whether equal opportunities are available to students of both sexes:
The provision of equipment and supplies; [s]cheduling of games and practice time; [t]ravel and per diem allowance; [o]pportunity to receive coaching and academic tutoring; [a]ssignment and compensation of coaches and tutors; [p]rovision of locker rooms, practice and competitive facilities; [p]rovision of medical and training facilities and services; [p]rovision of housing and dining facilities and services; [p]ublicity.
34 C.F.R. § 106.41(c).

2220 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
Department of Education Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Clarification) (1996), available at http://www.ed.gov/ about/offices/list/ocr/docs/clarific.html. Effective accommodation claims thus concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics. See McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 299 (2d Cir. 2004) (holding that a competition schedule permitting male but not female high school soccer players to participate in state and regional championships deprived female players of equal treatment under Title IX); see also Pederson v. La. State Univ., 213 F.3d 858, 865 n.4 (5th Cir. 2000) (explaining the relationship between effective accommodation and equal treatment claims); Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1 (2d Cir. 1999) (same). So “an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes,” even if the benefits provided athletes of both sexes are equivalent. Kelley v. Bd. of Trs., 35 F.3d 265, 268 (7th Cir. 1994); see also Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993); Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993).
Whether a funding recipient has met its “effective accommodation” obligation is determined using a “three-part test” drawn from OCR’s 1979 Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979), and further elaborated in OCR’s 1996 Clarification.9 Congress has specifically authorized OCR to promulgate regulations governing intercollegiate athletics,10
9We and other circuits have held that both the Policy Interpretation and the Clarification are entitled to deference under Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984), and Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150 (1991). See Neal v. Bd. of Trs., 198 F.3d 763, 770, 771 (9th Cir. 1999); accord Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir. 2002); Kelley, 35 F.3d at 270-71; Cohen, 991 F.2d at 896-97.
10“Intercollegiate” refers to varsity and junior varsity teams, as opposed to club or intramural teams, which do not receive coaching or athletic scholarships and other benefits listed in the regulations. See supra note 8.

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2221
see Pub. L. No. 93-380, § 844, 88 Stat. 612 (1974), and the resulting three-part test gives universities three options for demonstrating compliance with Title IX: (1) showing substantial proportionality (the number of women in intercollegiate athletics is proportionate to their enrollment); (2) proving that the institution has a “history and continuing practice of program expansion” for the underrepresented sex (in this case, women); or (3) where the university cannot satisfy either of the first two options, establishing that it nonetheless “fully and effectively accommodate[s]” the interests of women. 44 Fed. Reg. 71,418.
[5] Funding recipients can satisfy any of the three options to comply with Title IX. UCD claims to have satisfied the second option by showing a history and continuing practice of program expansion.11 Compliance with this option “focuses on whether an institution has expanded the number of intercollegiate participation opportunities” for women, but provides institutions “flexibility in choosing which teams [they] add[ ].” Clarification nn. 2-3. The number of “participation opportunities” for women is defined by the number of female athletes actually playing intercollegiate sports.
The district court determined that the plaintiffs had adequately pleaded a claim for effective accommodation under Title IX by alleging that UCD “chooses to make fewer athletic participation opportunities [available] to female students than to male students.” The district court did not, however, reach the merits of whether UCD complied with Option Two, instead concluding that “money damages cannot be awarded unless a plaintiff has given notice of and an opportunity to rectify the specific violation alleged by a Title IX plaintiff.” Finding that the plaintiffs had failed to provide such notice, the district court granted summary judgment to UCD.
11The record does not demonstrate that UCD has complied with either Option One or Option Three, and UCD does not contend that it has.

2222 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
This circuit has yet to address whether any such requirement applies in the athletics context. We conclude that it does not.
[6] UCD’s notice argument, adopted by the district court, proceeds by analogy to the Supreme Court’s holding that notice and an opportunity to cure a violation is an essential precursor to a sexual harassment suit for damages under Title IX. We therefore begin by discussing the pertinent Title IX sexual harassment cases. As will appear, the analogy between this case and those is not apt.
The starting point for this inquiry is Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), in which the defendant school district was aware of a teacher’s sexual harassment of a student but took no action to stop it. The Court recognized that Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28-29 (1981), precludes the award of damages for unintentional violations of statutes, like Title IX, enacted pursuant to Congress’s spending authority. See Franklin, 503 U.S. at 74. Franklin held, however, that the failure to halt harassment of which a school district is aware constitutes intentional discrimination for which monetary damages are an appropriate remedy. Id. at 75-76.
Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), further defined the scope of a school’s monetary liability under Title IX for inaction in the face of serious sexual harassment. In Gebser, the Court held that principles of respondeat superior and constructive notice are inadequate to impose Title IX liability on a school district for a teacher’s sexual abuse of a high school student. Id. at 285. Noting that Title IX’s express enforcement scheme, termination of federal funding, requires “an opportunity for voluntary compliance” before suspending or terminating funding, see 20 U.S.C. § 1682, Gebser held that the judicially implied private right of action similarly should not impose liability “without regard to the recipient’s knowledge or its corrective actions upon

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2223
receiving notice.” Id. at 289. Monetary damages premised on constructive notice or respondeat superior for sexual harassment, the Court held in Gebser, would entail a risk that “the recipient of funds was unaware of the discrimination.” Id. at 287. Rather,
in cases like this one that do not involve official policy of the recipient entity, . . . a damages remedy will not lie under Title IX unless an official who . . . has authority to address the alleged discrimination and to institute corrective measures . . . has actual knowledge of discrimination . . . and fails adequately to respond.
Id. at 290 (emphasis added).
[7] Critically for present purposes, Gebser does not make pre-litigation notice of an alleged violation a prerequisite to recovery in every Title IX case, or even in every sexual harassment case. Proof of actual notice is required only when the alleged Title IX violation consists of an institution’s deliberate indifference to acts that “do not involve official policy of the recipient entity.” Id. In sexual harassment cases, it is the deliberate failure to curtail known harassment, rather than the harassment itself, that constitutes the intentional Title IX violation.12 See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 641 (1999) (holding that Gebser permits the plaintiff “to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools.”). The Tenth Circuit has held that a corollary of this principle is that where the official policy is one of deliberate indifference to a known overall risk of sexual harassment, notice of a particular harassment situation and an opportunity
12The harassment itself may be actionable under state law or 42 U.S.C. § 1983. Gebser, 524 U.S. at 292.

2224 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
to cure it are not predicates for liability. See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007).13
[8] Consistent with the reasoning underlying Gebser, the Supreme Court has made clear that no notice requirement is applicable to Title IX claims that rest on an affirmative institutional decision. Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), held that a high school athletics coach fired in retaliation for complaining about discrimination in athletics funding had a private right of action under Title IX. The Court held that no pre-litigation notice is required in the retaliation context. In Gebser and Davis, the Court stated, “we emphasized that [the notice] limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute.” Id. at 182 (quotation omitted). As retaliation is “easily attributable to the funding recipient and it is always — by definition — intentional,” id., the Court allowed Jackson’s retaliation claim to proceed without regard to whether adequate pre-litigation notice and opportunity to cure the violation had been provided.
[9] Universities’ decisions with respect to athletics are even more “easily attributable to the funding recipient and . . . always — by definition — intentional,” id. at 183, than the retaliation in Jackson. Institutions, not individual actors,
13 Simpson concerned two female University of Colorado (CU) students sexually assaulted by football players and high school football recruits. The Tenth Circuit held that Gebser’s notice standard did not apply. The record supported the finding that the head football coach was aware of “the serious risk of sexual . . . assault during college-football recruiting efforts [and] that such assaults had indeed occurred during CU recruiting visits,” Simpson, 500 F.3d at 1184, and that, although the Boulder District Attorney’s office had recommended a policy to curb such assaults after a previous incident involving recruits, the policy was not followed and CU continued to sponsor an “unsupervised player-host program to show highschool recruits ‘a good time.’ ” Id. The court held this sequence of events satisfied the “official policy” element of Gebser and that a woman assaulted thereafter need provide no separate notice and opportunity to cure before filing suit.

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2225
decide how to allocate resources between male and female athletic teams. Decisions to create or eliminate teams or to add or decrease roster slots for male or female athletes are official decisions, not practices by individual students or staff. Athletic programs that fail effectively to accommodate students of both sexes thus represent “official policy of the recipient entity” and so are not covered by Gebser’s notice requirement. Gebser, 524 U.S. at 290.
Moreover, a judicially imposed notice requirement would be superfluous in light of universities’ ongoing obligations to certify compliance with Title IX’s athletics requirements and to track athletics gender equity data. OCR regulations require funding recipients to evaluate their policies and certify, as a condition for receiving funds, that they are “tak[ing] whatever remedial action is necessary . . to eliminate . . . discrimination.” 34 C.F.R. § 106.4; see also id. § 106.3. UCD and other funding recipients therefore have an affirmative obligation to ensure compliance with at least one prong of the three-part effective accommodation test.
The Equity in Athletics Disclosure Act (EADA) further requires federally funded universities to report to the Department of Education and make available to students the number of undergraduates and athletes, broken down by sex, as well as sex-segregated data on operating expenses, coach salaries, athletic scholarships, recruiting expenditures, and revenues. 20 U.S.C. § 1092(g). UCD’s EADA reports contain ample data demonstrating that it could not satisfy the substantial proportionality option and that the trend of increasing female athletic participation reversed after 2001, indicating that UCD may not have had a continuing practice of program expansion. Thus, where the alleged harm is unequal provision of athletic opportunity, the notice requirement would not supply universities with information of which they are legitimately unaware. See Gebser, 524 U.S. at 289.
[10] We conclude for these reasons that pre-litigation notice and opportunity to cure is not necessary in cases alleg-

2226 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
ing unequal provision of athletic opportunities in violation of Title IX. Applying the notice requirement to institutional decisions would contravene the clear language of Gebser and its progeny. It would also be inconsistent with funding recipients’ affirmative obligations to provide nondiscriminatory athletic participation opportunities and continually to assess and certify compliance with Title IX.
The Fifth Circuit has reached the same conclusion we do, holding that
the requirement in the sexual harassment cases — that the academic institution have actual knowledge of the sexual harassment — is not applicable for purposes of determining whether an academic institution intentionally discriminated on the basis of sex by denying females equal athletic opportunity. . . . In the instant case, it is the institution itself that is discriminating.
Pederson, 213 F.3d at 882. The Eighth Circuit, the only other circuit to address the issue, has assumed, without any analysis, that Gebser’s notice requirement applies equally to Title IX cases where plaintiffs allege discrimination in the administration of an athletic program. Grandson v. Univ. of Minn,, 272 F.3d 568, 575 (8th Cir. 2001). But the plaintiffs in Grandson did not argue otherwise, id., and the Eighth Circuit reached the merits of a later Title IX athletics case without mentioning Grandson, Gebser, or the notice requirement. See Chalenor, 291 F.3d 1042. It is therefore far from clear that Grandson is controlling even in the Eighth Circuit. If it is, then the circuits are already split on the issue, and we find the Fifth Circuit’s holding (and that of the Tenth Circuit in Simpson, on a different but related issue) the more persuasive, for reasons already surveyed.
[11] We therefore join the Fifth Circuit in holding that Gebser’s notice requirement is inapplicable to cases alleging

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2227
that a funding recipient has failed effectively to accommodate women’s interest in athletics. The district court’s decision granting summary judgment on that basis is reversed.
UCD also moved for summary judgment on the grounds that the record demonstrated “a history and continuing practice of program expansion” for women that satisfied Option Two of the three-part test. Although the district court granted summary judgment on the notice grounds discussed above, UCD contends that we could, alternatively, affirm the district court’s decision on the merits. See Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003). That is so, but only if, viewing the evidence in the light most favorable to the students, there are no genuine issues of material fact concerning UCD’s compliance with Option Two. See, e.g., Becerril v. Pima County Assessor’s Office, 587 F.3d 1162, 1163 (9th Cir. 2009). On the record before us we cannot affirm on this alternative ground.
[12] In assessing compliance with Option Two, we must, under the Clarification, focus on both the institution’s record of adding female participation opportunities and its current “plan of program expansion that is demonstrably responsive to the developing interests and abilities” of women. “History” and “continuing practice” thus constitute two separate inquiries. We conclude that the undisputed facts fall short of demonstrating UCD’s compliance with either facet of Option Two.
[13] The Clarification specifies the following factors as evidence of an institution’s history of program expansion:
[A]n institution’s record of adding intercollegiate teams, or upgrading teams to intercollegiate status, for [women]; an institution’s record of increasing the number of participants in intercollegiate athletics who are [women]; and an institution’s affirmative

2228 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
responses to requests by students or others for addition or elevation of sports.
The Option Two analysis focuses primarily, but not exclusively, on increasing the number of women athletes rather than increasing the number of women’s teams. “OCR will assess whether past actions of the institution have expanded participation opportunities for the underrepresented sex . . .” (emphasis added). The number of “participation opportunities” is defined by the number of female athletes actually playing intercollegiate sports.
UCD had seven women’s teams in 1970 and added another in 1974, thereby increasing the number of female varsity athletes. The record indicates that UCD did not further expand participation opportunities for women until 1996. The 1991 Report of the UCD Title IX Review Committee (Report) indicated that UCD did not comprehensively review its compliance with Title IX between 1976 and 1991. The Report also stated that since 1976, UCD had added two women’s sports (soccer and cross country track) but dropped two (golf and field hockey).14 The Report concluded that UCD’s record “cannot be termed a demonstrably responsive process of program expansion . . . particularly when female participation relative to male participation has been decreasing over the past three years.” Internal UCD memoranda from directors of the athletics program suggest that the numerical participation gap continued to grow over the next two years.15
14UCD does not dispute that it eliminated field hockey but denies that it eliminated a women’s golf team, asserting that UCD “attempted” to start a women’s golf team in the 1970s that “never got off the ground.” Drawing all reasonable inferences in favor of the plaintiffs, as we must, we credit UCD’s internal report as accurately describing the elimination of a women’s golf team.
15In 1992 an associate athletic director warned of a “backward slide in compliance,” and in 1993 UCD’s acting athletic director noted that “the ratio of women participating has decreased slightly in recent years.”

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2229
In 1995, UCD decided to add three women’s varsity teams. The university reviewed proposals from five women’s club teams and elevated water polo, crew and lacrosse to varsity status. When the three new teams began competing the following year, the number of female athletes rose from 211 to 348, with the difference between female enrollment and female participation in athletics dropping from twenty percent to eleven percent.
UCD represents that it created another women’s varsity team, indoor track, in 1999. The addition of indoor track, however, cannot be considered evidence of program expansion. It did nothing to expand the number of female athletes, as all the women participating in indoor track also participated in an existing varsity sport. See Cohen v. Brown Univ., 809 F. Supp. 978, 991 (D.R.I. 1992), aff’d, 991 F.2d 888 (1st Cir. 1993) (dismissing the alleged addition of winter track as “a sport that merely involved providing indoor space to the existing women’s track team”). Nonetheless, the number of women athletes did continue to rise. In the 1999-2000 school year, women varsity athletes at UCD reached a historic high in both total numbers and proportion of female athletes to enrolled women students.
Subsequently, however, the number of women playing intercollegiate athletics dropped sharply. Meanwhile, in the ten years since UCD last added a significant number of female varsity slots, the number of female students at UCD grew by 35%. Rather than keeping pace with this growth in women’s enrollment, the number of female athletes fluctuated but never regained the apex it reached in 2000.
[14] In sum, UCD expanded varsity opportunities for women only between 1996 and 2000. UCD’s elimination of women from the varsity wrestling team thus took place in the context of an overall contraction of female athletic participation opportunities that began in 2000.16 UCD’s post-2000
16As noted, supra note 2, the plaintiffs have submitted sufficient facts showing the existence of female varsity wrestling opportunities to survive

2230 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
strategy for sports equality between the sexes appears to have consisted of reducing varsity athletics overall, and in the process reducing men’s participation more than women’s participation by using “roster management” to limit the size of men’s teams. The Clarification explicitly precludes considering such reductions as evidencing program expansion:
OCR will not find a history and continuing practice of program expansion where an institution increases the proportional participation opportunities for [women] by reducing opportunities for [men] alone or by reducing participation opportunities for [men] to a proportionately greater degree than for [women]. . . . [Option Two] considers an institution’s good faith remedial efforts through actual program expansion. . . . Cuts in the program for [women], even when coupled with cuts in the program for [men], cannot be considered remedial because they burden members of the sex already disadvantaged by the present program.
[15] An institution that has eliminated some participation opportunities for women can still satisfy Option Two if the
summary judgment. UCD’s subsequent decision to permit women to compete against men for a slot on the team does not affect our analysis. By requiring women to prevail against men, the university changed the conditions under which women could participate in varsity wrestling in a manner that foreseeably precluded their future participation.
UCD’s contention that it “ha[d] not declared wrestling to be a contact sport” does not advance its position. First, wrestling is a contact sport under OCR regulations. 34 C.F.R. § 106.41(b). While women must be permitted to try out for all-male teams if there is no women’s team in that sport, this requirement is waived for contact sports. Id. But the contactsport “exemption did not give [UCD] license to discriminate against [the plaintiffs] because of their sex once [UCD] decided to allow [them] to join the team.” Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir. 2005) (citation omitted).

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2231
elimination is offset by a strong history of program expansion. In UCD’s case, however, the elimination of women’s wrestling opportunities occurred in the context of a women’s athletics program that was, at best, stagnant. We therefore hold that UCD has not had a history of program expansion for women and so did not satisfy Option Two through such a history.
The 1996 Clarification lists two factors that may indicate a continuing practice of program expansion:
[A]n institution’s current implementation of a nondiscriminatory policy or procedure for requesting the addition of sports (including the elevation of club or intramural teams) and the effective communication of the policy or procedure to students; and an institution’s current implementation of a plan of program expansion that is responsive to developing interests and abilities.
The record contains undisputed evidence that UCD has a procedure for requesting additional varsity sports and effectively communicates that procedure to students. According to the procedure distributed to students, the “primary factor” in UCD’s evaluation of proposals to create new varsity teams is the “[o]verall impact on intercollegiate program gender equity.” In 2003, UCD received detailed applications from members of four women’s club sports (bowling, horse polo, field hockey, and rugby) seeking elevation to varsity status. These applications indicate that students are aware of the opportunity to request new varsity athletic opportunities.17
17UCD points to its Title IX Compliance Officer and grievance procedure as evidence of a practice of program expansion. As both are required by OCR regulations, 34 C.F.R. § 106.8, and neither affects the number of female athletes or teams, they do not indicate program expansion for purposes of Option Two.

2232 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
The 2003 application was the field hockey club team’s second attempt to regain varsity status. An earlier application was rejected in 1995. At that time, the Title IX Advisory Committee advocated elevating lacrosse rather than field hockey to varsity status but noted that field hockey had “developed strong interest from students” and was “a relatively strong NCAA sport,” with three Division I teams competing at nearby universities. The committee recommended that “[s]hould gender equity not be achieved by the addition of the three sports proposed, and funding be available in the future, field hockey would be considered a prime candidate for addition to the ICA program in the future.”
When field hockey club players applied for varsity status in 2003, however, their application was again denied. In fact, UCD rejected all four club team applications, even though all applicants were evaluated as “successful” and “active” club teams with “a long tradition of participation.” Instead, UCD decided to create a women’s golf team at the behest of the men’s golf coach.
UCD contends that the fact that golf was proposed by the men’s golf coach rather than female students is irrelevant. We disagree. Universities are free to consider applications from individuals other than students, and it is appropriate to evaluate interest at the high school level as well as among current UCD students. A funding recipient can only satisfy Option Two, however, by showing an expansion of participation opportunities that is “demonstrably responsive to [women’s] developing interests and abilities . . . includ[ing] interests that already exist at the institution.” The fact that there were no women currently attending UCD who were interested enough in golf to participate at the club level or to request varsity status suggests that the addition of golf instead of field hockey, bowling, horse polo or rugby was not “demonstratively responsive” to the interests of current female students.

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2233
Moreover, UCD’s selection of golf, which added only seven participation opportunities for women, was at odds with its stated priority of taking a significant step toward overall gender equity. Elevating horse polo, rugby or field hockey would have added far more female varsity athletes.18
We recognize that budgetary constraints often prevent universities from creating new teams and adding varsity slots. But “Title IX does not require that a school pour everincreasing sums into its athletic establishment.” Cohen v. Brown Univ., 991 F.2d at 898-99 n.15. Universities may achieve compliance by reducing men’s athletic slots until participation rates become substantially proportionate to the undergraduate population. Id.; Neal, 198 F.3d at 771; Kelley, 35 F.3d at 270; Roberts, 998 F.2d at 830. They may not, however, maintain varsity teams for male students while denying female students comparable “opportunities to enjoy the thrill of victory, the agony of defeat, and the many tangible benefits that flow from just being given a chance to participate in intercollegiate athletics.” Neal, 198 F.3d at 773.
[16] UCD took a significant step towards Title IX compliance by adding three women’s teams in 1996, but Option Two requires more than a single step. It requires evidence of continuous progress toward the mandate of gender equality that Title IX has imposed on funding recipients for the past thirty years. The record before us does not contain undisputed facts showing a history and continuing practice of program expansion that is responsive to women’s interests.
[17] We conclude that the grant of summary judgment to UCD cannot be affirmed on the alternative merits ground that UCD complies with Title IX’s requirement of providing equal athletic opportunities to students of both sexes.
18UCD’s review committee estimated that field hockey would add 22 female athletes; horse polo, 35; rugby, 30 to 40. Bowling would have added 12 to 15.

2234 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
The students also sue under 42 U.S.C. § 1983, alleging that UCD violates the Equal Protection Clause by maintaining an athletics program that discriminates on the basis of gender. The district court dismissed the claim because it determined that “Title IX’s enforcement scheme is sufficiently comprehensive to . . . demonstrate that Congress intended to preclude § 1983 claims when it enacted this statute.”
[18] Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009), decided after the district court dismissed the students’ claims, held, to the contrary, that Title IX does not bar § 1983 suits to enforce rights under the Equal Protection Clause. As in Fitzgerald, the plaintiffs here invoke § 1983 to seek damages for violations of constitutional rights. See id. at 796-97 (explaining distinctions between the rights created by Title IX and those afforded by the Equal Protection Clause).
The defendants concede that the district court ruling does not survive Fitzgerald but urge us to affirm dismissal of the § 1983 claim on other grounds. We decline to do so, for reasons we now explain.
UCD first contends that the § 1983 claim for damages is precluded by the statute of limitations and that the district court did not address this argument. In fact, the district court considered and rejected the statute of limitations defense as to both the Title IX effective accommodation and § 1983 equal protection claims in response to UCD’s original motion to dismiss. The court held that because the students claimed that they were “currently being subjected to defendants’ allegedly sex discriminatory practices . . . their claims accrue each and every day they are denied equal access to athletic participation.”
[19] The district court was quite correct. Section 1983 “is presumptively available to remedy a state’s ongoing violation of federal law.” AlohaCare v. Haw. Dep’t. of Human Servs., 572 F.3d 740, 745 (9th Cir. 2009) (quotation omitted). A

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2235
plaintiff has adequately pled an ongoing claim if she can “show a systematic policy or practice that operated, in part, within the limitations period — a systematic violation.” Douglas v. Cal. Dep’t. of Youth Auth., 271 F.3d 812, 822 (9th Cir. 2001) (quotation omitted); see also Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997) (holding plaintiff’s § 1983 claims timely because she alleged “widespread policy and practices of discrimination [that] continued every day of her employment, including days that fall within the limitation period”).19 A university’s ongoing and intentional failure to provide equal athletic opportunities for women is a systemic violation. As the plaintiffs were students and therefore subject to the policy that allegedly discriminated on the basis of sex at the time they filed their complaint, their § 1983 claim is not time-barred.
[20] UCD next urges this court to conclude that the § 1983 claim against the individual defendants is precluded by the doctrine of qualified immunity. The defendants, however, did not raise a qualified immunity defense in any of their dispositive motions before the district court.20 Our discretion to affirm on grounds other than those relied on by the district court extends to issues raised in a manner providing the district court an opportunity to rule on it. See Proctor v. Vishay Intertechnology, Inc., 584 F.3d 1208, 1226 (9th Cir. 2009); Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 478 n.20 (1979) (“[T]he prevailing party . . . was of course free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court.
19Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), held that each “[d]iscrete act[ ] such as termination, failure to promote, denial of transfer or refusal to hire . . . constitutes a separate actionable ‘unlawful . . . practice’ ” for the purposes of triggering the statute of limitations period in a Title VII case. Morgan left undisturbed our case law governing continuing systemic violations.
20UCD raised a qualified immunity defense in its answer to the students’ complaint but never litigated it thereafter.

2236 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
. . .”) (emphasis added). As the district court has had no opportunity to rule on the individual defendants’ qualified immunity defense, we will not affirm on that basis. The dismissal of the students’ § 1983 claim is therefore reversed.
CONCLUSION
[21] For the foregoing reasons, the plaintiffs’ motion to amend their complaint is dismissed as moot. The district court’s grant of summary judgment to the defendants on the Title IX claim is reversed. The district court’s order dismissing the equal protection § 1983 claim is also reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.

 
 --- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
United States District Court, E.D. California.
Arezou MANSOURIAN; Lauren Mancuso; Nancy Nien-Li Chiang; Christine Wing-Si Ng; and all those
similarly situated, Plaintiffs, v.
BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA AT DAVIS; Lawrence Vanderhoef; Greg Warzecka; Pam Gill-Fisher; Robert Franks; and
Lawrence Swanson, Defendants.
No. CIV. S 03-2591 FCD EFB. Dec. 8, 2010.
James C. Sturdevant, Whitney Bryn Huston, Sturdevant Law Firm A Professional Corporation, Jora Thu Trang, Noreen Ann Farrell, Equal Rights Advocates, Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, San Francisco, CA, Kristen Marie Galles, Equity Legal, Alexandria, VA, for Plaintiffs.
David Pontus Eugene Burkett, George A. Acero, Michael William Pott, Porter Scott, Nancy Joan Sheehan, Law Office of Derek J. King, Sacramento, CA, for Defendants.
MEMORANDUM AND ORDER
FRANK C. DAMRELL, JR., District Judge. *1 This matter is before the court on motions for
summary judgment, brought pursuant to Federal Rule of Civil Procedure 56, filed by defendants Larry FN1 Vanderhoef (“Vanderhoef”), Greg Warzecka (“Warzecka”), Pam Gill-Fisher (“Gill-Fisher”), and Robert Franks (“Franks”) (collectively “defendants” or “UCD”).FN2 Plaintiffs Arezou Mansourian (“Mansourian”), Lauren Mancuso (“Mancuso”), and Christine Wing-Si Ng (“Ng”) (collectively “plaintiffs”) FN3 oppose the motion. For the reasons set forth below, FN4 defendants' motions for summary judgment are DENIED.
BACKGROUND FN5 A. Factual Background
Plaintiffs Mansourian, Mancuso, and Ng were all students at University of California, Davis. Plaintiff Mansourian entered UCD in the fall of 2000 and graduated in June 2004. (VUF ¶ 26.) Plaintiff Mancuso entered UCD in the fall of 2001 and received her degree in September 2006. (VUF ¶ 33.) Plaintiff Ng

Page 1
entered UCD in 1998 a nd graduated in September 2002. (VUF ¶ 30.) Each of the plaintiffs wrestled in high school and attended UCD, in large part, to wrestle. (PDF ¶ 2.)
At the time plaintiffs entered UCD, there had been a wrestling program available to women at UCD. (PDF ¶ 3.) Plaintiffs contend that there was a long-standing women's varsity wrestling program at UCD. (PDF ¶ 3.) Defendants contend that there was a single wrestling program in which women participated at various times. (PDF ¶ 3.) However, all parties agree that women wrestlers, including plaintiffs, were listed as varsity athletes on participation lists, roster lists, and in the Aggie Open FN6 programs. (PDF ¶ 13.) UCD women wrestlers, including plaintiffs, competed in open meets, but did not compete in NCAA competitions.FN7 (PDF ¶ 3.) Men and women competed against their respective sex, not each other; women wrestlers used women's freestyle rules rather than men's collegiate rules. (PDF ¶¶ 5-6.) Women wrestlers, including plaintiffs, also received benefits of varsity status, such as highly qualified coaching, attention unique to the needs of women wrestlers, lockers, training services, academic support services, and laundry services. (PDF ¶¶ 6, 11-12.) They attended the end of the year team banquet and received honors from the coach. (PDF ¶ 14.)
In 2000, all women were removed from the wrestling program after UCD imposed a roster limit FN8 for the wrestling team. (PDF ¶ 16.) Plaintiffs assert that the UCD athletic department administration instructed Michael Burch (“Burch”), the wrestling coach, to remove the women from the wrestling team. (PDF ¶ 16.) Defendants contend that Burke made the decision to remove women from the team because they were not competitive. (PDF ¶ 16.)
Despite their removal from the roster, plaintiffs were permitted to continue practicing with the wrestling team. (PDF ¶ 16.) After Mansourian was injured during a practice in January 2001 and sought assistance from a varsity trainer, defendant Warzecka told plaintiffs they could present a potential liability to UCD if they continued to practice with the team because they were not on the varsity roster and thus, not covered by the insurance plan. (PDF ¶¶ 17-19.) Plaintiffs assert that Warzecka directed them not to participate in wrestling. (PDF ¶¶ 18-19.) Plaintiffs were devastated that their wrestling opportunities

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
were eliminated. (PDF ¶ 20.)
*2 Subsequently, plaintiffs filed a number of complaints with the athletic department administration and the U.S. Department of Education's (“DOE”) Office for Civil Rights (“OCR”).FN9 (PDF ¶ 21.) At the same time, soon after the OCR complaints were filed, UCD fired Burch for his support of women's wrestling. (PDF ¶ 27.)
Each of the individual defendants was bombarded by public outcry protesting the removal and continued exclusion of women from the varsity wrestling team. (PDF ¶ 28.) Students, the student government, UCD employees, parents, members of the public, and legislators expressed concerns that defendants' actions toward plaintiffs were unfair and discriminatory. (PDF ¶ 29.) Specifically, Assemblywoman Helen Thomson (“Thomson”) challenged UCD's efforts to demote the women wrestlers to club status as “separate but equal” treatment and threatened to withhold a significant source of funding on a UCD building in protest. FN10 (PDF ¶ 29.)
In May 2001, UCD reinstated plaintiffs to the wrestling team by placing them on the roster. (PDF ¶ 30.) While plaintiffs were allowed to practice with the team and participate in open meets, there were no opportunities for plaintiffs to compete in May 2001. (PDF ¶ 30.)
In June 2001, defendant Vanderhoef met with Thomson to discuss the issues raised in the May 3 letter. (PDF ¶ 15.) Thomson also met with defendant Gill-Fisher, who explained the athletic department's position on the issue of women wrestlers. (PDF ¶ 16.) On June 13, 2001, Vanderhoef had a letter delivered to Thomson (1) setting forth the campus' plan for sustaining opportunities for women in sports; (2) explaining why UCD could not comply with Thomson's request to eliminate the roster cap for the wrestling team; (3) offering to convene a blue ribbon committee of nationally recognized authorities on Title IX to review UCD's intercollegiate athletic program with respect to its compliance with Title IX, with an emphasis on how the campus was handling women's wrestling; and (4) asking her to join with him in making a public statement in support of the campus' athletic program and defendants Warzecka and Gill-Fisher, for their accomplishments in the area of college athletics. (VUF ¶ 17.) The proposal to have a

Page 2
blue ribbon committee review UC Davis' intercollegiate athletic program in regard to its compliance with Title IX and the manner in which it was handling women's wrestling was made at the suggestion of Donna Lopiano, a recognized expert in Title IX issues who had been contacted by Gill-Fisher. (VUF ¶ 18.) After the letter was sent, Thomson had no further meetings with Vanderhoef regarding these issues. (VUF ¶ 18.) The proposed blue ribbon committee on UCD's Title IX compliance was never convened. (VUF ¶ 18; PDF ¶ 74.)
In September and October 2001, the OCR, without consultation with plaintiffs, negotiated with defendants a “voluntary resolution” of plaintiffs' OCR complaints. (PDF ¶ 31.) UCD agreed to reinstate the women on the team as a resolution of plaintiffs' complaints, conditioned on plaintiffs' ability to compete against men for slots in the wrestling program. (PDF ¶ 32.) UCD's purported reason for requiring women to wrestle-off against men, using men's wrestling rules, (the “wrestle-off policy”) was because the places on the team were limited by roster caps. (PDF ¶ 34.) Plaintiffs inquired whether, as females, they would have to comply with a roster cap, which was intended to limit the number of men participating in order to move toward gender equity in participation opportunities; the women were told that they would have to comply with the male roster caps.FN11 (PDF ¶ 35.)
*3 In the fall of 2001, Mansourian, Ng, and Mancuso attended wrestling practices with the team. (PDF ¶ 39.) Plaintiffs contend that at practice, the new head wrestling coach, Lennie Zalesky, was hostile to the women and did not provide them with any coaching, tips, or support. (PDF ¶ 40.) Mansourian asserts that she stopped attending practices because she felt unwelcome and humiliated. (PDF ¶ 41.) Subsequently, under the new wrestle-off policy, Ng wrestled against Manucuso, who beat her. Mancuso then wrestled off against a male wrestler, who beat her. (PDF ¶ 42.) As a result, all plaintiffs were eliminated from the varsity wrestling program. (PDF ¶ 43.)
B. Individual Defendants Defendants Vanderhoef, Franks, Gill-Fisher, and
Warzecka are all employees of the UCD who had responsibilities regarding the oversight of administration and operation of athletics at UCD. (PDF ¶ 1.) Each of these defendants is a state actor. (PDF ¶ 1.)

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
Defendant Vanderhoef served as the Chancellor for the University of California, Davis from 1994 through August 16, 2009. (VUF ¶ 2.) The Chancellor is the chief campus officer and is responsible for the organization and operation of the campus. The Chancellor is authorized to delegate responsibilities to a wide variety of administrators. (VUF ¶ 3.) However, Vanderhoef was ultimately responsible for UCD's athletic program and compliance with gender equity requirements. (PDF ¶ 65.)
During the 2000-2001 academic year, Judy Sakaki (“Sakaki”) was the Vice Chancellor for Student Affairs and defendant Franks was the Associate Vice Chancellor for Student Affairs at UCD. (VUF ¶ 4.) Sakaki and Franks, along with the campus Athletic Director, were responsible for the intercollegiate athletic program, including decisions relating to coaches, the selection of sports sponsored at the intercollegiate level, and sports conference issues. (VUF ¶ 4.) The Vice Chancellor or her designees were also responsible for overseeing Title IX compliance. (VUF ¶ 5.) Vanderhoef relied on Dennis Shimek (“Shimek”), UCD's Title IX compliance officer to oversee and handle Title IX issues, including complaints from students. (PDF ¶ 68.) However, although day-to-day decisions were delegated, Vanderhoef tracked UCD's Title IX compliance and met frequently with officials regarding gender equity. (PDF ¶ 66.) Indeed, Vanderhoef testified that the “buck” stopped with him. (PDF ¶ 67.)
Defendant Franks was a s enior administrator at UCD from 1994 to 2004 charged with oversight of the athletic department and actively involved in the events at issue in this case. (PDF ¶ 76.) As the Associate Vice Chancellor for Student Affairs, Franks directly supervised and met weekly with the Athletic Director. (PDF ¶ 77.) Among his other responsibilities, Franks was responsible for ensuring that men and women were treated equally in the athletic department, including evaluating whether the department was providing equitable participation opportunities for female students. (PDF ¶¶ 79, 84.) Between 1994 and 2004, Franks participated in committees that evaluated the issue of gender equity in UCD's athletic department. (PDF ¶ 83.) Franks also carefully reviewed UCD's Equity in Athletics Disclosure Act (“EADA”) Reports which quantified how many participation opportunities UCD was offering to men as compared to women. (PDF ¶ 86.) Franks also reviewed UCD's proposed

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addition or elimination of any intercollegiate team and had responsibility to ensure it was a fair process. (PDF ¶ 87.) Franks admits that during the period of 1994-2004, he received and reviewed reports and memos that alerted him to gender inequities. (PDF ¶ 88.)
*4 Defendant Warzecka has been UCD's Athletic Director since 1995, and as such, was responsible for the overall direction, leadership, and management of the UCD Intercollegiate Athletic program. (PDF ¶¶ 100-01; WUF ¶ 1.) He was responsible for ensuring gender equity in the athletic department, including regular review of compliance with gender equity laws through committee work and the development of gender equity plans. (PDF ¶¶ 102, 104-05.) He also oversaw the addition and elimination of intercollegiate teams. (PDF ¶ 106.) Since 1996, Warzecka has prepared and analyzed UCD's EADA Reports. (PDF ¶ 107.)
From approximately 1985 t o 2003, defendant Gill-Fisher was the Associate Athletic Director and Supervisor of Physical Education. In 2003, Gill-Fisher was the Senior Associate Athletic Director and Senior Woman Administrator with significant responsibility in the intercollegiate athletic department. Gill-Fisher had a particular expertise in Title IX and had responsibility for UCD's compliance with gender equity laws. (PDF ¶ 126.) Historically, Gill-Fisher authored or significantly contributed to nearly every report related to gender equity at UCD, including reports that acknowledged UCD athletic department's gender equity failings. (PDF ¶ 127.) Defendant Vanderhoef testified that he had faith in Gill-Fisher to make decisions and ensure compliance with gender equity at UCD. (PDF ¶ 130.) Similarly, Shimek and senior athletic department administrators relied on Gill-Fisher's opinion and assessment regarding gender equity. (PDF ¶¶ 131-32.)
C. Equal Opportunities in Athletics During the relevant time periods in this case,
UCD never provided females with athletic opportunities substantially proportionate to their enrollment. (PDF ¶ 46.) Specifically, between 1995 a nd 2005, UCD was short of exact proportionality by over a hundred varsity slots each year. (PDF ¶ 47.) A November 9, 1992 UCD memorandum from defendant Gill-Fisher noted that UCD has a “backward slide in compliance” and concluded that UCD “cannot con-

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
tinue with current practices and not risk a law suit and/or investigation by the OCR.” The memorandum further provided, “I believe that unless we make some changes immediately and have on file a p lan for compliance in these areas our current situation is indefensible .... we are not being fair to women athletes as things currently stand and in my opinion we are violating the law.” (PDF ¶ 46.) Two years later, a September 1, 1994 UCD memorandum from Gill-Fisher admitted that “participation ratios persist as the most consistent finding of non-compliance at U.C. Davis ....” (PDF ¶ 46.) By an internal UCD letter dated January 13, 1998, defendant Franks was informed that UCD was not where it should be in regards to Title IX compliance. (PDF ¶ 46.) By letter dated December 2, 1998, California National Organization for Women requested information from defendant Warzecka regarding UCD's plan to rectify the 11.9% discrepancy between percentages of women enrolled and women student-athletes. (PDF ¶ 46.) That same year, Warzecka acknowledged that a gender imbalance in the athletic department “is not a new issue.” (PDF ¶ 53.) The 1999 U CD Title IX Working Group admitted that the participation rates of women in the varsity program was not substantially proportionate. (PDF ¶ 46.)
*5 The 2001-2002 Equity in Athletics Plan acknowledged that the participation rates of women in the varsity program was not substantially proportionate. (PDF ¶ 46.) An email dated November 15, 2002, from defendant Gill-Fisher to Shimek warned that participation rates for women in UCD varsity athletics continued to worsen, falling from 6.8% to 9.7% in just one year. (PDF ¶ 46.) The number of participation opportunities at UCD dropped by a total of 63 between 1999 and 2005; in 1999-2000, 424 female athletes participated, while in 2004-2005, only 368 f emale athletes participated. (PDF ¶¶ 57-59.) UCD's expert agrees that the drop during this time period was “drastic.” (PDF ¶ 60.)
Between 1999 and 2005, women student enrollment at UCD experienced significant growth. (PDF ¶ 61.) However, from 1995 to 2003, UCD didn't communicate to female students that they could seek the addition of a new women's varsity sport or the process for doing so. (PDF ¶ 62.) Rather, during the same time period, UCD rejected varsity applications from numerous women club team members. (PDF ¶ 48.) Except for the addition of indoor track for women in

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1999, FN12 defendants took no further steps to add women's athletic opportunities until 2005.FN13 (PDF ¶¶ 54, 56.) Indeed, in 2003, when it considered applications to elevate a women's sport to varsity status, it received applications from six sports, five of which it rejected. (PDF ¶ 64.)
D. Procedural Background On December 18, 2003, plaintiffs filed the instant
action on behalf of themselves and a putative class, asserting six claims for relief: (1) violation of Title IX based on unequal opportunities; (2) violation of Title IX based on unequal financial assistance; (3) retaliation in violation of Title IX; (4) violation of 42 U.S.C. § 1983; (5) violation of the California Unruh Civil Rights Act; and (6) violation of public policy. Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 5, 2004. (Defs.' Mot. to Dismiss (Docket # 13-15), filed Mar. 5, 2004.) The court denied the motion on May 6, 2004. (Mem. & Order (Docket # 25), filed May 6, 2004).
Unfortunately, both defendants' and plaintiffs' counsel suffered illnesses throughout the course of the litigation. As a result, both parties stipulated to extend deadlines and to stay proceedings. In August 2006, plaintiffs obtained new counsel. (Notice of Appearance (Docket # 134), filed Aug. 18, 2006.) The parties submitted a joint status report on January 19, 2007, and active litigation resumed. (Joint Status Report (Docket # 154), filed Jan. 19, 2007.)
On February 2, 2007, plaintiffs' filed a motion to amend the complaint to add new plaintiffs and allegations. (Pls.' Mot. to Amend (Docket # 158) , filed Feb. 2, 2007.) The court denied the motion on March 20, 2007.FN14 (Mem. & Order (Docket # 175) , filed Mar. 20, 2007.) The parties thereafter stipulated to dismiss the class claims. (Mem. & Order (Docket # 195), filed June 12, 2007.)
*6 On June 5, 2007, defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Defs.' Mot. for J. on Pleadings (Docket # 188), filed June 5, 2007.) The court granted the motion for all claims, except plaintiffs' claim against UCD for ineffective accommodation. Specifically, the court granted defendants' motion on plaintiffs' claims under 42 U.S.C. § 1983 against the individual defendants for violation of the Equal Protection Clause. Noting a split among the Circuits and the

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
absence of any Ninth Circuit precedent, the court concluded that plaintiffs' § 1983 claims were subsumed by their Title IX claims. (Mem. & Order (Docket # 226), filed Oct. 18, 2007.)
On January 11, 2008, defendants filed a motion for summary judgment on the sole remaining claim. (Defs.' Mot. for Summ. J. (Docket # 280), filed Jan. 11, 2008.) The court granted the motion, concluding that a claim for damages arising out of ineffective accommodation under Title IX required notice to the institution and the opportunity to cure. The court found that plaintiffs' had failed to give UCD notice and an opportunity to cure. Accordingly, on April 23, 2008, the court entered judgment and closed the case. (Mem. & Order (Docket # 368), filed Apr. 23, 2008.)
Plaintiffs appealed to the Ninth Circuit Court of Appeals. On April 29, 2010, the Ninth Circuit issued its mandate, reversing the court's dismissal of plaintiffs' § 1983 claims against the individual defendants and Title IX ineffective accommodation claim against UCD. With respect to plaintiffs' § 1983 claims, the Ninth Circuit noted that subsequent to the court's order, the Supreme Court held in Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009), that Title IX does not bar § 1983 suits to enforce rights under the Equal Protection Clause. Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 973 (9th Cir.2010). With respect to plaintiffs' Title IX claim, the Ninth Circuit concluded pre-litigation notice and opportunity to cure is not necessary in cases alleging unequal provision of athletic opportunities in violation of Title IX. Id. at 969. Specifically, it reasoned that the failure to provide equal athletic opportunities rested on an affirmative and intentional institutional decision; thus, imposing a notice requirement would not supply universities with information of which they are legitimately unaware. Id. at 968. The Ninth Circuit also found that there were triable issues of fact regarding whether UCD had complied with Title IX's requirements of providing equal athletic opportunities to students of both sexes. Id. at 969-73.
STANDARD The Federal Rules of Civil Procedure provide for summary judgment where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

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matter of law.” Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).
*7 The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L .Ed.2d 265 (1986). If the moving party fails to meet this burden, “the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show “that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party “must set for specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Proc. 56(e).
ANALYSIS Defendants move for summary judgment on plaintiffs' § 1983 claims, alleging violations of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs contend that defendants violated their rights under the Equal Protection Clause in three ways: (1) by affording plaintiffs fewer opportunities to compete in varsity athletics than they did men program-wide; (2) by purposefully removing plaintiffs from the varsity wrestling program based on gender; and (3) by imposing permanent barriers to the participation of plaintiffs in the varsity wrestling program through application of the wrestle-off policy.
A. Statute of Limitations

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
Defendants move to dismiss plaintiffs' § 1983 claims on the basis that they are barred by the one year statute of limitations. Specifically, defendants contend that plaintiffs' claims are based upon discrete acts for which claims must have been filed before Fall 2002. Plaintiffs contend that their claims are timely because they arise out of defendant's policy of discrimination, which denied equal access to athletic participation and scholarship opportunities each and every day they attended the University.
The applicable statute of limitations for plaintiffs' Section 1983 claim is the same as California's personal injury statute of limitations. Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir.2004); Azer v. Connell, 306 F.3d 930, 935 (9th Cir.2002). In California, an aggrieved party must commence an action for personal injury caused by an alleged wrongful act or neglect within two years of the act. Cal.Code Civ. Proc. § 335.1. The two-year limitations period, however, was extended in 2003; before January 1, 2003, when § 335.1 became effective, the limitations period for personal injury claims was one year. Cal.Code Civ. Proc. § 340(3), repealed.
*8 [1] A legislative extension of the statute of limitations period will extend the limitations period of an actionable claim if the extension occurred before the claim for relief became time barred under the prior limitations period. See Maldonado, 370 F.3d at 955; Douglas Aircraft Co. v. Cranston, 58 Cal.2d 462, 465, 24 Cal.Rptr. 851, 374 P.2d 819 (1962). On the other hand, once a claim is time barred it will not be revived by the extension to the applicable limitations period unless the legislature expressly declared that the amendment of the limitations period applied retroactively. Maldonado, 370 F.3d at 955; Bartman v. Estate of Bartman, 83 Cal.App.3d 780, 787-88, 148 Cal.Rptr. 207 (1978). Plaintiffs initiated this lawsuit on December 18, 2003.
[2] “Determining whether a p laintiff's charge is timely ... requires identifying precisely the unlawful ... practice of which he complains.” Lewis v. City of Chicago, --- U.S. ----, 130 S.Ct. 2191, 2197, 176 L.Ed.2d 967 (2010) (internal quotations and citation omitted).FN15
1. Discrete Acts “A discrete retaliatory or discriminatory act ‘oc-
curred’ on the day that it happened.” National R.R.

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Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Where a discrete act is the basis for a discrimination claim, the timely filing period begins to run from that date. Id. Such acts “are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 113, 122 S.Ct. 2061.
[3][4][5] The term “practice” does not convert related discrete acts into a single unlawful practice for the purposes of timely filing. Morgan, 536 U.S. 101, 111, 122 S.Ct. 2061 (2002). The Court has defined a “discrete act” of discrimination as one that constitutes a separate, actionable unlawful practice that is temporally distinct. Id. at 114, 122 S.Ct. 2061. In the employment context, the Court pointed to “termination, failure to promote, denial of transfer, [and] refusal to hire” as examples of such discrete acts. Id. A cause of action accrues when the discrete, unlawful action occurred. Id. If a defendant “engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed.” Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 628, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). However, “a new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Id. (discussing the Court's holding in Morgan and other related cases).
[6] The current effects of discriminatory conduct “cannot breathe life into prior, uncharged conduct.” Id. In Ledbetter, a female retiree sued her former employer under Title VII and the Equal Pay Act for alleged sex discrimination reflected in negative evaluations, which resulted in her receiving lower paychecks than her male counterparts. Id. at 2163-64. The plaintiff argued that each of the paychecks she received constituted a new, actionable discriminatory act. Id. at 2169. The Court rejected this argument, holding that the actionable discrete conduct occurred when the pay decision was made, not when a paycheck was issued pursuant to that allegedly discriminatory decision. Id. at 2175-76; see Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir.2009) (holding that the denial of a disabled employee's request for accommodation is a discrete discriminatory act that starts the clock running on the day it occurs because it does not require repeated conduct to establish an actionable claim).

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
*9 [7] In this case, plaintiff's Equal Protection claims arising from (1) the alleged purposeful removal of plaintiffs from the varsity wrestling program based on gender; and (2) the imposition of permanent barriers to the participation of plaintiffs in the varsity wrestling program by application of the “wrestle-off policy” are discrete acts that occurred, at latest, in the Fall of 2001. Specifically, plaintiffs claim that defendant UCD first excluded them from the wrestling program and then failed to give them a fair opportunity to obtain a position on the team by requiring them to compete against men, using men's rules. These claims are akin to a claim of termination and failure to hire or promote in the employment context. As such, they are appropriately characterized as discrete acts, and the cause of action accrued when the conduct occurred in Fall 2001.
[8] While plaintiffs claim that the discriminatory acts continued because they were unable to wrestle each and every day that they were students at UCD, this inability was merely the effect of defendant's prior, allegedly discriminatory conduct. There is no evidence that defendants ever removed plaintiffs from the team after Fall 2001 or applied the allegedly discriminatory wrestle-off policy against them after Fall 2001.FN16 As set forth in Ledbetter, the current effects of discriminatory conduct does not extend the statute of limitations. 127 S.Ct. at 2169.
The rationale applied by the Ninth Circuit in Cherosky v. Henderson is similarly applicable to some of the claims in this case. 330 F.3d 1243 (9th Cir.2003). In Cherosky, current and former employees brought suit against the United States Postal Service under the Americans with Disabilities Act, challenging the denial of their requests to wear respirators while on duty. Id. at 1244-45. The Ninth Circuit found that the heart of the plaintiffs' complaint stemmed from the individualized decisions to deny the plaintiffs' requests and, as such, were discrete acts. Id. at 1247. Similarly, in this case, the allegations in plaintiff's complaint challenging their removal from the wrestling team and the alleged barriers imposed to prevent them from gaining a place on the wrestling team stems from individualized decisions by defendants regarding the UCD wrestling program and these particular plaintiffs. As such, these decisions are discrete acts.
Therefore, the court concludes that plaintiff's

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Equal Protection claims arising from (1) the alleged purposeful removal of plaintiffs from the varsity wrestling program based on gender; and (2) the imposition of permanent barriers to the participation of plaintiffs in the varsity wrestling program through application of the wrestle-off policy are discrete acts that accrued in Fall 2001. The statute of limitations then in effect was one year and expired in Fall 2002, prior to the filing of the complaint in this action. Accordingly, plaintiffs' claims based on this conduct is time-barred, and defendants' motions for summary judgment with respect to these claims are GRANTED.
FN17
2. Systemic Discrimination *10 [9][10] A plaintiff may set forth a claim for
unlawful discrimination by showing a systematic policy or practice of discrimination that inflicts injury during the limitations period. Douglas v. Cal. Dept. of Youth Authority, 271 F.3d 812, 822 (9th Cir.2001); see Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir.1997). “A systemic violation claim requires no identifiable act of discrimination in the limitations period, and refers to general practices or policies.” Id. (internal quotations and citation omitted). “In other words, if both discrimination and injury are ongoing, the limitations clock does not begin to tick until the invidious conduct ends.” Id. (quotation and citation omitted).
[11] The Ninth Circuit has expressly held in this case that “[a] university's ongoing and intentional failure to proved equal athletic opportunities for women is a systemic violation.” Mansourian, 602 F.3d at 974. Further, § 1983 “is presumptively available to remedy a state's ongoing violation of federal law.” Id. (quoting AlohaCare v. Haw. Dep't of Human Servs., 572 F.3d 740, 745 (9th Cir.2009)). As such, the Ninth Circuit held that this court was “quite correct” in concluding that plaintiff's claims challenging the lack of women's equal access to athletic participation at UCD were not time-barred.FN18
[12] As previously noted by both the court and the Ninth Circuit, plaintiffs in this case allege that defendants violated their equal protection rights by affording plaintiffs fewer opportunities to compete in varsity athletics than they did men program-wide. Plaintiffs contend that defendants intentionally engaged in such discriminatory conduct each and every day they attended UCD. Plaintiff Ng graduated in

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
September 2002, plaintiff Mansourian graduated in June 2004, and plaintiff Mancuso graduated in September 2006. As such, plaintiffs timely filed their complaint regarding their allegation that “UCD violated the Equal Protection Clause by maintaining an athletics program that discriminates on the basis of gender.” FN19 Mansourian, 602 F.3d at 973 (9th Cir.2010).
B. Constitutional Violation Defendants move for summary judgment, as-
serting that there is insufficient evidence that they intentionally discriminated against plaintiffs or acted with deliberate indifference to their constitutional rights. Plaintiffs oppose the motion, arguing that defendants knowingly violated their Equal Protection rights by denying them an equal opportunity to participate in varsity sports.
[13][14][15][16] The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amdt. 14, § 1. This is “essentially a direction that all similarly situated persons should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). “The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923); see Williams v. Vidmar, 367 F.Supp.2d 1265, 1270 (N.D.Cal.2005) (noting that the Equal Protection clause “is not a source of substantive rights or liberties, but rather a right to be free from discrimination in statutory classifications and other governmental activity”). Accordingly, “[t]o establish a § 1983 equal protection violation, the plaintiffs must show that the defendants, acting under color of state law, discriminated against them as members of an identifiable class and that the discrimination was intentional.” FN20 Flores v. Morgan Hill Unified Sch. Dist. (“Flores”), 324 F.3d 1130, 1134 (9th Cir.2003) (citing Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir.2000); Oona R.S. v. McCaffrey, 143 F.3d 473, 476 (9th Cir.1998)).
*11 [17] Where a University decides “to sponsor

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intercollegiate athletics as part of its educational offerings, this program ‘must be made available to all on equal terms.’ ” Haffer v. Temple Univ., 678 F.Supp. 517, 525 (E.D.Pa.1988) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954)). The Ninth Circuit has recognized that not only must “overall athletic opportunities ... be equal” to satisfy the Equal Protection Clause, but that “denial of an opportunity in a specific sport, even when overall opportunities are equal, can be a violation of the equal protection clause.” Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1130-31 (9th Cir.1982); see Hoover v. Meiklejohn, 430 F.Supp. 164, 170 (D.Colo.1977) (noting that the standard under the Equal Protection Clause “should be one of comparability, not absolute equality,” where male and female teams are given “substantially equal support” for “substantially comparable programs”); Leffel v. Wisconsin Interscholastic Athletic Ass'n, 444 F.Supp. 1117, 1122 (D.Wis.1978) (“[T]he defendants may not afford an educational opportunity to boys that is denied to girls.”).
[18][19][20] Proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003). Such intent is satisfied by a showing that the defendants either intentionally discriminated or acted with deliberate indifference. Flores, 324 F.3d at 1135. Discriminatory intent “implies that the decision maker ... selected or reaffirmed a particular course of action at least in part ‘because of’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” Personnel Adm'r v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); see Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.1980) (recognizing that the deviation from previous procedural patterns and the adoption of an ad hoc method of decision making without reference to fixed standards, among other things, were sufficient to raise an inference of pretext on an equal protection claim). Deliberate indifference may be found if a school official or administrator responds or fails to respond to known discrimination in a manner that is clearly unreasonable. See Flores, 324 F.3d at 1135.
[21][22] “[D]irect, personal participation is not necessary to establish liability for a constitutional violation.” al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir.2009) (quoting Kwai Fun Wong v. United States,

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
373 F.3d 952, 966 (9th Cir.2004)). Supervisors can be held liable under § 1983:
(1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury;
(2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a “reckless or callous indifference to the rights of others.”
*12 Id. (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991)). Moreover, the Ninth Circuit has expressly held that school officials “are liable for their own discriminatory actions in failure to remedy a known [discriminatory] environment.” Oona R.S., 143 F.3d at 477 (affirming the district court's holding that individual defendants were not entitled to qualified immunity from the plaintiff's peer sexual harassment claim based upon a known hostile environment).
1. Defendant Vanderhoef [23] In this case, plaintiffs present evidence that
defendant Vanderhoef was deliberately indifferent to plaintiffs' constitutional right to equal treatment in athletics. It is undisputed that Vanderhoef held ultimate responsibility for UCD's compliance with gender equity requirements. It is also undisputed that Vanderhoef tracked UCD's Title IX compliance and met frequently with officials regarding gender equity. Plaintiffs present evidence that during the relevant time periods in this case, UCD never provided females with athletic opportunities substantially proportionate to their enrollment. Further, “the elimination of women from the varsity wrestling team ... took place in the context of an overall contraction of female athletic participation opportunities that began in 2000.” Mansourian, 602 F.3d at 970. Moreover, the Ninth Circuit concluded that UCD eliminated women's varsity athletic opportunities “in the context of a women's athletics program that was, at best, stagnant.” Id. Accordingly, because plaintiffs have presented evidence that (1) defendant Vanderhoef was ultimately responsible for gender equity in athletics at UCD; (2) defendant Vanderhoef tracked UCD's com-

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pliance with Title IX, which during all relevant times was demonstrating greater disparity in gender equity; and (3) defendant Vanderhoef failed to take or direct any action to rectify this known, allegedly discriminatory circumstance, plaintiffs have raised a t riable issue of fact that defendant Vanderhoef acquiesced in the constitutional deprivation of equal rights by subordinates and showed “callous indifference” to the rights of plaintiffs as female athletes. See Flores, 324 F.3d at 1136 (holding that a school administrator's failure to investigate and remedy a known discriminatory circumstance that impacted the plaintiffs supported a finding a deliberate indifference).
2. Defendant Franks [24] Plaintiffs also present evidence that defen-
dant Franks was deliberately indifferent to plaintiffs' constitutional right to equal treatment in athletics. It is undisputed that Franks was responsible for ensuring that men and women were treated equally in the athletic department, including evaluating whether the department was providing equitable participation opportunities for female students. It is also undisputed that during the period of 1994-2004, Franks received and reviewed reports and memos that alerted him to gender inequities. However, despite the responsibility to ensure gender equity and the knowledge that UCD was not providing such equity, plaintiffs present evidence that Franks failed to take or direct any action to rectify this known, allegedly discriminatory circumstance. Accordingly, plaintiffs have raised a t riable issue of fact that defendant Franks showed “callous indifference” to the rights of plaintiffs as female athletes. See Flores, 324 F.3d at 1135-36 (holding that a school administrator's failure to take any further steps once he knew his remedial measures were inadequate supported a finding of deliberate indifference).
3. Defendant Warzecka *13 Plaintiffs similarly present evidence that de-
fendant Warzecka was deliberately indifferent to plaintiffs' constitutional right to equal treatment in athletics. It is undisputed that since 1995, Warzecka was responsible for ensuring gender equity in the athletic department, including regular review of compliance with gender equity laws through committee work and the development of gender equity plans and oversight regarding the addition and elimination of intercollegiate programs. Since 1996, Warzecka has prepared and analyzed UCD's EADA Reports, which, during the relevant periods, reflected

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
increasing gender disparity in athletic opportunities. Further, as a defendant responsible for the oversight of the addition and elimination of teams, plaintiffs present sufficient evidence from which a reasonable juror could infer that Warzecka was aware that UCD was eliminating varsity athletic opportunities for women at a time when overall female athletic participation was decreasing “drastically.” Plaintiffs also present evidence that despite this knowledge, numerous varsity applications from female students were rejected. Accordingly, plaintiffs have raised a triable issue of fact that defendant Warzecka showed “callous indifference” to the rights of plaintiffs as female athletes. See Flores, 324 F.3d at 1135-36.
4. Defendant Gill-Fisher Finally, plaintiffs present sufficient evidence that
defendant Gill-Fisher was deliberately indifferent to plaintiffs' constitutional right to equal treatment in athletics. It is undisputed that Gill-Fisher had responsibility for UCD's compliance with gender equity laws. It is also undisputed that Gill-Fisher authored or significantly contributed to nearly every report related to gender equity at UCD, including reports that acknowledged UCD athletic department's gender equity failings. Indeed in 2002, Gill-Fisher noted that participation rates for women in UCD varsity athletics continued to worsen, falling from 6.8% to 9.7% in just one year. However, despite defendant Gill-Fisher's responsibility over compliance with gender equity laws and despite knowledge of UCD's lack of gender equity in athletic participation at the relevant times, plaintiffs present evidence that Gill-Fisher failed to take or direct any action to rectify this known, allegedly discriminatory circumstance. Accordingly, plaintiffs have raised a triable issue of fact that defendant Gill-Fisher showed “callous indifference” to the rights of plaintiffs as female athletes. See Flores, 324 F.3d at 1135-36.
C. Qualified Immunity Defendants contend that even if there are triable
issues of fact regarding whether a co nstitutional violation occurred, they are entitled to qualified immunity because they did not violate a cl early established constitutional right. Plaintiffs contend that the availability of a constitutional claim arising out of the unequal treatment of women in high school and college athletics is well-settled.
*14 [25][26][27][28] “Government officials who

Page 10
perform discretionary functions generally are entitled to qualified immunity from liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Flores, 324 F.3d at 1134 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 ( 1982)). “Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” al-Kidd v. Ashcroft, 580 F.3d 949, 964 (9th Cir.2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks omitted)). It is within the court's “sound discretion” to address these two prongs in any sequence it deems appropriate. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).
[29] In order to find that the law was clearly established, a court “need not find a p rior case with identical, or even ‘materially similar,’ facts.” Flores, 324 F.3d at 1136-37 (quoting Hope, 536 U.S. 730, 122 S.Ct. 2508). Indeed, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741, 122 S.Ct. 2508. Rather, a co urt must “determine whether the preexisting law provided the defendants with fair warning that their conduct was unlawful.” Flores, 324 F.3d at 1137 (internal quotations omitted) (noting that case law can render the law clearly established). Specifically, the Supreme Court has held:
For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.”

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); see al-Kidd, 580 F.3d at 971 (noting that “dicta, if sufficiently clear, can suffice to clearly establish a constitutional right.”) (internal quotation omitted).
[30] At the time of the alleged discriminatory conduct in this case, the law, as set forth by the United States Supreme Court and the Ninth Circuit, was clear that the Equal Protection Clause of the Fourteenth Amendment creates the right to be free from purposeful discrimination in education by state actors. Mississippi Univ. for Women, 458 U.S. at 731, 102 S.Ct. 3331; Oona, R.S., 143 F.3d at 476 (holding that it was clearly established well prior to 1988 that the Equal Protection clause proscribed any purposeful discrimination by state actors on the basis of gender). More specifically, as early as 1982, the Ninth Circuit recognized that the Equal Protection Clause may be violated when overall athletic opportunities are unequal as well as when there is inequality in opportunity in a given sport. Clark, 695 F.2d at 1130-31 (acknowledging the Equal Protection right, but holding that the discrimination in favor of an all girls volleyball team was substantially related to an important governmental interest).
*15 Further, to the extent that Title IX encompasses the same or similar principles regarding equal access to athletic opportunities as those required by the Equal Protection Clause, the Ninth Circuit has expressly stated in this case,
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.
Mansourian, 602 F.3d at 961. Indeed, the Ninth Circuit expressly held that because a University has a clear, “affirmative obligation[ ] to provide nondiscriminatory athletic participation opportunities and continually to assess and certify compliance with Title IX,” a University need not receive notice and an opportunity to respond before a plaintiff's filing for a claim of monetary damages arising out of alleged ineffective accommodation. Id. at 968. While the court notes that the Ninth Circuit addressed the University's

Page 11
liability as an institution, plaintiffs present evidence that defendants in this case were those responsible for ensuring the University's compliance with Title IX, specifically, and gender equity, generally. As set forth above, the plaintiffs also presented evidence that each individual defendant was deliberately indifferent FN21 to plaintiffs' constitutional right to equal access to athletic opportunities. Therefore, defendants are not entitled to qualified immunity.
Accordingly, defendants' motions for summary judgment regarding plaintiffs' claims arising out of the provision of unequal athletic opportunities are DENIED.
CONCLUSION For the foregoing reasons, defendants' motions for summary judgment are GRANTED in part and DENIED in part. To the extent plaintiffs' § 1983 claims are based upon the removal of plaintiffs from the varsity wrestling program or upon the imposition of permanent barriers to the participation of plaintiffs in the varsity wrestling program through application of the wrestle-off policy, such claims are dismissed as time-barred. However, plaintiffs have presented triable issues of fact with respect to their § 1983 claims arising out of the assertion that defendants violated the Equal Protection Clause by maintaining an athletics program that discriminates on the basis of gender.
IT IS SO ORDERED.
FN1. Defendants assert that defendant Larry Vanderhoef was erroneously sued as Lawrence Vanderhoef.
FN2. Defendant Lawrence “Larry” Swanson withdrew his motion for summary judgment after the parties filed a Stipulation and Proposed Order re. Dismissal of all claims against him.
FN3. Plaintiff Nancy Nien-Li Chiang voluntarily dismissed all claims in this action on June 12, 2007. (See Mem. & Order (Docket # 195), filed July 12, 2007.)
FN4. Because oral argument will not be of material assistance, the court orders the matter submitted on the briefs. E.D. Cal. L.R.

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
230(g).
FN5. Unless otherwise noted, the facts contained herein are undisputed. (See Reply to Pls.' Stmt. of Additional Disputed Facts (“PDF”), filed Nov. 24, 2010; Reply to Pls.' Opp'n to Def. Vanderhoef's Stmt. of Undisputed Facts (“VUF”), filed Nov. 24, 2010; Reply to Pls.' Opp'n to Def. Warzecka's Stmt. of Undisputed Facts (“WUF”), filed Nov. 24, 2010; Reply to Pls.' Opp'n to Def. Gill-Fisher's Stmt. of Undisputed Facts (“GUF”), filed Nov. 24, 2010; Reply to Pls.' Opp'n to Def. Franks' Stmt. of Undisputed Facts (“FUF”), filed Nov. 24, 2010.) Where the facts are disputed, the court recounts plaintiffs' version of the facts.
The court notes that both plaintiffs and defendants filed numerous objections to various aspects of evidence submitted in support of and in opposition to the motion for summary judgment. Except where otherwise noted herein, the court finds the parties' objections either without merit or irrelevant to the court's findings. As such, the parties' objections are OVERRULED.
FN6. The Aggie Open was an annual wrestling tournament, in which UCD sponsored a women's division. (PDF ¶ 7.)
FN7. Plaintiffs were required to submit NCAA certification paperwork. (PDF ¶ 15.)
FN8. In November 1998, UCD stated a roster management program, which imposed an upper maximum or “cap” on the number of athletes on each men's intercollegiate team. (WUF ¶ 14.) Defendants asserts that the dual goals of the roster cap was to reduce a s ignificant budget deficit and to continue an effort at reaching proportionality between gender enrollment and gender participation in athletics. (WUF ¶ 14.)
FN9. OCR is the division of the United States Department of Education charged with enforcing Title IX.

Page 12
FN10. Specifically, on May 3, 2001, Thomson wrote a letter to the Chancellor, expressing concern over purported discrimination against female wrestlers. (VUF ¶ 11.) Vanderhoef did not learn about the letter until sometime after it was sent to him. (VUF ¶ 12.) When Thomson did not receive a response, she wrote a letter to the Chair of the Assembly Budget Committee asking that he remove the UCD Sciences Laboratory Building from the Budget Bill. (VUF ¶ 13.) However, the funding was never in danger of being pulled. (VUF ¶ 13.)
FN11. Roster caps have not been applied to any women's team at UCD. (PDF ¶ 37.)
FN12. Plaintiffs contend that this did not offer new athletic opportunities for women because UCD treats indoor and outdoor track as a combined sport, and thus, it merely extended the season for the same varsity outdoor track female athletes. (PDF ¶ 56.)
FN13. In 2005 UCD added women's golf, which plaintiffs contend added only seven opportunities for women at UCD. (PDF ¶ 55.)
FN14. On July 24, 2007, the proposed new plaintiffs initiated a separate lawsuit against UCD. On October 20, 2009, the court entered final approval on a Stipulated Judgment and Order, granting broad injunctive relief on behalf of a class of “All present, prospective, and future women students at the University of California at Davis who seek to participate in and/or who are deterred from participating in intercollegiate athletics at the University of California at Davis during the Compliance Period.” (Stip. Judgment & Order (Docket # 121), filed Oct. 20, 2009.)
FN15. Both plaintiffs and defendants contend that the court has already resolved the statute of limitations issue in their favor. The court acknowledges that it has addressed the statute of limitations in its orders on defendants' motion to dismiss, defendants' motion for judgment on pleadings, and defendants' motion for summary judgment. The court has

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
concluded that plaintiffs' claims based on discrete acts are time-barred while plaintiffs' claims based on systemic violations are not. While the Ninth Circuit did not address the court's rulings regarding plaintiffs' claims based upon discrete acts, it affirmed the court's rulings regarding systemic violations. See Mansourian, 602 F.3d at 973-74. As set forth, infra, the court draws the same distinctions and reaches the same conclusions in response to the individual defendants' motions for summary judgment.
FN16. The court notes that this analysis might be different if there was any evidence that defendants continued to use the alleged discriminatory “wrestle-off” policy within the limitations period. In Lewis v. City of Chicago, the Supreme Court held that a disparate treatment claim under Title VII could be based on the subsequent application of an alleged discriminatory policy that had been adopted outside of the limitations period. 130 S.Ct. at 2197. In Lewis, the plaintiffs challenged selection of firefighters based upon the results of an allegedly discriminatory test administered in 1995. While it was undisputed that a challenge to the administration of the test and the selection of the first round of applicants from the scores was time-barred, the Court held that the use of those same test scores to select applicants over the next six years constituted new actionable violations. Id. at 2199.
However, in this case, there are no allegations or evidence that defendants ever applied the same allegedly discriminatory policy to plaintiffs after the try-outs in the Fall 2001. Accordingly, implementation and application of the allegedly discriminatory wrestle-off policy to plaintiffs in Fall 2001 is time-barred.
FN17. The court also notes that while this alleged conduct may not be independently actionable, it may be used as evidence in support of plaintiffs' timely claims of intentional, systemic discrimination.
FN18. Defendants assert that this argument is

Page 13
precluded by the court's prior determination regarding the availability of a p attern and practice method of demonstrating liability. The court notes that its pattern and practice analysis was undertaken with respect to plaintiffs' claims arising out of discrete acts conducted prior to the limitations period, not with respect to allegations regarding the systemic unequal and ineffective accommodation of women in athletics. The court also notes that this discussion analyzed the availability of method of proof, not a theory of liability. Therefore, this analysis has no applicability to the timeliness of plaintiffs' claims regarding systemic discrimination.
Further, as noted supra, defendants' conduct that occurred outside of the limitations period may be relevant in demonstrating an intentional, systemic policy or practice of discrimination.
FN19. The court notes that while plaintiffs' opposition proffered three bases for their Equal Protection claim, the Ninth Circuit only defined plaintiffs' Equal Protection claim as one challenging UCD's athletic program. Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 973 (9th Cir.2010). Indeed, it was only with respect to this limited definition of plaintiffs' claim that the Ninth Circuit affirmed the court's conclusion that plaintiffs' claim was timely filed.
FN20. A party seeking to uphold a gender-based classification must demonstrate that the classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). In this case, defendants submit neither evidence nor argument in support of an important government objective or a s ubstantial relationship.
FN21. All defendants assert that UCD was Title IX compliant or that, at minimum, they reasonably believed UCD was Title IX compliant. However, the Supreme Court has

--- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.) (Cite as: 2010 WL 5114918 (E.D.Cal.))
noted, “[e]ven where particular activities and particular defendants are subject to both Title IX and the Equal Protection Clause, the standards establishing liability may not be wholly congruent.” Fitzgerald, 129 S.Ct. at 797. It is unclear whether UCD's or defendants' compliance with Title IX's interpretive regulations would serve as an adequate defense to plaintiffs' Equal Protection claims.
However, the court need not reach this issue. The Ninth Circuit previously held that plaintiffs raised a triable issue of fact regarding UCD's compliance with Title IX. Through this motion, as set forth infra, plaintiffs have also presented sufficient evidence that each individual defendant was responsible for ensuring gender equity, was aware of the alleged lack of compliance with both Title IX and gender equity generally, and failed to take or direct any conduct to remedy the allegedly discriminatory situation.
Further, defendants' reliance on the OCR settlement is irrelevant to the issue before the court in this case. The OCR never addressed whether UCD was Title IX compliant or, more importantly, whether UCD was offering female student athletes equal access to athletic opportunities sufficient to satisfy the Equal Protection Clause. (See Mem. & Order (Docket # 368), filed Apr. 23, 2008, at 14-15 (noting that plaintiffs did not provide defendants with notice and an opportunity to cure a Title IX violation arising out of ineffective accommodation because none of plaintiffs' OCR complaints provided any indication of a claim for failure to provide sufficient athletic opportunities for women).)
E.D.Cal.,2010. Mansourian v. Board of Regents of the University of California at Davis --- F.Supp.2d ----, 2010 WL 5114918 (E.D.Cal.)
END OF DOCUMENT

Page 14

 
 Slip Copy, 2011 WL 98814 (E.D.Cal.) (Cite as: 2011 WL 98814 (E.D.Cal.))
United States District Court, E.D. California.
Arezou MANSOURIAN; Lauren Mancuso; Nancy Nien-Li Chiang; and Christine Wing-Si NG; and all
those similarly situated, Plaintiffs, v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants.
No. CIV S-03-2591 FCD EFB. Jan. 12, 2011.
James C. Sturdevant, Whitney Bryn Huston, Sturdevant Law Firm a Professional Corporation, Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, Noreen Ann Farrell, Equal Rights Advocates, Jora Thu Trang, Equal Rights Advocates, San Francisco, CA, Kristen Marie Galles, Equity Legal, Alexandria, VA, for Plaintiffs.
David Pontus Eugene Burkett, Nancy Joan Sheehan, George A. Acero, Michael William Pott, Porter Scott, Sacramento, CA, for Defendants.
ORDER EDMUND F. BRENNAN, United States Magistrate Judge.
*1 On January 5, 2011, the court heard a motion for a protective order filed by defendants Larry Vanderhoef, Greg Warzecka, Robert Franks, and Pam-Gill Fisher (the “individual defendants”). Dckt. Nos. 513, 515. The motion seeks a protective order precluding or limiting plaintiffs' discovery of the net worth and financial status of the individual defendants. Id. Attorney Noreen Farrell appeared at the hearing on behalf of plaintiffs; attorney David Burkett appeared on behalf of defendants. After the hearing, plaintiffs submitted a proposed order on the motion, as directed by the court; the individual defendants submitted objections to that proposed order; and plaintiffs filed a response to those objections. Dckt. Nos. 517-519. The undersigned has considered all of those filings and issues the following order.
For the reasons stated herein and on the record at the January 5 hearing, the motion for a protective order, Dckt. No. 513, is denied in part and granted in part, as set forth below.
The court finds that the individual defendants did not waive their right to challenge the requested dis-

Page 1
covery in previous stipulations filed with the court. However, the court rejects defendants' argument that the discovery does not meet the relevancy standard of Federal Rule of Civil Procedure 26(b). The court finds that evidence of the financial status and worth of the individual defendants is relevant to plaintiffs' claim for punitive damages against these defendants, including the reasonableness of a punitive damage award. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 269-71, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Bains, LLC v. ARCO Prods. Co., 405 F.3d 764, 777 (9th Cir.2005); Swinton v. Potomac Corp., 270 F.3d 794, 818-19 (9th Cir.2001). The court also rejects defendants' argument that the existence of an agreement by defendant The Regents of the University of California to indemnify the individual defendants for punitive and other damages precludes the financial discovery sought by plaintiffs.
The court finds, however, that the requested discovery should be limited in time and scope. Specifically, the discovery demands shall be limited to the time period of January 1, 2007 to the present, except as provided below for information related to transfer of money and other assets since this case was filed. For the time period of January 1, 2007 to the present, the court orders each individual defendant to produce information responsive to the following demands (which were summarized and edited to remove duplication by plaintiffs as directed by the court, and which were thereafter modified by the court):
1. Net worth statements and loan/credit applications: Any and all copies of any business or personal financial statements, balance statements, balance sheets, and/or net worth statements, together with any credit applications and loan applications submitted by you or on your behalf to any bank, credit card company or lending institution. (Request for Production (“RFP”) # 1.)
*2 2. All income, pension and stock holdings: Documents stating income received or assets from any source including current or previous employment, including without limitation, wages, salaries, bonuses, stock options, commissions, earnings, income employment contracts, pay raises, promotions, payroll deductions, other deductions of any kind, pension plans, pension funds, retirement plans, retirement funds, stock plans and stock funds and other benefits or deductions of any kind to which you are, were or

Slip Copy, 2011 WL 98814 (E.D.Cal.) (Cite as: 2011 WL 98814 (E.D.Cal.))
may become entitled in the future. (RFP # 2.)
3. Bank, checking, savings, and credit/charge accounts: The January and June statements for each year since January 1, 2007 of all checking accounts, savings accounts, money market accounts, credit union accounts, pension/retirement account(s), and debit card, credit card and/or charge accounts held, used or maintained by you individually and/or jointly with any other or others. The individual defendants' responses to this RFP may be produced in a redacted form to remove individual transactions and include only balances and cumulative charge information. (RFP # 3, 4.)
4. Information related to ownership/beneficial/leasehold or other interest in property and other assets:
a. Any and all evidence of an interest in property of every kind and character (whether as owner, co-owner, fiduciary, trust beneficiary (vested or contingent), partner, limited partner, shareholder, joint venture, mortgagee, developer, manager or otherwise) whatsoever owned by you individually and/or jointly with any other or others, including any reversionary interests, and including, but not limited to, deeds and mortgages. With regard to items of personal and household property, only evidence of items valued at $5000.00 or more must be produced. (RFP # 4, 6.)
b. Documents sufficient to identify all corporations, partnerships, associations and other business entities in which you hold ownership, beneficial, or other interests. (RFP # 4)
5. Warranty/quitclaim and other deeds: Any and all warranty deeds, quitclaim deeds and deeds to secure debt which name you as grantee or grantor, individually and/or jointly with any other or others, or in your name in trust or in your name as guardian for any other person, relating to any property in which you have or have had any interest or equity. (RFP # 5.)
6. Insurance policies with cash surrender terms: All life or other insurance policies and certificates on your life which have a cash surrender term of which you are the owner and/or the insured person, and any documents reflecting the current value of the such policies. (RFP # 7, 8.)

Page 2
7. Tax returns: Complete copies of all state and federal income tax returns filed by you, individually and/or jointly with any others, including all accompanying schedules, any attachments to such returns and all worksheets used in preparing same, and all 1099, K-1 (IRS Form 1065) and W-2 forms received by you. (RFP # 10.)
*3 8. Stocks and other assets: Any and all stock certificates, bond certificates, mutual funds certificates, tax deferred annuities, profit sharing plan, deferred benefit plan, retirement plan, and any other evidence of ownership or of any interest in any securities, investments, mutual funds, liquid asset funds, or corporation, naming you individually and/or jointly with any other or others, as the owner of the same, and any documents/statements reflecting the current value of such assets. (RFP # 11, 14.)
9. Financial obligations due to you: Any promissory notes or other instruments evidencing any financial obligation due to you as the creditor now or in the future. (RFP # 12.)
10. Financial obligations: All promissory notes or other documents evidencing any financial obligation or indebtedness of you as debtor. (RFP # 13.)
The court also finds that plaintiffs may seek discovery of documents and information relevant to the transfer of any assets by the individual defendants since this suit was filed on December 18, 2003. Specifically, in addition to the above RFPs to which defendants must produce responsive documents, the court directs each individual to produce any and all documents that evidence a payment or transfer of any money or other asset owned by each individual defendant, individually or jointly or otherwise, to any person or entity in excess of $10,000.00 for the period of December 18, 2003 to the present.
Finally, the court denies defendants' motion to the extent that it seeks to limit the right of plaintiffs to take depositions relevant to the issue of financial condition and net worth, including depositions of the individual defendants. The court encourages the parties to meet and confer further to address questions regarding the individual defendants' financial circumstances to streamline the scope of any necessary depositions.

Slip Copy, 2011 WL 98814 (E.D.Cal.) (Cite as: 2011 WL 98814 (E.D.Cal.))
In accordance with the foregoing, it is hereby ORDERED that defendants' motion for a protective order, Dckt. No. 513, is denied in part and granted in part as discussed above. Defendants Vanderhoef, Warzecka, Roberts, and Gill-Fisher shall respond to the discovery demands set forth herein within twenty-one (21) days of the entry of this order. These defendants shall also submit to depositions confined to the issue of their financial condition, if deemed necessary by plaintiffs after the parties meet and confer, within the deadlines for such discovery set by the Court.
It is further ORDERED that the Stipulation Regarding Financial Information of Individual Defendants executed by the parties through their respective attorneys on June 18, 2008 and attached hereto as Exhibit A is hereby incorporated as part of this Order.
SO ORDERED.
E.D.Cal.,2011. Mansourian v. Regents of the University of California Slip Copy, 2011 WL 98814 (E.D.Cal.)
END OF DOCUMENT

Page 3

 
 Case 2:03-cv-02591-FCD-EFB Document 482 Filed 11/09/10 Page 1 of 46

1 James C. Sturdevant, SBN 94551 (jsturdevant@sturdevantlaw.com) Whitney Huston, SBN 234863 (whuston@sturdevantlaw.com)
2 THE STURDEVANT LAW FIRM A Professional Corporation
3 354 Pine Street, Fourth Floor San Francisco, CA 94104
4 Telephone:(415) 477-2410 Facsimile: (415) 477-2420
5 Noreen Farrell, SBN 191600 (nfarrell@equalrights.org)
6 Jora Trang, SBN 218059 (jtrang@equalrights.org) EQUAL RIGHTS ADVOCATES
7 180 Howard Street, Suite 300 San Francisco, CA 94105
8 Telephone:(415) 621-0672 Facsimile: (415) 621-6744
9 Monique Olivier, SBN 190385 (monique@dplolaw.com)
10 DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 235 Montgomery St., Suite 1010
11 San Francisco, CA 94104 Telephone:(415) 433-0333
12 Facsimile: (415) 449-6556

13 Kristen Galles (SBN 148740) (kgalles@comcast.net) EQUITY LEGAL
14 10 Rosecrest Avenue Alexandria, VA 22301
15 Telephone: (703) 683-4491

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

18

[Sacramento Division]

19 AREZOU MANSOURIAN; LAUREN MANCUSO; and CHRISTINE WING-SI NG,
20 Plaintiffs,
21 vs.
22 REGENTS OF THE UNIVERSITY OF
23 CALIFORNIA, et al.,

24

Defendants.

25

26

CASE NO. S-03-2591 FCD EFB

PLAINTIFFS’ CONSOLIDATED MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Date: Time: Courtroom: Judge:

December 3, 2010 10:00 am 2 Hon. Frank C. Damrell, Jr

Complaint filed: December 18, 2003

Trial date:

April 26, 2011

27

28

PLTFS’ CONSOLIDATED OPPOSITION TO THE INDIVIDUAL DEFENDANTS’ MTNS FOR SUMMARY JUDGMENT; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 482 Filed 11/09/10 Page 2 of 46

1

TABLE OF CONTENTS

2 I. INTRODUCTION ...............................................................................................................1

3 II. SUMMARY OF ARGUMENT ...........................................................................................2

4 III. 5 IV. 6
7

PROCEDURAL HISTORY.................................................................................................3
STATEMENT OF FACTS ..................................................................................................4
A. DEFENDANTS’ AUTHORITY IN UCD’S VARSITY ATHLETIC PROGRAM..............................................................................................................4

8

B. UCD’S WOMEN’S VARSITY WRESTLING PROGRAM. .................................6

9

C. DEFENDANTS REMOVE WOMEN FROM THE VARSITY WRESTLING

PROGRAM..............................................................................................................7 10

11

D. DEFENDANTS DENY WOMEN WRESTLING OPPORTUNITIES BY INSISTING THAT THEY WRESTLE-OFF AGAINST MEN FOR A SPOT

12

ON THE ROSTER...................................................................................................9

13

E. DEFENDANTS ELIMINATE WOMEN’S WRESTLING AS GENDER

INEQUITIES PERSIST IN ATHLETIC OPPORTUNITIES PROGRAM-

14

WIDE. 10

15 V. 16 17 18 19

ARGUMENT .....................................................................................................................13
A. SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE SETTLED LAW AND DISPUTED FACTS ESTABLISH A VIOLATION BY EACH DEFENDANT OF PLAINTIFFS’ CONSTITUTIONAL RIGHTS......................13
1. At the Very Least, Plaintiffs Raise Genuine Issues of Material Fact as to Whether Each Defendant Violated a Constitutional Right....................14

20

a. Defendants’ characterization of the claim at issue here is

disputed. .........................................................................................14 21

22

b. Defendants’ reliance on Title IX jurisprudence is misplaced........19

23

2. Plaintiffs Raise A Genuine Issue of Material Fact With Respect to The

Individual Liability of Each Defendant. ....................................................20

24 a. Disputed Facts Establish Defendant Vanderhoef’s Liability.........20
25
b. Disputed Facts Establish Defendant Franks’ Liability. .................22 26

c. Disputed Facts Establish Defendant Warzecka’s Liability............26 27

28

d. Disputed Facts Establish Defendant Gill-Fisher’s Liability. .........28

i
PLTFS’ CONSOLIDATED OPPOSITION TO THE INDIVIDUAL DEFENDANTS’ MTNS FOR SUMMARY JUDGMENT; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 482 Filed 11/09/10 Page 3 of 46

1 2 3 4 5 6 7 8 9 10
VI. 11

B. DEFENDANTS’ QUALIFIED IMMUNITY DEFENSE DOES NOT PASS MUSTER ON SUMMARY JUDGMENT. ...........................................................30
1. Plaintiffs Allege Facts Of A Constitutional Right. ....................................31
C. THE COURT SHOULD ALSO DENY SUMMARY JUDGMENT BECAUSE IT HAS ALREADY CONSIDERED AND REJECTED DEFENDANTS’ TIMELINESS CHALLENGE TO PLAINTIFFS EQUAL PROTECTION CLAIM.........................................................................................35
1. The Fact that Plaintiff’s (Non-existent) Unequal Treatment Claim may have been Time-barred is Irrelevant to the Timeliness of Plaintiffs’ Equal Protection Claim. .............................................................................36
2. Disputed and Undisputed Facts Establish that Each Individual Defendants Created, Participated in, and Maintained the Ongoing Policy of Discrimination Against the Plaintiffs. ........................................37
CONCLUSION..................................................................................................................39

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ii
PLTFS’ CONSOLIDATED OPPOSITION TO THE INDIVIDUAL DEFENDANTS’ MTNS FOR SUMMARY JUDGMENT; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-FCD-EFB Document 482 Filed 11/09/10 Page 4 of 46

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)...........................................................................................................14
4

5

al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) .................................................................................21, 22, 25

6 Alston v. Virginia High School League, Inc.,

7

144 F.Supp.2d 526 (W.D. Va. 1999) .................................................................................16

8 Anderson v. Liberty Lobby, Inc.,

9

477 U.S. 242 (1986)...........................................................................................................13

10 Bator v. Hawaii, 39 F.3d 1021 (9th Cir. 1994) ...........................................................................16, 31, 32, 34

11

Bingham v. City of Manhattan Beach,

12

341 F.3d 939 (9th Cir. 2003) .............................................................................................20

13 Brenden v. Independent School District,

14

477 F.2d 1292 (8th Cir. 1973) ...........................................................................................16

15 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...........................................................................................................13
16

17 Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003) ...........................................................................................38

18

Clark v. Arizona Interscholastic Association,

19

695 F.2d 1126 (9th Cir. 1982) .....................................................................................16, 33

20 Cohen v. Brown University,

21

991 F.2d 888 (1st Cir. 1993)........................................................................................19, 34

22 Communities for Equity v. Michigan High School Athletic Association,
459 F.3d 676 (6th Cir. 2006 ) ............................................................................................16 23

24

Davis v. Passman, 442 U.S. 228 (1979)...........................................................................................................32

25 E.E.O.C. v. Local 350, Plumbers & Pipefitters,

26

998 F.2d 641 (9th Cir. 1992) .............................................................................................38

27 Easter v. American West Financial,

28

381 F.3d 948 (9th Cir. 2004) .............................................................................................13

iii

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1

Favia v. Ind. University of Pa., 812 F.Supp. 578 (W.D. Pa. 1993),

2

aff’d, 7 F.3d 332 (3d Cir. 1993) .........................................................................................34

3 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)...........................................................................................................14
4

5

Force v. Pierce City R-VI School District, 570 F.Supp. 1020 (W.D. Mo. 1983) ..................................................................................18

6 Frontiero v. Richardson,

7

411 U.S. 677 (1973)...........................................................................................................32

8 Gammoh v. City of La Habra,

9

395 F.3d 1114 (9th Cir. 2005) ...........................................................................................13

10 Garber v. City of Clovis, 698 F.Supp.2d 1204 (E.D. Cal. 2010)................................................................................22

11

Gonyo v. Drake University,

12

837 F.Supp. 989 (S.D. Iowa 1993) ....................................................................................18

13 Haffer v. Temple University,

14

678 F.Supp. 517 (E.D. Pa. 1987) .........................................................16, 20, 25, 26, 28, 33

15 Heyne v. Metropolitan Nashville Public Schools, 686 F.Supp.2d 724 (2009) .................................................................................................37
16

17 Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001) .............................................................................................20

18

Jeldness v. Pearce,

19

30 F.3d 1220 (9th Cir. 1994) .............................................................................................19

20 Johnson v. City of Seattle,

21

474 F.3d 634 (9th Cir. 2007) .............................................................................................15

22 LSO, Ltd. v. Stroh,
205 F.3d 1146 (9th Cir.2000) ............................................................................................33 23

24

Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .............................................................................................18

25 Lindsey v. Shalmy,

26

29 F.3d 1382 (9th Cir. 1994) .................................................................................16, 31, 32

27

28 iv
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1

Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.1985),

2

amended on other grounds,

748 F.2d 1407 (9th Cir. 1986) ...........................................................................................33

3

Lyons v. England,

4

307 F.3d 1092 (9th Cir. 2002) ...........................................................................................13

5 Mansourian v. Regents of the University of California,

6

602 F.3d 957 (9th Cir. 2010) .........................................................................................4, 36

7 Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)...........................................................................................................13
8

9

Miami University Wrestling Club v. Miami University, 302 F.3d 608 (6th Cir. 2002) .................................................................................17, 18, 19

10

Mississippi University of Women v. Hogan,

11

458 U.S. 718 (1982).............................................................................16, 17, 19, 22, 31, 32

12 National Railroad Passenger Corp. v. Morgan,

13

536 U.S. 101 (2002)...........................................................................................................38

14 Neal v. Board of Trustees of California State Universities, 198 F.3d 763 (9th Cir. 1999) .......................................................................................17, 33
15

Oona v. McCaffrey,

16

143 F.3d 473 (9th Cir. 1998) .................................................................................16, 31, 32

17 Orr v. Bank of America, NT & SA,

18

285 F.3d 764 (9th Cir. 2002) .............................................................................................13

19 Pearson v. Callahan, 129 S.Ct. 808 (2009)..........................................................................................................31
20

21 Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir. 1980) .............................................................................................38

22

Reed v. Reed,

23

404 U.S. 71 (1971).............................................................................................................32

24 Roberts v. Colorado State Board of Agriculture,

25

998 F.2d 824 (10th Cir. 1993) .....................................................................................19, 33

26 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (9th Cir. 2007) .............................................................................................13
27

28 v
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1

Stanton v. Stanton, 421 U.S. 7 (1975)...............................................................................................................32

2 Tennison v. City and County of San Francisco,

3

548 F.3d 1293 (9th Cir. 2009) ...........................................................................................33

4 T.W. Electric Service, Inc. v. Pacific Electrical Contractors Assoc.,

5

809 F.2d 626 (9th Cir. 1987) .............................................................................................14

6 United States v. Virginia, 518 U.S. 515 (1996)...............................................................................................16, 31, 32

7

Vasquez v. De La Rosa,

8

414 F.Supp.2d 124 (D.P.R. 2006)......................................................................................35

9 Warren v. City of Carlsbad,

10

58 F.3d 439 (9th Cir. 1995) ...............................................................................................13

11 White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ...........................................................................................33
12

13

FEDERAL STATUTES

14

United States Constitution

15

14th Amendment, § 1.........................................................................................................15

16 42 U.S.C.

17

§ 1983.........................................................................................................................3, 4, 15

18 34 C.F.R. § 106.41(c) .........................................................................................................................37
19

Federal Rules of Civil Procedure,

20

Rule 56(c)...........................................................................................................................13

21

22

23

24

25

26

27

28 vi
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1 I. INTRODUCTION

2

Plaintiffs Arezou Mansourian, Christine Ng, and Lauren Mancuso are former students at the

3 University of California at Davis (“UCD”) who were kicked out of the varsity wrestling program

4 because they are women at a time when UCD was unlawfully depriving hundreds of other women an

5 equal chance to play sports. Plaintiffs hereby oppose the motions for summary judgment filed by

6 individual Defendants Larry Vanderhoef, Robert Franks, Greg Warzecka, and Pam Gill-Fisher

7 (collectively, “Defendants”) seeking judgment in their favor on the claim that they violated the

8 Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, which

9 prohibits sex discrimination by state actors, when they took or approved the acts at issue in this case.

10

Defendants seek judgment in their favor based on the incredible argument that they did not

11 single out Plaintiffs for mistreatment based on their gender or, alternatively, that the law prohibiting

12 sex discrimination in athletics was not clearly established in 2000. Defendants’ motions are an

13 exercise in revisionist history based on heavily disputed facts not suitable for resolution on summary

14 judgment. Defendants were high ranking employees at UCD who, by their own admissions,

15 participated in or approved of the decisions at issue in this case. Defendants admitted to being well-

16 trained in laws requiring gender equity in intercollegiate athletics and/or were responsible for

17 ensuring that UCD’s athletic program treated women equally. They either authored or had

18 knowledge of UCD reports that revealed that UCD was not treating men and women equally in

19 terms of varsity athletic participation opportunities program-wide. Each knew that Plaintiffs and

20 other women were competing against other women in the varsity wrestling program. Each knew that

21 Plaintiffs and other women were removed from the roster. Each then either decided that Plaintiffs

22 and other women would have to compete against men for their reinstatement in the varsity program,

23 or ratified this decision.

24

Defendants not only miscast the misconduct alleged by Plaintiffs, they ignore evidence of

25 their own unlawful acts, previous orders of this Court, and settled law establishing the constitutional

26 rights at issue. These strategies are fatal to each motion and accordingly, each motion should be

27 denied.

28 1
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1 II. SUMMARY OF ARGUMENT

2

Plaintiffs contend that Defendants violated their equal protection rights in three ways. First,

3 Defendants afforded Plaintiffs fewer opportunities to compete in varsity athletics than they did men

4 program-wide. Second, Defendants purposefully removed Plaintiffs from the varsity wrestling

5 program based on gender. Third, Defendants imposed permanent barriers to the participation of

6 Plaintiffs in the varsity wrestling program through their graduation from UCD.

7

Defendants present three flawed arguments to support their claim of entitlement to summary

8 judgment. First, they argue that Plaintiffs’ equal protection claim fails as a matter of law.

9 Defendants contend that Plaintiffs sought a guaranteed spot on a men’s team and otherwise refused

10 to develop women’s wrestling at the club level as some other women’s varsity teams had done. The

11 facts establish, however, that Plaintiffs were already members of UCD’s varsity wrestling team

12 competing against other women. Demotion to the club level would have meant loss of significant

13 varsity benefits. Defendants next attempt to shift blame onto wrestling coach Michael Burch for the

14 removal of the women from the wrestling program. Yet, the evidence also shows that Warzecka and

15 Gill-Fisher, not Burch, removed women from the program in 2000. And, although Defendants

16 contend that Plaintiffs were not skilled enough to make the wrestling team in 2001, the facts

17 establish that each Defendant ratified the decision to fundamentally change the terms of Plaintiffs’

18 participation by requiring them to wrestle off against men for a spot in the program. Thus, under the

19 new terms of the program imposed by Defendants in 2001, it would have been nearly impossible for

20 Plaintiffs to continue to participate in the varsity wrestling program, regardless of their wrestling

21 skills. Finally, the evidence shows that Defendants were also providing women, including Plaintiffs,

22 with fewer varsity athletic opportunities than they afforded men relative to their enrollment.

23 Construing all facts in Plaintiffs’ favor, the Court should find that each Defendant deprived Plaintiffs

24 of equal protection under the law.

25

Second, Defendants contend that even if Plaintiffs could establish a constitutional violation,

26 each is entitled to qualified immunity as a matter of law because it was not clearly established that

27 their conduct violated the Constitution. The United States Supreme Court, the Ninth Circuit Court

28 2
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1 of Appeals, and other federal circuit courts of appeals hold otherwise. Not only was the right to be

2 free from sex discrimination under the Constitution clearly established decades before the period

3 relevant to this case, its reach has extended to dozens of cases challenging sex discrimination in the

4 context of high school and college athletics. Defendants’ purported lack of knowledge or

5 understanding of the law is belied not only by their own admissions, but also by evidence that

6 Defendants deliberately ignored a protracted public outcry challenging their actions as

7 discriminatory. Moreover, Plaintiffs challenge through competent evidence the reasonableness of

8 Defendants’ purported reliance on the resolution they reached unilaterally with the Office for Civil

9 Rights (“OCR”), which neither considered constitutional claims nor adequately investigated

10 Plaintiffs’ claims.

11

Third, Defendants analogize Plaintiffs’ equal protection claims to Title IX equal treatment

12 claims to argue that the constitutional claims are time-barred. Putting aside that Plaintiffs have never

13 alleged Title IX equal treatment claims in this case, this Court expressly rejected this analogy in

14 denying the statute of limitations argument on Defendants’ motion to dismiss the equal protection

15 claim. The Court refused to revisit this prior ruling on Defendants’ motion for judgment on the

16 pleadings. The Ninth Circuit is in accord. The Court should refuse Defendants’ attempt at a fourth

17 bite at the apple, and deny their motions on this ground as well

18 III. PROCEDURAL HISTORY

19

Plaintiffs filed suit on December 18, 2003. (Dkt. # 1.) On March 5, 2004, Defendants

20 moved to dismiss a number of Plaintiffs’ claims, including their equal protection claim on the

21 grounds that it was time-barred. This Court denied the motion in its entirety, and expressly rejected

22 Defendants’ argument that the equal protection claim was time-barred. (Dkt. # 25.) Defendants then

23 filed a motion for judgment on the pleadings challenging Plaintiffs’ various state law, statutory and

24 constitutional claims. (Dkt. # 188-89.) On October 18, 2007, this Court issued a decision

25 dismissing some of Plaintiffs’ claims, and refusing to dismiss others. (Dkt. # 226.) Plaintiffs’ Equal

26 Protection Clause claims (as enforced under 42 U.S.C. § 1983 ) were among those dismissed based

27 on the Court’s finding that those claims were subsumed by the Title IX claim. However, the Court

28 3
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1 refused to re-visit its finding with respect to the timeliness of the § 1983 claim. (Dkt. # 226.)

2 Defendants then filed a motion for summary judgment on Plaintiffs’ Title IX equal accommodation

3 claim, which the Court granted on the grounds that Plaintiffs had not provided adequate notice of

4 their Title IX claims before filing a suit for damages. (Dkt. # 368.)

5

Plaintiffs appealed the dismissal of the equal protection claim on the motion for judgment on

6 the pleadings and the dismissal of the Title IX claim on summary judgment. (Docket item # 376.)

7 Defendants once again raised their timeliness arguments with respect to the equal protection claim.

8 They also asked the Ninth Circuit to find them immune from suit on this claim based on qualified

9 immunity. On April 20, 2010, the Ninth Circuit issued its decision, reversing its dismissal of the

10 Title IX and the section 1983 claims. Mansourian v. Regents of the University of California, 602

11 F.3d 957 (9th Cir. 2010). It noted this Court’s prior rejection of the § 1983 statute of limitations

12 argument and held that Plaintiffs’ claims were not time-barred. Id. at 973-74. It also declined to

13 rule on the qualified immunity defense because it was raised for the first time on appeal. Id. at 974.

14 IV. STATEMENT OF FACTS

15

A. Defendants’ Authority in UCD’s Varsity Athletic Program.

16

Defendants Larry Vanderhoef, Robert Franks, Greg Warzecka and Pam Gill-Fisher

17 (collectively, “Defendants”) were or are high ranking employees of Defendant Regents of the

18 University of California (“Regents”) who were charged with overseeing the administration and 19 operation of the varsity athletics program1 at the University of California at Davis (hereafter

20 “UCD”). (Plaintiffs’ Statement of Additional Disputed Facts in Support of Plaintiffs’ Opposition to

21 Defendants’ Motions For Summary Judgment (“ADF”) 1.)

22

As the Chancellor of UCD, Defendant Larry Vanderhoef was ultimately responsible for

23 UCD’s intercollegiate or varsity athletics program and compliance with gender equity requirements.

24 (ADF 65; Plaintiffs’ Consolidated Response to Defendants’ Separate Statements of “Undisputed”

25 Material Facts in Support of the Motions for Summary Judgment, Vanderhoef (“Response to

26 1 The varsity athletic program at UCD has also been referred to as the “intercollegiate”
27 athletic program. The varsity/intercollegiate program is distinct from UCD’s club program.

28 4
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1 Vanderhoef UMF”) 1.)2 Although day-to-day decisions were delegated, Vanderhoef tracked UCD’s

2 Title IX compliance and met frequently with officials regarding gender equity. (ADF 66.) In fact,

3 Vanderhoef testified that the “buck” stopped with him. (ADF 67.)

4

Defendant Robert Franks was a senior administrator at UCD from 1994 to 2004, charged

5 with oversight of the athletic department and actively involved in the events at issue in this case.

6 (ADF 76.) As the Associate Vice Chancellor for Student Affairs, Franks directly supervised the

7 Athletic Director, met with him weekly, and could overrule his decisions. (ADF 77, 78.) Franks

8 was responsible for ensuring that men and women were treated equally in the athletic department.

9 (ADF 79.) He admitted that he was expected to understand laws prohibiting sex discrimination. As

10 a former practicing lawyer, he was also familiar with the equal protection guarantees of the United

11 States Constitution. (ADF 80, 81, 82.)

12

Defendant Greg Warzecka has been UCD’s Athletic Director since 1995, responsible for the

13 overall direction, leadership, and management of the UCD Intercollegiate Athletic Program.

14 (ADF 100, 101, 102.) He considered himself trained on gender equity issues, taught classes on the

15 subject, and kept himself abreast of relevant developments in the law. (ADF 103.)

16

From approximately 1985 to 2003, Defendant Pam Gill-Fisher was the Associate Athletic

17 Director and Supervisor of Physical Education. In 2003, Gill-Fisher was the Senior Associate

18 Athletic Director and Senior Woman Administrator with significant responsibility in the

19 intercollegiate athletic department. Gill Fisher had a particular expertise in Title IX and had

20 responsibility for UCD’s compliance with gender equity laws. (ADF 126.) Historically, she

21 authored or significantly contributed to nearly every report related to gender equity at UCD,

22 including reports that acknowledged UCD athletic department’s gender equity failings. (ADF 127.)

23 She understood that UCD was prohibited from discriminating against women in their athletic

24

25

2 Plaintiffs’ Responses to the Separate Statement of “Undisputed” Material Facts of the other

Defendants will similarly be called “Response to Franks UMF”, “Response to Gill-Fisher UMF”,

26 and “Response to Warzecka UMF”. All such responses are contained in Plaintiffs’ Consolidated

Response to Defendants’ Separate Statements of “Undisputed” Material Facts in Support of the

27 Motions for Summary Judgment and separated by Defendant.

28 5
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1 department. (ADF 128.) She was also the only consistent member of UCD’s Title IX workgroup,

2 aside from the Title IX officer. (ADF 129.) Defendants Vanderhoef, Franks, and Warzecka relied

3 on Gill-Fisher given her purported gender equity expertise. (ADF 130-132.)

4

B. UCD’s Women’s Varsity Wrestling Program.

5

Plaintiffs are former UCD students who wrestled in high school and attended UCD, in large

6 part, to wrestle. (ADF 2.) There was a long-standing women’s varsity or intercollegiate wrestling

7 program at UCD. (ADF 3.) Since 1992, when women first began wrestling at UCD, the varsity

8 wrestling program included both men and women, each competing against their respective sex.

9 (ADF 5.) Women wrestlers at UCD received highly-qualified coaching, wrestled using women’s

10 freestyle rules rather than men’s collegiate rules, and received all of the benefits of varsity status.

11 (ADF 6.) UCD sponsored a women’s division in its annual Aggie Open wrestling tournament.

12 (ADF 7.)

13

In 1995, UCD hired Michael Burch as a wrestling coach. (ADF 8.) Burch was interviewed

14 for the job by a panel that included Afsoon Johnston, a female wrestler at UCD. (Id.) Johnston

15 asked Burch during his interview whether he would be supportive of women’s wrestling; he assured

16 the panel that he would be. (Id.) Women continued to wrestle at UCD as varsity athletes under the

17 coaching of Burch throughout his tenure. (ADF 9.) As members of the team, women wrestlers

18 attended practice regularly and had the same responsibilities as any other team member. (ADF 10.)

19 They received coaching and attention unique to the needs of women wrestlers. (ADF 11.)

20

UCD, including Defendants Franks, Warzecka and Gill-Fisher, admits that they were aware

21 that Plaintiffs and other women were varsity wrestlers, who were listed on participation lists, official

22 rosters, and the UCD wrestling event programs. (ADF 4, 13, 89, 113, 111.) Warzecka also admits

23 that women wrestlers were counted by UCD as women varsity participants in official reports

24 submitted by UCD to OCR. (ADF 111.) Defendants Franks, Gill-Fisher, and Warzecka admit that

25 Plaintiffs were competing against other women in the varsity program. (ADF 4, 89, 111.) Plaintiffs,

26 like the other women wrestlers, received benefits attendant to varsity status, including lockers,

27 trainer services, academic support services, laundry services, and varsity coaching. (ADF 12.) Club

28 6
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1 sports athletes do not receive any of these benefits. (Id.) Plaintifs also attended the end of the year

2 team banquet and received honors from the coach. (ADF 14.) The NCAA certification paperwork,

3 not required of club athletes, was required of the women wrestlers. (ADF 15.)

4

C. Defendants Remove Women from the Varsity Wrestling Program.

5

In October 2000, the women wrestlers were removed from the wrestling roster at the request

6 of Warzecka, whose decision was directly influenced by Gill-Fisher. (ADF 16, ADF 133, 134.)

7 Franks admits that he learned at some point that women had been removed from the wrestling roster.

8 (ADF 92.) Franks also admits that Burch told him that Gill-Fisher did not want women wrestling

9 and that Warzecka directed the removal of the women from the roster. (ADF 92, 133, 134.)

10

Although Burch objected, he informed the women wrestlers of the athletic department’s

11 directive. (ADF 92, 133, 134.) Burch permitted the women to continue to practice with the

12 wrestling team. (Id.) Plaintiff Arezou Mansourian was injured during a wrestling practice in

13 January 2001 and sought assistance from a varsity trainer. (ADF 17.) When Warzecka learned that

14 one of the Plaintiffs was seeking trainer services after he ordered her removal from the team roster,

15 he confronted Plaintiffs Mansourian and Ng to confirm that they were not to participate in wrestling

16 because they were a liability to the university. (ADF 18, 19, 116.) He was loud, irritated, and

17 intimidating to the Plaintiffs. (ADF 117.)

18

Warzecka told Burch and the Plaintiffs that the women should form a club team if they

19 wanted to wrestle. (ADF 118.) Franks admits that the Plaintiffs told him that they considered a

20 move to club status to be a “demotion.” (ADF 91.) While Warzecka admitted that transfer from

21 varsity to club status resulted in a loss of significant varsity benefits (ADF 119), he suggested that

22 the women should view the formation of a club team as an opportunity, not a demotion (ADF 120).

23

The female wrestlers were distraught over the elimination of their wrestling opportunities.

24 (ADF 20.) They complained to Burch, Franks, and Warzecka and requested that they be reinstated

25 to the varsity wrestling program on the same terms as they had been previously, i.e., practicing and

26 competing against women. (ADF 21, 22.) In April 2001, Mansourian and Ng submitted a complaint

27 of sex discrimination with the Department of Education’s Office for Civil Rights (“OCR”). (ADF

28 7
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1 23.) They charged they had been subject to gender discrimination due to the elimination of

2 intercollegiate athletic opportunities for women. (Id.) Subsequently, Mansourian, Ng, and Mancuso

3 filed supplemental complaints of sex discrimination with OCR. (Id.) Each of the complaints was

4 based on the UCD’s acts of sex discrimination in violation of Title IX. (Id.) Vanderhoef, Franks,

5 Warzecka and Gill-Fisher were aware of Plaintiffs’ OCR complaints. (ADF 21, 31, 97, 121, 138.)

6 Franks, Warzecka and Gill-Fisher were actively involved in formulating UCD’s defense to

7 Plaintiffs’ various complaints about their removal from the wrestling program. (Id.) After the OCR

8 complaints were filed, the OCR never interviewed any of the Plaintiffs or any other women

9 wrestlers. (ADF 24.) Similarly, UCD’s Chief Title IX Compliance Officer, Dennis Shimek, admits

10 he did not speak to the Plaintiffs and that the UCD did not independently investigate the Plaintiffs’

11 complaints. (ADF 25.) At the same time, soon after the OCR complaints were filed, UCD fired

12 Burch for his support of women’s wrestling. (ADF 27.)

13

Soon thereafter, each of the individual Defendants was bombarded by public outcry

14 protesting the removal and continued exclusion of women from the varsity wrestling team. (ADF

15 28-30, 71-73, 123, 139.) Students, student government, UCD employees, parents, members of the

16 public, and legislators alike expressed their strong concerns that Defendants’ actions toward the

17 women wrestlers were unfair and discriminatory through press, emails, protests, and petitions.

18 (ADF 29.) Assemblywoman Helen Thomson challenged UCD’s efforts to demote the women

19 wrestlers to club status as “separate but equal” treatment and threatened to withhold a significant

20 source of funding on a UCD building in protest. (Id.) Vanderhoef, Franks, Warzecka, and Gill-

21 Fisher were actively involved in responding to various complaints by others about UCD’s treatment

22 of the women wrestlers. (ADF 72-73, 93, 123, 136.)

23

Despite the legal challenges by Plaintiffs and charges by many that removal of women from

24 the wrestling program was sex discrimination, neither Franks nor Warzecka was aware of UCD

25 hiring any outside consultant to evaluate their compliance with gender equity laws. (Response to

26 Franks UMF 19; Response to Warzecka UMF 42.) All Defendants agree that they ignored the

27 advice given by the one gender equity expert they did consult, Donna Lopiano, who suggested that

28 8
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1 they convene a “blue ribbon panel” of experts to evaluate whether their treatment of the women

2 wrestlers was lawful. (ADF 74, 94, 125.)

3

D. Defendants Deny Women Wrestling Opportunities By Insisting that They

Wrestle-Off Against Men for a Spot on the Roster.

4

In May 2001, UCD reinstated the women to the team by placing them on the roster list.

5 (ADF 30.) This reinstatement was meaningless as it occurred after the 2000-2001 wrestling season

6 was over and there were no opportunities for the women to participate. (Id.)

7 In September/October 2001, the OCR, unilaterally and without consultation with Plaintiffs,

8 negotiated with Defendants a “voluntary resolution” of Plaintiffs’ OCR complaints. (ADF 31.)

9 Defendants Franks, Warzecka, and Gill-Fisher agreed to reinstate the women on the team as a

10 resolution of Plaintiffs’ complaints, conditioned on Plaintiffs’ ability to compete against men for

11 slots in the wrestling program using different competitive rules unique to male wrestling. (ADF 32.)

12 Significantly, in reaching this resolution, UCD did not advise the OCR that the women wrestlers had

13 previously only competed against other women. (ADF 33.)

14 Defendants Warzecka and Gill-Fisher justified the requirement that Plaintiffs compete

15 against men in a try-out using male rules on the purported grounds that spots in the program were

16 limited by roster caps. (ADF 34.) Yet significantly, Warzecka admits that the purpose of roster caps

17 was to limit the number of male athletes so that UCD could address unequal treatment of men and

18 women in the program in terms of participation opportunities. (Response to Franks UMF 8.) Other

19 than UCD’s women wrestlers, roster caps have never been applied to any women’s team at UCD.

20 (ADF 37.) Plaintiffs inquired whether, as females, they would have to comply with a roster cap

21 intended to limit the number of men participating in order to move toward gender equity in

22 participation opportunities. (ADF 35.) The women were told that they would have to comply with

23 the male roster caps. (Id.) Franks researched the issue and approved the decision to require that

24 women be counted as participants under the male roster cap, despite agreeing that Plaintiffs’ request

25 that there be a separate cap for men and women was not unreasonable. (ADF 96.) UCD’s expert

26 testified that forcing women in a women’s program to be counted within a roster cap for the men’s

27 team and to compete against men to be on the team is the effective elimination of the women’s

28

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1 program. (ADF 36.) In fact, the Title IX expert consulted by Defendants3 later testified, “in this

2 particular situation, U.C. Davis did something I’ve never seen before which was to count women as

3 men and to apply the roster cap to the underrepresented sex as part of their designation as male … it

4 just was inconceivable to – I’ve never seen women counted as men and had roster caps applied that

5 way. … It was pretty amazing.” (Response to Franks UMF 8.)

6

The requirement that Plaintiffs be able to defeat male wrestlers for a spot on the team where

7 they would compete against women only was not only unprecedented in the history of women in the

8 program, it was an impossible hurdle. (ADF 38.) In the fall of 2001, Mansourian, Ng, and Mancuso

9 attended wrestling practices with the team. (ADF39.) At practice, Coach Zalesky was hostile to the

10 women and did not provide them with any coaching, tips, or support. (ADF 40.) Feeling

11 unwelcome and humiliated, Mansourian stopped attending practices. (ADF 41.) Ng wrestled off

12 against Mancuso, who beat her. (ADF 42.) Mancuso then wrestled off against a male wrestler, who

13 beat her. (Id.) Unable to compete against college-age male wrestlers, Plaintiffs were eliminated

14 from the varsity wrestling program altogether. (ADF 43.) Thomson called Defendants’ resolution

15 of Plaintiffs’ complaints “hollow” given the terms of the sham reinstatement. (ADF 44.) Plaintiffs

16 Mansourian, Ng, and Mancuso were devastated by their dismissal from varsity wrestling. (ADF 20.)

17

Vanderhoef was aware of UCD’s actions regarding the elimination of women from the

18 varsity wrestling team and subsequent “reinstatement” of them on unequal terms. (ADF 72, 75;

19 Response to Vanderhoef UMF 8, 11.) Although he offered to allow a blue ribbon panel of experts to

20 evaluate whether UCD’s actions with respect to the women wrestlers ran afoul of the law,

21 Vanderhoef never convened such a committee. (ADF 74.) Significantly, despite his having the

22 ultimate authority to overrule the decisions of Warzecka, Franks, or Gill-Fisher, Vanderhoef chose

23 not to do so. (ADF 75.)

24

E. Defendants Eliminate Women’s Wrestling as Gender Inequities Persist in

Athletic Opportunities Program-Wide.

25 Defendants Gill-Fisher, Warzecka, and Franks, and Vanderhoef admit that it was their

26

27

3 This Title IX expert, Donna Lopiano, is now Plaintiffs’ expert in this case.

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1 responsibility to ensure gender equity in participation opportunities. (ADF 65-67, 79, 101-102, 126.)

2 Defendants Gill-Fisher, Warzecka, and Franks directly oversaw and/or directed the addition and

3 elimination of teams and participated in gender equity committees. (ADF 83-84, 105-106, 129-131.)

4 These three Defendants regularly monitored the number of varsity athletic participation

5 opportunities provided to men as compared to women relative to their respective enrollments. They

6 prepared, reviewed, and/or verified Equity and Disclosure Act (“EADA”) Reports reflecting these

7 figures. (ADF 86, 107, 127.) Defendant Vanderhoef admits that he frequently reviewed the issue of

8 whether UCD was providing men and women equitable athletic participation opportunities as well.

9 (ADF 66.)

10

UCD’s elimination of Plaintiffs’ varsity wrestling opportunities occurred against the

11 backdrop of Defendants’ long and continuous history of failing to provide equal athletic

12 opportunities for its female students. (ADF 45.) Defendants admit that UCD has never provided

13 females with athletic opportunities that are substantially proportionate to their enrollment. (ADF

14 46.) Between 1971 and 1996, UCD added no women’s teams whatsoever. (ADF 49.) For over 30

15 years, including since 1996, Defendants have provided men anywhere between 65 and hundreds of

16 more varsity opportunities than they did women relative to enrollment number. (ADF 47.) Rather

17 than ensuring equal treatment of men and women in terms of participation opportunities, Defendants

18 have rejected varsity applications from hundreds of women club team members since 1995 alone.

19 (ADF 48, 50, 62-64, 106.)

20

Franks, Warzecka, and Gill-Fisher admit that they were providing women with fewer

21 proportionate varsity athletic opportunities than they provided men. (ADF 48, 108.) They

22 understood that adding three teams in 1996 was not enough to address UCD’s significant gender

23 equity concerns. (ADF 51.) In 1994, Gill-Fisher stated that UCD’s responsibility towards gender

24 equity was incomplete, despite the addition of new teams. (ADF 52.) In 1998, Warzecka

25 acknowledged that a gender imbalance in the athletic department “is not a new issue.” (ADF 53.) In

26 October 2000, shortly before women were removed from the wrestling roster, Warzecka

27 acknowledged in a letter to Coach Burch that it “remains a challenge” for UCD to achieve its gender

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1 equity goals. (ADF 109.) Warzecka, Gill-Fisher and Franks either authored or reviewed other

2 internal reports and memos that revealed that women were being provided proportionally fewer

3 athletic opportunities. (ADF 46.).

4

Despite having actual knowledge that they were not treating male and female students

5 equally in terms of athletic participation opportunities, none of the Defendants took any action to

6 remedy these glaring gender disparities. Warzekca’s contention that indoor track for women was

7 added in 1999 is disputed. (ADF 56; Response to Warzecka UMF 2.) Regardless of whether

8 women’s indoor track was added as a new sport in 1999 (which it was not), UCD dropped a total of

9 63 female participation opportunities from its athletic department during the period of 1999 and

10 2005, enough to field several women’s varsity teams. (ADF 57-59.) UCD’s expert agrees the drop

11 during this time period was “drastic.” (ADF 60.). Notably, although the number of women athletes

12 was decreasing, female student enrollment experienced significant growth. (ADF 61.) From 1999-

13 2005, UCD experienced an increase of over 2,200 women students. (Id.) To provide women with as

14 many athletic opportunities as provided to men relative to their enrollment, UCD would have had to

15 add at least 100 additional opportunities for women athletes in any given year between 1999 and

16 2005. (Id.) Between 1995 and 2003, Defendants did not even communicate to female students that

17 they could seek the addition of a new women’s varsity sport, or the process for doing so. (ADF 62.)

18

Despite persisting gender inequities and further elimination of 64 varsity slots for women,

19 Defendants did not add female varsity athletic opportunities until 2005, after they removed women

20 from the varsity wrestling program and Plaintiffs filed suit. (ADF 54, 63, 110.) Defendants’

21 addition of women’s varsity golf added only seven opportunities for women at UCD. (ADF 55.)

22 Notably, UCD did not have an existing women’s golf team. Defendants had to spend a year

23 recruiting before they could fill at team. (ADF 55.) At the same time, Defendants rejected five out

24 of six applications received from women club teams that sought varsity status. In so doing, the

25 individual Defendants denied hundreds of interested female students the chance to play varsity

26 sports. (ADF 64.)

27 //

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1 V. ARGUMENT

2

A. Summary Judgment Should Be Denied Because Settled Law and Disputed Facts

Establish A Violation By Each Defendant of Plaintiffs’ Constitutional Rights.

3

Defendants have not met their burden of establishing with undisputed facts that their removal

4 and permanent exclusion of women from the varsity wrestling program did not violate Plaintiffs’

5 constitutional rights, especially given the gender disparities in athletic opportunities program-wide.

6 Defendants may not prevail on summary judgment on the equal protection claim if a material issue of fact

7 exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). Federal Rules of Civil

8 Procedure, Rule 56(c) states that summary judgment may be rendered only if

9 the pleadings, depositions, answers to interrogatories, and admissions on file, together with

10 the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

11 party is entitled to judgment as a matter of law.

12 All such evidence submitted must be interpreted in the light most favorable to the non-

13 moving parties (here, Plaintiffs Mansourian, Ng and Mancuso). Anderson v. Liberty Lobby, Inc.,

14 477 U.S. 242, 262 (1986); Gammoh v. City of La Habra, 395 F.3d 1114, 1122 (9th Cir. 2005). All

15 evidence submitted on their behalf must be believed and all justifiable inferences must be drawn in

16 their favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

17 Easter v. American West Fin., 381 F.3d 948, 957 (9th Cir. 2004). The nonmoving party need not

18 produce evidence in a form that would be admissible at trial in order to avoid summary judgment.

19 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). However, evidence submitted by the moving

20 party that would be inadmissible at trial may not be considered on a motion for summary judgment.

21 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Orr v. Bank of Am., NT & SA,

22 285 F.3d 764, 773 (9th Cir. 2002).

23 At this stage, a court must not weigh the evidence or decide the truth of the matter, but rather,

24 determine whether there is a genuine dispute for a jury to decide at trial. Lyons v. England, 307 F.3d

25 1092, 1117 (9th Cir. 2002) (citing Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1196 (9th Cir.

26 2001)). “[T]he issue of material fact required by Rule 56(c) … to entitle a party to proceed to trial is

27 not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is

28

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1 required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury

2 or a judge to resolve the parties' differing versions of the truth at trial.” First Nat’l Bank of Ariz. v.

3 Cities Serv. Co., 391 U.S. 253, 288-89 (1968); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

4 809 F.2d 626, 630 (9th Cir. 1987).

5

Finally, each of the Defendants – not Plaintiffs– has “the burden of showing the absence of a

6 genuine issue as to any material fact.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). As

7 set forth below, none of the Defendants have met this burden. Summary judgment should be denied

8 with respect to each Defendant, accordingly.

9

1. At the Very Least, Plaintiffs Raise Genuine Issues of Material Fact as to

Whether Each Defendant Violated a Constitutional Right.

10

a. Defendants’ characterization of the claim at issue here is disputed.

11

Defendants’ motions are premised on the argument that the Constitution does not guarantee

12 women “special” treatment, including a guaranteed spot on a men’s athletic team. Plaintiffs sought

13 neither. The undisputed and disputed facts of this case, weighed in Plaintiffs’ favor, establish that:

14 (1) Plaintiffs were members of UCD’s varsity wrestling program, competing against other women,

15 just as women had for years (ADF 2-15); (2) Warzecka and Gill-Fisher removed Plaintiffs from the

16 varsity wrestling program based on their gender, and Franks and Vanderhoef ratified this decision

17 (ADF 18, 75, 78, 96, 112, 133-143); (3) Franks, Warzecka, and Gill-Fisher ensured the permanent

18 exclusion of Plaintiffs from the program by imposing the discriminatory requirement that they

19 wrestle off men for a spot on the team, and Vanderhoef ratified this decision (ADF 75, 98, 122, 135-

20 136); and (4) during this same period, Defendants were not treating women equally with respect to

21 athletic opportunities program-wide and were cutting opportunities in other women’s sports as well.

22 (ADF 45-46, 57-61.) These facts establish a violation of the equal protection clause of the United

23 States Constitution, which prohibits sex discrimination in athletic programs.

24

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution

25 mandates that a state actor shall not “deny to any person within its jurisdiction the equal protection

26 of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause is enforced through 42

27 U.S.C. § 1983 (“section 1983”), which provides:

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1

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or

2

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

3

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

4

redress, ….

5

Section 1983 provides a private right of action for damages to individuals who are deprived

6 of “any rights, privileges, or immunities” protected by the U.S. Constitution or federal law by any

7 person acting under the color of state law. 42 U.S.C. § 1983. As such, state officials may be held

8 liable under section 1983 if there is, at minimum, an underlying constitutional tort. Johnson v. City

9 of Seattle, 474 F.3d 634, 638-39 (9th Cir. 2007) (citing Monnell v. Dep’t of Soc. Serv. of the City of

10 New York, 436 U.S. 658, 691 (1978)).

11

Defendants were all state actors within the meaning of the statute. (ADF 1.) Plaintiffs

12 contend and have presented evidence to establish that the Defendants violated their equal protection

13 rights in three ways. First, Defendants have deprived Plaintiffs equal protection of the law by

14 denying them an equal opportunity to participate in varsity sports. Defendants, who decide which

15 teams to add and which teams to eliminate, afforded men more varsity opportunities proportionate to

16 their enrollment for decades through the time of Plaintiffs’ graduation. (ADF 45-49, 57, 61.)

17 Second, Defendants purposefully removed Plaintiffs from the varsity program based on gender.

18 Third, Defendants permanently excluded Plaintiffs from the varsity wrestling program based on their

19 gender. Although Plaintiffs sought reinstatement to the program so they could continue competing

20 against women, Defendants ensured their permanent exclusion from the program by requiring that

21 they wrestle off against men for a spot in the program using different rules unique to male wrestling.

22 (ADF 75, 98, 122, 135-136.) Notably, Defendants did not remove any men from the roster in 2000

23 and they did not impose comparable obstacles on male participation in 2001, by requiring, for

24 example, that they wrestle off against larger football players for a spot in the wrestling program.

25 Plaintiffs contend that this gender-based mistreatment deprived them of equal protection of the law.

26

The United States Supreme Court and the Ninth Circuit have affirmed that the Equal

27 Protection Clause of the Fourteenth Amendment of the United States Constitution creates the right to

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1 be free from purposeful sex discrimination by state actors. This prohibition extends to various forms

2 of sex discrimination in both the spheres of employment and education. Mississippi Univ. of

3 Women v. Hogan, 458 U.S. 718, 731 (1982) (denial of school admission to male applicants); United

4 States v. Virginia, 518 U.S. 515, 519 (1996) (denial of admission of female applicants); Bator v.

5 Hawaii, 39 F.3d 1021, 1029 (9th Cir. 1994) (sexual harassment in employment); Oona v. McCaffrey,

6 143 F.3d 473, 474-75 (9th Cir. 1998) (peer sexual harassment in schools); Lindsey v. Shalmy, 29

7 F.3d 1382, 1386 (9th Cir. 1994) (sex discrimination at work shown by denial of promotion in favor

8 of male candidate).

9

The availability of this constitutional claim for Plaintiffs challenging gender-based decisions

10 in high school and college athletics is well-settled. See, e.g., Haffer v. Temple Univ., 678 F.Supp.

11 517, 523, 526-27 (E.D. Pa. 1987), and cases cited therein; Brenden v. Indep. School District, 477

12 F.2d 1292 (8th Cir. 1973) (striking regulation barring girls from competing against boys in certain

13 sports); Communities for Equity v. Michigan High School Athletic Ass’n, 459 F.3d 676, 693-95 (6th

14 Cir. 2006 ) (affirming district court judgment for Plaintiffs on Plaintiffs’ Equal Protection and Title

15 IX claims challenging high school athletic association’s decision to change scheduling of female

16 athletes seasons); Alston v. Virginia High School League, Inc., 144 F. Supp. 2d 526, 533-34, 538

17 (W.D. Va. 1999) (denying Defendants’ motion for summary judgment on Plaintiffs’ 1983 claims in

18 case involving schedule change for women’s teams but not men’s teams.) The case of Haffer v.

19 Temple University is directly on point. The court there denied defendants’ motion for summary

20 judgment on an equal protection claim brought by female students who alleged that defendants

21 offered men more intercollegiate athletic opportunities than female opportunities proportionate to

22 enrollment, and thus deprived women of an equal opportunity to participate. 678 F. Supp. at 523,

23 526-27.

24

In fact, the Ninth Circuit and other Circuits have repeatedly affirmed that there is an

25 important government interest in promoting equality of opportunity and in redressing past

26 discrimination against women in athletics, even if this means decreasing opportunities for men.

27 Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982) (holding that the policy

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1 of excluding boys from a girls high school volleyball team did not violate the Equal Protection

2 clause because it was a permissible means of attempting to promote equality of opportunity for girls

3 in Arizona interscholastic sports and redressing past discrimination. Noting in dicta that boys would

4 have an “undue advantage” if allowed to compete against women for positions on the volleyball

5 team); Neal v. Bd. of Trs. of Cal. State Univ., 198 F.3d 763, 769-72 (9th Cir. 1999) (rejecting

6 constitutional challenge brought by male wrestlers whose team was eliminated by school attempting

7 to achieve gender equity); Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608 (6th Cir.

8 2002) (holding that men’s rights not violated when institution eliminates a male team to achieve

9 gender equity in compliance with Title IX.)

10

The Supreme Court has held that a party seeking to uphold a gender-based classification

11 “must carry the burden of showing an ‘exceedingly persuasive justification’ for that classification.”

12 Mississippi Univ. for Women, 458 U.S. at 724. The state must show that the sex-based classification

13 serves an important governmental objective and that its means are substantially related to the

14 achievement of those objectives. Id. Here, Defendants present no evidence or argument to justify

15 their failure to ensure that women have equal opportunities to participate in intercollegiate athletics,

16 or their exclusion of women from the wrestling program. Nor do they contend that the elimination

17 of the women’s intercollegiate wrestling opportunities at UCD served an important governmental

18 objective. Defendants similarly make no effort to establish a direct relationship between an

19 important government objective and the elimination of the female wrestling opportunities. Indeed,

20 Defendants cannot justify the elimination of female wrestling opportunities, where they were

21 eliminating (rather than adding) female opportunities elsewhere in the program. (ADF 57-61.)

22

Instead of providing a legal justification for their removal and exclusion of Plaintiffs from the

23 wrestling program, as they must, Defendants deny any involvement with the removal of the women

24 from the roster in 2000. This assertion is not only disputed, it is not determinative here where

25 Defendants admittedly required Plaintiffs to wrestle off against men for their reinstatement.

26 (Response to Franks UMF 8, Gill-Fisher UMF 11, Vanderhoef UMF 7, Warzecka UMF 18.)

27

Defendants next mischaracterize Plaintiffs’ claim as one for preferential treatment that is not

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1 constitutionally protected. They argue that allowing women on the team when they lacked the skills

2 to beat men would have been discriminatory against men trying to make the team. However, the

3 ability of women does have to be equal to that of men where they compete against women using

4 different rules. (Response to Franks UMF 31.) To the extent that Defendants suggest that the

5 women were not skilled even as competitors against women, this is disputed, not to mention

6 irrelevant. (Response to Warzecka UMF 6, 8, 20, 46, 47.) Warzecka and UCD’s experts both agree

7 that the varsity program includes athletes of varying skills levels. (Response to Warzecka UMF 6.)

8 Finally, Defendants suggest that Plaintiffs were never “true varsity” athletes in the program and that

9 they sought either the creation of a new team or an exception for them in the roster cap of the men’s

10 team. Each of these contentions is disputed. (Response to Franks UMF 8, Gill-Fisher UMF 10.)

11

Defendants do not cite any other cases which actually support their position. Their reliance

12 on Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) is curious, at best. There, the Court,

13 applying rational basis review to a disability discrimination claim found there was no violation of the

14 equal protection clause. Id. at 687. Lee does not discuss qualified immunity, or even gender

15 discrimination, and therefore, has no relevance to the matters at issue here. Force v. Pierce City R-

16 VI School Dist., 570 F. Supp. 1020, 1031 (W.D. Mo. 1983) is similarly distinguishable. First, this

17 non-precedential district court case does not address qualified immunity and applied an outdated

18 standard of review to a claim of gender discrimination. Id. at 1029. Additionally, unlike the

19 plaintiff in Force, who sought the right to spot on the boys’ football team without a try-out, Plaintiffs

20 sought neither the right to join a men’s team nor preferential treatment.

21

Defendants then proceed to vaguely argue that there is no constitutional right to participate in

22 school athletics, citing Gonyo v. Drake University, 837 F. Supp. 989 (S.D. Iowa 1993) and Miami

23 University Wrestling, 302 F.3d 608. Not only are Plaintiffs’ claims here far more nuanced than this

24 proposition, these cases are factually distinguishable. In Gonyo, plaintiffs were male wrestlers

25 challenging the constitutionality of their team’s elimination. 837 F. Supp. at 991. The court denied

26 plaintiffs’ motion for preliminary injunction ordering defendants to reinstate men’s wrestling,

27 finding that injunctive relief might undermine the remedial purpose of Title IX to protect women’s

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1 athletic opportunities and encourage greater participation rates for women. Id. at 995-996.

2 Similarly, in Miami University Wrestling Club, the court simply affirmed the well-settled law that a

3 school does not violate a male student’s constitutional equal protection rights by eliminating a male

4 sports team in the effort to comply with Title IX. 302 F.3d at 614-616.

5

Defendants’ arguments demonstrate the inappropriateness of summary judgment in this case.

6 Each of their contentions is a gross distortion of the facts of this case and contradicted by the

7 plethora of disputed facts that defeat summary judgment.

8

b. Defendants’ reliance on Title IX jurisprudence is misplaced.

9

Defendants’ reliance on regulations implementing Title IX of the Education Amendments of

10 1972 and interpreting case law does not support their motions. Different standards apply to a Title

11 IX and equal protection claim. See, e.g., Jeldness v. Pearce, 30 F.3d 1220, 1226-27 (9th Cir. 1994)

12 (citing Canterino v. Wilson, 546 F. Supp. 174, 210 (W.D. Ky. 1982), vacated on other grounds, 869

13 F.2d 948 (6th Cir. 1989)). Even if there were no Title IX violations, which there are, it does not

14 mean that the Defendants’ actions were in all respects lawful. See, e.g., Mississippi Univ. for

15 Women, 458 U.S. at 732 (although Title IX expressly permitted traditionally single-sex university,

16 sexual segregation at the university violated the 14th amendment).

17

Defendants advance the unremarkable proposition that Title IX does not require that a school

18 provide the same sports for men and women and allows a school to determine which sports to

19 sponsor. Plaintiffs do not dispute this contention. This is, however, entirely irrelevant to whether

20 UCD’s actions in removing and demoting existing female varsity athletics were constitutional.

21 Defendants then argue that Title IX does not require the establishment of a separate team for a few

22 interested women, citing Cohen v. Brown University, 991 F.2d 888, 898 (1st Cir. 1993) and Roberts

23 v. Colorado State Board of Agriculture, 998 F.2d 824, 830 n.10 (10th Cir. 1993). Again,

24 Defendants’ argument is misplaced. Here, Plaintiffs sought reinstatement back into the program on

25 the same terms, not the creation of new varsity opportunities.

26

The misconduct actually alleged by Plaintiffs is sufficient to establish a violation of the equal

27 protection clause. Even if Defendants had never eliminated women wrestling opportunities in

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1 particular, which they did, their refusal to provide men and women equal athletic opportunities

2 would be sufficient to support Plaintiffs’ constitutional claim. Haffer, 678 F. Supp. at 526-27 (E.D.

3 Pa. 1987). Because Plaintiffs raise sufficient disputed facts on this motion to support their claims

4 and Defendants’ Title IX arguments are off-base, no Defendant is entitled to summary judgment.

5

2. Plaintiffs Raise A Genuine Issue of Material Fact With Respect to The

Individual Liability of Each Defendant.

6 Unable to avoid facts giving rise to a constitutional violation, each of the Defendants try to

7 side-step personal liability for the misconduct at issue this case. However, the record contains

8 sufficient evidence for a jury to find that Defendants Vanderhoef, Franks, Warzecka, and Gill-Fisher

9 acted with an unconstitutional motive. “To survive summary judgment on the issue of motive, the

10 plaintiff must “put forward specific, nonconclusory factual allegations that establish improper

11 motive.” Jeffers v. Gomez, 267 F.3d. 895, 907 (9th Cir. 2001) (quoting Crawford-El v. Britton, 523

12 U.S. 574, 598 (1998)); Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir. 2003)

13 (holding that plaintiff needs evidence sufficient to permit a reasonable trier of fact to find by a

14 preponderance of the evidence that the individual Defendant’s conduct was motivated by gender

15 discrimination.)

16 Defendants’ singled Plaintiffs out for mistreatment based on the gender by removing them,

17 not men, from the program in 2000. They also imposed discriminatory barriers on Plaintiffs and

18 other women to prevent their future participation in the program and without imposing comparable

19 barriers on men. They were also personally responsible for deciding that UCD should provide

20 Plaintiffs and other women fewer opportunities than men to participate in varsity athletics program-

21 wide. Notably, no Defendant has presented evidence or even argument that their conduct served an

22 important government interest. The following disputed and undisputed facts establish intentional

23 discrimination by each Defendant sufficient to defeat summary judgment:

24

a. Disputed Facts Establish Defendant Vanderhoef’s Liability.

25

Chancellor Vanderhoef contends that he should not be held liable for the claims at issue in

26 this case because although he was aware of the alleged misconduct here, he was not directly

27 involved in decision-making. Vanderhoef relies on the wrong standard of liability for constitutional

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1 claims. In a binding precedential decision establishing the standard for qualified immunity of

2 supervisors, the Ninth Circuit has held that that “direct, personal participation is not necessary to

3 establish liability for a constitutional violation.” al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir.

4 2009). The Court explained:

5

Supervisors can be held liable for the actions of their subordinates (1) for

6

setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known

7

would cause others to inflict constitutional injury; (2) for culpable action or

inaction in training, supervision, or control of subordinates; (3) for

8

acquiescence in the constitutional deprivation by subordinates; or (4) for

conduct that shows a “reckless or callous indifference to the rights of others.”

9

Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (internal

10

quotation marks omitted). Any one of these bases will suffice to establish the

personal involvement of the defendant in the constitutional violation. Id. at

11

965.

12

Vanderhoef admits that he was responsible for UCD’s athletics program and compliance with

13 gender equity requirements. (ADF 65, 67.) He admits that he tracked UCD’s Title IX compliance

14 and met frequently with officials regarding gender equity. (ADF 66.) He admits that at some point

15 he was aware that Plaintiffs and other women had been removed from varsity wrestling roster and

16 that the other Defendants subsequently “reinstated” the Plaintiffs on unequal terms. (ADF 71.) He

17 also admits that he knew that many people challenged these actions as discriminatory, including

18 Plaintiffs and their Assemblywoman Helen Thomson. He admits that he was actively involved in

19 responding to Thomson’s complaint. (ADF 72-73.) For example, although he offered to convene a

20 blue ribbon panel of experts to evaluate whether UCD’s actions with respect to the women wrestlers

21 ran afoul of the law, Vanderhoef never convened such a committee. (ADF 74.) Significantly,

22 despite Vanderhoef having the ultimate authority to overrule the decisions of Warzecka, Franks, or

23 Gill-Fisher to remove women from the roster and to impose discriminatory conditions for

24 reinstatement, he chose not to do so. (ADF 75.) Vanderhoef’s limited contact with some of the

25 Plaintiffs is not material to the issue of his liability where these facts established that he ratified

26 discriminatory conduct, which deprived Plaintiffs of equal protection of law. al-Kidd, 580 F.3d at

27 965.

28

Vanderhoef, like Franks, Warzecka and Gill-Fisher, contends that he reasonably relied on

21

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1 UCD’s voluntary resolution with OCR as a lawful resolution of Plaintiffs’ claims arising under Title

2 IX of Education Amendments of 1972. (Response to Vanderhoef UMF 21.) However, the OCR did

3 not reach any conclusion that Defendants’ actions were lawful, even applying Title IX standards.

4 (ADF 31.) Even if there were no Title IX violations, which there are, it does not mean that the

5 Defendants’ actions were in all respects lawful. See, e.g. Mississippi Unive. for Women, 458 U.S. at

6 732. As discussed above, different standards apply to Title IX and equal protection claims.

7 Moreover, the OCR did not and cannot consider constitutional questions. Garber v. City of Clovis,

8 698 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010).

9

Plaintiffs also have raised a genuine issue of material fact as to the adequacy of the OCR

10 process to resolve any claims, much less an equal protection claim. The OCR failed to interview the

11 Plaintiffs, other women wrestlers or Burch before entering into a Voluntary Resolution Plan with

12 UCD. (ADF 24, 31.) Moreover, Defendants never advised The OCR that the women previously

13 competed against women in the program, not men. (ADF 33.) Without knowledge of this

14 significant fact, The OCR agreed to a resolution premised on the inaccurate assumption that

15 Plaintiffs were being reinstated on the same terms.

16

Despite his responsibility, Vanderhoef took no affirmative steps to ensure that the athletic

17 department complied with laws requiring gender equity. (ADF 68.) Instead, he simply trusted those

18 around him. (ADF 69.) Thus, Vanderhoef knowingly refused to terminate the acts of his

19 subordinates despite serious concerns about the constitutionality of their acts. He failed to supervise

20 them and ultimately acquiesced to their constitutional violations. Weighing the facts in Plaintiffs’

21 favor, the Court should find sufficient facts to take to a jury regarding Vanderhoef’s individual

22 liability. al-Kidd, 580 F.3d at 965.

23

b. Disputed Facts Establish Defendant Franks’ Liability.

24

Franks’ attempts to distance himself from the intentional discrimination at issue in this case

25 are contradicted by his admissions, and thus preclude summary judgment. He contends that he had

26 no involvement in the day to day operation of UCD’s athletic teams, or in the selection of students to

27 fill team rosters or receive grants in aid. (Response to Franks UMF 2, 3.) However, he was charged

28 22
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1 with oversight of the athletic department and met with the Athletic Director weekly to discuss issues

2 arising in the department. (ADF 76-78.) He also admits that he was responsible for ensuring that

3 men and women were treated equally in the athletic department. (ADF 79, 83, 84, 87.) It was his

4 job to ensure that coaches or his subordinates did not rely on discriminatory criteria in selecting team

5 members or grant in aid recipients. (Response to Franks UMF 3.)

6

Franks denies that he intentionally discriminated against Plaintiffs, contending that he “had

7 no involvement” in determining who would fill the spots on the wrestling team roster in the fall of

8 2000 or in try-outs for the team in the fall of 2001. (Franks MPA (Dkt. #434) 14.) However, his

9 denial is a disputed material fact. Franks assumed the lead role on behalf of UCD in responding to

10 Plaintiffs’ discrimination complaints about: (1) their removal from the team; (2) the requirement that

11 they wrestle off against men for their reinstatement; (3) the inclusion of women in roster caps; and

12 (4) the attempt to “demote” them to club status without significant varsity benefits. (ADF 91.)

13

Franks argues that it cannot be found by a jury that he intentionally discriminated against

14 Plaintiffs because his response to the OCR complaint “can hardly be classified as “deliberate

15 indifference.” (Franks MPA (Dkt. #434) at 16.) That Franks responded to a complaint is not the

16 determinative factor for a jury. Rather, the jury must evaluate how he responded to this complaint.

17 Plaintiffs present sufficient evidence to establish that Franks responded to Plaintiffs’ complaint with

18 additional acts of gender discrimination, and thus, defeat summary judgment. (Response to Franks

19 UMF 6, 7.)

20

First, rather than place the women back on the roster immediately after learning that they had

21 been removed, Franks suggested that they form a club team despite acknowledging that this would

22 result in the loss of significant varsity benefits. (Response to Franks UMF 5, 16; ADF 11-14.) Any

23 suggestion that the women wanted a demotion to club status is disputed. (Response to Franks UMF

24 14.) Notably, Franks did not suggest that any existing male member of the varsity wrestling

25 program move to club status. Franks argues that his offer of a club team to Plaintiffs was

26 appropriate because “the primary process” for the development of a varsity team was development at

27 the club level first. Not only is Defendants’ characterization of this supposed process disputed

28 23
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1 (Response to Franks UMF 21), it is also disputed because Plaintiffs were already members of the

2 varsity program and thus were not seeking to develop new varsity opportunities. (Response to

3 Franks UMF 20, 21.)

4

Second, Franks’ testimony that the women were initially removed from the roster because of

5 a “misunderstanding” is disputed. While Franks placed the women back on the wrestling roster in

6 May 2001 after the season was completed, this did not resolve Plaintiffs’ complaints in an equitable

7 manner. The reinstatement occurred after the 2000-2001 wrestling season was over and there were

8 no opportunities for the women to participate. (Response to Franks UMF 9; ADF 30, 38.)

9

Third, Franks approved the decision to apply a single roster cap that was inclusive of men

10 and women, even though he believed Plaintiffs’ position that men should be within a separate cap

11 was reasonable. He was also unable to articulate a reason for this decision other than that a separate

12 cap was purportedly not required. (ADF 96.) When pressed, Franks admitted that he did not

13 personally contact any gender equity experts on this point and admitted that he had no idea whether

14 any of them supported his decision on roster caps. (Response to Franks UMF 15.) Indeed, UCD’s

15 own expert decried the application of a single roster cap inclusive of female opportunities because

16 this would lead to the effective elimination of the women’s program. (Response to Franks UMF 8;

17 ADF 36.)

18

Fourth, Franks responded to Plaintiffs’ discrimination complaint by imposing on them the

19 impossible requirement that they beat men using different rules for an opportunity in the program,

20 despite the fact that they competed only against women. (ADF 98.) This is akin to forcing female

21 track athletes to compete against male track athletes in their events as a condition of the participation

22 in the program. While Franks imposed new and impossible burdens on the participation of women

23 in the program, he did not change the terms of male participation by, for example, forcing them to

24 pin much larger football players for a spot on the team. While Franks contends that he had “no

25 involvement” with try-outs for the wrestling team in the fall of 2001, he admitted that he meant only

26 that he was not physically present during the try-out. (Response to Franks UMF 24, ADF 98.)

27 Franks approved UCD’s decision to impose the requirement that Plaintiffs wrestle off against men

28 24
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1 for their reinstatement in the program. (ADF 98.)

2

Franks suggests that he should not be held liable because he did not have multiple or

3 substantive contacts with all of the Plaintiffs. However, his liability does not hinge on his direct

4 contact with Plaintiffs. al-Kidd, 580 F.3d at 965 (“direct, personal participation is not necessary to

5 establish liability for a constitutional violation”). Franks was involved in and approved decisions

6 that harmed all of the Plaintiffs, including UCD’s removal of the women from the varsity wrestling

7 roster in 2000 and the decisions requiring a wrestle off against men in 2001. (Response to Franks

8 UMF 3, 29, 34; ADF 97, 98.) Similarly, Franks’ purported lack of direct contact with the OCR is of

9 no import where he admits that he directed UCD’s response to the OCR complaint. (Response to

10 Franks UMF 23; ADF 95, 97.)

11

Finally, a jury may find that Franks intentionally discriminated against Plaintiffs by ensuring

12 the elimination of female wrestling opportunities at a time when he was not providing women equal

13 opportunities program-wide. Franks admits that he reviewed UCD’s proposed addition or

14 elimination of teams and that he was responsible for ensuring that UCD was providing women with

15 equitable athletic participation opportunities. (ADF 84, 87.) Nonetheless, Franks took no action

16 when faced with memos expressing serious concern about UCD’s compliance with gender equity

17 laws in terms of participation opportunities or EADA reports that confirmed that UCD was short by

18 hundreds of female opportunities. (ADF 86, 88, 46, 47, 50, 57-59, 61; see also Evid A:48 at 11 &

19 appendix A to ADF.) While Franks and the other Defendants revere UCD’s club sport program,

20 club sports do not offer the vast and significant benefits of the intercollegiate/varsity sports program.

21 (Response to Warzecka UMF 3.) Franks ignored the advice of a gender equity expert, Donna

22 Lopiano, to convene a panel of experts to evaluate the lawfulness of his actions. (ADF 14.) Indeed,

23 as Plaintiffs were being excluded from wrestling, EADA reports (that Franks carefully reviewed)

24 revealed that the athletic department was cutting dozens of female opportunities in other women’s

25 sports despite an increase in female student enrolment. (ADF 57-61.) Franks’ failure to ensure that

26 female students, including Plaintiffs, had an equal opportunity to participate in varsity athletics is

27 sufficient to establish a violation of the equal protection clause. Haffer, 678 F.Supp. at 526-27.

28 25
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1

Further, for the reasons set forth above, the fact that UCD reached a resolution of Plaintiffs’

2 Title IX claims with the OCR does not defeat evidence of intentional discrimination by Franks with

3 respect to Plaintiffs’ constitutional claims. (ADF 24, 31-33; Response to Franks UMF 23.) Indeed,

4 if proven at trial, the many facts cited above are sufficient to establish that Franks violated the

5 constitutional rights of Plaintiffs.

6

c. Disputed Facts Establish Defendant Warzecka’s Liability.

7

Warzecka has been responsible for the overall direction, leadership, and management of the

8 UCD Intercollegiate Athletic program since 1995. (ADF 101.) Warzecka was responsible for

9 ensuring gender equity in the athletic department. (ADF 102, 104-106.) Warzecka was well aware

10 that UCD was offering women far fewer intercollegiate participation opportunities than it did men

11 based on these EADA Reports and other documents reviewed or prepared by him. (ADF 46, 47, 50,

12 57-9, 61, 107, 108; see also Evid A:48 at 11 & appendix A to ADF.) Indeed, in October 2000,

13 shortly before women were removed from the wrestling roster, Warzecka acknowledged in a letter to

14 Coach Burch that it “remains a challenge” for UCD to achieve its gender equity goals. (ADF 109.)

15 While Warzecka admits that the addition of opportunities every 4-6 years was required of UCD to

16 achieve gender equity compliance (ADF 110), he failed to respond to the drastic reduction in female

17 opportunities over a nearly ten year period including the elimination of female wrestling

18 opportunities. These disputed facts alone are sufficient to defeat summary judgment on Plaintiffs’

19 claim that Warzecka intentionally treated them differently because of their gender. Haffer, 678

20 F.Supp. at 526-27.

21

Warzecka admits that he knew that women were participating in the varsity wrestling

22 program competing against women. (ADF 111.) Yet, in October 2000, Warzecka ordered Burch to

23 remove the women wrestlers, which resulted in their loss of significant varsity benefits. (ADF 112,

24 116-117, 119-120). Burch denies Defendants’ contention that the women were removed because

25 they were supposed to be counted under a single roster cap for the program. (Response to Franks

26 UMF 8.) This disputed fact lies at the very heart of this case. Warzecka ordered the removal of the

27 women from the roster because they were women and only later relied on caps to justify his actions.

28 (Response to Warzecka UMF 4, 15, 17.) Warzecka admits that he later confirmed with the women 26
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1 directly that they were no longer part of the program. Plaintiffs testified that he did so in a loud,

2 angry and intimidating manner. (ADF 116-117.) Notably, Warzecka did not order the removal of

3 any men from the program. Nor did he suggest that any men from the roster join a club team, as he

4 suggested to the female Plaintiffs. (ADF 119-120.) Warzecka’s removal of women from the roster

5 (ADF 112, 116-117) and his suggestion that they accept a demotion to the club level instead (ADF

6 118-120) are disputed facts that are also sufficient to defeat summary judgment. (See Response to

7 Warzecka UMF 3, 4, 13, 30-33.)

8

A jury may also find that the insistence of Warzecka and other Defendants in 2001 that

9 Plaintiffs wrestle off against men using male wrestling rules as a condition of their continued

10 participation in the program was intentional gender discrimination. (ADF 122; Response to

11 Warzecka UMF 4.) For the reasons set forth above, the fact that UCD’s unilateral agreement with

12 the OCR with respect to Plaintiffs’ Title IX claims contained this requirement does not absolve

13 Warzecka’s constitutional misconduct, especially where Warzecka admits that he does not recall

14 advising the OCR that women previously competed against women, not men. (ADF 33.)

15

Warzecka contends that the requirement that they wrestle off against men was the only way

16 to ensure that the most skilled wrestlers fell within the single roster cap for the program. He also

17 argues that the requiring Plaintiffs to wrestle off against men did not deprive them of equal

18 protection of the law because men were also required to try out for a spot in the varsity program.

19 (Warzecka MPA (Dkt. #452-3) at 12.) Yet, men were required to wrestle off against their own

20 gender while the women were required to wrestle off against the opposite gender.

21

Like Gill-Fisher, Warzecka even goes so far as to claim that UCD would have been engaging

22 in reverse discrimination against men if Plaintiffs were allowed on the team without the skills to beat

23 men. This argument fails, however, because it was Warzecka’s decision to impose a single roster

24 cap that included female members of the team, contrary to the gender equity purposes of the cap.

25 (ADF 113-115; Response to Warzecka UMF 21, 22.) Further, UCD has never previously or since

26 imposed roster caps on its women’s intercollegiate varsity teams. (Response to Franks UMF 8,

27 Response to Warzecka UMF 15.)

28 27
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1

Nothing prevented Warzecka or anyone else at UCD from simply allowing women the

2 continued opportunity to wrestle by not counting women members in a men’s roster cap. Plaintiffs

3 dispute that UCD’s wrestling program was a “men’s team” or that they wanted a guaranteed spot on

4 a men’s team. They wanted to continue to compete against women using rules unique to women’s

5 wrestling. Thus, Warzecka’s contention that he did not engage in sex discrimination because he also

6 required men to wrestle off men for a spot on the team rings hollow. The ability of women does not

7 have to be equal to that of men where they compete against women and use different competitive

8 rules. (Response to Franks UMF 31). At a time when Warzecka approved the elimination of female

9 participation opportunities program-wide (ADF 112, 114, 122), disputed facts establish that

10 Warzecka purposefully changed the terms of Plaintiffs’ previous participation in order to exclude

11 them from the varsity program. Again, Warzecka did not similarly require male wrestlers to

12 compete against football players or similarly disproportionately skilled athletes. These disputed

13 facts also preclude summary judgment.

14

d. Disputed Facts Establish Defendant Gill-Fisher’s Liability.

15

Defendant Pam Gill-Fisher was the Senior Associate Athletic Director with significant

16 responsibility in the intercollegiate athletic department. She was deeply involved in gender equity

17 issues in the department and relied on by the other Defendants for her purported expertise. (ADF

18 126-132.) Like other Defendants, she was well aware of the failure of UCD to provide women with

19 the same opportunity to play varsity sports as it did men. (ADF 46, 47, 50, 57-59, 61, 127, 107, 108;

20 see Evid A:48 at 11 & Appendix A to ADF for reports reflecting inequities).) These disputed facts

21 are sufficient to defeat summary judgment on Plaintiffs’ equal protection claim. Haffer, 678 F.

22 Supp. at 526-27.

23

Gill-Fisher also influenced the decision to remove women from the wrestling program and

24 terminate the coach once he complained of sex discrimination. (ADF 133, 134.) Gill-Fisher’s

25 unusual hostility towards the women wrestlers was a factor in the steps taken by UCD that ensured

26 that women no longer had the opportunity to wrestle at the varsity level. (ADF 134.) Significantly,

27 while Gill-Fisher contends that she had “no involvement” with wrestling try-outs in 2001, she was a

28 key member of the decision making team that forced the women to wrestle off against men for a spot 28
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1 on the men’s wrestling team. (ADF 135; Response to Gill-Fisher UMF 33.) After the women were

2 removed from the roster by UCD administrators, Gill-Fisher was also integral to UCD’s response,

3 which included the decision to refuse to allow women to be reinstated on the team on equal terms.

4 (ADF 136.) For example, she had numerous meeting with Franks and Warzecka, prepared

5 memoranda, gathered related facts, and took follow-up steps. (ADF 137.) She met with the OCR

6 representatives and was one of the decision-makers who developed UCD’s resolution with the OCR.

7 (ADF 138.) Finally, she went so far as to meet with local Assemblywoman Helen Thompson to

8 present UCD’s version of events. (ADF 139.)

9

Gill-Fisher admits that she thought the women should be demoted to a club level, because in

10 her opinion that was a preferable method to develop the sport of women’s wrestling. Her post ad-

11 hoc justification for her actions is not credible and not relevant, especially where disputed facts

12 establish that she refused to actually review any materials Coach Burch provided her about women’s

13 wrestling and otherwise had no knowledge of the level of interest in women’s wrestling. (Response

14 to Gill-Fisher UMF 9, 10.) Gill-Fisher’s inadmissible opinion about available competition for

15 women wrestlers is also disputed. (Response to Gill-Fisher UMF 9.) Gill-Fisher’s opinions

16 assumed the disputed contention that the Plaintiffs were not already varsity athletes. (ADF 4.) The

17 fact that Gill-Fisher never advocated for the demotion of less skilled male athletes in the program to

18 the club level or otherwise urged their exclusion from the program raises a genuine issue of as to

19 whether she intentionally singled Plaintiffs out for mistreatment based on their gender.

20

Like Warzecka, Gill-Fisher’s attempts to justify the wrestle off requirement by relying on

21 UCD’s roster management program and by suggesting that it would have been reverse

22 discrimination to allow women in the program who were not skilled enough to beat men. These

23 arguments are red herrings. Under a separate male cap, male athletes would not have been impacted

24 whatsoever by female participation in the program. Defendants themselves imposed a single cap

25 because it wanted to justify the wrestle off, not because a single cap was required by any law or 26 policy.4 UCD has never imposed roster caps on women’s opportunities because its purpose for the

27 4 Gill-Fisher’s testimony that she supposedly relied on unnamed experts in reaching her opinions 28 (continued on next page)
29
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1 caps was to reduce the number of male opportunities, which far outnumbered those afforded to

2 women proportionate to their respective enrollment. Additionally, as noted above, Plaintiffs wanted

3 to compete against women, not men. Their ability to compete against men was irrelevant. Again,

4 the failure of UCD to advise OCR of this fact is but one reason (among many) to discount her

5 purported reliance on the agreement reached with OCR in taking her actions. (ADF 33.)

6

Gill-Fisher relies heavily on her history as a female athlete and other accolades to suggest

7 that she did not intentionally discriminate against Plaintiffs. These facts are not material, given the

8 competent evidence that establishes Gill-Fisher’s misconduct toward Plaintiffs based on gender. If

9 anything, it simply explains why UCD administrators relied on Gill-Fisher to inform their

10 understanding of gender equity and the decisions in this case. (ADF 140.) Her insistence that

11 women should be required to wrestle off against men in order to continue wrestling at UCD was a

12 primary reason UCD’s created this new requirement. (ADF 141.)

13

Finally, Gill-Fisher’s limited contact with some of the Plaintiffs is not material to the issue of

14 her liability where these facts establish that she wanted the women removed from the varsity

15 program and imposed the discriminatory wrestle off requirement. Plaintiffs raise a genuine issue of

16 material fact as to Gill-Fisher’s intentional discrimination and her motion should be denied

17 accordingly.

18

B. Defendants’ Qualified Immunity Defense Does Not Pass Muster on Summary

Judgment.

19 Defendants seek summary judgment on the alternative ground that they are entitled to

20 qualified immunity from suit. They argue that Plaintiffs seek the vindication of rights that were not

21 clearly established in 2000. They also contend that they acted reasonably in believing that their

22 actions were lawful. Defendants’ arguments fall flat in the face of years of precedent affirming the

23 constitutional right to be free from sex discrimination, even in athletics. They also contradict a

24 plethora of undisputed and disputed facts, including Defendants’ own admissions about their

25

26

(Footnote continued from previous page) about caps lacks foundation and is inadmissible hearsay. (See Plaintiffs’ Objections to Defendant’s

27

Evidence Submitted in Support of Reply Brief and Amended Objections to Defendant’s Evidence Submitted in Support of Motion For Summary Judgment, filed herewith.)

28

30
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1 knowledge of the law (ADF 80-82, 103, 128), facts establishing ample notice to Defendants that

2 their actions were unlawful (ADF 28-29, 45-47, 51, 54, 71, 93-94, 123-124), and facts that would

3 allow a trier of fact to find their reliance on the OCR resolution unreasonable (ADF 24-27, 30-38,

4 70, 96, 122, 134, 137). Well-settled law and material issues of fact preclude summary judgment in

5 Defendants’ favor on the qualified immunity defense.

6

The parties agree that the test for qualified immunity is whether a plaintiff has alleged facts

7 of a violation of a constitutional right, and whether that constitutional right was “clearly established”

8 at the time of the violation. Pearson v. Callahan, 129 S. Ct. 808, 811 (2009). If the official is

9 alleged to have violated a clearly established constitutional right, the official is not entitled to

10 qualified immunity. Id. at 816. The Supreme Court has clarified that lower court judges are

11 permitted to exercise their discretion in determining which of the two prongs of the qualified

12 immunity analysis should be addressed first in light of the circumstances of the particular case at

13 hand. Id. at 818, 821-22.

14

Regardless of the order of the inquiry, Defendants’ qualified immunity defense fails.

15

1. Plaintiffs Allege Facts Of A Constitutional Right.

16

For the reasons set forth above, Plaintiffs allege facts of a constitutional right. Defendants’

17 construction of this case as narrowly seeking a guaranteed spot on a male wrestling team not only

18 misstates the right at issue, but also is contradicted by disputed facts, as set forth above. Correctly

19 viewed, Plaintiffs have three bases for their constitutional claim. First, Plaintiffs allege that

20 Defendants provided them and other women fewer opportunities to participate in the athletic

21 program than they did men. Second, Plaintiffs allege that Defendants stripped them of varsity status

22 based on their gender. Third, Defendants imposed barriers that ensured their permanent exclusion

23 from the wrestling program based on their gender. There can be no doubt that this alleged

24 misconduct violates a constitutional right, where, as noted in Section V.A.1 above, the United States

25 Supreme Court and the Ninth Circuit have affirmed that the Equal Protection Clause of the

26 Fourteenth Amendment of the United States Constitution creates the right to be free from purposeful

27 sex discrimination by state actors. Mississippi Univ. of Women, 458 U.S. at 731; United States v.

28 Virginia, 518 U.S. at 519; Bator, 39 F.3d at 1029; Oona, 143 F.3d at 474-75; Lindsey, 29 F.3d at 31
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1 1386.

2

2. Plaintiffs’ Constitutional Rights Were Clearly Established in 2000.

3

Defendants also fail on the inquiry regarding whether the rights at issue in this case were

4 clearly established at the time of their alleged misconduct. Relying inappropriately on Title IX

5 standards, Defendants contend that no case clearly establishes a constitutional right to be a member

6 of a team without the requisite skill and competitive ability. Since this is not the alleged misconduct

7 at issue, the absence of case law on this particular point is irrelevant. Plaintiffs allege that they were

8 kicked out and kept out of the wrestling program because they were women and that UCD was not

9 giving women a fair share of athletic opportunities program-wide. These allegations state a claim of

10 sex discrimination in violation of the Equal Protection Clause that was clearly established at the time

11 of the alleged misconduct.

12

In 1971, the Supreme Court recognized that a law that treats women unequally violates the

13 Equal Protection Clause. Reed v. Reed, 404 U.S. 71 (1971) (statutory preference for men as estate

14 administrators); Stanton v. Stanton, 421 U.S. 7 (1975) (different parental support obligations for sons

15 and daughters); Frontiero v. Richardson, 411 U.S. 677 (1973) (different requirements for entitlement

16 to fringe benefits for spouses of male armed services members and spouses of female armed services

17 members). In 1979, the Supreme Court held that the Equal Protection Clause conferred a “federal

18 constitutional right to be free from gender discrimination” in the workplace at the hands of

19 government actors, including a discriminatory termination. Davis v. Passman, 442 U.S. 228, 234-35

20 (1979). The Supreme Court extended this finding to the educational context long before the events

21 at issue in this case. Mississippi Univ. of Women, 458 U.S. at 731 (1982 case regarding denial of

22 school admission to male applicants); United States v. Virginia, 518 U.S. at 519 (1996 case

23 regarding denial of admission by female applicants).

24

Citing these cases, the Ninth Circuit repeatedly denied claims of qualified immunity by 2000

25 on the basis that equal protection claims of gender discrimination implicate well-established

26 constitutional rights. Oona, 143 F.3d at 476 (denying in 1998 a qualified immunity claim by a

27 school official because the right to be free from gender discrimination by state actors was clearly

28 32
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1 established as early as 1988); Lindsey, 29 F.3d at 1385 (denying in 1994 qualified immunity on

2 grounds that equal protection clause prohibits gender discrimination (citing Washington v. Davis,

3 426 U.S. 229, 239 (1976)); Bator, 39 F.3d at 1027-28 (1994 decision denying qualified immunity for

4 employer who subjected employee to discrimination on basis of sex); Lowe v. City of Monrovia, 775

5 F.2d 998, 1011 (9th Cir.1985) (denying qualified immunity), amended on other grounds, 784 F.2d

6 1407 (9th Cir.1986).

7

Defendants suggest that they are entitled to qualified immunity unless a case has held it is

8 unconstitutional to remove existing female members of a varsity wrestling program because they are

9 women. However, the Ninth Circuit has made clear that closely analogous preexisting case law is

10 not required to show that a right was clearly established. White v. Lee, 227 F.3d 1214, 1238 (9th Cir.

11 2000). “For a legal principle to be clearly established, it is not necessary that ‘the very action in

12 question has previously been held unlawful. …’” Rather, “[t]he dispositive inquiry is ‘whether it

13 would be clear to a reasonable [official] that his conduct was unlawful in the situation he

14 confronted’.” Tennison v. City and County of San Francisco, 548 F.3d 1293, 1303, 1305 (9th Cir.

15 2009) (citations omitted). In LSO, LTD v. Stroh, 205 F.3d 1146, 1158 (9th Cir. 2000), the Ninth

16 Circuit rejected a defendant’s effort to define the right allegedly violated too narrowly, stating:

17 “[T]he Officials’ formulation is too particularized. To phrase the ‘right allegedly violated’ in such

18 detail and in terms so closely paralleling what allegedly happened here would be to allow [the

19 Officials], and future defendants, to define away all potential claims.” Id. at 1148 (citing Kelley v.

20 Borg, 60 F.3d 664, 667 (9th Cir.1995)).

21

The reach of the Equal Protection Clause to challenge gender discrimination is athletics was

22 well-settled in 2000. Haffer, 678 F.Supp. at 526-27 (1987 decision confirming application of the

23 equal protection clause where denial of equal athletic opportunities and citing numerous cases

24 decided since 1973 that have held that regulations that prohibit girls from participating in particular

25 sports deny girls equal protection). The Ninth Circuit embraced the important governmental interest

26 in equality in athletic opportunities and in redressing past discrimination before 2000. Clark, 695

27 F.2d at 1131 (1982 decision); Neal, 198 F.3d at 769-72 (1999 decision).

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1

A long line of cases decided well before 2000 also affirmed that an institution’s elimination

2 of a women’s sports team and its refusal to provide equal athletic opportunities program-wide is a

3 form of sex discrimination in violation of Title IX. See, e.g., Roberts, 998 F.2d at 828 (1993 case

4 held: “It is well-established that ‘an institution may violate Title IX simply by failing to

5 accommodate effectively the interests and abilities of student athletes of both sexes”); Cohen, 991

6 F.2d at 897-98 (1993 decision); Favia v. Ind. Univ. of Pa., 812 F. Supp. 578, 584-85 (W.D. Pa.

7 1993), aff’d, 7 F.3d 332 (3d Cir. 1993). The Ninth Circuit has held that the development of

8 jurisprudence under other laws prohibiting the same conduct is relevant to its analysis of whether a

9 constitutional right was “clearly established.” In Bator, 39 F.3d at 1028, the Ninth Circuit affirmed

10 that the development of jurisprudence under Title VII of the 1964 Civil Rights Act clearly

11 established a constitutional prohibition against gender discrimination, stating:

12

Title VII cases are relevant to the discussion of when the constitutional right

13

to be free of sexual harassment became clearly established because Title VII and equal protection cases address the same wrong: discrimination. Title VII

14

case law establishes that sexual harassment is prohibited sex discrimination,

and it reflects our collective understanding of what conduct violates a person's

15

rights.

16

This authority is sufficient to establish that UCD’s actions violated a constitutional right that

17 was clearly established in 2000. Indeed, Defendants admitted that they knew that sex discrimination

18 in athletics was prohibited by law. (ADF 65, 80-82, 103, 128.) Some expressly admitted that they

19 knew that the Constitution also prohibited sex discrimination. (Id.) Most admitted that they were

20 well-trained in laws requiring gender equity. (Id.) They admitted that they were aware that UCD

21 was not providing men and women the same number of athletic opportunities. (ADF 51-53.)

22 Defendants’ misconduct continued for years. A jury could find that it was unreasonable for

23 Defendants to ignore, not only the public outcry about their actions, but also the advice of gender

24 equity expert Donna Lopiano, who strongly suggested that they convene a “blue ribbon panel” of

25 gender equity experts to evaluate the lawfulness of their conduct.

26

Defendants argue that that they reasonably relied on OCR’s Voluntary Resolution Plan to

27 assume that their actions were lawful. However, as noted above, OCR did not consider or resolve

28 34
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1 the constitutional questions presented here, which are governed by different legal standards as set

2 forth above. Moreover, Plaintiffs raise a genuine issue of material fact as to the adequacy of the

3 OCR process to resolve any claims. Moreover, the evidence suggests that Defendants never advised

4 the OCR that the women previously competed against women in the program, not men. (ADF 24,

5 31, 33) These facts certainly prevent Defendants from relying on this process to establish qualified

6 immunity on the constitutional claim on summary judgment.

7

Defendants rely on Vasquez v. De La Rosa, 414 F. Supp. 2d 124, 133 (D.P.R. 2006) for the

8 premise that reliance on the OCR settlement agreement was reasonable. However, Vasquez is

9 readily distinguishable. In Vasquez, plaintiffs alleged that they were terminated based on their

10 political affiliation in violation of due process. Id. at 127. The court found sufficient evidence that

11 plaintiffs’ constitutional rights were violated, but held that defendants’ decision to terminate

12 plaintiffs’ employment was not unreasonable because defendants initiated the terminations due to

13 concerns that plaintiffs’ appointments violated existing law. Id. at 132-33. Conflicting mandates of

14 the law, combined with the fact that the defendants conducted a thorough internal investigation, and

15 the fact that the Secretary of Justice, a human resources expert, and an external legal advisor all

16 recommended the same course of action distinguish Vasquez from this case. Defendants failed to

17 conduct an independent investigation into the female wrestlers’ allegations and failed to assess these

18 complaints, despite their knowledge that they were providing women fewer athletic opportunities

19 overall. The Vasquez defendants were concerned that the plaintiffs’ job appointments violated state

20 law, which the court found to be a valid justification for the terminations. Id. at 127. Here,

21 defendants have offered no such justification.

22

Plaintiffs allege sufficient facts to establish not only a constitutional violation, but also a right

23 that was clearly established in 2000. Accordingly, the Court should reject Defendants’ qualified

24 immunity defense.

25

C. The Court Should Also Deny Summary Judgment Because It Has Already

26

Considered and Rejected Defendants’ Timeliness Challenge to Plaintiffs Equal Protection Claim.

27

Defendants boldly ignore multiple orders of this Court as well as the Ninth Circuit in seeking

28 35
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1 dismissal of the equal protection claim on statute of limitations grounds yet again. This Court has

2 previously considered and rejected Defendants’ statute of limitations defense when it ruled on their

3 first motion to dismiss. Significantly, the Ninth Circuit also considered and rejected this same

4 argument. Mansourian, supra, 602 F.3d 957.

5

Specifically, the Ninth Circuit found that Plaintiffs in this case had adequately pled that

6 Defendants had alleged an “ongoing violation” that constitute a “systemic violation,” rather than a

7 one-time act. Id. at 974. Remarkably, Defendants acknowledge that the Ninth Circuit found that

8 Plaintiffs alleged a systemic policy of discrimination denying them opportunity each day they

9 attended the university. (Warzecka MPA (Dkt. #452-3) at 7.) Yet despite the ruling of the Ninth

10 Circuit, with this argument regarding timeliness, Defendants (incorrectly) seek to convince this

11 Court that Defendants’ acts were not systemic by presenting the same unmeritorious argument.

12

Similarly, in ruling on the motion to dismiss, this court previously held:

13

Plaintiffs Mansourian [and Mancuso allege that they] are current UCD

14

students who are currently being subjected to Defendants’ allegedly sex discriminatory practices. (Compl. [Dkt. #1] at ¶¶ 9-11, 22, 85-86, 88, 89.) As

15

UCD students, their claims accrue each and every day they are denied equal

access to athletic participation and scholarship opportunities. At the time

16

Plaintiffs filed the instant complaint, Plaintiffs allege they should have been

wrestling for UCD and receiving all the varsity benefits and scholarships

17

provided to male wrestlers but Defendants refused, and continue to refuse, to

18

date, to allow their participation. (Id. at ¶¶ 9-12, 32, 42, 66, 88-89.)

19 (Dkt. 25.) This Court then concluded that Plaintiffs’ allegations thus “sufficiently state facts within

20 the applicable statute of limitations (one or two years) to sustain claims under Section 1983. (Id.)

21

To side-step this Court’s previous order on the motion to dismiss, Defendants point the Court

22 to its order on their motion for judgment on the pleadings. That order, however, did not address the

23 statute of limitations on Plaintiffs’ equal protection claim at all. The Court declined Defendants’

24 request to revisit this ruling on their motion for judgment on the pleadings. (Dkt. #376.)

1. The Fact that Plaintiff’s (Non-existent) Unequal Treatment Claim may

25

have been Time-barred is Irrelevant to the Timeliness of Plaintiffs’ Equal

26

Protection Claim.

27

Defendants now try to take a fourth bite at the apple, contending that Plaintiffs’ equal

28 protection claim against the Defendants is time-barred because this Court determined that Plaintiffs’

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1 Title IX unequal treatment claim is time-barred. This argument is without merit. Significantly, 2 Plaintiffs never alleged a Title IX equal treatment claim.5 Moreover, whatever conclusion this Court

3 reached with respect to Plaintiffs’ (non-existent) equal treatment claim under Title IX, it has held

4 that Plaintiffs’ Title IX ineffective accommodation claim is timely. (Dkt. # 25.) The allegations in

5 the complaint that support Plaintiffs’ ineffective accommodation claim are the same ones that

6 support Plaintiffs’ equal protection claim, which are the same allegations upon which the district

7 court relied in rejecting Defendants’ statute of limitations defense the first time, i.e., that Plaintiffs

8 were being denied equal access to athletics each and every day they were students at UCD.

9 (Dkt. # 1.) Defendants’ failure to seek reconsideration of this finding is fatal to its request that the

10 Court do so now.

11

2. Disputed and Undisputed Facts Establish that Each Individual

Defendants Created, Participated in, and Maintained the Ongoing Policy

12

of Discrimination Against the Plaintiffs.

13

Defendants argument that, notwithstanding this Court’s and the Ninth Circuit’s ruling that

14 UCD’s discriminatory acts against the Plaintiffs were ongoing, the acts of the individual Defendants

15 are one-time, is nonsensical. As the facts in this case illustrate, Plaintiffs allege that Defendants

16 were the policy-makers for UCD who implemented and then continued to enact decisions that denied

17 Plaintiffs the ongoing opportunity to wrestle. (See, e.g., ADF 18, 65, 76-79, 101-102, 126, 133.)

18 See also Heyne v. Metropolitan Nashville Public Schools, 686 F. Supp. 2d 724, 733 (2009) (holding

19 that individual employees who enforced school district’s policy that allegedly violated equal

20 protection could be held liable). Thus, the contention that these acts were systemic and ongoing by

21 UCD, yet one-time acts that could be time-barred for the individual Defendants, is entirely

22 inconsistent.

23

Plaintiffs alleged that Defendants’ acts in this regard created a discriminatory policy of

24 failing to provide equal athletic participation opportunities to women in violation of the Equal

25

5 As Plaintiffs have indicated, they did not plead a Title IX unequal treatment case. Unequal

26 treatment claims look to whether students who already play varsity athletics are treated equally in

several specific categories delineated in the regulations, e.g., equipment, scheduling, traveling, and

27 medical and training services. See 34 C.F.R. § 106.41(c).

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1 Protection Clause. (Dkt. # 1.) Plaintiffs were still students, and thus were continuing to be denied

2 equal opportunities, at the time the complaint was filed. It is axiomatic that a plaintiff who is being

3 harmed by a facially discriminatory policy at the time she has filed a lawsuit challenging that policy

4 has pled a timely claim. See, e.g., E.E.O.C. v. Local 350, Plumbers & Pipefitters, 998 F.2d 641, 645

5 (9th Cir. 1992) (holding that facially discriminatory policy may be challenged at any time); Reed v.

6 Lockheed Aircraft Corp., 613 F.2d 757, 760-61 (9th Cir. 1980) (holding that plaintiff stated timely

7 claim by alleging policy of discrimination under Title VII that pervaded employer’s personnel

8 decision).

9

Defendants only cite inapposite case law. For example, their reliance on Cherosky v.

10 Henderson, 330 F.3d 1243 (9th Cir. 2003), is misplaced. Cherosky involved the specific denial of a

11 request for accommodation that the parties agreed occurred outside of the limitations period. Id. at

12 1247. Moreover, the reasoning of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101

13 (2002) with respect to “discrete acts” such as a denial of a promotion, does not extend to situations

14 where, as here, individuals are being subjected to an ongoing policy of discrimination.

15

Because Plaintiffs had a right each and every day of their enrollment to equal access to

16 educational benefits, their equal protection claim continued to accrue until they left UCD. As each

17 Defendants’ acts created the policy and continued to deny Plaintiffs the equal opportunity to

18 participate in athletics, the individual Defendants’ acts are not time-barred.

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

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1

VI. CONCLUSION

2

For all of the foregoing reasons, the Court should deny the motions for summary judgment

3 by Defendants’ Vanderhoef, Franks, Warzecka, and Gill-Fisher seeking judgment as a matter of law

4 on Plaintiffs’ claim that they violated their constitutional rights. Plaintiffs also request that the Court

5 decline to afford any Defendants qualified immunity from suit on these motions.

6 DATED: November 9, 2010 7 8

Respectfully submitted,
THE STURDEVANT LAW FIRM A Professional Corporation

9

EQUAL RIGHTS ADVOCATES

10

DUCKWORTH PETERS LEBOWITZ

11

OLIVIER LLP

12

EQUITY LEGAL

13

By: /s/ Noreen Farrell

Noreen Farrell

14

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28 39
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 Case 2:03-cv-02591-KJM -EFB Document 541 Filed 04/26/11 Page 1 of 20

1 James C. Sturdevant, SBN 94551 (jsturdevant@sturdevantlaw.com) Whitney Huston, SBN 234863 (whuston@sturdevantlaw.com)
2 THE STURDEVANT LAW FIRM A Professional Corporation
3 354 Pine Street, Fourth Floor San Francisco, CA 94104
4 Telephone:(415) 477-2410 Facsimile: (415) 477-2420
5 Noreen Farrell, SBN 191600 (nfarrell@equalrights.org)
6 Jora Trang, SBN 218059 (jtrang@equalrights.org) EQUAL RIGHTS ADVOCATES
7 100 Bush Street, Suite 1800 San Francisco, CA 94105
8 Telephone:(415) 621-0672 Facsimile: (415) 621-6744
9 Monique Olivier, SBN 190385 (monique@dplolaw.com)
10 DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 Bush Street, Suite 1800
11 San Francisco, CA 94104 Telephone:(415) 433-0333
12 Facsimile: (415) 449-6556

13 Kristen Galles (SBN 148740) (kgalles@comcast.net) EQUITY LEGAL
14 10 Rosecrest Avenue Alexandria, VA 22301
15 Telephone: (703) 683-4491

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

18

[Sacramento Division]

19 AREZOU MANSOURIAN; LAUREN MANCUSO; and CHRISTINE WING-SI NG,
20 Plaintiffs,
21 vs.
22 REGENTS OF THE UNIVERSITY OF
23 CALIFORNIA, et al.

24

Defendants.

25

26

CASE NO. S-03-2591 FCD EFB

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION AND/OR CLARIFICATION

Date: Time: Courtroom: Judge:

May 20, 2011 1:30 pm 2 Hon. Frank C. Damrell, Jr

Complaint filed: December 18, 2003

Trial date:

April 26, 2011

27

28

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION AND/OR CLARIFICATION; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-KJM -EFB Document 541 Filed 04/26/11 Page 2 of 20

1 2 I.

TABLE OF CONTENTS INTRODUCTION ...............................................................................................................1

3 II. 4 5 III. 6 7

PROCEDURAL BACKGROUND AND PRIOR COURT RULINGS REGARDING THE STATUTE OF LIMITATIONS..........................................................1
ARGUMENT .......................................................................................................................5
A. The Law Of The Case Doctrine And The Ninth Circuit’s Mandate Command The Conclusion That Plaintiffs’ Equal Protection Claims Are Timely. ................................................................................5

8 9 10 11 12 IV.

B. The Statute Of Limitations Does Not Bar Any Portion Of Plaintiffs’ Equal Protection Claims Because They Arise From A Systemic, Facially Discriminatory Policy And Not A Single Or A Series Of Discrete Acts....................................................................8
C. Intervening Law Clarifies That Ledbetter Does Not Apply Here..........................13
CONCLUSION..................................................................................................................15

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Bazemore v. Friday,

4

478 U.S. 385, 106 S. Ct. 3000 (1986)................................................................................12

5 Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998) .............................................................................................7
6

7

Beasley v. Ala. State University, 966 F. Supp. 1117 (M.D. Ala. 1997) .................................................................................11

8 Californians for Disability Rights, Inc. v. California Department of Trans.,

9

2009 WL 2982840 (N.D. Cal. Sept. 14, 2009) ..................................................................10

10 Carroll v. Nakatani,

11

342 F.3d 934 (9th Cir. 2003) ...............................................................................................2

12 Crowley v. Peterson, 206 F. Supp. 2d 1038 (C.D. Cal. 2002) ...............................................................................8

13

14

Doe v. Chao, 511 F.3d 461 (4th Cir. 2007) ...............................................................................................6

15 Douglas v. Cal. Department of Youth Authority,

16

271 F.3d 812 (9th Cir.),

amended by, 271 F.3d 910 (9th Cir. 2001) ........................................................................10

17

18

E.E.O.C. v. Local 350, Plumbers & Pipefitters, 998 F.2d 641 (9th Cir. 1992) .............................................................................................11

19 Eichman v. Fotomat Corp.,

20

880 F.2d 149 (9th Cir. 1989) ...............................................................................................5

21 Fitzgerald v. Barnstable Schools Committee,

22

555 U.S. 246, 129 S. Ct. 788 (2009)....................................................................................4

23

Groesch v. City of Springfield, Ill, --- F.3d --- 2011, WL 1105593 (7th Cir. Mar. 28, 2011).....................................................2, 14, 15

24

Gutowsky v. County of Placer,

25

108 F.3d 256 (9th Cir. 1997) .......................................................................................10, 11

26 K.S. ex rel P.S. v. Fremont Unified School District,

27

2007 WL 915399 (N.D. Cal. Mar. 23, 2007).....................................................................11

28
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1

Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 127 S. Ct. 2162 (2007)..........................................................2, 12, 13, 14, 15

2 Maldonado v. Harris,

3

370 F.3d 945 (9th Cir. 2004) .............................................................................................13

4 Mansourian v. Regents of University of Cal.,

5

602 F.3d at 957 (2010).................................................................................................1, 4, 7

6 Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703 (9th Cir. 1990) ...............................................................................................5

7

8

Minidoka Irrigation District v. Department of Interior of U.S., 406 F.3d 567 (9th Cir. 2005) ...............................................................................................8

9 Miss. University for Women v. Hogan,

10

458 U.S. 718, 1102 S. Ct. 3331 (1982)................................................................................9

11 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002)................................................................................12
12

13

Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1995) ...............................................................................................6

14

Old Person v. Brown,

15

312 F.3d 1036 (9th Cir. 2002) .............................................................................................5

16 Palmer v. Board of Education of Community Unit School District,

17

46 F.3d 682 (7th Cir. 1995) ...............................................................................................10

18 RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045 (9th Cir. 2002) ...........................................................................................13
19

20

Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir. 1980) ............................................................................................11

21 Smith v. Mass.,

22

543 U.S. 462, 125 S. Ct. 1129 (2005)..................................................................................2

23 Springfield v. United States,

24

873 F. Supp. 1403 (S.D. Cal. 1994), overruled on other grounds, 88 F.3d 750 (1996).................................................................8

25 Thomas v. Bible,

26

983 F.2d 152 (9th Cir. 1993) ...............................................................................................5

27 United States v. LoRusso,

28

695 F.2d 45 (1982)...............................................................................................................2

iii

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR

RECONSIDERATION AND/OR CLARIFICATION; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-KJM -EFB Document 541 Filed 04/26/11 Page 5 of 20

1

United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) ...............................................................................................5

2 United States v. Pend Oreille County Public Utility District No. 1,

3

135 F.3d 602 (9th Cir. 1998) ...............................................................................................7

4 United States v. Phillips,

5

367 F.3d 846 (9th Cir. 2004) ...............................................................................................5

6 United States v. Thrasher, 483 F.3d 977 (9th Cir. 2007) ...............................................................................................6

7

8

United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996)..................................................................................9

9

10

STATE CASES

11 Angelucci v. Century Supper Club, 41 Cal. 4th 160 (2007) .......................................................................................................13
12

13 FEDERAL STATUTES & RULES

14

Federal Rules of Civil Procedure

15

Rule 59(e).............................................................................................................................2

16

Rule 60(b) ............................................................................................................................2

17

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009)..................................................................................2

18

28 U.S.C.

19

§ 2106...................................................................................................................................6

20 42 U.S.C.

21

§ 1983...................................................................................................................................1 § 2000e-5(e)(3)(A).............................................................................................................14

22

23

24

25

26

27

28
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1 I. INTRODUCTION

2

In its December 8, 2010, order on the motion for summary judgment by the individual

3 Defendants on Plaintiffs’ Equal Protection Clause claim (arising under 42 U.S.C. § 1983), this Court

4 held that this claim was timely insofar as it was based on a claim of systemic discrimination

5 impacting Plaintiffs through their filing of this case and graduation. (Dkt. 509.) This motion does

6 not seek to disturb that ruling. Rather, Plaintiffs move the Court to either clarify or reconsider its

7 finding that part of that claim, specifically the removal of Plaintiffs from the wrestling program and

8 the imposition of Defendants’ policy requiring women to wrestle-off against men, are time-barred,

9 even though the Court found that evidence of such events would be relevant to Plaintiffs’ claims.

10 Given discussions with Defendants in pretrial preparations, Plaintiffs think it important to clarify this

11 portion of the Court’s order and to ask the Court’s reconsideration of it based on the arguments set

12 forth herein.

13

First, procedurally, the doctrines of law of the case and mandate precluded the Court from

14 reopening the statute of limitations issue. Both the Ninth Circuit and this Court previously held that

15 Plaintiffs’ Equal Protection claims are timely because they arise from a systemic and facially

16 discriminatory policy against women at the University of California at Davis (“UCD”) that took

17 various forms against Plaintiffs specifically during their time at UCD. (Dkt. 25 at 15:23-16:1.)

18 Mansourian v. Regents of Univ. of Cal., 602 F.3d at 957, 974 (2010). These holdings are the law of

19 the case that this Court is bound to follow. Plaintiffs are entitled, therefore, to seek redress for all of

20 the ways in which Defendants’ systemic violations of equal protection injured them, including

21 Defendants’ removal of Plaintiffs from the wrestling program and their ongoing refusal to reinstate

22 Plaintiffs and allow them to play against other women according to freestyle rules, as they had been

23 permitted to do.

24

Second, substantively, no part of Plaintiffs’ Equal Protection claims are barred because

25 Plaintiffs challenge a systemic, facially discriminatory policy that took various forms, rather than

26 one or two “discrete” acts. Defendants’ removal of women from the roster and the 2001 wrestle-off

27 were part and parcel of their systemic discrimination against Plaintiffs and other women in the

28
1
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1 provision of athletic opportunities. Indeed, Defendants’ policy of exclusion was renewed each year

2 when it continued to deny Plaintiffs and other women female participation opportunities in wrestling

3 and other sports, even after Plaintiffs filed suit as current students demanding this equal treatment.

4 A claim for damages arising from refused wrestling opportunities is necessarily timely in light of

5 these circumstances. The various ways in which Defendants violated Plaintiffs’ rights should not be

6 parsed out for the purpose of damages or otherwise because all form the systemic policy of

7 ineffective accommodation and discrimination challenged in this case. The Court’s reading

8 otherwise was in error.

9

Third, the Court’s decision erroneously relies upon Ledbetter v. Goodyear Tire & Rubber

10 Co., Inc., 550 U.S. 618, 628, 127 S. Ct. 2162 (2007). Not only was that case retroactively

11 overturned by the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), a

12 recent decision by the Seventh Circuit provides persuasive guidance on why the reasoning of

13 Ledbetter no longer applies to Plaintiffs’ Equal Protection claims. See Groesch v. City of

14 Springfield, Ill, --- F.3d ---, 2011 WL 1105593, at *5-7 (7th Cir. Mar. 28, 2011). While not

15 controlling precedent, this intervening case warrants consideration by this Court. Ledbetter’s

16 holding that victims of discrimination cannot recover for the effects of past discrimination, even if it

17 ever was applicable here, is no longer viable.

18

This Court “has the inherent power to reconsider and modify its interlocutory orders prior to

19 the entry of judgment.” Smith v. Mass., 543 U.S. 462, 125 S. Ct. 1129, 1139 (2005) (quoting United

20 States v. LoRusso, 695 F.2d 45, 53 (1982)). The standards for reconsideration of final judgments

21 and orders under Federal Rules of Civil Procedure, rules 59(e) and 60(b) provide guidance to

22 reconsideration of interlocutory orders. Reconsideration is appropriate where (1) the court is

23 presented with newly-discovered evidence; (2) the court “committed clear error” or (3) there is an

24 intervening change in the controlling law. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).1

25 1 There is no deadline for a motion for reconsideration of a court’s interlocutory order. In the
26 process of preparing for trial, it has become evident that Defendants intend to seek exclusion of

27

evidence related to their removal of Plaintiffs and other women from the wrestling program, and their imposition of the wrestle-off policy that continued to apply to Plaintiffs until they graduated.

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1 Here, where the timeliness of Plaintiffs’ Equal Protection claims had been conclusively determined

2 by this Court and by the Ninth Circuit; not applying the law of the case to Defendants’ fourth

3 attempt to defend against this claim on procedural statute of limitations grounds constitutes clear

4 error. In addition, reconsideration is warranted by an intervening change in the law. If allowed to

5 stand, the Court’s ruling with respect to the statute of limitations risks improperly limiting Plaintiffs’

6 right to recover damages for the harm they suffered at the hands of Defendants. Plaintiffs

7 respectfully request that the Court reconsider its ruling and find that Plaintiffs’ Equal Protection

8 claims are, in their entirety, timely.

9 II. PROCEDURAL BACKGROUND AND PRIOR COURT RULINGS REGARDING

THE STATUTE OF LIMITATIONS 10
Defendants first argued that Plaintiffs’ Equal Protection claims are barred by the statute of

11 limitations in 2004 when they filed their initial motion to dismiss in this case. At that time, this

12 Court rejected the argument, holding that Plaintiffs:

13

are current UCD students who are currently being subjected to defendants’ allegedly

14

sex discriminatory practices. (Complaint [Dkt. 1] ¶¶ 9-11, 22, 85-86, 88, 89.) As

UCD students, their claims accrue each and every day they are denied equal access to

15

athletic participation and scholarship opportunities. (Id. at ¶¶ 22, 66, 88-89, 133, 159.)

16

At the time plaintiffs filed the instant complaint, plaintiffs allege they should have been wrestling for UCD and receiving all the varsity benefits and scholarships

17

provided to male wrestlers but defendants refused, and continue to refuse, to date, to allow their participation. (Id. at ¶¶ 9-12, 32, 42, 66, 88-89.)

18

(Dkt. 25 at 12:2-13 (footnote omitted).) It further concluded that Plaintiffs’ allegations thus 19

“sufficiently state facts within the applicable statute of limitations (one or two years) to sustain 20

claims under Section 1983.” (Id. at 15:23-16:1.) 21

On June 5, 2007, Defendants moved for judgment on the pleadings. Defendants argued that 22

Plaintiffs’ Equal Protection claims were subsumed by Title IX. Defendants also asked the Court to 23

revisit its earlier conclusion that Plaintiffs’ claims were timely. (Dkt. 189 at 5:20-7:8; Dkt. 226 at 24

25 (Footnote continued from previous page)

(See generally Defendants’ Points of Law in the Joint Pretrial Statement (Dkt. 533 at 18:6-20:10).) 26 This position has highlighted the need to seek reconsideration/clarification of this issue.

27

Additionally, the Groesch opinion was just issued on March 28, 2011. Plaintiffs’ motion is therefore timely and results in no prejudice to Defendants.

28

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1 33:26-28 n.15.) The Court granted Defendants’ motion, dismissing Plaintiffs’ Equal Protection

2 claim without addressing Defendants’ renewed statute of limitations argument.

3

On January 11, 2008, Defendant Regents filed a motion which argued that it did not have

4 notice of its own discriminatory acts and did not respond to them with deliberate indifference. (Dkt.

5 280-308.) The Court granted the motion, dismissing the Title IX claim. (Dkt. 368.) Plaintiffs then

6 filed a notice of appeal covering the dismissal of both their Title IX and their Equal Protection

7 claims. (Dkt. 376.)

8

In the meantime, the United States Supreme Court issued its decision in Fitzgerald v.

9 Barnstable Schools Committee, 555 U.S. 246, 129 S. Ct. 788 (2009), which adopted Plaintiffs’

10 position that constitutional Equal Protection Clause are not subsumed by statutory Title IX claims.

11 Although Defendants conceded that the intervening case required reinstatement of Plaintiffs’ Equal

12 Protection claims, they asked the appellate court to uphold the judgment on the grounds that they

13 were untimely.2 The Ninth Circuit refused, holding that Plaintiffs’ claims are timely. Mansourian,

14 602 F.3d at 974.

15

Upon remand, Defendants filed their fourth set of dispositive motions, this time asserting

16 qualified immunity on Plaintiffs’ Equal Protection claims. Defendants also reasserted their statute of

17 limitations defense for a fourth time. This Court rejected Defendants’ qualified immunity defense.

18 It also rejected Defendants’ statute of limitations argument with respect to Plaintiffs’ claims that

19 Defendants violated the Equal Protection Clause by denying women equal access to athletic

20 participation opportunities. (Dkt. 509 at 23:1-25:5.) However, the Court found Plaintiffs’ claims are

21 time-barred to the extent that they are based upon Defendants’ removal of Plaintiffs from the

22 wrestling program and Defendants’ application of the wrestle-off policy. (Id. at 20:5-22:11.)

23

24

2 It is worth noting that, in raising the statute of limitations defense with the appellate court,

Defendants failed to inform the Ninth Circuit that this Court had already considered and rejected this

25 defense when it ruled on their first motion to dismiss, and failed to include that relevant order for the

Ninth Circuit’s review. Instead, Defendants pointed to this Court’s order on the motion for

26 judgment on the pleadings and stated that this Court “did not rule on whether the section 1983 claim

was time-barred,” which, as this Court is aware, is patently incorrect. (Declaration of Monique

27 Olivier (“Olivier Decl.”), filed herewith, Ex. A.)

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1 III. ARGUMENT

2

Defendants’ efforts to have this Court rule in their favor on the grounds of statute of

3 limitations gives life to the old adage “If at first you don’t succeed, try, try again.” Defendants have

4 raised the same statute of limitations defense four times in this case. While their persistence may be

5 admirable, the most recent order on this issue procedurally violates the doctrines of law of the case

6 and remand, substantively misapplies the law, and completely overlooks Plaintiffs’ claims as they

7 existed in 2003 rather than 2001. These errors threaten to deprive Plaintiffs a portion of the

8 remedies to which they are entitled as full redress for the injuries they have suffered.

9

A. The Law of the Case Doctrine and the Ninth Circuit’s Mandate Command the

Conclusion that Plaintiffs’ Equal Protection Claims Are Timely. 10
Both this Court and the Ninth Circuit have previously held that Plaintiffs’ Equal Protection

11 claims are timely in their entirety because they arise from a systemic and facially discriminatory

12 policy against women at UCD that took various forms against Plaintiffs specifically during their time

13 at UCD. These holdings are the law of the case that this Court is bound to follow. Plaintiffs are

14 entitled, therefore, to seek redress for all of the ways in which Defendants’ systemic violations of

15 equal protection injured them, including Defendants’ removal of Plaintiffs from the wrestling

16 program.

17 Under the “law of the case” doctrine, “a court is generally precluded from reconsidering an

18 issue that has already been decided by the same court, or a higher court in the identical case.”

19 Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). Courts should reopen a previously decided
20 matter in only three instances: (1) the first decision was clearly erroneous and would result in

21 manifest injustice; (2) an intervening change in the law has occurred; or (3) the evidence on remand

22 was substantially different. Eichman v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir. 1989); Milgard

23 Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990).

24 The law of the case doctrine is “a judicial invention designed to aid in the efficient operation

25 of court affairs,” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000) (quoting

26 Milgard Tempering, Inc., 902 F.2d at 715). It is “founded upon the sound public policy that

27 litigation must come to an end,” Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002). “Issues
28

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1 that a district court determines during pretrial motions become law of the case.” United States v.

2 Phillips, 367 F.3d 846, 856 (9th Cir. 2004) (citation omitted).

3

The law of the case doctrine goes hand in hand with the mandate rule, which provides that

4 “[w]hen a case has been decided by an appellate court and remanded, the court to which it is

5 remanded must proceed in accordance with the mandate and such law of the case as was established

6 by the appellate court.” Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995); see 28

7 U.S.C. § 2106 (“The Supreme Court or any other court of appellate jurisdiction may affirm, modify,

8 vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for

9 review, and may remand the cause and direct the entry of such appropriate judgment, decree, or

10 order, or require such further proceedings to be had as may be just under the circumstances.”). “The

11 mandate rule serves two key interests, those of hierarchy and finality. … The principle of hierarchy

12 is no empty shell. It protects the very value and essential nature of an appeal, ….” Doe v. Chao, 511

13 F.3d 461, 465 (4th Cir. 2007). “This is not to say that appellate courts are somehow superior or

14 always correct, but only that our system has been served well by the availability of review and the

15 need for appropriate review to be final.” Id.; see United States v. Thrasher, 483 F.3d 977, 983 (9th

16 Cir. 2007) (Berzon, J., concurring) (“there are … very limited circumstances … in which the district

17 court may not be required to follow the directions we have given in our mandate”).

18

Based upon the doctrines of law of the case and mandate, this Court is bound by its prior

19 determination, and the Ninth Circuit’s determination, that Plaintiffs’ Equal Protection claims are

20 timely.

21

Defendants first argued that Plaintiffs’ Equal Protection claims were time-barred in their

22 original motion to dismiss. This Court disagreed, finding that Plaintiffs “claims accrue each and

23 every day they are denied equal access to athletic participation.” (Dkt. 25 at 12:5-7.) Defendants

24 made the exact same argument to the Ninth Circuit as an alternative basis to affirm judgment in their

25 favor on Plaintiffs’ Equal Protection claims. The Ninth Circuit considered and rejected it.

26 Specifically, the Ninth Circuit held:

27

UCD first contends that the § 1983 claim for damages is precluded by the statute of

limitations and that the district court did not address this argument. In fact, the

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1

district court considered and rejected the statute of limitations defense as to both the Title IX effective accommodation and § 1983 equal protection claims in response to

2

UCD’s original motion to dismiss. The court held that because the students claimed

that they were “currently being subjected to defendants’ allegedly sex discriminatory

3

practices . . . their claims accrue each and every day they are denied equal access to

athletic participation.” 4

5

The district court was quite correct. Section 1983 “is presumptively available to remedy a state’s ongoing violation of federal law.” AlohaCare v. Haw. Dep’t. of

6

Human Servs., 572 F.3d 740, 745 (9th Cir. 2009) (quotation omitted). A plaintiff has adequately pled an ongoing claim if she can “show a systematic policy or practice

7

that operated, in part, within the limitations period − a systematic violation.” Douglas

v. Cal. Dep’t. of Youth Auth., 271 F.3d 812, 822 (9th Cir. 2001) (quotation omitted);

8

see also Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997) (holding

9

plaintiff’s § 1983 claims timely because she alleged “widespread policy and practices of discrimination [that] continued every day of her employment, including days that

10

fall within the limitation period”). A university’s ongoing and intentional failure to provide equal athletic opportunities for women is a systemic violation. As the

11

plaintiffs were students and therefore subject to the policy that allegedly

discriminated on the basis of sex at the time they filed their complaint, their § 1983

12

claim is not time-barred.

13 Mansourian, 602 F.3d at 973-74. In a footnote, the Ninth Circuit added: “Nat’l R.R. Passenger

14 Corp. v. Morgan, 536 U.S. 101, 114 (2002), held that each “[d]iscrete act[ ] such as termination,

15 failure to promote, denial of transfer or refusal to hire … constitutes a separate actionable ‘unlawful

16 … practice’” for the purposes of triggering the statute of limitations period in a Title VII case.

17 Morgan left undisturbed our case law governing continuing systemic violations.” Id. at 974 n.22.

18

Thus, the Ninth Circuit held – without qualification or limitation – that Plaintiffs’ Equal

19 Protection claims are timely. The Ninth Circuit did not find any part of Plaintiffs’ claims barred;

20 rather, it expressly found the claims timely. It remanded the case with this mandate.

21

Nevertheless, Defendants again made the same arguments based upon the same facts in its

22 2010 motions for summary judgment to this Court on remand. In doing so, Defendants did not argue

23 (nor could they), that this Court should revisit the law of the case because an exception to that

24 doctrine applied here, i.e., the prior ruling was clearly erroneous, there was an intervening change in

25 the law, or the evidence on remand was substantially different. Quite to the contrary, Defendants

26 presented no basis whatsoever for this Court to stray from the law of the case or the mandate of the

27 Ninth Circuit. See United States v. Pend Oreille County Public Utility Dist. No. 1., 135 F.3d 602,

28
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1 608 (9th Cir. 1998) (district court properly applied law set forth in first appellate decision as law of

2 the case, and its consequent holding would not be disturbed on appeal); Bean v. Calderon, 163 F.3d

3 1073, 1078 (9th Cir. 1998) (“Heeding the interests of consistency and finality … we accordingly

4 decline to disturb our own previous resolution of this procedural dispute.”). Accordingly, this Court

5 should not have revisited the statute of limitations issue, let alone partially reversed itself (and the

6 Ninth Circuit).

7

Indeed, examples abound in which courts have found that prior rulings on the statute of

8 limitations are covered by the law of the case doctrine and should be undisturbed absent exceptional

9 circumstances. See, e.g., Minidoka Irrigation Dist. v. Dep’t of Interior of U.S., 406 F.3d 567, 573

10 (9th Cir. 2005) (holding that court was bound by law of the case to follow earlier appellate panel

11 holding regarding statute of limitations, and plaintiff could not demonstrate any applicable exception

12 to law of the case); Crowley v. Peterson, 206 F. Supp. 2d 1038, 1041 (C.D. Cal. 2002) (refusing to

13 reconsider earlier order that the statute of limitations was tolled where plaintiffs failed to raise new

14 facts relevant to the issue); Springfield v. United States, 873 F. Supp. 1403, 1407-08 (S.D. Cal. 1994)

15 (prior ruling in district court on motion to dismiss with respect to statute of limitations was law of

16 the case that could not be revisited), overruled on other grounds, 88 F.3d 750 (1996). No such

17 “exceptional circumstances” apply here. Nor did Defendants raise any.

18

The law of the case doctrine puts the burden on Defendants to articulate a legally appropriate

19 reason for allowing the Court to reverse its prior holdings. Defendants failed to offer any reasons,

20 let alone cognizable ones. They merely made the exact same arguments they unsuccessfully had

21 made three times before. Plaintiffs’ Equal Protection claims are timely in their entirety. Thus, it was

22 inappropriate for the Court to address the argument, let alone reverse it. Moreover, the Ninth Circuit

23 mandate could not be clearer and this Court remains bound by it. Plaintiffs Equal Protection claims

24 are timely in their entirety.

25

B. The Statute of Limitations Does not Bar any Portion of Plaintiffs’ Equal

Protection Claims Because They Arise from a Systemic, Facially Discriminatory

26

Policy and not a Single or a Series of Discrete Acts.

27

This Court has held Plaintiffs’ Equal Protection claim is timely insofar that it relies on a

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1 claim that Plaintiffs were harmed by systemic and facially discriminatory policy depriving them

2 equal athletic opportunities through graduation. Plaintiffs do not ask for reconsideration of this

3 portion of the Court’s December 2010 order. The Court, however, held certain examples of this

4 ongoing policy time-barred, based on its finding that these were discrete acts outside the applicable

5 statute of limitations. In reaching this decision, the Court indicated its view that the Ninth Circuit

6 “did not address the court’s rulings regarding plaintiffs’ claims based upon discrete acts.” (Dkt. 509

7 at 18 n.15.) However, Plaintiffs’ Equal Protection claims are not, in fact, “based upon” discrete acts.

8 Rather, Plaintiff contend that Defendants engaged in systemic discrimination in denying its female

9 students equal athletic opportunities for decades and that this policy was applied to Plaintiffs in

10 various forms throughout their years at UCD.

11

The Court’s ruling with respect to the statute of limitations of the Equal Protect claim reflects

12 a fundamental misreading of Plaintiffs’ claims and applicable law. Plaintiffs’ Equal Protection

13 claims are not barred by any statute of limitations because they arise from Defendants’ systemic,

14 facially discriminatory policies against female students. Defendants discriminate against female

15 students by segregating athletic teams by sex and then by allocating too few of those sex segregated

16 opportunities to women. The discriminatory allocation recurs each school year as Defendants decide

17 which sports to sponsor for each sex and how many athletes to allow on each team for each sex. As

18 part of this unlawful policy, Defendants discriminated against Plaintiffs and other women by

19 refusing to allow them female wrestling participation opportunities, wrestling against women using

20 freestyle rules. Defendants persisted in this discriminatory policy of exclusion by refusing to allow

21 such opportunities, even after Plaintiffs filed suit as current students demanding them.

22

This policy is no different from the facially discriminatory policies of the Mississippi

23 University for Women, which barred men but not women from its nursing school, and the Virginia

24 Military Institute, which barred women but not men from admission because of its adversative

25 military training methods. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 1102 S. Ct. 3331 (1982);

26 United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996). Those students were not barred

27 from challenging the schools’ facially discriminatory policies just because those policies had existed

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1 since the schools opened (over 100 years in the case of Virginia Military Institute). The plaintiffs

2 therein timely filed the cases because the policies still existed when they wanted to enroll but were

3 barred from doing so because of those discriminatory policies.3

4

Rather than constitute “discrete” or separable acts from the policy of denying equal

5 opportunity, Defendants’ removal of women from the varsity wrestling program and their continued

6 refusal to provide female opportunities (including through the wrestle-off policy) are part and parcel

7 of Plaintiffs’ claim of a facially discriminatory and systemic policy of discrimination that was

8 ongoing when this case was filed.4 Those events were squarely before the Ninth Circuit as part of

9 the factual predicate for Plaintiffs’ Equal Protection claims. Yet, the appellate court did not

10 determine that some events were actionable while others were not; instead, it held that Plaintiffs’

11 claims were timely. Excising those events from Plaintiffs’ Equal Protection claims is, thus,

12 improper.

13

The Ninth Circuit and courts within the Ninth Circuit have understood and applied this

14 concept accordingly. See Douglas v. Cal. Dep’t. of Youth Auth., 271 F.3d 812, 822 (9th Cir.) (“if

15 both discrimination and injury are ongoing, the limitations clock does not begin to tick until the

16 invidious conduct ends” (citations omitted)), amended by 271 F.3d 910 (9th Cir. 2001); Gutowsky v.

17 County of Placer, 108 F.3d 256, 259 (9th Cir. 1997); see also Californians for Disability Rights, Inc.

18

3 The Seventh Circuit aptly addressed these statute of limitations issues in Palmer v. Bd. of

19

Educ. of Community Unit School Dist., 46 F.3d 682 (7th Cir. 1995). There, the parents of AfricanAmerican children asserted that the school assignment policy which the defendant adopted in 1987

20

amounted to race discrimination. The school raised a statute of limitations defense because the parents did not file the action until 1990. The district court agreed and dismissed the case. The

21

Seventh Circuit reversed, holding that such an application of the statute of limitations would mean that a student assigned to a segregated, inferior school in kindergarten would be condemned to

22

continue in the inferior school environment if the parents failed to challenge the discrimination in the first two years of their children’s education. The court poignantly noted that if the defendant’s view

23

of the statute of limitations were correct, Brown v. Board of Education could not have been possible, because the challenged segregation has existed for over a century. What mattered was that the

24 students were then being subjected to a then-existing discriminatory policy.

4 For example, in reaching its conclusion about the statute of limitations, this Court noted in

25 its order that its analysis might be different if it had found evidence that Defendants continued to use

the wrestle-off policy within the limitations period. (Dkt. 509 at 20-21 n.16.) However, this Court’s

26 focus on the occasion of a “wrestle-off” on October 2001 is misplaced. Challenged here is

Defendants’ facially discriminatory policy of excluding women from an equal number of

27 participation opportunities, in its many forms.

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1 v. California Dep’t. of Trans., 2009 WL 2982840, at *1 (N.D. Cal. Sept. 14, 2009) (“Plaintiffs’ case 2 is based on a systemic policy or practice of discrimination. As such, there is no merit to Defendants’ 3 contention that Plaintiffs are precluded from presenting evidence of non-compliant new construction 4 or alterations occurring more than two (or three) years prior to the filing of the complaint.”); K.S. ex 5 rel P.S. v. Fremont Unified School Dist., 2007 WL 915399, at *4 (N.D. Cal. Mar. 23, 2007) (all of 6 the alleged acts of discrimination against plaintiff, including those before the limitations period, 7 were part of defendant’s policy and practice that resulted in violating plaintiff’s rights and thus were 8 actionable). In Gutowsky, for example, the Ninth Circuit addressed whether a current employee 9 asserted a timely equal protection claim against her employer. The Ninth Circuit noted that plaintiff 10 “presents specific examples of discrimination which ‘are not the basis of her charge of 11 discrimination’ but rather ‘are but evidence that a policy of discrimination pervaded her employer’s 12 personnel decisions. Indeed, Gutowsky contends that the widespread policy and practices of 13 discrimination of which she complains continued every day of her employment, including days that 14 fall within the limitations period.” Gutowsky, 108 F.3d at 260 (citation omitted). Similarly, 15 Defendants’ removal of women from the varsity wrestling program and their imposition of the 16 wrestle-off policy are simply ways in which Defendants enforced their continuing discriminatory 17 policy and practice to deprive Plaintiffs of their opportunity to participate equally in athletics. 18 Plaintiffs should not be precluded from recovering damages for the specific ways in which 19 Defendants’ systemic violations of equal protection injured them. See Beasley v. Ala. State Univ., 20 966 F. Supp. 1117, 1129-30 (M.D. Ala. 1997) (where allegations were that plaintiff’s right to 21 participate in varsity athletics was violated in an ongoing, continual fashion throughout her time as a 22 student and the university made no showing that it ended the discriminatory policy, even after the 23 student ceased participating in the sport, but was still a student, “the alleged violation was renewed 24 or repeated on at least a semester-by-semester basis,” and her claims were timely); see also E.E.O.C. 25 v. Local 350, Plumbers & Pipefitters, 998 F.2d 641, 645 (9th Cir. 1992) (holding that facially 26 discriminatory policy may be challenged at any time); Reed v. Lockheed Aircraft Corp., 613 F.2d 27 757, 760-61 (9th Cir. 1980) (holding that plaintiff stated timely claim by alleging policy of 28
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1 discrimination under Title VII that pervaded employer’s personnel decision).

2

Defendants have never offered any on-point precedent in support of their position. Instead,

3 Defendants try to fit the square peg of individual, Title VII employment discrimination cases into the

4 round hole of the inherently systemic, program-wide discrimination of sex segregated educational

5 athletics. Yet, even the cases upon which Defendants rely expressly state that they do not apply in

6 circumstances such as this. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061

7 (2002); Ledbetter, supra, 550 U.S. 618.

8

Morgan and Ledbetter were decided based upon the plain language of the Title VII statute

9 itself and its unique administrative enforcement scheme, including its unique 300-day limitations

10 period for filing administrative complaints. The Supreme Court noted that by expressly including

11 such a short administrative complaint process in the statute itself, Congress stated its intent to have

12 such cases move along quickly so that employers do not have potential claims hanging over their

13 heads for extended periods of time. No such statutory administrative exhaustion or limitations

14 period exists for Title IX. No such expression of congressional intent exists for Title IX. Nor does it

15 make sense to apply it to sex segregated activities like athletics. Morgan, 536 U.S. at 110-111.

16

Both Morgan and Ledbetter expressly stated that their holdings and reasoning do not apply to

17 cases involving systemic or policy and practice discrimination. Morgan, 536 U.S. at 115 n.9;

18 Ledbetter, 550 U.S. at 633-35. Indeed, Ledbetter expressly reaffirmed the Court’s prior holding in

19 Bazemore v. Friday, 478 U.S. 385, 106 S. Ct. 3000 (1986), which involved an employer’s

20 segregation of employees by race and then its payment of employees at the “White branch” more

21 than its payment of employees at the “Negro branch.” There, the Court held that the longstanding

22 existence of the policy did not excuse the continuance of the discrimination or preclude employees

23 still covered by the policy from challenging it. “To hold otherwise would have the effect of

24 exempting from liability those employers who were historically the greatest offenders.” Bazemore,

25 478 U.S. at 395. The Ledbetter Court went on to state that whenever an employer adopts a “facially

26 discriminatory” pay structure, that policy can be challenged “as long as the structure is used.”

27 Ledbetter, 550 U.S. at 634. The Bazemore facts of segregation by race followed by allocation of

28
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Case 2:03-cv-02591-KJM -EFB Document 541 Filed 04/26/11 Page 18 of 20

1 more money to the “White branch” mirror Defendants’ segregation of athletes by sex and then the

2 allocation of more opportunities to the “male branch” than to the “female branch.” Ledbetter held

3 that its own reasoning did not apply to such situations. Id.

4

The Court’s consideration of the statute of limitations for this claim is not dependent on an

5 affirmative “act.” The absence of opportunities is evidence of a continued discriminatory policy.

6 There is no evidence in the record that Defendants subsequently allowed women to participate in the

7 wrestling program as women wrestling against women using unique freestyle rules. Defendants do

8 not claim otherwise. The law does not require Plaintiffs to engage in the futile act of asking

9 Defendants whether the policy still applies to them when their status, and the existence of the policy,

10 remains unchanged. See Angelucci v. Century Supper Club, 41 Cal. 4th 160, 168-69 (2007) (“We

11 note that the federal Constitution uses the term ‘deny’ in the equal protection clause and other

12 provisions, but we are unaware of any authority supporting the startling proposition that a right

13 acknowledged by these provisions is not ‘denied’ if the victim is a passive sufferer of discrimination

14 rather than a person who expressly demands his or her rights and is refused.”). Moreover, as noted

15 above, Plaintiffs did ask for women’s wrestling opportunities, as women competing against women

16 using unique freestyles rules, when they filed suit. UCD continued to refuse to this request and

17 continued its policy of exclusion through Plaintiffs’ graduation. Where Plaintiffs bring suit to

18 challenge a facially discriminatory policy of exclusion (a policy that includes the continued refusal

19 to provide wrestling opportunities) as a denial of equal protection, that claim must be timely in its

20 entirety. See, e.g., RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1063 (9th Cir. 2002) (facial

21 challenge under First Amendment timely where statute enforced against plaintiffs during limitations

22 period); Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004) (expressing “serious doubts” that a

23 facial challenge to the constitutionality of a statute or policy “can ever be barred by a statute of

24 limitations”).

25

C. Intervening Law Clarifies that Ledbetter Does Not Apply Here.

26

Grounds for reconsideration of this Court’s determination that part of Plaintiffs’ Equal

27 Protection claim is time-barred also exist because of an intervening change in the law. This Court’s

28 order relies upon Ledbetter, 550 U.S. at 628, for the proposition that if a defendant engages in a
13
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION AND/OR CLARIFICATION; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-KJM -EFB Document 541 Filed 04/26/11 Page 19 of 20

1 “series of acts each of which is intentionally discriminatory, then a fresh violation takes place when

2 each act is committed,” but the effects of such conduct “cannot breathe life into prior, uncharged

3 conduct.” Id. (Dkt. 509 at 19:7-17.)

4

Even if the Ledbetter Court itself had not expressly excluded systemic and policy

5 discrimination from its reasoning, Congress mooted its discrete acts and continuing violation

6 reasoning entirely by enacting the Ledbetter Fair Pay Act of 2009.5 In doing so, Congress stated that

7 the Court misperceived congressional intent and thus misapplied the law. It thus made the new law

8 retroactive to the date before the Supreme Court issued the decision, so that it could be applied as if

9 the Supreme Court decision had never been issued.6 Because part of the Court’s holding was

10 retroactively overturned by Congress in 2009, it should not have been relied upon by this Court.

11

The Seventh Circuit recently confirmed that the reasoning of Ledbetter is no longer viable in

12 Groesch, supra, 2011 WL 1105593, at *5-7, holding that there is no “principled reason” to apply the

13 accrual rule established by the Act to Title VII claims, but not extend that rule, and the reasoning

14 behind it, to Equal Protection Clause claims that were subjected to the original Ledbetter decision

15 only by way of analogy to begin with. Id. at *5. Although not controlling, Plaintiffs urge the Court

16 to consider the thoughtful analysis set forth in Groesch, the first appellate opinion to consider the

17 impact of the Ledbetter Act on the Ledbetter decision’s impact on Section 1983 claims. The

18 Seventh Circuit reasoned as follows:

19

if Ledbetter was understood to extend logically to Section 1983 claims, as, for

example, we had earlier understood Morgan’s Title VII reasoning to extend to

20

21

5 The Act amends Title VII by providing that an “unlawful employment practice” occurs in the following situations: (1) “when a discriminatory compensation decision or other practice is

22

adopted,” (2) “when an individual becomes subject to a discriminatory compensation decision or other practice,” and (3) “when an individual is affected by application of a discriminatory

23

compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” 42 U.S.C. § 2000e-

24 5(e)(3)(A).

6 For example, in reaching its conclusion about the statute of limitations, this Court noted in

25 its order that its analysis might be different if it had found evidence that Defendants continued to use

the wrestle-off policy within the limitations period. (Dkt. 509 at 20-21 n.16.) However, this Court’s

26 focus on the occasion of a “wrestle-off” on October 2001 is misplaced. Challenged here is

Defendants’ facially discriminatory policy of excluding women from an equal number of

27 participation opportunities, in its many forms.

28
14
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION AND/OR CLARIFICATION; CASE NO. S-03-2591 FCD EFB

Case 2:03-cv-02591-KJM -EFB Document 541 Filed 04/26/11 Page 20 of 20

1

Section 1983 claims, then we see no reason that the Ledbetter Act would not now restore our pre-Ledbetter precedent and allow us to extend the paycheck accrual rule

2

to Section 1983 claims.

3

* * *

Neither the Ledbetter decision nor the Ledbetter Act addresses constitutional claims

4

asserted under Section 1983. In the absence of any clearer directive, we believe the

5

best course is to treat the Ledbetter Act as removing the Ledbetter decision as an obstacle to following our earlier precedents, which recognized the paycheck accrual

6

rule for all allegations of unlawful discrimination in employee compensation. We hold that the paycheck accrual rule applies to pay discrimination claims under Section

7

1983.

8 Id. at *6 (citations & footnote omitted).

9

The application of Ledbetter to this case, which does not involve pay disparities at all but

10 rather a facially discriminatory policy of a university and its officials that deprives women of equal

11 opportunity in athletics, was already attenuated. In light of the Ledbetter Act, and the reasoning in

12 Groesch, it should not be applied to the claims here to deprive Plaintiffs of their right to seek redress

13 for all of Defendants’ conduct that caused them injury.

14 IV. CONCLUSION

15

For the foregoing reasons, Plaintiffs respectfully request that the Court reconsider its

16 December 2010 holding regarding the application of the statute of limitations to Plaintiffs’ Equal

17 Protection claims and that it find the claims are timely in their entirety.

18 DATED: April 26, 2011 19
20

Respectfully submitted,
THE STURDEVANT LAW FIRM A Professional Corporation

21

EQUAL RIGHTS ADVOCATES

22

DUCKWORTH PETERS LEBOWITZ

23

OLIVIER LLP

24

EQUITY LEGAL

25

By: /s/ Monique Oliver

26

Monique Olivier Attorneys for Plaintiffs

27

28
15
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION AND/OR CLARIFICATION; CASE NO. S-03-2591 FCD EFB

 
 Case 2:03-cv-02591-KJM -EFB Document 545 Filed 04/29/11 Page 1 of 6

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

----oo0oo----

12 AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI
13 CHIANG; CHRISTINE WING-SI NG; and all those similarly
14 situated,

15

Plaintiffs,

NO. CIV. S-03-2591 FCD EFB

16

v.

MEMORANDUM AND ORDER

17 BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA
18 at DAVIS; LAWRENCE “LARRY” VANDERHOEF; GREG WARZECKA;
19 PAM GILL-FISHER; ROBERT FRANKS; and LAWRENCE SWANSON,
20 Defendants.
21 _____________________________/

22

----oo0oo----

23

This matter is before the court on the parties’ cross-motion

24 in limine to clarify the relevant time period for plaintiffs

25 Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng’s

26 (collectively “plaintiffs”) Title IX claim against defendant

27 Board of Regents of the University of California at Davis

28 (“defendant”). Plaintiffs assert that the relevant time period

1

Case 2:03-cv-02591-KJM -EFB Document 545 Filed 04/29/11 Page 2 of 6

1 for analyzing whether defendant has a history and continuing

2 practice of program expansion should extend back to 1972.

3 Conversely, defendant asserts that the relevant time period for

4 assessing Title IX compliance is between 1995 and 2006.

5

Title IX, 20 U.S.C. § 1681, et seq., provides, “No person in

6 the United States shall, on the basis of sex, be excluded from

7 participation in, be denied the benefits of, or be subjected to

8 discrimination under any education program or activity receiving

9 Federal financial assistance.” In 1975, the Department of

10 Education (the “DOE”) issued the Title IX regulation pertaining

11 to athletics, 34 C.F.R. 106.41, which further clarifies that

12 “[n]o person shall, on the basis of sex, be excluded from

13 participation in, be denied the benefits of, be treated

14 differently from another person or otherwise be discriminated

15 against in any interscholastic, intercollegiate, club or

16 intramural athletics offered by a recipient.” In 1979, the 17 Department of Health, Education, and Welfare1 issued a Policy

18 Interpretation, 44 Fed. Reg. 71,413, to assist schools with 19 compliance with Title IX.2

20

A university’s athletics program is Title IX-compliant if it

21 satisfies one of the following conditions:

22

(1) . . . [I]ntercollegiate level participation

opportunities for male and female students are provided

23

24

1

The OCR later was authorized by Congress to issue Title

25 IX's regulations with respect to athletic opportunities. See

Pub.L. No. 93–380, 88 Stat. 612 (1974). 26

2

The Ninth Circuit has held that both the Policy

27 Interpretation and the Clarification are entitled to deference.

Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 965 n.9 28 (9th Cir. 2010).

2

Case 2:03-cv-02591-KJM -EFB Document 545 Filed 04/29/11 Page 3 of 6

1

in numbers substantially proportionate to their

respective enrollments; or

2

(2) Where the members of one sex have been and are

3

underrepresented among intercollegiate athletes, . . .

the institution can show a history and continuing

4

practice of program expansion which is demonstrably

responsive to the developing interest and abilities of

5

the members of that sex; or

6

(3) Where the members of one sex are underrepresented

among intercollegiate athletes, and the institution

7

cannot show a continuing practice of program expansion

such as that cited above, . . . it can be demonstrated

8

that the interests and abilities of the members of that

sex have been fully and effectively accommodated by the

9

present program.

10 Neal v. Bd. of Trustees of the Cal. State Univ., 198 F.3d 763,

11 769 (9th Cir. 1999) (quoting 44 Fed. Reg. 71,418). This three

12 part test reinforces that “Title IX is a dynamic statute, not a

13 static one. It envisions continuing progress toward the goal of

14 equal opportunity for all athletes.” Id. In this case,

15 defendant is relying on its alleged compliance with the second

16 prong of the three part test.

17

In its 1996 Clarification of Intercollegiate Athletics

18 Policy Guidance: The Three-Part Test (the “Clarification”), the

19 OCR stated that under the second prong of the three part test, an

20 institution can demonstrate compliance with Title IX by showing

21 “that it has a history and continuing practice of program

22 expansion which is demonstrably responsive to the developing

23 interests and abilities of the underrepresented sex.” (Ex. B to

24 Def.’s Trial Brief, at 5.) The Clarification also expressly

25 provides the analysis the OCR will conduct to assess compliance

26 with the history of program expansion component of prong two.

27 Specifically, it provides, “OCR will review the entire history of

28 the athletic program, focusing on the participation opportunities

3

Case 2:03-cv-02591-KJM -EFB Document 545 Filed 04/29/11 Page 4 of 6

1 provided for the underrepresented sex.” (Id. (emphasis added).)

2 However, “[t]here are no fixed intervals of time within which an

3 institution must have added opportunities” nor “is a particular

4 number of sports dispositive.” (Id.) “Rather, the focus is on

5 whether the program expansion was responsive to developing

6 interests and abilities of the underrepresented sex.” (Id.) The

7 OCR considers, inter alia, (1) “an institution’s record of adding

8 intercollegiate teams, or upgrading teams to intercollegiate

9 status, for the underrepresented sex”; (2) “an institution’s

10 record of increasing the number of participants in

11 intercollegiate athletics who are members of the underrepresented

12 sex”; and (3) “an institution’s affirmative responses to requests

13 by students or others for addition or elevation of sports.” (Id.

14 at 6.)

15

The 1996 Clarification also provides examples of what may

16 constitute compliance with the second prong, which demonstrate

17 that while analysis focuses on the entire history of a

18 University’s athletic program, the relevant time period for

19 finding compliance may be shorter based upon more recent

20 aggressive expansion. For instance:

21

Institution F started its women’s program in the early

1970s with four teams. It did not add to its women’s

22

program until 1987 when, based on requests of students

and coaches, it upgraded a women’s club sport to

23

varsity team status and expanded the size of several

existing women’s teams to accommodate significant

24

expressed interest by students. In 1990 it surveyed

its enrolled and incoming female students; based on

25

that survey and a survey of the most popular sports

played by women in the region, Institution F agreed to

26

add three new women’s teams by 1997. It added a

women’s team in 1991 and 1994. Institution F is

27

implementing a plan to add a women’s team by the spring

of 1997. Based on these facts, OCR would find

28

Institution F in compliance with part two. Institution

4

Case 2:03-cv-02591-KJM -EFB Document 545 Filed 04/29/11 Page 5 of 6

1

F’s program history since 1987 shows that it is

committed to program expansion for the underrepresented

2

sex and it is continuing to expand its women’s program

in light of women’s developing interests and abilities.

3

4 (Id. at 7.) The handful of decisions that have examined the

5 second prong both before and after the 1996 Clarification is

6 consistent with this approach. See Cohen v. Brown Univ., 809 F.

7 Supp. 978, 981, 991 (D.R.I. 1992), aff’d, 991 F.2d 888 (1st Cir.

8 1993) (examining the defendant university’s history of program

9 expansion from the late 1970s); Roberts v. Colo. State Bd. of

10 Agriculture, 998 F.2d 824, 830 (10th Cir. 1993) (examining

11 university’s history of program expansion for women starting in

12 the 1970s); Bryant v. Colgate Univ., 1996 WL 328446, at *10-11

13 (N.D.N.Y. June 11, 1996) (examining the defendant university’s

14 history of program expansion from 1972 when the university first

15 offered women’s sports); Barrett v. West Chester Univ., 2003 WL

16 22803477, at *7 (E.D. Pa. Nov. 12, 2003) (considering entire

17 history of expansion, where the first team was added in 1979).

18

Based upon the principles of Title IX, the guidance provided

19 in the 1996 Clarification, and case law discussing prong two of

20 the three part test, the court concludes that the court must

21 review the entire history of the athletic program in determining

22 whether defendant was compliant with Title IX when plaintiffs

23 were students. While a shorter, more current period of

24 aggressive remedial efforts may be highly relevant to

25 establishing compliance with prong two, the “dynamic” nature of

26 Title IX, which calls for continuing progress toward the goal of

27 equal opportunity, requires that the court look at the entirety

28 of the program as a whole. See Neal, 198 F.3d at 769.

5

Case 2:03-cv-02591-KJM -EFB Document 545 Filed 04/29/11 Page 6 of 6

1

Defendant’s argument relating to standing is inapposite.

2 Both plaintiffs and defendant agree that plaintiffs may only

3 recover based upon demonstration of actual harm. Indeed,

4 plaintiffs’ ability to recover for Title IX violations are wholly

5 separate from the determination of whether defendant was in

6 violation of Title IX. As such, defendant’s argument in support

7 of a truncated time period is without merit.

8

IT IS SO ORDERED.

9 DATED: April 29, 2011

10

_______________________________________

11

FRANK C. DAMRELL, JR.

UNITED STATES DISTRICT JUDGE 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

 
 Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 1 of 43

I PORTER

SCOTT

A PROFESSIONAL CORPORATION

Nancy J. Sheehan, SBN 109419

David P.E. Burkett, SBN 241896

350 University Avenue, Suite 200

Sacramento, California 95825

(916) 929-1481

(916) 927-3706 (facsimile)

Attorneys for Defendants: REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARRY

VANDERHOEF (erroneously sued as LAWRENCE VANDERHOEF), GREG WARZECKA, PAM

GILL-FISHER, and ROBERT FRANKS

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

AREZOU MANSOURIAN, LAUREN MANCUSO, NANCY NIEN-LI CHIANG, and CHRISTINE WING-SI NO; and all those similarly situated,
Plaintiffs,
VS.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
Defendants

CASE NO. CIV. S-03-2591 FCD/EFB

DEFENDANTS’ TRIAL BRIEF

Trial Date: May 23, 2011

Time:

1:30 p.m.

Ctrm:

2

{00881772.DOC}

TRIAL BRIEF

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 2 of 43

1

1Y,11 0.1

2

Page

3 1. INTRODUCTION .......................................................

2

4 II. STATEMENT OF FACTS ................................................

4

A. U.C. Davis and Women’s Intercollegiate Athletics ......................... 4

6

B. Plaintiffs and U.C. Davis .............................................

7

7

C. The Participation of Women on the Men’s Wrestling Team at U.C. Davis .......

9

8

D. The Events in the Spring, Summer and Fall of 2001 ........................ 12

9

1. Plaintiff’s OCR Complaint is Made and Quickly Addressed ............. 12

10

2. Protests, Press and Politicians ......................................

13

11

3. A Change in Coaches and Try-Outs in the Fall of 2001 ..................

15

12 III. ADMISSIONS AND STIPULATIONS .....................................

16

13 IV. POINTS OF LAW ...................................................... 16

14

A. Title IX Claim .....................................................

16

15

1. Application of Prong Two to this Case ...............................

20

16

B. Section 1983 (Equal Protection) Claim .................................. 29

17

1. Introduction ....................................................

29

18

2. The Scope of the Equal Protection Claim to Be Tried ...................

30

19

3. Equal Protection and Intercollegiate Athletics ......................... 31

20

4. The Individual Defendants Cannot be Held to a Higher Standard than the

21

Institutional Defendant in Regard to Provision of Equal Athletic Opportunities 34

22

T

cm A my 1P17 flfl T T& gym A mT/flT

V.

IflItJIJJj LjlIVIlltIIl’JIN

-7

23 VI. CONCLUSION ......................................................... 39

24

25

26

27

29

DEFENDANTS’ TRIAL

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 3 of 43

1

TABLE OF CONTENTS

2

Page

3 1. INTRODUCTION .......................................................

2

4 II. STATEMENT OF FACTS ................................................

4

5

A. U.C. Davis and Women’s Intercollegiate Athletics ......................... 4

6

B. Plaintiffs and U.C. Davis ............................................

7

7

C. The Participation of Women on the Men’s Wrestling Team at U.C. Davis .......

9

8

D. The Events in the Spring, Summer and Fall of 2001 ........................ 12

9

1. Plaintiffs OCR Complaint is Made and Quickly Addressed .............

12

10

2. Protests, Press and Politicians ......................................

13

11

3. A Change in Coaches and Try-Outs in the Fall of 2001 .................. 15

12 III. ADMISSIONS AND STIPULATIONS .....................................

16

13 IV. POINTS OF LAW ...................................................... 16

14

A. Title IX Claim .....................................................

16

15

1. Application of Prong Two to this Case ...............................

20

16

B. Section 1983 (Equal Protection) Claim .................................. 29

17

1. Introduction ....................................................

29

18

2. The Scope of the Equal Protection Claim to Be Tried ...................

30

19

3. Equal Protection and Intercollegiate Athletics ......................... 31

20

4. The Individual Defendants Cannot be Held to a Higher Standard than the

21

Institutional Defendant in Regard to Provision of Equal Athletic Opportunities 34

22 V. STATUTE OF LIMITATIONS ............................................. .3

23 VI. CONCLUSION ......................................................... 39

24

25

26

27

28

I.itifl.util--a

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 4 of 43

1

TABLE OF AUTHORITIES

2

Page

3 Ashcroft v. Ikbal 4 129 S.Ct. 1937 (2009) ..........................................................31

5 Barrett v: West Chester University 2003 U.S. Dist. LEXIS 21095 (E.D. Pa. 2003) ......................................23,32
6
7 Boucher v. Syracuse University 164 F.3d 113 (2d. Cir. 1998) ....................................................32
8
Clark v. Interscholastic Association 9 695 F.2d 1126 (9th Cir. 1982) ..................................................31,33
to Cohen v. Brown University [Cohen I]
11 809 F.Supp. 978 (D.R.I. 1992) ..................................................19,22,32

12 Cohen v. Brown University [Cohen II] 13 991 F.2d 888 (1st Cir. 1993) .................................................... 27,28

14 Cohen v. Brown University [Cohen IV] 101 F.3d 155 (1st Cir. 1996) .................................................... 19
15

16 Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009)............................................................ 30
17

Flores v. Morgan Hill Unified Sch. Distr.
18
324 F.3d 1130 (9th Cir. 2001) .................................................... 31

19

Force v. Pierce City R- VI School District

570 F.Supp. 1020 (DMo. 1983) ..................................................

18

Grove v. City College v. Bell 465 U.S. 555 (1984\ ................ . ....... ..................... ...........

19,29,32

Haffer v, Temple University

678 F.Supp. 517 (E.D. Penn. 1987) ..............................................

32

Kelley v. Board of Trustees 35 F.3d 265 (7th Cir. 1994) ..................................................... 35

Lee v. City of Los Angeles 25F0 .3d 688 (9th Cir. 2001) ...................................................... 33

H

-

DEFENDANTS’ TRIAL BRIEF

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 5 of 43

1 Mansourian v, Regents of the University of California 602 F.3d 957 (9th Cr. 2010) .....................................................38
2
3 McCormick v. Sch. Dist. Of Mamaroneck 370 F.3d 275, 300 (2nd Cir. 2004) .................................................20
4
5 Miami University Wrestling Club v. Miami University 302 F.3d 608 (6th Cir. 2002) ...................................................... 34
6
Nat’l. Wrestling Coaches Assn. v. Dept.. of Education 7 263 F.Supp.2d 82 (D.C. 2003) ..................................................... 20
8
Neal v. Board of Trustees of the California State University 9 198 F.3d 763 (9th Cir. 1999) ..................................................... 19
16 Pederson v. Louisiana State University 11 912 F.Supp. 892 (M.D. La. 1996) ................................. ................ 23,3

12 Personnel Adm ’r v. Feeney 442 U.S. 256 (1979) ............................................................ 31
13

14 Ridgeway v. Montana High School Association 858 F.2d 579 (9th Cir. 1988) ..................................................... 31
15

Roberts v. Colorado State Bd. OfAgriculture

16 998 F.2d 824 (10th Cir. 1993) ....................................................

19

17
Washington v. Davis 18 426 U.S. 229 (1976) ............................................................33

19 Statutes
20
44 Fed. Reg. 71, 413 ...........................................................18 21 .34 C,F.R. § 106.41 .............................................................33 22 20U.S.C.1688 ..............................................................17
42 U.S.C. § 1983 ................ ......................... ............ 3,16,18,23,29,30
23

24

25

26

27

28

ill DEFENDANTS’ TRIAL BRIEF

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 6 of 43

1

I.

2

3

During the course of this trial the Court will have the opportunity to meet a number of people

4 who have dedicated much, if not all, of their professional lives working for the benefit of student-

athletes. Through their efforts, the women’s athletic program at U.C. Davis has developed and

6 expanded to the point that it is recognized nationwide as an example of what a fair and equitable

7 athletic program for women should be. The U.C. Davis women’s athletic program has produced three

NCAA Woman of the Year award winners, a record tied by only one other university in the United

9 . States. It was twice honored as the best NCAA Division II school for women by Sports Illustrated for

10 Women. The championship accomplishments of its female student athletes speak loudly to the fact

11 that women at U.C. Davis who have the skill and abilities to compete at the intercollegiate level thrive

12 and excel in their sport.

13

Why then, one may ask, is the UNIVERSITY OF CALIFORNIA and four of its employees

14 under attack for alleged violation of Title IX and the Equal Protection Clause of the United States

15 Constitution? The evidence will show that Plaintiffs’ claims are the result of a misunderstanding (at

16 best) or a deliberate effort to mislead (at worst) by the former head coach of the men’s wrestling team,

17 and a sense of entitlement on the part of Plaintiffs to a guarantee that they would have a spot on the

18 wrestling team roster throughout their college career-something that no student athlete, male or

19 female, receives.

20

Between 1995 and 2006, 4,086 female student-athletes participated in intercollegiate athletics

21 at U.C. Davis, Consistent with the basic tenets of intercollegiate sports, those women competed for a 22 place on the team roster, attended practices, competed against opponents from other schools in

23 regularly scheduled competition in their sport, and often went on to . compete in post-season

24 championship bouts. This lawsuit is brought by two women who had "unofficial status" on the men’s

25 wrestling team and never competed in interscholastic competition at the collegiate level, and one who

26 was cut from the team because she (as well as several males) did not have the skills necessary to earn a 27 spot on the team roster.

28

In addition to suing the UNIVERSITY, Plaintiffs have accused four long-term U.C. Davis

(0088 1772.DOC}

2 DEFENDANTS’ TRIAL BRIEF

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 7 of 43

1 employees of intentionally discriminating against them on the basis of gender. They make this claim

2 notwithstanding the fact that they never even met some of the individual Defendants prior to filing this

3 suit. Perhaps the greatest irony is that Plaintiffs have sued former Senior Associate Athletic Director

4 PAM GILL-FISHER. Years before Plaintiffs were born, GILL-FISHER was advocating for equal

5 treatment for female student athletes and coaches, a quest she continued throughout her long career as

6 a multi-sport athlete, a coach, and an administrator. Plaintiffs have also sued GREG WARZECKA,

7 the Athletic Director at U.C. Davis who oversaw the athletic program during its greatest period of

B expansion for women’s sports; ROBERT FRANKS, a former Associate Vice Chancellor who worked

9 tirelessly to find a way to develop funding to add more sports at a time the State of California

10 decimated state funding for UNIVERSITY athletics; and LARRY VANDERHOEF, the former

it Chancellor of U.C. Davis who led the campus from a NCAA Division II program to a Division I

12 program that provides top level competitive opportunities for male and female athletes.

13

This suit has diminished significantly in scope since it was filed in 2003. All but two of the

14 original claims for relief have been eliminated. One of the Plaintiffs dropped out, and Plaintiffs

15 dismissed their claims against a former Associate Athletic Director. They voluntarily dismissed their

16 class action claims, and with that their claims for injunctive relief. The Court has ruled that the core

17 discrete events that form the heart of Plaintiffs’ claims are barred by the statute of limitations because

18 they did not file their suit in a timely manner. The sole claims remaining for trial are for (1) alleged

19

of Title lix, against the UNIVERSITY, for ineffective accommodation of athletic interests;

20 and (2) alleged violation of 42 U.S. C. §1983 against the individual Defendants based on the Equal

21. Protection Clause. Plaintiffs are seeking monetary damages, and, of course, attorney’s fees.

22

The Court will also have the opportunity to hear testimony from two of the leading experts in

23 Title IX law on the issue of whether the U.C. Davis campus was in compliance with Title IX under

24 prong two of the three-part test established by the Office for Civil Rights of the Department of

25 Education. Defendants’ expert, Dr. Christine Grant, is renowned in Title IX circles for her work in

26 gender equity in athletics. She has testified in many landmark cases in this area (such as Cohen and 27 Barrett) - always for the student plaintiffs. This case is particularly significant because it is the first

28 time Dr. Grant has agreed to testify on behalf of a school and its employees.

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Although being sued is never an enjoyable situation, Defendants welcome the opportunity to

2 have a neutral finder of fact finally listen to the entire story of the events relating to the women

3 wrestlers, free of media spin and other distortions.

4

II,

STATEMENT OF FACTS

6

A. U.C. Davis and Women’s Intercollegiate Athletics

7

U.C. Davis is one of ten campuses of the University of California, and one of eight of those

8 campuses that has an intercollegiate (or varsity) athletic program for male and female undergraduates.

9 The women’s intercollegiate athletic program started in 1947, with the hiring of Mayra Welch, its first

10 female athletics staff member. Twenty-five years before the passage of Title IX and at a time when

1 1 many universities would not even consider spending money on women’s sports, U.C. Davis stood out

12 from the pack. At the time Title IX passed in 1972, it had seven varsity women’s sports. Varsity

13 gymnastics for women was added by 19.74. Women’s cross-country was upgraded to a varsity sport in

14 1978, and began competing in the fall of 1979, to the best recollection of the former coach of that

15 sport.’ The campus was a founding member of the Association of Intercollegiate Athletics for

16 Women. It became a member of the NCAA for purposes of women’s athletics in 1981, which is the

17 first year that organization sponsored championships for women’s athletics.

18

By the time the first Plaintiff (NG) entered U.C. Davis in the fall of 1998, the women’s athletic

19

was far more developed and far more expansive than it was in the early years after the passage

20 of Title IX. This was largely due to the actions of GILL-FISHER, FRANKS, and several other U, C.

21 Davis employees who urged the campus to continue its efforts in regard to gender equity in athletics.

22 GILL-FISHER was tasked early in her administrative career with reporting on Title IX compliance

23 issues. Though she never had the power or authority herself to implement changes, she tirelessly

24 identified areas for improvement and spoke out about them at a time when those who did so were not

25 always well received by their peers. This situation was not unique to U.C. Davis-Title IX has always

26 been viewed by some with suspicion. However, in contrast to universities that simply refused to

27

28 1 Due to the passage of time, retirement, and aging of those who were at U.C. Davis in the early years after the passage of Title IX, there is some degree of lack of certainty as to the specific dates when new sports were added. However, the former cross-country coach is fairly confident about the accuracy of these dates.

4

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1 acknowledge its passage, after the passage of the law, U.C. Davis continued a course of improving

2 athletics for its female students.

3

In 1992, when Plaintiffs were still in grade school, Keith Williams took over as the acting

4 Athletic Director at U.C. Davis. During his three-year tenure, he faced the twin challenges of dealing

5 with unprecedented budget cuts, including removal of all state funding for intercollegiate athletics, and

6 the need to provide equitable participation opportunities. In the spring of 1993, U.C. Davis 7 administrators learned that at the end of the fiscal year (June 3t}) the campus would be facing a dire

8 cut in state funding. The situation was so severe that strong consideration was given to eliminating the

9 intercollegiate athletic program entirely. The program was "saved" temporarily by the passage of the

10 Student Services Maintenance Fee referendum in 1993. This would be the first of several votes taken

11 by the student body on a number of issues including the fate of athletics at the intercollegiate, club, and

12 recreational sport level. In essence, the students had to decide whether to do without these programs or

13 impose added expense on themselves in the form of increased fees.

14

The "temporary save" was not sufficient, as further budget reductions continued to rain down on

15 U.C. campuses. FRANKS worked closely with student leaders to develop another referendum, known

16 as the Student Activities and Support Initiative. In June 1994, U.C. Davis students were given a choice

17 of (1) diminishing the intercollegiate athletics program to the Division II minimum of four women’s

18 and four men’s teams; (2) reducing the intercollegiate athletic program from 20 sports to 17 sports; or

19 (3) increasing the intercollegiate athletic program to 23 sports by adding three new sports for women.

20 Each option came with a different impact on student fees. The students voted for the 23 sport option.

21 In addition to increasing athletic opportunities for women, the campus continued with gender equity

22 efforts by decreasing opportunities for males. Eventually, all junior varsity teams were eliminated,

23 including the junior varsity football team which had contributed to the imbalance between enrollment

24 and participation ratios.

25

In early 1995, three and one-half years before the first Plaintiff entered U.C. Davis, Mr.

26 Williams began the selection process for the three new sports. A call was made for proposals. After

27 thorough vetting by committees that included students, coaches, and administrators, the decision was

28 made to add women’s lacrosse, crew, and water polo. The three teams were added all at once, tripling

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1 the number of participation opportunities at the outset. This period of aggressive expansion took place

2 two years before NG entered U.C. Davis, four years before MANSOURIAN entered, and five years

3 before MANCUSO entered.

4

WARZECKA became the U.C. Davis Athletic Director in August 1995. Despite being saddled

5 with daunting budget problems, with the assistance of his administration team (including GILL-

6 FISHER) and the coaches, he ensured that the newly added teams developed into viable, full-fledged

7 intercollegiate competitors. In the 1998/1999 school year, WARZECKA expanded funding for

8 women’s indoor track, which allowed the coach of that team to expand competition opportunities for

9 her athletes. He also instituted a roster management program designed to (1) control expenses so that

10 all existing intercollegiate teams could be adequately funded; and (2) control the number of participants

11 on men’s intercollegiate teams. As of the time the last Plaintiff graduated in 2006, U.C. Davis

12 sponsored 14 intercollegiate sports for women, far more than the Division II average.

13

During WARZECKA’S tenure, U.C. Davis produced the three NCAA Woman of the Year

14 award winners referenced above. Only one other school (University of Tennessee) has produced an

15 equal number of female student-athletes who reached that pinnacle of intercollegiate success. Three

16 other female U.C. Davis student athletes were state or national finalists for the Woman of the Year 17 award. In 1999 and 2000, the campus was named as the best Division 112 school for women athletes by

18 Sports Illustrated for Women.

19

U.C. Davis women have won championships in tennis, rowing, softball, swimming, and track.

20 Its women’s basketball team earned two berths to the Women’s National Invitational Tournament, and

21 this year captured the Big West Conference championship, which took the Aggies to the first round of

22 the NCAA championship games. Over the years U.C. Davis female student-athletes have won more

23 than 250 All-American awards. Accomplishments such as these do not occur by happenstance-they are

24 the result of the efforts of talented athletes who have the skills to compete at the intercollegiate level,

25 dedicated coaches, and an administration that strongly supports women’s athletics.

26
2 During the time period in issue in this case, U.C. Davis was an NCAA Division H member, with the exception of men’s wrestling and 27 women’s gymnastics, which competed at the Division I level due to lack of available local competition at the Division H level. In 2003,
U.C.Davis started the process of moving to Division I for all sports. It completed a rigorous evaluation process by the NCAA, including a 28 gender equity assessment, and started competing in Division I in all other sports in 2007.

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1

B. Plaintiffs and U.C. Davis

2

NO entered U.C. Davis in the fall of 1998 and graduated in September 2002. During the three

3 years she participated in wrestling, NO competed in only one match or tournament -- the National Girls 4 Wrestling tournament in Michigan held in the spring of 2000. She did not wear a U.C. Davis uniform

5 while she competed, and she did not place. NO signed up for the Aggie Open wrestling tournament in

6 her freshman and sophomore years, but no one in her weight class showed up to compete. Thus, she

7 did not participate.

8

NO had no desire to practice or wrestle against men; she was more interested in simply working

9 out than she was in competing. She testified during her deposition that "I guess the thing is for me, like

10 I have a fear of competing. And so I tend to avoid it when I can. So that’s why I’m not exactly up for

11 competing." This mindset is in stark contrast to that of other female student-athletes at U.C. Davis who

12 embrace the notion of competition, which is the essence of intercollegiate athletics.

13

In their Complaint, Plaintiffs alleged that "female wrestlers [at U.C. Davis] had the opportunity

14 to participate in wrestling ... and to improve their skills to such an extent that some became nationally

15 ranked, participated in national women’s wrestling tournaments, participated as members of the U.S.

16 National women’s wrestling team, finished high in the Pan-American games and World Wrestling

17 Championships and are expected to be members of the United States Olympic team in 2004 when

18 women’s wrestling becomes a gold medal sport for the first time. Without the benefits obtained from

19 their participation as female wrestlers at UC Davis, these nationally and internationally ranked female

20 wrestlers would not likely have achieved such a high level of success on their own" While it is true

21 that one woman wrestler, Afsoon Roshanzamir (now Johnston) achieved that level of success, she did

22 so because of her membership on the USA Women’s Wrestling team and her desire to engage in

23 competition. NO has never been a member of the U.S. National Wrestling Team, has never

24 participated in the Pan American Games, and has never participated in the World Wrestling

25 Championships. She also never tried out for the U. S. Olympic team.

26

NO tried out for the U.C. Davis wrestling team in the fall of 2001. She faced off against

27 MANCUSO and was quickly pinned.

28

MANSOURIAN entered U.C. Davis in the fall of 2000 and graduated in June 2004. The only

I (00881772.DOC}

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1 tournament she competed in was the Aggie Open in January 2001. MANSOURIAN wrestled against

2 two women in the tournament and lost to both. She has never wrestled in a national wrestling

3 tournament, has never participated in the Pan American games, never tried out for the U.S. Olympic

4 team, and never held any national or international rankings as a wrestler.

5

In the fall of 2001, MANSOURIAN sent an e-mail to the wrestling team coach (Lennie Zalesky,

6 who was hired in the summer of that year) and said that she was extremely exhausted because of the

7 demands of her classes and a job, and that she thought intercollegiate wrestling was "too much for me

right now." Instead, she expressed an interest in wrestling at the club sport level, and filled out the

9 necessary paperwork for doing so. The Court will have an opportunity to assess MANSOURIAN’s

10 credibility, as she now claims that she really did want to wrestle at the intercollegiate level and thus was

11 not truthful in what she wrote in the e-mail.

12

MANCUSO entered U.C. Davis in the fall of 2001. She did not meet the criteria for admission

13 based on her grades and test scores, but was able to gain admission by being sponsored by the coach of

14 the women’s soccer team. (MANCUSO participated in wrestling and soccer during high school). She

15 accepted the offer of sponsorship, which came with the understanding that she would make a good faith

16 effort to try out for a place on the women’s intercollegiate soccer team. MANCUSO performed in a

17 lackluster manner during soccer try-outs and was eventually cut. MANCUSO tried out for the U.C.

18 Davis wrestling team in the fall of 2001. She wrestled-off against NG and pinned her, then went on to

19 wrestle-off against a male in her weight class, who in turn pinned MANCUSO. NO, MANCUSO, and

20 several males were cut from the team at the end of the try-out period.

21

Defendants do not deny that Plaintiffs wrestled to various extents in high school, or that they

22 were interested in wrestling while they attended U.C. Davis. They take issue with Plaintiffs’ position

23 that they were entitled to a guaranteed spot on the men’s wrestling team, or in the alternative, the

24 creation of a separate intercollegiate women’s wrestling team. By their very nature, intercollegiate

25 athletics involve demonstrations of the highest level of athletic skill. Not everyone can be a varsity

26 athlete. That is why U.C. Davis has such a broad array of sports options for its students.

27 7/

28 7/

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1

C. The Participation of Women on the Men’s Wrestling Team at U.C. Davis

2

Men’s wrestling U.C. Davis started as an intercollegiate sport in the 1980’s. In the mid 1990’s

3 it was headed for elimination (along with other sports) because of budget cuts but ultimately was saved

4 because of passage of the student referenda. Unfortunately, in the spring of 2010 the budget cuts took

5 their toll and wrestling was eliminated along with three other sports. Prior to that time, the team

competed in the PAC-1 0 conference.

7

In the early 1990’s a few women worked out with the men’s wrestling team. This continued

8 after Michael Burch was hired as the head wrestling coach in 1995. Contrary to assertions later made

9 by Burch and by the Plaintiffs, the Athletic Department administration had no objection to this. It is the

10 prerogative of the head coach to determine how to conduct practices, and to select members of his/her

11 team, so long as the coach complies with U.C. Davis and NCAA eligibility rules.

12

Although women practiced with the men’s wrestling team and were included on the roster for a

13 few years during Burch’ s tenure, there was never a separate women’s wrestling team. The schedule of

14 competition set up by Burch included only matches for the male wrestlers, with the exception of the

15 annual "Aggie Open" wrestling tournament, which had a women’s division. An open tournament is

16 literally open to anyone, as compared to head to head competition within a conference or in post-season

17 championship play. The media guides for wrestling for 1996 through 2000 describe women’s wrestling

18 as having "unofficial" status, something that was never challenged or questioned by NG,

19 MANSOURIAN, or Burch .3

20

At most, there were four female students at any one time who expressed an interest in

wrestling. They sparred with each other during practices, using freestyle wrestling techniques rather

than the collegiate style wrestling used by the males. They did not wrestle on behalf of U.C. Davis at

23 any NCAA wrestling meets. Women’s wrestling is not an NCAA sponsored sport, or even an NCAA

24 emerging sport.

25

As the trier of fact, the Court will have to make conclusions about the credibility of witnesses.

26 Burch’s credibility is placed squarely in issue on a number of points. He claims that GILL-FISHER

27

28
MANCUSO did not enter U.C. Davis until the fall of 2001. By that time Lennie Zalesky was the head coach of the men’s wrestling team.

9

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told him he could not recruit women or sponsor them for admission. This is untrue. Neither GILL-

2 FISHER, WARZECKA, or any other administrator ever restricted any coach from recruiting or

3 sponsoring a student-athlete so long as they complied with applicable rules and regulations. Burch also

4 claims that GILL-FISHER was hostile to the concept of women’s wrestling. This too is untrue. As

5 will be established by the evidence, GILL-FISHER has advocated for equality for girls and women in

6 sports since her grade school years.

7

As noted above, WARZECKA instituted a roster management program. The presence of a few

8 women at wrestling team practices prior to the enforcement of the roster management program did not

9 impact the manner in which Burch ran the team. There was no real limit on the number of athletes he

10 placed on the roster. Since Burch did not schedule any separate competition for the women, or provide

11 them with athletic scholarships, their presence did not impact his budget. The situation changed in the

12 fall of 2000. WARZECKA set a maximum roster size for all men’s teams and held the coaches strictly

13 to it. The initial maximum for the wrestling team was 30. Burch pleaded with WARZECKA to extend

14 this to 34 so that he could accommodate all of the male wrestlers whom he believed had the talent to

15 compete at the Division I level. WARZECKA acceded to this request.

16

Burch’s credibility will be tested in another area. He claims that WARZECKA and GILL-

17 FISHER prohibited him from awarding any of his limited roster spots to women. This is yet another

18 lie. The head coach of intercollegiate teams at U.C. Davis has the sole discretion to select members of

19 the team. WARZECKA and GILL-FISHER have never told a coach who they may, or may not, select

20 for their teams. It did not matter to WARZECKA who was on the roster for the wrestling team so long

21 as Burch did not exceed his assigned. limit. During the course of a discussion about Burch’s choice to

22 award all of his roster spots to men, WARZECKA asked him what he planned to do with the few

23 women who practiced with the team. Burch responded that they were not competitive and that he

24 "didn’t give a damn" about them. WARZECKA suggested that Burch speak to the women about

25 forming a wrestling club team so they could continue participating in their sport. U.C. Davis has a

26 robust club sport program, that includes levels of competition ranging from the equivalent of junior

27 varsity teams to a more recreational approach. Many of the sports that have evolved to intercollegiate

28 status at Davis over the years started at the club sport level.

(0088 1772DOC)

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1

Burch did not tell the women about the roster limit or that he had not allotted any of the roster

2 spots to them. Instead, he lied again and told them that the Athletic Department administration ordered 3 him to remove them from the team. He allowed them to continue to work out with the team

4 nonetheless. The women were apparently content with the situation, as they did not make any

5 complaint to WARZECKA, GILL-FISHER, FRANKS, VANDERHOEF, any other administrator, or

6 the Office for Civil Rights despite being told that they had allegedly been "ordered off the team."

7

It is important to note that despite the fact that Burch never scheduled regular competition for

8 the women wrestlers with other women, and never thought to offer them athletic scholarships until

9 shortly before his appointment ended, Plaintiffs view him as their hero. They do not accuse him of

10 discriminating against them on the basis of their gender. They have no complaints about the "unofficial

11 status" of women’s wrestling during his tenure. Based on the false statements made by Burch that

12 members of the Athletic Department administration "forced him" to remove the women from the team,

13 Plaintiffs accuse only the individual Defendants of violating their civil rights.

14

In January 2001, MANSOURIAN suffered an injury during a practice. This came to the

15 attention of GILL-FISHER because Plaintiff sought services from the trainers, who noticed that she

16 was not on the team roster, Since GILL-FISHER was out of town WARZECKA met with

17 MANSOURIAN and NG in order to find out why they were practicing with the wrestling team when

18 Burch had not put them on the roster. Based on his suggestion to Burch the previous fall that Burch

19 urge the women to develop a club sport team, WARZECKA thought that was the course that had been

20 taken. The Court will also have to make another credibility decision in regard to this meeting.

21 WARZECKA will testify that the meeting was cordial in nature, and that the women seemed confused

22 about their status on the team which, in hindsight, was understandable because Burch had misled them

23 on that point. He told them they were not on the roster and thus were not covered by the insurance

24 provided to intercollegiate athletics. Notwithstanding their status, WARZECKA told them they could

25 continue to receive ice and taping services from the intercollegiate athletics trainers, and urged them to

26 speak to the Director of Club sports about developing a women’s wrestling club sport team. Plaintiffs

27 claim that WARZECKA "yelled and screamed" at them during this meeting, and said something along

28 the lines of "Newsflash! You were never on the team." This is untrue-WARZECKA has never spoken

{00881772DOC)

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1 to a student in that manner. It is interesting to note that despite Plaintiffs’ claimed version of this 2 meeting, they did not file any complaint of alleged gender discrimination at that time. That did not 3 occur until several months later, when Burch suspected that his appointment as the wrestling coach

4 would not be renewed.

5

D. The Events in the Spring. Summer. and Fall of 2001

6

1. Plaintiffs’ OCR Complaint is Made and Quickly Addressed

7

On April 24, 2001, months after Burch falsely told the women that WARZECKA and GILL-

8 FISHER had ordered him to remove them from the team roster, NG and MANSOURIAN filed a

9 complaint with the Office for Civil Rights, claiming they were subjected to gender discrimination in

ID regard to their participation on the wrestling team. On May 1 or 2, 2001 they delivered a memo to

11 GILL-FISHER, WARZECKA, FRANKS and others in which they stated that they had been subjected

12 to "sexual discrimination" in the form of being removed from the wrestling team roster, and hoped to

13 be reinstated soon. Of note is the fact that neither this complaint, nor any of the others filed

14 subsequently by Plaintiffs, accused U.C. Davis of having a women’s athletic program that did not

15 provide equal opportunities for women as a whole. That accusation was not raised until years later,

16 when Plaintiffs filed this suit.

17

U.C. Davis has had a Title IX Compliance Officer since the early 1980’s. Dennis Shimeic

18 occupied that role from its inception through the time in issue in this case. The campus took immediate

19 action in response to Plaintiffs’ notice. Based on the confusion caused by Burch’s misrepresentations,

20 the decision was made to place the women on the roster for the rest of the 2000/2001 season. 4 On May

21 9, 2001 WAECKA sent a memo to Burch instructing him to reinstate the women. He refused,

22 claiming that he was not responsible for them not being on the roster in the first place. FRANKS sent

23 an e-mail to the women the following day, advising them that they were on the team roster and offering

24 to meet with them. NO and MANSOURIAN wrote back, thanking him for his concern, but said they

25 could not accept the reinstatement they sought until they spoke with their attorney. Shimek advised

26 OCR of the action that had been taken, and that agency responded that it considered the matter closed.

27

28 Plaintiffs claim this offer was illusory because the regular wrestling season was over, That fact would not impact them at all because they did not compete in any of the contests that the rest of the team participated in, Members of intercollegiate sport teams can and do continue to practice after the end of their regular season.

12

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1

Thereafter began a series of demands by Plaintiffs that they be afforded preferential treatment.

2 They insisted that since Burch did not require them to compete for a spot on the team prior to the

3 imposition of roster management, that they were entitled to ongoing membership on the team under that

4 same condition. FRANKS met with MANSOURIAN and NG on May 16, 2001. Plaintiffs asked if the

5 campus would consider having two roster caps for the wrestling team -- one for men and one for

6 women. He passed on their inquiry to GILL-FISHER, WARZECKA and Shimek. They consulted with

7 others, including legal counsel, to determine whether such a suggestion was feasible. The conclusion

8 was that it was not, for a variety of reasons. Of those reasons the foremost was that as a practical

9 matter, not all students who are interested in participating in varsity athletics have the skill necessary to

10 earn a spot on the team and not all students who want to be a member of a varsity team can he

11 accommodated. Each year the Athletic Department receives eligibility forms from many more students

12 who want to participate in intercollegiate sports than can actually be accommodated on the varsity

13 teams. There was an upper limit to the total number of student athletes who could be on the wrestling

14 team, which was the roster cap assigned by the Athletic Director. FRANKS communicated this to

15 Plaintiffs in an e-mail. Plaintiffs then asked whether the campus would waive the minimum

16 requirement of ten students for creation of a club sport team, because they did not know if they could

17 come up with that many female students who were interested in wrestling.

18

2. Protests, Press, and Politicians

19

Fueled by Burch’s false statement that the Athletic Department administration forced him to

20 remove the women from the team roster, Plaintiffs NG and MANSOURIAN, along with some of the

21 male members of the wrestling team, embarked on a series of protests and demonstrations. They snuck

22 into the Aggie Auction, which is the largest annual fundraiser for intercollegiate athletics and disrupted

23 it by stripping off their clothes and handing out leaflets while dressed in wrestling singlets. They held

24 some demonstrations outside Mrak Hall, where the Chancellor’s office is housed. Plaintiffs contend

25 that the individual Defendants were deliberately indifferent because they did not immediately accede to

26 Plaintiffs’ demands in the face of these protests. As the Court is no doubt aware, the University of

27 California was the birthplace of the free speech movement-protests on campus about a wide variety of

28 issues are a regular occurrence. The wrestlers were afforded the same free speech rights as all other

00 8 8 1772 .DOC)

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1 groups who engaged in that activity.

2

NG, MANSOURIAN and Burch engaged the assistance of the Chief of Staff of a local

3 Assembly Member. The Chief, Craig Reynolds, was a former wrestler and one of Burch’s friends. The

4 Assembly Member (Helen Thomson) sent a letter to Chancellor VANDERHOEF on May 3, 2001

5 accusing the campus of discriminating against women wrestlers. In what was to become a pattern,

6 Thomson and her staff did not contact WARZECKA or any member of the Athletic Department to hear

7 the other side of the story before sending out accusatory letters or press releases. VANDRHOEF was

8 out of the state at the time the letter was sent. When Thomson did not receive a response in a manner

9 that she deemed timely, she asked the Chair of the Assembly Budget Committee to withhold funding

10 for a new building on the campus. (When she was deposed years later Thomson described this move as

11 nothing more than an "attention-getter.") Reynolds would not permit WARZECKA or GILL-FISHER

12 to have access to Thomson. He did allow the Chancellor and FRANKS to meet with him and

13 Thomson. During the course of the meeting, Reynolds presented them with a list of demands that

14 included establishing a separate women’s intercollegiate wrestling team; hiring a full-time head

15 wrestling coach 5 ; and building a dedicated wrestling facility. VANDERHOEF and FRANKS attempted

16 to explain to Reynolds and Thomson why their demands ran afoul of fair treatment for all student

17 athletes, including those on established club sport teams who were seeking intercollegiate status.

18

A number of the long-term, highly experienced coaches of women’s intercollegiate sports at

19 U.C. Davis became very upset over what they perceived was one-sided press releases by Thomson and

20 media coverage, which included accusing WARZECKA and GILL-FISHER of being biased against

21 female athletes. These coaches understood that a school does not create an intercollegiate sport team

22 simply because three or four students want to participate. There must be sufficient local competition at

23 the intercollegiate level and sufficient interest in order to field a viable team. They also understood that

24 Plaintiffs’ demands that they be guaranteed a. spot on the men’s wrestling team without having to earn

25 that spot via a demonstration of skill ran afoul of the very nature of intercollegiate athletics, and was

26 unfair to the members of the female members of the club sports that were seeking intercollegiate status

27

28 Burch was one of several part-time head coaches at U.C. Davis. He had been pushing for many months for full-time status, and became very upset when he was told that due to Title IX requirements, the part-time coach of a women’s team would be made full-time before his status would change.

14

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1 as well as to males who wanted to be on the varsity team but did not have the requisite skills. Sue

2 Williams and Sandy Simpson, the coaches of the cross-country and women’s basketball teams, drafted

3 a letter setting forth the coaches’ position. Through repeated efforts, Williams was finally able to get

4 Thomson to agree to meet with her and GILL-FISHER to listen to what they had to say. The meeting

5 took place on June 8, 2001. During the course of the meeting Williams mentioned the letter, the fact

6 that it was signed by a number of influential head coaches of women’s sports, and that they intended to

7 release it to the media that day. Per her request, Thomson was provided with a copy of the letter.

B Thereafter she immediately issued a press release stating that the matters relating to the women

9 wrestlers had "been resolved." This ended her involvement until March 2002, when (ironically) she

10 named GILL-FISHER as her Assembly District’s "Woman of the Year" for all of GILL-FISHER’s

11 accomplishments in the area of women’s athletics.

12

3. A Change in Coaches and Try-Outs in the Fail of 2001

13

Burch’s appointment as head coach was not renewed, and his term ended on June 30, 2001 6

14 Zalesky was hired as his replacement.

1

NG and MANSOURIAN filed several more complaints with OCR during the late spring and

16 summer of 2001. OCR investigators came to campus and conducted an investigation. It did not find

17 any violation of Title IX in regard to the women wrestlers (as noted above, Plaintiffs’ complaints

18 focuses solely on themselves-they never alleged that the athletic program as a whole failed to provide

19 equal participation opportunities for women). In order to clear up any confusion that may have existed

20 about the manner in which members of the wrestling team are selected, the campus entered into a

21 Voluntary Resolution Plan (VRP) with OCR that outlined that process. This includes having the head

22 coach select those student-athletes who are the most skilled in their weight class. The VRP also

23 provided that the campus would support the formation of a wrestling club team for those students (male

24 and female) who do not have the skills necessary to make the intercollegiate team.

25

As noted above, MANSOURIAN did not try out for the team in 2001. NG and MANCUSO did

26 try out, but were not selected, along with several males. Plaintiffs insisted that they should not have to

27

28
Plaintiffs asserted in claims filed with OCR and in this lawsuit that the non-renewal was an act of retaliation against them, The Court has dismissed that claim.

15

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1 try out for the men’s wrestling team by competing against males, and that they should be allowed to use

2 freestyle wrestling rules and techniques rather than the collegiate rules used by male wrestlers. Coach

3 Zalesky conducted the try-outs in a manner consistent with the VRP, and held all students to the same

4 standards.

5

Plaintiffs did not try out for the team in any subsequent years, nor did they participate at the

6 club sport level. They also did not join any local wrestling clubs.

7

ER!

8

ADMISSIONS AND STIPULATIONS

9

All pertinent admissions and stipulations are stated in the Final Pretrial Conference Order, as

10. amended on May 4, 2011 [Docket item 5491

11

12

13

There are two claims for relief remaining for trial: (a) the first claim for relief alleging failure to

14 provide equal athletic opportunity, in violation of Title IX; and (b) the fourth claim for relief alleged

15 violation of the Equal Protection Clause, under 42 U.S.C. § 1983. The Title IX claim is asserted by all

16 Plaintiffs against Defendant REGENTS OF THE UNIVERSITY OF CALIFORNIA. The § 1983 claim

17 is asserted by all Plaintiffs against Defendants VANDER}IOEF, FRANKS, WARZECKA, and GILL-

1.8 FISHER .7

19

A. Title IX Claim

20

There are two aspects to a. Title IX athletics claim: effective accommodation of athletic interests

21 and equal treatment of male and female athletes in regard to athletic opportunities, (Mansourian v.

22 Regents of the University of Caifornia, 602 F. 3d 957, 964-965 (9th Cir. 2010).) Plaintiffs base their

23 first claim for relief on the assertion that the UNIVERSITY intentionally discriminated against female

24 students by: (1) choosing to make fewer participation opportunities in intercollegiate athletics available

25 to women; (2) providing male students, but not female students, with the opportunity to participate in

26

27

28 Former Defendant LARRY SWANSON was voluntarily dismissed on November 8, 2010, [Docket item 465]

(0088 1772. DOC}

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intercollegiate wrestling and by issuing the "No Females Directive; 8" and (3) having failed to comply

2 with any aspect of the three-part test for compliance with Title IX in regard to participation

3 opportunities. (Complaint, fi 129-131) This Court has previously ruled that Plaintiffs’ equal treatment
4. claim, including their claim that they were denied equal treatment in regard to financial assistance 9 , is

5 barred by the applicable statute of limitations. [Memorandum and Order on Defendants’ Motion for

6 Judgment on the Pleadings, Docket item 226, p. 18-21; Memorandum and Order on Defendants’ 7 Motion for Summary Judgment, Docket item 509, p. 17-221 This ruling extends to Plaintiffs’ claim 8 about the issuance of the "No Females Directive," a failure to reinstate an alleged female wrestling

9 program in June 2001, and requiring females to compete for membership on the U.C. Davis wrestling

10 team in the fall of 2001 under the same terms and conditions applied to male students. [See Docket

11 item 226, p. 9-10 and section V below] The sole issue remaining for trial under Title IX is whether, 12 during the time period in issue, there was a systemic failure by U.C. Davis to effectively accommodate

13 the athletic interests of its female undergraduate students.

14

Title IX of the Educational Amendments of 1972 holds that no person shall, on the basis of sex,

15 be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any

16 education program receiving federal financial assistance. (20 U.S.C. § 1681(a), Exhibit 1 to Joint

17 Request for Judicial Notice filed concurrently with the parties’ trial briefs) The Regulation

18 implementing Title IX as it relates to athletics is found at 34 C.F.R. §106.41: "No person shall, on the

19 basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from

20 another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or

21 intramural athletics offered by a recipient [of federal funding] and no recipient shall provide any such

22 athletics separately on such basis." (Exhibit 2 to Joint Request for Judicial Notice, p. 1.) Subsection 23 (C)(1) requires that an institution which operates or sponsors interscholastic, intercollegiate, club or

24 intramural athletics do so in a manner that provides equal athletic opportunity to members of both

25 sexes. In determining whether equal opportunities are available, the Director (of the Office for Civil

26

27

This is a term used by Plaintiffs to describe their allegation that the individual Defendants "terminated all wrestling

participation opportunities for female students but not for male students." (Complaint, ¶60)

28
This ruling effectively eliminated the second claim for relief asserted in the Complaint.

F {00881772.DOC}

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1 Rights, which is primarily charged with investigating and making findings on Title TX allegations) will

2 consider, among other factors, "whether the selection of sports and levels of competition effectively

3 accommodate the interests and abilities of members of both sexes." (Id. at p. 2.) This regulation 4 became effective on July 21, 1975. Of importance to this case is that the regulation states "where a

5 recipient [of federal funds] operates or sponsors a team in a particular sport for members of one sex but

6 operates or sponsors no such team for members of the other sex, and athletic opportunities for members

7 of that sex have been previously limited, members of the excluded sex must be allowed to try-out

8 for the team offered unless the sport involved is a contact sport. 10" (Exhibit 2 to Joint Request for

9 Judicial Notice, p. 10 [emphasis added].) As early as 1975, OCR acknowledged that (1) a school need 10 not operate identical teams in all sports for males and females; and (2) that the "right" involved is one

11 to try out and to compete for a place on the team; there is no "right" or "entitlement" to a roster spot on

12 a specific team if a student does not meet the qualifications in the opinion of the coach. One court

13 succinctly summed this up in the context of a equal protection argument arising from a girl’s desire to

14 try out for a boys’ middle school football team: "Nichole Force obviously has no legal entitlement to a

15 starting position on the Pierce City Junior High School eighth grade football team, since the extent to

1(5 which she plays must be governed solely by her abilities, as judged by those who coach her. But she

17. seeks no such entitlement here. Instead she seeks simply a chance, like her male counterparts, to display

18 those abilities. She asks, in short, only the right to try." (Force v. Pierce City R-V1 School Dist., 570

19 F.Supp.1020, 1031(W.D. Mo. 1983).)

20

In 1979 the Department of Health, Education and Welfare issued a Policy Interpretation on the

21 Title IX regulation. See 44 Fed. Reg. 71,413. (Exhibit 3 to Joint Request for Judicial Notice.) The

22 Poheyn’ terpretation established what is known as the three-part test for compliance:

23

"A university’s athletic program is Title TX-compliant if it satisfies one of the following

24

conditions [prongs] : (1) intercollegiate level participation opportunities for male and

female students are provided in numbers substantially proportionate to their respective

25

enrollments, or (2) where the members of one sex have been and are underrepresented

among intercollegiate athletes, ... the institution can show a history and continuing

26

practice of program expansion which is demonstrably responsive to the developing

27

interests and abilities of the members of that sex, or (3) where the members of one sex are

28
’ The regulation defines contact sports to include wrestling. However, U.C. Davis has never restricted women from trying out for the men’s wrestling team because of that,

18

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1

underrepresented among intercollegiate athletes, and the institution cannot show a

continuing practice of program expansion such as that cited above, ... it can be
2
demonstrated that the interests and abilities of the members of that sex have been fully

3

and effectively accommodated by the current program."

(Neal v. Board of Trustees of the California State University, 198 F.3d 763, 768 (9th Cit. 1999).
4

5

The 1979 Policy Interpretation also addressed the issue of contact sports:

"Effective accommodation means that if an institution sponsors a team for members of one sex

6

in a contact sport, it must do so for members of the other sex under the following

7

circumstances:

(1) The opportunities for members of the excluded sex have historically been limited; and

8

(2) There is sufficient interest and ability among the members of the excluded sex to

sustain a viable team and a reasonable expectation of intercollegiate competition for
9
that team."

10 (Exh. 3 to Joint Request for Judicial Notice, p. 10, emphasis added.)

11

The three-part test has been universally accepted by the Courts of Appeals (see e.g. Cohen v.

12 Brown University [Cohen IV], 101 F. 3d 155 (1st Cir.1996)) and they have given substantial deference

].. 3 to the Department’s interpretation of its own regulations. (Roberts v. Colorado State Bd. Qf

14 Agriculture, 998 F.2d 824, 828 (10th Cir. 1993).) Equally accepted by the courts is the authority of the

15 Department of Education and its Office for Civil Rights to issue Clarifications on the implementing
regulation. These Clarifications, as well as OCR’s 1990 "Title IX Athletics Investigator’s Manual,"
16
have been used by courts as sources of guidance for OCR investigators and for courts that are faced
17
with making a determination on whether an institution is in compliance with Title IX regarding a claim
18
of ineffective accommodation. (Cohen v. Brown University [Cohen If 809 F.Supp. 978, 983-84 (D. 19 R.I. 1992).)

20

Educational institutions had little guidance on how to comply with Title IX in regard to

21 intercollegiate athletics until years after it was originally passed in 1972. It took the government three

22 years to issue the implementing regulation. The regulation provided little in the way of specifics-it

23 simply stated that an institution needed to provide equal opportunities for both sexes via the selection of

24 sport and the level of competition provided, in 1979, the year the oldest of the Plaintiffs (NO) was

25 born, athletic administrators such as GILL-FISHER were working on understanding the newly

26 delineated three-part test. In 1984, the U.S. Supreme Court issued its opinion in Grove City College v. 27 Bell, 465 U.S. 555 (1984), which effectively suspended enforcement of Title IX as it applies to

28 athletics, until the passage of the Civil Rights Restoration Act of 1988. The evidence will show that

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1 during this period of time, when many universities shut down any gender equity efforts, U.C. Davis

2 continued to work in that area.

3

Notwithstanding the issuance of the 1979 Policy Interpretation, more than twenty years after the

4 passage of Title IX, OCR felt it was necessary to issue a clarification of its interpretation. The 1996

5 "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test" is helpful in that it

6 provides usable, concrete examples of how OCR interprets the three-part test. (Exhibit 4 to Joint

7 Request for Judicial Notice.) WARZECKA and other administrators relied on this Clarification, as

8. expected by the federal government, in assessing whether U.C. Davis was in compliance under prong

9 two.

10

In what is commonly referred to as the "Dear Colleague" letter from Norma Cantu, Assistant

11 Secretary for Civil Rights, which accompanied. the Clarification, Cantu noted the Clarification confirms

12 that a school need only comply with one of the three prongs, and that prong two involves "an

13 examination of an institution’s good faith expansion of athletic opportunities through its response to

14 developing interests of the underrepresented sex at that institution." (Exhibit 4 to Joint Request for

15 Judicial Notice, pp. 1-2.) For purposes of the Title IX claim made against it in this case, the REGENTS 16 stipulates that during the time period in issue, the ratio of male to female undergraduate enrollment was

17 not always "substantially proportionate" to the ratio of male to female intercollegiate athletic

18 participation (prong one). The REGENTS is defending the Title IX claim on the basis that it complied

19 with prong two (history and practice of program expansion for women). "[Aln institution is in

20 compliance if it meets any one of the three prongs of the test." (McCormick v. Sch, Dist. of

21 Mamaronec, 370 17 3d 275, 300 (2nd Cir, 2004).) This concept is so important that OCR emphasized it

22 again in its 2003 "Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX

23 Compliance": "Each of the three prongs is thus a valid, alternative way for schools to comply with Title

24 IX. ... each of the three prongs of the test is an equally sufficient means of complying with Title IX,

25 and no one prong is favored. (Exhibit 5 to Joint Request for Judicial Notice, pp. 1-1)

26

1. Application of Prong Two to This Case

27

In its 1996 Clarification, OCR stated "the Clarification does not provide strict numerical

28 formulas or ’cookie cutter’ answers to the issues that are inherently case-and fact-specific. Such an

008 8 1 772. DOC)

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.1 effort not only would belie the meaning of Title IX, but would at the same time deprive institutions of

2 the flexibility to which they are entitled when deciding how best to comply with the law." (Exhibit 4,

3 p. 2.) It also provided this guidance in regard to prong two:

4

There are no fixed intervals of time within which an institution must have added

5

participation opportunities. Neither is a particular number of sports dispositive. Rather,

the focus is on whether the program expansion was responsive to the developing interests

6

and abilities of the underrepresented sex.

7

OCR will consider the following factors, among others, as evidence that may indicate a

8

history of program expansion that is demonstrably responsive to the developing interests

and abilities of the underrepresented sex: [1] an institution’s record of adding

9

intercollegiate teams, or upgrading teams to intercollegiate status, for the

underrepresented sex; [2] in institution’s record of increasing the numbers of participants

10

in intercollegiate athletics who are members of the underrepresented sex; and [3] an

11

institution’s affirmative response to requests by students or others for addition or

elevation of sports.

12

OCR will consider the following factors, among others, as evidence that may indicate a

13

continuing practice of program expansion that is demonstrably responsive to the

14

developing interests and abilities of the underrepresented sex: [I] an institution’s current

implementation of a nondiscriminatory policy or procedure for requesting the addition of

15

sports (including the elevation of club or intramural teams) and the effective

communication of the policy or procedure to students; and [21 an institution’s current

16

implementation of a plan of program expansion that is responsive to developing interests

17

and abilities.

18 (Exhibit 4 to Joint Request for Judicial Notice, pp. 5-6, emphasis added.)

19
In essence, "part two looks at an institution’s past and continuing remedial efforts to provide

20
nondiscriminatory participation opportunities through program expansion."

(Id. at p. 5.) The

21
Clarification states that "OCR will review the entire history of the athletic program" in making a prong

22
two assessment. However, the examples it included in the Clarification make it clear that early periods

23
of less than optimal expansion will not result in a finding that prong two does not apply so long as the

24
school can show a history and effort of program expansion that is responsive to developing interests

25
(see below). This Court has ruled that it will look at the entire history of women’s athletics at U.C.

26
Davis in deciding this claim. However, it also noted that "a shorter, more current period of aggressive

27
remedial efforts may be highly relevant to establishing compliance with prong two... ." (Docket item

28
545, p. 5]

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1

Two of the illustrations provided by OCR in the 1996 Clarification are directly relevant to this

2 case. The first involves a school that did not expand its women’s program for 17 years after the

3 passage of Title IX, but then started taking action in the late 1980’s:

4

"Institution F started its women’s program in the early 1970s with four teams. It did not

5

add to its women’s program until 1987 when, based on requests of students and coaches,

it upgraded a women’s club sport to varsity team status and expanded the size of several

6

existing women’s teams to accommodate significant expressed interest by students. In

1990 it surveyed its enrolled and incoming female students; based on that survey and a

7

survey of the most popular sports played by women in the region, Institution F agreed to

8

add three new women’s teams by 1997. It added a women’s team in 1991 and 1994.

Institution F is implementing a plan to add a women’s team by the spring of 1997. Based

9

on these facts, OCR would find Institution F in compliance with part two.

Institution F’s program history since 1987 shows that it is committed to program

10

expansion for the underrepresented sex and it is continuing to expand its women’s

11

program in light of women’s developing interests and abilities."

12 (Exhibit 4 to Joint Request for Judicial Notice, p. 7, [emphasis added].)

13

Another example detailed an institution that complied with prong two based on adding three

14 teams at six-year intervals:

15

"At the inception of its women’s program in the mid-1970s, Institution C established.

seven teams for women. In 1984 it added a women’s varsity team at the request of

16

students and coaches. In 1990 it upgraded a women’s club sport to varsity team status

based on a request by the club members and an NCAA survey that showed a significant

17

increase in girls high school participation in that sport. Institution C is currently

18

implementing a plan to add a varsity women’s team in the spring of 1996 that has been

identified by a regional study as an emerging sport in the region. The addition of these

19

teams resulted in an increased percentage of women participating in varsity athletics at

the institution. Based on these facts, OCR would find Institution C in compliance with
20
part two because it has a history of program expansion and is continuing to expand its

21

program for women to meet their developing interests and abilities."

22 (Exhibit 4 to Joint Request for Judicial Notice, p. 6.)

23

The few courts that have addressed the issue of compliance under prong two were faced with

24 women’s intercollegiate athletic programs that bear no resemblance to program at U.C. Davis. The

25 seminal case of Cohen v. Brown is illustrative. Brown University downgraded two longstanding

26 women’s varsity teams (gymnastics and volleyball) to club status in 1991. Almost all women’s varsity

27 teams at Brown were created between 1971 and 1977. The only women’s team created after that period

28 was winter track in 1982. (Cohen I, supra, at p. 981.) When the District Court first ruled on the

request for a preliminary injunction in 1992, it found that Brown did not meet the criteria for prong-two

22

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1 compliance. The Court of Appeal did not disturb that finding. (991 F.2d at p. 903.) U.C. Davis has not 2 downgraded any women’s intercollegiate teams to club status. Rather, it has upgraded three club sports

3 to intercollegiate status. In Roberts v. Colorado State Bd of Agriculture, supra, suit was filed in June

4 1992 after the university discontinued its women’s fast pitch softball team and did not replace it with

5 another sport. The District Court issued an injunction reinstating the team. Both the District Court and

6 the Court of Appeal found that the university could not claim compliance under prong two because,

7 apart from creating a women’s sports program in the 1970’s consisting of eleven sports and then adding

B women’s golf in 1977, it had done nothing more to expand the program. To the contrary, Colorado had

9 dropped three women’s sports and its overall opportunities for women had decreased by 34%. In

10 contrast, U.C. Davis added soccer at the same time it discontinued field hockey in 198311, then added

11 more participation opportunities by the addition of new sports and in less than one decade, it increased

12 participation by female student athletes from 32% to 50%.

13

Louisiana State University was sued for ineffective accommodation in 1994. (Pederson v.

14 Louisiana State University, 912 F.Supp. 892 (M.D. La. 1996).) Women’s intercollegiate athletics

15 started at LSU in 1977. Fast pitch softball was added in 1979, but was dropped following the 1982/83

16 season "with no credible reason given." No additional women’s sports were added until 1993 when the

17 decision was made to add fast-pitch softball and soccer in the 1995 season. By the time the District

18 Court ruled in 1996, the softball and soccer teams had been established but, per an agreement with the

19 Southeastern Conference schools, actual competition had been delayed. LSU’s prong one numbers

9 f were staggeringly disproportionate: 51% of the student body was male and 49% female, but male

21 athletes constituted 71% of total athletes at the school. In addressing prong two and finding that LSU 22 was not in compliance under that test, the Court stated "this Court finds that historically LSU has 23 demonstrated a practice not to expand women’s athletics at the university before it became absolutely 24 necessary to do so." (Id. at p. 916.) Finally, in Barrett v. West Chester University, 2003 U.S. Dist.

25 LEXIS 21095 (E.D. Pa. 2003), the school announced in 2003 that it was dropping women’s gymnastics

26 and men’s lacrosse. Several members of the gymnastics team sued for an injunction mandating the 27 reinstatement of the team. The university made the decision to drop gymnastics notwithstanding a

28
In the opinion of the athletic administrators at the time, there was a decline in interest and available competition in field hockey. At this same time, interest in soccer at the high school and collegiate level was exploding.

23

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strong recommendation against doing so by the campus Sports Equity Committee which oversees Title

2

issues. This was one of the factors considered by the District Court in coming to the conclusion that

3 the school did not meet prong two. The school had last added a new women’s sport (soccer) in 1992.

4 Prior to that, its last addition of a women’s sport was in 1979.

5

In contrast to Brown University, LSU, Colorado State and West Chester University, the

6 evidence will show that U.C. Davis has demonstrated both a history and practice of program expansion

7 for women. It had an established women’s sports program prior to the passage of Title IX and was a

8 founding member of national governing body for women’s intercollegiate athletics before the NCAA.

9 Prior to the passage of Title IX the campus established a philosophy known as "The Davis View" that

10 included the importance of gender equity in athletics. (Joint Trial Exhibit 14.) Following the passage

11 of Title IX, several more sports were added.

12

The Court will hear evidence that during the late 1980’s and early 1990’s, the Title IX

13 workgroup and often GILL-FISHER emphasized the need for more expansion of women’s athletics or,

14 in the alternative, decreasing male participation opportunities so that the ratio between male and female

15 intercollegiate athletes was more proportionate to their respective enrollment percentages. Some of the

16 memoranda on these issues are strongly worded, and again are primarily authored by GILL-FISHER.

17 The Vice Chancellor for Student Affairs heeded her urgings, as did Interim Athletic Director Williams

18 and FRANKS when he took on responsibility for overseeing intercollegiate athletics and other issues

19 relating to student life.

20

As noted in section IL A. above, despite unprecedented budget cuts that threatened the existence

21 of the entire intercollegiate athletic program, U.C. Davis was able to add three sports for women in

22 1996 as a result of the student referenda. These sports were well established by the time Plaintiffs

23 entered their last year of high school and began considering attending U.C. Davis.

The addition of three sports at one time is a daunting challenge for any institution, particularly

25 one dependant on the uncertainty of whims of legislative funding. U.C. Davis committed to supporting

26 the three new teams and building them into viable, competitive sports competitors, consistent with its

27 long-standing philosophy that each of its intercollegiate teams should be treated equally and strive to

28 became competitive at the highest levels. At the same time this was happening, WARZECKA was

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1 continuing to push down the number of male participation opportunities (in the face of equally 2 unprecedented increases in the number of female undergraduates) and improve the quality of the
113 existing teams for women by upgrading part-time head coaches to full-time status.

4

The Court will hear testimony from the experts retained by both sides. Plaintiffs’ expert, Donna

5 Lopiano, contends that the addition of three sports at once is no different than adding a single sport for

6 that year, for purposes of prong two compliance. She contends that the campus therefore did not show

7 sufficient expansion to invoke compliance under that test. Defendants’ expert, Christine Grant, offers a

B much more reasonable opinion. She will testify that the addition of three sports at once by a school the

9 size of U.C. Davis is almost unheard of, and that the campus should be lauded, not penalized, for

lb choosing to add the teams all at once rather than spread the start dates out over time. If U.C. Davis had

11 done so, women who wanted to participate in the sports that were not started immediately would have

12 forever lost the chance to do so because they would have graduated or have been close to graduating

13 before the next addition. The experts will also offer differing opinions on whether what the few women

14 wrestlers did, in regard to participating on the team as part of the "unofficial status" of women’s

15 wrestling, constitutes a true varsity experience. While the 1996 Clarification states that walk-ons and

16 those students who practice but do not compete will be counted as participants on a team so long as

17 they receive the normal institutional support for varsity athletes including coaching, regularly attend

18 practice, and are listed on the team roster, the cover letter from Ms. Cantu also states that "participation

19 opportunities must be real, not illusory". If the Court relies on the expert testimony, it will have to

20 make a decision on which expert opinion is more credible and viable.

21

WARZECKA also responded to track coach Dee Vochatzer’s request that the track program be

22 expanded to include regular competition in indoor events. Vochatzer, who has extensive intercollegiate

23 coaching experience as well as experience as an Olympics coach, realized that the lack of an indoor

24 track program adversely impacted her ability to attract quality athletes to U.C. Davis, particularly since

25 Davis did not begin to offer athletic scholarships until the late 1990’s. She made a proposal to Keith

26 Williams when he was the Athletic Director that her student athletes be permitted to compete in indoor

27 track events. He agreed, so as long as the cost of entering such events came out of the outdoor track

29 budget. At the time that was possible because the University of Nevada-Reno had a decent indoor track

{0088 I 772.DOC}

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1 facility. By the time WARZECKA took over as Athletic Director the track in that facility had become

2 so run down that it was no longer safe. The only way Vochatzer could continue to provide additional

3 participation opportunities for women in indoor track was to obtain increased funding from

4 WARZECKA so that the athletes could travel to indoor track in venues located in Seattle, Boise and

. 5 Albuquerque. He agreed to provide that funding for both the men’s and women’s track team in

6 1998/1999, which was the same year indoor and outdoor track started to be counted as separate sports

7 on the EADA’ 2 reports.

8

When the Ninth Circuit initially issued its opinion in this case, it stated that "the number of

9 participation opportunities is defined by the number of female athletes actually playing intercollegiate

10 sports" and that the addition of indoor track "did nothing to expand the number of female athletes as all

11 the women participating in indoor track also participated in an existing varsity sport." (Mansourian v. 12 Regents, el. al. 594 F,3d 1095,1107 (9tl Cir. 2010).) The Court erroneously believed that participation

13 opportunities were counted by counting bodies. OCR has made it clear that if one student is a member

14 of two intercollegiate teams, this counts as two participation opportunities. See Miller v. University qf

15 Cincinnatti, 2008 U.S. Dist. LEXIS 4339, 20-21 (S.D. Ohio, Jan. 22,2008):

16

"Plaintiffs assert that the University also incorrectly reports the number of male and

female athletes by counting indoor track and field, outdoor track and field, and cross-
17
country as separate sports. The Department of Education has established this format,

18

however. ... The current Department of Education reporting of ’All Track Combined,"

http://ope.ed.gov/athletics/InstDetail.asp, does not change that approach. Thus, it is

19

proper for the University to count an athlete who competes on the cross-country team,

20

indoor track team and outdoor track team as competing on three separate teams."

21 After the REGENTS filed a petition for rehearing based on the erroneous conclusions about counting 22 indoor track opportunities, the Ninth Circuit issued an amended opinion that omitted that statement. 23 (See Mansouirian v. Regents, 602 F.3d 957, (9th Cir. 2010).) WARZECKA’s agreement to provide

24

25

26

27
28 2 This refers to the Equity in Athletics Disclosure Act, which requires institutions to submit an annual report delineating information pertaining to intercollegiate participation numbers and other related issues.

(0088 1772,DoC)

26
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1 additional funding so that female indoor track athletes could continue to compete constitutes further

2 evidence of a commitment to expanding opportunities. 3

3

In 2003, another call was made for proposals to consider adding a new women’s varsity sport.

4 This was done according to the same process used in 1995, which included specific criteria used for

5 selection. Those criteria include (1) the overall impact on gender equity; (2) interest level; (3) sport

0 sponsorship and available competition; and (4) facilities. Proposals were submitted on behalf of five

7 women’s sports: bowling, field hockey, golf; horse polo and rugby. There was no proposal submitted

8 on behalf of women’s wrestling, just as there had been no proposal for that sport in 1995. GILL-

9 FISHER chaired a committee consisting of a representative of Athletic Administration Advisory

10 Committee, a representative of the Student Athlete Advisory Committee, and a representative of the

11 Sports Club Council. The committee met with a representative of each sport that submitted a proposal,

12 reviewed the written proposals, and then summarized the information. This information was passed on

13 to WARZECKA who reviewed it and made the recommendation that women’s golf be added as a

14 varsity sport. The reasons he recommended golf over the other sports proposed are: (1) golf is a

15 championship sport in the Big West Conference and per Conference rules, U.C. Davis was required to

16 add sports that are already part of that conference before adding non-conference sports; (2) women’s

17 golf was offered by 451 universities nationally, which reflects the interest level in the sport; (3) the

18 NCAA has a golf championship in all three divisions; (4) U.C. Davis received many inquiries from

19 female high school students who were interested in golf; and (5) the local community had indicated a

20 strong support of golf; including use of the El Macero Country Club in Davis. The Vice Chancellor

21 for Student Affairs agreed with WARZECKA’s recommendation.

22

Plaintiffs attack the selection of golf, and the fact that WARZECKA gave its newly appointed

23 coach, Kathy DeYoung, a year to set up a program and recruit a team that could be competitive at the

24 Division I level. DeYoung, a very seasoned coach, will testify about the realities of establishing a team

25 in anew intercollegiate sport and why that cannot be done overnight. Her instincts were good-within a 26 few years the women’s golf team was competing at the championship level.
27

28 13 Unlike schools that have been in the newspaper and under court scrutiny lately for very questionable practices regarding counting of athletic participation opportunities, U.C. Davis has never forced its track and field athletes to run cross-country
in order to participate in the former sport, and it has always had separate coaches for those two sports.

27

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1

Plaintiffs contend prong two cannot be used when a school has eliminated a team. This is not

2 correct. Per the 1996 Clarification, "in the event that an institution eliminated any team for the

3 underrepresented sex, OCR would evaluate the circumstances surrounding this action in assessing

4 whether the institution could satisfy part two of the test." (Exhibit 4 to Joint Request for Judicial

Notice, p. 6) One of the hypothetical examples of prong two compliance in that Clarification includes 6 a school that eliminates a team for a valid reason. (Exhibit 4 to Joint Request for Judicial Notice, p. 6 7 [Institution D example].) U.C. Davis eliminated women’s field hockey because of a lack of

competition and a lack of interest in the sport at that time. Field hockey was replaced by soccer, which

9 was much more popular with students. The fact that UC Davis dropped varsity field hockey and

10 replaced it with women’s varsity soccer is not indicative of a failure to demonstrate program expansion.

11

In a prong-two analysis, another issue that must be considered is whether (notwithstanding a

12 history of program expansion) there has been a decrease in the number of participation opportunities.

13 The presence of a decrease does not preclude reliance on prong two; rather, the reason for the decrease

14 must be examined and a valid explanation will be accepted. (Exhibit 4 to Joint Request for Judicial

15 Notice, p. 6.) Dr. Grant will testify that the reason for the fluctuation at U.C. Davis was the legitimate 16 elimination of "B" or junior varsity water polo and lacrosse teams because of lack of available

17 competition. She has considerable experience as an Athletic Director, and is well aware of the problem

19 of lack of available competition for intercollegiate junior varsity teams. Dr. Grant was surprised to find

19 that U.C. Davis maintained its JY teams for as long as it did.

20

It is unclear whether the question of prong two compliance is one of law or one of fact. Most

21 decisions on that issue have been made either by OCR in the absence of litigation, or by a court in the

22 context of an application for a temporary restraining order or a motion for summary judgment. In either

23 event, the question is well suited for this case as the Court will make combined findings of fact and

24 law.

25

Defendant REGENTS believes the evidence will show that it had both a history and practice of

26 program expansion for women, including an intense period of expansion during a time period that

actually has some relevance to the Plaintiffs. While it is true new sports were not added as frequently

prior to 1996, the law does not require an institution to "leap to gender parity in a single bound."

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28 DEFENDANTS’ TRIAL BRIEF

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1 (Cohen v. Brown University [Cohen II] 991 F.2d. 888, 898(1s’ Cit. 1993).) It is difficult to conceive

2 how a lack of adequate expansion in the early 1970’s (before Plaintiffs were born), or the 1980’s (when

3 they were toddlers and children), or even the first few years of the 90’s (when they were in grade

4 school and junior high) could have any impact on Plaintiffs.

5

B. Section 1983 (Equal Protection) Claim

6

1, Introduction

7

At the Final Pretrial Conference the Court asked whether a stipulation entered into by

8 Defendant REGENTS had any impact on the Equal Protection Clause claim asserted against the

9 individual Defendants. (The Equal Protection Claim is not asserted against the REGENTS.) The

10

is the one set forth in Defendants’ points of law section of the Joint Final Pretrial

11 Statement, specifically that during the time period relevant to the Title IX claim asserted against the

12 REGENTS, the ratio of male and female participants in intercollegiate athletics was not always

13 substantially proportionate to the ratio of male and female undergraduate enrollment at U.S. Davis.

14

The answer to the Court’s inquiry is that "substantial proportionality" is a concept that exists

15 only in the realm of a Title IX claim. It is the first prong of the three part test for effective

16 accommodation of the athletic interests of the underrepresented sex. The fact that athletic participation

17 opportunities may not have been substantially proportionate to undergraduate enrollment ratios during

18 the time period in issue does not ipso facto mean that the individuals sued in this case engaged in

19 intentional discrimination against Plaintiffs on the basis of gender. The regulations pertaining to Title

20 IX, the Interpretation and Clarification issued by the Office for Civil Rights, and case law all make it

21 very clear that (1) an educational institution has the full discretion to select which of the three prongs it

22 chooses to ensure that athletic interests are effectively accommodated; and (2) that compliance under

23 prong one (substantial proportionality) is not required so long as the school demonstrates compliance

24 under prong two or prong three, it is inconceivable that an individual who is employed by a university

25 could be held liable for violating the Equal Protection Clause because the school’s athletic

26 administration as a whole chose to comply with Title IX by expanding opportunities for women rather

27 than cutting opportunities for men in order to make the participation numbers more proportional.

28

(00881772,130C)

29 DEFENDANTS’ TRIAL BRIEF

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1

The regulations, Interpretation, Clarification, and case law also make it clear that a school (and

2 thus the employees of a school) does not have an obligation to establish identical teams for both

3 genders:

4

"As noted above, there is not provision for the requirement of identical programs for men

and women, and no such requirement will be made by the Department. ... In addition, the
5
sport specific concept overlooks two key elements of the Title IX regulation. First, the

6

regulation states that the selection of sports is to be representative of student interests and

abilities. [citation]. A requirement that sports for the members of one sex be available or

7

developed solely on the basis of their existence or development in the program for

8

members of the other sex could conflict with the regulation where the interests and

abilities of male and female students diverge. Second, the regulation frames the general

9

compliance obligations of recipients in terms of program-wide benefits and opportunities.

[citation] As implied above, Title IX protects the individual as a student-athlete, not as a

10

basketball player or swimmer."

1.1
(1979 Policy Interpretation, Exhibit 3 to Joint Request for Judicial Notice, p. 17, comments section; 12 accord Bryant v. Colgate University, 196 U.S. Dist. LEXIS 8392 * 32 (June 11, 1996).)
13
It is equally inconceivable that employees of a university could be held liable for violating the
14
Equal Protection Clause because the school chooses not to add a women’s intercollegiate wrestling
15
team simply because a handful of students ask for that. Title IX makes it clear that there must be a
16
sufficient level of interest field a viable varsity team, and there must be intercollegiate competition
17
available in the geographic region where the school usually competes. These factors did not exist in
18
regard to women’s wrestling. Neither the Equal Protection Clause nor case law under §1983 hold
19
employees of an educational institution to a higher standard effective accommodation of athletic
20
interests than the institution itself is held to.
21
2, The Scope of the Equal Protection Claim to be Tried
22
The §1983 claim is asserted against VANDERHOEF, FRANKS, WARZECKA, GILL-
23
FISHER. Earlier in the case, this Court dismissed the §1983 claim against these individuals on the
24
grounds that it was subsumed by a concomitant Title IX claim. [Docket item 226, pp. 33-38] While
25
this case was on appeal to the Ninth Circuit the Supreme Court issued its opinion in Fitzgerald v.
26
Barnstable School Committee, 555 U.S. 246 (2009), holding that a §1983 claim for gender
27
discrimination in a school setting can be maintained concurrently with a Title IX claim. Accordingly,
28

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30 II1Ifl.UtJt4IM

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1 when the Ninth Circuit remanded this case back to this court for trial, the individual Defendants were

brought back into the suit.

3

The Court has defined the § 1983 claim as "the assertion that defendants violated the Equal

4 Protection Clause by maintaining an athletics program that discriminates on the basis of gender."

5 [Docket item 509, p. 35] Although the focus of this claim is on alleged discriminatory conduct towards 6 the Plaintiffs, t4 it involves an assessment of the athletic program for women as a whole.

7

3. Equal Protection and Intercollegiate Athletics

8

In order to prevail on a § 1983 claim a plaintiff must prove that an individual defendant acted

9 under color of state law, and that his/her acts deprived the plaintiff of a right guaranteed under the laws 10 of the United States. For § 1983 claims based on a theory of violation of the Equal Protection clause,

1.1 Plaintiffs must prove that the individual Defendants acted with the intent or purpose to discriminate

12 against them because of their gender, or with deliberate indifference to a known and established
13 violation of equal treatment. (Lee v. City of Los Angeles 250 F.3d 668, 687(91h Cir. 2001); Flores v.
14 Morgan Hill Un?fiedSch. Distr. 324 F.3d 1130, 1135(9th Cir. 2003).) Discriminatory intent is shown 15 when a decision maker selects or affirms a course of action "because of’, not merely "in spite of’ the 16 actions adverse effects on an identifiable group. (Personnel Adm ’r v. Feeney 442 U.S. 256, 279 17 (1979); Ashcroft v, Jkbal 129 S. Ct. 1937, 1948 (2009).) Stated otherwise, Plaintiffs must prove that

18 each Defendant took action, or failed to take action, not for a neutral purpose but instead to discriminate

19 against them because of their gender. (Id.)

20

This case presents a novel athletics equal protection claim. The overwhelming majority of

21 cases applying the Equal Protection clause to athletic opportunities do so in the context of a girl 22 seeking to play on a specific team for boys (or vice versa) and challenges to the constitutionality of 23 "separate but equal" teams for males and females. (See Barbara L. Pryor, Equal Protection Scrutiny of 24 High School Athletics, 72 Ky. L.J. 935, 935-36.) Ninth Circuit case law considering equal protection

25 in relation to athletic opportunities falls into the above categories.
26

(Clark v. Interscholastic

27
14 in their Points of Law portion of the Joint Final Pretrial Statement, Plaintiffs defined the issue as whether the individual

28 Defendants "discriminated against Plaintiffs and women at U.C. Davis in the provision of intercollegiate athletic
opportunities." (emphasis added). This case is not a class action. Plaintiffs voluntarily dismissed their class claims in 2007 along with their claims for injunctive relief, [Docket item 195]

31

{00881772.D0C}

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1 Association 695 F.2d 1126 (9th Cir. 1982) [boy claimed equal protection violation based on not being

2 allowed to participate on girls volleyball team].) 15 The claim in this case is that there were inequitable

3 participation opportunities at U.C. Davis on a program-wide basis, which in turn resulted in gender

4 discrimination by the individual Defendants against the Plaintiffs.

5

In its ruling on the recent motions for summary judgment filed by the individual Defendants in

6 this case, the Court referred Haffer v. Temple University, 678 F.Supp. 517 (E,D. Penn. 1987) for the

7 proposition that "where a University decides to ’sponsor intercollegiate athletics as part of its

8 educational offerings, this program ’must be made available to all on equal terms’." [Docket item

9 509, p. 25] The Court used this as part of its discussion on the legal standards applicable a §1993 10 claim against an individual (not an educational institution). Haffer is an anomaly. The plaintiffs in

11 that case initially based their claims entirely on Title IX. Ud. at p. 522, fn. 2.) However, after their 12 suit was filed the Supreme Court decided Grove City College v. Bell, supra which (temporarily)

13 ended the application of Title IX to intercollegiate athletics. (See Diana Heckman, Article:

14 Scoreboard: A Concise Chronological Twenty-Five Year History of Title LI Involving Interscholastic

15 and Intercollegiate Athletics, 7 Seton Flail J. Sports L. 391, 403-404 (2008) [Grove City "effectively

16 nullified Title IX in the area of athletics"].) The district court in Haffer ordered the plaintiffs to strike

17 most of their Title IX claim including the portions raising claims about the deficiencies and

18 participation opportunities. (678 F.Supp. at p. 522, fn. 2.) At the same time they were given the 19 opportunity to amend their complaint to add federal constitutional claims. (Id.)

20

The Haffer court recognized the unique aspect of the case: "This appears to be the first case to

21 challenge the operation of an intercollegiate athletic program on federal equal protection grounds."

22 (Id. at p. 522.) However, it did no more than summarily adjudicate some claims and find that a triable 23 issue of material fact existed on others. The merits of the case were never reviewed by an appellate

24

25
26 ’ There is one other Ninth Circuit case mentioning an equal protection claim challenging the equity of participation opportunities on a program-wide basis. (Ridgeway v. Montana High School Association, 858 F.2d 579 (9 Cir. 1988).) That
27 class action case came to the Ninth Circuit following a settlement reached via the use of a "facilitator" in lieu of litigation. (Id at p. 580-81.) The Court of Appeals declined to address the legal merits of the equal protection claim because of the
28 posture in which the case reached that court. (Id. at p. 589,)

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32 DEFENDANTS’ TRIAL BRIEF

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1 court-it settled via a consent decree. (See Defendants’ Request for Judicial Notice in Support of Trial

2 Brief)

3

Following the passage of the passage of the Civil Rights Restoration Act (20 U.S.C. § 1638) in

4 1988 which legislatively overruled Grove City College v. Bell, most claims relating to equitable

5 participation opportunities in athletics have been litigated under Title IX. See, e.g. Cohen v. Brown

6 University, (Cohen 1), supra; Pederson v. Lousiana State University, supra; Boucher v. Syracuse

7 University, 164 F.3d 113 (2d. Ch. 1998); Barrett v. West Chester University, 2003 U.S. Dist. LEXIS

8 21095 (E.D. Pa. November 12, 2003). In doing so, courts have applied the three-part test set forth in

9 the 1979 Policy Interpretation. These cases do not address the standard to be applied to a constitutional

10 claim of unequal athletic participation opportunities asserted against a person who is employed by a

.11 college or university, as opposed to the institution itself. Rather, the Policy Interpretation applies to

12 the Title IX implementing regulation, which in turn applies only to institutions that receive federal

13 funds. (34 C.F.R. §106.41.)

14

The Haffer court looked at Temple University’s athletic program (not the acts of any

15 individual defendants) and conducted an analysis that looked very much like a prong one analysis used 16 in a Title IX case. 16 In sum, the most important takeaway point in the Haffer case for purposes of the

17 trial in this case is its citation to Washington v. Davis, 426 U.S. 229 (1976) and the requirement that a 18 plaintiff suing under the Equal Protection Clause prove both an invidious intent to discriminate on the

19 basis of gender and that a state action had an adverse impact on her. (Haffer, supra at p. 524.)

20

Clark v. Interscholastic Association, supra, addressed the issue of whether a "policy of

21 precluding boys from playing on girls’ interscholastic volleyball teams in Arizona high schools

22 violates the equal protection clause." (Id at p. 1127) It did not address Title IX issues at all, most 23 likely because boys in the Arizona high school system would not be considered the underrepresented

24 sex in regard to athletic opportunity. The court did make reference to overall equality of athletic

25 opportunity and noted that "while a lack of overall equality of athletic opportunity certainly raises its 26 own problems, the presence of such equality cannot by itself justify specific inequality of opportunity
27

28 ’ The court also went through an analysis of money spent by Temple on items such as recruiting, coaching, and uniforms. In Title IX parlance, this is known as the "laundry list." Plaintiffs have only an effective accommodation of interests claim, not a "laundry list" claim.

33

0088 1772. DOC)

DEFENDANTS’ TRIAL

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 38 of 43

1 in any given sport. The question, then, is whether denying boys the particular opportunity to compete

2 on a girls’ volleyball team, even when boys’ overall opportunity is not inferior to girls’, can be

3

as substantially related to an important governmental interest." (Clark, 695 F.2d at pp. 1130-

4 31) The court did not address the issue of how an overall ineffective accommodation claim under

5 § 1983 may or must be squared with an effective accommodation claim under Title IX.

6

4. The Individual Defendants Cannot be Held to a Higher Standard Than the

7

Institutional Defendant in Regard to Provision of Equal Athletic

Opportunities

8

9

WARZECKA and GILL-FISHER spent their entire careers in the area of intercollegiate

10 athletics. In the course of doing so they reasonably relied on Title IX regulations, interpretations, and

11 clarifications, and their application to the women’s intercollegiate sport program at U.C. Davis.

12 Similarly, albeit on a more macro level, FRANKS and VANDERHOEF also relied on those authorities.

13 In determining whether Plaintiffs have met their burden of proving a violation of §1983 by these

14 individuals, the Court must take Title IX requirements into account even though there are differences

15 between it and §1983 as identified in Fitzgerald v. Barnstable. To do otherwise would completely

16 undermine the specific dictates of the Department of Education and its Office for Civil Rights. Further,

11 holding an individual liable based on a more demanding standard than established by Title IX law will

18 have a severe chilling effect on the desire of any person to work in the field of intercollegiate athletics.

19 As the Court will hear during trial, none of the individual Defendants alone, perhaps with the exception

20 of VANDERHOEF, had the authority to "order" U.C. Davis to comply under a particular prong or to

21 add more opportunities for women. While VANDERHOEF may have theoretically had such authority,

22 he would never exercise it alone in the absence of guidance from others who have expertise in the many

23 aspects of intercollegiate athletics.

24

The Ninth Circuit has held (albeit in a different factual context) that complying with Title IX

25 the 1979 Policy Interpretation does not violate the Equal Protection clause. (Neal, supra, at p.

26 [stating that the constitutional analysis in other cases "persuasively disposes of any serious constitut

27 concerns that might be raised in relation to the OCR Policy Interpretation"].) Other circuits have

28 recognized that compliance with Title IX-- and attempts to comply with it-- do not violate

10088 I 772.DOC}

34 DEFENDANTS’ TRIAL BRIEF

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1 protection requirements. Miami University Wrestling Club v. Miami University 302 F.3d 608 (6th Cit.

2 2002) is a compelling example of the congruence of Title IX and Equal Protection clause law:

3

"In the case before us today, it is evident that Miami took the challenged actions in an

4

attempt to comply with the requirements of Title IX, and, as we explain below, Miami

was successful in that attempt. Only if Title IX, its regulations or the Policy

5

Interpretation are unconstitutional-- an issue not before us in this lawsuit-- could we hold

that Miami’s compliance with the law and the regulations is unconstitutional."

6 (Id. at p. 614.)

7 Kelley v. Board of Trustees, 35 F.3d 265(7th Cir. 1994) is another good example

8
"Plaintiffs’ final argument is that the defendants’ decision to eliminate the men’s

9

swimming program while retaining the women’s program denied them equal protection

of law as guaranteed by the Fourteenth Amendment. We do not agree. First, the record

10

makes clear that the University considered gender solely to ensure that its actions did not

11

violate federal law. And insofar as the University actions were taken in an attempt to

comply with the requirements of Title IX, plaintiffs’ attack on those actions is merely a

12

collateral attack on the statute and regulations and is therefore impermissible."

(Id. at p. 272.)
13

14

This Court has ruled that Plaintiffs’ claims based on discrete events that occurred during

15 2000/2001 school year are time-barred (see section V, infra). Thus, they are precluded by the statute

16. limitations from claiming that the individual Defendants violated the Equal Protection Clause 17 allegedly removing them from the wrestling team roster or requiring that all persons trying out for

18 wrestling team compete on the same terms. [Docket item 509, p. 22] Conversely, Plaintiffs cannot ar

19 that Defendants had an obligation under the Equal Protection clause to establish a separ

20 intercollegiate wrestling team for women or set up a separate roster cap for females only.

21

The evidence will show that former Chancellor VANDERHOEF by necessity delegated the

22 to day operations of the intercollegiate athletic program to the Athletic Director. He became involved:

23 the issue pertaining to the women wrestlers only because Assembly Member Thomson injected herse

24 into it at the request of her chief of staff. Indeed, Thomson and Reynolds would not agree to speak wi

25 anyone other than the Chancellor himself until Sue Williams prevailed upon Thomson to listen to wh

26 the coaches and GILL-FISHER had to say. Plaintiffs’ contention that the head of a campus as large

27 U.C. Davis should have personally handled their demand to be given a spot on an athletic team shows

28 lack of understanding about nature of running a large organization.

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35 DEFENDANTS’ TRIAL BRIEF

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The authority for overseeing intercollegiate athletics was delegated by VANDERHOEF to

2 Vice Chancellor for Student Affairs, who in turn delegated it to FRANKS. After recovering from t

3 shock of receiving the memo from Plaintiffs regarding their claim of "sexual discrimination," PRAM

4 immediately contacted the Title TX compliance officer and started the process of addressing t.

5 allegations of mistreatment. One week later, he notified the women that their request for reinstatemc

6 on the team was granted. Ile met with them, even after they declined the reinstatement offer until th

7 could consult with their attorney. Plaintiffs asked FRANKS about the establishment of a separate rosi

8 caps for women; he asked others to look into that, including consulting with experts in the field, and g

9 back to Plaintiffs quickly with the response. FRANKS also offered to reduce the minimum number

10 students necessary to form a club team in wrestling. His actions were consistent with the commitment

11 Title IX and gender equity issues he demonstrated from the time he first assumed responsibility I

12 intercollegiate athletics, including but not limited to the efforts he put into the student referenda ti

13 saved varsity athletics for all students. It must be remembered that FRANKS owed a duty of faimc

14 and equality to all students-not just Plaintiffs. He could not agree to give them preferential treatment

15 the expense of other students.

16

WARZECKA’s actions towards gender equity speak for themselves. He picked up the ball

17 expanding opportunities for women in 1996 and hasn’t stopped running with it yet. WARZEC

18 accomplished significant improvements in gender equity under severe financial limitations. Under

19 watch, women’s intercollegiate athletics expanded at a rate unsurpassed in campus history. He is

20 victim of untrue accusations made by a disgruntled former coach, which were blindly adopted by

21 and MANSOURIAN, and later MANCUSO. WARZECKA was involved in crafting a resolution to

22 women wrestler’s complaint that was fair and equitable to all students.

23

Finally, it is almost inconceivable that Plaintiffs have accused GILL-FISHER of

24 discriminating against female students. They will have the opportunity during this trial to learn ft

25 about the woman they have sued for punitive damages. They will learn about her experiences as

26 athlete in the 1960’s, and how events that occurred back then shaped her attitude towards athletics

27 her passion to improve conditions for female athletes. They will learn about the many hours she sr

28 volunteering her time with organizations and committees dedicated to women’s athletics. They

{00881772.DOC}

36
DEFENDANTS’ TRIAL BRIEF

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1 learn that although enforcing compliance with Title IX was never her responsiblity, she was asked ea

2 on to research and report on gender equity issues and did so even in the face of resistance from some

3 her peers. They will learn that when she had a discussion with two other women wrestlers in the spri

.4 of 2000, who were in her office because they had not filled out the paperwork required to participate

5 wrestling team practices, GILL-FISHER did not express distain for women wrestlers (as Plainti

6 believe) but rather discussed ways in which they could develop the sport of women’s wrestling

7 include competition with other teams rather than just practicing with each other. GILL-FISHER and

8 of the other seasoned intercollegiate coaches knew one of the best ways to develop a nascent sport is

9 the club sport program. Finally, they will learn how hurt and upset GILL-FISHER was to read and h

10 false statements made by Plaintiffs and Burch that she had ordered the women removed from

11 wrestling team roster. The evidence will show that Burch was the person who made the roster decisi

12 but did not have the courage to tell Plaintiffs he did so.

13

In sum, Defendants believe the evidence will show that their actions were consistent with

14 IX and did not violate the Equal Protection Clause.

15

I,,

16

STATUTE OF LIMITATIONS

17

The Court and the Ninth Circuit have made a series of rulings regarding the statute of

18 limitations. These rulings have resulted in the holding that discrete events connected to Plaintiff’s

19 participation (or lack thereof) on the wrestling team are barred as untimely for purposes of both the §

20 1983 claim and the Title IX claim. The relevant rulings are:

21

May 5, 2004, Order on motion to dismiss: This Court denied Defendants’ motion to dismiss

22

based on the statute of limitations but indicated the argument should be addressed in a future

23

motion. [Docket 425, pp. 9-161

24

October 18, 2007, Order on motion for judgment on the pleadings: This Court ruled that

25

Plaintiffs’ Title IX unequal treatment claim was time-barred. [Docket #226, p. 211 It

26

defined that claim as arising out of discrete events related to the wrestling team. [Id. at pp.

27

9-10] The Court did not address the application of the statute of limitations to the Title IX

28

ineffective accommodation claim that challenged the equity of participation opportunities

(00881772.130C)

37
TRIAL BRIEF

Case 2:03-cv-02591-KJM -EFB Document 563 Filed 05/05/11 Page 42 of 43

for female students as compared to males. [Id. at p. 21, fn. 9 & pp. 23-30] It also did not

2

address the bar of the statute of limitations as applied to the § 1983 claim against the

3

individual Defendants because it dismissed that claim on other grounds. [Id. at pp. 33-38]

4

April 23, 2008, Order on UNIVERSITY’s motion for summary judgment: This Court

5

granted the UNIVERSITY’s motion for summary judgment on the ground that Plaintiffs

6

failed to provide it with notice before filing their Title IX claim. [Docket #368]

7

April 20, 2010: the Ninth Circuit issued its amended opinion reversing the grant of summary

8

judgment on the Title IX claim and reinstating the § 1983 claim against the individual

9

Defendants (Mansourian v. Regents, supra), The Court of Appeals did not address the

10

application of the statute of limitations to the Title IX claim. In response to

11

Defendants/Appellees’ argument that reinstatement of the § 1983 claim would be an empty

12

exercise because of the lower court’s ruling that the concomitant unequal treatment claim

13

under Title IX was time barred, the Ninth Circuit overlooked this Court’s ruling on the

14

motion for judgment on the pleadings and instead just referred to the earlier motion to

15

dismiss. "In fact, the district court considered and rejected the statute of limitations defense

16

as to both the Title IX effective accommodation and § 1983 equal protection claims in

17

response to UCD’s original motion to dismiss." (602 F.3d at p. 973.)

18

December 8, 2010, Order on Individual Defendants’ motions for summary judgment: This

19

Court ruled that the § 1983 claim is time-barred to the extent it arises "from (1) the alleged

20

purposeful removal of plaintiffs from the varsity wrestling program based on gender; and (2)

21

the imposition of permanent barriers to the participation of plaintiffs in the varsity wrestling

22

program through application of the wrestle-off policy." [Docket #509, p. 221 The Court

23

further ruled that the § 1983 claim is timely regarding the allegation of violation of "the

24

Equal Protection Clause by maintaining an athletics program that discriminates on the basis

25

of gender." [Id. at p. 35] It recognized that the Ninth Circuit had failed to address all of its

26

relevant statute of limitations rulings. [Id. at p. 18, fn. 15]

27

28

I {00881772.D0C}

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1

Plaintiffs have very recently filed a motion for reconsideration of this Court’s December 8,

2 2010 ruling on the statute of limitations as it applies to the § 1983 claim. Defendants will address that

3 motion in their opposition to it.

4

The effect of the Court’s December 8, 2010 ruling on the remaining claim is somewhat

5 confusing. In footnote 17 of that order, the Court stated that while the alleged removal of the women

6 from the team roster and the purported erection of barriers to participation on the team due to the

7 requirement that Plaintiffs try out just like other students are time-barred events, they "may still be used

8 as evidence in support of Plaintiffs’ timely claims of intentional, systemic discrimination." This is not

9 a class action. Plaintiffs were not interested in participating in any sport other than wrestling. They did

10 not enter U.C. Davis until 1998 at the earliest, and were gone by 2006. The time-barred events that

11 took place during the 2000/2001 school year form the core of their claims. Without those events, it is

12 difficult to understand what is left that actually pertains to them.

13

14

VI,

15

16

This Court is faced with deciding several novel issues that will likely set precedent for colleges

17 and universities, as well as athletic administration personnel, throughout the nation. Defendants

18 believe the evidence will show that they, along with many other dedicated University employees, have

19 furthered the laudable goal of gender equity in intercollegiate athletics.

20

Respectfully submitted,

21 Dated: May 5, 2011
22

PORTER SCOTT A PROFESSIONAL CORPORATION

23

By: /s/ Nancy J. Sheehan

Nancy J. Sheehan

24

David P.E. Burkett

25

Attorneys for Defendants

26

27

28

(0088 1772DOC}

39 DEFENDANTS’ TRIAL BRIEF

 
 Case 2:03-cv-02591-KJM -EFB Document 561 Filed 05/05/11 Page 1 of 38

1 James C. Sturdevant, SBN 94551 (jsturdevant@sturdevantlaw.com) Whitney Huston, SBN 234863 (whuston@sturdevantlaw.com)
2 THE STURDEVANT LAW FIRM A Professional Corporation
3 354 Pine Street, Fourth Floor San Francisco, CA 94104
4 Telephone: (415) 477-2410 Facsimile: (415) 477-2420
5 Noreen Farrell, SBN 191600 (nfarrell@equalrights.org)
6 Jora Trang, SBN 218059 (jtrang@equalrights.org) EQUAL RIGHTS ADVOCATES
7 100 Bush Street, Suite 1800 San Francisco, CA 94105
8 Telephone: (415) 621-0672 Facsimile: (415) 621-6744
9 Monique Olivier, SBN 190385 (monique@dplolaw.com)
10 DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 Bush Street, Suite 1800
11 San Francisco, CA 94104 Telephone: (415) 433-0333
12 Facsimile: (415) 449-6556

13 Kristen Galles (SBN 148740) (kgalles@comcast.net) EQUITY LEGAL
14 10 Rosecrest Avenue Alexandria, VA 22301
15 Telephone: (703) 683-4491

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

18

[Sacramento Division]

19 AREZOU MANSOURIAN; LAUREN MANCUSO; and CHRISTINE WING-SI NG,
20 Plaintiffs,
21 vs.
22 REGENTS OF THE UNIVERSITY OF
23 CALIFORNIA, et al.

24

Defendants.

CASE NO. S-03-2591 FCD EFB PLAINTIFFS’ TRIAL BRIEF

Courtroom: 2

Judge:

Hon. Frank C. Damrell, Jr

Complaint filed: December 18, 2003

Trial date:

April 26, 2011

25

26

27

28

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1 2 I. 3 II. 4 5 6 7 8
III. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS INTRODUCTION ...............................................................................................................1
STATEMENT OF FACTS ..................................................................................................4
A. The Parties. ..............................................................................................................4
B. Historic Discrimination In UCD’s Athletic Program. .............................................5
C. Defendants Continued Its Practice of Non-Expansion With The Elimination of Female Participation Opportunities, Including Wrestling. ................................................................................................6
SUMMARY POINTS OF LAW..........................................................................................8
A. Plaintiffs Will Prevail on Their Title IX Claim. ......................................................9
1. The Legal Framework for Evaluating Title IX Effective Accommodation Claims...............................................................................9
2. UCD Did Not Comply With Title IX Through Prongs One or Three......................................................................................................13
3. UCD Cannot Prove Compliance with Prong Two of the Three Part Test.................................................................................13
i. UCD Cannot Demonstrate a History of Program Expansion for Women. ..................................................................14
ii. UCD Cannot Demonstrate a Continuing Practice of Program Expansion that is Demonstrably Responsive to the Developing Interests of its Female Students........................16
4. UCD Cannot Rely on Prong Two Where It Reduced Women’s Athletic Participation Opportunities and Eliminated All Women’s Opportunities in Wrestling. ..............................18
B. Plaintiffs Will Prevail On Their Equal Protection Claim. .....................................21
1. The Legal Framework for Equal Protection Claims. .................................22
2. The Individual Defendants Violated Plaintiffs’ Constitutional Right to Be Free from Sex Discrimination under the Equal Protection Clause.............................................................24
i. Defendants’ Policies Were Facially Discriminatory......................24
ii. The Individual Defendants Were Responsible for Creating and Maintaining Discriminatory Policies........................25

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1 2 3 4
IV. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

iii. The Individual Defendants Offer No Justification For Their Discrimination, Much Less an Exceedingly Persuasive One...............................................................................26
3. The Individual Defendants Cannot Establish Qualified Immunity From Suit...................................................................................27
CONCLUSION..................................................................................................................28

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1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Alston v. Virginia High School League, Inc., 144 F. Supp. 2d 526 (W.D. Va. 1999) ...............................................................................23
4

5

al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) .......................................................................................26, 27

6 Barrett v. West Chester University of Pennsylvania,

7

2003 WL 22803477 (E.D. Pa. Nov. 12, 2003) ..................................................................19

8 Brenden v. Independent School District,

9

477 F.2d 1292 (8th Cir. 1973) ...........................................................................................23

10 Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946 (1979)....................................................................................9

11

City of Cleburne v. Cleburne Living Center,

12

473 U.S. 432, 439, S. Ct. 3249 (1985)...............................................................................22

13 Clark v. Arizona Interscholastic Association,

14

695 F.2d 1126 (9th Cir. 1982) .....................................................................................23, 25

15 Communities for Equity v. Michigan High School Athletic Association, 459 F.3d 676 (6th Cir. 2006) .......................................................................................12, 23
16

17 Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993)..................................................................................11, 12, 19

18

Cohen v. Brown University,

19

101 F.3d 155 (1st Cir. 1996)..............................................................................................18

20 Favia v. Indiana University of Pennsylvania,

21

812 F. Supp. 578 (W.D. Pa.),

aff’d, 7 F.3d 332 (3rd Cir. 1993)............................................................................11, 12, 21

22

Haffer v. Temple University,

23

678 F. Supp. 517 (E.D. Pa. 1987) ..........................................................................12, 23, 25

24 Hoover v. Meiklejohn,

25

430 F. Supp. 164 (D. Colo. 1977)......................................................................................23

26 Leffel v. Wisconsin Interscholastic Athletic Association, 444 F. Supp. 1117 (E.D. Wis. 1978)..................................................................................23
27

28

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1

Mansourian v. Regents of the University of California, 602 F.3d 957 (9th Cir. 2010) ..................................................................................... passim

2 Miami University Wrestling Club v. Miami University,

3

302 F.3d 608 (6th Cir. 2002) .............................................................................................24

4 Mississippi University for Women v. Hogan,

5

458 U.S. 718, 102 S. Ct. 3331 (1982)..........................................................................23, 24

6 Neal v. Board of Trustees, 198 F.3d 763 (9th Cir. 1999) .................................................................................10, 12, 24

7

North Haven Board of Education v. Bell,

8

456 U.S. 512, 102 S. Ct. 1912 (1982)..................................................................................9

9 Ollier v. Sweetwater Union High School District,

10

604 F. Supp. 2d 1264 (S.D. Cal. 2009)..............................................................................17

11 Oona v. McCaffrey, 143 F.3d 473 (9th Cir. 1998) .............................................................................................23
12

13

Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000) .......................................................................................12, 19

14

Roberts v. Colorado State Board of Agriculture,

15

998 F.2d 824 (10th Cir. 1993) .....................................................................................13, 19

16 Roberts v. Colorado State University,

17

814 F. Supp. 1512 (D. Colo.)

aff’d in relevant part,

18

998 F.2d 824 (10th Cir. 1993) ...........................................................................................11

19 Thomas v. Bible, 983 F.2d 152 (9th Cir. 1993) .............................................................................................18
20

21 United States v. Virginia, 518 U.S. 515, 532-33, S. Ct. 2264 (1996) .........................................................................22

22

Williams v. School District of Bethlehem,

23

998 F.2d 168 (3rd Cir. 1993) .......................................................................................10, 12

24

FEDERAL CONSITUTION, STATUTES, AND REGULATIONS

25 United States Constitution

26

Fourteenth Amendment, § 1 ..............................................................................................22

27 34 C.F.R.

28

§ 106.3................................................................................................................................10

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1

§ 106.37 .............................................................................................................................10 § 106.41(c) .........................................................................................................................10

2

§ 106.41(d).........................................................................................................................10

3 20 U.S.C.

§ 1681 et seq ........................................................................................................................2

4

§ 1681(a) ..............................................................................................................................9

5

§ 1687...................................................................................................................................9 § 3401-3510 .......................................................................................................................10

6 42 U.S.C.

7

§ 1983.............................................................................................................................2, 22

8 Department of Education Organization Act,

9

Pub. L. No. 96-88, 93 Stat. 669 .........................................................................................10

10 Title IX of the Education Amendment of 1972: A Policy Interpretation; Title IX on Intercollegiate Athletics (Dec. 11, 1979), 44 Fed. Reg.

11

71413..................................................................................................................................11

71414..................................................................................................................................12

12

71415..................................................................................................................................20

13

71418......................................................................................................................12, 13, 14

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng (hereafter “Plaintiffs”)

3 were denied their right to a full and equal public education by the University of California at Davis

4 (“UCD”). These committed women wrestlers participated in high school wrestling and chose to

5 attend UCD because its prestigious women’s varsity wrestling program that would allow them to

6 participate at the national and intercollegiate level, just as other UCD female students had before

7 them. Indeed, UCD had offered women’s wrestling opportunities for years, producing several

8 nationally and even internationally acclaimed female wrestlers.

9

Arezou Mansourian declined admission to the University of California, Riverside’s medical

10 program in order to wrestle at UCD. Chris Ng wanted to wrestle because of the confidence it gave

11 her for other facets of her life. Lauren Mancuso was a wrestling powerhouse who planned to wrestle

12 at UCD to prepare her for 2004 Olympics. All three women had such passion for wrestling that they

13 fought significant barriers to wrestle at high school. All three looked forward to continuing this life-

14 enhancing part of their educational experience at UCD.

15

Unfortunately, after Plaintiffs arrived at UCD they were subjected to long-standing sex

16 discrimination in Defendants’ varsity athletic program. For decades, Defendants had a policy of 17 denying women an equal opportunity to participate in the educational program of varsity athletics. 18 Although Defendants lawfully separated its varsity athletic opportunities by sex (i.e., men’s 19 basketball & women’s basketball), it unlawfully failed and refused to allocate those opportunities in

20 a nondiscriminatory manner. Defendants had long offered hundreds of opportunities to male

21 students, but had never added enough opportunities to female students to reach equity or to meet

22 women’s already existing and developing interests. Defendants exacerbated this program-wide

23 discrimination when it reduced women’s opportunities in the late 1990s and early 2000s and when it

24 eliminated women’s wrestling opportunities entirely, without replacing them, yet retained

25 opportunities for men.

26

While Plaintiffs and other female students sought for access to varsity athletic participation

27 opportunities, Defendants did not listen. Instead, they spent millions of dollars to start offering

28 athletic scholarships, to move UCD’s athletic program from NCAA Division II to Division I, and to

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1 build massive new facilities (such as a $30 million football stadium). Rather than creating equal

2 opportunity, Defendants focused on their own dreams of moving UCD into “big time” athletics.

3

In 2003, Plaintiffs Mansourian and Mancuso were female students at UCD who wanted to

4 participate in women’s wrestling but were barred from doing so by Defendants’ discriminatory

5 policies. Plaintiff Ng was a recent graduate who had unsuccessfully fought Defendants’

6 discrimination to no avail. All three women wanted equal access to educational athletics for

7 themselves and for all of UCD’s female students. All wanted UCD to add athletic opportunities for

8 women, including wrestling. All wanted to hold UCD accountable for its discrimination so that no

9 other women would be subjected to it. Defendants’ refusal to restore wrestling or any other

10 opportunities for women triggered this legal action.1

11

Plaintiffs allege and will demonstrate at trial that Defendants’ longstanding discriminatory

12 policies violate Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and the

13 Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as enforced

14 through 42 U.S.C. § 1983.

15

Plaintiffs will prevail on their Title IX claim because UCD: (1) stipulates or otherwise

16 agrees through undisputed facts that it does not offer female students opportunities to participate in

17 varsity athletics in numbers substantially proportionate to their enrollment, (2) cannot establish a

18 history and continuing practice of athletic program expansion that is demonstrably responsive to the

19 developing – or already existing – athletic interests of its female students, and (3) stipulates or

20 otherwise agrees through undisputed facts that it does not fully and effectively accommodate the

21 athletic interests and abilities of its female students.2 Unfortunately, UCD has never provided

22

1 When Plaintiffs filed this action, they primarily sought injunctive relief on behalf of a class

of all female students who were denied equal access to varsity athletics at UCD. Plaintiffs were 23 denied leave to amend the complaint to add additional plaintiffs. Plaintiffs maintain claims for

declaratory relief to vindicate their cause and money damages to remedy the harm they endured.

24

2 Defendant UCD’s stipulation with respect to Prongs One and Two were filed with the Court

25 in the Joint Pretrial Statement and Plaintiffs believe these unamended stipulations remain operative. Plaintiffs plan to seek clarification regarding the omission of this filed stipulation in the Court’s

26 latest Amended Pretrial Conference Order. (Dkt. 549.) Regardless, however, of whether a stipulation is on file, undisputed facts establish UCD’s failure to comply with Prongs One (Dkt. 549,

27 § III Undisputed Facts (hereinafter “UF”) ¶ 21 & Appendix A thereto) and Prong Three (UF ¶¶ 2225).

28

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1 women with the equity required by law, despite longstanding interest and ability. Notably,

2 Defendant Regents of the University of California (“Regents”) has the burden of proof on the one

3 issue to which it has not already conceded noncompliance. No school has ever met this burden. Nor

4 can Defendant Regents here.

5

Plaintiffs will prevail on their Equal Protection Claim because the Individual Defendants are

6 high ranking UCD officials who had direct responsibility for or direct involvement in operating 7 UCD’s athletic program and in ensuring gender equity at the university. Instead of providing that 8 equity, the Individual Defendants have chosen to discriminate on the basis of sex in the allocation of 9 varsity athletic participation opportunities and in offering varsity wrestling opportunities to men but

10 not women. The sex discrimination is clear and indisputable. It is facially apparent in the disparate

11 allocation of athletic opportunities (as reported by UCD to the Department of Education) and in its

12 refusal at the same time to provide opportunities at all for women in wrestling. Thus, the trial of

13 Plaintiffs’ Equal Protection Claim will turn on whether the Individual Defendants can demonstrate

14 an “exceedingly persuasive justification” for their disparate treatment of male and female students.

15 To-date, the Individual Defendants have failed to provide any justification, let alone an exceedingly

16 persuasive reason.

17

Finally, as this Court has already held, the Individual Defendants cannot escape

18 responsibility for their actions through qualified immunity. Plaintiffs’ constitutional right to be free

19 from sex discrimination in education was and remains well settled. It has been 30 years since the

20 Supreme Court told the Mississippi University for Women that it could not offer nursing school

21 opportunities only to women (not men) and nearly 20 years since the Ninth Circuit held that that the

22 Equal Protection Clause may be violated when athletic opportunities are unequal or when there is

23 inequality in opportunity in a given sport. Yet, the Individual Defendants willfully ignored these

24 constitutional mandates and, despite numerous complaints and public outcry, refused to provide

25 Plaintiffs and other female students the opportunities they deserved – and to which they were legally

26 entitled. The Individual Defendants’ actions deprived Plaintiffs of their right to a public university 27 experience on the same terms offered to men, and thus deprived Plaintiffs of a full and equal public 28 education.

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1 II. STATEMENT OF FACTS

2

Defendants Regents, Vanderhoef, Franks, Warzecka, and Gill-Fisher cultivated a systemic

3 discriminatory policy that did not expand female intercollegiate3 athletic opportunities responsive to

4 interest and that excluded women from their fair share of those opportunities. Defendants’ long

5 history of discriminating against women and Plaintiffs in the provision of intercollegiate

6 participation opportunities will speak for itself at trial.

7

A. The Parties.

8

Plaintiffs Ng, Mansourian, and Mancuso were three young women who wrestled in high

9 school and came to UCD to join a long tradition of women wrestling at the intercollegiate level. For

10 Plaintiffs, wrestling was a formative part of their scholastic experience, and one that developed their

11 strong work ethic and tenacity as young adults. Ng entered UCD in 1998 and graduated in 2002.

12 (UF ¶ 6.) Mancuso entered UCD in 2000 and graduated in 2004. (UF ¶ 7.) Mancuso entered UCD

13 in 2001 and graduated in 2006. (UF ¶ 8.)

14

The Individual Defendants were/are high ranking officials at UCD. Defendant Vanderhoef

15 was the chancellor of the entire university who was responsible for all UCD’s programs (including

16 athletics) and for UCD’s compliance with civil rights laws. (See UF ¶ 10.) Defendant Warzecka is

17 UCD’s athletic director. (UF ¶ 12.) He runs the daily operation of UCD’s athletic programs and

18 makes the ultimate decisions about which programs it will offer. (Id.) Defendant Gill-Fisher has

19 spent nearly her entire adult life at UCD. (UF ¶ 13.) She was a UCD student and has worked at

20 UCD since graduation. She was the associate athletic director and the senior woman administrator,

21 responsible for ensuring gender equity. (Id.) Given her 40 years in the program, she carried great

22 weight and influence over its direction. Defendant Franks was the assistant vice chancellor with

23 direct responsibility over UCD’s athletic program. (UF ¶ 11.) He participated in strategic decisions

24 about the athletic department and was personally involved in making or ratifying many of the

25 decisions relevant to this legal action. (See id.)

26

3 “Intercollegiate” refers to varsity and junior varsity teams, as opposed to club or intramural

27

teams, which do not receive coaching or athletic scholarships and other benefits listed in the regulations. Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957, 962 n.2 (9th Cir. 2010).

28

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1

B. Historic Discrimination in UCD’s Athletic Program.

2

While this suit was brought in 2003 by women wrestlers, its history begins decades before.

3 UCD’s record confirms that while UCD started sponsoring men’s intercollegiate teams in 1909, it

4 took several decades for the first woman’s team to be added. After the passage of Title IX, UCD

5 added no opportunities for women until it added soccer in 1983 (while simultaneously ending field 6 hockey.)4 Plaintiffs will also present evidence that UCD dropped women’s golf around the same

7 time. Yet, throughout the 1970’s, UCD women expressed interest in or participated in

8 intercollegiate bowling, rifle, badminton, and synchronized swimming. Over 30 years later, none of

9 these sports have been promoted to varsity status. Throughout the 1980’s, more women created

10 competitive club sports teams in water polo, equestrian, and crew. The former varsity field hockey

11 players also set up a club team of their own. Women also continued to participate in badminton and 12 bowling.5 Despite this large, existing evidence of women’s interest in competitive, intercollegiate

13 athletics, UCD failed to add new varsity opportunities for women throughout the 1970’s, 1980’s, and

14 early 1990’s.

15

At trial, Plaintiffs will establish that in 1991, Defendant Pam Gill-Fisher and other UCD

16 administrators evaluated UCD’s gender equity compliance for the first time since 1976. The

17 evaluation concluded that UCD did not provide women with substantially proportionate athletic

18 participation opportunities and that its record “cannot be termed a demonstrably responsive process

19 of program expansion … particularly when female participation relative to male participation has

20 been decreasing over the past three years.” The committee also noted “resistance within the Athletic

21 Department to UC Davis’s efforts to ensure total compliance with Title IX.” Meanwhile, UCD

22 eliminated over 100 women’s opportunities between 1989 and 1991.

23

Even though UCD recognized that it was not complying with Title IX and was not allocating

24 4 Plaintiffs will show that Defendants added women’s cross country in 1971, but anticipate
25 that Defendants will claim this sport was actually added at a later date. Plaintiffs will establish that regardless of when this sport was added, UCD’s own records reflect that this sport did not add
26 opportunities.

27

5 Exhibit A attached hereto reflects the level of participation of women in club sports at UCD from 1981, when UCD began to record this data through 1999.

28

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1 athletic participation opportunities equitably, Plaintiffs will demonstrate that the situation worsened.

2 In 1992, an associate athletic director warned of a “backslide in compliance,” and in 1993, UCD’s

3 acting athletic director noted that the ratio of women participating had decreased slightly in recent

4 years. Nevertheless, UCD took no action to replace (let alone expand) women’s opportunities until

5 1995. By that time, UCD’s gap between female enrollment and female athletic participation was 6 20%. (See Ex. B., attached hereto.)6

7

Despite UCD’s woefully inadequate record on gender equity and despite 20 years of unmet

8 women’s interest, UCD added only three new women’s sports (crew, water polo, and lacrosse). (UF

9 ¶ 23.) Even after the addition of these sports, UCD’s participation gap exceeded 11%. (See Ex. B.)

10 Yet, UCD refused to promote other club sports that wanted varsity status, and it failed to devise a

11 plan to add them over time despite their knowledge of the continued disparity. Plaintiffs will prove

12 that after this one-time addition, UCD stopped taking any affirmative steps to address its

13 longstanding, systemic, program-wide discrimination against female students in the allocation of

14 varsity athletic participation opportunities.

15

In 1994, Congress passed the Equity in Athletics Disclosure Act (“EADA”), which required

16 schools that offered intercollegiate athletics to submit participation reports each year, beginning in

17 October 1996 (for the 1995-1996 school year). Each and every year thereafter, UCD continued to

18 allocate participation opportunities through the sports it decided to offer and the sex to whom it

19 decided to offer those sports. And each year, it reported those choices on its EADA reports. Those

20 reports glaringly show UCD’s discrimination.

21

C. Defendants Continued Its Practice of Non-Expansion With The Elimination of

Female Participation Opportunities, Including Wrestling.

22 Shortly after its one-time addition of sports, UCD not only failed and refused to add athletic

23 opportunities for women, but started to backslide again, eliminating 63 women’s opportunities. At

24 the same time, women’s enrollment at UCD grew by more than 2,200 students. As a result, UCD’s

25 participation gap grew even more. UCD’s participation gap exceeded 100 opportunities in the years

26

27

6 Exhibit B is an excerpt of facts undisputed by Defendants (UF ¶ 21) reflecting the athletic participation and enrollment figures UCD by gender starting in 1995.

28

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1 prior to 2003.

2

In fall 2000, Plaintiffs will establish that Defendants exacerbated this growing inequity by

3 ordering the elimination of all women’s wrestling opportunities. Defendant Warzecka expressly

4 ordered wrestling coach Mike Burch to eliminate all women wrestlers from the program. He did not

5 order the removal of any men … just women. Burch submitted new participation lists under protest,

6 duly noting that “the women have been removed per your request.” Defendant Warzecka’s order 7 was discriminatory on its face and became the start of UCD’s facially discriminatory policy to 8 prevent women from wrestling at the varsity level. Plaintiffs Mansourian and Ng were among the 9 women removed from the program.

10

Defendants admit that women were varsity athletes in the wrestling program before their

11 removal. (UF ¶¶ 30-41.) They practiced and sometimes competed under the guidance of the varsity

12 coach. (Id.) They were required to satisfy all of the academic and other requirements of varsity

13 athletes. (Id.) They appeared on official team lists. (Id.) They were entitled to all the benefits of

14 varsity status, including medical insurance, trainers, facilities, lockers, laundry services, and

15 academic counseling. (Id.)

16

At trial, Plaintiffs will prove that the women wrestlers tried to convince Defendant Warzecka

17 to reinstate the women’s wrestling program. He refused and insisted that to continue to wrestle, they

18 should do it on their own or start a club. Notably, he did not demote or eliminate the male wrestlers

19 in the same way. The women researched starting a club (despite the demotion), but realized they

20 would lose the benefits of varsity status, including highly qualified coaching. They tried again for

21 reinstatement, but were again refused.

22

Defendants’ elimination of women’s wrestling provoked massive protests, not just among the

23 male and female wrestlers, but among the student body as a whole and the state legislature. Finally,

24 in late May, 2001, faced with this outcry, Defendants promised to “reinstate” women’s wrestling.

25 Defendants, however, did not reinstate women’s wrestling on the same terms and conditions in

26 which it had previously existed. Instead, women wrestlers were required to compete against men, 27 using men’s rules, for spots on the men’s team. Defendants have never subjected any other women’s 28 team to this requirement. They only applied this new tactic to the women wrestlers in order to

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1 ensure that women’s wrestling at UCD was eliminated.

2

Plaintiffs will prove at trial that in devising this scheme, Defendants threw both equity and

3 safety out the window. The women wrestlers were substantially smaller than the male wrestlers – by

4 more than 25 pounds in the case of Christine Ng. While male wrestlers compete in weight classes

5 with other males who weigh within 4-7 pounds, UCD ordered the women to compete against males

6 up to 30 pounds heavier. The male wrestlers were Division I, Pacific 10 Athletic Conference 7 athletes. They, thus, were not just larger, stronger, heavier male wrestlers; they were among the best 8 wrestlers in the nation. Defendants knew that no woman – not even the best women wrestlers in the 9 world – could beat the best male wrestlers. Defendants depended upon this fact, because they never

10 intended the women to make the men’s team. Plaintiffs will provide testimony of UCD’s own

11 trainers and doctor stating that women could not beat men at such levels due to genuine biological

12 differences. Plaintiffs will also submit testimony of UCD’s coaches that women in their sports could

13 not earn spots on the men’s teams. Plaintiffs will present evidence to establish that sports are sex

14 segregated in order to ensure that women are given the opportunity to participate.

15

UCD’s wrestle-off requirement was merely a restatement of its policy to exclude women

16 from wrestling. Plaintiffs Mansourian, Ng, and Mancuso were all removed from the wrestling

17 program again before competitions even began. Neither Plaintiffs nor any other female student has

18 ever been allowed to participate in wrestling at UCD again.

19

As Defendants pursued other costly endeavors for the athletic department, providing female

20 students an equal chance to play remained the lowest of Defendants’ priorities, as it has for decades.

21 When Plaintiffs filed this action in 2003, Defendants still discriminated against female students, still

22 allocated too few athletic opportunities to women, and still failed and refused to offer any women’s

23 opportunities in wrestling. Defendants failed to take any steps to add new sports or to replace the

24 more than 60 women’s opportunities it had cut in the preceding years. Defendants continued to deny

25 Plaintiffs the equal opportunity to participate in sports, including the equal opportunity to participate

26 in wrestling, up through their respective graduations from UCD.

27 III. SUMMARY POINTS OF LAW

28

Plaintiffs will prevail on their Title IX claim against Defendant Regents and will prevail on

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1 their Equal Protection Claim against Individual Defendants Vanderhoef, Franks, Warzecka, and Gill-

2 Fisher for the reasons set forth below.

3

A. Plaintiffs Will Prevail on Their Title IX Claim.

4

Plaintiffs will prevail on their Title IX claim because UCD discriminates against female

5 students in the allocation of athletic participation opportunities and because it eliminated the

6 educational opportunity for females (but not males) to participate in wrestling. Plaintiffs’ case will

7 rely on undisputed facts, stipulations, judicial admissions, and other evidence presented at trial. Law

8 of the case, including factual findings regarding participation and enrollment figures and the status

9 of women wrestlers as varsity team members by the Ninth Circuit in Mansourian v. Regents of the

10 University of Cal., supra, 602 F.3d 957, will also compel a judgment in favor of Plaintiffs at trial.

11

1. The Legal Framework for Evaluating Title IX Effective Accommodation

Claims.

12 Nearly thirty years before this suit was filed, Title IX was enacted to prohibit institutions that

13 received federal financial assistance from discriminating on the basis of sex. 20 U.S.C. § 1681(a).

14 Title IX’s mandate applies to all educational programs and activities at institutions that receive

15 federal funds, including intercollegiate athletics. 20 U.S.C. § 1687. Congress intended that it be

16 interpreted broadly in order to best achieve its purpose. North Haven Bd. of Educ. v. Bell, 456 U.S.

17 512, 521, 102 S. Ct. 1912 (1982); Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S. Ct. 1946 (1979).

18 A private right of action to enforce Title IX is well settled. Cannon, 441 U.S. at 709.

19

Title IX was passed to address rampant sex discrimination in athletics.7 In order to assure the

20

21

7 In 1971, over 3 million boys competed in interscholastic athletics in the United States. Meanwhile, less than 300,000 girls had the opportunity to participate in interscholastic athletics.

22

The high school athletic participation numbers are from the National Federation of High School Athletic Associations, which annually tracks high school participation in each state. See

23

http://www.nfhs.org/Participation/HistoricalSearch.aspx (use drop-down menu title “Year,” and select “1971-72”) (last visited May 5, 2011). The NCAA lobbied against Title IX at the collegiate

24

level, despite the fact that in 1971 only 31,852 women participated in intercollegiate athletics as compared to 172,447 men did so. Similarly, women received only 2% of college athletic budgets in

25

1971and virtually no athletic scholarships. The college athletic participation numbers are from the United States Department of Education publication, “Achieving Success Under Title IX,”

26

http://www2.ed.gov/pubs/TitleIX/part5.html (last visited May 5, 2011). For the scholarship information, see United States Department of Education publication, “The Secretary of Education’s

27

Commission on Opportunity on Athletics: Open to All, Title IX at Thirty” (Feb. 28, 2003), found at http://www2.ed.gov/about/bdscomm/list/athletics/title9report.pdf (last visited May 5, 2011).

28

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1 elimination of this discrimination as soon as possible, the Title IX regulations impose affirmative

2 obligations on schools to evaluate their own actions and policies, to take the remedial actions

3 necessary to end sex discrimination, to eliminate the effects of sex discrimination, and to “take

4 affirmative action to overcome the effects of conditions which resulted from limited participation.”

5 34 C.F.R. § 106.3.

6

In addition to the foregoing affirmative obligations, the United States Department of Health,

7 Education, & Welfare (“HEW”) issued interpreting regulation in 1975, including two regulations 8 that specifically address athletics. 34 C.F.R. §§ 106.37 & 106.41(c).8 The Ninth Circuit has

9 affirmed the importance and purpose of these regulations, stating “it would require blinders to ignore

10 that the motivation for promulgation of the regulation on athletics was the historic emphasis on

11 boys’ athletic programs to the exclusion of girls’ athletic programs in … colleges.” Neal v. Bd. of

12 Trustees, 198 F.3d 763, 767 (9th Cir. 1999) (citing Williams v. Sch. Dist. of Bethlehem, 998 F.2d

13 168, 175 (3rd Cir. 1993)). It has further recognized that “male athletes had been given an enormous

14 head start in the race against their female counterparts for athletic resources, and Title IX would

15 prompt universities to level the proverbial playing field.” Neal, 198 F.3d at 767.

16

The importance of quickly leveling that playing field is reflected in the Title IX athletics

17 regulation’s mandate that elementary schools comply with their athletics obligations within one year

18 of the effective date of the Title IX regulations (by July 1976) and that high schools and colleges

19 “comply fully with this section as expeditiously as possible but in no event later than three years

20 from the effective date of this regulation” (by July 1978). 34 C.F.R. § 106.41(d). Since then, the

21 Office for Civil Rights (“OCR”) of HEW (and then the Dep’t of Educ. (“DOE”)) has issued 22 extensive guidance to help schools comply with the law.9 The 1975 OCR Guidance expressly

23 8 HEW published the original Title IX regulations at 45 C.F.R Part 86. However, when
24 Congress created the Department of Education, authority over education issues was transferred from HEW to DOE and the regulations were republished at 34 C.F.R. Part 106. Dept. of Educ.
25 Organization Act, Pub.L.No. 96-88, 93 Stat. 669 (1979), codified at 20 U.S.C. § 3401-3510.

26

9 The Ninth Circuit has considered the Title IX regulations and OCR’s interpretations of them and have given them substantial deference. Mansourian, 602 F.3d at 965 (and citations

27

therein). Plaintiffs, either jointly with Defendants or by separate request, seeks judicial notice of this guidance, which includes:

28 (continued on next page)

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1 warned schools that, “The adjustment period is not a waiting period. Institutions must begin now to

2 take whatever steps are necessary to ensure full compliance as quickly as possible. (1975 OCR

3 Guideline at 4.)

4

The 1979 Policy Interpretation divides Title IX athletics obligations into three separate

5 categories:

6

(1) allocation of athletic participation opportunities (whether a student has an opportunity

to play sports at all), 34 C.F.R. § 106.41(c)(1)

7

(2) allocation of athletic benefits (whether students who already play sports are treated

8

equally and provided similar benefits), 34 C.F.R. § 106.41(c)(2)-(10)

9

(3) allocation of financial assistance based upon athletic skill (whether schools allocate

10

athletic scholarship money equitably), 34 C.F.R. § 106.37(c)

11 1979 Policy Interpretation, 44 Fed. Reg at 71414; see also Cohen v. Brown Univ. (Cohen II), 991

12 F.2d 888, 896 (1st Cir. 1993); Roberts v. Colo. State Univ., 814 F. Supp. 1512, 1510-11 (D. Colo.),

13 aff’d in relevant part, 998 F.2d 824 (10th Cir. 1993); Favia v. Ind. Univ. of Pa. (Favia I), 812 F.

14 Supp. 578, 584-85 (W.D. Pa.), aff’d, 7 F.3d 332 (3rd Cir. 1993).

15

(Footnote continued from previous page)

16

(1) the 1975 publication of the “Elimination of Sex Discrimination in Athletic Programs,

17

Memorandum from Director of Office of Civil Rights to Chief State School Officers, School Superintendents, and College/University Presidents” (Sept. 1975), available at

18

http://www.eric.ed.gov/PDFS/ED119583.pdf (last visited May 5, 2011) (the “1975 OCR Guidance”)

19

(2) the 1976 publication of Competitive Athletics in Search of Equal Opportunity (Sept.

1976), 40 Fed. Reg. 52655 (Nov. 11, 1975), and available at

20

http://www.eric.ed.gov/PDFS/ED135789.pdf (last visited May 5, 2011) (the “1976 OCR

Guidance”)

21

(3) the 1979 publication of its Title IX of the Education Amendment of 1972: A policy

22

Interpretation; Title IX and Intercollegiate Athletics 44 Fed. Reg. 71413 (Dec. 11, 1979), available at www.ed.gov/about/offices/list/ocr/docs/t9interp.html (last visited

23

May 5, 2011) (the “1979 Policy Interpretation”)

(4) the 1996 publication of its Clarification of Intercollegiate Athletics Policy Guidance:

24

The Three-Part Test (Jan. 16, 1996), available at

http://www2.ed.gov/about/offices/list/ocr/docs/clarific.html#two (last visited May 5,

25

2011) (the “1996 OCR Clarification”)

26

(5) the 2010 publication of OCR’s “Dear Colleague” letter regarding part three of the three part test (April 20, 2010), available at

27

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf (last visited May 5, 2011) (the “2010 OCR Guidance”)

28

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1

Plaintiffs’ Title IX claim alleges that UCD discriminated against them on the basis of sex by

2 failing to allocate athletic participation opportunities in an equitable manner and by providing males

3 but not females with an opportunity to participate in varsity wrestling. Such participation claims are

4 particularly important because having the opportunity to participate “lies at the core of Title IX’s

5 purpose.” Cohen II, 991 F.2d at 897. Courts recognize that Title IX’s affirmative obligations will in

6 most cases “entail development of athletic programs that substantially expand opportunities for

7 women to participate and compete at all levels.” Williams, 998 F.2d at 176 (quoting 1979 Policy

8 Interpretation, 44 Fed. Reg. at 71,414).

9

The 1979 Policy Interpretation outlined several ways for determining whether a school

10 provides such equal opportunity, including an analysis of

11

(1) Whether intercollegiate level participation opportunities for male and female students

are provided in numbers substantially proportionate to their respective enrollments; or

12

(2) Where the members of one sex have been and are under-represented among

13

intercollegiate athletes, whether the institution can show a history and continuing

14

practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

15 (3) Where the members of the one sex are under-represented among intercollegiate

16

athletes, and the institution cannot show a continuing practice of program expansion

such as that cited above, whether it can be demonstrated that the interests and abilities

17

of the members of that sex have been fully and effectively accommodated by the

18

present program.

19 1979 Policy Interpretation, 44 Fed. Reg. at 71418. This analysis is commonly referred to as the

20 “Three Part Test.” See, e.g., Neal, 193 F.3d 765. Title IX’s intent requirement does not require a

21 discriminatory animus. A plaintiff need only establish that the institution made a decision to treat 22 women differently in the provision of athletic opportunities.10

23

10 In other words, all that is required is that UCD behaved volitionally, as opposed to

accidentally, with regard to its treatment of women athletes. Pederson v. La. State Univ. (Pederson

24 II), 213 F.3d 858, 881 (5th Cir. 2000) (university need not have intended to violate Title IX to be

held liable for damages). Thus, a university’s “intentional decision not to accommodate effectively

25 the interests of their female students by not providing sufficient athletic opportunities” is intentional

discrimination in violation of Title IX. Pederson II, 213 F.3d at 880; Favia I, 812 F. Supp. at 584;

26 Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 696 (6th Cir. 2006) (proof of

discriminatory animus not necessary to establish Title IX violation: “if girls receive unequal

27 opportunities, Title IX has been violated”); Haffer v. Temple Univ., 678 F. Supp. 517, 527, 539-40

(E.D. Pa. 1987) (no discriminatory animus required; requisite “intent” in university’s explicit

28 (continued on next page)

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1

2. UCD Did Not Comply With Title IX Through Prongs One or Three.

UCD has stipulated, or otherwise agrees through undisputed facts, that it was not in 2

compliance with Prong One or Prong Three during the time period relevant to this case. 3

Undisputed participation and enrollment figures establish that UCD did not comply with 4

Title IX through Prong One. This data proves that UCD did not provide women participation 5

opportunities that were substantially proportionate to their enrollment for the period of 1995 to 2005. 6

Indeed, in 2001-2002, the year that UCD forced women to compete against men in wrestling, UCD’s 7

female participation ratios fell to their worst level since 1997. (UF ¶ 21 & Appendix A thereto; see 8

also Ex. B, hereto.) When Defendants eliminated women’s wrestling, UCD would have needed to 9

add 156 varsity opportunities for women to make up for its proportionality shortfall. (Id.) 10

UCD were also not in compliance with Prong Three. UCD consistently failed to elevate 11

numerous club teams throughout its history. (UF ¶¶ 23-25.) Between 1995 and 2005, UCD rejected 12

applications for varsity status from women club athletes in field hockey, badminton, rugby, horse 13

polo, and bowling, thereby denying intercollegiate status to hundreds of interested women on 14

campus. (Id.) These facts reflect a flagrant disregard of women’s interest in intercollegiate athletics. 15

Given Title IX’s passage some thirty years before Plaintiffs were UCD students, the law’s 16

affirmative obligations, and its call for immediate compliance, UCD’s failings with respect to Prongs 17

One and Three are telling. Moreover, as set forth below, UCD cannot establish Prong Two, a failing 18

on which this case against UCD will turn. 19
3. UCD Cannot Prove Compliance with Prong Two of the Three Part Test. 20
Under Part Two of the “Three Part Test,” Defendant has the burden of proving that it has a

21 history and continuing practice of program expansion which is demonstrably responsive to the

22 developing interests and abilities of the members of the under-represented sex. 1979 Policy

23 Interpretation, 44 Fed. Reg. at 71,418; Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 830 (10th

24 Cir. 1993). The 1996 Clarification makes clear that Part Two two requires an examination of both

25

26 (Footnote continued from previous page)
27 classification of intercollegiate athletic teams on the basis of gender).
28

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1 (1) the entire history of an institution’s athletic program and (2) the extent of an institution’s

2 continuing practice of program expansion. The Ninth Circuit has emphasized that “[h]istory” and

3 “continuing practice” constitute two separate inquiries. Mansourian, 602 F.3d at 969. In addition,

4 an institution that eliminates existing opportunities without otherwise replacing and expanding

5 opportunities cannot claim compliance under Prong Two. 1996 OCR Clarification at 7-8; see also

6 Mansourian, 602 F.3d at 971.

7

Defendant cannot meet these burdens.

8

i. UCD Cannot Demonstrate a History of Program Expansion for

Women.

9 In addition to the foregoing legal framework, under “history of program expansion,” courts

10 must examine:

11

(a) an institution’s record of adding intercollegiate teams or upgrading teams to

12

intercollegiate status; and

13

(b) an institution’s record of increasing the numbers of participants in intercollegiate

athletics; and 14

(c) an institution’s affirmative responses to requests by students or others for addition or

15

elevation of sports

16 1996 Clarification at 7-8.

17

The Ninth Circuit has held that Prong Two focuses primarily on increasing the number of

18 women’s athletic opportunities rather than increasing the number of women’s teams: “‘OCR will

19 assess whether past actions of the institution have expanded participation opportunities for the

20 underrepresented sex …’ (emphasis added).” Mansourian, 602 F.3d at 969 (citing 1996 OCR

21 Clarification at 5). Moreover, Part Two must be read with Title IX’s immediate mandates in mind.

22 OCR did not intend schools to casually add new sports at sporadic and distant intervals. Schools

23 were required to add all sports for which interest and ability existed by 1978. Thereafter, schools

24 were required to add new sports for women as soon as their interests and abilities developed. At

25 UCD, those interests and abilities already existed and were never met. Over its 30-year history,

26 those interests have continued to develop, but as set forth herein, UCD has never “caught up” with

27 its legal obligations. No school has successfully defended an action by relying on Part Two.

28 Defendant Regents cannot do so here either.

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1

UCD cannot prove compliance with Part Two because, among other things:

2

(a) UCD failed to meet the 1978 deadline for athletic compliance set forth in 34 C.F.R.

3

§ 106.41(d);

4

(b) UCD failed to add more women’s sports by 1978 despite existing and developing

unmet interest and ability;

5 (c) UCD failed to expand female participation opportunities throughout the 1970s, 1980s,

6

and early 1990s despite existing and developing unmet interest and ability and

existing competitive club sports teams; 7

8

(d) UCD eliminated women’s varsity field hockey in 1983 despite the existence of a viable team with existing competition;

9 (e) UCD eliminated women’s golf at some point before 1991;

10 (f) UCD delayed adding women’s crew, water polo, and lacrosse until the mid 1990s

11

despite the existence of competitive club sport teams with competitive schedules as

early as 15 years before; 12

(f) UCD failed to add additional women’s sports throughout the 1990s despite existing

13

interests, existing competitive sport clubs, and existing requests for varsity status

14

during that time period;

15

(g) UCD failed to add all sports that sought varsity status in 1995 or to put a plan in place

to promptly add them over time;

16

(h) UCD eliminated over 60 women’s athletic participation opportunities in the years

17

between 1999/2000 and 2001/2002;

18

(i) UCD eliminated women’s opportunities in wrestling;

19

(k) UCD failed to replace the eliminated women’s varsity athletic participation

20

opportunities at any time before the filing of this action;

21

(l) Even after the filing of this action, UCD failed and refused to add all the women’s

sports that sought varsity status in 2004;

22

(m) Even after the filing of this action, UCD failed and refused to reinstate women’s

23

wrestling;

24

(n) UCD failed to expand its athletic opportunities for women over the past 35 years to

25

catch up with the opportunities already provided to men or with the already existing,

and developing, athletic interests of its female students; and

26 (o) UCD failed to develop or implement a plan to address the unmet interests and

27

abilities of female students.

28

UCD cannot establish a “history” of program expansion based on these facts that Plaintiffs

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1 will prove at trial. The Court has rejected UCD’s effort to excise this portion of its discriminatory

2 history from consideration in its Prong Two defense, finding that UCD’s entire history is relevant.

3 As set forth below in greater deal, and recognized by the Ninth Circuit in its evaluation of

4 undisputed participation and enrollment numbers, UCD’s one time expansion in 1995 did not come

5 close to carry UCD’s burden of establishing a history of expansion. Mansourian, 602 F.3d at 993.

6 One positive step is simply not enough claim a history of expansion, especially given a nine-year

7 gap in expansion after the 1995 teams were added.

8

ii. UCD Cannot Demonstrate a Continuing Practice of Program

Expansion that Is Demonstrably Responsive to the Developing

9

Interests of Its Female Students.

10

Plaintiffs will also establish that UCD fell far short of Prong Two’s requirements after 1995

11 and thus had no continuing practice of expansion. As the Ninth Circuit has made clear, the Court

12 must evaluate both whether UCD had a continuing practice of expansion and if there was expansion,

13 whether expansion was responsive to developing interests and abilities. Mansourian, 602 F.3d at

14 969; 1996 OCR Clarification at 5-6. UCD must satisfy both. It fails on both fronts.

15

Under “continuing practice of program expansion,” courts must examine

16

(a) an institution’s current implementation of a nondiscriminatory policy or procedure for

requesting the addition of sports (including the elevation of club or intramural teams)

17

and the effective communication of the policy or procedure to students and

18

(b) an institution’s current implementation of a plan of program expansion that is

19

responsive to developing interests and abilities

1996 OCR Clarification at 2. 20

UCD cannot claim a continuing practice of program expansion where Defendants failed to 21

establish a means by which existing club sport teams could request varsity status. When Defendants 22

finally asked for proposals in 1995, five club sport teams presented proposals. (UF ¶¶ 22-23.) 23

When Defendants were forced to ask for more proposals after the filing of this action, four more club 24

teams submitted proposals. (UF ¶ 24.) Yet, Defendants rejected all of them and instead decided to 25

add women’s golf, a sport for which no club existed and which no female student requested. (UF ¶ 26

25.) UCD’s athletic administration filled out the golf proposal itself. (UF ¶ 24.) 27

Additionally, UCD did not meet the requirement that an institution have a remedial plan in 28

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1 place to expand women’s opportunities. 1996 OCR Clarification at 2. UCD failed to create an

2 expansion plan to meet the 1978 Title IX athletics deadline. It failed to create an expansion plan

3 during the 1980s or 1990s. When UCD finally added three teams in 1995, it subsequently failed to

4 institute a plan to add other female sports teams as a continuous practice. Its failure to create

5 concrete steps towards future compliance is especially notable here where its one-time expansion did

6 not compensate for 25 years of non-expansion and did not bring UCD close to substantial

7 proportionality.

8

After its one-time expansion, UCD engaged in roster management of men’s teams, which

9 sole function is to contract men’s teams. Yet, UCD’s roster management cannot be relied upon as

10 evidence of program expansion for women in this case. Mansourian, 602 F.3d at 971 (citing 1996

11 OCR Clarification). Roster management efforts are thus irrelevant to Prong Two’s requirement of

12 expansion for females.

13

As a result of Defendants’ refusal to implement a plan for program expansion, the number of

14 female participation opportunities fell 17% after 1999, even as the number of women enrolled at the

15 university had grown by 19%. (See Ex. B, hereto.) UCD’s own expert called the drop “drastic.” As

16 noted by the Ninth Circuit: “There were four varsity participation opportunities for every hundred 17 female students in 2000, but only three in 2006.” Id. at 970; see generally Ollier v. Sweetwater 18 Union High Sch. Dist., 604 F. Supp. 2d 1264, 1272-73 (S.D. Cal. 2009) (holding that a school did 19 not comply with Prong Two where school experienced fluctuations up and down in their female

20 participation numbers rather than continuous expansion and where school dropped 50 participation

21 opportunities in the five years before suit was filed).

22

Plaintiffs will present the testimony of Donna Lopiano, a highly respected Title IX expert, so

23 esteemed that UCD sought her advice when first faced with public outrage over its removal of

24 women wrestlers. Dr. Lopiano will offer importance guidance on Prong Two, including her opinion

25 based on her many years of experience as a Title IX expert and applicable law, that while it is

26 normal to see a fluctuation in participation opportunities of 4-7 athletes program-wide at an 27 institution in any given year, these minimal fluctuations may be acceptable under Prong Two only if 28 made up for immediately and expanded upon. Both the volume drop in participation rates and its

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1 continuous contraction disqualifies UCD from relying on Prong Two.

2

Based on participation and enrollment figures, the Ninth Circuit concluded that UCD

3 eliminated women’s varsity athletic opportunities “in the context of a women’s athletics program

4 that was, at best, stagnant.” Mansourian, 602 F.3d at 971. This finding of the Ninth Circuit should

5 be conclusive here and compel a finding that UCD violated Title IX. See Thomas v. Bible, 983 F.2d

6 152, 154 (9th Cir. 1993); Cohen v. Brown Univ. (Cohen III), 101 F.3d 155 (1st Cir. 1996).

7

Finally, Defendants will be unable to prove that they expanded in a manner that was

8 demonstrably responsive to developing interests and abilities. For example, Plaintiffs will show that

9 Defendants failed to survey students and prospective students for interest until after this case was

10 filed. Moreover, it is undisputed that UCD rejected numerous applications for varsity status from

11 women club athletes between 1995 and 2005. (UF ¶¶ 23-25.)

12

In sum, UCD never caught up with the unmet athletic interests of its female students. It

13 never established a plan to continuously expand athletic opportunities to meet those interests. And it

14 never took steps to assess those interests (until after the filing of this action). From 1995 to 2005,

15 UCD entirely failed to expand women’s opportunities. To the contrary, they reduced opportunities

16 in existing sports and eliminated women’s wrestling.

17

4. UCD Cannot Rely on Prong Two Where It Reduced Women’s Athletic

Participation Opportunities and Eliminated All Women’s Opportunities

18

in Wrestling.

19

In the early 2000’s, Defendants eliminated all women’s opportunities in the sport of

20 wrestling and eliminated women’s athletic opportunities in other sports, resulting in an overall

21 decline in women’s athletic participation opportunities of over 60 athletes. (See Ex. B.)

22

That Defendants’ actions deprived Plaintiffs and other women female participation

23 opportunities in intercollegiate wrestling will be established at trial. To refute this, UCD will likely

24 suggest a wide variety of erroneous arguments.

25

For example, UCD may claim that Plaintiffs must prove its elimination of a separate

26 women’s team or a woman’s program in order to prevail on Title IX liability. However, as this

27 Court has found, UCD’s compliance with Title IX must be assessed on a program-wide basis and is

28 not dependent on the actions taken with respect to wrestling specifically. (Dkt. 549.)

18
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1

To the extent Defendants assert Plaintiffs lacked standing or injury, Plaintiffs need only be

2 students interested in intercollegiate participation opportunities to be affected by UCD’s Title IX

3 violation.11 Pederson II, 213 F.3d at 869-71 (finding that a student need only show “that she is able

4 and ready to complete for a position on an unfielded team” to establish injury). The evidence will

5 establish that Plaintiffs Ng, Mansourian, and Mancuso meet that standard.

6

Although not necessary, Plaintiffs have already established much more than mere interest in

7 intercollegiate athletic opportunities. (UF ¶¶ 23-25.) For nearly 9 years, UCD offered women

8 students the opportunity to participate in varsity wrestling. (UF ¶¶ 27-41.) In the early 2000’s,

9 Defendants eliminated varsity women’s wrestling opportunities in their entirely. (UF ¶ 43.) As

10 noted by the Ninth Circuit: “By requiring women to prevail against men, the university changed the

11 conditions under which women could participate in varsity wrestling in a manner that foreseeably

12 precluded their future participation.” Mansourian, 602 F.3d at 970 n.18. Defendants have failed and

13 refused to add or reinstate women’s wrestling despite demands that they do so.

14

Because Defendants eliminated a women’s sport shortly before this action was filed, they

15 cannot rely on prong two of the Three-Part Test. See Barrett v. West Chester Univ. of Pa., 2003 WL

16 22803477, at *7 (E.D. Pa. Nov. 12, 2003) (elimination of women’s gymnastic team was evidence of

17 violation of Title IX and non-compliance with Prong Two where institution was not otherwise in

18 compliance with Title IX); Cohen II, 991 F.2d at 897-98 (elimination women’s volleyball and

19 gymnastic teams was evidence of violation of Title IX and non-compliance with Prong Two);

20 Roberts, 998 F.2d at 830 (elimination of women’s softball team was evidence of violation of Title IX

21 and non-compliance with Prong Two.)

22

Defendants apparently realize this, because they now claim that they didn’t “really” offer

23 women’s wrestling opportunities or that the women who participated were somehow not worthy of

24 varsity status. Defendants’ rewriting of history fails on many levels because (1) the women

25

26

11 Plaintiffs anticipate that Defendants will also argue they must prove evidence of interest,

ability, and competition in wrestling. Plaintiffs have filed a motion in limine that seeks to exclude

27 this evidence and argument related to interest, ability, and competition in women’s wrestling as a

misrepresentation of the applicable standing standard.

28

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1 wrestlers met the definition of varsity participants for purposes of Title IX, (2) the women wrestlers

2 participated in varsity wrestling to the same extent as most of the male varsity wrestlers, and (3) the

3 women wrestlers participated in varsity wrestling to the same extent as athletes whom Defendants

4 count as varsity in other sports. (UF ¶¶ 30-41.) They were no different than the varsity female crew

5 members, lacrosse players, or swimmers who practiced alongside their male counterparts (even if

6 they were not in the top tier who actually competed in matches) and who received the same benefits

7 and coaching as their male counterparts, but who also competed only against other women.

8

The 1979 Policy Interpretation identifies those students who qualify as varsity athletes by

9 defining the “participants” as those

10

a. Who are receiving the institutionally-sponsored support normally provided to athletes

competing at the institution involved, e.g., coaching, equipment, medical and training

11

room services, on a regular basis during a sport’s season; and

12

b. Who are participating in organized practice sessions and other team meetings and

13

activities on a regular basis during a sport’s season; and

14

c. Who are listed on the eligibility or squad lists maintained for each sport; or

15

d. Who, because of injury, cannot meet a, b, or c above but continue to receive financial

aid on the basis of athletic ability.

16

1979 Policy Interpretation, 44 Fed. Reg. at 71415. 17

The 1996 OCR Clarification further expounds on this definition by stating that participants 18

also include: 19
(1) those athletes who do not receive scholarships (e.g., walk-ons); 20

(2) those athletes who compete on teams sponsored by the institution even though the

21

team may be required to raise some or all of its operating funds; and

22

(3) those athletes who practice but may not compete.

23 1996 OCR Clarification at 4.
24 The women wrestlers who participated in UCD’s women’s wrestling program easily fall
25 within this definition. They received varsity coaching, attended practices, received varsity benefits
26 and access to varsity facilities and services. (UF ¶¶ 27-41.) They were subject to the same rules as
27 other varsity athletes. (See id.) They were included on official team lists and counted on EADA
28

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1 Reports as varsity athletes. (Id.) Notably, the 1996 OCR Clarification definition includes athletes

2 who are walk-ons and those who do not complete.12 This definition is entirely consistent, as

3 Plaintiffs will establish at trial, with the manner in which UCD counts all of its other varsity athletes.

4 Various UCD witnesses acknowledge that there are students of varying skills on men and women’s

5 teams. Its mockery now of Plaintiffs’ skill level is suspect, where there is no indication that UCD

6 evaluated the skill level of other females in its intercollegiate program. UCD’s selective critique of

7 Plaintiffs’ abilities is nothing more than a blatant degradation of Plaintiffs and a post ad hoc

8 justification for removing women from the program, and a discriminatory one at that.

9

Accordingly, because Defendants contracts its opportunities for women, including the

10 complete elimination of varsity women’s wrestling, Defendants cannot claim Prong Two

11 compliance.

12

B. Plaintiffs Will Prevail on Their Equal Protection Claim.

13

Plaintiffs will present evidence at trial establishing that Defendants Vanderhoef, Franks,

14 Warzecka, and Gill-Fisher (the “Individual Defendants”) violated Plaintiffs’ equal protection rights

15 by denying them the opportunity to wrestle on the basis of their gender at a time when they were

16 also failing to provide equal athletic opportunities program-wide. This evidence will demonstrate

17 that Defendants engaged in this facially apparent and systemic discrimination for decades and that

18 this discrimination harmed Plaintiffs throughout their years at UCD.

19

To prevail at trial, Plaintiffs must show that Individual Defendants intentionally created a

20 classification based on sex. This burden is easily satisfied: the Individual Defendants stripped

21 Plaintiffs of their varsity status based on gender and continued to deny them varsity wrestling

22 opportunities all the while depriving equal participation opportunities for women program-wide.

23 The only way the Individual Defendants would be able to defeat Plaintiffs’ claim is to prove an

24 exceedingly persuasive justification for this sex-based classification, that the classification serves an

25

12Additionally, both Plaintiffs’ and Defendants’ experts agree that that it is acceptable for

26

varsity athletes in a developing sport to obtain competition in open or amateur events. In a another case, UCD’s expert testified that “it was good for student athletes to compete in championship meets

27

no matter who sponsored them, or how prestigious they might be, and that whether or not it was the NCAA that sponsored them should not be a factor.” Favia, 812 F. Supp. at 582.

28

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1 important governmental objective, and that its means are substantially related to the achievement of

2 those objectives. The Individual Defendants will not be able to meet this burden.13 The record will

3 compel a finding of liability as to each Individual Defendant.

4

1. The Legal Framework for Equal Protection Claims.

5

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution

6 states that

7

No state shall ... deny to any person within its jurisdiction the equal protection

of the law.

8 U.S. Const. amend, XIV, § 1.

9 This Clause is enforced through 42 U.S.C. § 1983, which states:

10

Every person who, under color of any statute, ordinance, regulation, custom,

11

or usage of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

12

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

13

injured in an action at law, suit in equity, or other proper proceeding for

14

redress.

15 This is “essentially a direction that all persons similarly situated should be treated alike.” City of

16 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249 (1985).

17

The Equal Protection Clause applies whenever a state actor discriminates on the basis of sex

18 or otherwise treats males differently from females. The standard of liability for Plaintiffs’ Equal

19 Protection Claim is set forth in Supreme Court and Ninth Circuit cases that addressed schools’

20 unwillingness to provide certain types of educational programs to one sex and other forms of sex

21 discrimination in education. United States v. Virginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264 (1996)

22 (women denied access to all-male military educational program); Miss. Univ. for Women v. Hogan,

23 458 U.S. 718, 724, 102 S. Ct. 3331 (1982) (male denied access to all-female nursing program); Oona

24 v. McCaffrey, 143 F.3d 473, 474-75 (9th Cir. 1998) (peer sexual harassment in schools).

25

Indeed, the law is well-established in the area of school athletics. Where a university decides

26

27

13 Individual Defendants may also attempt to argue that they are entitled to qualified immunity. The Court has, however, already conclusively resolved this issue. (Dkt. 509.)

28

22
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1 “to sponsor intercollegiate athletics as part of its educational offerings, this program ‘must be made

2 available to all on equal terms.’” Mansourian, 602 F.3d at 974 (quoting Haffer v. Temple Univ., 678

3 F. Supp. 517, 525 (E.D. Pa. 1998)). The Ninth Circuit has recognized that not only must “overall

4 athletic opportunities … be equal” to satisfy the Equal Protection Clause, but that “denial of an

5 opportunity in a specific sport, even when overall opportunities are equal, can be a violation of the

6 equal protection clause.” Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1130-31 (9th Cir. 7 1982); see Hoover v. Meiklejohn, 430 F. Supp. 164, 170 (D. Colo. 1977) (noting that the standard 8 under the Equal Protection Clause “should be one of comparability, not absolute equality,” where 9 male and female teams are given “substantially equal support” for “substantially comparable

10 programs”); Leffel v. Wis. Interscholastic Athletic Ass’n, 444 F. Supp. 1117, 1122 (E.D. Wis. 1978)

11 (“the defendants may not afford an educational opportunity to boys that is denied to girls”). The

12 availability of this constitutional claim to challenge gender-based decisions in high school and

13 college athletics is also well-settled. See, e.g., Haffer, 678 F. Supp. at 526-27 (and cases cited

14 therein); Brenden v. Indep. Sch. Dist., 477 F.2d 1292 (8th Cir. 1973) (striking regulation barring girls

15 from competing against boys in certain sports); Cmtys. for Equity, 459 F.3d at 693-95 (affirming

16 district court judgment for Plaintiffs on Plaintiffs’ Equal Protection and Title IX claims challenging 17 high school athletic association’s decision to change scheduling of female athletes seasons); Alston 18 v. Va. High Sch. League, Inc., 144 F. Supp. 2d 526, 533-34, 538 (W.D. Va. 1999) (denying 19 defendants’ motion for summary judgment on plaintiffs’ section 1983 claims in case involving

20 schedule change for women’s teams but not men’s teams.)

21

In fact, the Ninth Circuit and other circuits have repeatedly affirmed that there is an

22 important government interest in promoting equality of opportunity and in redressing past

23 discrimination against women in athletics, even if this means decreasing opportunities for men.

24 Clark, 695 F.2d at 1131 (holding that the policy of excluding boys from a girls high school

25 volleyball team did not violate the Equal Protection clause because it was a permissible means of

26 attempting to promote equality of opportunity for girls in Arizona interscholastic sports and 27 redressing past discrimination; noting in dicta that boys would have an “undue advantage” if allowed 28 to compete against women for positions on the volleyball team); Neal, 198 F.3d at 769-72 (rejecting

23
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1 constitutional challenge brought by male wrestlers whose team was eliminated by school attempting

2 to achieve gender equity); Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608 (6th Cir.

3 2002) (holding that men’s rights not violated when institution eliminates a male team to achieve

4 gender equity in compliance with Title IX).

5

Under this standard, Defendants must prove that their different treatment of males and

6 females “serves important governmental objectives and that the discriminatory means employed are

7 substantially related to the achievement of those objectives.” In addition, Defendants’ reasons for

8 their sex discrimination must be “exceedingly persuasive.” Miss. Univ. for Women, 458 U.S. at 724.

9 Defendants cannot meet this burden.

10

2. The Individual Defendants Violated Plaintiffs’ Constitutional Right to Be

Free from Sex Discrimination under the Equal Protection Clause.

11

i. Defendants’ Policies Were Facially Discriminatory.

12

Defendants Vanderhoef, Franks Warzecka, and Gill-Fisher were high-ranking UCD officials

13 responsible for UCD’s athletic program who are/were state actors who acted under color of law for

14 all purposes relevant to this action. (UF ¶¶ 10-13.) Accordingly, they are subject to liability under

15 this statute for their violation of the Equal Protection Clause. Plaintiffs will readily meet their initial

16 burden at trial to establish that the Individual Defendants intentionally created a sex-based

17 classification that deprived them of equal protection. The Individual Defendants’ discriminatory

18 policy is facially apparent in its disparate allocation of athletic opportunities (as reported by UCD to

19 the Department of Education) and in its refusal to provide opportunities for women in wrestling.

20 This policy deprived Plaintiffs and other women an equal opportunity to participate in athletics,

21 including in wrestling.

22

Specifically, the Individual Defendants lawfully segregated students in to male and female

23 athletic teams because of their inherent biological differences, but they then unlawfully allocate

24 those opportunities in favor of males. The Individual Defendants themselves decided which sports

25 UCD would offer to the members of which sex (i.e., men’s basketball and women’s basketball). The

26 Individual Defendants then dictated the number of opportunities in each sport. Their decision to

27 allot women fewer of those sports opportunities constitutes facial discrimination. A university must

28

24
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1 make its athletic program available to all on equal terms. Mansourian, 602 F.3d at 974 (quoting

2 Haffer, 678 F. Supp. at 525). Haffer v. Temple University, supra, is directly on point. The court

3 there denied defendants’ motion for summary judgment on an equal protection claim brought by

4 female students who alleged that defendants offered men more intercollegiate athletic opportunities

5 than female opportunities proportionate to enrollment, and thus deprived women of an equal

6 opportunity to participate. 678 F. Supp. at 523.

7

Plaintiffs will establish the extension of this discriminatory policy to Plaintiffs and other

8 women wrestlers. The Individual Defendants removed women from the roster based on their gender

9 in 2000 without justifying this decision, as they must. Although the Individual Defendants may

10 attempt to convince this Court that Plaintiffs’ removal were the result of the actions of a rogue

11 coach, there is no dispute that the Individual Defendants knew the women were removed, ratified

12 that decision, and then continued to deny Plaintiffs the opportunity to wrestle by, among other

13 things, imposing the newly concocted requirement that women must wrestle men for a varsity spot.

14 The Ninth Circuit concluded that this requirement necessarily precluded the future participation of

15 women in varsity wrestling. Mansourian, 602 F.3d at 970 n.18. UCD continued to deprive

16 Plaintiffs of wrestling opportunities, as women competing against women, through their graduation

17 and the filing of this suit.

18

While Defendants offer the same opportunities to males and females (e.g., men’s and

19 women’s basketball, men’s and women’s tennis, men’s and women’s swimming, men’s and

20 women’s water polo), they have failed and refused to offer women the opportunity to participate in

21 wrestling at a time when they were not ensuring equity program-wide. This decision constitutes sex

22 discrimination on its face. The Ninth Circuit has recognized that not only must “overall athletic

23 opportunities … be equal” to satisfy the Equal Protection Clause, but that “denial of an opportunity

24 in a specific sport, even when overall opportunities are equal, can be a violation of the equal

25 protection clause.” Clark, 695 F.2d at 1130-31.

26

ii. The Individual Defendants Were Responsible for Creating and

Maintaining Discriminatory Policies.

27 Because Defendants operate a sex segregated and facially discriminatory athletic program,

28

25
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1 they are liable for their disparate treatment of the men’s and women’s programs (i.e., the disparate

2 allocation of opportunities) if they cannot carry their burden of proof on the reasons for their

3 discrimination. Plaintiffs do not have to show malicious or nefarious intent by the Individual

4 Defendants in order to prevail. They only have to show that the Individual Defendants were those

5 who made or ratified the facially discriminatory decisions that created the facially discriminatory

6 athletic program. al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009) (quoting Kwai Fun Wong v.

7 United States, 373 F.3d 952, 966 (9th Cir. 2004)).

8

The Individual Defendants are responsible for this discrimination because they either made

9 the discriminatory decisions themselves (Defendants Warzecka and Gill-Fisher) or they ratified them

10 (Defendants Franks and Vanderhoef). Defendants have already admitted that all of the Individual

11 Defendants have the delegated authority to make decisions relating to the UCD athletic department.

12 (See UF ¶¶ 10-13.) Those were the daily responsibilities of Defendants Warzecka and Gill-Fisher.

13 (UF ¶¶ 12-13.) Defendants have also admitted that Defendants Vanderhoef and Franks had direct

14 control and supervision over the athletic department. (UF ¶¶ 10-11.) In this case, Plaintiffs ask the

15 Court to hold them liable for their direct participation in the discriminatory decisions, for their

16 ratification of those decisions, and for their refusal to use their authority to reverse those decisions

17 despite repeated requests that they do so.

18

iii. The Individual Defendants Offer No Justification for Their

Discrimination, Much Less an Exceedingly Persuasive One.

19 Finally, the Individual Defendants have not offered a justification for their failure to ensure

20 that women have equal opportunities to participate in intercollegiate athletics, or their exclusion of

21 women from the wrestling program. Nor do they contend that the elimination of the women’s

22 intercollegiate wrestling opportunities at UCD served an important governmental objective.

23 Similarly, Defendants have failed to show that these discriminatory practices are substantially

24 related to any purportedly important government objectives. Indeed, the Individual Defendants

25 cannot justify the elimination of female wrestling opportunities where they were eliminating (rather

26 than adding) female opportunities elsewhere in the program.

27

28

26
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1

3. The Individual Defendants Cannot Establish Qualified Immunity From Suit.

2

To the extent that the Individual Defendants intend to raise the defense of qualified immunity

3 at trial, they will not be able to meet their burden of proof. This is especially true in light of the

4 Court’s prior rulings on this issue: “Determining whether officials are owed qualified immunity

5 involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury,

6 the facts alleged show the officer's conduct violated a constitutional right; and (2) if so, whether the

7 right was clearly established in light of the specific context of the case.” al-Kidd, 580 F.3d at 964

8 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

9

In its ruling on the qualified immunity defense raised in the Individual Defendants’ motion

10 for summary judgment, this Court held:

11

At the time of the alleged discriminatory conduct in this case, the law, as set

forth by the United States Supreme Court and the Ninth Circuit, was clear that

12

the Equal Protection Clause of the Fourteenth Amendment creates the right to

13

be free from purposeful discrimination in education by state actors.

Mississippi Univ. for Women, 458 U.S. at 731; Oona, R.S., 143 F.3d at 476

14

(holding that it was clearly established well prior to 1988 that the Equal

Protection clause proscribed any purposeful discrimination by state actors on

15

the basis of gender). More specifically, as early as 1982, the Ninth Circuit

16

recognized that the Equal Protection Clause may be violated when overall athletic opportunities are unequal as well as when there is inequality in

17

opportunity in a given sport. Clark, 695 F.2d at 1130-31 (acknowledging the

Equal Protection right, but holding that the discrimination in favor of an all

18

girls volleyball team was substantially related to an important governmental

interest). 19
(Dkt. 509 at 32:25-33:12.)

20 These legal findings will be determinative at trial. The Court’s holding that Plaintiffs alleged

21 a constitutional right that was clearly established precludes the Individual Defendants from relying

22 on the qualified immunity defense at trial.

23 ///

24 ///

25 ///

26 ///

27 ///

28

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1 IV. CONCLUSION

2

Plaintiffs respectfully requests the Court’s careful consideration of the law of the case,

3 undisputed facts, stipulations, judicial admissions, and other evidence presented at trial, which will

4 support a judgment in favor of Plaintiffs on their Title IX and Equal Protection claims.

5

6 DATED: May 5, 2011 7 8

Respectfully submitted,
THE STURDEVANT LAW FIRM A Professional Corporation

9

EQUAL RIGHTS ADVOCATES

10

DUCKWORTH PETERS LEBOWITZ

11

OLIVIER LLP

12

EQUITY LEGAL

13

By: /s/ Noreen Farrell

14

Noreen Farrell

15

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

27

28

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EXHIBIT A

Case 2:03-cv-02591-KJM -EFB Document 561 Filed 05/05/11 Page 36 of 38

Club Sport Participation Numbers (as reflected in Plaintiffs’ Trial Exhibit 391): Sport Club Participation Waivers

Number of Club Sport Athletes

Percentage of Club Sport Athletes

1981-1982 1982-1983 1983-1984 1984-1985 1985-1986 1986-1987 1987-1988 1988-1989 1989-1990 1990-1991 1991-1992 1992-1993 1993-1994 1994-1995 1995-1996 1996-1997 1997-1998 1998-1999

Female
354 342 365 408 352 477 533 444 449 551 525 468 566 556 537 294 417 434

Male
487 505 649 725 969 847 882 815 869 932 839 792 838 691 627 720 644 671

Total
841 847 1,014 1,133 1,321 1,324 1,415 1,259 1,318 1,483 1,364 1,260 1,404 1,247 1,164 1,014 1,061 1,105

Female
42.1% 40.4% 36.0% 36.0% 26.6% 36.0% 37.7% 35.3% 34.1% 37.2% 38.5% 37.1% 40.3% 44.6% 46.1% 29.0% 39.3% 39.3%

Male
57.9% 59.6% 64.0% 64.0% 73.4% 64.0% 62.3% 64.7% 65.9% 62.8% 61.5% 62.9% 59.7% 55.4% 53.9% 71.0% 60.7% 60.7%

Women’s Club Sports (as reflected in Plaintiffs’ Trial Exhibit 391): Sport Club Participation Waivers

1. Aikido 2. Alpine Ski 3. Amis 4. Archery 5. Badminton 6. Bowling 7. Bujinkan Ninpo 8. By-Cycle Tour 9. Chinese Kung Fu 10. Comp. Karate 11. Crew 12. Cycling 13. Dos Pares Eskrima 14. Equestrian 15. Equestrian Drill Team 16. Fencing 17. Field Hockey 18. Frisbee 19. Goju-Kai Karate Do 20. Gymnastics 21. Hapkido

22. Horse Polo 23. Ice Hockey 24. JKA Shotokan 25. Judo 26. Ju-Do-Kai (Jujitsu) 27. Kendo Karate 28. Kenpo Karate 29. Kru Kan Tae Kwon
Do 30. Non-Classical Kung
Fu 31. Lacrosse 32. Nordic Ski 33. Raquetball 34. Rifle 35. Rodeo 36. Roller Hockey 37. Rugby 38. Ryu Kyu 39. Sailing 40. Shorin Ryu Karate

41. Soccer 42. Squash 43. Surf Club 44. Synchronized
Swimming 45. Table Tennis 46. Tae Kwon Do-
Traditional 47. Tae Kwon Do-
Competitive 48. Tennis 49. Triathlon 50. Uechi Ryu 51. UMAF Tae Kwan Do 52. Volleyball 53. Wallyball 54. Water Polo 55. Water Ski

Case 2:03-cv-02591-KJM -EFB Document 561 Filed 05/05/11 Page 37 of 38
EXHIBIT B

Case 2:03-cv-02591M-KanJsoMuri-aEn FetBal. v.DRoegceunmts oefnthte5U6n1iversiFtyiolef Cdal0ifo5rn/0ia5/11 Page 38 of 38
Case No. S-03-2591 FCD-EFB
Athlete Participation Numbers in EADA Reports by Sport

Male Enrollment # Female Enrollment # Total Enrollment
Men's Sports Baseball, Men’s Basketball, Men’s Cross Country, Men’s Football, Men’s Golf, Men’s Soccer, Men’s Swimming and Diving, Men’s Tennis, Men’s Track and Field, Men’s (Indoor) Track and Field, Men’s (Outdoor) Water Polo, Men’s Wrestling, Men’s Total Male Participants: Unduplicated Count Difference:
Women's Sports Basketball, Women’s Cross Country, Women’s Golf, Women’s (5) Gymnastics, Women’s Lacrosse, Women’s (2) (6) Rowing, Women’s (2) Soccer, Women’s Softball, Women’s Swimming and Diving, Women’s Tennis, Women’s Track and Field, Women’s (Indoor) Track and Field, Women’s (Outdoor) Volleyball, Women’s Water Polo, Women’s Wrestling Total Female Participants: Unduplicated Count Difference:
Total Overall Participants
Male Enrollment % Male Athletic Participation %
Female Enrollment % Female Athletic Participation % Difference

1995-1996

1996-1997 1997-1998 1998-1999 1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 2004-2005

8,582 9,352 17,934

8,882 10,054 18,936

8,593 10,118 18,711

8,683 10,596 19,279

7,997 10,446 18,443

9,273 11,783 21,056

9,756 12,494 22,250

8,756 11,331 20,087

9,191 11,660 20,851

10,186 12,834 23,020

48

49

56

44

41

43

40

36

34

33

19

22

22

18

20

21

20

18

13

17

27

35

33

29

20

22

22

21

18

16

132

130

160

135

114

117

115

116

106

103

17

18

19

21

15

13

12

12

10

10

27

28

30

32

31

33

27

30

29

29

26

22

26

32

32

31

30

30

28

31

17

14

19

16

15

14

13

15

13

12

17

15

15

17

16

18

19

86

82

74

48

49

48

48

47

42

40

19

32

28

36

26

29

29

27

25

25

23

40

46

38

38

34

30

33

35

33

441

472

513

466

416

420

403

401

371

368

426

384

386

373

368

338

336

40

32

34

30

33

33

32

14

17

13

16

17

16

16

18

19

13

20

23

30

29

20

23

22

23

18

16

22

23

17

23

21

20

19

24

19

23

30

37

40

35

29

25

22

21

22

66

82

78

72

77

67

66

73

59

24

22

21

28

33

32

26

32

25

30

21

20

24

25

23

21

22

25

22

22

19

22

29

38

35

35

28

33

36

38

12

12

16

12

12

12

12

14

11

12

22

21

23

18

26

28

27

63

59

61

57

67

59

59

60

58

54

16

19

12

17

15

17

19

16

16

16

35

41

41

49

43

28

30

27

31

4

211

348

383

426

424

407

361

389

373

363

389

384

369

329

344

333

322

37

40

38

32

45

40

41

652

820

896

892

840

827

764

790

744

731

48% 68%
52% 32% 20%

47% 58%
53% 42% 11%

46% 57%
54% 43% 11%

45% 52%
55% 48%
7%

43% 50%
57% 50%
6%

44% 51%
56% 49%
7%

44% 53%
56% 47%
9%

44% 51%
56% 49%
7%

44% 50%
56% 50%
6%

44% 50%
56% 50%
6%

 
 Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 1 of 147

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8

9

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12

----oo0oo----

13 AREZOU MANSOURIAN; LAUREN MANCUSO; NANCY NIEN-LI CHIANG;
14 CHRISTINE WING-SI NG; and all those similarly situated,
15 Plaintiffs,
16 v.
17

NO. 2:03-cv-2591 FCD EFB MEMORANDUM AND ORDER

18 BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA AT
19 DAVIS; LAWRENCE VANDERHOEF; GREG WARZECKA; PAM GILL-
20 FISHER; ROBERT FRANKS; and LAWRENCE SWANSON,
21 Defendants.
22

23

----oo0oo----

24

The opportunity for students to participate in

25 intercollegiate athletics is a vital component of educational

26 development. Such participation helps young adults develop

27 leadership, confidence, determination, grace, discipline, and a

28 myriad of other qualities that will serve them long after they

1

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 2 of 147

1 leave college. All students, regardless of gender, should have

2 equal access to participation in athletics. Indeed, both the

3 Constitution and federal law require it.

4

This case arises out of plaintiffs Arezou Mansourian

5 (“Mansourian”), Lauren Mancuso (“Mancuso”), and Christine Wing-Si

6 Ng’s (“Ng”) (collectively “plaintiffs”) claims that defendants

7 Regents of the University of California (the “University” or “UC 8 Davis”), Larry1 Vanderhoef (“Vanderhoef”), Greg Warzecka

9 (“Warzecka”), Pam Gill-Fisher (“Gill-Fisher”), and Robert Franks

10 (“Franks”) (collectively, “defendants”) deprived them of the 11 equal opportunity to participate in varsity2 athletics while they

12 were students at UC Davis, in violation of both Title IX and the

13 Equal Protection Clause of the Constitution. Specifically,

14 plaintiffs assert that they were wrongly deprived of their

15 opportunity to participate in intercollegiate wrestling. Through

16 this suit, plaintiffs seek money damages and declaratory relief.

17 Defendants assert that, at all relevant times, the UC Davis

18 athletic program and each individual defendant complied with

19 constitutional and federal mandates regarding gender equity.

20

The court held a fifteen day bench trial from May 23, 2011

21 through June 15, 2011. Considering the evidence presented

22 therein, the evidence submitted through stipulation, and the

23 parties’ written submissions thereafter, the court enters the

24

25

26

1

Defendants assert that defendant Larry Vanderhoef was

erroneously sued as Lawrence Vanderhoef.

27

2

Throughout its order, the court uses “intercollegiate”

28 and “varsity” interchangeably.

2

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 3 of 147

1 following findings of fact and conclusions of law pursuant to

2 Federal Rule of Civil Procedure 52(a).

3

FINDINGS OF FACT3

4 I. Plaintiffs

5

1. Plaintiff Christine Wing-Si Ng (“Ng”) entered UC Davis

6 in Fall 1998 and graduated in September 2002. (Am. Pretrial

7 Conference Order (“Pretrial Order”) [Docket # 549], filed May 4,

8 2011, ¶ 6.)

9

2. Plaintiff Arezou Mansourian (“Mansourian”) entered UC

10 Davis in Fall 2000 and graduated in June 2004. (Id. ¶ 7.)

11

3. Plaintiff Lauren Mancuso (“Mancuso”) entered UC Davis

12 in Fall 2001 and received her degree in September 2006. (Id. ¶

13 8.) Pursuant to a stipulation of the parties, her relevant time

14 period at UC Davis is from Fall 2001 to December 2005. (Trial

15 Transcript (“TT”) 554:1-4; 2325:6-17.)

16 II. History of Gender Equity in Intercollegiate Athletic Participation Opportunities at UC Davis
17

18

4. UC Davis is a campus of the University of California

19 system that receives federal funds for its educational programs

20 and is subject to Title IX of the Education Amendments of 1972

21 (“Title IX”). (Pretrial Order, Stipulations, ¶ 1.)

22

5. The record is undisputed that since 1970, female

23 students at UC Davis demonstrated great interest in athletic

24 opportunities. (See JX 14, 15; PX 7, 391.) Indeed, hundreds of

25 female students participated each year during the 1980s, 1990s,

26

27

3

To the extent that any of the court’s findings of fact

may be considered conclusions of law or vice versa, they are to

28 be considered as such.

3

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 4 of 147

1 and 2000s in club team sports such as archery, badminton,

2 bowling, cycling, crew, fencing, equestrian, lacrosse, rifle,

3 ski, water polo, and sychronized swimming. (TT 1155:22-1156:5;

4 1410:12-20; see PX 17, 391.)

5

6. However, at all relevant times, females were the

6 underrepresented sex in UC Davis’ intercollegiate athletics

7 program. (Pretrial Order, Stipulations, ¶ 1.)

8

7. Before the passage of Title IX, UC Davis had a

9 philosophy, set forth in “The Davis View” to offer

10 intercollegiate athletics to the greatest number of students

11 possible. (TT 1836:14-18.)

12

8. As early as May 27, 1970, UC Davis applied this

13 philosophy to conclude that it was desirable to expand both its

14 women’s and men’s intercollegiate athletic programs. (JX 14, at

15 FP.0749.)

16

9. Based on the best recollection of those involved in the

17 campus athletic program, when Congress enacted Title IX in 1972,

18 UC Davis supported 7 intercollegiate sport teams for women:

19 basketball, field hockey, swimming, softball, tennis, volleyball, 20 and track & field. (Pretrial Order ¶ 14.)4

21

10. In January 1972, the UC Davis Women’s Intercollegiate

22 Athletic Subcommittee, made up of students belonging to the

23

24

4

The governing entity for women’s intercollegiate sports

at that time was the Association of Intercollegiate Athletics for 25 Women (“AIAW”). (Pretrial Order ¶ 14.) In 1981, UC Davis became

a member of the NCAA for purposes of women’s intercollegiate 26 athletics. (Pretrial Order ¶ 16.) The NCAA does not prohibit a

member school from adding non-NCAA sports so long as a school

27 meets the requirements for sport sponsorship minimums for its

division. (Id.) At all relevant times, UC Davis met those NCAA

28 requirements. (Id.)

4

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 5 of 147

1 Women’s Athletic Association (including defendant Gill-Fisher),

2 prepared a report for the Intercollegiate Athletic Advisory

3 Board. The report was designed to show the current philosophies,

4 practices and needs of the women’s intercollegiate athletic

5 program at UC Davis, as well as trends at the local, regional,

6 and national level. (JX 15; TT 1616:10-1621:10)

7

11. The report recommended that the campus add women’s

8 gymnastics and badminton as intercollegiate sports. (JX 15; TT

9 1616:10-1621:10.)

10

12. In 1974, UC Davis added women’s gymnastics as an

11 intercollegiate sport. (Pretrial Order ¶ 15; TT 1821:10.) There

12 is no evidence that women’s badminton was ever added as an

13 intercollegiate sport.

14

13. In or about 1976, Gill-Fisher chaired a committee to

15 evaluate UC Davis’ compliance with Title IX. (TT

16 1613:24-1615:22.)

17

14. In July 1978, Gill-Fisher co-authored a UC Davis Title

18 IX compliance review, which recommended, inter alia, that women’s

19 cross-country be considered an intercollegiate sport for 1978.

20 (JX 16; TT 1622:5-1623:12)

21

15. In 1978, UC Davis upgraded women’s cross-country to

22 intercollegiate status. (TT 1622:20-1623:6.)

23

16. Subsequently, UC Davis discontinued women’s field

24 hockey at the end of the 1982-1983 school year. (Pretrial Order

25 ¶ 17.)

26

17. The discontinuation of women’s field hockey was done

27 for legitimate, non-discriminatory reasons; interest in the sport

28

5

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 6 of 147

1 as well as viable competitive opportunities at the 2 intercollegiate level were decreasing.5

3

18. In the 1980s, interest in field hockey was on a

4 downward slope as the number of teams nationwide decreased and

5 the interest in field hockey in California high schools

6 decreased. (TT 1821:11-15; 1838:16-1839:4.)

7

19. In the 1980s, only seven colleges in California played

8 field hockey at all. Over that decade, NOR-PAC, the conference

9 in which UC Davis played field hockey, decreased in size from

10 seven schools to three schools. (TT 2461:2-5; 2462:21-2464:9.)

11

20. Further, finding fields suitable for field hockey was a

12 pervasive problem because field hockey requires an even,

13 manicured surface that makes it difficult for field hockey teams

14 to share fields with teams from other sports. (TT

15 2461:14-2462:19.)

16

21. At the same time, interest and competition was

17 increasing rapidly in women’s intercollegiate soccer. (TT

18 1821:11-15, 1838:4-1839:3; 1625:3-1627:7.)

19

22. UC Davis evaluated the high schools, junior colleges,

20 and universities in its area and saw many schools were offering

21 soccer, with the result that UC Davis had a solid recruiting base

22

23

5

The court finds that plaintiffs failed to raise any

credible question regarding the decreasing level of competitive 24 intercollegiate opportunities through the testimony of Sharon

Gish (“Gish”), the UC Davis field hockey coach at the time the 25 sport was eliminated. Gish was not involved in the decision to

drop field hockey and could not recall whether UC Davis informed 26 her of the reasons it chose to drop the sport. (TT 2465:1-

2466:1.) Moreover, she had neither a consistent basis for

27 knowledge nor a clear recollection of the competitive

opportunities in field hockey subsequent to UC Davis’ elimination

28 of the sport.

6

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 7 of 147

1 and expectation of competition in women’s soccer. (TT

2 1626:21-1627:7.)

3

23. As such, women’s field hockey was replaced by women’s

4 intercollegiate soccer in the fall of 1983. (Pretrial Order ¶

5 17.)

6

24. Thereafter, sometime in the late 1980s, UC Davis

7 appointed Dennis Shimek as its Title IX Compliance Officer.6 (TT

8 2331:5-9; 1858:2-16.)

9

25. In 1989, UC Davis commenced a comprehensive Title IX

10 review, which formed the foundation for UC Davis’ subsequent

11 progress in program expansion for women student-athletes. (JX

12 17; TT 1630:9-1633:6; 1826:3-1827:2.)

13

26. The review made findings that UC Davis was not in

14 compliance with Title IX under any of part of the three prong 15 test.7 (JX 17, at 10-17.) Specifically, when compared to the

16 enrollment rates of male and female students, the data collected

17 in the review confirmed that UC Davis was offering men hundreds

18 more athletic participation opportunities than women relative to 19 enrollment.8 (JX 17, at 3763.)

20

6

The court notes that plaintiffs did not name Shimek as

21 a defendant, even though he was the UC Davis official in charge

of Title IX compliance. 22

7

See infra, at Conclusions of Law I.A.2.

23

8

The review also stated that UC Davis had eliminated a

24 women’s golf team. (JX 17, at 12.) However, UC Davis asserts

that it never eliminated women’s intercollegiate golf because it 25 never sponsored it prior to its addition in 2004. Based upon the

sole mention of the alleged women’s golf team in the report 26 without any other documentation or testimony to support its

existence, the court finds that UC Davis did not support a 27 women’s varsity golf team prior to its addition in 2004.

28

Similarly, “The Davis View” referred to women’s

7

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 8 of 147

1

27. In accordance with the philosophy espoused in “The

2 Davis View,” UC Davis preferred trying to add women’s teams

3 rather than eliminate men’s teams in attempting to comply with

4 Title IX. (TT 2342:24-2343:8; 646:2-12.)

5

28. As such, the review resulted in a recommendation that

6 UC Davis establish steps to increase women’s participation

7 opportunities. (JX 17, at 10-17.)

8

29. Moreover, beginning in 1990, and continuing through

9 1992, then Assistant Athletic Director Pam Gill-Fisher

10 recommended that UC Davis eliminate the junior varsity football

11 team to save funding and decrease the disparity between men’s and

12 women’s intercollegiate athletic participation opportunities.

13 (TT 1637:10-1638:19.)

14

30. The January 10, 1991 Report on Intercollegiate

15 Athletics, prepared by athletic department administrators,

16 reported that women were receiving 300-400 fewer participation

17 opportunities than men for each year from 1986 to 1991, and

18 recorded a drop of 120 female participation opportunities from

19 1989 to 1991 alone. (PX 13, at DEF 1266.)

20

31. On June 27, 1991, Gill-Fisher submitted a Title IX

21 review to then Athletic Director Jim Sochor, noting the

22 discrepancy in male and female participation rates and that no

23 steps had been taken to increase athletic participation

24 opportunities for women. (JX 18.)

25

26
intercollegiate competition in rifle. (JX 14, at 5.) Because 27 there is no evidence that this sport was in existence at the time
Title IX was passed, the court finds the reference to women’s 28 rifle to be irrelevant.

8

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1

32. On December 20, 1991, Gill-Fisher submitted an update

2 regarding Title IX compliance from June to December 1991, noting

3 that participation opportunities remained a problem. (JX 19; TT

4 641:23-643:7.)

5

33. On June 5, 1992, Gill-Fisher prepared the next Title IX

6 review, again noting that participation opportunities were a

7 major concern. (JX 66.)

8

34. In November 1992, Gill-Fisher wrote a Title IX

9 compliance memorandum to then Athletic Director Keith Williams

10 (“Williams”), warning of backsliding on movement toward Title IX

11 compliance. In order to deal with participation ratios, the

12 memorandum recommended, inter alia, eliminating all junior

13 varsity teams, establishing roster caps for all sports, and

14 adding women’s crew and women’s golf. Gill-Fisher also warned

15 that UC Davis needed to implement a plan to address participation

16 ratios or risked facing an OCR complaint or potential lawsuit.

17 (JX 22; TT 1646:2-1649:9.)

18

35. In December 1992, Gill-Fisher alerted then Vice

19 Chancellor for Student Affairs, Bob Chason, to participation

20 ratio issue and potential solutions, including capping men’s

21 rosters and adding women’s sports. (JX 23; TT 1389:2-1389:25.)

22

36. Junior varsity football and men’s junior varsity

23 basketball were dropped following the recommendation from

24 Gill-Fisher. (JX 26; TT 1638:10-14; 649:11-651:12.)

25

37. On May 27, 1993, Gill-Fisher wrote a strongly-worded

26 Title IX report to Athletic Director Williams, again expressing

27 major concern with participation ratios. Specifically, the

28 report noted that while football was mandated to have 180

9

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 10 of 147

1 participants, it still had 250. The report also noted that there

2 were 40 women on a national championship club water polo team and

3 that there was strong interest in forming an intercollegiate

4 women’s crew team. Gill-Fisher stated her opinion that the

5 University was not providing women with participation

6 opportunities as required by law. (PX 25.)

7

38. Also in May 1993, Williams prepared a preliminary draft

8 of a plan to address several Title IX concerns. The draft plan

9 included expansion of women’s sports opportunities combined with 10 elimination of junior varsity football within the coming year.9

11 The draft plan also noted that the current year participation

12 ratios were 68% men and 32% women, but contemplated a 3-5 year

13 timeline for achieving participation ratio compliance. (JX 25;

14 TT 670:13-674:2.)

15

39. In 1992-1993, UC Davis was facing massive budget cuts

16 that would have eliminated, among other things, state funds for

17 athletics, resulting in a total program cut of about 70 percent.

18 (TT 652:19-654:19; 1190:13-1192:16.)

19

40. In response, UC Davis worked with student organizations

20 to propose student referendums for additional fees to preserve

21 the athletic program. (TT 653:1-5; 1193:24-1195:18.)

22

41. In 1993, students passed a referendum that provided for

23 three years of additional student funding. (TT 1196:5-11.)

24

42. In 1994, students passed a second referendum (the

25 “SASI” referendum) that provided for sufficient fee increases to

26

27

9

The plan expressly noted that the size of the football

roster was an “almost impossible obstacle relative to Title IX.”

28 (JX 25.)

10

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 11 of 147

1 preserve the current program and add three new women’s sports.

2 (TT 690:6-24; 1196:12-1197:9.)

3

43. UC Davis elevated women’s water polo, lacrosse, and

4 crew from club status to varsity status. (Pretrial Order ¶ 23.)

5

44. The addition of the three new intercollegiate sports

6 established 131 additional participation opportunities for women

7 in the 1996-1997 school year, the first year those new teams

8 competed. (JX 89; TT 1393:8-10.)

9

45. In December 1996, Gill-Fisher sent then Athletic

10 Director Warzecka a memo, warning that although the addition of

11 the new sports would improve the participation ratio for women’s

12 athletic opportunities, it would not alone solve the

13 participation opportunity discrepancy. She recommended analyzing

14 the size of the men’s teams to determine whether they were

15 carrying more student-athletes than necessary for competition.

16 (JX 35; TT 1661:13-1663:3; 1019:3-1020:2.)

17

46. In December 1997, Dave Wampler of the UC Davis

18 Administrative Athletic Advisory Committee (“AAAC”) sent then

19 Associate Vice Chancellor for Student Affairs Franks and Warzecka

20 a letter, noting the continuing disproportion of women’s

21 participation rates based upon the “NCAA Gender Equity Survey, UC

22 Davis 1996-1997.” The AAAC recommended that the size of most

23 men’s sports teams be reduced. (JX 37; TT 1020:10-1021:8.)

24

47. In November 1998, the difference between the female

25 enrollment percentage and the female athletic participation

26 percentage was almost 12 percent. (JX 89.) Warzecka had a goal

27 of achieving a participation ratio disparity of only 5 percent.

28 (PX 54; TT 1022:20-1026:3.)

11

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 12 of 147

1

48. UC Davis implemented a roster management program for

2 men’s intercollegiate teams as part of its efforts toward

3 achieving substantially proportionate athletic participation

4 opportunities. Roster management was needed because some of the

5 men’s teams were unnecessarily large in relation to how many

6 competitors they needed, and the large numbers put a strain on

7 the budget; trimming the excess participants helped address the

8 participation ratio. (TT 2064:20-2068:18; JX 35.)

9

49. In December 1998, UC Davis Provost and Executive Vice

10 Chancellor Grey appointed Gill-Fisher and members of a Title IX

11 workgroup to advise the athletic department about Title IX

12 issues. A multi-year plan was to be established and monitored by

13 the workgroup. (PX 59; TT 2025:9-2028:10.)

14

50. At the same time, Title IX reporting switched to a more

15 collective approach involving the Title IX workgroup. Warzecka

16 testified that the change was made because he viewed Title IX

17 compliance as a University-wide issue, not the responsibility of

18 one individual. (TT 2026:19-2028:10; see also TT

19 2366:18-2367:9.)

20

51. In the 1998-1999 school year, UC Davis declared women’s

21 indoor track & field as a separate intercollegiate sport. (TT

22 2049:23-2050:9.)

23

52. Although women had been competing in indoor track &

24 field events as UC Davis student-athletes prior to the 1998-1999

25 school year, (1) additional funding was allocated to expand the

26 number of indoor track & field venues UC Davis women were able to

27 travel to and compete at; (2) the NCAA changed its reimbursement

28 rules allowing UC Davis to be eligible for reimbursement of

12

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 13 of 147

1 indoor track & field championship expenses; and (3) the EADA

2 reporting template began listing indoor track & field as a

3 separate sport from outdoor track & field. (TT 2046:18-2050:19.)

4

53. As such, the court finds that indoor track & field was

5 elevated to varsity status in the 1998-1999 school year, and

6 participation opportunities for female student-athletes increased 7 as a result of this addition.10

8

54. In May 1999, the Title IX Workgroup prepared a draft

9 3-year plan for UC Davis athletics, noting that the participation

10 rate of women athletes had risen to about 48 percent, but was

11 still less than the 55 percent female undergraduate enrollment.

12 The plan projected that further roster management of men’s teams

13 would reduce the discrepancy of female athletic participation to

14 5 percent in the next school year. Ultimately, despite the

15 application of a men’s roster management program, increasing

16 female enrollment at the University kept the discrepancy at 6

17 percent for 1999-2000. (JX 43; TT 2028:13-20-2033:9.)

18

55. As of October 2001, there were intercollegiate teams

19 for women at UC Davis in 13 sports: basketball, cross-country,

20 gymnastics, lacrosse, rowing, soccer, softball, swimming/diving,

21 tennis, outdoor track & field, indoor track & field, volleyball,

22 and water polo. (Pretrial Order ¶ 18.)

23

24

10 The court notes that the Ninth Circuit has previously

held that the dispute over how to characterize the addition of 25 indoor track & field was irrelevant because, as set forth infra,

in the 1999-2000 school year, “women varsity athletes at UCD 26 reached a historic high in both total numbers and proportion of

female athletes to enrolled women students.” Mansourian v.

27 Regents of the Univ. of Cal., 602 F.3d 957, 970 (9th Cir. 2010).

However, for the sake of completeness and clarity, the court

28 makes this finding.

13

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 14 of 147

1

56. As of that date, there were intercollegiate teams for

2 men at UC Davis in 12 sports: baseball, basketball,

3 cross-country, football, golf, soccer, swimming/diving, tennis,

4 outdoor track & field, indoor track & field, water polo, and

5 wrestling. (Id.)

6

57. In 2001, the Title IX Workgroup prepared the Equity in

7 Athletics Plan, which set forth a goal of achieving Prong One

8 compliance via roster management and, if the female undergraduate

9 population continued to increase, by adding new women’s sports.

10 (JX 48, 49; TT 2054:21-2059:1.)

11

58. In December 2003, the Title IX Workgroup issued a

12 Gender Equity Strategic Review in the form of a table. The

13 review set a plan to “act on” club sports interest in obtaining

14 varsity status, to “review” the student body regarding its

15 interest in athletics, and to “evaluate” the athletic program to

16 ensure it was complying with Title IX. (DX GG; TT

17 2366:18-2370:14.)

18

59. In 2004, the Title IX Administrative Advisory Committee

19 (formerly the Title IX Workgroup) issued a new review, now titled 20 the ICA11 Strategic Plan 2004-2007, in a format to conform to

21 NCAA membership committees’ forms. The plan set out the action

22 of adding women’s golf and continuing to implement and review

23 roster management. (DX MM; TT 2059:5-2060:10.)

24

60. In 2004, UC Davis added women’s golf as an

25 intercollegiate sport. (TT 2159:7-2160:12; JX 81.)

26

27

28

11 “Intercollegate Athletic”

14

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 15 of 147

1

61. As of December 2005, there were intercollegiate teams

2 for women at UC Davis in 14 sports: basketball, cross-country,

3 golf, gymnastics, lacrosse, rowing, soccer, softball,

4 swimming/diving, tennis, outdoor track & field, indoor track &

5 field, volleyball, and water polo. (Pretrial Order ¶ 19.)

6

62. As of that date, there were intercollegiate teams for

7 men at UC Davis in 12 sports: baseball, basketball,

8 cross-country, football, golf, soccer, swimming/diving, tennis,

9 outdoor track & field, indoor track & field, water polo, and

10 wrestling. (Id.)

11

63. In 2003, UC Davis announced that it would reclassify

12 from NCAA Division II to NCAA Division I; the process took four

13 years to complete. (Id. ¶ 26.)

14

A. Applications for Addition of Women’s Sports Teams

15

64. UC Davis monitored undergraduate interest in athletics

16 by looking at participation in club sports and intramurals. (TT

17 2341:7-2342:16.)

18

65. However, it did not conduct a survey of student

19 interest prior to 2004, did not conduct an analysis in writing,

20 and had no formal policy for evaluating and assessing interest.

21 (TT 1410:21-1411:13; 1736:23-1737:3; 2190:7-25; 2192:11-24.)

22

66. Further, there is no evidence that UC Davis had an

23 established process by which it assessed interest by high school

24 students, outside athletic associations, or other academic

25 institutions.

26

67. Indeed, aside from the two times they solicited varsity

27 applications in 1994 and 2003, UC Davis did not implement a

28 formal system for assessing interest in specific athletic

15

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 16 of 147

1 opportunities from 1972-2005. (TT 1253:22-24; 1279:13-19;

2 1410:21-1411:1; 1411:2-13; 1736:23-1737:3; 2192:1-24.)

3

1. Women’s Cross-Country12

4

68. In response to requests made from intercollegiate

5 athletic coaches, UC Davis upgraded women’s cross-country to

6 varsity status in 1978. Specifically, Sue Williams, who became

7 the women’s varsity cross-country coach, provided information

8 supporting the upgrade to then Athletic Director, Joe Singleton

9 (“Singleton”). Singleton sought information regarding whether

10 cross-country had a viable pool of potential athletes, whether

11 Sue Williams could create a potential schedule with similar

12 institutions, and whether cross-country was competitively viable.

13 (TT 1511:5-1512:11; 1622:20-1623:6.)

14

69. Gill-Fisher recommended the upgrade in the July 1978

15 Title IX review. (JX 16; TT 1622:5-1623:12.)

16

2. Women’s Water Polo, Lacrosse, and Crew

17

70. UC Davis solicited proposals for new women’s varsity

18 sports in 1995 and again in 2003. (Pretrial Order ¶ 22.)

19

71. In January 1995, a sport selection advisory committee

20 chaired by the acting Athletic Director was formed to evaluate

21 teams and identify the three women’s sports to be added. (TT

22 696:3-25.)

23

72. The campus developed a detailed, analytical process for

24 selecting the new sports, which involved input from persons

25 outside of the Athletic Department. The process involved a

26

27

12 The court notes that there was little to no specific

evidence presented regarding the process used to add women’s

28 soccer as a varsity sport in 1983.

16

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 17 of 147

1 series of steps: (1) the committee would prepare materials for

2 interested parties to use in preparing new sport proposals,

3 including a description of the relevant criteria; (2) the

4 intercollegiate athletic administration would provide support to

5 groups interested in making a proposal, or intercollegiate

6 athletic staff would develop the proposal themselves if no

7 representative group was available for a potential new sport; (3)

8 proposals would be circulated to a number of campus committees

9 and organizations; (4) the sport selection committee would meet

10 with groups making proposals; (5) the sport selection committee

11 would receive comments from interested committees and

12 organizations; (6) the sport selection committee would summarize

13 comments and assist the Athletic Director in making final

14 recommendations; and (7) the Athletic Director would submit new

15 sport recommendations to the Associate Vice Chancellor for

16 Student Affairs. (JX 31.)

17

73. The committee developed a detailed set of criteria to

18 evaluate the new sport proposals, including impact on gender

19 equity, interest in the sport at various levels, sport

20 sponsorship and competitive opportunities within conference or

21 NCAA, availability and cost of appropriate facilities, equipment

22 and operating expenses for the sport, use of training rooms,

23 coaching requirements, minimum roster numbers for a successful

24 program, and anticipated success at the NCAA level. (JX 31; TT

25 696:3-700:5; 1727:14-1729:13.)

26

74. In 1995, the following women’s club teams submitted

27 applications to be elevated to varsity status at UC Davis: water

28

17

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 18 of 147

1 polo, lacrosse, crew, badminton, and field hockey. (Pretrial

2 Order ¶ 23.)

3

75. After receiving input from various constituent groups

4 and the sport selection committee, UC Davis elevated women’s

5 water polo, lacrosse, and crew to varsity status. (Id.; TT

6 707:6-708:9; 1200:5-16; JX 34.)

7

76. The decision to add these sports was responsive to the

8 developing interests and abilities of female students at UC

9 Davis. (TT 1657:22-1660:24.)

10

77. Viable women’s club teams already existed for all three

11 sports, and each had increasing rates of participation at both

12 high school and collegiate levels. (TT 705:3-5; JX 28-30 &

13 33-34.)

14

78. Specifically, the women’s water polo club team had won

15 championships at the club level, and the sport was on the NCAA

16 list of emerging sports for women. (TT 1487:5-1489:4; JX

17 28.0945-46; JX 30; JX 34.)

18

79. Women’s lacrosse had high participation rates at UC

19 Davis (ranging from 40-100 women over the five years before it

20 was elevated to varsity), and nationwide high school

21 participation in women’s lacrosse had dramatically increased 131%

22 over the previous five years. (JX 29, 34.)

23

80. Crew for women had large sports club participation at

24 UC Davis, first-rate facilities at Lake Natoma and the Port of

25 Sacramento, and a PAC-10 championship. (JX 28, 33-34.)

26

81. Although it was a close call in comparison to lacrosse,

27 field hockey was not chosen. The majority of the committee

28 believed that nearby competition in lacrosse would likely be more

18

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 19 of 147

1 plentiful because more colleges in UC Davis’ region had club

2 teams that might be moving up to intercollegiate status. (TT

3 708:19-709:25.) Field hockey also had much more stringent and

4 expensive field requirements than lacrosse. (TT 723:22-724:25.)

5

3. Women’s Indoor Track & Field

6

82. In 1993, the women’s intercollegiate track & field

7 coach, Deanne Vochatzer (“Vochatzer”), approached the Athletic

8 Director, Keith Williams (“Williams”) about the issue of adding

9 indoor track & field as a varsity sport. She believed it would

10 be beneficial to the members of the outdoor track & field team

11 and would aid in recruiting. Mr. Williams approved of having

12 student-athletes compete in indoor track & field events, but

13 given the financial crisis occurring at the time, required

14 Vochatzer to find funds within her existing team budget to do so.

15 (TT 1562:6-1563:17.)

16

83. Shortly after defendant Warzecka became Athletic

17 Director, Vochatzer raised the issue of indoor track & field with

18 him and requested additional funds in order to take female

19 student-athletes to indoor track & field events. (TT 2049:4-9.)

20

84. The facility in Reno where many of the indoor track &

21 field events were held had fallen into disrepair, and thus it was

22 necessary to travel further distances to competitions, such as

23 Seattle and Idaho. (TT 1565:2-1566:4.)

24

85. The NCAA began reimbursing championship expenses for

25 indoor track & field for Division II schools in the 1996-1997

26 school year. (TT 1566:5-14.)

27

28

19

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 20 of 147

1

86. Warzecka agreed to provide more funding so the team

2 could compete in more indoor track & field competitions and NCAA

3 indoor track & field championships. (TT 2048:11-2050:19.)

4

87. The first year UC Davis was able to report indoor track

5 & field as a separate sport on its EADA report was 1998-99. (JX

6 4, at B52.) UC Davis began reporting indoor track & field as a

7 separate sport in its 1998-1999 EADA report. (Id.; TT

8 2046:11-2047:9; see also JX 89.)

9

4. Women’s Golf

10

88. The process for adding women’s golf was based on the

11 same process that was used to add the three sports in 1995-96.

12 (TT 1726:5-16.)

13

89. The process of program expansion began again in 2002.

14 (TT 2364:23-2365:20; TT 2129:17-2131:2; DX EE.)

15

90. In April 2003 information was disseminated to club

16 sport teams, students, and other members of the campus community

17 regarding the process and criteria to be used for selection of a

18 new intercollegiate sport for women. (TT 1726:17-1727:13;

19 1730:11-14; 2135:17-2136:17; JX 74.)

20

91. The criteria for assessment of potential

21 intercollegiate sports included impact on gender equity, interest

22 in the sport at various levels, sport sponsorship and competitive

23 opportunities within conference or NCAA, availability and cost of

24 appropriate facilities, equipment and operating expenses for the

25 sport, use of training rooms, coaching requirements, minimum

26 roster numbers for a successful program, and anticipated success

27 at the NCAA level. (TT 1727:14-1729:13; JX 74.)

28

20

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 21 of 147

1

92. The following women’s club teams submitted applications

2 for varsity status at UC Davis: field hockey, rugby, horse polo,

3 and bowling. (Pretrial Order ¶ 24.)

4

93. A proposal to add golf as a varsity sport for women was

5 submitted by Associate Athletic Director Bob Bullis. (Id.)

6

94. The 1995 process, upon which the 2002-2003 process was

7 based, specifically stated that an intercollegiate athletic

8 employee would prepare the proposal if no representative group

9 was available to prepare a proposal for potential new women’s

10 sports. (JX 31, at RPD1.2187.)

11

95. The addition of women’s golf at UC Davis had been

12 discussed multiple times before the 2002 process, including as

13 early as November 9, 1992. (TT 1656:4-13, 1730:1-1732:8; JX 22.)

14

96. Indeed, Warzecka had received an inquiry from the

15 President of California National Organization for Women (“Cal

16 NOW”) in December 1998 suggesting the addition of women’s golf.

17 (JX 41.)

18

97. Further, there was high participation in women’s golf

19 at California high schools and junior colleges, and the sport was

20 attracting numerous e-mail inquiries from prospective students.

21 (TT 1734:15-1735:7.)

22

98. Defendant Warzecka recommended to Vice Chancellor for

23 Student Affairs, Judy Sakaki, that golf be added as the next

24 intercollegiate sport for women because: (1) golf was already

25 played as a championship sport in the Big West Conference, and UC

26 Davis was therefore required by conference rules to add

27 conference championship sports before adding other sports; (2)

28 competition was plentiful because 451 colleges had

21

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 22 of 147

1 intercollegiate women’s golf programs; (3) women’s golf had an

2 NCAA championship in all three NCAA divisions; (4) golf was

3 offered for women at 639 high schools and 27 junior colleges,

4 providing a strong recruiting base; (5) UC Davis was receiving

5 numerous e-mail inquiries about the availability of women’s golf;

6 (6) the Davis community indicated strong interest and financial

7 support for women’s golf; and (7) a local golf club course was

8 available. (TT 2160:1-2163:11; JX 81.)

9

99. In June of 2004, UC Davis announced that it would add

10 women’s golf as a new varsity sport. (Pretrial Order ¶ 25.)

11

100. Head coach, Kathy DeYoung, was appointed at that time

12 and spent academic year 2004-2005 building the team. This

13 included developing a budget, constructing a schedule of

14 competition, obtaining equipment, and spending time with the golf

15 programs at Washington, UCLA, and Berkeley to learn how top 16 programs operate. (Id.; TT 2164:7-2165:4; 2259:15-2260:5.)13

17

101. The team commenced competition in the fall of 2005.

18 (Pretrial Order ¶ 25.)

19

102. Under all the relevant circumstances, the court finds

20 the addition of women’s golf was responsive to the developing

21 interests and abilities of female student-athletes.

22

103. There were a number of legitimate reasons UC Davis

23 choose not to elevate the other sports that sought

24 intercollegiate status when it elevated women’s golf.

25

26

27

13 Plaintiffs’ expert, Donna Lopiano, agreed that a year

is needed to get a new sport ready for competition. (TT

28 945:11-20.)

22

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 23 of 147

1

104. With respect to field hockey, although there was a

2 longstanding club team, UC Davis did not have an adequate turf

3 facility to host intercollegiate field hockey competition. (TT

4 2137:2-20; JX 80.) Further, none of the schools in the Big West

5 Conference, which UC Davis was joining, had varsity field hockey

6 teams, and there were only three teams in all of California. (TT

7 2147:11-2151:11.)

8

105. With respect to rugby, women’s rugby was designated an

9 emerging sport by the NCAA, but there was no conference with

10 existing competition for a schedule, and only one other

11 intercollegiate team in the country. (TT 2138:1-6; 2158:13-22;

12 JX 78, at 5.)

13

106. With respect to horse polo, there was a lack of

14 regional competition, a lack of local facilities for competition,

15 and the sport would have required considerable expenses for

16 maintaining and transporting horses. (TT 2138:10-2139:1.)

17

107. With respect to women’s bowling, UC Davis had an

18 existing club and a facility, but it was not an NCAA sport and

19 the only existing intercollegiate competition was in the

20 Southeast, necessitating considerable travel costs and lost

21 student class time. (TT 2139:2-2140:10, 2144:25-2146:18.)

22

108. Accordingly, these sports were not chosen for elevation

23 to varsity status.

24 /////

25 /////

26 /////

27 /////

28 /////

23

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 24 of 147

1

B. Equity in Athletics Disclosure Act (“EADA”) Reports14

2

109. EADA reporting began in 1995-1996. (JX 1; TT

3 1823:24-1824:1.)

4

110. Pursuant to the requirements of the EADA, UC Davis has

5 submitted a report to the Department of Education, Office for

6 Civil Rights, each fall since 1996 setting forth: (1)

7 undergraduate enrollment numbers at UC Davis by gender; and (2)

8 the number of male and female participants on intercollegiate

9 sport teams on campus. (Pretrial Order ¶ 20.)

10

111. The parties agree that Joint Exhibit 89 accurately

11 reflects the relevant information provided on the EADA reports

12 for each year from 1995 through 2006.

13

112. In 1995-1996, there were 211 total female participants

14 in varsity athletics.15 The difference between the female

15 enrollment percentage and the female athletic participation

16 percentage was 20 percent. (JX 89.)

17

113. In 1996-1997, there were 348 total female participants

18 in varsity athletics. The difference between the female

19 enrollment percentage and the female athletic participation

20 percentage was 11 percent. (JX 89.)

21
14 The Equity in Athletics Disclosure Act (“EADA”) 22 “requires federally funded universities to report to the
Department of Education and make available to students the number 23 of undergraduates and athletes, broken down by sex, as well as
sex-segregated data on operating expenses, coach salaries, 24 athletic scholarships, recruiting expenditures, and revenues.”
Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957, 968 25 (9th Cir. 2010) (citing 20 U.S.C. § 1092(g)).

26

15 The court does not consider plaintiffs’ “unduplicated

count” as the Ninth Circuit has recognized that courts “count

27 participation opportunities, not individuals, when comparing the

number of ‘athletes’ to overall student enrollment.” Mansourian,

28 602 F.3d at 966, n.12.

24

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 25 of 147

1

114. In 1997-1998, there were 383 total female participants

2 in varsity athletics. The difference between the female

3 enrollment percentage and the female athletic participation

4 percentage was 11 percent. (JX 89.)

5

115. In 1998-1999, there were 426 total female participants

6 in varsity athletics. The difference between the female

7 enrollment percentage and the female athletic participation

8 percentage was 7 percent. (JX 89.)

9

116. In 1999-2000, there were 424 total female participants

10 in varsity athletics. The difference between the female

11 enrollment percentage and the female athletic participation

12 percentage was 6 percent. (JX 89.)

13

117. In 2000-2001, there were 407 total female participants

14 in varsity athletics. The difference between the female

15 enrollment percentage and the female athletic participation

16 percentage was 7 percent. (JX 89.)

17

118. In 2001-2002, there were 361 total female participants

18 in varsity athletics. The difference between the female

19 enrollment percentage and the female athletic participation

20 percentage was 9 percent. (JX 89.)

21

119. In 2002-2003, there were 389 total female participants

22 in varsity athletics. The difference between the female

23 enrollment percentage and the female athletic participation

24 percentage was 7 percent. (JX 89.)

25

120. In 2003-2004, there were 373 total female participants

26 in varsity athletics. The difference between the female

27 enrollment percentage and the female athletic participation

28 percentage was 6 percent. (JX 89.)

25

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1

121. In 2004-2005, there were 363 total female participants

2 in varsity athletics. The difference between the female

3 enrollment percentage and the female athletic participation

4 percentage was 6 percent. (JX 89.)

5

122. In 2005-2006, there were 401 total female participants

6 in varsity athletics. The difference between the female

7 enrollment percentage and the female athletic participation

8 percentage was 5 percent. (JX 89.)

9

123. Between 1998-1999 and 2001-2002, UC Davis eliminated 65

10 female participation opportunities. (JX 89.) 31 of these

11 eliminated participation opportunities arose as a result of the

12 elimination of the women’s water polo and women’s lacrosse junior

13 varsity (or “B”) teams, which were dropped in 2000-2001 due to

14 lack of sufficient competition at the intercollegiate level. (JX

15 5, 7; TT 1840:3-1842:2.)

16

124. The women’s water polo coach requested the change

17 regarding the junior varsity team because fewer colleges were

18 sponsoring “B teams,” thereby decreasing the opportunities for

19 junior varsity players to play in games. (TT 1494:2-1495:6.)

20 The women’s water polo coach helped re-establish the UC Davis

21 club team, which went on to have considerable success in

22 competition. (TT 1495:7-1496:7.)

23

125. The women’s junior varsity lacrosse team was also

24 discontinued at the request of the coach, Elaine Jones, on the

25 basis of lack of competition from other colleges. (TT

26 1634:8-1635:10; 1665:11-1666:25; 2073:4-2074:3; 2076:21-2077:8.)

27

126. The lack of competition was a legitimate reason to drop

28 the JV teams. (TT 1834:23-1835:8, 1835:21-1836:10.)

26

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1

127. However, UC Davis did not replace the dropped

2 opportunities. (JX 17.)

3

128. By 2005, actual athletic participation opportunities

4 for female students were at their lowest point since 1997. (JX

5 89.)

6

C.

Expert Testimony16

7

129. Plaintiffs’ expert Dr. Donna Lopiano (“Dr. Lopiano”) is

8 a nationally and internationally recognized, leading expert in

9 gender equity in athletics. (JX 85; TT 760:21-761:3;

10 761:25-762:22; 763:4-773:23; 775:3-778:17.) Dr. Lopiano has

11 served as an expert witness in over 30 cases, including in

12 seminal cases addressing Title IX and the Equal Protection Clause

13 in athletics, such as Cohen v. Brown University and Haffer v.

14 Temple University. (JX 85, at 6-7; TT 776:14-777:4.)

15

130. Dr. Lopiano is currently the Chief Executive Officer of

16 Sports Management Resources, a consulting firm. (JX 85.) She

17 was the Chief Executive Officer at the Women’s Sports Foundation.

18 She has also been a coach of multiple sports and an athletic

19 director for more than 18 years at the University of Texas at

20 Austin. (JX 85; TT 764:17-23; 766:2-2-767:5.). She was active

21 in the development of regulations to implement Title IX and

22 various policy interpretations and guidelines promulgated by the

23
16 The court notes the unusual nature of the type of 24 expert testimony advanced in this case. Specifically, both Dr.
Lopiano and Dr. Grant gave testimony regarding their conflicting 25 opinions on whether UC Davis complied with Title IX and achieved
gender equity requirements, the issues at the heart of this 26 litigation. However, given the unique nature of the quasi-
factual, quasi-legal issues surrounding Title IX, the court 27 allowed such expert testimony. The court recounts the relevant
testimony of the experts under its Findings of Fact and whether 28 it adopts or rejects the opinions under its Conclusions of Law.

27

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1 Department of Education’s (“DOE”) Office for Civil Rights

2 (“OCR”), including the OCR’s 1979 Policy Interpretation, the

3 OCR’s 1996 Clarification of the Three-Prong Test, and the OCR’s

4 2011 Clarification of Prong Three. Dr. Lopiano also assisted in

5 the development of the 1980 and 1990 versions of the OCR

6 Investigator’s Manual and trained staff at OCR regional offices

7 on various issues related to Title IX in athletics. (TT

8 775:3-776:13).

9

131. The court found Dr. Lopiano to be qualified as an

10 expert witness in this matter on the issues of gender equity in

11 athletics, Title IX, athletic administration, and roster

12 management. (TT 777:17-23.)

13

132. Defendants’ expert Dr. Christine Grant (“Dr. Grant”) is

14 also a nationally and internationally recognized, leading expert

15 in gender equity in athletics. (JX 83; TT 1794:3-1800:5.) Dr.

16 Grant has served as an expert witness in several cases, including

17 in seminal cases addressing Title IX in athletics, such as Cohen

18 v. Brown University. Before this case, Dr. Grant has always

19 testified on behalf of student-athletes. (JX 83; TT 1803:14-

20 1804:13.)

21

133. Dr. Grant is a Senior Associate at Sports Management

22 Resources, a consulting firm. She has also been a coach of

23 multiple sports and was an athletic director for 27 years at the

24 University of Iowa. (JX 83; TT 1785:13-1788:13; 1789:19-23.)

25 She was also active in the development of regulations to

26 implement Title IX and various policy interpretations and

27 guidelines promulgated by the OCR, such as the OCR’s 1979 Policy

28

28

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 29 of 147

1 Interpretation and the OCR’s 1996 Clarification of the

2 Three-Prong Test. (TT 1800:6-1803:8.)

3

134. The court found Dr. Grant to be qualified as an expert

4 witness in this matter on the issues of gender equity in

5 athletics, Title IX, athletic administration, and roster

6 management. (TT 1811:4-1812:6.)

7

135. Dr. Grant has known Dr. Lopiano since the 1970s.

8 Indeed, during the pendency of this case, Dr. Grant was hired by

9 Dr. Lopiano’s consulting firm, Sports Management Resources. (TT

10 1792:11-23.)

11

136. This is the first case in which Dr. Grant and Dr.

12 Lopiano have been on opposite sides of a case. (TT 1793:22-24.)

13

1. Proportionality

14

137. Schools exercise total jurisdiction over the proportion

15 of males and females in their athletic programs. They control

16 and predetermine the number of males and females participating in

17 the programs through their selection of which sports to offer

18 male and female students and by making decisions about the

19 quality of the coaching and the quality of the program. (TT

20 994:22-995:7; 1880:4-1881:10.)

21

138. As used in this case, the “proportionality” measure

22 compares the percentage of women enrolled at UC Davis with the

23 percentage of women participating in the intercollegiate athletic

24 program. (TT 819:16-820:3.) A university provides equal

25 participation opportunities in intercollegiate athletics if women

26 occupy the same percentage of athletic opportunities in the

27 intercollegiate athletic program as their enrollment percentage.

28 (TT 820:19-821:12).

29

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1

139. The number of participation opportunities that a school

2 would have to add for women to achieve actual proportionality

3 (equity with what is provided to male students proportionate to

4 enrollment) is known as the participation gap. (TT

5 823:14-827:23.)

6

140. Both Dr. Grant and Dr. Lopiano testified that, in the

7 Title IX context, “substantial” proportionality is reached if the

8 participation gap is less than the size of a female sports team 9 that could be added.17 (TT 820:19-821:12; 1876:14-1877:8.)

10

141. An institution may not rely on a set percentage from

11 actual proportionality for this measure because that will

12 translate into a different number of actual participation

13 opportunities depending on the size of a school. (TT 1877:2-8).

14

142. Dr. Lopiano used the athletic participation numbers set

15 forth in UC Davis’ EADA Reports for each year from 1995-1996

16 through 2004-2005 to calculate the participation gap between male

17 and female students. (JX 1-9.) She then identified the number

18 of actual female participation opportunities that UC Davis would

19

20

21

17 Because as set forth infra, the parties have stipulated

for the purposes of this action that UC Davis was not in 22 compliance with Prong One of the three-part test, the court does

not reach the merits of the validity of this contention as 23 applied to the facts of this case. However, the court has some

misgivings about the practical application of such a test, 24 particularly in combination with plaintiffs’ concurrent

advancement of the “team of one” theory. Under plaintiffs’ 25 combined theories, to the extent an institution has not added a

team where individual competition is possible, such as swimming, 26 indoor track & field, outdoor track & field, cross-country,

fencing, or wrestling, that institution would not be

27 “substantially” proportionate if the participation gap was equal

to one student who was interested in participating in such a

28 sport.

30

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 31 of 147

1 have had to have added to reach gender equity in terms of

2 intercollegiate participation opportunities, as follows:

3 Year
4

Female Enrollment

Female Enrollment %

5

1995-1996
6

1996-1997
7
1997-1998
8 1998-1999

9

1999-2000

9,352 10,054 10,118 10,596 10,446

52% 53% 54% 55% 56.6%

10

2000-2001

11,783

56%

Female Athlete %

% Disparity

Female Athletes #

32%

-20%

211

42%

-11%

348

42.7%

-11.3%

383

47.8%

-7.2%

426

50.5%

-6.1%

424

49.2%

-6.8%

407

Male Athletes #
441 472 513 466 416 420

Add’l Female Athletes needed #
267 184 219 144 119 128

11 2001-2002

12,494

56.2%

47.3%

-8.9%

361

403

156

12 2002-2003

11,331

56.4%

49.2%

-7.2%

389

13 2003-2004

11,660

55.9%

50.1%

-5.8%

373

2004-2005

12,834

55.34%

50.25%

-6.1%

363

14

401

130

371

97

368

101

15 (JX 84A; TT 823:14-830:17.)

16

2. History and Continuing Practice of Program

17

Expansion

18

143. A school must have both a history and a continuing

19 practice of intercollegiate athletics program expansion for women

20 if it wants to claim program expansion under Title IX. (TT

21 830:18-831:40; 832:20-833:18; 1877:18-1878:12.)

22

144. The number of intercollegiate participation

23 opportunities added is determinative of whether a school has

24 engaged in program expansion for female students, not the number

25 of teams added. (TT 788:6-11; 1884:10-13.)

26

145. Roster management of men’s teams is not program

27 expansion for female students. (TT 858:20-859:8; 1901:16-21.)

28

31

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1

146. If a school eliminates participation opportunities for

2 female students, it must replace those opportunities and continue

3 to expand. (TT 834:13-835:10; 1898:14-24.)

4

147. Despite agreeing upon these general principles,

5 plaintiffs’ expert, Dr. Lopiano, and defendants’ expert, Dr.

6 Grant, offered conflicting testimony on the issue of whether UC

7 Davis adequately expanded the women’s intercollegiate athletic

8 program.

9

148. Dr. Lopiano testified that UC Davis did not have a

10 continuing practice of program expansion because it dropped

11 female participation opportunities between 1998 and 2005 without

12 replacing them. (TT 834:18-835:10; 837:5-840:21; 842:10-15).

13

149. Dr. Lopiano opined that UC Davis had not adequately

14 expanded participation opportunities for women because (1) UC

15 Davis did not add a woman’s team for nine years; and (2) over

16 those nine years, there was an overall net decline in actual

17 participation opportunities for female student-athletes. (TT

18 837:5-19; 846:16-847:8; 854:15-856:6).

19

150. Dr. Grant testified that an institution must expand

20 every 2-3 years to rely on Prong Two. (TT 1896:9-25). She

21 opined, however, that despite UC Davis’ net loss in participation

22 opportunities between 1998 and 2005, defendants adequately

23 expanded their women’s program.

24

151. She testified that UC Davis should be given a nine-year

25 “credit” for the three teams added in 1996, as though UC Davis

26 had added one every 2-3 years. (TT 1908:5-9; 1903:10-13).

27

152. Dr. Grant also testified that the decline in

28 participation opportunities from 1998-99 to 2001-02 was due to

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1 cutting two JV teams for legitimate reasons and normal

2 fluctuations in the size of women’s teams that, in fact,

3 fluctuated upwards in 2002-03 and 2005-2006. (TT 1905:15-1907:8;

4 1933:22-1934:5; JX 89.)

5

153. She asserted that the fluctuation in women’s athletic

6 participation rates under the circumstances, where the percentage

7 of women undergraduates enrolled at UC Davis was growing, did not

8 indicate an end to progress by UC Davis toward gender equality.

9 (TT 1835:19-1844:10.)

10

154. Neither plaintiffs’ expert nor defendants’ expert

11 testified regarding how to measure or determine a “normal”

12 fluctuation in athletic participation opportunities. At most,

13 Dr. Lopiano testified that if a school was experiencing “normal”

14 fluctuations in participation opportunities, one would see

15 fluctuations going up and down over time, rather than a steady

16 decrease in participation opportunities. (TT 832:20-834:6.)

17 However, there was no evidence regarding how steep such

18 fluctuations may be or over what period of time one should see

19 such fluctuations rise and fall.

20 III. Participation of Women in Wrestling at UC Davis

21

155. The court notes that it has previously dismissed as

22 time barred all claims, under both Title IX and 42 U.S.C. § 1983,

23 arising from the elimination of wrestling opportunities in 2000-

24 2001 and for implementation of a policy that required them to

25 wrestle-off against men in 2001 (the “wrestle-off policy”).

26 (Mem. & Order [Docket #226], filed Oct. 18, 2007; Mem. & Order

27 [Docket #509], filed Dec. 8, 2010.)

28

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1

156. The court clarified that the only viable claims were

2 based upon the more general claims that defendants violated their

3 rights by failing to provide equal accommodation of athletics to

4 women each and every day plaintiffs were students at UC Davis.

5 (Mem. & Order [Docket #509], filed Dec. 8, 2010; Mem. & Order

6 [Docket #594], filed May 18, 2011.)

7

157. However, the court noted that evidence relating to the

8 elimination of wrestling and the implementation of the wrestle-

9 off policy could be relevant to plaintiffs’ broader claims.

10 Despite repeated clarifications regarding the court’s prior

11 rulings, during the course of trial, plaintiffs’ counsel again

12 erroneously asserted that none of their Title IX claims had been

13 dismissed as untimely. (See Mem. & Order [Docket #594], filed

14 May 18, 2011.)

15

158. Further, plaintiffs’ evidence at trial consisted almost

16 entirely of testimony and exhibits relating to the alleged

17 elimination of women’s wrestling and implementation of the

18 wrestle-off policy.

19

159. Moreover, in their proposed conclusions of law,

20 plaintiffs for the first time assert that UC Davis violated the

21 contact sports provision of the 1979 Policy Interpretation by

22 eliminating and/or failing to provide varsity wrestling 23 opportunities for women.18

24

25
18 The court notes that for the same reasons set forth in 26 its various memoranda & orders on this issue, all plaintiffs’
claims arising out of the elimination of varsity wrestling and/or 27 implementation of the “wrestle-off” policy are time-barred,
discrete acts. However, for the sake of completeness and in an 28 abundance of caution, the court addresses these issues herein.

34

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1

160. Accordingly, the court makes the following findings of

2 fact.

3

A. History of Female Participation in Wrestling at UC

Davis

4

5

161. A handful of women participated in wrestling at UC

6 Davis for many years before the controversy at the heart of this

7 dispute arose.

8

162. UC Davis also sponsored a women’s division in its

9 annual Aggie Open wrestling tournament. (Pretrial Order ¶ 28.)

10

163. “Open” wrestling tournaments allow all persons who wish

11 to participate, as long as they satisfy tournament

12 qualifications, such as age. (Id. ¶ 29.)

13

164. Afsoon Roshanzamir (Afsoon “Johnston” after marriage),

14 a talented female athlete, began practicing with the varsity

15 wrestling program in the early 1990’s in preparation for

16 international competition. (Johnston Dep. at 30:20-24;

17 31:3-32:12; 36:13-24; 37:25-38:6; 39:16-20).

18

165. Johnston started UC Davis as a freshmen in 1990 and

19 inquired with Bob Brooks (“Brooks”), then head wrestling coach of

20 the men’s intercollegiate program. (Johnston Dep. at 30:14-15;

21 31:5-11.)

22

166. Johnston testified that she introduced herself,

23 informed Brooks that she was pursuing wrestling on the national

24 level, and stated that she wanted to be a part of the UC Davis

25 team. Specifically, she testified that “if [she] could have a

26 corner of the mat and a workout partner, that [she] would be

27 happy.” (Johnston Dep. at 31:14-18.)

28

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1

167. Johnston practiced and sparred with men, even if they

2 were above her weight class. (Johnston Dep. at 65:1-12; Collier

3 Dep. at 13:14-24 (testifying that he sparred with Johnston when

4 she was 118 pounds and he was 134 pounds).) Specifically, during

5 her freshman year, she practiced with the starting 119 pound male

6 wrestler. (Johnston Dep. at 65:1-12.)

7

168. Johnston didn’t expect to be in the starting line-up,

8 but expected that she would be required to compete against either

9 men or women in open tournaments. (Johnston Dep. at 69:19-25.)

10

169. During her freshman or sophomore year, Johnston

11 competed unofficially in a dual meet against a female wrestler at

12 Chico State; however, their points did not go against the team

13 score. (Johnston Dep. at 34:15-25.) She wore a UC Davis singlet

14 while competing. (Johnston Dep. at 34:15-25.)

15

170. Johnston also competed in a men’s tournament while she

16 was a student at UC Davis. (Johnston Dep. at 35:1-22.) She also

17 wore a UC Davis singlet in this match. (Johnston Dep. at 35:18-

18 22.)

19

171. Johnston was provided with locker room and training

20 services and received equal coaching opportunities as the men.

21 (Johnston Dep. at 36:13-24.)

22

172. Johnston was on the UC Davis wrestling roster and

23 participation lists in the 1992-1993 school year and the 1993-

24 1994 school year. (Pretrial Order ¶ 30.)

25

173. However, Johnston testified that she only considered

26 herself as being on the UC Davis team/squad her freshman year,

27 1990-1991. After that, she trained with the UC Davis team, but

28 considered herself only to be a an “unofficial member” of the

36

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1 team. (Johnston Dep. at 42:3-12.) Johnston did not take any

2 steps to form a separate women’s varsity wrestling team.

3 (Johnston Dep. at 52:4-7.)

4

174. Despite being an “unofficial member” of the team,

5 Johnston received locker room and training services and competed

6 in open tournaments, such as the Aggie Open. (Johnston Dep. at

7 42:16-43:4.)

8

175. During Johnston’s senior year, she practiced and

9 trained with Jennifer Martin (“Martin”), a graduate student at UC

10 Davis. (Johnston Dep. at 43:21-24.)

11

176. No other female undergraduate students participated in

12 wrestling at Davis during the five years that Johnston was a UC

13 Davis student. (Johnston Dep. at 41:5-17.)

14

177. After Johnston graduated in 1995, she and Martin

15 continued to workout with the UC Davis wrestling team and

16 received coaching by the head coach of the men’s intercollegiate

17 program, Michael Burch (“Burch”), as well as assistant coaches.

18 (Johnston Dep. at 44:9-21.)

19

178. Stacey Massola was on the UC Davis wrestling roster and

20 participation lists in the 1997-1998 school year. (Pretrial

21 Order ¶ 31.)

22

179. Former plaintiff Nancy Chiang (“Chiang”) was on the

23 wrestling roster and participation lists in the 1998-1999, 1999-

24 2000, and the 2000-2001 school year. Chiang participated in two

25 Aggie Open wrestling tournaments during the time she attended UC

26 Davis. (Pretrial Order ¶ 32.)

27

28

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1

180. Abby Schwartzburg (“Schwartzburg”) was on the wrestling

2 roster and participation lists in the 1999-2000 school year.

3 (Pretrial Order ¶ 33.)

4

181. Alexis Bell was on wrestling rosters in the 2000-2001

5 school year. (Id. ¶ 34.)

6

182. Samantha Reinis (“Reinis”) was on the wrestling roster

7 and participation lists for the 1997-1998 and the 1998-1999

8 school years. Reinis suffered an injury and did not compete

9 during the 1999-2000 and the 2000-2001 school year, although she

10 did continue to attend practices during that time. (Id. ¶ 35.)

11

183. Women were listed on the wrestling team squad,

12 participation, or rosters lists for the 1992-1993, 1993-1994,

13 1997-1998, 1998-1999, 1999-2000, and 2000-2001 school years.

14 (Id. ¶ 36.)

15

184. Women wrestlers were counted on the EADA reports as

16 intercollegiate/varsity wrestling athletes for the following 17 academic years: 1997-1998, 1998-1999, and 1999-2000.19 (Pretrial

18 Order ¶ 37.)

19

185. From 1992-1993 to 2000-2001, a total of nine individual

20 women appeared on the roster. (Id. ¶¶ 30-35, 38-40.)

21

186. The most women appearing on the roster in any one year

22 was five women in 2000-01. (TT 85:15-20; 403:1-5.)

23

24

19 Plaintiffs assert that the listing of “W. Wrestling” in

plaintiffs’ exhibit 49 demonstrates that UC Davis considered 25 women’s wrestling as a separate varsity sport. However, Warzecka

testified that plaintiff’s exhibit 49 was an internal EADA 26 tracking document; because women were listed as varsity athletes

in wrestling as a result of their inclusion on the men’s team,

27 they had a separate column in the document. (TT 1100:23-

1101:25.) Under these facts, plaintiff’s assertion is without

28 merit.

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1

187. Burch testified that a full women’s team would consist

2 of 12 to 15 women wrestlers. He admitted he never had that many

3 women wrestlers at UC Davis. (TT 309:16-310:3.)

4

B. UC Davis’ Description of Women’s Participation in

Wrestling

5

6

188. When Mike Burch coached the UC Davis wrestling program

7 from 1995 to 2001, the media guide for the team each year

8 described women’s wrestling as having “unofficial status.” (TT

9 239:4-9, 383:23-385:4; 2092:2-2095:5; DX UU-YY.)

10

189. The wrestling media guide for 1996-1997 included a

11 heading “Women’s Freestyle Wrestling,” which referred to “[t]wo

12 women who are members of the Davis Wrestling Club (a local

13 freestyle wrestling club) [that] have spent time training with

14 the Aggies.” (DX UU, at MAN0184.) This alluded to the

15 participation of Johnston and Martin, women who were not

16 undergraduate students at UC Davis at the time. (See Johnston

17 Dep. at 44:9-21.)

18

190. The 1997-1998 media guide featured a picture and

19 informational paragraph relating to then freshman Reinis.

20 However, it also provided: “At UC Davis, women’s wrestling has an

21 unofficial status, but women are encouraged to develop their

22 skills.” (DX VV, at MAN0208.)

23

191. The 1998-1999 media guide featured the pictures and

24 personal statistics of freshmen Nancy Chiang (“Chiang”),

25 plaintiff Ng, and sophomore Reinis. Again, the media guide

26 provided: “At UC Davis, women’s wrestling has an unofficial

27 status, but women are encouraged to develop their skills.” (DX

28 WW, at MAN0246.)

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1

192. Similarly, the 1999-2000 media guide featured pictures

2 and information relating to sophomores Chiang and Ng and juniors

3 Reinis and Abby Schwarzburg and similarly provided: “At UC Davis,

4 women’s wrestling has an unofficial status, but women are

5 encouraged to develop their skills.” (DX XX, at MAN0273.)

6

193. Finally, the 2000-2001 media guide stated: “At UC

7 Davis, women’s wrestling has an unofficial status, but women are

8 encouraged to participate and develop their skills via the UC

9 Davis Wrestling Club.” (DX YY, at MAN0299

10

194. There was never a separate media guide for women’s

11 wrestling at UC Davis. (TT 384:5-8.) Burch provided no

12 information about women’s wrestling results or other

13 accomplishments for the media guide. (TT 378:4-388:9.)

14

195. Based upon comments made to Gill-Fisher in 1999-2000,

15 it appears that Schwartzburg and Reinis understood that they were

16 not part of a separate women’s varsity team. While the students

17 were filling out physical clearance paperwork in her office,

18 Gill-Fisher asked if they wanted to form a women’s wrestling club

19 team; Schwartzburg and Reinis responded that they were happy

20 working out with the men’s team. (TT 1672:12-1674:8.)

21

196. Plaintiff Ng recognized, at the time she was a student

22 at UC Davis, that she was participating on a men’s wrestling

23 team. Specifically, on September 26, 2000, she wrote in her

24 student-athlete questionnaire that the most interesting thing she 25 had done was “being on a guy’s wrestling team.”20 (PX 283, at

26

27

20 To the extent Ng testified that this statement referred

only to her participation in high school wrestling, the court

28 finds such testimony lacks credibility.

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1 39.) The next year, on the same form, she wrote that if she

2 could change anything about wrestling it would be “having a

3 women’s team.” (PX 283, at 50.) Ng testified that she hoped a

4 women’s team would “be developed some day at UC Davis.” (TT

5 527:13-19.)

6

C. Plaintiffs’ Participation in Wrestling at UC Davis

7

197. Plaintiff Ng was on the roster for the intercollegiate

8 wrestling program in academic years 1998-1999 and 1999-2000.

9 (Pretrial Order ¶ 38.) Ng also practiced with the

10 intercollegiate wrestling program during Fall 2000. (Id.)

11

198. Ng completed NCAA and UC Davis eligibility requirements

12 and, in exchange for payment, was provided with a UC Davis duffel

13 bag that contained a t-shirt, a sweatshirt, and a beanie. (TT

14 477:19-478:13; 485:17-23; 513:20-25.)

15

199. Burch did not require Ng to compete for a place on the

16 team in 1998-1999 and 1999-2000. (TT 477:19-478:18; 480:7-12.)

17 Indeed, unlike every other intercollegiate athletic coach that

18 testified at trial, Burch did not make cuts to his team. (TT

19 452:18-454:11.)

20

200. Ng was also not required to compete or try-out for the

21 team in Fall 2000. (TT 480:12-15.)

22

201. Ng was removed from the roster and cut from the program

23 in October 2000. She was placed back on the roster in May 2001.

24 (Pretrial Order ¶ 38.)

25

202. In the Fall 2001, Ng came to wrestling practices until

26 she and others were cut by then head coach Lenny Zalesky

27 (“Zalesky”) in October 2001. (Id.)

28

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1

203. During the periods of time that Ng was on the roster,

2 and during the time she attended practices in the Fall 2001, she

3 was entitled to all of the benefits of varsity status, including

4 lockers, training, academic support, laundry, access to the

5 varsity weight room, and coaching. (Id.; TT 485:4-16.)

6

204. Despite being on the wrestling roster for three years,

7 Ng never competed in a PAC-10 dual meet. (TT 514:1-23; Pretrial

8 Order ¶ 38.)

9

205. Ng did not compete in any of the Aggie Opens because

10 there were no competitors in her weight class. (TT 514:1-24.)

11

206. Rather, Ng competed in only one event during her years

12 at UC Davis, the National Girls and Women’s Wrestling Tournament

13 in Michigan, which was open to elementary school level students

14 through college students. (TT 506:16-507:1-15; 513:5-19;

15 514:1-9.) She did not wear a UC Davis singlet in that event, nor

16 did she compete on behalf of UC Davis. (TT 513:5-19; 514:7-24;

17 520:19-20.)

18

207. Plaintiff Mansourian practiced with the intercollegiate

19 wrestling program during Fall 2000. (Pretrial Order ¶ 39.)

20

208. Masourian completed NCAA and UC Davis eligibility

21 requirements and, in exchange for payment, was provided with a UC

22 Davis duffel bag that contained wrestling shoes, a sweatshirt,

23 and a beanie. (TT 280:12-18; 90:7-24; 157:18-24.)

24

209. Mansourian was not required to compete or try-out for

25 the team in Fall 2000. (TT 143:21-23.)

26

210. She was removed from the roster and cut from the

27 program in October 2000. She was placed back on the roster in

28 May 2001. (Pretrial Order ¶ 39.)

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1

211. Mansourian attended practices in Fall 2001 until

2 October 2001. (Id.)

3

212. During the periods of time that Mansourian practiced

4 and was on the roster, she was entitled to all of the benefits of

5 varsity status, including lockers, training, academic support,

6 laundry, access to the varsity weight room, and coaching. (Id.;

7 TT 93:25-94:7.)

8

213. During her four years at UC Davis, Mansourian’s only

9 competition was in the Aggie Open in January 2001, but she did

10 not wear a UC Davis singlet. (TT 158:5-159:8.)

11

214. During the time Michael Burch coached the wrestling

12 team, women generally wrestled against other women using

13 freestyle rules. These rules differ from the collegiate rules

14 used by men. (Pretrial Order ¶ 41.)

15

215. While at UC Davis, plaintiffs Ng and Mansourian

16 wrestled only against women and used freestyle rules.21 (Id.)

17

216. Plaintiff Mancuso practiced with the intercollegiate

18 wrestling program during Fall 2001 until she and others were cut

19 from the varsity wrestling roster in October 2001. (Pretrial

20 Order ¶ 40.)

21

22

23

24

21 Plaintiff Mansourian testified that she decided to

attend UC Davis because she wanted to wrestle. She testified 25 that Johnston was her idol, and she knew Johnston had wrestled at

Davis. (TT 62:12-23.) However, as set forth above, Johnston 26 admitted that for four of her five years at UC Davis, she was an

“unofficial member” of the men’s intercollegiate wrestling

27 program. Further, she also testified that during her freshman

year, she not only practiced with men, but expected, was willing,

28 and, in fact, did compete against men in open tournaments.

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1

217. Mancuso was entitled to all of the benefits of varsity

2 status, including lockers, training, academic support, laundry,

3 and coaching until October 31, 2001. (Id.)

4

218. Mancuso never competed in wrestling during her years at

5 UC Davis. (TT 585:16-586:19.)

6

219. The UC Davis men’s wrestling program competed in the

7 PAC-10. (TT 361:6-8.) No PAC-10 school had a women’s wrestling

8 team during Burch’s tenure as wrestling coach at UC Davis. (TT

9 383:2-4.)

10

220. Burch never had any of the UC Davis women wrestlers

11 compete in a PAC-10 dual meet. He testified that there were no

12 women wrestlers in any PAC-10 varsity dual meet lineups. (TT

13 382:3-11.)

14

221. Burch testified that 6 of the 10 PAC-10 teams had women

15 on the team during the time he was the coach. (TT 2469:

16 24-2470:9.) However, he admitted that none of the women

17 wrestlers from UC Davis ever competed against women on those 18 teams.22 (TT 2474:7-20.)

19

222. While Burch was coaching at UC Davis, no California

20 four-year colleges had an all-women’s intercollegiate wrestling

21 team. (TT 397:7-17.)

22

223. Although Burch was aware that Lee Allen coached a

23 wrestling club in the Bay Area at Menlo College, he never set up

24 a dual meet between Menlo College and the women wrestlers on the

25 UC Davis wrestling team. Burch only spoke to Allen about

26
22 In Burch’s six years of coaching UC Davis wrestling, he 27 only once took a woman wrestler, Reinis, to possibly compete in a
PAC-10 dual meet at Portland State against another woman; but, 28 Reinis ultimately did not compete. (TT 381:7-382:2.)

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1 arranging possible open freestyle competitions. (TT

2 398:21-399:20.)

3

224. Burch testified that there were a number of specific

4 club events and open tournaments he could have scheduled for

5 women wrestlers; however, the UC Davis women wrestlers only

6 attended 4 of those events: the Aggie Open, the California State

7 University Bakersfield Open, a freestyle state tournament, and

8 nationals in Las Vegas. (TT 2471:19-2472:8; 2479:2-20.) The

9 women wrestlers had to pay their own way to those events. (TT

10 2480:3-7.)

11

225. Unlike every other coach of a women’s varsity athletic

12 team that testified at trial, Burch did not have a regular

13 schedule of competition for women wrestlers. (See TT 1473:7-21;

14 1489:18-1491:17; 1556:5-1557:5; 2254:25-2255:6; 2260:9-11.)

15

226. Although Burch testified women wrestlers represented UC

16 Davis at such open meets, most of the women did not wear UC Davis

17 uniforms at those events. (TT 2479:25-2480:2; 2480:22-2481:4.)

18

227. None of the plaintiffs ever wrestled in a UC Davis

19 wrestling singlet. (TT 2480:22-2481:4.)

20

D. The Status of Women’s Varsity Wrestling at UC Davis

21

228. There was never a women’s intercollegiate or “varsity”

22 wrestling team at UC Davis.

23

229. Rather, based upon the above facts, women only had

24 “unofficial status” on the men’s intercollegiate wrestling team

25 at UC Davis.

26

230. Plaintiffs received all the benefits of varsity status

27 as a result of their “unofficial status” on the men’s

28 intercollegiate team.

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1

231. However, as set forth infra, once UC Davis required the

2 wrestling team to administer cuts to comply with a roster cap on

3 men’s varsity sports, plaintiffs were cut from the men’s team.

4

232. Plaintiffs were not cut from the men’s team because of

5 their sex. Rather, plaintiffs were cut, first by Burch and then

6 by Zalesky, because, like the other male student-athletes that

7 did not make the roster, they could not compete at the Division

8 I, Pac-10 level in intercollegiate men’s wrestling.

9

E. Michael Burch

10

233. In 1995, UC Davis hired Burch as a wrestling coach.

11 (Pretrial Order ¶ 27.)

12

234. Burch was employed at UC Davis from 1995 to 2001 as the

13 Head Coach of the UC Davis men’s varsity wrestling program and as

14 a lecturer in religious studies and exercise biology. (TT

15 239:4-9; 252:4-5.)

16

235. The court finds the majority of Burch’s testimony

17 wholly lacking in credibility. Indeed, the court finds that many

18 of the underlying circumstances that gave rise to this litigation

19 were a result of Burch’s misrepresentations to plaintiffs.

20

236. Despite plaintiffs’ belief to the contrary, Burch was

21 not an ardent supporter of women’s participation in 22 intercollegiate competitive wrestling.23

23

24

25

23 The court notes that this finding is not equivalent to

a finding that Burch was not open to or encouraging of female 26 participation in wrestling generally. However, the undisputed

evidence demonstrates that Burch made virtually no efforts to

27 establish a separate women’s varsity team or even provide women

wrestlers with adequate intercollegiate competitive opportunities

28 until after such efforts could be personally beneficial to him.

46

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1

a. As set forth above, Burch testified that 6 of the

2 10 PAC-10 teams had women on the team during the time he was a

3 coach; however, no UC Davis female wrestler ever competed against

4 any of these women.

5

b. While Menlo College had a women’s wrestling club

6 and a coach known for his support of women’s wrestling

7 opportunities, Burch never set up a dual meet between the Menlo

8 College club and the UC Davis women wrestlers.

9

c. While Burch testified that there were a number of

10 events and open tournaments he could have scheduled, the women

11 wrestlers at UC Davis competed in only a handful of events over

12 the period when Burch was the head coach of the men’s varsity

13 wresting program. Indeed, in the over two full years that she

14 was an unofficial member of the men’s team, Ng competed in only

15 one event, unaccompanied by Burch and not on behalf of UC Davis.

16

d. Burch testified that he lacked “institutional

17 support” for finding competition for women. However, there was

18 no evidence that (1) additional funding was necessary to schedule

19 more competitions; (2) Burch requested such additional funding;

20 or (3) Burch lacked the authority to reapportion his own budget

21 to better pursue more competitive opportunities for women

22 wrestlers. Rather, Burch’s claimed lack of “institutional

23 support” is based purely on his vague conclusions that the

24 “administration” did not support women wrestlers.

25

237. Burch did not begin advocating for the establishment of

26 separate women’s intercollegiate wrestling team until it became

27

28

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1 tied to the prospect of his attaining full-time coaching 2 status.24

3

a. At the end of the winter quarter in 2000, Burch

4 and Gill-Fisher discussed the prospects of Burch attaining

5 full-time coaching status. Gill-Fisher explained that per UC

6 Davis’ gender equity plan, the next head coaches to go full-time

7 would be from women’s intercollegiate teams. In response, Burch

8 suggested designating women’s wrestling as a separate varsity

9 team; Gill-Fisher pointed out that several other women’s club

10 sports were closer to meeting the requirements for an

11 intercollegiate team. (TT 1677:14-1679:5.)

12

b. At the end of the meeting, Burch said he “didn’t

13 give an F-- about Title IX” before storming out and slamming the 14 office door. (TT 1677:14-1679:5.)25

15

c. Burch never approached Warzecka regarding starting

16 a women’s team, needing funding for such a team, or whether he

17 could create a competitive schedule for such a team. (TT

18 1104:21-25.)

19

20
24 As set forth infra, the first complaints and various 21 public protests and meetings relating to wrestling, including
women’s varsity status, began in April 2001. 22
25 The court finds that Burch’s testimony that he had 23 “numerous conversations” on unspecified dates regarding women’s
wrestling is not credible. (See TT 315:6-317:9.) 24
At an unspecified time, Burch left an unlabeled envelope 25 containing a packet about women’s wrestling for Gill-Fisher in
her athletic department box without a note. Gill-Fisher believed 26 it had been misfiled and was intended for Burch so she placed it
in his inbox. Burch did not subsequently discuss the packet with 27 Gill-Fisher. (TT 318:23-319:7; 1679:6-1680:2; PX 206.) This is
not evidence of serious advocacy for women’s wrestling by Burch 28 or a lack of support for women’s wrestling by Gill-Fisher.

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1

d. By contrast, when coaches Williams and Vochatzer

2 saw there was sufficient interest and available intercollegiate

3 competition in women’s cross-country and women’s indoor track &

4 field, they took affirmative steps to work with their respective

5 Athletic Directors to develop teams in those sports. (TT

6 1511:1-1512:14; 1562:6-1565:22; 2045:18-2050:19.)

7

238. Moreover, Burch only attempted to award scholarship

8 money to women wrestlers after he was notified in May 2001 that

9 his contract would not be renewed. (JX 68 (request in e-mail

10 dated June 14, 2001); TT 445:10-15.)

11

a. Before being notified of the non-renewal of his

12 contract, but after being notified that the women wrestlers had

13 been reinstated on the varsity roster, Burch submitted

14 scholarship requests for the next year; none of the women

15 wrestler’s names were on this list. (DX A5; TT 441:4-445:15.)

16

b. UC Davis had a policy that outgoing coaches do not

17 participate in grant decisions and the incoming coach determines

18 who receives grant-in-aid awards. (TT 2122:18-2124:25; JX 69.)

19

239. Burch manipulated the wrestling team to participate in

20 public protests and to circulate petitions for his own interest.

21 (TT 1456:19-1457:11.)

22

a. Burch told the wrestling team that to save the

23 wrestling team itself, they should join in public protests to

24 return the women wrestlers to the roster. (TT 1455:10-21.)

25

b. In flyers distributed at a protest in May 2001,

26 allegations were made that, in addition to being guilty of sex

27 discrimination, the UC Davis athletic department also underfunded

28 minor sports, such as wrestling, and mistreated coaches and staff

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1 members, such as Burch. (TT 745:20-749:8; PX 89; see TT

2 200:13-203:6; 541:10-542:8.)

3

c. Petitions that circulated around campus called not

4 only for “reinstatement” of the women wrestlers on the varsity

5 team, but also that “all head coaching position be promoted to

6 full-time positions.” (PX 86.)

7

F. Events Related to Wrestling at UC Davis in 2000-2001

8

240. In 2000, UC Davis implemented a roster management plan

9 to limit the size of its men’s teams. In Fall 2000, Warzecka

10 sent a letter to the coaches of all men’s intercollegiate teams

11 advising them of the maximum size of their team roster. (TT

12 2099:13-25; JX 44.)

13

241. On October 9, 2000, Warzecka gave Burch the roster cap

14 for wrestling. Men’s wrestling was initially given a roster cap

15 of 30 student-athletes, which would allow for three wrestlers in

16 each of the ten weight classes used in intercollegiate wrestling.

17 (TT 2100:1-2, 2102:19-2103:2; 2283:14-2284:2 (number of weight

18 classes); 407:24-408:23; JX 44.) The roster cap number was

19 increased to 34 at Burch’s request. (TT 410:7-412:18;

20 2101:6-2102:18; JX 45.)

21

242. Warzecka did not care who Burch selected to fill the

22 allotted roster spots or what gender they were, so long as Burch

23 did not exceed the maximum roster size. (TT 2100:6-15, 2103:3-9)

24

a. Warzecka’s testimony is consistent with the

25 testimony of every UC Davis intercollegiate coach, aside from

26 Burch, questioned at trial on this issue. These coaches

27 testified that they had complete discretion to select who made

28 their teams; at no time did UC Davis athletic administrators tell

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1 them who to recruit, sponsor, or place on the team. (TT

2 1472:6-10; 1493:11-14; 1517:1-11; 1551:4-1553:10.)

3

b. Further, Burch admitted that for his first five

4 years he had the sole authority to choose which wrestlers were

5 selected for the wrestling team. (TT 414:6-22; 2080:16-2081:14.)

6

c. As such, the court finds that Burch’s testimony

7 that Warzecka and/or Gill-Fisher “ordered” him not to allot any

8 of the roster spots to women is not credible. (See TT 415:2-24.)

9

d. The court also accepts the credible testimony of

10 Warzecka and Gill-Fisher that they never restricted a coach’s

11 ability, including Burch’s ability, to recruit or sponsor a

12 student-athlete, so long as rules relating to admission and 13 sponsorship were otherwise followed.26 (TT 1668:25-1669:19;

14 2081:8-2081:1.)

15

243. Warzecka met with Burch in October 2000 to discuss the

16 roster cap for the wrestling team. Warzecka asked Burch what he

17 was going to do with the women wrestlers. Burch responded, “I

18 don’t give a damn about those women, they can’t compete with

19 anybody on the men’s roster.” (TT 1087:17-1088:3.)

20

244. Warzecka’s immediate response was to suggest that Burch

21 form a club sport (1) to give the women an opportunity to

22 participate and compete; and (2) to promote and market women’s

23 wrestling. (TT 1088:19-23.)

24

245. Burch did not suggest implementing a separate roster

25 cap for women wrestlers. (TT 2104:7-2105:5.)

26

27

26 Indeed, Gill Fisher was aware that Burch recruited and

sponsored Samantha Reinis, a female wrestler, and had no

28 objection. (TT 1669:6-19.)

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1

246. Burch filled the 34 roster spots with male students.

2 His final roster included a cover memorandum stating that final

3 cuts had been made and the women were being moved to club status.

4 (TT 324:24-325:12; JX 46.)

5

247. Burch did not tell plaintiffs Mansourian and Ng that he

6 had a limited number of roster spots when he falsely informed

7 them that Warzecka had ordered them off the roster. (TT

8 423:3-424:6.)

9

248. After removing them from the 2000-01 roster, Burch let

10 the women wrestlers continue to attend practices in Fall 2000,

11 with access to the weight room and training services. (TT

12 424:7-425:6.)

13

249. This situation did not come to Gill-Fisher and

14 Warzecka’s attention until January 2001 when Mansourian injured

15 her neck and sought training services, which was a significant

16 insurance concern for UC Davis. (TT 167:9-169:25;

17 2106:14-2107:25.)

18

250. Mansourian received training services before being sent

19 to the emergency room. (TT 168:25-169:17.)

20

251. Following Mansourian’s injury, Warzecka met with

21 Mansourian and Ng in January 2001. Warzecka met with them to

22 explain that, because Burch had not included them on the roster,

23 they were not covered by the intercollegiate athletics insurance

24 policy and that they could move to club status to use the club

25 sports insurance policy.

26

a. Warzecka’s concern about liability was based on

27 his understanding and experience that, if an athlete was not

28 covered by the University’s insurance policy and was injured, the

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1 school could be liable for the injuries. (TT 2106:14-2111:23;

2 96:25-97:11; 490:14-18.)

3

b. To facilitate plaintiff’s continued participation

4 in wrestling, Warzecka made an exception to standard University

5 practice by agreeing to (1) allow Mansourian and Ng to use taping

6 and icing services; and (2) waive the minimum number of students

7 required to form a club team. (TT 2106:14-2111:23; JX 51.)

8

252. In that meeting, Warzecka also expressed his concern

9 that having women on the men’s wrestling team might lead to NCAA

10 classification of the team as a mixed-gender team. He was not

11 clear how Division I rules and regulations would apply to a

12 mixed-gender team, but later learned that the wrestling team

13 could have been declared a mixed-gender team and continued to

14 compete at the Division I level. (TT 2108:9-2109:4; see also TT

15 96:18-97:15.)

16

253. Warzecka invited Mansourian and Ng to see him if they

17 had any problems. (TT 2106:14-2111:23.)

18

254. The court finds that Warzecka was not hostile to

19 Mansourian or Ng at this meeting.

20

255. After the January meeting, Warzecka e-mailed Burch to

21 inform him about the meeting with Mansourian and Ng. The e-mail

22 stated that UC Davis would work towards forming the women’s club

23 team, and that Mansourian and Ng would be allowed to continue

24 practicing with Burch, to use the weight room, and to use

25 training services for taping and icing. (JX 51.)

26

a. Warzecka expected that Burch would help form the

27 club by marketing and promoting it. (TT 2111:8-2113:7.)

28

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1

b. Burch did not reply to the e-mail. (TT

2 427:11-429:10.)

3

256. No evidence was presented that Mansourian, Ng, or Burch

4 made any complaints about the wrestling situation from January

5 2001 through the end of April 2001. Neither plaintiff

6 Mansourian, nor plaintiff Ng, nor any other woman wrestler filed

7 a Title IX grievance against the athletic department prior to

8 April 2001. (TT 2337:20-2338:3.)

9

257. On April 24, 2001, Mansourian and Ng filed a complaint

10 with the OCR regarding their allegedly improper removal from the

11 wrestling team. (PX 83; Pretrial Order ¶ 42.) Ng filed a

12 supplemental OCR complaint dated May 14, 2001. (PX 97.)

13

a. Plaintiffs based their complaint almost entirely

14 on the erroneous information that had been given to them by

15 Burch. (TT 161:24-163:14; 528:9-529:5.)

16

b. Plaintiffs Mansourian and Ng admitted that they

17 were not concerned about the athletic program as a whole, just 18 their ability to wrestle.27 (TT 180:22-181:1; 534:23-535:6.)

19

258. On or about April 30, 2001, defendants were notified of

20 the OCR complaint when Mansourian taped a memorandum to

21 Gill-Fisher or Warzecka’s office door. (TT 124:4-12.)

22

a. The memo stated that Ng, Reinis, and Mansourian

23 had filed an OCR complaint because “the administration” had

24

25

26

27 The court notes that plaintiffs’ failure to bring any

complaints about the athletic program as a whole is not a bar to

27 their ability to pursue their claims for money damages, as the

Ninth Circuit held that notice and an opportunity to cure is not

28 required. Mansourian, 602 F.3d at 968-69.

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1 removed them from the wrestling team. (TT 178:24-180:21;

2 535:7-536:2; JX 53.)

3

b. Ng, Reinis, and Mansourian requested reinstatement

4 to the wrestling team. (TT 178:24-180:21; 535:7-536:2; JX 53.)

5

259. On May 1, 2001, Gill-Fisher removed the notice taped to

6 her door and showed it to Warzecka. (TT 1688:8-1689:4; JX 53)

7

260. Franks and Shimek conducted an investigation into

8 plaintiffs’ claims, and Shimek opened the lines of communication

9 with OCR regarding the complaint. (TT 2371:11-2372:7; 2378:5-

10 2379:1.)

11

261. Shimek and Franks concluded that there had been a

12 misunderstanding regarding the women’s status on the men’s

13 wrestling team and decided an equitable resolution would be to

14 reinstate them to the team, as they had requested. (TT

15 1225:22-1226:16; 2372:15-2373:18.)

16

262. Warzecka wrote Burch on May 9, 2001, asking him to

17 reinstate the women to the team. (TT 2114:8-25; JX 55.)

18

263. Burch refused to reinstate the women, claiming that

19 because it was not his idea to remove the women from the roster

20 in Fall 2000, he should not be the one to reinstate the women.

21 (TT 431:13-432:18; 2115:1-14; PX 94.)

22

264. Accordingly, in order to avoid putting the women

23 student-athletes in the middle of a dispute between Burch and

24 Warzecka, Franks reinstated them himself on May 10, 2001. (TT

25 1225:22-1226:10; JX 56.)

26

265. As a result, within ten days of receiving notice of the

27 complaint requesting reinstatement, defendants reinstated the

28

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1 women to the men’s varsity wrestling roster. (TT 1225:22-1227:2;

2 see TT 181:14-182:25; 536:6-22; JX 56.)

3

a. Reinstatement was not illusory; although regular

4 season competition for wrestling was over in May 2001, plaintiffs

5 could still attend practices, train, and use the weight room.

6 (TT 1689:16-1690:18.)

7

b. Reinstatement returned Mansourian and Ng to the

8 position they had before Burch cut them from the team – eligible

9 to compete for a spot on the team. (TT 2372:15-2373:18; JX 55.)

10

266. Despite having requested reinstatement, on or about May

11 11, 2001, Mansourian and Ng responded by stating they could not

12 accept reinstatement until they conferred with their attorney.

13 (JX 57.)

14

267. Franks responded that he understood and respected their

15 intention to discuss the matter with others before deciding; he

16 also offered to meet with Mansourian and Ng if they thought it

17 would be helpful. (TT 184:15-25; JX 57.)

18

268. On May 16, 2001, Franks met with Ng and Mansourian.

19 Franks agreed to look into issues raised by plaintiffs, including

20 (1) whether UC Davis would establish a separate roster cap for

21 women wrestlers; (2) whether UC Davis would waive the minimum

22 number of students required for creation of a women’s wrestling

23 club sport team; and (3) whether the club team could practice at

24 the same time as the intercollegiate team. (TT 1241:2-1242:19;

25 see TT 185:11-13; 537:8-14; 1245:20-1246:2.)

26

269. Franks consulted with Warzecka, Shimek, and

27 Gill-Fisher, who, in turn, consulted with various outside

28 experts. (TT 1242:22-1243:3.) Specifically, UC Davis consulted

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1 Title IX attorneys Janet Justus and Janet Judge regarding whether

2 the campus should create a separate roster for women wrestlers.

3 (TT 1691:25-1693:19.) Based on their advice, UC Davis decided

4 not to create a separate roster on the men’s varsity team for

5 women wrestlers. (TT 1242:22-1244:13.)

6

270. Franks provided a response to Mansourian and Ng on May

7 17, 2001. (TT 1241:24-1244:13, 1245:20-1246: 17; JX 58.)

8

a. Franks understood that plaintiffs did not want to

9 have to compete against men for the limited number of spots on

10 the men’s wrestling team, but believed that allowing them to be

11 on an intercollegiate team solely because of their gender and

12 without having the requisite skills would violate the law. (TT

13 1181:11-25.)

14

b. Franks also believed that creating a separate cap

15 for women wrestlers would be unfair to other students who also

16 hoped to be on the wrestling team or any other intercollegiate

17 team. (TT 1244:15-1245:19 (“There’s a global perspective here

18 that’s very important. I had two to four women who had an issue.

19 Had I done what they recommended, I would have had 24,000 reasons

20 not to do that because we would have bypassed a process by which

21 we establish teams or permitted people separately or

22 independently somehow to make a team without whatever the normal

23 competitive process was.”).)

24

c. However, the administration agreed to waive the

25 minimum number of participants necessary to form a club sport

26 team because plaintiffs did not believe they would be able to

27 find ten students who were interested in forming a club team.

28 (TT 1241:24-1244:13; 1246:11-17; JX 58.)

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1

d. The administration also informed plaintiffs

2 Mansourian and Ng that it would allow a wrestling club team to

3 practice at the same time as the intercollegiate wrestling team.

4 (TT 1245:20-1246:10; JX 58.)

5

271. Mansourian and Ng were not willing to accept

6 reinstatement; they wanted a contract guaranteeing them a spot on

7 the wrestling team the next year. (TT 538:21-540:12; PX 105.)

8

272. On May 31, 2001, the OCR sent a letter addressed to

9 Chancellor Vanderhoef, with attention to Shimek, indicating that

10 OCR had closed the complaint regarding the wrestling team. (TT

11 2375:11-2377:1; JX 61.)

12

273. In October 2001, OCR confirmed the terms of a Voluntary

13 Resolution Plan (“VRP”), providing that women wrestlers would

14 have the opportunity to compete for roster positions and that UC

15 Davis would support any efforts to form a wrestling club that

16 would include any interested women. (TT 2384:17-2387:23; DX CC.)

17

a. UC Davis relied on the VRP in their handling of

18 the women wrestler’s complaints. (TT 2125:12-2127:16;

19 2171:8-2172:6; 2173:8-9; see TT 1723:21-1725:1; DX AA.)

20

b. OCR did not request or require that UC Davis

21 establish a separate women’s wrestling team or have a women-only

22 try-out to make the team. (TT 2387:24-2388:3.)

23

1. Student Protests and Meetings

24

274. In May 2001, Michael Maben, chosen as captain of the

25 wrestling team by Burch, organized the “Operation Mayhem” protest

26 at the Aggie Auction, the biggest fundraiser of the year for UC

27 Davis intercollegiate athletics. Wrestlers snuck into the

28 auction, took off their formal clothes to reveal wrestling

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1 singlets, carried signs, and distributed flyers. The flyers

2 alleged that the athletic program engaged in sexual

3 discrimination, misappropriated student funds, underfunded minor

4 sports, and mistreated coaches and staff. (TT 739:10-20,

5 745:20-749:8; PX 89; see TT 200:13-203:6; 541:10-542:8.)

6

275. Plaintiffs’ complaints regarding wrestling were also

7 discussed by the Associated Students of UC Davis (“ASUCD”).

8

276. Mansourian and Ng accused Warzecka and Gill-Fisher of

9 acting hostilely towards them at ASUCD meetings, but neither

10 Mansourian nor Ng supported their allegation with any specific

11 comments made or conduct by Warzecka or Gill-Fisher. (TT

12 171:8-9; 499:12-501:7.)

13

a. Indeed, Mansourian cannot remember how many people

14 were at the meeting, how big the room was, or where she stood in

15 relation to Gill-Fisher when the allegedly “hostile” comments

16 were made. (TT 170:20-171:20.)

17

b. Similarly, Ng testified that she “just got the

18 sense” Gill-Fisher wasn’t going to support the women wrestlers.

19 (TT 542:14-16.)

20

277. As such, based upon the evidence submitted, the court

21 cannot make a finding that Warzecka or Gill-Fisher were “hostile”

22 to plaintiffs at ASUCD public meetings.

23

278. Rather, there is evidence that both Gill-Fisher and

24 Warzecka were unfairly targeted at the ASUCD meetings.

25

a. Based upon Burch’s misrepresentations to

26 plaintiffs, Warzecka and Gill-Fisher were erroneously blamed for

27 removing the women wrestlers from the 2000-2001 roster. (See TT

28 742:1-743:6.)

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1

b. Indeed, at one of the meetings, Burch accused

2 Gill-Fisher of removing women wrestlers from the team based on a

3 roster he presented. Burch’s accusation is not supported by the

4 roster itself. The roster is a participation list that sets

5 forth which wrestlers competed in an NCAA event in 1998-1999.

6 Coaches prepare participation lists, and Gill-Fisher signs off on

7 them in relation to her NCAA compliance duties. Two women, Ng

8 and Chiang, were crossed off the participation list in blue ink;

9 Burch’s signature is in blue ink. Gill-Fisher initialed the

10 participation list with an “ok” in black ink. Burch’s accusation

11 against Gill-Fisher is not credible. (TT 433:21-439:1;

12 1702:10-1705:19; JX 40.)

13

c. At least one observer at one of the ASUCD meeting

14 described it as “vile” and that “there was nothing positive to be

15 had out of it.” Specifically, the witness observed that vile

16 things were said about Gill-Fisher during the meeting; Gill-

17 Fisher was accused of not supporting female student-athletes.

18 (TT 1567:6-1568:7.)

19

2. Involvement of Assemblywoman Thomson

20

279. Also in May 2001, Burch and some of the women wrestlers

21 met with State Assemblywoman Helen Thomson. (TT 432:19-433:20.)

22

280. Thomson wrote to Chancellor Vanderhoef on behalf of the

23 women wrestlers, but did not receive an immediate response

24 because Vanderhoef was out of town at the time. As a result,

25 Thomson threatened to withhold state funding for a planned UC

26 Davis laboratory building. (TT 1334:16-1337:12; JX 54; JX 59.)

27

28

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1

281. A response was eventually sent by Provost Gray while

2 Vanderhoef was still away from campus. (TT 1337:15-1338:19; JX

3 54; JX 59.)

4

282. Upon his return, Vanderhoef personally communicated

5 with Thomson in order to address her concerns about the treatment

6 of women in the UC Davis wrestling program. (TT 1338:22-

7 1342:19; JX 65-66.) Thomson withdrew her threat to withhold

8 funds for the laboratory building. (TT 1341:3-1342:13; JX

9 65-67.)

10

283. On June 7, 2001, Jennifer Alley, Executive Director of

11 the National Association of Collegiate Women Athletic

12 Administrators (“NACWAA”), e-mailed a number of Title IX experts

13 affiliated with NACWAA, stating that Gill-Fisher was asking for

14 help and support to aid UC Davis in responding to Thomson. (TT

15 1710:13-1714:12; JX 63.)

16

284. The next day, Dr. Donna Lopiano, plaintiffs’ expert in

17 this case, sent an e-mail directly to Gill-Fisher suggesting

18 that, in order to lower the emotional level of the political

19 controversy involving Thomson, UC Davis should issue a public

20 statement that (1) it took such allegations seriously; (2) it

21 would investigate them, including appointing a Blue Ribbon

22 Commission; and (3) it would report back to Thomson. (TT

23 862:24-865:10; 1712:1-1713:18; JX 64.)

24

285. On June 8, 2001, Gill-Fisher and Sue Williams met

25 Assemblywoman Thomson at her home to discuss the wrestling

26 situation. (TT 1717:6-1720:25; 1528:15-20; DX X.) That same

27 day, Ms. Williams sent Thomson a copy of a letter a number of

28 coaches had signed for publication in the Davis Enterprise

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1 newspaper; the letter set forth the University’s position and the

2 problems of allowing non-team members to practice with varsity

3 teams. (TT 1523:7-1529:22.)

4

286. Thomson issued a press release stating that the

5 Chancellor was now fully engaged in the women’s wrestling

6 situation. (TT 1340:17-1341:8.)

7

287. On June 13, 2001, Vanderhoef offered, in writing, to

8 appoint a Blue Ribbon Commission if Thomson so wished. Thomson

9 did not respond to this offer. (TT 1342:4-1343:20; JX 66.)

10

3. The “Wrestle-Off” Policy

11

288. Burch’s career as the head wrestling coach ended in

12 June 2001, and he was replaced by Lennie Zalesky. (TT 445:10-15;

13 2271:20-25.)

14

289. During Fall 2001, plaintiffs Ng and Mansourian told

15 Zalesky that they expected both a spot on the roster and

16 scholarships, even though they knew that they could not defeat

17 any of the male wrestlers in try-outs; they also threatened to

18 bring litigation. (TT 2274:23-2275:22.)

19

290. Even after Burch left UC Davis, he continued to

20 communicate with plaintiffs. In September 2001, he advised them

21 to make UC Davis cut them because “that helps your case.” (TT

22 446:21-448:9.)

23

291. In October 2001, Zalesky conducted “wrestle-offs”

24 between wrestlers of a similar weight class to determine who,

25 based on skill, would get a position on the 30 person team. (TT

26 2282:10-2283:22.)

27

28

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1

a. Zalesky had sole decision-making authority as to

2 who would be placed on the men’s intercollegiate wrestling

3 roster. (TT 2284:3-15; 2128:12-14.)

4

b. The wrestle-offs were consistent with the terms of

5 the VRP approved by OCR and with the approach followed by coaches

6 of other intercollegiate teams at UC Davis. (DX CC; TT

7 1469:13-1470:16; 1492:21-1494:1; 1515:8-1516:6;, 1551:15-1552:15;

8 2263:8-25; TT 2564:1-2570:15.)

9

292. In the wrestle-offs, Mancuso quickly pinned Ng; Ng was

10 about 20 pounds lighter than Mancuso, but had no weight classes

11 available at her size. (TT 543:23-544:12 573:18-24;

12 2284:22-2286:24.)

13

293. Mancuso proceeded to wrestle-off against male wrestler

14 Serokin who pinned her; Serokin was subsequently pinned by

15 another male wrestler. (TT 573:25-574:4; 2286:25-2287:16.)

16

294. Besides plaintiffs Ng and Mancuso, several males were

17 also eliminated from the men’s varsity wrestling roster as a

18 result of the wrestle-off. (TT 2287:17-2289:5; JX 50.)

19

295. Mansourian declined to participate in the wrestle-off.

20 She wrote Zalesky that “intercollegiate wrestling is too much for

21 right now,” citing her work and class schedule. (TT

22 216:13-218:15; 2290:1-2291:5; DX BB.)

23

296. Mansourian also indicated that she was interested in

24 wrestling at the club level; she later completed the paperwork to

25 form a wrestling club sport team. (TT 216:13-218:15; 227:2-6;

26 2290:1-2291:5; DX BB, DD.)

27

297. However, Mansourian did not participate in club

28 wrestling. (TT 227:7-9.)

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1

298. Mancuso and Ng also had the option to join the

2 wrestling club sport team, as did male student-athletes who were

3 cut from the men’s varsity wrestling team, but neither Mancuso

4 nor Ng chose to join the wrestling club. (TT 586:14-587:17;

5 2302:9-2303:16.)

6

a. Two of the male wrestlers who were cut from the

7 intercollegiate team in Fall 2001 joined the wrestling club sport

8 team and were later selected for membership on the

9 intercollegiate team. (TT 2303:9-2305:23.)

10

299. After October 2001, plaintiffs Ng, Mansourian, and

11 Mancuso did not wrestle with the men’s intercollegiate wrestling

12 program again. (Pretrial Order ¶ 43.)

13

300. Zalesky invited women wrestlers to the January 2002

14 Aggie Open by posting the event flyer on the UC Davis website and

15 sending it to the coaches of the Menlo College and Lassen

16 Community College women’s wrestling teams. He also called the

17 coach at Menlo College; he learned that the Menlo College team

18 would be in Oregon at the time of the Aggie Open. Zalesky

19 expected women to wrestle in the Aggie Open and ordered medals

20 for the women’s division. (TT 2294:19-2301:5.)

21

a. In an e-mail to Burch, with copy to Vanderhoef,

22 Franks, Gill-Fisher and wrestling supervisor Larry Swanson,

23 Mancuso criticized UC Davis for not publicizing the Aggie Open,

24 though she admitted she did not know what efforts Zalesky had

25 made to publicize the event. (PX 151; TT 576:22-584:7.)

26

b. On behalf of the four UC Davis employees copied on

27 the e-mail, Zalesky responded to Mancuso and explained the

28 efforts he made to publicize the event. (TT 2294:19-2301:5.)

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1

c. Mancuso responded to Swanson and Vanderhoef,

2 stating that they should correspond directly with her and not

3 have Zalesky respond on their behalf. (TT 576:22-584:7.)

4

d. As late as January 2002, Burch was still providing

5 Mancuso advice regarding the controversy over women’s wrestling

6 at UC Davis, and suggesting that Mancuso contact Helen Thomson

7 again. (TT 577:4-578:16; PX 151.)

8

G. Availability of Intercollegiate Competition and

Interest in Women’s Wrestling between 1998 and 2005

9

10

301. Between 1995 and 2001, no four-year California colleges

11 had an all-women’s intercollegiate wrestling team. (TT

12 397:7-17.)

13

302. Menlo College elevated their women’s wrestling club to

14 varsity status in approximately Fall 2001. (TT 397:14-17.)

15

303. Lee Allen, the coach of the women’s wrestling club and

16 later intercollegiate wrestling team at Menlo College, testified

17 that he had no knowledge of any other California University

18 having a women’s wrestling club program except California State 19 University Bakersfield.28 (Allen Dep. at 66:9-12.)

20

304. Kent Bailo, Executive Director of the United States

21 Girls’ Wrestling Association testified that he knew of only four

22 to six official varsity level women’s wrestling programs at the

23 college level. These included two institutions in California,

24 one of which subsequently ended the program, and institutions in

25

26

27 28 San Jose State University began a women’s club in 2006.
28 (Redman Dep. at 77:21-25.)

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1 Oregon, Missouri, Kentucky, and Oklahoma.29 (Bailo Dep. at

2 40:18-41-20.) Bailo did not distinguish between two-year and

3 four-year institutions or between NCAA divisions. (Id.)

4 Further, it is unclear whether these teams were in existence in

5 the 2000-2001 or 2001-2002 school years.

6

305. Despite assertions that women were participating on a

7 handful of PAC-10 teams, there were no women wrestlers in any

8 PAC-10 varsity dual meet lineups. (TT 382:3-11.)

9

306. Rather, women’s wrestling competition consisted only of

10 open tournaments, which allow anyone to compete. (TT 271:20-22;

11 366:22-25; 2475:15-20.)

12

307. The only open tournaments identified by Burch were the

13 Aggie open, a tournament with California State University

14 Bakersfield, the Sunkist Open, a tournament in the Bay Area, a

15 tournament in Michigan, a tournament in Arizona, a tournament in

16 Las Vegas, and a tournament in San Diego. (TT 2471:22-2472:4;

17 2479:15-20.)

18

308. Competition that consists solely of one open tournament

19 per year does not constitute legitimate intercollegiate

20 competition. (TT 1863:8-1864:18.)

21

309. No proposal for elevation of women’s wrestling to

22 intercollegiate status was ever submitted to the athletic

23 department. (TT 705:10-12; 1656:19; 1734:12-14; 2159:1-3.)

24

310. Even plaintiffs did not believe they would be able to

25 find ten students who were interested in forming a club team; as

26

27

29 He also noted that women’s programs existed at one

time, but were eliminated at institutions in Minnesota, Oklahoma,

28 and Kansas. (Bailo Dep. at 41:4-20.)

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1 such, they requested, and the administration agreed, to waive the

2 minimum number of participants necessary to form a club sport

3 team. (TT 1241:24-1244:13; 1691:25-1694:3; JX 58.)

4

311. There is no evidence that any female student, including

5 plaintiffs, ever participated in the wrestling club at UC Davis 6 in the years relevant to this litigation.30 (See TT 227:7-9;

7 586:14-587:17.)

8

312. As of October 2000, Warzecka had reviewed participation

9 rates in women’s athletics in high school, which UC Davis

10 received from the California Interscholastic Federation. (TT

11 1104:3-7.) He testified that at the time, more female athletes

12 were participating on high school baseball teams than were

13 wrestling in high school. (TT 1106:2-6.)

14

313. During the relevant time period, the NCAA did not

15 recognize women’s wrestling as a sport or as an emerging sport.

16 (See Redman Dep. at 162:12-13; TT 1106:20.)

17 /////

18 /////

19 /////

20 /////

21 /////

22 /////

23 /////

24 /////

25

26

30 Redman testified that he was informed that

approximately eight to ten girls practiced regularly with the

27 club team in 2006 and approximately eleven girls practiced

regularly with the club team in 2007. (Redman Dep. at 151:22-

28 152:11.) He had no personal knowledge of this information.

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1 IV. Individual Defendants31

2

A. Pam Gill-Fisher

3

1. Employment and Duties at UC Davis

4

314. Defendant Pam Gill-Fisher (“Gill-Fisher”) was a coach

5 or administrator in the UC Davis Athletic Department from 1973 to

6 2006. (Pretrial Order ¶ 13.)

7

a. UC Davis hired Gill-Fisher as a student in 1968,

8 and then as a full-time career employee in 1973. (TT

9 1437:19-23.)

10

b. From 1973 to 2006, she held various positions in

11 athletic administration. (TT 1591:4-1593:4.)

12

c. From 1985 to 2003, she was an Associate Athletic

13 Director and Supervisor of Physical Education. (TT 1591:15-22.)

14

d. Gill-Fisher became a Senior Associate Athletic

15 Director in 2003. (Pretrial Order ¶ 13; TT 1592:25-1593:4.)

16

e. Since the 1970s, Gill-Fisher was an active member

17 in the National Association of Collegiate Women Athletics

18 Administrators (“NACWAA”), serving on the board of directors and

19 as president in 2003-04. (TT 1605:24-1607:16.)

20

315. Gill-Fisher’s duties as an Associate Athletic Director

21 and Senior Associate Athletic Director included supervising eight

22 sports, coordinating sports medicine, overseeing the Compliance

23 Office regarding NCAA and UC Davis athletic eligibility, and

24 overseeing academic advising. (TT 1593:5-19.)

25

26

31 The court notes that some Findings of Fact set forth

herein are repetitive of those set forth, supra. However, the

27 court reiterates and expounds upon the relevant Findings of Fact

where it clarifies each individual defendant’s role in the claims

28 asserted against them.

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1

a. Men’s wrestling was not among the eight sports she

2 supervised. (TT 1594:2-3.)

3

b. Gill-Fisher’s compliance role as Associate

4 Athletic Director involved NCAA and UC Davis athletic eligibility

5 compliance. (TT 1648:17-1649:8.)

6

c. Gill-Fisher provided NCAA and University

7 compliance training to UC Davis coaches through monthly meetings.

8 (TT 1595:7-22.)

9

d. Dennis Shimek, not Gill-Fisher, was the Title IX

10 Compliance Officer and met quarterly with coaches regarding Title

11 IX compliance issues. (TT 1595:23-1596:9.)

12

316. Gill-Fisher served as the Senior Woman Administrator, a

13 position required by the NCAA, from 1991 until December 31, 2006.

14 (Pretrial Order ¶ 13.)

15

a. The key duty of the Senior Woman Administrator was

16 serving on various NCAA committees. (TT 1604:3-11, 1605:3-20.)

17

b. The position of Senior Woman Administrator did not

18 give Gill-Fisher any additional authority or responsibility at UC

19 Davis regarding Title IX or gender equity issues. (TT

20 1604:15-1605:2.)

21

317. Gill-Fisher was not responsible for Title IX compliance

22 at UC Davis. She did not have the authority to dictate which

23 prong UC Davis used to comply with Title IX requirements

24 regarding accommodation of athletic interests for women. (TT

25 1604:18-1605:2.)

26

a. The campus and the Title IX Compliance Officer

27 were responsible for ensuring UC Davis complied with Title IX.

28 (TT 1649:4-8.)

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1

b. Gill-Fisher did not have unilateral authority to

2 change the scope of the athletic program to address issues of

3 athletic participation opportunities. (See TT 1621:19-23;

4 1638:10-19.)

5

318. Gill-Fisher’s primary involvement in Title IX issues at

6 UC Davis was to evaluate and report to the relevant decision

7 makers; she also recommended actions that she believed the

8 athletic department should take.

9

a. Her Title IX reports addressed both the “laundry

10 list” of items related to the treatment of male and female

11 athletes (i.e. equitable provision of coaching, training, and

12 other services) and the equity of the intercollegiate

13 participation opportunities available to male and female student-

14 athletes.

15

319. Gill-Fisher used her reports to advocate for changes in

16 the women’s intercollegiate athletic program, including the

17 expansion of women’s intercollegiate athletic participation

18 opportunities. (See, e.g., JX 17.)

19

320. Gill-Fisher served on the sub-committee that wrote the

20 January 1972 report about women’s athletics at UC Davis, which

21 recommended that the campus should add women’s gymnastics and

22 badminton as intercollegiate sports. (TT 1616:10-1621:10; JX

23 15.)

24

321. Upon request of the Vice Chancellor of Student Affairs,

25 she chaired the UC Davis committee that wrote the campus’ first

26 Title IX Report in May 1976. (TT 1613:24-1616:6; DX A.)

27

322. In July 1978, Gill-Fisher and Barbara Jahn wrote a

28 Title IX review, which recommended, inter alia, that women’s

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1 cross-country be considered an intercollegiate sport for 1978.

2 The report also pointed out the need for improvement in securing

3 equality for women athletes in use of practice facilities and the

4 lack of a full-time coach for women’s gymnastics. (TT

5 1622:5-1623:12; JX 16.)

6

323. In 1989-1990, Gill-Fisher chaired the committee that

7 prepared UC Davis’ comprehensive Title IX report, which

8 recommended establishing steps to increase women’s participation

9 opportunities. (JX 17, at 10-17; TT 636:19-640:8;

10 1630:9-1633:13.)

11

324. In March 1990, Gill-Fisher separately wrote a memo

12 regarding Title IX issues that had arisen as the Title IX review

13 committee report was being completed. Specifically, Gill-Fisher

14 expressed concern over the addition of men’s lacrosse and the

15 size of the football team, which had a large squad size, a JV

16 team, and a number of redshirts; she was concerned that the size

17 of the football team was not justifiable. (DX B; TT

18 1636:24-1640:23.)

19

325. Around the same time as the comprehensive Title IX

20 review, Gill-Fisher began preparing periodic Title IX reports at

21 the request of the Title IX Compliance Officer, Shimek. (TT

22 1627:10-1630:5; 2343:17-2344:10; PX 8.)

23

a. The first such report was issued on June 23, 1989,

24 and focused on “laundry list” items, such as coaching,

25 facilities, and uniforms, and did not discuss compliance in the

26 area of participation opportunities. (PX 8; TT 1629:2-1630:5.)

27

326. On June 27, 1991, Gill-Fisher submitted a Title IX

28 review to then Athletic Director Jim Sochor, noting the

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1 discrepancy in male and female participation rates and that no

2 steps had been taken to establish steps to increase participation

3 opportunities for women. (JX 18; TT 1641:2-1644:5.)

4

327. On December 20, 1991, Gill-Fisher submitted an update

5 regarding Title IX compliance from June to December 1991, noting

6 that participation opportunities remained a problem. (JX 19; TT

7 641:23-643:7.)

8

328. On June 5, 1992, Gill-Fisher prepared the next Title IX

9 review, again noting that participation opportunities were a

10 major concern. She testified that her concern was based on an

11 understanding that Cal-NOW was investigating Title IX compliance

12 at the California State University system and that diligence to

13 Title IX issues was needed because the economic situation would

14 make it easy to ignore regulatory compliance otherwise. (JX 21;

15 TT 1644:6-1644:25.)

16

329. In November 1992, Gill-Fisher wrote a Title IX

17 compliance memorandum to Athletic Director Keith Williams,

18 warning of some backsliding on movement toward Title IX

19 compliance. (JX 22; TT 1646:2-1649:9.)

20

a. In order to deal with participation ratios, the

21 memorandum recommended, inter alia, eliminating all junior

22 varsity teams, establishing roster caps for all sports, and

23 adding women’s crew and women’s golf. (Id.)

24

b. Gill-Fisher also warned that UC Davis needed to

25 implement a plan to address participation ratios or face an OCR

26 complaint or potential lawsuit. (Id.)

27

28

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1

c. Junior varsity football and men’s junior varsity

2 basketball were dropped following the recommendation from

3 Gill-Fisher. (JX 26; TT 649:11-651:12; 1638:10-14.)

4

330. In December 1992, Gill-Fisher alerted then Vice

5 Chancellor for Student Affairs, Bob Chason, to the participation

6 ratio issue and identified potential solutions, including capping

7 men’s rosters and adding women’s sports. (JX 23; TT

8 1389:2-1389:25.)

9

331. On May 27, 1993, Gill-Fisher wrote a strongly-worded

10 Title IX report to athletic director Williams, expressing major

11 concern over participation ratios. (PX 25.)

12

a. Gill-Fisher opined that the University was not

13 providing women with participation opportunities as required by

14 law. (PX 25.)

15

b. Gill-Fisher was concerned that football was

16 mandated to have 180 participants but still had 250, while (1)

17 there were 40 women on a national championship club water polo

18 team, and (2) there was strong interest in forming an

19 intercollegiate women’s crew team. (PX 25.)

20

c. Gill-Fisher testified that she took a strong tone

21 in the May 1993 report because she wanted to get Williams’

22 attention. (TT 1649:12-1650:8)

23

332. In September 1994, after funding for additional women’s

24 intercollegiate athletic teams was approved, Gill-Fisher sent a

25 memorandum to Shimek and Williams, thanking the campus

26 administration for taking a step forward in Title IX compliance.

27 However, she also recommended using roster caps for some men’s

28 sports that had significant numbers of participants beyond what

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1 was needed to field a competitive team. (TT 1651:20-1653:25; JX

2 26.)

3

333. Gill-Fisher opined that the addition of the three

4 women’s sports resulted in UC Davis’ compliance with Prong Two of

5 the three-part test. (TT 1661:13-23.)

6

334. In December 1996, Gill-Fisher wrote Warzecka a

7 memorandum advising that the addition of the three women’s sports

8 would help, but not completely solve, the overall participation

9 discrepancy. She recommended managing the size of the men’s

10 sports that may have had more participants than necessary for

11 competition. (TT 1661:24-1663:3; JX 35.)

12

a. UC Davis subsequently adopted a roster management

13 program, resulting in a vast improvement in the overall

14 participation ratio. (See JX 89.)

15

b. She considered the improvement “a move in the

16 right direction.” (TT 1663:5-1664:7.)

17

335. Gill-Fisher chaired the committee to add a new varsity

18 women’s sport in 2003-04. She contacted sports clubs and

19 intramurals to solicit proposals; advancing gender equity was a

20 primary factor in the selection of teams. (TT 1726:5-1727:17; JX

21 74.)

22

2. Involvement with Women Wrestlers

23

336. Gill-Fisher had no personal bias or animus against the

24 sport of wrestling or women’s participation in intercollegiate

25 wrestling.

26

a. In her view, “there isn’t anything a woman should

27 be denied the opportunity to do.” (TT 1640:8-20; 1701:15-25.)

28

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1

b. Johnston testified that when she was a student at

2 UC Davis, she knew that Gill-Fisher was a big supporter of

3 women’s athletics. Indeed, Gill Fisher asked Johnston to speak

4 to some of her classes regarding Title IX and her experience as a

5 female wrestler. (Johnston Dep. at 50:1-11; TT 1656:24-1657:9.)

6

c. Johnston also testified that Gill-Fisher seemed

7 supportive of women’s wrestling. (Johnston Dep. at 50:17-24.)

8

337. Gill-Fisher testified that in her opinion there was

9 never a separate women’s varsity wrestling team at UC Davis. Her

10 opinion was based on her understanding that there was never a

11 separate roster, schedule, budget, or compliance meeting

12 regarding women wrestlers. (TT 1686:21-1687:4.)

13

a. Indeed, on one occasion Gill-Fisher asked Reinis

14 and Schwarzberg if they wanted to form a women’s wrestling team.

15 (TT 1672:12-1674:8.)

16

b. In Gill-Fisher’s opinion as an athletic

17 administrator and an active woman in intercollegiate athletics,

18 the best way to develop women’s wrestling would have been to

19 start a women’s club team separate from the men’s intercollegiate

20 wrestling team. (TT 1672:12-1674:8.)

21

338. The court finds that there is no credible evidence that

22 Gill-Fisher acted in a hostile manner toward any woman wrestler.

23

a. In 1999-2000, the Compliance Coordinator informed

24 Gill-Fisher that Reinis and Schwarzburg had been attending

25 wrestling practice for at least six months without physical

26 clearance, which meant that the two women were not covered by ICA

27 insurance. After Burch asserted that the women didn’t need

28 paperwork, Gill-Fisher went directly to Reinis and Schwarzberg

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1 and asked them to complete the paperwork in her office, which

2 they did. (TT 394:16-397:1; 1669:20-1672:11.) The court finds

3 that this incident is not evidence that Gill-Fisher was hostile

4 to women’s wrestling; rather, it confirms she was doing her duty

5 to oversee compliance with NCAA and UC Davis athletic eligibility 6 policies.32

7

b. As set forth above, the court does not find that

8 Gill-Fisher acted in a hostile manner toward plaintiffs at ASUCD

9 meetings.

10

339. Gill-Fisher had no role in selecting the wrestling team

11 roster for 2000-2001 or for any other time. (TT 1680:15-1681:8.)

12

340. The claim that a women’s varsity wrestling team had

13 been cut came to Gill-Fisher’s attention via an e-mail from the

14 men’s varsity wrestling team captain, Maben. Gill-Fisher

15 responded that UC Davis had never actually sponsored women’s

16 wrestling as a varsity sport. She invited Maben to meet with

17 her; he never did. (TT 1686:2-15; PX 99.)

18

341. Prior to the taping of the OCR complaint on the door in

19 April 2001, no woman wrestler had ever told Gill-Fisher that they

20 believed she was responsible for removing them from the wrestling

21 team. (TT 1688:15-20.)

22

342. When the proposal of separate roster caps was made, she

23 recommended that UC Davis seek the opinion of Title IX attorneys

24 to determine whether separate men’s and women’s roster caps for

25 the men’s intercollegiate wrestling team was a good idea. (TT

26 1691:25-1692:13.)

27 32 The court does not find Burch’s characterization of the
28 event to be credible.

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1

a. As a layperson, Gill-Fisher was skeptical about

2 the possibility of separate roster caps in wrestling because it

3 could open all men’s sports to separate women’s roster caps. (TT

4 1693:20-1694:3.)

5

b. She did not believe the intent of Title IX was

6 merely to “ramp up” the number of women participants in men’s

7 sports if the women had no realistic opportunities to compete.

8 (TT 1694:8-15.)

9

343. Gill-Fisher was aware that OCR approved a process for

10 conducting try-outs for the wrestling team. (TT 1723:21-1725:1.)

11

344. She was also aware that Zalesky intended to select

12 students for membership on the team based on a demonstration of

13 the skills required to compete against PAC-10, Division I

14 wrestling teams, the conference and division in which the UC

15 Davis men’s intercollegiate wrestling team competed. This did

16 not alarm Gill-Fisher, as she had used that same method for

17 selecting team members when she was a coach. (TT

18 1723:18-1725:22; DX AA.)

19

B. Greg Warzecka

20

1. Employment and Duties at UC Davis

21

345. Defendant Warzecka has been UC Davis’s Athletic

22 Director since 1995 and is responsible for the overall direction,

23 leadership, and management of the intercollegiate athletic

24 program. (Pretrial Order ¶ 12.)

25

a. Warzecka reviewed and verified UC Davis’ EADA

26 Reports. (TT 995:21-996:4; 996:11-20; 1009:1-1016:13-17.)

27

b. He also had significant involvement in decisions

28 about adding or eliminating sports in the intercollegiate

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1 athletic program. (TT 981:11-23.) However, these decisions were

2 always made collaboratively. (Id.)

3

c. He was also responsible for overseeing UC Davis

4 varsity team coaches and could reverse the decision of a coach if

5 he thought it was improper. (TT 979:20-980:21; 981:7-10.)

6

346. At the inception of Warzecka’s tenure as Athletic

7 Director, the athletic department was dealing with an unexpected

8 budget deficit of over $400,000; it took until 2000-2001 to

9 balance the budget and resolve the deficit. (TT 2002:1-2006:7.)

10

347. When he arrived at UC Davis, Warzecka inherited the

11 responsibility of ensuring that the newly created women’s water

12 polo, crew, and lacrosse teams were sufficiently established to

13 begin competing in 1996-1997. Warzecka planned to fully fund the

14 three new sports before adding any more new teams, which included

15 bringing coaches of the three new women’s team up to full-time

16 status. (TT 2028:12-2029:8; 2032:11-2033:9; 2037:9-2045:17; JX

17 41, 43.)

18

348. When he started, Warzecka met with Shimek and reviewed

19 hundreds of documents to ascertain the status of gender equity

20 issues at UC Davis. (TT 2012:5-2013:8.) Warzecka and Shimek

21 agreed that the Title IX workgroup should be more active. (TT

22 2023:1-2028:10; 2362:14-2364:5; PX 59.)

23

349. In December 1998, Warzecka received a letter from Linda

24 Joplin at Cal NOW regarding the women’s athletic program at UC

25 Davis, to which he responded. (TT 2033:10-2034:18; JX 41.)

26

a. Warzecka reiterated the goal of getting to within

27 five percent of women’s enrollment by 1999-2000. (JX 41.)

28

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1

b. He explained that women’s golf could not be added

2 in 1998 because there was little competition in Division II and

3 UC Davis already had women’s gymnastics as its lone, allowable

4 Division I sport.

5

c. He also explained that while he gave thought to

6 adding field hockey, UC Davis did not have a proper facility for 7 field hockey or the ability to fund one at that time.33 (TT

8 2034:5-2036:22; JX 41.)

9

350. In May 1999, Warzecka participated, as part of the

10 Title IX workgroup, in creating a three year plan for equity in

11 athletics.

12

a. Per the EADA report for 1998-1999, the male to

13 female participation ratio in athletics was within 7.2 percent of

14 the male to female undergraduate ratio. (JX 89.) The stated

15 goal was to reduce the ratio to 5 percent during the 1999-2000

16 school year; Warzecka set the 5 percent ratio as a goal based on

17 legal interpretations and a consent decree. (TT 1039:13-25;

18 2030:13-2031:11; see also TT 2361:15-2362:12.)

19

b. UC Davis came within 1 percent of meeting that

20 goal. (JX 89.)

21

c. The plan stated that athletics administrators

22 would review whether it could add women’s golf, field hockey, or

23 an equestrian sport every two years. (TT 2037:9-2042:6; JX 41.)

24

25
33 The court notes that the multi-use field, the funds for 26 which plaintiffs complain should have been used to add women’s
sports, provided a field surface suitable for a field hockey 27 team. (TT 2152:12-16; 2168:8-2169:11.) Moreover, as set forth
below, the funds could not have been used to add new teams 28 because they were not in the general operating budget.

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1

351. In the context of the Title IX workgroup, Warzecka

2 participated in updating the gender equity plan in 2001-2002.

3 (JX 48; JX 49; TT 2055:19-2058:16.)

4

a. The updated plan kept the 5 percent goal and noted

5 that it had not been achieved previously due to increases in the

6 female undergraduate population. (JX 49.)

7

b. Assuming the female undergraduate population did

8 not rise further, UC Davis planned to reach the 5 percent goal by

9 continued roster management, particularly for the larger teams in

10 men’s sports, and by adding another women’s sport if necessary.

11 (JX 49.)

12

352. Warzecka participated in drafting all of the remaining

13 gender equity plans UC Davis had in place through December 2005.

14 Although the format of the plans changed to match the NCAA

15 template, the substance remained the same; the plan was to

16 monitor the participation ratios, manage the size of the men’s

17 rosters, and periodically review whether to add new women’s

18 sports. (TT 2059:5-2061:14; DX MM; DX PP.)

19

353. In addition to the three teams added at the start of

20 his tenure, Warzecka oversaw the evolution of indoor track &

21 field into a separate women’s sport.

22

a. Women had been competing in indoor track & field

23 events before Warzecka came to UC Davis, but the school had not

24 declared indoor track & field as a separate sport from outdoor

25 track & field. (TT 2048:18-2049:3.)

26

b. At Vochatzer’s request, Warzecka increased the

27 budget for track & field so that the team could compete in more

28

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1 indoor track & field competitions. (TT 1565:2-22;

2 2048:11-2050:19.)

3

c. In the 1998-1999 school year, UC Davis declared

4 indoor track & field as a separate sport. (TT 2049:23-2050:9.)

5

354. Warzecka implemented a roster management program as

6 part of his efforts to achieve gender equity; he did so based on

7 his understanding that roster management was approved in the

8 decision of Neal v. California State University, 198 F.3d 763

9 (9th Cir. 1999), and would help address the participation ratio.

10 (TT 2064:20-2068:18; 2098:15-2099:12.)

11

355. The review and planning Warzecka participated in with

12 the Title IX workgroup led UC Davis to add the new women’s golf

13 team in 2004.

14

a. Warzecka appointed Gill-Fisher to chair a

15 committee to review the proposals. (TT 2142:13-2143:10;

16 1726:7-1735:13; JX 80.)

17

b. After receiving the committee’s review, Warzecka

18 recommended that golf be added as the next intercollegiate sport

19 for women based on (1) golf’s status as an NCAA and conference

20 sport; (2) abundant intercollegiate competition; (3) popularity

21 at the high school and junior college level; (4) UC Davis’

22 receipt of numerous e-mail inquiries about the availability of

23 women’s golf; (5) campus support for a women’s golf team; and (6)

24 the availability of a local facility. (TT 2160:1-2163:11;

25 2241:23-2244:17; JX 81.)

26

c. The other sports that had applied for elevation to

27 varsity status presented challenges that golf did not, such as

28

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1 finding local competition or available facilities. (TT

2 2134:23-2158:25; JX 80.)

3

d. Further, Warzecka had promised in December 1998

4 that he would periodically review whether it was appropriate to

5 add women’s golf in response to an inquiry from the President of

6 Cal-NOW. (TT 2033:12-2034:25; 1656:4-13, 1731:1-1732:8; JX 22;

7 JX 41.)

8

e. UC Davis’ gender equity plan also stated that the

9 campus would review the potential for adding golf. (TT

10 2037:9-2042:6; JX 41.)

11

f. Warzecka’s recommendation to elevate golf was not

12 motivated by any sexually discriminatory motive; he recommended

13 granting varsity status to a popular sport that both he and the

14 campus had promised it would consider elevating.

15

356. The actions taken during Warzecka’s tenure led to an

16 expansion in the number of women’s participation opportunities

17 from 211 participation opportunities in 1995-96 to 401 in 2005-

18 06. The participation ratio improved from 20 percent in 1995-

19 1996 to 5 percent in 2005-2006. (JX 89.)

20

357. In Warzecka’s opinion, UC Davis was in compliance with

21 Title IX’s equal accommodation requirement via Prong Two of the

22 three-part test between 1995 and 2006. (TT 2021:6-2022:5.)

23

a. Warzecka did not believe the drop of over sixty

24 participation opportunities in 1998-1999 and 2000-2001 took UC

25 Davis out of Prong Two compliance.

26

b. Warzecka approved of moving the JV teams to club

27 status because he concluded the lack of competition was a

28

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1 legitimate reason and he “felt it was the right thing to do.”

2 (TT 2071:9-2074:4, 2076:21-2077:7.)

3

c. Warzecka testified that the rest of the drop was

4 due to normal fluctuations in the size of some women’s teams,

5 which rose again in 2001-2002 and 2002-2003. (TT 2075:10-2076:2;

6 JX 89.)

7

2. Involvement with Women Wrestlers

8

358. As part of the roster management program, Warzecka

9 allotted a limited number of roster spots to each men’s

10 intercollegiate team; the wrestling team had a roster cap of 30,

11 which was increased to 34, for 2000-2001. (TT 407:24-408:23;

12 410:7-412:18; 2099:14-2102:18; JX 44.)

13

359. Warzecka was aware that women had been practicing with

14 the wrestling team and had “unofficial status” on it. (TT

15 2083:23-2089:2; 2090:11-14; 2092:20-2096:14; 2100:10-12; DX

16 UU-YY.)

17

360. Warzecka had no role in selecting the wrestling team

18 roster for 2000-2001, or any other time; Burch chose to fill the

19 roster for the 2000-2001 men’s intercollegiate wrestling team

20 with only male students. (TT 2105:8-2106:8; JX 46.)

21

361. When Burch left the women off the roster, Warzecka

22 suggested that Burch work with the women to form a club sport

23 team. (TT 1087:17-1088:23; 2104:7-2105:5.)

24

362. Warzecka met with Mansourian and Ng, following

25 Mansourian’s January 2001 throat injury to explain that (1) since

26 Burch had not included them on the roster, they were not covered

27 by intercollegiate athletics insurance policy; and (2) they could

28 move to club status to use the club sports insurance policy. He

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1 made an exception to policy to allow Mansourian and Ng to use

2 taping and icing services and to waive the minimum number of

3 students normally needed to form a club team. (TT

4 2106:14-2111:23; see also TT 96:14-99:13; 490:8-491:10; JX 51.)

5

363. The court does not find credible Mansourian and Ng’s

6 claim that Warzecka was hostile to them during the January 2001

7 meeting.

8

a. Mansourian and Ng misconstrued other aspects of

9 the January meeting, such as Warzecka’s discussion of liability

10 insurance by claiming that Warzecka told them they were a

11 “liability” and that he lied to them with regards to how NCAA

12 rules applied to the mixed-gender team issue. (TT 96:25-96:15;

13 490:14-20; 491:3-6.)

14

b. Further, Warzecka’s actions of allowing them to

15 continue practicing with the wrestling team, waiving policies to

16 give them access to the weight room and training services, and

17 helping them form a club team by waiving minimum requirements are

18 not consistent with Mansourian and Ng’s claim that he was hostile

19 to them in the January 2001 meeting.

20

364. After the January meeting, Warzecka e-mailed Burch to

21 inform him about the meeting with Mansourian and Ng. Burch did

22 not reply to the e-mail. (TT 427:11-429:10; 2111:8-2113:4; JX

23 51.)

24

365. Warzecka did not hear anything about the women

25 wrestlers until approximately April 30, 2001, when he received a

26 memo notifying him that Mansourian and Ng had filed a complaint

27 with the OCR regarding the wrestling team. (TT 2113:8-19; JX

28 53.)

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1

366. He immediately met with Gill-Fisher and contacted

2 Shimek and Franks. (TT 2113:9-2114:6.)

3

367. Following an investigation to determine why the women

4 believed the athletic department administration had removed them

5 from the wrestling team, Warzecka promptly agreed with the

6 decision to place them on the team roster for the remainder of

7 the school year, as they had requested. (TT 2114:8-25.)

8

368. Following the protest staged by several wrestlers at

9 the 2001 Aggie Auction in May 2001, Warzecka tried to meet with

10 members of the wrestling team. However, they stood up when

11 Warzecka walked in the room and refused to talk with him. (TT

12 2117:25-2119:2.)

13

369. On June 14, 2001, after it was clear his contract would

14 not be renewed and after he had submitted his initial request

15 that included only male students, Burch submitted a request for

16 athletic grants in aid for women wrestlers. (TT 2122:18-2123:22;

17 JX 68) On June 26, 2001, Warzecka sent an e-mail to Burch

18 explaining that UC Davis had a policy that outgoing coaches

19 cannot offer scholarships. (TT 2123:23-2124:22; JX 69.)

20

370. Warzecka hired Lenny Zalesky as the wrestling coach for

21 2001-2002, and like all other varsity coaches, Zalesky had full

22 authority to choose the members of the team so long as he stayed

23 within the roster cap. (TT 2125:4-23; DX AA.)

24

371. Warzecka relied on the VRP approved by OCR and

25 instructed his staff to ensure that try outs held by Zalesky in

26 Fall 2001 were conducted in accord with the procedures approved

27 by OCR. (TT 2125:12-2127:16; 2171:8-2172:6; 2173:8-9.)

28

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1

372. Warzecka did not attend the wrestling try-outs.

2 Warzecka did not know whether women would try-out, but later

3 learned that Mancuso may have tried out. (TT 2128:9-2129:15.)

4

373. Warzecka did not have any contact with Mancuso other

5 than a message she may have left for him. She did not make any

6 effort to go to Warzecka’s office. (TT 558:8-22, 564:14-565:11,

7 573:6-12.)

8

374. Mancuso copied Warzecka and other UC Davis employees on

9 an email she sent to Burch regarding her perception that Aggie

10 Open was not properly publicized in 2002. Zalesky responded on

11 behalf of the UC Davis recipients. (TT 576:22-581:25; PX 151.)

12

C. Robert Franks

13

1. Employment and Duties at UC Davis

14

375. Defendant Robert Franks (“Franks”) was the Associate

15 Vice Chancellor for Student Affairs at UC Davis from 1994 to 2004

16 (with short stints as Acting Vice Chancellor at one point and

17 Interim Vice Chancellor at another). (Pretrial Order ¶ 11.)

18

a. A number of service units reported directly to

19 him, including Intercollegiate Athletics. (Id.)

20

b. Defendant Warzecka, as the UC Davis Athletic

21 Director, reported directly to Franks. (Id.) Franks provided

22 Warzecka with direction regarding the operation of the athletic

23 department and could override Warzecka’s decisions. (TT

24 979:4-19.)

25

376. Franks reported to the Vice Chancellor for Student

26 Affairs. (See Sakaki Dep. at 11:2-12:20.) The current Vice

27 Chancellor for Student Affairs, Judy Sakaki, testified that if

28

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1 anything were to go wrong within her area of responsibility, that

2 would ultimately be her responsibility. (Sakaki Dep. at 50:1-4.)

3

377. Franks was the Associate Vice Chancellor for Student

4 Affairs when the student body approved fee increases that would

5 fund three additional women’s varsity teams. (TT 1196:12-

6 1197:9.) Franks approved Williams’ recommendation to add women’s

7 water polo, lacrosse, and crew. (TT 1199:25-1200:8.)

8

378. Franks was aware that female athletic participation

9 opportunities were not substantially proportionate to female

10 undergraduate enrollment during the time period at issue in this

11 case. (TT 1210:1-1211:8.)

12

a. Franks found it difficult to achieve Prong One

13 compliance because women’s enrollment fluctuated from year to

14 year. (TT 1210:1-1211:1.)

15

379. However, he did not direct Warzecka to eliminate

16 opportunities for males because he understood the campus was

17 compliant under Prong Two at all relevant times. (TT

18 1210:1-1212:9.)

19

a. Moreover, he was “comforted” by the fact that over

20 time, the differences in the proportionality disparity ratios

21 were “shrinking.” (TT 1211:18-1212:5.)

22

380. Franks approved the roster management program.

23 Although reducing athletic opportunities was counter to UC Davis’

24 philosophy, Franks realized it was necessary to reduce the size

25 of a number of men’s programs to comply with Title IX while

26 dealing with resource constraints. (TT 1214:18-1216:1; JX 37.)

27

28

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1

381. Limited resources34 only made it possible to add one

2 team, women’s golf, in response to the proposals submitted in

3 2003. Franks would have added every team that wanted

4 intercollegiate status if there were resources to do so. (TT

5 1216:2-19.)

6

382. As part of his job responsibilities to ensure gender

7 equity in the athletic department, Franks reviewed UC Davis’ EADA

8 reports and equity plans. (TT 1141:2-10; 1142:15-17.)

9

2. Involvement with Women Wrestlers

10

383. The first time Franks became aware of any issue

11 regarding wrestling was May 2, 2001, when he received a copy of a

12 notice dated April 30, 2001. The notice stated that several

13 women wrestlers had filed an OCR complaint seeking reinstatement

14 on the wrestling team. (TT 1222:6-1223:21; JX 53.)

15

384. Franks never told Burch that he could not include women

16 on the wrestling team roster. (TT 1221:12-20.)

17

385. Once on notice, Franks immediately discussed the OCR

18 complaint with Shimek and Warzecka. (TT 1225:7-15.) Franks

19 agreed with Shimek’s suggestion that the women wrestlers be

20 placed back on the roster of the men’s wrestling team for the

21 remainder of the 2000-2001 school year. (TT 1225:24-1226:10.)

22

386. When Franks became aware that Burch refused to

23 reinstate the women wrestlers, he immediately contacted them to

24
34 The court finds plaintiffs’ suggestion that defendants 25 should have used funds that it provided for facility development
and improvement and for athletic scholarships to add women’s 26 teams without merit. The undisputed evidence demonstrates that
defendants were required to use the money for the purposes stated 27 on the initiative ballots, which did not include adding to the
operating budget of the athletic department for the expansion of 28 women’s teams. (TT 1203:13-1209:9.)

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1 inform them they had been placed on the wrestling team roster.

2 He also offered to meet with them in person. (TT 1226:11-1228:8;

3 1236:12-1238:10; JX 56.)

4

387. When Masourian and Ng replied by e-mail that they could

5 not accept reinstatement until speaking to their attorneys,

6 Franks advised that he understood and reiterated his willingness

7 to meet again with them in person. (TT 1239:22-1240:22; JX 57.)

8

388. On May 10, 2001, a student demonstration in favor of

9 reinstating the women wrestlers was conducted at the

10 administration building, Mrak Hall, which houses Franks’ office

11 as well as the Chancellor’s office. (TT 1229:9-1234:13.)

12

a. Franks was alerted that Ng had organized the

13 protest. (TT 1231:23-1232:16.)

14

b. Protests were a common occurrence on campus. (TT

15 1232:17-24.)

16

c. Franks had no objection to the protest, nor was he

17 angry that it took place. The protest went forward as planned.

18 (TT 1233:5-1234:13.)

19

389. Ng and Mansourian met with Franks on May 16, 2001, less

20 than a week after he contacted them about being placed on the

21 team roster; the meeting was cordial. (TT 185:11-13; 537:8-14;

22 1241:2-23.) The women wrestlers never indicated that they had

23 any problem with equal opportunity in the UC Davis athletic

24 department, aside from their removal from the wrestling team in

25 2000-2001. (TT 1224:4-1225:6.)

26

390. As set forth above, Franks agreed to look into issues

27 raised by Plaintiffs, including whether UC Davis would establish

28 a separate roster cap for women wrestlers, whether it would waive

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1 the minimum number of students required for creation of a women’s

2 wrestling club sport team, and whether the club team could

3 practice at the same time as the intercollegiate team.

4

391. As set forth above, after consultation with Shimek,

5 Warzecka, Gill-Fisher, and two Title IX attorneys, it was decided

6 that a separate roster cap would not be established. However, UC

7 Davis agreed to waive the minimum number of members required to

8 establish a wrestling club and allow the club team to practice at

9 the same time as the intercollegiate wrestling team.

10

392. This was communicated by Franks to Mansourian and Ng on

11 May 17, 2001. (TT 1241:24-1244:13, 1245:20-1246:17; JX 58.)

12

393. In May 2001, Franks contacted Bob Oliver of the NCAA to

13 inquire about the number of girls wrestling in high school. The

14 numbers did not indicate to Franks that there was sufficient

15 interest for UC Davis to consider adding an intercollegiate

16 women’s wrestling team. (TT 1217:13-1218:23.)

17

394. Franks did not promise any of the plaintiffs a spot on

18 the varsity team for succeeding years because he believed that

19 should be determined by the coach. (TT 1238:16-1239:4.) He also

20 believed that giving plaintiffs a spot on the team without

21 requiring them to undergo a competitive process would be unfair

22 to the rest of the student body, who would have to compete to be

23 on an intercollegiate team. (TT 1245:1-19.)

24

395. Franks was not involved with wrestling team tryouts in

25 Fall 2001. He was aware that Zalesky intended to select team

26 members based on the skills they demonstrated. Franks did not

27 believe it was unfair for women to have to try out against men,

28

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1 because they were trying out for a place on the men’s wrestling

2 team. (TT 1251:3-22.)

3

D. Larry Vanderhoef

4

1. Employment and Duties at UC Davis

5

396. Defendant Larry Vanderhoef (“Vanderhoef”) was the

6 Chancellor of UC Davis from 1994 to August 2009. (Pretrial Order

7 ¶ 10.)

8

397. In general, the Chancellor is the chief campus officer

9 and is responsible for the organization and operation of the

10 campus. (Id.)

11

398. As Chancellor, Vanderhoef was ultimately responsible

12 for approximately 25,000 undergraduates, over 5,000 additional

13 graduate and professional students, and nearly 30,000 employees.

14 (TT 1318:11-1319:25; 1324:13-17.)

15

a. By necessity, the Chancellor of an organization

16 the size of UC Davis must delegate responsibility to others,

17 including the Vice Chancellors and Deans. (TT 1281:1-1282:6;

18 1318:17-1322:3.)

19

b. Vanderhoef had trusted staff members who directed

20 phone calls, e-mails, and mail to the appropriate administrators.

21 (TT 1322:7-1324:8.)

22

c. Vanderhoef delegated the responsibility of meeting

23 with students regarding complaints to members of his

24 administration. (TT 1321:7-1322:10; 1359:15-25.)

25

399. Vanderhoef agreed that, as the Chancellor, he had the

26 ultimate responsibility to ensure there was gender equity in UC

27 Davis’ educational programs, including intercollegiate athletics.

28 (TT 1261:10-22; 1263:25-1264:6.)

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1

a. However, Vanderhoef relied on his staff to carry

2 out their job duties in an informed and acceptable manner. (TT

3 1268:24-1270:17.)

4

b. He relied on the Vice Chancellor for Student

5 Affairs to oversee intercollegiate athletics. (TT

6 1272:25-1274:12.)

7

c. Vanderhoef relied on the Vice Chancellors to

8 provide written gender equity plans as required. (TT 1327:6-16.)

9

400. For five or six years, Carol Wall was the Vice

10 Chancellor for Student Affairs. Vanderhoef had confidence in her

11 ability to handle gender equity issues because she was a champion

12 and spokesperson for those issues. (TT 1325:6-21)

13

401. Vanderhoef also relied on Franks, Warzecka,

14 Gill-Fisher, and Shimek to address issues pertaining to

15 intercollegiate athletics and gender equity. He had confidence

16 in their ability to address such issues in a fair and competent

17 manner. (TT 1282:2-6; 1284:3-6, 1285:4-25; 1325:19-1327:13,

18 1331:14-1332:25.)

19

402. Vanderhoef was frequently updated on the status of

20 Title IX compliance in the athletic department. He admitted that

21 these updates were monthly, but could be as often as weekly “if

22 there was lots going on.” (TT 1265:6-1266:3.)

23

403. While he was Chancellor, Vanderhoef received reports

24 from committees related to Title IX and gender equity. (TT

25 1267:10-17.)

26

404. Vanderhoef was directly responsible for dealing with

27 political figures. (TT 1330:24-1331:11.)

28 /////

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1

2. Involvement with Women Wrestlers

2

405. Vanderhoef was aware of the women wrestlers’ OCR

3 complaint.

4

a. However, Shimek had dealt directly with OCR for a

5 number of years, and Vanderhoef relied on him to respond to OCR;

6 Vanderhoef was aware that Shimek did respond. (TT

7 1331:6-1332:16.)

8

b. Vanderhoef did not personally investigate the

9 allegation that the women wrestlers had been removed from the

10 team because he had faith in Student Affairs, Franks, and

11 Warzecka regarding the situation. (TT 1340:7-16.)

12

c. In May 2001, Vanderhoef heard from Franks that the

13 women wrestlers’ discrimination complaint was baseless and that

14 Shimek was “well in the loop.” Franks informed Vanderhoef about

15 the problem because the women wrestling situation was beginning

16 to generate negative publicity. (TT 2543:10-2545:25; PX 90.)

17

406. After Assemblywoman Thomson wrote to him on behalf of

18 the women wrestlers and threatened to withhold state funding for

19 a planned laboratory building, Vanderhoef personally communicated

20 with Thomson in order to address her concerns about the treatment

21 of women in the UC Davis wrestling program. (TT 1338:22-

22 1342:19; JX 65-66.)

23

a. After meeting with Vanderhoef, Thomson withdrew

24 her threat to withhold funds for the laboratory building. (TT

25 1342:6-1345:6; JX 65-67.)

26

407. In one of his communications with Thomson, Vanderhoef

27 proposed that an independent or Blue Ribbon Panel be convened to

28 assess the intercollegiate athletic program. If Thomson had

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1 indicated she was in favor of such an assessment and if the Vice

2 Chancellor of Student Affairs had recommended that it be done,

3 Vanderhoef would have agreed that such a process should take

4 place. (TT 1299:3-1300:19.) However, Thomson never made such an

5 indication, and the Vice Chancellor of Student Affairs never made

6 such a recommendation.

7

408. Vanderhoef did not have any recollection of receiving

8 any calls or e-mails from plaintiffs. (TT 1324:9-12.)

9

409. Vanderhoef also did not recall seeing the student

10 petitions plaintiffs circulated. (TT 1360:17-23; PX 86.)

11

410. Vanderhoef was aware that there were newspaper articles

12 about the women wrestlers. (TT 1361:12-1362:4)

13

411. Vanderhoef was also aware that there was an e-mail

14 campaign relating to the women wrestlers. (TT 1370:18-22.)

15

a. He did not read any of the specific e-mails. (TT

16 1371:14-1372:7.)

17

b. A rote response to some of the e-mails was sent

18 out with his approval. (TT 1372:8-11.)

19

412. As of October 2001, Vanderhoef was aware that OCR

20 considered the issues pertaining to the women wrestlers to be

21 resolved, based on the VRP. There was nothing that occurred

22 after that date that caused him to believe he should take further

23 action. (TT 1334:5-15; DX CC.)

24

CONCLUSIONS OF LAW

25 I. Title IX

26

Congress enacted Title IX of the Education Amendments of

27 1972 to prohibit gender discrimination by educational

28 institutions that receive federal funding. 20 U.S.C. § 1681; see

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1 Barrett v. West Chester Univ. of Pa., No. Civ. A. 03-CV-4978,

2 2003 WL 22803477, at *4 (E.D. Pa. Nov. 12, 2003). Specifically,

3 Title IX provides,

4

No person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

5

benefits of, or be subjected to discrimination under

any education program or activity receiving Federal

6

financial assistance . . . .

7 20 U.S.C. § 1681.35 “Congress enacted Title IX in response to

8 its finding - after extensive hearings held in 1970 by the House

9 Special Subcommittee on Education - of pervasive discrimination

10 against women with respect to educational opportunities.” Cohen

11 v. Brown Univ. (“Cohen II”), 101 F.3d 155, 165 (1st Cir. 1996).

12 The goals of Title IX were “to avoid the use of federal resources

13 to support discriminatory practices” and “to provide individual

14 citizens effective protection against those practices.” Id. 15 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979)).36

16

“[W]hile Title IX prohibits discrimination, it does not

17 mandate strict numerical equality between the gender balance of a

18 college’s athletic program and the gender balance of its student

19 body.” Id.; 20 U.S.C. § 1681(b). As such, “a court assessing

20 Title IX compliance may not find a violation solely because there

21 is a disparity between the gender composition of an educational

22
35 At the time it was enacted, “Congress included no 23 committee report with the final bill and there were apparently
only two mentions of intercollegiate athletics during the 24 congressional debate.” Cohen, 991 F.2d at 893 (citations
omitted). 25
36 “Although the statute itself provides for no remedies 26 beyond the termination of federal funding, the Supreme Court has
determined that Title IX is enforceable through an implied 27 private right of action, and that damages are available for an
action brought under Title IX.” Cohen II, 101 F.3d at 167 28 (internal citations omitted).

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1 institution’s student constituency, on the one hand, and its

2 athletic programs, on the other hand.” Id. at 894-95. However,

3 statistical evidence of disparate impact may be highly relevant

4 to the determination of whether an institution violated Title IX.

5 Id. at 895.

6

A. Application to College Athletic Programs

7

In practice, Title IX reaches the vast majority of all

8 accredited colleges and universities. Cohen v. Brown Univ.

9 (“Cohen I”), 991 F.2d 888, 893 (1st Cir. 1993). It wasn’t until

10 1974, however, that institutions became aware that the statute

11 applied to athletic programs. (TT 897:7-9.)

12

In 1984, the Supreme Court held that Title IX was “program-

13 specific”; as such, “its tenets applied only to the program(s)

14 which actually received federal funds and not to the rest of the

15 university.” Cohen I, 991 F.2d at 894 (citing Grove City College

16 v. Bell, 465 U.S. 555, 574 (1984)). “Because few athletic

17 departments [were] direct recipients of federal funds . . .,

18 Grove City cabined Title IX and placed virtually all collegiate

19 athletic programs beyond its reach.” Id.

20

In 1988, in response to Grove City, Congress reinstated an

21 institution-wide application of Title IX by passing the Civil

22 Rights Restoration Act of 1987, 20 U.S.C. § 1687. Id. “The

23 Restoration Act required that if any arm of an education

24 institution received federal funds, the institution as a whole

25 must comply with Title IX’s provisions.” Id. Accordingly,

26 subsequent to 1988, there was no question that Title IX applied

27 to college athletic programs. Id. However, as a result of (1)

28 the “slow and steady” pace that even plaintiffs’ expert testified

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1 was acceptable for social change of this magnitude and (2) the

2 ambiguity regarding the applicability of Title IX to

3 intercollegiate athletics, there was virtually no enforcement of

4 Title IX with respect to intercollegiate athletics between 1980

5 and 1992. (TT 907:4-8; 857:9-19; 1791:11-23.)

6

B. Relevant Regulations and Agency Action

7

Title IX “sketches wide policy lines, leaving the details to

8 regulating agencies.” Cohen I, 991 F.2d at 893. When Title IX

9 was implemented, the agency responsible for enacting appropriate

10 regulations was the Department of Health, Education, and Welfare

11 (“HEW”). Id. at 895. The HEW issued implementing regulations in

12 1975 and the subsequent 1975 Interpretation. See id. The HEW

13 was subsequently divided into the Department of Health and Human

14 Services (“HHS”) and the Department of Education (“DOE”).

15 Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 n.3 (10th

16 Cir. 1993). The DOE, acting through the Office for Civil Rights

17 (“OCR”), is the agency charged with administering Title IX. Id.

18 The OCR released a clarification of its Title IX enforcement

19 policies in 1996.

20

The court must accord agency interpretation of Title IX

21 “appreciable deference.” Cohen, 991 F.2d at 896 (citing Chevron

22 U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S.

23 837, 844 (1984)). “The degree of deference is particularly high

24 in Title IX cases because Congress explicitly delegated to the

25 agency the task of prescribing standards for athletic programs

26 under Title IX.” Id. (citations omitted); see Mansourian v.

27 Regents of the Univ. of Cal., 602 F.3d 957, 965 n.9 (9th Cir.

28 2010).

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1

1. The 1975 Regulations

2

In 1975, the HEW issued implementing regulations to Title

3 IX. Cohen I, 991 F.2d at 895. The regulations generally provide

4

No person shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, be treated

5

differently from another person or otherwise be

discriminated against in any interscholastic,

6

intercollegiate, club, or intramural athletics offered

by a recipient, and no recipient shall provide any such

7

athletics separately on such basis.

8 34 C.F.R. § 106.41(a). Specifically, as applied to

9 intercollegiate athletics, the regulations interpret the statute

10 as requiring funding recipients to “provide equal athletic

11 opportunity for members of both sexes.” 34 C.F.R. § 106.41(c); 12 45 C.F.R. § 86.4137; Cohen I, 991 F.2d at 897 (“Equal opportunity

13 to participate lies at the core of Title IX’s purpose.”).

14

There are two components to Title IX’s equal athletic

15 opportunity requirement: “effective accommodation” and “equal 16 treatment.”38 Mansourian, 602 F.3d at 964. Title IX’s

17 “effective accommodation” requirements derive from 34 C.F.R. §

18 106.41(c)(1), which bases Title IX compliance, in part, on

19 whether “the selection of sports and levels of competition

20

21

37 In 1979, Congress divided HEW into the HHS and DOE; at

that time “the existing regulations were left within HHS’s 22 arsenal while, at the same time, [DOE] replicated them as part of

its own regulatory armamentarium.” Cohen I, 99 F.2d at 895. For 23 purposes of clarity, the court cites to the DOE regulations at 34

C.F.R. § 106. 24

38 The “equal treatment” Title IX standard, in contrast, 25 derives from 34 C.F.R. § 106.41(c)(2)-(10), which has been

interpreted by OCR to require “equivalence in the availability, 26 quality and kinds of other athletic benefits and opportunities

provided male and female athletes.” Plaintiffs assert that they 27 are not pressing any unequal treatment claims. To the extent

plaintiffs asserted such claims, the court previously dismissed 28 them. (Mem. & Order [Docket #226], filed Oct. 18, 2007.)

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1 effectively accommodate the interests and abilities of members of

2 both sexes.” Effective accommodation claims “concern the

3 opportunity to participate in athletics.” Id.

4

However, the regulations do allow for the provision of

5 separate teams for men and women “where the selection for such

6 teams is based upon competitive skill or the activity involved is

7 a contact sport.” 34 C.F.R. § 106.41(b). Nevertheless, “where a

8 recipient operates or sponsors a team in a particular sport for

9 members of one sex but operates or sponsors no such team for

10 members of the other sex, and athletic opportunities for members

11 of that sex have previously been limited, members of the excluded

12 sex must be allowed to try-out for the team offered unless the

13 sport involved is a contact sport.” Id. The regulations define

14 “contact sports” as including “boxing, wrestling, rugby, ice

15 hockey, football, basketball and other sports the purpose or

16 major activity of which involves bodily contact.” Id.

17

2. The 1979 Interpretation

18

In 1979, in response to numerous complaints alleging Title

19 IX violations with regard to discrimination in athletics, the HEW

20 issued a policy interpretation explaining the ways in which

21 institutions may effectively accommodate the interests and

22 abilities of their student-athletes. 44 Fed. Reg. 71413, 71413

23 (Dec. 11, 1979), Ex. 3 to Joint Request for Judicial Notice,

24 filed June 6, 2011 (“1979 Interpretation”), at 18. The 1979

25 Interpretation “delineates three general areas in which the OCR

26 will assess compliance with the effective accommodation section

27 of the regulation.” Roberts, 998 F.2d at 828. These three

28 general areas are:

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1

a. The determination of athletic interests and

abilities of students;

2

b. The selection of sports offered; and

3

c. The levels of competition available including the

4

opportunity for team competition.

5 Id.

6

With respect to the determination of athletic interests and

7 abilities of students, the 1979 Interpretation sets forth that a

8 university “may determine the athletic interests and abilities of

9 students by nondiscriminatory methods of their choosing” so long

10 as the methods (1) “take into account the nationally increasing

11 levels of women’s interests and abilities”; (2) “do not

12 disadvantage members of an underrepresented sex”; (3) “take into

13 account team performance records”; and (4) are responsive to the

14 expressed interests of students capable of intercollegiate

15 competition who are members of an underrepresented sex.” (1979

16 Interpretation at 27.)

17

With respect to the selection of sports, the 1979

18 Interpretations clarifies that “the regulation does not require

19 institutions to integrate their teams nor to provide exactly the

20 same choice of sports to men and women.” (Id.) As applied to

21 contact sports, “[e]ffective accommodation means that if an

22 institution sponsors a team for members of one sex in a contact

23 sport, it must do so for members of the other sex” if “(1) [t]he

24 opportunities for members of the excluded sex have historically

25 been limited; and (2) [t]here is sufficient interest and ability

26 among the members of the excluded sex to sustain a viable team

27 and a reasonable expectation of intercollegiate competition for

28 that team.” (Id.)

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1

Finally, with respect to assessment of effective

2 accommodation in opportunities for intercollegiate competition,

3 the 1979 Interpretation sets forth the “three part test” for

4 measuring compliance with Title IX. Id.; see also Mansourian,

5 602 F.3d at 965. Under this test, a university may demonstrate

6 compliance by showing that (1) “intercollegiate level

7 participation opportunities for male and female students are

8 provided in numbers substantially proportionate to their

9 respective enrollments”; or (2) the institution has “a history

10 and continuing practice of program expansion which is

11 demonstrably responsive to the developing interest and abilities

12 of the members” of the historically underrepresented sex; or (3)

13 “the interests and abilities of the members of [the historically

14 underrepresented sex] have been fully and effectively

15 accommodated by the present program.” (1979 Interpretation at

16 27.)

17

3. The 1996 Clarification

18

In 1996, the OCR published a clarification of the “effective

19 accommodation” test. (Ex. 4 to Joint Request for Judicial

20 Notice, filed May 5, 2011 (“1996 Clarification”), at 36, 38.)

21 The introductory letter from Norma V. Cantu, the Assistant

22 Secretary for Civil Rights, emphasized that “the Clarification

23 does not provide strict numerical formulas or ‘cookie cutter’

24 answers to the issues that are inherently case- and fact-

25 specific.” (Id. at 39.) Indeed, the letter expressly notes that

26 “Title IX provides institutions with flexibility and choice

27 regarding how they will provide nondiscriminatory participation

28 opportunities” and concedes that an attempt to set forth such

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1 formulas or answers would “deprive institutions of the

2 flexibility to which they are entitled when deciding how best to

3 comply with the law.” (Id.) However, the Clarification

4 “provides specific factors that guide an analysis of each part of

5 the three-part test” and includes examples “to demonstrate, in

6 concrete terms, how these factors will be considered.” (Id. at

7 41.)

8

C. Prong 2

9

Plaintiffs assert that defendant UC Davis violated Title

10 IX’s mandate to effectively accommodate the interests and

11 abilities of members of both sex. For the purposes of this

12 litigation only, and for purposes of the Title IX claim only, UC

13 Davis stipulates that during the time period it believes is

14 relevant to the Title IX claim, the ratio of male and female

15 participants in intercollegiate athletics was not always

16 substantially proportionate to the ratio of male and female

17 undergraduate enrollment at the University. UC Davis further

18 stipulates that during that time period, there was at least one

19 sport for women that was not offered at the intercollegiate level

20 for which there was (1) an expressed interest in competing at the

21 intercollegiate level; (2) sufficient ability among interested

22 students to compete at the intercollegiate level; and (3)

23 arguably sufficient intercollegiate competition for that sport in

24 the geographic area in which UC Davis usually competes. Based on

25 this stipulation, the parties agree that plaintiffs are relieved

26 of their burden of proof with respect to Prong One and Prong

27 Three of the three-prong test to establish a violation of Title

28 IX. As such, the parties agreed that UC Davis bore the burden of

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1 proving that it was in compliance under Prong Two during the 2 relevant time period.39 (Joint Stipulation [Docket #564], filed

3 May 6, 2011.)

4

Under Prong Two, an institution can establish compliance

5 with Title IX by showing “that it has a history and continuing

6 practice of program expansion which is demonstrably responsive to

7 the developing interests and abilities of the underrepresented

8 sex.” (1996 Clarification at 42.) “In effect, part two looks at

9 an institution’s past and continuing remedial efforts to provide

10 nondiscriminatory participation opportunities through program

11 expansion.” (Id.)

12

In analyzing Prong Two compliance, the court looks at “the

13 entire history of the athletic program, focusing on the

14 participation opportunities provided for the underrepresented

15 sex.” (Id.) “There are no fixed intervals of time within which

16 an institution must have added participation opportunities,” nor

17 “is a particular number of sports dispositive.” (Id.) “Rather,

18 the focus is on whether the program expansion was responsive to

19 developing interests and abilities of the underrepresented sex.”

20 (Id.) Evidence of a history of program expansion may include (1)

21 “an institution’s record of adding intercollegiate teams, or

22 upgrading teams to intercollegiate status, for the

23

24

39 The court previously held that even if a “shorter, more

current period of aggressive remedial efforts may be highly 25 relevant to establishing compliance with Prong Two, the court

“must review the entire history of the athletic program in 26 determining whether UC Davis was compliant with Title IX when

plaintiffs were students.” (Mem. & Order [Docket #545], filed

27 Apr. 29, 2011, at 5.) The court noted, however, that plaintiffs

may only recover damages based upon actual harm that they

28 personally suffered. (Id. at 6.)

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1 underrepresented sex”; (2) “an institution’s record of increasing

2 the numbers of participants in intercollegiate athletics who are

3 members of the underrepresented sex”; and (3) “an institution’s

4 affirmative response to requests by students or others for

5 addition or elevation of sports.” (Id. at 43.)

6

The court must also assess whether the institution can

7 demonstrate “a continuing (i.e., present) practice of program

8 expansion as warranted by developing interests and abilities.”

9 (Id. at 42.) Evidence of a continuing practice of program

10 expansion may include (1) “an institution’s current

11 implementation of a nondiscriminatory policy or procedure for

12 requesting the addition of sports . . . and the effective

13 communication of the policy or procedure to students”; and (2)

14 “an institution’s current implementation of a plan of program

15 expansion that is responsive to developing interests and

16 abilities.” (Id. at 43.) An institution’s “nondiscriminatory

17 assessments of developing interests and abilities” and “timely

18 actions in response to the results” are also persuasive evidence

19 of a continuing practice of program expansion. (Id.)

20

At bottom, Prong Two “considers an institution’s good faith

21 remedial efforts through actual program expansion.” (Id.)

22 (emphasis added). The inquiry “focuses on whether an institution

23 has expanded the number of intercollegiate participation

24 opportunities for women, but provides institutions flexibility in

25 choosing which teams they add.” Mansourian 602 F.3d at 965.

26 “The number of participation opportunities for women is defined

27 by the number of female athletes who actually participate in

28

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1 varsity athletics.”40 Id. at 965-66. Prong Two thus “focuses

2 primarily, but not exclusively, on increasing the number of

3 women’s athletic opportunities rather than increasing the number

4 of women’s teams.” Id. at 969.

5

Increased proportional opportunities for the

6 underrepresented sex reached solely as a result of the reduction

7 of the overrepresented sex will not establish compliance under

8 Prong Two. (1996 Clarification at 43.) “[T]he ordinary meaning

9 of the word ‘expansion’ may not be twisted to find compliance

10 under this prong when schools have increased the relative

11 percentages of women participating in athletics by making cuts in

12 both men’s and women’s sports programs.” Roberts, 998 F.2d at

13 830.

14

Moreover, an institution may rely on Prong Two, despite

15 normal upward or downward fluctuations in participation

16 opportunities. (TT 833:7-834:12.) Indeed, both Dr. Lopiano and

17 Dr. Grant testified that normal fluctuations may result in

18 greater or lesser participation opportunities, based on factors

19 such as a larger graduating class or a larger recruited class.

20 (See TT 833:7-18.)

21

The Clarification counsels that the efforts of an

22 institution should be assessed from a flexible and case-specific

23 approach. As such, “[i]n the event that an institution

24 eliminated any team for the underrepresented sex,” the court

25 should evaluate the circumstances surrounding such action.

26 “However, an institution can still meet part two if, overall, it

27 40 “[A]thletes who participate in more than one sport are
28 counted as a participant for each sport they play.” Id. at 966.

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1 can show a history and continuing practice of program expansion

2 for that sex.” (1996 Clarification at 43.)

3

The 1996 Clarification sets forth four examples to help

4 illustrate in what types of circumstances compliance with Prong

5 Two could be established. The three most relevant examples

6 provide as follows:

7

At the inception of its women’s program in the

mid-1970s, Institution C established seven teams for

8

women. In 1984 it added a women’s varsity team at the

request of students and coaches. In 1990 it upgraded a

9

women’s club sport to varsity team status based on a

request by the club members and an NCAA survey that

10

showed a significant increase in girls high school

participation in that sport. Institution C is

11

currently implementing a plan to add a varsity women’s

team in the spring of 1996 that has been identified by

12

a regional study as an emerging women’s sport in the

region. The addition of these teams resulted in an

13

increased percentage of women participating in varsity

athletics at the institution. Based on these facts,

14

OCR would find Institution C in compliance with part

two because it has a history of program expansion and

15

is continuing to expand its program for women to meet

their developing interests and abilities.

16

. . .

17

In the mid-1970s, Institution E established five teams

18

for women, In 1979 it added a women’s varsity team. In

1984 it upgraded a women’s club sport with twenty-five

19

participants to varsity team status. At that time it

eliminated a women’s varsity team that had eight

20

members. In 1987 and 1989 Institution E added women’s

varsity teams that were identified by a significant

21

number of its enrolled and incoming female students

when surveyed regarding their athletic interests and

22

abilities. During this time it also increased the size

of an existing women’s team to provide opportunities

23

for women who expressed interest in playing that sport.

Within the past year, it added a women’s varsity team

24

based on a nationwide survey of the most popular girls

high school teams. Based on the addition of these

25

teams, the percentage of women participating in varsity

athletics at the institution has increased. Based on

26

these facts, OCR would find Institution E in compliance

with part two because it has a history of program

27

expansion and the elimination of the team in 1984 took

place within the context of continuing program

28

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1

expansion for the underrepresented sex that is

responsive to their developing interests.

2

Institution F started its women’s program in the early

3

1970s with four teams. It did not add to its women’s

program until 1987 when, based on requests of students

4

and coaches, it upgraded a women’s club sport to

varsity team status and expanded the size of several

5

existing women’s teams to accommodate significant

expressed interest by students. In 1990 it surveyed

6

its enrolled and incoming female students; based on

that survey and a survey of the most popular sports

7

played by women in the region, Institution F agreed to

add three new women’s teams by 1997. It added a

8

women’s team in 1991 and 1994. Institution F is

implementing a plan to add a women’s team by the spring

9

of 1997. Based on these facts, OCR would find

Institution F in compliance with part two. Institution

10

F’s program history since 1987 shows that it is

committed to program expansion for the underrepresented

11

sex and it is continuing to expand its women’s program

in light of women’s developing interests and abilities.

12

13 (Id. at 43-44.)

14

In this case, defendant UC Davis has not demonstrated that,

15 while plaintiffs were students at the University, it had a

16 continuing practice of program expansion that was demonstrably

17 responsive to the developing interests and abilities of the

18 underrepresented sex. Rather, the undisputed evidence

19 demonstrates that while plaintiffs were students, UC Davis

20 eliminated more than 60 actual participation opportunities for

21 women. Indeed, while in 1998-1999 there were 424 total female

22 participants in student intercollegiate athletics, there were

23 only 363 total female participants in student intercollegiate

24 athletics in 2004-2005. Such evidence demonstrates overall

25

26

27

28

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1 program contraction of actual female participation opportunities, 2 not expansion.41

3

1. History of Program Expansion

4

The court notes that UC Davis has a strong history of

5 supporting women’s participation in athletics. Indeed, in 1970,

6 two years before the enactment of Title IX, “The Davis View”

7 expressly contemplated the expansion and development of women’s

8 intercollegiate athletic programs. In 1972, UC Davis already had

9 seven women’s intercollegiate athletic teams. It upgraded

10 women’s cross-country to varsity status in 1978. Further, when

11 it legitimately eliminated women’s field hockey at the end of the

12 1982-1983 school year based upon the decreasing level of interest

13 and viable intercollegiate athletic opportunities, UC Davis

14 immediately replaced the sport with women’s soccer in the fall of

15 1983.

16

Moreover, UC Davis acknowledged its obligation to comply

17 with Title IX even when there was virtually no enforcement in the

18 1980s and early 1990s. In the late 1980s, UC Davis hired Shimek

19 as a Title IX compliance expert. It also commissioned a

20 comprehensive report in 1989, which was completed sometime in

21 1990, to review, inter alia, gender equity in athletic

22 participation opportunities. The report unabashedly found that

23 UC Davis was currently not in compliance under any prong of the

24 three-part test and recommended the expansion of women’s

25 participation opportunities.

26
41 While the court notes the increasingly smaller 27 disparity in proportional opportunities from 2001-2002 through
2005-2006, this positive movement is irrelevant to the court’s 28 inquiry under Prong Two. See Roberts, 998 F.2d at 830.

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1

In response, and despite state budget cuts that threatened

2 to eliminate almost all of its athletic program,42 UC Davis

3 retained all of its existing teams and added three new women’s

4 varsity sports, increasing female participation opportunities by

5 131 in the 1996-1997 school year. These three new sports were

6 added after a formal submission process that documented the

7 interest of current and future female student-athletes, the

8 availability of viable intercollegiate competition, and the

9 ability to immediately locate and fund the resources necessary to

10 support the sport. Subsequently, UC Davis officially added

11 women’s varsity indoor track & field in the 1998-1999 school

12 year. That same year, UC Davis achieved its highest number of

13 total female participants with 426 female student participation

14 opportunities. (JX 89.)

15

Accordingly, viewing the entirety of the circumstances, at

16 the time the first plaintiff entered UC Davis as a freshman in

17 Fall 1998, UC Davis had a history of program expansion responsive

18 to the developing interests and abilities of women. While the

19 court notes the stagnation of expansion between the elevation of

20 women’s cross-country to varsity status in 1978 and the addition

21

22

42 The court notes that financial concerns cannot justify

gender discrimination. “If a school . . . elect[s] to stray from 23 substantial proportionality and fail[s] to march uninterruptedly

in the direction of equal athletic opportunity, it must . . . 24 fully and effectively accommodate the underrepresented gender’s

interests and abilities, even if that requires it to give the 25 underrepresented gender . . . what amounts to a larger slice of a

shrinking athletic-opportunity pie.” Cohen v. Brown Univ. 26 (“Cohen IV”), 101 F.3d 155, 176 (1st Cir. 1996). However, the

court acknowledges the efforts undertaken by UC Davis to expand

27 women’s athletic participation opportunities while still

continuing programs that would benefit both male and female

28 student-athletes.

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1 of three varsity sports in 1995, the court concludes that the

2 shorter, more current period of aggressive remedial efforts,

3 which resulted in the elevation of women’s water polo, lacrosse,

4 crew, and indoor track & field, demonstrates a history of good

5 faith remedial efforts through program expansion. Cf. Roberts,

6 998 F.2d at 830 (holding that the defendant institution could not

7 demonstrate a practice of program expansion where the last team

8 was added 16 years before the case was decided and three women’s

9 sports had subsequently been eliminated); Cohen I, 991 F.2d at

10 903 (holding that the defendant institution could not demonstrate

11 a history of program expansion where there was “impressive

12 growth” in the 1970s but no additional opportunities added over

13 the next two decades).

14

2. Continuing Practice of Program Expansion

15

However, despite its best intentions to the contrary, UC

16 Davis did not have a continuing practice of program expansion at

17 the time plaintiffs were students. Indeed, in 1999-2000, there

18 were 424 female participation opportunities at UC Davis; the next

19 year, such opportunities had decreased to 407, and the following

20 year, they had decreased to 361. While the participation numbers

21 increased slightly in 2002-2003 to a total of 389 opportunities,

22 they again decreased the following year to 373 and again the next

23 year to 363. It was not until the 2005-2006 school year that the

24 participation rates rose again to 401 total female participants.

25 However, this was still 25 less participation opportunities than

26 in the 1998-1999 school year. Under the circumstances, the court

27 cannot conclude that UC Davis had a continuing practice of

28

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1 program expansion in the face of such a decline in actual

2 participation opportunities.

3

Of utmost significance to this court’s determination is the

4 elimination of the junior varsity or “B” teams for women’s water

5 polo and women’s lacrosse after the 2000-2001 school year, which

6 accounted for approximately 30 lost participation opportunities

7 for women. The court notes that these teams were eliminated for

8 legitimate, non-discriminatory reasons; the coaches of both these

9 teams recommended that they be reinstituted at the club level to

10 provide greater competitive opportunities so that athletes who

11 did not have the skill to make the varsity team could potentially

12 develop into varsity level athletes. (See TT 1494:2-1495:6; TT

13 1634:8-1635:10.) However, while the elimination of these teams

14 does not create a Title IX violation in and of itself, the

15 failure to replace these opportunities prevents UC Davis from

16 relying on Prong Two to establish compliance. Rather than

17 expanding athletic participation opportunities, UC Davis

18 contracted athletic participation opportunities through the

19 elimination of two women’s “B” teams. See Ollier v. Sweetwater

20 Union High Sch. Dist., 604 F. Supp. 2d 1264, 1272-1273 (S.D. Cal.

21 2009) (holding that “[a]lthough a slight decrease in athletic

22 participation in a given year will not be fatal to showing

23 compliance with Title IX,” defendants cannot establish Prong Two

24 compliance where there is no steady increase in female

25 participation). At bottom, the University lost approximately 30

26 actual participation opportunities, which were not the result of

27 “normal fluctuation” and which it never replaced. This, by

28 definition, is not program expansion. See Favia v. Indiana Univ.

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1 of Penn., 812 F. Supp. 578, 585 (W.D. Pa. 1993) (holding that the

2 defendants failed to demonstrate compliance with Prong Two where

3 “the levels of opportunities for women to compete went from low

4 to lower.”)

5

The court concludes that even if it accepted Dr. Grant’s

6 crediting theory, it still could not find UC Davis in compliance

7 due to the un-replaced elimination of these varsity

8 opportunities. Dr. Grant testified that for purposes of Prong

9 Two compliance, adding three new intercollegiate sports for women

10 at once in the 1996-1997 school year should be given the same

11 effect as if one sport were added in 1996-1997, another in 1999-

12 2000, and a third in 2002-2003. (TT 1848:17-1850:4.) Grant

13 opined that to hold otherwise would encourage institutions to

14 withhold granting varsity status, except for within accepted

15 intervals, in order to ensure Prong Two compliance; such

16 withholding would deprive entire intercollegiate generations of

17 the opportunity to compete in those subsequently added sports.

18 While the court finds Grant’s logic persuasive, it fails to

19 address the impact of the elimination of teams within the

20 crediting period. Moreover, the court finds it problematic to

21 recognize a nine-year “credit” for the addition of three varsity

22 teams, when the University cut two teams and over thirty actual

23 participation opportunities within that same nine-year period.

24

The court’s conclusion is in accordance with the examples

25 provided in the 1996 Clarification. First, UC Davis cannot

26 compare itself to Institution C. The 1996 Clarification provides

27 that Institution C, a university that had seven teams in the

28 1970s, would be compliant under Prong Two where it had added a

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1 new varsity team in 1984, elevated a club team to varsity status

2 in 1990, and implemented a plan to add a varsity team in 1996.

3 However, while UC Davis elevated three club teams to varsity

4 status in 1995 and declared indoor track & field as a separate

5 varsity team in 1998, it also eliminated two women’s varsity “B 6 teams.” As such, the comparison to Institution C is inapt.43

7

Second, UC Davis cannot find safe harbor in a comparison to

8 Institution E. The 1996 Clarification noted that an institution

9 would be compliant, even if it eliminated a women’s varsity team

10 that had eight members, where it elevated a club team consisting

11 of twenty-five members to varsity status that same year. In this

12 case, UC Davis eliminated two “B teams,” with the net effect of

13 losing approximately 30 actual participation opportunities. No

14 new participation opportunities immediately replaced them.

15 Rather, it was not until 2005-2006 that UC Davis added women’s

16 golf, which only resulted in 7 additional participation

17 opportunities. Accordingly, UC Davis is not akin to Institution

18 E.

19

Importantly, the court notes that the elimination of women’s

20 participation opportunities on the men’s varsity wrestling team

21 is irrelevant to the court’s conclusion that UC Davis did not

22 have a continuing practice of program expansion. Rather, the

23 failure of plaintiffs to make the men’s varsity wrestling team is

24 akin to normal, legitimate fluctuations of the numbers on any

25 varsity squad based upon the talent, skill, and potential of the

26

27

43 Likewise, the 1996 Clarification example relating to

Institution F does not include any elimination of women’s teams

28 or actual participation opportunities.

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1 enrolled student-athletes. To find otherwise would belie common

2 sense and the practicalities of intercollegiate athletics. For

3 example, if a talented female athlete tried out for and made an

4 intercollegiate men’s football team, EADA reports would reflect

5 that female participation opportunity in varsity football. Upon

6 graduation, it is likely that the sole female participation

7 opportunity in football would be eliminated. To equate the

8 elimination of a sole female participation opportunity on a men’s

9 sport as the elimination of an entire women’s varsity sport not

10 only runs counter to the purposes of Title IX, it also

11 disincentivizes institutions from giving extraordinarily talented

12 women the opportunity to compete in arenas traditionally occupied

13 by men and in sports for which there are currently no viable 14 female intercollegiate opportunities.44

15

Finally, the court notes that the issues raised regarding UC

16 Davis’ non-compliance with Title IX are difficult, particularly

17 in light of the dearth of guidance in this area of the law.

18 Universities should be encouraged to add as many athletic

19 participation opportunities for women as soon as they can;

20

21

44 Further, to require an institution to maintain women’s

participation opportunities on men’s intercollegiate teams 22 without imposing the same requirements on all participants would

not only impugn the integrity of intercollegiate athletics, but 23 would also be based on an overbroad, generalized, and

discriminatory assumption that women can never compete against 24 men. See Weinberger v. Wiesenfeld, 420 U.S. 636, 642-43 (1975).

Such an assumption would be particularly damaging and demeaning 25 in the context of Title IX, where statutory provisions already

take into account the physiological differences between men and 26 women in the provision of separate teams. See Frontiero v.

Richardson, 411 U.S. 677, 684-87 (1973) (noting the dangers of

27 gender discrimination “rationalized by an attitude of ‘romantic

paternalism’ which, in practical effect, put women, not on a

28 pedestal, but in a cage”).

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1 application of rigid time tables should not encourage dalliance

2 on the part of institutions in order to ensure compliance under

3 clarifications that were meant to demonstrate the flexibility

4 accorded institutions. Further, universities should be

5 encouraged to make decisions based upon the best interests of

6 their student-athletes; if there is insufficient competition or

7 opportunity at the collegiate level, universities should not

8 sacrifice the experience of their students in order to facially

9 comply with Title IX. Moreover, the court acknowledges that

10 large universities with a commitment to an expansive

11 intercollegiate athletic program for both men and women may

12 confront more difficulties with respect to the fluctuation in the

13 number of participants in varsity athletics and the appropriate

14 ratio between enrollment and athletic participation.

15

However, the gravamen of Prong Two compliance is an ever-

16 increasing number of actual participation opportunities for the

17 underrepresented sex, in this case women. When an institution

18 loses over 60 such opportunities in two years and never fully

19 regains all of those opportunities over the next four years, such

20 an institution cannot be held to be Title IX compliant under

21 Prong Two.

22

D. Competitive Sports Provision

23

Plaintiffs also assert that defendant UC Davis violated the

24 separate teams/contact sports provision of Title IX’s

25 implementing regulations and policy interpretations.

26 Specifically, plaintiffs assert that because UC Davis provided

27 wrestling opportunities for men, it was required to provide

28 wrestling opportunities for women.

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1

As set forth above, 34 C.F.R. § 106.41 provides that where

2 an institution provides a team for one sex, but not for the

3 underrepresented sex, “the excluded sex must be allowed to try-

4 out for the team offered unless the sport involved is a contact

5 sport,” such as wrestling. The 1979 Policy Interpretation

6 further explains that, for purposes of the regulation, effective

7 accommodation requires that “if an institution sponsors a team

8 for members of one sex in a contact sport, it must do so for

9 members of the other sex” where (1) opportunities for members of

10 the excluded sex have been historically limited; (2) there is

11 sufficient interest and ability among the members of the excluded

12 sex to sustain a viable team; and (3) there is a reasonable

13 expectation of intercollegiate competition for that team.

14 (Emphasis added.)

15

“Intercollegiate competition” means competitive

16 opportunities among other collegiate student-athletes. See Cohen

17 v. Brown Univ. (“Cohen III”), 101 F.3d 155, 186 (1st Cir. 1996)

18 (approving district court’s statement that ‘intercollegiate’

19 teams are those that ‘regularly participate in varsity

20 competition.’”). Further, the 1979 Policy Interpretation

21 expressly provides that “[i]nstitutions are not required to

22 upgrade teams to intercollegiate status or otherwise develop

23 intercollegiate sports absent a reasonable expectation that

24 [such] intercollegiate competition in that sport will be

25 available within the institution’s normal competitive regions.”

26 (1997 Policy Interpretation at 28); see Roberts, 998 F.2d at 831.

27

In this case, UC Davis was not required to provide a

28 separate women’s wrestling team because the undisputed evidence

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1 demonstrates that there was not a reasonable expectation of 2 intercollegiate competition for such a team.45 Between 1995 and
3 2001, no four-year California colleges had an all-women’s
4 intercollegiate wrestling team. In Fall 2001, there was one
5 women’s wrestling team in California. The only women’s club
6 program at a four-year University was at California State
7 University Bakersfield. (See TT 1847:6-19 (noting the importance
8 of available intercollegiate competition within a reasonable
9 geographical area in order to provide the best competition to
10 student-athletes at a reasonable cost to the institution).)
11 Indeed, the Executive Director of the United States Girls’
12 Wrestling Association testified that he knew of only four to six 13 official intercollegiate women’s wrestling teams.46 Under these
14 circumstances, UC Davis was not required to sponsor a separate
15 women’s varsity wrestling program. (see TT 1684:15-18 (noting
16 that a competition season that consists of nothing but open
17 matches would not be considered legitimate intercollegiate
18 competition).)
19 45 The court also notes that there were also never more
20 than four or five women at any one time who wanted to participate in wrestling during the time Burch was the head wrestling coach.
21 However, because the court concludes that there was not a reasonable expectation of intercollegiate competition, let alone
22 intercollegiate competition in UC Davis’ normal competitive regions, the court need not determine whether there was
23 sufficient interest and ability among the members of the excluded sex to sustain a viable team.
24 46 As noted, it is unclear whether any or all of these
25 teams were in existence at the time plaintiffs were students, or more specifically, when UC Davis implemented the “wrestle-off”
26 policy in Fall 2001. As this court has noted in numerous orders, plaintiffs never tried out for the men’s varsity wrestling team
27 after Fall 2001; as such, it is unclear whether the same policy would have applied. Furthermore, such conduct is outside the
28 relevant statute of limitations.
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1

Further, even if the court broadened the scope of

2 “intercollegiate competition” to include “open” tournaments,

3 there was still not a reasonable expectation of competition.

4 Burch identified a total of eight open tournaments, only four of

5 which he identified as located in California. Further, there was

6 no evidence that there was sufficient competition for female

7 intercollegiate wrestlers at these open tournaments. For

8 example, while an unofficial member of the men’s intercollegiate

9 wrestling team, plaintiff Ng twice was unable to compete in UC

10 Davis’ own tournament, the Aggie Open, because there were no

11 competitors in her weight class.

12

Accordingly, the court concludes that UC Davis did not

13 violate Title IX by failing to sponsor a separate women’s 14 intercollegiate wrestling team.47

15

16

47 The court acknowledges that once women wrestlers were allowed to join the men’s intercollegiate wrestling team, neither

17

the contact sports exemption nor any other provision of Title IX or its implementing regulations allowed UC Davis to discriminate

18

on the basis of sex. (4th Cir. 2005.)

Mercer v. Duke Univ., 401 F.3d 199, 202

19

The evidence is undisputed that prior to the imposition of

20

the roster cap in Fall 2000, Burch did not cut anyone who was willing to come to practices and attempt to compete. (TT 143:21-

21

23; 452:18-454:11; Collier Dep. at 60:23-61:4 (“[R]egardless of gender, if people were willing to come out and compete and do

what they could, [Burch] wanted to keep them on the team. And 22 that applies to males, too. If there were guys that weren’t very

good wrestlers but they were at least trying to do what they 23 could, he wanted to try and keep them if he could.”).

24

The court concludes that Burch did not discriminate against

plaintiffs on the basis of sex when he did not include them on 25 the roster in Fall 2000. Burch told Warzecka that the women were

not on the roster because they were not competitive against the 26 men on the team. As such, he cut them from the team as a result

of their lack of competitive skill and potential, not because of

27 their gender. Further, to the extent that Burch did not give

them a sufficient opportunity to demonstrate skill, UC Davis

28 reinstated them on the team and gave them such an opportunity the

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1

E. Plaintiffs’ Miscellaneous Claims

2

Finally, plaintiffs assert that defendants violated Title IX

3 by failing to (1) take formal steps to continuously monitor the

4 developing interests and abilities of the underrepresented sex;

5 (2) have an adequate plan to expand women’s opportunities; and

6 (3) effectively communicate or consistently follow a policy for 7 adding or elevating teams.48 However, plaintiffs identify no

8 bases in Title IX, its implementing regulations, or even its

9 Policy Interpretations or Clarifications that impose such

10 requirements.

11

First, there is no requirement that an institution must take

12 formal steps to continuously monitor the developing interests and

13

14 next year.

15

The court also concludes that UC Davis did not discriminate

16

against plaintiffs or women wrestlers on the basis of sex in requiring them to participate in “wrestle-offs” against men in

17

order to make the team. Not only were plaintiffs cut from the team, but other men who could not meet the skill requirement were

18 also cut.

19

At bottom, plaintiffs were only allowed to participate on the team when Burch’s no-cut policy applied to everyone,

20

including men and women. When plaintiffs were required to demonstrate competitive skill and ability to compete on an

intercollegiate men’s wrestling team, they, like some men, could 21 not demonstrate the requisite skill. Cf. Mercer, 401 F.3d at 202

(allowing the plaintiff to proceed on her claim for gender 22 discrimination because she alleged that the football coach

allowed other, less qualified walk-on male kickers to remain on 23 the team).

24

48 As has been a consistent practice in this litigation,

much like their newly advanced Title IX claim based upon alleged 25 violation of the separate teams/contact sports provisions,

plaintiffs only advanced and argued these new theories in their 26 proposed findings of fact and conclusions of law. For example,

there is no mention of any of these new theories of the case in

27 their trial brief or at any time prior to the conclusion of the

trial. However, for the sake of completeness, the court also

28 addresses these claims.

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1 abilities of the underrepresented sex in order to comply with

2 Title IX. Plaintiffs assert that “[t]he 1996 OCR Guidance states

3 that schools should continuously monitor the developing interests

4 and abilities of the underrepresented sex so that they can

5 promptly respond to them as they develop by adding new sports.”

6 (Pls.’ Proposed Conclusions of Law [Docket #625], filed July 19,

7 2011.) However, while the 1996 Clarification notes that it would

8 find an institution’s efforts to monitor developing interests and

9 abilities of the underrepresented sex persuasive in demonstrating

10 compliance with Prong Two, it expressly notes that “institutions

11 have flexibility in choosing a nondiscriminatory methods of

12 determining athletic interests and abilities” and that “elaborate

13 scientific validation of assessments” is not required. (1996

14 Clarification at 42, 44.) Moreover, while the 1996 Clarification

15 provides that an institution’s evaluation of interest “should be

16 done periodically,” it does not state that an institution must do

17 so in order to avoid violating Title IX. (1996 Clarification at

18 45.) Accordingly, the court finds that any failure by UC Davis

19 to formally monitor the developing interests and abilities of 20 female athletes is not an independent violation of Title IX.49

21

Second, plaintiffs similarly fail to identify any source of

22 law that requires an institution to have a plan, let alone a

23 specific type of plan, to expand women’s opportunities in order

24 to comply with Title IX. Plaintiffs point to the introductory

25 letter to the 1996 Clarification to support their contention that

26

27

49 As set forth above, the court found that UC Davis

informally monitored undergraduate interest and abilities through

28 analysis of participation in club sports and intramurals.

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1 an adequate plan must include certain details and timetables;

2 however, nothing in this letter discusses the requirement of a

3 plan or what such a plan would need to include. Rather, the 1996

4 Clarification makes clear that compliance is measured by actual

5 expansion; an institution cannot rely on mere promises or plans

6 to expand. (1996 Clarification at 42); see Favia, 812 F. Supp.

7 at 585 (“You can’t replace programs with promises.”).

8 Accordingly, the court finds that any failure by UC Davis to

9 establish a particular type of plan is not an independent 10 violation of Title IX.50

11

Finally, the failure to effectively communicate or

12 consistently follow a policy for adding or elevating teams is

13 not, standing alone, a violation of Title IX. The 1996

14 Clarification provides that an institution’s implementation of

15 nondiscriminatory policy or procedure for requesting the addition

16 of sports and the effective communication of that policy is a

17 factor, “among others,” that may be evidence of a continuing

18 practice of program expansion. (1996 Clarification at 42.)

19 However, nothing in the 1996 Clarification lends support to

20 plaintiffs’ contention that failure to do so is an independent

21 basis for finding a violation of Title IX.

22

The court notes that a formal monitoring system, a detailed

23 plan for expanding women’s opportunities, and consistent, well-

24 communicated policies for expanding teams are all laudable goals

25 in accomplishing the purposes of Title IX. However, none of them

26 are required under the statute, regulations, or interpretations,

27 50 As set forth above, the court found that UC Davis
28 generated a number of plans to achieve gender equity.

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1 as currently written. Furthermore, courts are not legislators.

2 They are not Chancellors or Vice Chancellors of public

3 universities. While plaintiffs’ suggestions may more effectively

4 or efficiently result in the equal provision of athletic

5 opportunities, it is not within the province of the court to tell

6 UC Davis how to achieve Title IX compliance, at least not in a

7 case that seeks only declaratory relief and money damages.

8 Rather, the court’s role is to determine whether a violation has

9 taken place. Because they have failed to demonstrate that there

10 is any requirement in law for their suggested measures,

11 plaintiffs are not entitled to any relief for the failure, if 12 any, to follow such measures.51

13 II. 42 U.S.C. § 1983: Equal Protection

14

The Equal Protection Clause of the Fourteenth Amendment

15 provides that no State shall “deny to any person within its

16 jurisdiction the equal protection of the laws.” U.S. Const.

17 Amdt. 14, § 1. This is “essentially a direction that all

18 similarly situated persons should be treated alike.” City of

19 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “The

20 purpose of the equal protection clause of the Fourteenth

21 Amendment is to secure every person within the State’s

22 jurisdiction against intentional and arbitrary discrimination,

23 whether occasioned by express terms of a statute or by its

24 improper execution through duly constituted agents.” Sioux City

25

26

51 Moreover, to the extent plaintiffs only sought to

bolster their arguments regarding Prong Two compliance, the court

27 declines to conclude that any of these alleged failures were

dispositive of the court’s holding regarding defendants’ Title IX

28 liability.

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1 Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923); see

2 Williams v. Vidmar, 367 F. Supp. 2d 1265, 1270 (N.D. Cal. 2005)

3 (noting that the Equal Protection clause “is not a source of

4 substantive rights or liberties, but rather a right to be free

5 from discrimination in statutory classifications and other

6 governmental activity”). Accordingly, “[t]o establish a § 1983

7 equal protection violation, the plaintiffs must show that the

8 defendants, acting under color of state law, discriminated

9 against them as members of an identifiable class and that the 10 discrimination was intentional.”52 Flores v. Morgan Hill Unified

11 Sch. Dist. (“Flores”), 324 F.3d 1130, 1134 (9th Cir. 2003)

12 (citing Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740

13 (9th Cir. 2000); Oona R.S. v. McCaffrey, 143 F.3d 473, 476 (9th

14 Cir. 1998)).

15

Where a University decides “to sponsor intercollegiate

16 athletics as part of its educational offerings, this program

17 ‘must be made available to all on equal terms.’” Haffer v.

18 Temple Univ., 678 F. Supp. 517, 525 (E.D. Pa. 1998) (quoting

19 Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)). The Ninth

20 Circuit has recognized that not only must “overall athletic

21 opportunities . . . be equal” to satisfy the Equal Protection

22 Clause, but also that “denial of an opportunity in a specific

23 sport, even when overall opportunities are equal, can be a

24
52 A party seeking to uphold a gender-based classification 25 must demonstrate that the classification “serves important
governmental objectives and that the discriminatory means 26 employed are substantially related to the achievement of those
objectives.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 27 724 (1982). In this case, defendants submit neither evidence nor
argument in support of an important governmental objective or a 28 substantial relationship.

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1 violation of the equal protection clause.” Clark v. Arizona

2 Interscholastic Ass’n, 695 F.2d 1126, 1130-31 (9th Cir. 1982);

3 Leffel v. Wisconsin Interscholastic Athletic Ass’n, 444 F. Supp.

4 1117, 1122 (D. Wis. 1978) (“[T]he defendants may not afford an

5 educational opportunity to boys that is denied to girls.”). The

6 standard under the Equal Protection Clause is “one of

7 comparability, not absolute equality,” where male and female

8 teams are given “substantially equal support” for “substantially

9 comparable programs.” Hoover v. Meilkejohn, 430 F. Supp. 164,

10 170 (D. Colo. 1977).

11

Where female athletes have sought the opportunity to be a

12 part of a men’s team, courts have consistently held that there is

13 no legal entitlement to a position on such a team; rather, Equal

14 Protection merely requires an equal opportunity to compete for 15 such a position.53 See Force v. Pierce City R-VI Sch. Dist., 570

16 F. Supp. 1020, 1031 (W.D. Mo. 1983); see also Brenden v. Indep.

17 Sch. Dist. 742, 477 F.2d 1292, 1302 (8th Cir. 1973) (holding that

18 the “failure to provide the plaintiffs with an individualized

19 determination of their own ability to qualify for positions” on

20 men’s athletic teams violated the Equal Protection Clause);

21 Croteau v. Fair, 686 F. Supp. 552, 554 (E.D. Va. 1988) (“[T]here

22 is no constitutional or statutory right to play any position on

23 any athletic team. Instead, there is only the right to compete

24 for such a position on equal terms and to be free from sex

25 discrimination in state action.”); Lantz v. Ambach, 620 F. Supp.

26
53 A state actor may still attempt to uphold a regulation 27 restricting a female athlete’s opportunity to compete for a spot
on a men’s team if there is a substantial justification for such 28 restriction. See Force, 570 F. Supp. 1020, 1031 (W.D. Mo. 1983).

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1 663 (S.D.N.Y. 1985) (holding unconstitutional a regulation that

2 prevented the female plaintiff from trying out for the men’s

3 junior varsity football team, but noting that the plaintiff

4 “obviously has no legal entitlement to a starting position”);

5 Gilpin v. Kansas State High Sch. Activities Ass’n, 377 F. Supp.

6 1233, 1243 (D. Kan. 1973) (noting that rule barring participation

7 in competition by a plaintiff who “has proven herself capable of

8 competing with the other members of her team” was

9 unconstitutional); Israel v. West Virgina Secondary Schools

10 Activities Comm’n, 182 W. Va. 454, 459-60 (1989); Darrin v.

11 Gould, 85 Wash. 2d 859, 877-78 (1975). The extent to which a

12 woman qualifies for or plays on a men’s team “must be governed

13 solely by her abilities, as judged by those who coach her.”

14 Force, 570 F. Supp. at 1031; Lantz, 620 F. Supp. at 665. Courts

15 have repeatedly emphasized that “the mandate of equality of

16 opportunity does not dictate a disregard of differences in

17 talents and abilities among individuals. There is no right to a

18 position on an athletic team. There is a right to compete for it

19 on equal terms.” Hoover v. Meiklejohn, 430 F. Supp. 164, 171 (D.

20 Colo. 1977); see Force, 570 F. Supp. at 1031; Lantz, 620 F. Supp.

21 at 665; see also Croteau, 686 F. Supp. at 554.

22

Proof of discriminatory intent or purpose is required to

23 show a violation of the Equal Protection Clause. City of

24 Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194

25 (2003). Such intent is satisfied by a showing that the

26 defendants either intentionally discriminated or acted with

27 deliberate indifference. Flores, 324 F.3d at 1135.

28 Discriminatory intent “implies that the decision maker . . .

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1 selected or reaffirmed a particular course of action at least in

2 part ‘because of’ not merely ‘in spite of’ its adverse effects

3 upon an identifiable group.” Personnel Adm’r v. Feeney, 442 U.S.

4 256, 279 (1979); see Flores v. Pierce, 617 F.2d 1386, 1389 (9th

5 Cir. 1980) (recognizing that the deviation from previous

6 procedural patterns and the adoption of an ad hoc method of

7 decision making without reference to fixed standards, among other

8 things, were sufficient to raise an inference of pretext on an

9 equal protection claim). Deliberate indifference may be found if

10 a school official or administrator responds or fails to respond

11 to known discrimination in a manner that is clearly unreasonable.

12 See Flores, 324 F.3d at 1135.

13

“A person ‘subjects’ another to the deprivation of a

14 constitutional right, within the meaning of section 1983, if he

15 does an affirmative act, participates in another’s affirmative

16 act, or omits to perform an act which he is legally required to

17 do that causes the deprivation of which complaint is made.”

18 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “The

19 inquiry into causation must be individualized and focus on the

20 duties and responsibilities of each individual defendant whose

21 acts or omissions are alleged to have caused a constitutional

22 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

23

“[D]irect, personal participation is not necessary to

24 establish liability for a constitutional violation.” Kwai Fun

25 Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004)).

26 Supervisors can be held liable under § 1983:

27

(1) for setting in motion a series of acts by others,

or knowingly refusing to terminate a series of acts by

28

others, which they knew or reasonably should have known

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1

would cause others to inflict constitutional injury;

(2) for culpable action or inaction in training,

2

supervision, or control of subordinates; (3) for

acquiescence in the constitutional deprivation by

3

subordinates; or (4) for conduct that shows a “reckless

or callous indifference to the rights of others.”

4

5 Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).

6 “The critical question is whether it was reasonably foreseeable

7 that the action of the particular . . . officials who are named

8 as defendants would lead to the rights violations alleged to have

9 occurred . . . .” Wong, 373 F.3d at 966. Moreover, the Ninth

10 Circuit has expressly held that school officials “are liable for

11 their own discriminatory actions in failing to remedy a known

12 [discriminatory] environment.” Oona R.S., 143 F.3d at 477

13 (affirming the district court’s holding that individual

14 defendants were not entitled to qualified immunity from the

15 plaintiff’s peer sexual harassment claim based upon a known

16 hostile environment).

17

In this case, plaintiffs’ claims are based upon their

18 contention that each individual defendant carried out a systemic

19 policy of providing unequal athletic opportunities to female

20 students at UC Davis. The court held that claims arising from

21 the “elimination” of women’s wrestling opportunities and the

22 implementation of the “wrestle-off” policy were time-barred, but

23 noted that defendants’ conduct with respect to these alleged

24 events might be relevant to their state of mind. However,

25 plaintiffs’ evidence focused in disproportionately large part

26 upon these events. Accordingly, for the sake of completeness,

27 the court addresses the matters herein where appropriate.

28 /////

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1

A. Pam Gill-Fisher

2

Based upon the evidence submitted, the court concludes that

3 defendant Gill-Fisher is not liable for alleged Equal Protection

4 violations arising out of the alleged systemic policy of

5 providing unequal athletic opportunities because she had no

6 authority or control over the provision or elimination of

7 athletic opportunities. Accordingly, she cannot be found to have

8 caused any deprivation to plaintiffs as a result of her action or

9 inaction.

10

The undisputed evidence submitted at trial establishes that

11 Gill-Fisher’s duties at UC Davis did not include any authority to

12 change the composition of the athletic participation

13 opportunities offered to student-athletes. Gill-Fisher’s duties

14 included the supervision of eight sports, coordination of sports

15 medicine, oversight of the Compliance Office regarding NCAA and

16 UC Davis athletic eligibility, and oversight of academic

17 advising. While Gill-Fisher served as the Senior Woman

18 Administrator, a position required by the NCAA, the position did

19 not give Gill Fisher any additional authority or responsibility

20 at UC Davis regarding Title IX or gender equity. Gill-Fisher

21 also participated on various evaluation and reporting committees

22 regarding Title IX. However, her participation in such

23 committees did not grant her any authority to direct or change

24 either athletic department policy or the actual composition of

25 the UC Davis ICA program.

26

Moreover, to the extent that Gill-Fisher was involved in

27 discussions and recommendations regarding gender equity at UC

28 Davis, the record is replete with evidence of her consistent,

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1 enduring efforts to increase athletic participation opportunities

2 for women, achieve equitable participation opportunities for

3 women proportionate to enrollment, and ensure equal treatment in

4 coaching, practice facilities, competition, and all resources

5 available to varsity athletes. Indeed, there is absolutely no

6 credible evidence that Gill-Fisher ever ceased or even lightened

7 her efforts to bring full gender equality to the intercollegiate

8 athletic program at UC Davis. Since the enactment of Title IX,

9 Gill-Fisher consistently recommended that more women’s

10 intercollegiate opportunities be offered, including

11 recommendations, inter alia, that (1) gymnastics and badminton be

12 added in 1972; (2) cross-country be added in 1978; (3) crew and

13 golf be added in 1992; (4) water polo be added in 1993; and (5)

14 more women’s intercollegiate athletic sports be added in 2003.

15

Further, Gill-Fisher steadfastly maintained that UC Davis

16 needed to achieve gender equity both through the consistent

17 addition of women’s participation opportunities and the

18 management of men’s participation opportunities. In addition to

19 her recommendations that UC Davis add more teams, Gill-Fisher

20 alerted decision-makers to the problems in disproportionate

21 athletic opportunities in reports and memos in 1972, 1978, 1989,

22 1990, 1991, 1992, 1993, 1994, and 1996. She also participated in

23 subsequent gender equity reports, which noted the need to

24 consistently evaluate whether the athletic participation

25 opportunities available to men and women were proportional to

26 their respective enrollment. Even after UC Davis elevated three

27 club teams to varsity status in 1995, Gill-Fisher informed the

28 Athletic Director that the participation discrepancy was not

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1 solved. Further, Gill-Fisher advocated for roster management of

2 men’s teams, particularly football, to aid in achieving gender

3 proportionality since 1990.

4

Gill-Fisher’s strong advocacy for gender equality and

5 recommendations to decision-makers both directed attention to the

6 issue and resulted in positive change. However, the strength and

7 effectiveness of her advocacy does not equate to authority or

8 responsibility over the composition of the athletic program.

9 Indeed, the court finds it ironic that, in effect, plaintiffs

10 seek to hold Gill-Fisher liable for equal protection violations

11 because she consistently, and at many times unsolicitedly,

12 advocated for the need for more equality in the provision of

13 women’s athletic participation opportunities and because such

14 advocacy was often effective.

15

Finally, the court concludes that Gill-Fisher’s interaction

16 with plaintiffs and the other women wrestlers at UC Davis neither

17 evinces hostile intent toward female athletes generally or female

18 wrestlers specifically. Gill-Fisher was supportive of female

19 wrestlers; she even had Johnston speak to her classes regarding

20 her experience as a female wrestler. Gill-Fisher encouraged

21 female wrestlers to develop women’s wrestling as a sport; she

22 suggested that female wrestlers develop a club sport to establish

23 an identity beyond individual female participants with unofficial

24 status on the men’s team. Gill-Fisher was not involved with any

25 decision to remove plaintiffs from the wrestling team; those

26 decisions rested firmly with both Burch and Zalesky. Finally,

27 although she had no role or responsibility in developing,

28 approving, or supervising the procedure for try-outs, Gill-Fisher

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1 was aware that plaintiffs were given an opportunity to try-out

2 for the men’s intercollegiate wrestling team, using the standards

3 that applied to all interested student wrestlers. Based upon

4 this evidence, the court cannot conclude that Gill-Fisher

5 violated plaintiffs’ rights in relation to their opportunity to

6 participate in women’s wrestling.

7

Accordingly, the court concludes that plaintiffs have failed

8 to substantiate any claim that defendant Gill-Fisher violated the 9 Equal Protection Clause through her actions or inaction.54

10

B. Greg Warzecka

11

Based upon the evidence submitted, the court also concludes

12 that defendant Warzecka is not liable for alleged Equal

13 Protection violations arising out of the alleged systemic policy

14 of gender discrimination through the unequal provision of 15 athletic opportunities55 because, to the extent plaintiffs could

16

17

18

54 Alternatively, for the reasons set forth below, defendant Gill-Fisher would also be entitled to qualified

19 immunity.

20

55 In plaintiffs’ Proposed Conclusions of Law, they assert that defendants violated the Equal Protection Clause through (1)

21

inequitably allocating varsity athletic participation opportunities on the basis of sex; and (2) engaging in a

systematic discrimination against female students in the 22 operation of the varsity athletic program. Plaintiffs do not

articulate the difference between these two theories of 23 liability. Moreover, the gravamen of both theories is that

defendants discriminated against female students on the basis of 24 gender in its allocation of athletic opportunities and failure to

promote additional women’s club teams to varsity status. 25 Accordingly, the court address both theories of liability on this

basis. 26

To the extent that plaintiffs intend to claim some policy or 27 practice of discrimination outside the allocation of athletic
participation opportunities, there is no credible evidence to 28 support such a claim.

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1 prove such a violation, he is entitled to qualified immunity.56

2 Similarly, the court concludes that defendant Warzecka is also

3 entitled to qualified immunity for any Equal Protection

4 violations arising out of (1) the failure to impose separate and

5 distinct requirements for women student-athletes to qualify for

6 the men’s varsity wrestling team; or (2) the failure to create a

7 separate women’s varsity wrestling team.

8

1. Qualified Immunity

9

“Government officials who perform discretionary functions

10 generally are entitled to qualified immunity from liability for

11 civil damages ‘insofar as their conduct does not violate clearly

12 established statutory or constitutional rights of which a

13 reasonable person would have known.’” Flores, 324 F.3d at 1134 14 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).57

15 “Qualified immunity shields federal and state officials from

16 money damages unless a plaintiff pleads facts showing (1) that

17 the official violated a statutory or constitutional right, and

18 (2) that the right was ‘clearly established’ at the time of the

19 challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

20

21

56 The court also notes that the evidence is not wholly

conclusive regarding Warzecka’s responsibility for any 22 constitutional deprivation. While Warzecka testified that he had

significant involvement in decisions about adding or eliminating 23 sports in the intercollegiate athletic program, he also testified

that these decisions were always made collaboratively. Because 24 the court concludes that Warzecka is entitled to qualified

immunity, it need not decide whether “significant involvement” is 25 sufficient to confer liability under § 1983.

26

57 Because qualified immunity is an affirmative defense,

defendants bear the burden of establishing they are entitled to

27 it. Provencio v. Vazquez, 258 F.R.D. 626, 633 (E.D.Cal. 2009) (

citing Crawford-El v. Britton, 523 U.S. 574, 586-87 (1998);

28 Benigni v. Hemet, 879 F.2d 473, 479 (9th Cir. 1988)).

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1 (2011). It is within the court’s “sound discretion” to address

2 these two prongs in any sequence it deems appropriate. Pearson

3 v. Callahan, 555 U.S. 223, 236 (2009).

4

“For a constitutional right to be clearly established, its

5 contours must be sufficiently clear that a reasonable official

6 would understand that what he is doing violates that right.”

7 Hope v. Pelzer, 536 U.S. 730, 739 (2002). However, a court “need

8 not find a prior case with identical, or even ‘materially

9 similar,’ facts.” Flores, 324 F.3d at 1136-37 (quoting Hope, 536

10 U.S. 730). Indeed, “officials can still be on notice that their

11 conduct violates established law even in novel factual

12 circumstances.” Hope, 536 U.S. at 741. Rather, a court must

13 “determine whether the preexisting law provided the defendants

14 with fair warning that their conduct was unlawful.” Flores, 324

15 F.3d at 1137 (internal quotations omitted) (noting that case law

16 can render the law clearly established). Specifically, the

17 Supreme Court has held:

18

For a constitutional right to be clearly established,

its contours “must be sufficiently clear that a

19

reasonable official would understand that what he is

doing violates that right. This is not to say that an

20

official action is protected by qualified immunity

unless the very action in question has previously been

21

held unlawful; but it is to say that in the light of

preexisting law the unlawfulness must be apparent.”

22

23 Hope, 536 U.S. at 739 (quoting Anderson v. Creighton, 483 U.S.

24 635, 640 (1987)); see al-Kidd, 580 F.3d at 971 (noting that

25 “dicta, if sufficiently clear, can suffice to clearly establish a

26 constitutional right.”) (internal quotation omitted)). “[T]he

27 proper fact-specific inquiry . . . is not whether the law is

28 settled, but whether, in light of clearly established law and the

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1 information available to him, a reasonable person in

2 [defendant’s] position could have objectively believed his

3 actions to be proper.” Floyd v. Laws, 929 F.2d 1390, 1394 (9th

4 Cir. 1991) (citing Anderson, 483 U.S. at 641).

5

2. Equal Athletic Participation Opportunities for

Women

6

7

At the time of the alleged discriminatory conduct in this

8 case, the law, as set forth by the United States Supreme Court

9 and the Ninth Circuit, was clear that the Equal Protection Clause

10 of the Fourteenth Amendment creates the right to be free from

11 purposeful discrimination in education by state actors.

12 Mississippi Univ. for Women, 458 U.S. at 731; Oona, R.S., 143

13 F.3d at 476 (holding that it was clearly established well prior

14 to 1988 that the Equal Protection clause proscribed any

15 purposeful discrimination by state actors on the basis of

16 gender). More specifically, as early as 1982, the Ninth Circuit

17 recognized that the Equal Protection Clause may be violated when

18 overall athletic opportunities are unequal as well as when there

19 is inequality in opportunity in a given sport. Clark, 695 F.2d

20 at 1130-31 (acknowledging the Equal Protection right, but holding

21 that the discrimination in favor of an all girls volleyball team

22 was substantially related to an important governmental interest).

23

However, during the entirety of the time that plaintiffs

24 were students at UC Davis, there was no clearly established law

25 regarding how inequality in athletic participation is measured

26 for purposes of the Equal Protection Clause. Only a single

27 district court held that there were triable issues of fact

28 regarding whether a university violated the Equal Protection

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1 Clause, when its enrollment was comprised of 50% women, but only

2 33% of its athletic participants were women. Haffer, 678 F.

3 Supp. at 525-27.

4

Moreover, there was no clearly established law regarding how

5 the Title IX framework does or does not impact a claim for

6 unequal treatment under the Equal Protection Clause. Indeed,

7 until the Supreme Court’s 2009 decision in Fitzgerald v.

8 Barnstable, 555 U.S. 246 (2009), the Circuits were split

9 regarding whether Title IX was meant to be the exclusive

10 mechanism for addressing gender discrimination in schools.

11 Further, in some instances, courts held that compliance with

12 Title IX did not equate to compliance with the Equal Protection

13 Clause. See Lantz, 620 F. Supp. at 665-66 (noting that Title IX

14 was neutral regarding mixed competition in contact sports, but

15 holding that the Equal Protection clause required giving the

16 female plaintiff an opportunity to try out); Force, 570 F. Supp.

17 at 1024-25, 1031 (same). However, in holding that an

18 institution’s decision to eliminate men’s, but not women’s,

19 swimming did not violate the Equal Protection Clause, the Seventh

20 Circuit has noted that “insofar as the University actions were

21 taken in an attempt to comply with the requirements of Title IX,

22 plaintiffs’ attack on those actions is merely a collateral attack

23 on the statute and regulations and is therefore impermissible.”

24 Kelley v. Bd. of Trs., 35 F.3d 265, 272 (7th Cir. 1994).

25

At bottom, the parties have failed to point to, and the

26 court cannot find, any cases that are akin to the one at bar.

27 Specifically, there is no case law that teaches that compliance

28 with Prong Two exculpates defendants from liability for Equal

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1 Protection violations. Conversely, there is no case law that

2 teaches that institutions must meet substantial proportionality,

3 as defined by Title IX’s regulations or interpretations, to

4 comply with the Equal Protection Clause. There is also no case

5 law regarding when an individual actor becomes liable for the

6 unequal provision of athletic opportunities in an athletic

7 program that serves a university with an enrollment of between 8 approximately 18,000 to 21,00058 students; it is unclear whether

9 a school official becomes liable for that disparity the moment he

10 or she is hired, a year later, or five years later. It is under

11 this patent ambiguity that we address the applicability of

12 qualified immunity to plaintiffs’ almost wholly unique claims for

13 the alleged systemic, unequal provision of athletic opportunities

14 for women at UC Davis.

15

In this case, it is undisputed that, at all relevant times,

16 defendant Warzecka believed the UC Davis intercollegiate

17 wrestling program was Title IX compliant under Prong Two. His

18 belief was not patently, nor even arguably, unreasonable under

19 the circumstances. As demonstrated at trial, even a reknowned

20 expert in Title IX, who has spent her career testifying on behalf

21 of female student-athletes, believed that UC Davis was compliant

22 under Prong Two. There was no case law that put defendant on

23 clear notice that UC Davis was not in compliance with Prong Two.

24 Indeed, as set forth above, the court finds that the issues

25 relating to UC Davis’ compliance are difficult. Therefore,

26 because (1) there was (and is) no clearly established law

27

28

58 The court discerns these numbers from the EADA reports.

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1 regarding whether Title IX compliance establishes compliance with

2 the Equal Protection Clause; (2) defendant Warzecka had an

3 objectively and subjectively reasonable belief that UC Davis was

4 compliant with Title IX’s effective accommodation provision under

5 Prong Two; and (3) a reasonable person could conclude that

6 compliance with the effective accommodation requirements of Title

7 IX satisfied the requirements of the Equal Protection Clause,

8 defendant Warzecka is entitled to qualified immunity.

9

Moreover, while a reasonable school official might have been

10 on notice that substantial proportionality may not necessarily be

11 achieved with a 5 percent disparity between enrollment and

12 athletic participation, a reasonable official was not on notice

13 that such a disparity would violate the Equal Protection Clause.

14 When defendant became Athletic Director in 1995, women’s actual

15 participation opportunities were at 211 and there was a 20

16 percent disparity between the female enrollment and the female

17 participation in intercollegiate athletics. The next year the

18 disparity had decreased to 11 percent and the actual

19 participation opportunities had risen to 348. In 1998-1999, when

20 the first plaintiff entered the University, UC Davis had its

21 highest number of female participation opportunities, 426, and

22 the disparity had decreased to 6 percent. While the following

23 three years fluctuated between 7 percent, 9 percent, and back to

24 7 percent, in plaintiff Mansourian and Mancuso’s final years at

25 Davis, the disparity had decreased to 6 percent and 5 percent,

26 respectively. Because there was (and is) no statutory,

27 regulatory, or common law that defines the measure of “comparable

28 equality” for purposes of Equal Protection, the court cannot find

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1 that a reasonable person in defendant Warzecka’s position would

2 not think his efforts to narrow the gender proportion disparity

3 to 5 percent were proper.

4

Accordingly, the court concludes that defendant Warzecka is

5 entitled to qualified immunity for plaintiffs’ claim arising out

6 of any alleged systemic policy of providing unequal athletic 7 opportunities to female student-athletes.59

8

3. Separate Requirements for Try-Outs or Provision of

a Separate Women’s Wrestling Team

9

10

At the time of the alleged discriminatory conduct in this

11 case, the law, as set forth by the few federal courts and state

12 courts to address this issue, provided that the Equal Protection

13 Clause required that women athletes be given the opportunity to

14 try out for a men’s team if there was not a comparable women’s

15 team. Force, 570 F. Supp. at 1031; Lantz, 620 F. Supp. at 665;

16 Hoover, 430 F. Supp. at 171; see Israel, 182 W. Va. at 459-60.

17 However, all of these cases emphasized that there was no

18 constitutional or statutory right to make the team. Id.; see

19 Croteau, 686 F. Supp. at 554. Moreover, each of these cases

20 expressly noted that the right to compete must be on equal terms

21 as the other student-athletes, and the decision on whether a

22

23

59 Further, to the extent plaintiffs assert claims based

upon the failure to (1) create gender equity plans with 24 timetables and detailed plans; or (2) formally assess the

athletic interests of current and prospective students, 25 defendants are clearly entitled to qualified immunity.

Plaintiffs cite, and the court cannot find, any authority that 26 would put an official on any type of notice that such failures

would constitute an Equal Protection Clause violation. Moreover,

27 the court notes that plaintiffs provide absolutely no authority

to support their contention that these failures equate to the

28 denial of “equal protection of the law.”

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1 female makes or plays on a team “must be governed solely by her

2 abilities, as judged by those who coach her.” Force, 570 F.

3 Supp. at 1031; Lantz, 620 F. Supp. at 665; see Croteau, 686 F.

4 Supp. at 554; Hoover, 430 F. Supp. at 171; see Israel, 182 W. Va.

5 at 459-60; see also Brenden, 477 F.2d at 1302 (8th Cir. 1973).

6

With respect to women athletes’ opportunity to participate

7 on men’s wrestling team, one of the three district court cases to

8 address the issue noted that “it is far from clear that the

9 refusal to sanction a mixed-gender contact sport violates the

10 Fourteenth Amendment.” Barnett v. Texas Wrestling Ass’n, 16 F.

11 Supp. 2d 690, 695-96 (N.D. Tex. 1998) (noting that the defendants

12 failed to raise the issue on summary judgment). However, both of

13 the other district courts to address the issue have held that a

14 female athlete should be allowed to try out for the male wresting

15 team. Saint v. Nebraska Sch. Activities Ass’n, 684 F. Supp. 626

16 (D. Neb. 1988); ; see also Adams v. Baker, 919 F. Supp. 1496,

17 1503 (D. Kan. 1996). In Saint, the plaintiff was a sophomore in

18 high school who requested permission to participate on the boys’

19 high school wrestling team. However, according to league rules,

20 girls were not permitted to participate on the boys’ team. Id.

21 at 627. The league asserted that the regulation should be upheld

22 because it sought to protect “the health and safety of the female

23 athletes.” Id. at 628. The league presented expert testimony

24 that school-age females are generally at a competitive

25 disadvantage in co-ed contact sports because (1) “they have a

26 smaller total body mass with less of the total mass being muscle

27 and more being fat tissue”; (2) “female strength levels are less

28 than that for males”; (3) “female speed capabilities are not

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1 comparable to the male”; and (4) “female muscle power output is

2 considerably less than [that] of males.” Id. at 629. The expert

3 concluded that these differentials are “sufficiently great enough

4 to create a significant competitive disadvantage for the female

5 and raise her potential for injury to a high level.” Id.

6

The court noted that such expert testimony “contains nothing

7 more than generalized statements applicable to typical school-age

8 females in the population at large” and that plaintiff had

9 already shown that she was physically capable to join the team.

10 The court reasoned that “any boy may join the wrestling team,

11 regardless of his body size, strength level, speed capability,

12 muscle power output or any other factor which might have a

13 bearing on his potential for injury,” and that “such a

14 paternalistic gender-based classification,” which resulted from

15 “ascribing a particular trait or quality to one sex, when not all

16 share that trait or quality, [was] not only inherently unfair,

17 but generally tends only to perpetuate ‘stereotypical notions’

18 regarding the proper roles of men and women.” Id. (quotations

19 ommitted). Accordingly, the court held that plaintiff had shown

20 a high probability of success on the merits and issued a

21 temporary restraining order preventing the league from refusing

22 to permit the plaintiff to wrestle on the boys’ wrestling team.

23 Id.

24

In this case, as an initial matter, there is no credible

25 evidence that defendant Warzecka had a discriminatory animus

26 towards or was hostile to female wrestlers. To the contrary, as

27 set forth above, the court found that Warzecka was willing to

28 make special exceptions regarding club sport requirements,

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1 training room access, and varsity weight room access to better

2 enable women wrestlers, including plaintiffs, to participate in

3 wrestling after Burch cut them from the men’s team.

4

Second, to the extent that such conduct constitutes an Equal

5 Protection Clause violation, defendant was not on notice that

6 requiring women student-athletes to compete for a position on a

7 men’s intercollegiate team against men student-athletes using the

8 same standard set of rules and criteria was a constitutional

9 violation. Rather, as set forth above, the consistent holding of

10 the body of law in this area is that women should be entitled to

11 a right to compete for a spot on a men’s team under equal terms.

12 In fact, the reasoning behind these decisions would counsel

13 against utilizing separate criteria for different genders. By

14 implicitly stating that no woman could ever successfully compete

15 against a man, Warzecka and UC Davis would potentially be

16 “ascribing a particular trait or quality to one sex, when not all

17 share that trait or quality”; “such a paternalistic gender-based

18 classification” could serve to perpetuate ‘stereotypical notions’

19 regarding the proper roles of men and women” as student-athletes,

20 generally, and as wrestlers, specifically. See Saint, 684 F.

21 Supp. at 629. Moreover, plaintiffs fail to cite to, and the

22 court cannot find, any case that required an institution to apply

23 different standards to women that wished to participate on a

24 men’s team. Accordingly, under the state of the law at the time

25 plaintiffs were students, defendant Warzecka did not violate a

26 clearly established right by requiring female wrestlers to

27 compete against male wrestlers under the same conditions; rather,

28 “a reasonable person in [his] position could have objectively

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1 believed his actions to be proper.” Houghton v. South, 965 F.2d

2 1532, 1534 (9th Cir. 1992) (quotations and citations omitted).

3

Finally, defendant was not on notice that failure to sponsor

4 a separate women’s wrestling team was a constitutional violation.

5 Again, plaintiffs fail to cite to, and the court cannot find, any

6 case that required an institution to provide a separate women’s

7 team to comply with the Equal Protection Clause. Cf. Hoover, 430

8 F. Supp. at 172 (noting that the defendants may comply with the

9 Equal Protection Clause by (1) fielding separate teams for males

10 and females; (2) discontinuing the sport as an interscholastic

11 activity; or (3) permitting both sexes to compete on the same

12 team).

13

Therefore, the court concludes that defendant Warzecka is

14 entitled to qualified immunity for plaintiffs’ claims arising out

15 of any alleged failure to create separate standards for

16 competition or separate varsity opportunities for women

17 wrestlers.

18

C. Robert Franks

19

For the reasons set forth above, the court likewise

20 concludes that defendant Franks is not liable for alleged Equal

21 Protection violations arising out of (1) the alleged systemic

22 policy of gender discrimination through the unequal provision of

23 athletic opportunities; (2) the failure to impose separate and

24 distinct requirements for women student-athletes to qualify for

25 the men’s varsity wrestling team; or (3) the failure to create a

26 separate women’s varsity wrestling team. To the extent

27

28

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1 plaintiffs could prove any such violations, he is entitled to 2 qualified immunity.60

3

With respect to plaintiffs’ claims for systemic violations,

4 Franks, like Warzecka, consistently and reasonably believed that

5 UC Davis was complying with its gender equity requirements under

6 Title IX. Further, like Warzecka, Franks saw increasingly

7 smaller proportional disparities between the number of female

8 enrollment and the number of female athletic participation

9 opportunities. Under the ambiguous state of the law in this area

10 at the time plaintiffs were students, the court concludes that

11 defendant Franks is entitled to qualified immunity for

12 plaintiffs’ claim arising out of any alleged systemic policy of

13 providing unequal athletic opportunities to female student-

14 athletes.

15

With respect to plaintiffs’ claims arising from women’s

16 wrestling opportunities, there is no credible evidence that

17 defendant Franks had a discriminatory animus towards or was

18 hostile to female wrestlers. To the contrary, as set forth

19 above, the court found that Franks immediately reinstated

20 plaintiffs on the wrestling team once the complaint was filed

21 with OCR. He met with plaintiffs, investigated their requests,

22

23

60 The court also notes that the evidence is not wholly

conclusive regarding Frank’s responsibility for any 24 constitutional deprivation. While Franks testified that the

intercollegiate athletic program and Athletic Director reported 25 directly to him, the Vice Chancellor for Student Affairs

testified that any problems under her province, including the 26 intercollegiate athletic program, was ultimately her

responsibility. Because the court concludes that Franks is

27 entitled to qualified immunity, it need not decide whether

Frank’s level of responsibility is sufficient to confer liability

28 under § 1983.

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1 and ultimately relayed the administration’s agreement to waive

2 the number of students required to form a women’s wrestling club

3 and to allow the club to practice at the same time as the

4 intercollegiate team. Franks was aware that in Fall 2001,

5 Zalesky intended to select team members based on the skills they

6 demonstrated, and believed such a process was fair to all

7 student-athletes trying out for a place on the men’s wrestling

8 team. For the same reasons set forth in the court’s discussion

9 of defendant Warzecka’s liability, the court concludes that

10 defendant Franks is entitled to qualified immunity because he did

11 not violate a clearly established right by requiring female

12 wrestlers to compete against male wrestlers under the same

13 conditions in order to make the varsity squad or by failing to

14 create a separate women’s team.

15

D. Larry Vanderhoef

16

Finally, the court similarly concludes that defendant

17 Vanderhoef is entitled to qualified immunity for any alleged

18 Equal Protection violations arising out of (1) the alleged

19 systemic policy of gender discrimination through the unequal

20 provision of athletic opportunities; (2) the failure to impose

21 separate and distinct requirements for women student-athletes to

22 qualify for the men’s varsity wrestling team; or (3) the failure

23 to create a separate women’s varsity wrestling team. Vanderhoef

24 was informed and, like Warzecka and Franks, reasonably believed

25 that UC Davis was Title IX compliant at all relevant times.

26 Vanderhoef was further informed, and reasonably believed, that

27 the situation involving the women’s wrestlers had been

28 appropriately resolved. Under the law in existence at the time

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1 students were plaintiffs, Vanderhoef’s actions or inaction did

2 not violate a clearly established constitutional right.

3 Accordingly, he is not liable for any alleged Equal Protection

4 Clause violations.

5 III. Damages

6

Because, as set forth above, defendant UC Davis failed to

7 demonstrate a continuing practice of program expansion,

8 plaintiffs are entitled to damages for the actual harm they

9 suffered as female students at UC Davis who were interested in

10 participating in intercollegiate athletics. However, because

11 plaintiffs could not demonstrate that defendant Gill-Fisher

12 caused any constitutional deprivation and because all individual

13 defendants are entitled to qualified immunity for any alleged

14 constitutional violations, plaintiffs are not entitled to

15 punitive damages. As this stage of the litigation dealt with

16 liability and as the parties have not fully briefed all issues

17 relating to damages, the court makes no further rulings regarding

18 potential limitations on the measure of damages in this case.

19

The court notes, though, that it finds the evolution and

20 potential impacts of this case troubling. It has been clear to

21 the court throughout the arduous eight years of litigation that,

22 for plaintiffs, this case has always been about wrestling. Based

23 upon (1) blatant misrepresentations by a person plaintiffs

24 trusted, who manipulated such trust for personal motives wholly

25 unrelated to gender equity; (2) subsequent misinterpretations by

26 plaintiffs of the conduct of UC Davis athletic administrators,

27 who undoubtedly had the best interest of all their students at

28 heart; and (3) interference and advocacy by media and public

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1 figures, who were unaware of all the facts, plaintiffs believed

2 that they had been wronged. Almost four years ago, the court

3 held, however, that plaintiffs claims arising out of any alleged

4 elimination of wrestling and implementation of the “wrestle-off”

5 policy were time-barred. Based upon a very liberal reading of

6 the complaint and arguments advanced only in oral argument on

7 defendants’ motion, the court found that plaintiffs had a viable

8 claim relating to the entire athletic program’s provision of

9 athletic opportunities to women, a claim that these plaintiffs

10 had never previously advanced.

11

Moreover, the subsequent litigation and bench trial

12 demonstrated that, for plaintiffs, this case was still about

13 wrestling. Indeed, this claim ceased even putatively being about

14 corrective action for the entirety of UC Davis female students

15 four years ago, when the class claims were dismissed and

16 plaintiffs lacked standing to pursue injunctive relief. Rather,

17 such relief was accorded through a class action settlement, the

18 stipulated Judgement and Order for which was entered on October

19 20, 2009. (See Brust v. Regents of the Univ. of Cal., No. 2:07-

20 cv-1488, [Docket #121].)

21

Finally, the evidence at trial bore out that while UC Davis

22 failed to comply with Title IX during the time that plaintiffs

23 were students at UC Davis, plaintiffs’ complaints about

24 defendants’ conduct relating to wrestling were meritless. This

25 troubling juxtaposition of the court’s conclusions would seem to

26 place severe limitations on the damages these plaintiffs may

27 recover. However, the court leaves any such limitations for

28

146

Case 2:03-cv-02591-FCD -EFB Document 628 Filed 08/03/11 Page 147 of 147

1 further argument on the motions in limine to precede the damages

2 phase of trial and any such determinations to they jury.

3

CONCLUSION

4

For the foregoing reasons, plaintiffs have prevailed on

5 their claims against UC Davis for ineffective accommodation of

6 female student-athletes under Title IX based upon UC Davis’

7 failure to demonstrate a continuing practice of program

8 expansion. However, plaintiffs have not prevailed on any other

9 theories of Title IX liability. Moreover, plaintiffs have not

10 prevailed on their claims for Equal Protection Clause violations

11 against any of the individual defendants. As such, defendants

12 Larry Vanderhoef, Greg Warzecka, Pam Gill-Fisher, and Robert

13 Franks are DISMISSED.

14

IT IS SO ORDERED.

15 DATED: August 3, 2011

16

FRANK C. DAMRELL, JR.

17

UNITED STATES DISTRICT JUDGE

18

19

20

21

22

23

24

25

26

27

28

147

 
 Case 2:03-cv-02591-KJM-EFB Document 662 Filed 04/09/12 Page 1 of 3

1 Noreen Farrell, SBN 191600 (nfarrell@equalrights.org) Jamie E. Dolkas, SBN 262289 (jdolkas@equalrights.org)
2 EQUAL RIGHTS ADVOCATES 180 Howard Street, Suite 300
3 San Francisco, CA 94105 Telephone: (415) 621-0672
4 Facsimile: (415) 621-6744
5 Attorneys for Plaintiffs AREZOU MANSOURIAN, CHRISTINE WING-SI NG, and LAUREN MANCUSO
6

7 Nancy J. Sheehan, SBN 109419 David P.E. Burkett, SBN 241896
8 PORTER | SCOTT 350 University Avenue, Suite 200
9 Sacramento, California 95825 Telephone: (916) 929-1481
10 Facsimile: (916) 927-3706
11 Attorneys for Defendants REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARRY VANDERHOEF (erroneously sued as LAWRENCE VANDERHOEF),
12 GREG WARZECKA, PAM GILL-FISHER, and ROBERT FRANKS
13 Additional Plaintiffs Counsel on Signature Page
14

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17

[Sacramento Division]

18 AREZOU MANSOURIAN; LAUREN MANCUSO; and CHRISTINE WING-SI NG,
19
Plaintiffs, 20
vs. 21
REGENTS OF THE UNIVERSITY OF 22 CALIFORNIA, et al.

23

Defendants.

24

CASE NO. S-03-02591 KJM/EFB
STIPULATED REQUEST FOR DISMISSAL OF ACTION WITH PREJUDICE AND [proposed] ORDER THEREON

25

26

27

28
{01004208.DOC}
29 STIPULATED REQUEST FOR DISMISSAL OF ACTION WITH PREJUDICE AND [PROPOSED] ORDER THEREON 30 CASE NO. S-03-2591 KJM/EFB

Case 2:03-cv-02591-KJM-EFB Document 662 Filed 04/09/12 Page 2 of 3

1

IT IS HEREBY STIPULATED, by and between Plaintiffs AREZOU MANSOURIAN,

2 CHRISTINE WING-SI NG, and LAUREN MANCUSO (“PLAINTIFFS”) and THE REGENTS OF

3 THE UNIVERSITY OF CALIFORNIA (“DEFENDANT REGENTS”); and LARRY

4 VANDERHOEF, ROBERT FRANKS, GREG WARZECKA, and PAM GILL-FISHER 5 (“INDIVIDUAL DEFENDANTS1”) by and through their respective counsel of record, that the

6 entire above-captioned action be dismissed with prejudice. See Fed. R. Civ. P. 41(a)(1)(A)(ii)

7 (requiring stipulation for voluntary dismissals after responsive pleadings have been filed.)

8

IT IS HEREBY SO AGREED.

9
10 DATED: April 6, 2012 11

Respectfully submitted,
THE STURDEVANT LAW FIRM A Professional Corporation

12

EQUAL RIGHTS ADVOCATES

13

DUCKWORTH PETERS LEBOWITZ

14

OLIVIER LLP

15

EQUITY LEGAL

16

By: /s/ Noreen Farrell

NOREEN FARRELL

17

Attorneys for Plaintiffs

18 19 DATED: April 6, 2012

PORTER | SCOTT

20

By: /s/ Nancy J. Sheehan

21

NANCY J. SHEEHAN Attorneys for Defendants

22

23

24 ORDER
25 IT IS HEREBY ORDERED that the Complaint and any and all claims for relief in the above-
26

27

1 Former Defendant Lawrence (“Larry”) Swanson was dismissed with prejudice on November 5, 2010. (Docket #465)

28

{01004208.DOC}-1-
29 STIPULATED REQUEST FOR DISMISSAL OF ACTION WITH PREJUDICE AND [PROPOSED] ORDER THEREON 30 CASE NO. S-03-2591 KJM/EFB

Case 2:03-cv-02591-KJM-EFB Document 662 Filed 04/09/12 Page 3 of 3

1 referenced matter, U.S.D.C. E. D. Cal. Case No. 2:03-cv-02591-KJM-EFB, are hereby dismissed with

2 prejudice.

3

4

IT IS SO ORDERED.

5 DATED: ______________________ 6
7

By: _______________________________________ THE HONORABLE KIMBERLY J. MUELLER United States District Court Judge

8 Additional Plaintiffs’ Counsel:

9 James C. Sturdevant, SBN 94551 (jsturdevant@sturdevantlaw.com)

10

THE STURDEVANT LAW FIRM A Professional Corporation

11

354 Pine Street, Fourth Floor San Francisco, CA 94104

12

Telephone: Facsimile:

(415) 477-2410 (415) 477-2420

13 Monique Olivier, SBN 190385 (monique@dplolaw.com)

14

DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 Bush Street, Suite 1800

15

San Francisco, CA 94104 Telephone: (415) 433-0333

16 Facsimile: (415) 449-6556

17

Kristen Galles (SBN 148740) (kgalles@comcast.net) EQUITY LEGAL

18

10 Rosecrest Avenue Alexandria, VA 22301

19 Telephone: (703) 683-4491

20

21

22

23

24

25

26

27

28
{01004208.DOC}-2-
29 STIPULATED REQUEST FOR DISMISSAL OF ACTION WITH PREJUDICE AND [PROPOSED] ORDER THEREON 30 CASE NO. S-03-2591 KJM/EFB

 
 Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 1 of 55
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:03−cv−02591−KJM−EFB

CLOSED

Mansourian, et al v. Regents Davis, et al Assigned to: Judge Kimberly J. Mueller Referred to: Magistrate Judge Edmund F. Brennan Demand: $0 Case in other court: 08−16330 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/18/2003 Date Terminated: 04/12/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Arezou Mansourian

represented by James C. Sturdevant Sturdevant Law Firm A Professional Corporation 354 Pine Street 4th Floor San Francisco, CA 94104 (415) 477−2410 Fax: (415) 477−2420 Email: jsturdevant@sturdevantlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jora Thu Trang Equal Rights Advocates 180 Howard Street Suite 300 San Francisco, CA 94105 415−621−0672 Fax: 415−621−6744 Email: jtrang@equalrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Marie Galles Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683−4491 Fax: (703) 683−4636 Email: kgalles@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monique Olivier Duckworth Peters Lebowitz Olivier LLP 100 Bush Street Suite 1800 San Francisco, CA 94104 415−433−0333 Fax: 415−449−6556 Email: monique@dplolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noreen Ann Farrell Equal Rights Advocates 180 Howard Street Suite 300 San Francisco, CA 94105 (415) 621−0672

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 2 of 55

Fax: (415) 621−6744 Email: nfarrell@equalrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra A. Smith Equal Rights Advocates 180 Howard Street Suite 300 San Francisco, CA 94105 415−621−0672 Fax: 415−621−6744 Email: dsmith@equalrights.org TERMINATED: 10/14/2010

Jamie Elise Dolkas Equal Rights Advocates 180 Howard Street Suite 300 San Francisco, CA 94105 415−575−2383 Fax: 415−621−6744 Email: jdolkas@equalrights.org ATTORNEY TO BE NOTICED

Mark Thomas Johnson Schneider Wallace Cottrell Brayton Konecky, LLP 180 Montgomery Street Suite 2000 San Francisco, CA 94104−4207 (415) 421−7100 Fax: (415) 421−7105 Email: mjohnson@schneiderwallace.com TERMINATED: 01/09/2009

Whitney Bryn Stark Rukin Hyland Doria &Tindall LLP 100 Pine Street Suite 2150 San Francisco, CA 94111 415−421−1800 Fax: 415−421−1700 Email: wstark@rhdtlaw.com TERMINATED: 07/18/2011

Plaintiff Lauren Mancuso

represented by James C. Sturdevant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jora Thu Trang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Marie Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monique Olivier (See above for address)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 3 of 55

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra A. Smith (See above for address) TERMINATED: 10/14/2010

Jamie Elise Dolkas (See above for address) ATTORNEY TO BE NOTICED

Mark Thomas Johnson (See above for address) TERMINATED: 01/09/2009

Noreen Ann Farrell (See above for address) ATTORNEY TO BE NOTICED

Whitney Bryn Stark (See above for address) TERMINATED: 07/19/2011

Plaintiff
Nancy Nien−Li Chiang TERMINATED: 03/29/2007

represented by James C. Sturdevant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Marie Galles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monique Olivier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra A. Smith (See above for address) TERMINATED: 10/14/2010

Mark Thomas Johnson (See above for address) TERMINATED: 01/09/2009

Whitney Bryn Stark (See above for address) TERMINATED: 07/19/2011

Plaintiff Christine Wing−Si Ng

represented by James C. Sturdevant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jora Thu Trang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Marie Galles (See above for address)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 4 of 55
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monique Olivier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Noreen Ann Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra A. Smith (See above for address) TERMINATED: 10/14/2010
Jamie Elise Dolkas (See above for address) ATTORNEY TO BE NOTICED
Mark Thomas Johnson (See above for address) TERMINATED: 01/09/2009
Whitney Bryn Stark (See above for address) TERMINATED: 07/19/2011

V.
Defendant
Regents of the University of California, University of California at Davis

represented by David Pontus Eugene Burkett Porter Scott 350 University Avenue Suite 200 Sacramento, CA 95825 (916) 929−1481 Fax: (916) 927−3706 Email: dburkett@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Joan Sheehan Porter Scott, PC 350 University Avenue Suite 200 Sacramento, CA 95825 916−929−1481 Ext. 318 Fax: 916−927−3706 Email: nsheehan@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George A. Acero Porter Scott 350 University Avenue, Suite 200 Sacramento, CA 95825 (916) 929−1481 x434 Fax: (916) 927−3706 Email: gacero@porterscott.com TERMINATED: 08/12/2011
Michael William Pott

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 5 of 55

Porter Scott 350 University Avenue Suite 200 P.O. Box 255428 Sacramento, CA 95825 (916) 929−1481 x333 Fax: (916) 927−3706 Email: mpott@porterscott.com ATTORNEY TO BE NOTICED

Defendant
Lawrence Vanderhoef TERMINATED: 08/03/2011 also known as Larry − TERMINATED: 08/03/2011

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Joan Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George A. Acero (See above for address) TERMINATED: 08/12/2011

Michael William Pott (See above for address) ATTORNEY TO BE NOTICED

Defendant
Greg Warzecka TERMINATED: 08/03/2011

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George A. Acero (See above for address) TERMINATED: 08/12/2011

Michael William Pott (See above for address) ATTORNEY TO BE NOTICED

Defendant
Pam Gill−Fisher TERMINATED: 08/03/2011

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George A. Acero (See above for address) TERMINATED: 08/12/2011

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 6 of 55

Michael William Pott (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert Franks TERMINATED: 08/03/2011

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George A. Acero (See above for address) TERMINATED: 08/12/2011

Michael William Pott (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lawrence Swanson TERMINATED: 11/08/2010

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George A. Acero (See above for address) TERMINATED: 08/12/2011

Michael William Pott (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/18/2003
12/18/2003
12/18/2003 01/22/2004 01/22/2004 01/22/2004

# Docket Text
1 COMPLAINT; jury demand, fee status pd, receipt # 10471, assigned to Judge Frank C. Damrell Jr referred to Magistrate Judge Peter A. Nowinski (crf) (Entered: 12/19/2003)
2 ORDER REQUIRING JOINT STATUS REPORT by Judge Frank C. Damrell Jr informing the parties on the procedure to follow in pursuing this action (crf) (Entered: 12/19/2003)
3 ORDER re Discovery by Magistrate Judge Peter A. Nowinski informing the parties on the procedure to follow in pursuing this action (crf) (Entered: 12/19/2003)
4 WAIVER OF SERVICE by defendant Regents Davis on 1/5/04 (sk) (Entered: 01/23/2004)
5 WAIVER OF SERVICE by defendant Lawrence Vanderhoef on 1/5/04 (sk) (Entered: 01/23/2004)
6 WAIVER OF SERVICE by defendant Greg Warzecka on 1/5/04 (sk) (Entered: 01/23/2004)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 7 of 55

01/22/2004 01/22/2004 01/22/2004 01/22/2004 01/27/2004 02/02/2004
03/05/2004
03/05/2004 03/05/2004 03/12/2004 03/19/2004 04/16/2004 04/19/2004 04/23/2004 04/23/2004 04/27/2004
04/28/2004 04/29/2004 05/06/2004

7 WAIVER OF SERVICE by defendant Pam Gill−Fisher on 1/5/04 (sk) (Entered: 01/23/2004)
8 WAIVER OF SERVICE by defendant Robert Franks on 1/5/04 (sk) (Entered: 01/23/2004)
9 WAIVER OF SERVICE by defendant Lawrence Swanson on 1/5/04 (sk) (Entered: 01/23/2004)
10 PROOF OF SERVICE by plaintiffs of [9−1], [8−1], [7−1], [6−1], [5−1], [4−1] (sk) (Entered: 01/23/2004)
11 NOTICE by defendants of related case(s) CIV.S−04−38 WBS GGH (crf) (Entered: 01/27/2004)
12 NON−RELATED CASE ORDER by Judge Frank C. Damrell Jr ORDERING the court has determined that it is inappropriate to related or reassign the cases 03CV2591 FCD/PAn and 04CV38 WBS/GGH, and therefore declines to do so (cc: all counsel) (daw) (Entered: 02/02/2004)
13 NOTICE OF MOTION AND MOTION to dismiss case by dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson motion TO BE HEARD by Judge Frank C. Damrell Jr; Motion Hearing Set For 10:00 a.m. 4/16/04 (ds) (Entered: 03/08/2004)
14 MEMORANDUM OF POINTS AND AUTHORITIES in SUPPORT of motion to dismiss case by dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson [13−1] (ds) (Entered: 03/08/2004)
15 REQUEST for Judicial notice by dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson (ds) (Entered: 03/08/2004)
16 INITIAL JOINT STATUS REPORT (ds) (Entered: 03/15/2004)
17 MINUTE ORDER issued by the CRD due to a conflict w/the Court's calendar dfts' motion to dismiss [13−1] HEARING RESET FOR 10:00 4/30/04; all briefing on motions to comply w/LR (cc: all counsel) (crf) (Entered: 03/22/2004)
18 OPPOSITION by plaintiffs to dfts' motion to dismiss case [13−1] (crf) (Entered: 04/19/2004)
19 OPPOSITION by plaintiffs to dfts' request for judicial notice [15−1] (crf) (Entered: 04/20/2004)
20 REPLY by Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson to pltf's opposition to dft's request for judicial notice [15−1] (ds) (Entered: 04/26/2004)
21 REPLY by defendants Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, and Lawrence Swanson regarding [18−1] (daw) (Entered: 04/27/2004)
22 MINUTE ORDER: motion to dismiss case by dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson [13−1] SUBMITTED; the 4/30/04 hearing is VACATED (cc: all counsel) (kdc) (Entered: 04/28/2004)
23 RULE 26 DISCLOSURE by dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson regarding (kdc) (Entered: 04/29/2004)
24 STIPULATION re motion to dismiss (ds) (Entered: 04/30/2004)
25 MEMORANDUM and ORDER by Judge Frank C. Damrell Jr ORDERING motion to dismiss case by dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson [13−1] DENIED (cc: all counsel) (daw) (Entered: 05/06/2004)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 8 of 55

05/18/2004 05/25/2004
06/08/2004 06/08/2004 06/08/2004
06/09/2004
06/14/2004 06/21/2004 06/21/2004 06/30/2004
08/20/2004 10/22/2004 10/27/2004 02/22/2005 02/22/2005 02/25/2005

LODGED stip protective order (ak) (Entered: 05/19/2004)
26 STIPULATION &ORDER by Magistrate Judge Peter A Nowinski for Protective Order GRANTED; this Order covers documents designated by producint party as "private educations records"; private education records shall be so designated by stamping copies of document(s) produced to party with legend "CONFIDENTIAL"; CONFIDENTIAL on cover of any multi−page document shall designate all pages of doucments as confidential, unless otherwise indicated by producing party (see Order for details) (cc: all counsel) (mm1) (Entered: 05/25/2004)
27 LETTER to court from counsel for defendants regarding this matter having related discovery issues with case 04−CV−38 WBS GGH; stipulation to be submitted in both cases regarding certain aspects of discovery (daw) (Entered: 06/09/2004)
29 LETTER to court from counsel for Dfts Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson informing the Court that the parties agreed to merge certain aspects of discovery on CIV S−04−38 WBS GGH and CIV S−03−2591 FDC PAN (lm) (Entered: 06/09/2004)
LODGED Stipulation Re Merger of some discovery and Regarding Discovery of Financial Information; Stipulation and Protective Order Regarding Personal Onformation by Pltfs Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng, and Dfts Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, Lawrence Swanson (lm) (Entered: 06/09/2004)
28 STATUS (PRETRIAL SCHEDULING) ORDER by Judge Frank C. Damrell Jr ORDERING pretrial conference SET for 2:30 5/13/05; trial SET for 1:30 7/18/05; designation of expert witnesses SET for 10/25/04; motion filing ddl SET for 3/11/05; discovery ddl SET for 1/7/05 ; objections may be filed w/i 10 court days from service (cc: all counsel) (daw) (Entered: 06/09/2004)
30 NOTICE by plaintiff Arezou Mansourian of class action (crf) (Entered: 06/15/2004)
31 OBJECTIONS by defendants to Status (Pretrial Scheduling) Order [28−2] (daw) (Entered: 06/22/2004)
32 DECLARATION of Nancy J. Sheehan in support of [31−1] (daw) (Entered: 06/22/2004)
33 AMENDED STATUS (PRETRIAL SCHEDULING) ORDER by Judge Frank C. Damrell Jr ORDERING discovery ddl set for 1/7/05; disclosure of expert witnesses due by 10/25/04; all dispositive motions shall be heard no later than 3/11/05; final pretrial conference set for 1:30 6/10/05; jury trial set for 1:30 7/18/05 (cc: all counsel) (ds) (Entered: 06/30/2004)
34 ANSWER by defendants Regents Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks, and Lawrence Swanson to complaint [1−1] (daw) (Entered: 08/23/2004)
LODGED stipulated request to modify status order (ds) (Entered: 10/25/2004)
35 STIPULATION AND ORDER by Judge Frank C. Damrell Jr modifying status order discovery ddl set for 4/15/05; disclosure of expert witnesses due by 2/22/05; last day for hearing motions set for 7/22/05; final pretrial conference set for 3:30 9/30/05; jury trial set for 1:30 11/7/05 (cc: all counsel) (ds) (Entered: 10/27/2004)
36 STIPULATION and PROPOSED ORDER REQUEST FOR MODIFICATION OF SCHEDULING ORDER by Regents of the University of California, University of California at Davis. (Sheehan, Nancy) (Entered: 02/22/2005)
37 PROPOSED ORDER by Regents of the University of California, University of California at Davis. (Sheehan, Nancy) Modified on 2/23/2005 (Marcotte, D). (Entered: 02/22/2005)
38 STIPULATION and ORDER Designation of Expert Witnesses due by 6/1/2005. Discovery due by 7/22/2005. Dispositive Motion due by 9/9/2005. Final Pretrial

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 9 of 55

06/01/2005 06/01/2005 06/01/2005 06/01/2005
06/01/2005
06/01/2005 06/06/2005 06/09/2005 06/09/2005 06/14/2005
08/01/2005 08/01/2005

Conference set for 11/18/2005 at 02:30 PM in Courtroom 2. Jury Trial set for 1/24/2006 at 09:00 AM in Courtroom 2 signed by Judge Frank C. Damrell Jr. on 2/25/05. (Price, M) (Entered: 02/25/2005)
39 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 06/01/2005)
40 EXHIBIT B to Disclosure of Expert Witnesses by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.. (Sheehan, Nancy) (Entered: 06/01/2005)
41 Ex Parte MOTION to SHORTEN TIME for Motion to Modify Status Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. Motion Hearing set for 6/24/2005 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Galles, Kristen) (Entered: 06/01/2005)
42 MOTION for EXTENSION Motion to Modify Status Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng re 41 Ex Parte MOTION to SHORTEN TIME for Motion to Modify Status Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. Motion Hearing set for 6/24/2005 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Galles, Kristen) (Entered: 06/01/2005)
43 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 6/1/05. re 41 Motion to Shorten Time − GRANTED. 42 MOTION for EXTENSION Motion to Modify Status Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng set for hearing on 6/24/2005 at 10:00 AM in Courtroom 2. Opposition by 6/10/05 and reply by 6/17/05. (Price, M) (Entered: 06/01/2005)
44 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Galles, Kristen) (Entered: 06/01/2005)
45 AMENDED DOCUMENT by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.. (Sheehan, Nancy) (Entered: 06/06/2005)
46 MEMORANDUM/RESPONSE in OPPOSITION to Plaintiff's Motion to Modify Status (Pretrial Scheduling) Order. (Pott, Michael) (Entered: 06/09/2005)
47 DECLARATION of Michael W. Pott in in Opposition to Modify Status (Pretrial Scheduling) Order. (Attachments: # 1 Exhibit A−C (1) # 2Exhibit C (2) #(3) Exhibit D−E (1) #(4) Exhibit E (2) #(5) Exhibit E (3))(Pott, Michael) (Entered: 06/09/2005)
48 MEMORANDUM and ORDER, Motions terminated: 42 MOTION for EXTENSION Motion to Modify Status Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng − GRANTED. Designation of Expert Witnesses due by 8/1/2005. Rebuttal experts by 9/1/05. Discovery due by 10/28/2005. Dispositive Motion due by 1/13/2006. Final Pretrial Conference set for 3/17/2006 at 01:30 PM in Courtroom 2. Jury Trial set for 5/2/2006 at 09:00 AM in Courtroom 2 signed by Judge Frank C. Damrell Jr. on 6/14/05. (Price, M) (Entered: 06/14/2005)
49 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 08/01/2005)
50 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Galles, Kristen) (Entered: 08/01/2005)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 10 of 55

08/01/2005 08/12/2005 08/17/2005 10/28/2005 10/28/2005 10/28/2005 10/28/2005 10/28/2005 10/31/2005
11/15/2005 11/17/2005 12/07/2005

51 DISCLOSURE of POTENTIAL EXPERTS by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Galles, Kristen) Modified on 8/2/2005 (Marcotte, D). (Entered: 08/01/2005)
52 STIPULATION and PROPOSED ORDER to Modify Scheduling Order by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Attachments: # 1 Proposed Order)(Pott, Michael) Modified on 8/15/2005 (Mena−Sanchez, L). (Entered: 08/12/2005)
53 STIPULATION and ORDER signed by Judge Frank C. Damrell Jr. on 08/17/05. Designation of Expert Witnesses due by 10/28/2005. Discovery due by 12/23/2005. Dispositive Motion due by 4/21/2006. Final Pretrial Conference set for 6/30/2006 at 03:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Jury Trial set for 8/29/2006 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Price, M) (Entered: 08/17/2005)
54 MOTION to COMPEL Deposition Testimony of OCR Representatives by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 11/30/2005 at 09:00 AM in Courtroom 25 (PAN) before Magistrate Judge Peter A. Nowinski. (Begley, Brendan) (Entered: 10/28/2005)
55 REQUEST for JUDICIAL NOTICE by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks in Support of Defendants' Motion to Compel Depo Testimony of OCR Representatives. (Begley, Brendan) (Entered: 10/28/2005)
56 MEMORANDUM/RESPONSE in SUPPORT of Defendants' Motion to Compel Depo Testimony of OCR Representatives. (Attachments: # 1 Exhibit A − I# 2 Exhibit J# 3 Exhibit K# 4 Exhibit K cont.# 5 Exhibit L − P# 6 Exhibit Q − R# 7 Exhibit S − V)(Begley, Brendan) (Entered: 10/28/2005)
57 STIPULATION Request to Further Modify Scheduling Order by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 10/28/2005)
58 PROPOSED ORDER by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 10/28/2005)
59 ORDER signed by Judge Frank C. Damrell Jr. on 10/31/05 re 57 Stipulation filed by the parties − GRANTED. The following scheduling deadlines are modified as follows: Designation of rebuttal Expert Witnesses due by 3/14/2006. Discovery due by 5/12/2006. Dispositive Motion due by 8/4/2006. Final Pretrial Conference set for 9/29/2006 at 03:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Jury Trial set for 11/28/2006 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.(Price, M) (Entered: 10/31/2005)
60 AMENDED NOTICE OF MOTION to Compel Deposition Testimony of O.C.R. Representatives by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 12/14/2005 at 09:00 AM in Courtroom 25 (PAN) before Magistrate Judge Peter A. Nowinski. (Sheehan, Nancy) Modified on 11/17/2005 (Reader, L). (Entered: 11/15/2005)
61 REQUEST by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks to Take Off Calendar Motion to Compel Deposition of O.C.R. Representatives (Acero, George) Modified on 11/18/2005 (Dotson, B). (Entered: 11/17/2005)
62 PLAINTIFF(S) MOTION to CERTIFY CLASS by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang. Motion Hearing set for 2/24/2006 at 10:00 AM

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 11 of 55

12/07/2005 12/07/2005 12/07/2005 12/08/2005 12/08/2005 12/08/2005 12/08/2005 12/10/2005 12/28/2005 12/28/2005 01/05/2006 01/05/2006
01/05/2006 01/05/2006 01/06/2006
01/06/2006

in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Galles, Kristen) (Entered: 12/07/2005)
63 NOTICE by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang of hearing re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS (Galles, Kristen) Modified on 12/8/2005 (Dotson, B). (Entered: 12/07/2005)
64 DECLARATION of Kristen Galles re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS. (Galles, Kristen) (Entered: 12/07/2005)
65 DECLARATION of Lauren Mancuso re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS. (Galles, Kristen) (Entered: 12/07/2005)
66 PROPOSED ORDER re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS. (Galles, Kristen) (Entered: 12/08/2005)
67 EXHIBIT A−G re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang. (Attachments: # 1 Exhibit A−B# 2 Exhibit C# 3 Exhibit D# 4 Exhibit E# 5 Exhibit F# 6 Exhibit G)(Galles, Kristen) Modified on 12/9/2005 (Dotson, B). (Entered: 12/08/2005)
68 EXHIBIT H−M re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang. (Attachments: # 1 Exhibit J Part1# 2 Exhibit J Part2# 3 Exhibit K# 4 Exhibit L# 5 Exhibit M)(Galles, Kristen) Modified on 12/9/2005 (Dotson, B). (Entered: 12/08/2005)
69 BRIEF in SUPPORT of 62 PLAINTIFF(S) MOTION to CERTIFY CLASS. (Galles, Kristen) Modified on 12/9/2005 (Dotson, B). (Entered: 12/08/2005)
70 DECLARATION of Arezou Mansourian in support of 62 PLAINTIFF(S) MOTION to CERTIFY CLASS. (Galles, Kristen) Modified on 12/12/2005 (Dotson, B). (Entered: 12/10/2005)
71 STIPULATION in Support of Request for Order Allowing Motion to be Filed Under Seal by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 12/28/2005)
72 PROPOSED ORDER to Seal Defendants' Motion to Compel Compliance with Subpoena for Medical Records. (Sheehan, Nancy) (Entered: 12/28/2005)
73 ORDER signed by Judge Peter A. Nowinski on 01/04/06 DENYING 71 Stipulation, filed by Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks and Lawrence Swanson . (Matson, R) (Entered: 01/05/2006)
74 DISREGARD−WRONG IMAGE ATTACHED, SEE ENTRY 77 .[DEFENDANT(S) MOTION to COMPEL Compliance with Subpoena for Medical Records by Lawrence Swanson, Regents of the University of California, University of California at Davis, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 2/8/2006 at 09:00 AM in Courtroom 25 (PAN) before Magistrate Judge Peter A. Nowinski]. (Sheehan, Nancy) Modified on 1/6/2006 (Duong, D). (Entered: 01/05/2006)
75 MEMORANDUM/RESPONSE in SUPPORT of Defendants' Motion to Compel Compliance with Subpoena for Medical Records. (Attachments: # 1 Exhibit A# 2 Exhibit B − I)(Sheehan, Nancy) (Entered: 01/05/2006)
76 PROPOSED ORDER re Defendants' Motion to Compel Compliance with Subpoena for Medical Records. (Sheehan, Nancy) (Entered: 01/05/2006)
77 DEFENDANT(S) MOTION to COMPEL Compliance with Subpoena for Medical Records by Lawrence Swanson, Regents of the University of California, University of California at Davis, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 2/8/2006 at 09:00 AM in Courtroom 25 (PAN) before Magistrate Judge Peter A. Nowinski. (Sheehan, Nancy) (Entered: 01/06/2006)
78 EX PARTE APPLICATION by Nancy Nien−Li Chiang for Reconsideration of Order Denying Stipulation to File Motion Under Seal. (Galles, Kristen) (Entered:

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 12 of 55

01/06/2006 01/09/2006 01/10/2006 01/12/2006 01/20/2006 01/26/2006
01/26/2006 01/30/2006 02/01/2006 02/07/2006 02/09/2006 02/17/2006
02/17/2006 02/17/2006 02/21/2006

01/06/2006)
79 PROPOSED ORDER re 78 Ex Parte Application by Nancy Nien−Li Chiang. (Galles, Kristen) (Entered: 01/06/2006)
80 RESPONSE to Ex Parte Emergency Request to Reconsider Order Denying Stipulation to File Motion Under Seal. (Attachments: # 1 Declaration of George A. Acero in Support of Defendants' Response)(Sheehan, Nancy) Modified on 1/9/2006 (Reader, L). (Entered: 01/09/2006)
81 ORDER signed by Judge Peter A. Nowinski on 01/09/06 ORDERING pltf's ex parte application for reconsideration 78 is GRANTED in part; Dfts to disclose by filing with the court no private information obtained during discovery.(Warren, P) (Entered: 01/10/2006)
82 NOTICE by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang re 62 PLAINTIFF(S) MOTION to CERTIFY CLASS Amended Notice of Hearing (Galles, Kristen) (Entered: 01/12/2006)
83 AMENDED NOTICE of MOTION to compel by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks (Sheehan, Nancy) Modified on 1/23/2006 (Caspar, M). (Entered: 01/20/2006)
84 EX PARTE APPLICATION to Extend Page Limit; Declaration of George A. Acero by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks for Page Limit Extension; Declaration of George A. Acero. (Sheehan, Nancy) (Entered: 01/26/2006)
85 PROPOSED ORDER to Defendants' Ex Parte Application to Extend Page Limit. (Sheehan, Nancy) (Entered: 01/26/2006)
86 ORDER signed by Judge Frank C. Damrell Jr. on 1/27/06 GRANTING 84 Ex Parte Application. Defendants shall be permitted to file a Memo of Points and Authorities in Opposition to Plaintiffs' Motion for Class Certification in excess of 20 pages, but not to exceed 35 pages.(Donati, J) (Entered: 01/30/2006)
87 MEMORANDUM/RESPONSE in OPPOSITION re 77 DEFENDANT(S) MOTION to COMPEL Compliance with Subpoena for Medical Records. (Galles, Kristen) (Entered: 02/01/2006)
88 REPLY to RESPONSE to MOTION to Compel Compliance With Subpoena for Medical Records. (Sheehan, Nancy) (Entered: 02/07/2006)
89 ORDER signed by Judge Peter A. Nowinski on 02/08/06: The subpoenas are quashed.(Warren, P) (Entered: 02/09/2006)
90 DEFENDANTS' MOTION to STRIKE plaintiff Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 3/30/2006 at 11:00 AM in Courtroom 25 before Magistrate Judge John F. Moulds. (Sheehan, Nancy) Modified on 2/21/2006 (Marciel, M). (Entered: 02/17/2006)
91 MEMORANDUM/RESPONSE in SUPPORT of defendants' Motion to Strike plaintiff Nancy Nien−Li Chiang's Claim for Damages. (Attachments: # 1 Exhibit A−B# 2 Exhibit C−D)(Sheehan, Nancy) Modified on 2/21/2006 (Marciel, M). (Entered: 02/17/2006)
92 PROPOSED ORDER regarding defendants' Motion to Strike plaintiff Nancy Nien−Li Chiang's Claim for Damages. (Sheehan, Nancy) Modified on 2/21/2006 (Marciel, M). (Entered: 02/17/2006)
93 NOTICE by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang re 82 Notice (Other), 63 Notice (Other) Amended Notice of Hearing on Class Certification (Galles, Kristen) (Entered: 02/21/2006)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 13 of 55

03/08/2006 03/10/2006
03/14/2006 03/21/2006
03/21/2006 03/22/2006
03/27/2006 03/27/2006
03/28/2006
04/04/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006

94 NOTICE OF TEMPORARY ASSIGNMENT notifying parties that due to the retirement of Magistrate Judge Peter A. Nowinski, this action is temporarily reassigned to Magistrate Judge John F. Moulds. (Matson, R) (Entered: 03/08/2006)
95 FIRST AMENDED MOTION to STRIKE Plaintiff Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 5/4/2006 at 11:00 AM in Courtroom 25 (PAN) before Magistrate Judge John F. Moulds. (Sheehan, Nancy) (Entered: 03/10/2006)
96 NOTICE of defendants' Disclosure of Rebuttal Expert Witness (Sheehan, Nancy) Modified on 3/15/2006 (Marciel, M). (Entered: 03/14/2006)
97 EX PARTE APPLICATION to Extend Page Limit of Summary Judgment Motion by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Declaration of George A. Acero. (Acero, George) Modified on 3/22/2006 (Donati, J). (Entered: 03/21/2006)
98 PROPOSED ORDER re: 97 Ex Parte Application to Extend Page Limit (Acero, George) Modified on 3/22/2006 (Donati, J). (Entered: 03/21/2006)
99 ORDER signed by Judge Frank C. Damrell Jr. on 3/22/06. 97 Ex Parte Application, filed by defendants − GRANTED. Defendant LARRY VANDERHOEF shall be permitted to file a Memorandum of Points and Authorities in Support of his Motion for Summary Judgment in excess of twenty pages, but not to exceed thirty pages. In light of this page limit increase, the page limit for Plaintiff's opposition is extended to no more than 30 pages. No increase is made as to the reply page limit.(Price, M) (Entered: 03/22/2006)
100 NOTICE by all defendants Ex Parte Application to Extend Page Limit for Defendant Larry Swanson's Motion for Summary Judgment; Declaration of George A. Acero (Acero, George) (Entered: 03/27/2006)
101 PROPOSED ORDER [Proposed] Order to Defendants' Ex Parte Application to Extend Page Limit for Defendant Larry Swanson's Motion for Summary Judgment by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 03/27/2006)
102 ORDER signed by Judge Frank C. Damrell Jr. on 3/28/06 re 100 Ex Parte Application − GRANTED. Dft LAWRENCE SWANSON shall be permitted to file a Memorandum in Support of his Motion for Summary Judgment in excess of twenty pages, but not to exceed thirty pages. In light of this page limit increase, the page limit for ptlf's opposition is extended to no more than 30 pages. No increase is made as to the reply page limit.(Price, M) (Entered: 03/28/2006)
103 RESPONSE in OPPOSITION to 62 Pltf's Motion for Class Certification. (Sheehan, Nancy) Modified on 4/5/2006 (Yin, K). (Entered: 04/04/2006)
104 REQUEST for JUDICIAL NOTICE by dfts in Support of 103 Response in Opposition to 62 Motion for Class Certification. (Sheehan, Nancy) Modified on 4/5/2006 (Yin, K). (Entered: 04/04/2006)
105 OBJECTIONS by Dfts to 64 , 65 Declarations Submitted in Support of 62 Motion for Class Certification. (Sheehan, Nancy) Modified on 4/5/2006 (Yin, K). (Entered: 04/04/2006)
106 DECLARATION of Nancy J. Sheehan in Support of 103 Opposition to Pltf's Motion for Class Certification. (Sheehan, Nancy) Modified on 4/5/2006 (Yin, K). (Entered: 04/04/2006)
107 EXHIBITS A − B to 103 Response in Opposition to Plaintiff's Motion for Class Certification by dfts. (Attachments: # 1 Exhibit C − D# 2 Exhibit E − G# 3 Exhibit H − T# 4 Exhibit U − CC# 5 Exhibit DD# 6 Exhibit DD continued# 7 Exhibit DD continued# 8 Exhibit DD continued# 9 Exhibit EE − II)(Sheehan, Nancy) Modified on 4/5/2006 (Yin, K). (Entered: 04/04/2006)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 14 of 55

04/05/2006 04/05/2006 04/05/2006
04/12/2006
04/12/2006 04/13/2006
04/13/2006
04/14/2006 04/14/2006 04/14/2006 04/14/2006 04/14/2006 04/17/2006 04/17/2006 04/18/2006 04/18/2006

108 NOTICE by all defendants Ex Parte Application to Extend Page Limit for Defendant Pam Gill−Fisher's Motion for Summary Judgment; Declaration of George A. Acero (Acero, George) (Entered: 04/05/2006)
109 PROPOSED ORDER to 108 Ex Parte Application to Extend Page Limit for Dft Pam Gill−Fisher's Motion for Summary Judgment by dfts. (Acero, George) Modified on 4/6/2006 (Yin, K). (Entered: 04/05/2006)
110 ORDER signed by Judge Frank C. Damrell Jr. on 4/5/06. 108 Exparte Application filed by Regents dft Pam Gill−Fisher − GRANTED. Memorandum in Support of motion for summary judgment may be filed in excess of 20 pages, but not to exceed 30 pages. In light of this page limit increase, the page limit for pltf's opposition is extended to no more than thirty pages. No increase is made as to the Reply page limit. (Price, M) (Entered: 04/05/2006)
111 STIPULATION in Support of Request to Seal Exhibit "W" to Defendants' Opposition to Plaintiffs' Motion for Class Certification by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 04/12/2006)
112 PROPOSED ORDER by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 04/12/2006)
113 NOTICE of HEARING on MOTION from CRD M. Price 62 PLAINTIFF(S) MOTION to CERTIFY CLASS: − due to a conflict with the court's calendar, the start time of the motion hearing is RESET to 01:00 PM on 4/21/2006 in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (TEXT ONLY)(Price, M) (Entered: 04/13/2006)
114 ORDER signed by Judge Frank C. Damrell Jr. on 4/13/06. 111 Stipulation to Seal Exhibit W − GRANTED. The Clerk shall seal Exhibit W, as filed on April 4/4/06, as Part 5 to docket #107, Exhibits. Counsel, shall re−file exhibits U − CC excluding exhibit W in accordance with this order. (Price, M) (Entered: 04/13/2006)
115 EX PARTE MOTION to SEAL Declaration of Kristen Galles by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Galles, Kristen) Modified on 4/17/2006 (Reader, L). (Entered: 04/14/2006)
116 PROPOSED ORDER re 115 MOTION to SEAL Declaration of Kristen Galles. (Galles, Kristen) (Entered: 04/14/2006)
117 EX PARTE MOTION to STAY and Extend Scheduling by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Galles, Kristen) Modified on 4/17/2006 (Reader, L). (Entered: 04/14/2006)
118 PROPOSED ORDER granting ex parte motion to stay and extend all deadlines. (Galles, Kristen) Modified on 4/17/2006 (Reader, L). (Entered: 04/14/2006)
119 SEALED DOCUMENT (Entered: 04/14/2006)
120 ORDERsigned by Judge Frank C. Damrell Jr. on 4/17/06. 115 Pltf's Motion to Seal counsel declaration GRANTED. Clerk to place document under seal. (Price, M) (Entered: 04/17/2006)
121 EXHIBIT U − CC to Defendants' Opposition to Plaintiffs' Motion for Class Certification by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 04/17/2006)
122 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 4/18/06. Dft's shall file a response to 117 Pltf's Motion to Stay by 4/18/2006 − 4:00 p.m. (Price, M) (Entered: 04/18/2006)
123 RESPONSE/OPPOSITION to Plaintiffs' Motion to Stay and Extend All Deadlines and Scheduling Matters to Allow for Substitution of Counsel. (Sheehan, Nancy)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 15 of 55

04/18/2006 04/18/2006
04/19/2006 04/19/2006 04/19/2006
04/25/2006
06/06/2006 06/06/2006 06/08/2006 07/18/2006 07/21/2006 07/21/2006 07/21/2006

Modified on 4/19/2006 (Marciel, M). (Entered: 04/18/2006)
124 DECLARATION of Nancy J. Sheehan in Support of Defendants' Opposition/Response to Plaintiffs' Motion to Stay and Extend All Deadlines and Scheduling Matters to Allow for Substitution of Counsel. (Sheehan, Nancy) (Entered: 04/18/2006)
125 ORDER signed by Judge Frank C. Damrell Jr. on 4/18/06. 117 Pltf's MOTION to STAY and Extend Scheduling −GRANTED. Case STAYED. All dates are vacated. 62 Motion for Class Certification − RESET for 7/21/06 at 10:00 a.m. Status Conference set for 6/16/2006 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. Joint status report by 6/6/2006. Parties to refer to order for specifics on report. (Price, M) Modified on 4/18/2006 (Price, M). (Entered: 04/18/2006)
126 DEFENDANT(S) MOTION for RECONSIDERATION of 125 Order on plaintiff's Motion to Stay and Extend all deadlines by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) Modified on 4/20/2006 (Marciel, M). (Entered: 04/19/2006)
127 DECLARATION of Nancy J. Sheehan in Support Of Defendants' Motion for Reconsideration of Ruling on Plaintiffs' Motion to Stay. (Sheehan, Nancy) (Entered: 04/19/2006)
128 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 4/19/06 re 126 DEFENDANT(S) MOTION for RECONSIDERATION − GRANTED as to the resetting of the motion to certify but DENIED in all other respects.[ 62] Motion to Certify Class− Set/Reset Motion Hearing,: Motion Hearing set for 8/4/2006 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr..(Price, M) (Entered: 04/19/2006)
129 SECOND AMENDED MOTION to STRIKE Plaintiff Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 8/3/2006 at 11:00 AM in Courtroom 25 (PAN) before Magistrate Judge John F. Moulds. (Sheehan, Nancy) (Entered: 04/25/2006)
130 STIPULATION To Extend Stay and Related Scheduling Matters by dfts. (Sheehan, Nancy) Modified on 6/7/2006 (Yin, K). (Entered: 06/06/2006)
131 PROPOSED ORDER granting 130 stipulation to extend stay and related scheduling matters. (Sheehan, Nancy) Modified on 6/7/2006 (Yin, K). (Entered: 06/06/2006)
132 ORDER signed by Judge Frank C. Damrell Jr. on 6/7/06 GRANTING 130 Stipulation. Status Conference is re−set for 7/28/2006 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. and Joint Status Report is due by 7/18/06. (Yin, K) (Entered: 06/08/2006)
133 DEFENDANT(S) STATUS REPORT by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 07/18/2006)
134 MOTION to EXTEND Stay by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng for 125 Scheduling Order. (Galles, Kristen) Modified on 7/24/2006 (Marciel, M). (Entered: 07/21/2006)
135 PROPOSED ORDER granting 134 MOTION to EXTEND Stay by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng (Galles, Kristen) Modified on 7/24/2006 (Marciel, M). (Entered: 07/21/2006)
136 RESPONSE in OPPOSITION to Plf's Second Req to Continue Status Conf. (Sheehan, Nancy) Modified on 7/24/2006 (Marciel, M). (Entered: 07/21/2006)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 16 of 55

07/24/2006
07/28/2006 07/28/2006
08/18/2006 08/23/2006 08/23/2006 08/23/2006 08/29/2006 09/11/2006 09/14/2006
10/19/2006 10/19/2006

137 ORDER signed by Judge Frank C. Damrell Jr. on 7/24/06. 134 MOTION for EXTENSION of stay by Pltfs − GRANTED. Either a motion to withdraw or substitution of counsel to be filed by pltf counsel by 8/18/2006. Status Conference set for 9/8/2006 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. Joint Report due by 8/29/06. (Price, M) Additional attachment(s) added on 7/24/2006 (Price, M). (Entered: 07/24/2006)
138 THIRD AMENDED NOTICE of Motion to Strike plt Nancy Nien−Li Chiang's claim for Damages 129 by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) Modified on 8/2/2006 (Duong, D). (Entered: 07/28/2006)
139 THIRD AMENDED MOTION to STRIKE amending 129 SECOND AMENDED MOTION to STRIKE Plaintiff Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 9/28/2006 at 11:00 AM in 8th floor courtroom (JFM) before Magistrate Judge John F. Moulds. (Marciel, M) (Entered: 07/31/2006)
140 NOTICE of APPEARANCE by Monique Olivier on behalf of Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. Attorney Olivier, Monique added. (Olivier, Monique) (Entered: 08/18/2006)
141 STIPULATION Request to Extend Stay and Continue Status Conference by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Farrell, Noreen) Modified on 8/24/2006 (Marciel, M). (Entered: 08/23/2006)
142 PROPOSED ORDER granting Stipulation to Extend Stay and Continue Status Conference by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Farrell, Noreen) Modified on 8/24/2006 (Marciel, M). (Entered: 08/23/2006)
143 STIPULATION and ORDER 141 signed by Judge Frank C. Damrell Jr. on 8/23/06. The Stay of this action is CONTINUED to 11/3/06 and Status Conference is RE−SET for 11/3/2006 at 10:00 AM in Courtroom 2 (FCD). Parties shall meet and confer to submit Joint Status Statement by 10/27/06.(Marciel, M) (Entered: 08/23/2006)
144 ORDER by Chief Judge David F. Levi ORDERING due to the recent appointment of Magistrate Judge Edmund F. Brennan to the bench of the Eastern District, this action is REASSIGNED from Magistrate Judge Peter A. Nowinski for all further proceedings. (Brown, T) (Entered: 08/29/2006)
145 MINUTE ORDER (Text Only) by CRD: Deft's Motion to Strike 139 previously set for hearing on 09/28/06 is RESET for 11/8/2006 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Cannarozzi, N) (Entered: 09/11/2006)
146 FOURTH AMENDED NOTICE of MOTION and MOTION to STRIKE amending 139 THIRD AMENDED MOTION to STRIKE plaintiff Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 1/10/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Sheehan, Nancy) Modified on 9/15/2006 (Marciel, M). (Entered: 09/14/2006)
147 STIPULATION Request to Extend Stay and Continue Status Conference by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) Modified on 10/20/2006 (Marciel, M). (Entered: 10/19/2006)
148 PROPOSED ORDER granting 147 Stipulation to Extend Stay and Continue Status Conference by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) Modified on 10/20/2006 (Marciel, M). (Entered: 10/19/2006)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 17 of 55

10/20/2006 10/26/2006 10/26/2006 10/27/2006
10/27/2006
01/19/2007 01/22/2007 01/24/2007

149 STIPULATION and ORDER signed by Judge Frank C. Damrell Jr. on 10/20/06. The stay in continued to 1/26/07. Status Conference set for 11/3/06 is VACATED and RESET for 1/26/2007 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. A joint status report shall be filed by 1/19/2007. (Price, M) (Entered: 10/20/2006)
150 AMENDED MOTION to STRIKE amending 146 139 129 Motions to Strike by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 2/15/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Sheehan, Nancy) Modified on 10/27/2006 (Marciel, M). (Entered: 10/26/2006)
151 MINUTE ORDER (Text Only) by CRD: The 02/15/07 hearing re Deft's 150 Amended Motion to Strike is VACATED. The hearing date selected by Deft does not comply with the Court's scheduled Law and Motion calendar. If Deft wishes to set this matter for hearing, counsel is directed to contact the Courtroom Deputy for Magistrate Judge Brennan to obtain available Law and Motion dates. (Cannarozzi, N) (Entered: 10/26/2006)
152 (DISREGARD − Incorrect Document Filed) Dft's SIXTH AMENDED MOTION to STRIKE amending 150 AMENDED MOTION to STRIKE amending 146 AMENDED MOTION to STRIKE amending 139 AMENDED MOTION to STRIKE amending 129 SECOND AMENDED MOTION to STRIKE Plaintiff Nancy Nien−Li Chiang's Claim for Damages Defs' 4th Amended Notice of Mo Def's Sixth Amended Notice of Motion to Strike Plaintiff Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 2/21/2007 at 10:00 AM in Courtroom 25 (EFB) before Judge Frank C. Damrell Jr.. (Sheehan, Nancy) Modified on 10/27/2006 (Brown, T). (Entered: 10/27/2006)
153 (MOTION TERMED, REFER TO DOCKET #157) AMENDED MOTION to STRIKE amending 150 AMENDED MOTION to STRIKE amending 146 AMENDED MOTION to STRIKE amending 139 AMENDED MOTION to STRIKE amending 129 SECOND AMENDED MOTION to STRIKE Plaintiff Nancy Nien−Li Chiang's Claim for Damages Defs' 4th Amended Notice of Mo Defs' Sixth Amended Motion to Strike Pltf Nancy Nien−Li Chiang's Claim for Damages by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 2/21/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Sheehan, Nancy) Modified on 2/2/2007 (Kastilahn, A). (Entered: 10/27/2006)
154 JOINT STATUS REPORT by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 01/19/2007)
155 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 1/22/07. In light of the joint report filed 1/19/07 the court hereby VACATES the status conference set for 1/26/07 and shall issue a written order. (TEXT ONLY)(Price, M) (Entered: 01/22/2007)
156 2nd Amended SCHEDULING ORDER: signed by Judge Frank C. Damrell Jr. on 1/24/07. Pltf's may bring motion to amend in accordance with the schedule in the order and set for hearing on 3/16/07 at 10:00 a.m. All Expert discovery shall be completed by 12/14/07. The shall not address discovery issues as noted in the report. Parties to contact magistrate judge for the scheduling of an appropriate hearing. Discovery due by 10/31/2007. The class certification motion is reset for 4/27/07 at 10:00 a.m. and the parties shall comply with the supplemental briefing schedule in the order. Dispositive Motion due by 2/8/2008. Final Pretrial Conference set for 4/11/2008 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. Jury Trial set for 6/17/2008 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Price, M) (Entered: 01/24/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 18 of 55

02/01/2007
02/02/2007 02/02/2007 02/02/2007 02/02/2007 02/07/2007 02/16/2007
02/23/2007 02/23/2007 02/23/2007 03/02/2007 03/02/2007 03/02/2007 03/09/2007
03/14/2007
03/14/2007
03/19/2007

157 AMENDED MOTION to STRIKE by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 3/14/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 2/2/2007 (Kastilahn, A). (Entered: 02/01/2007)
158 MOTION for LEAVE to amend the complaint by pltfs. Motion Hearing set for 3/16/2007 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Olivier, Monique) Modified on 2/5/2007 (Manzer, C). (Entered: 02/02/2007)
159 MEMORANDUM in SUPPORT of 158 motion for leave to amend complaint. (Olivier, Monique) Modified on 2/5/2007 (Manzer, C). (Entered: 02/02/2007)
160 DECLARATION of Monique Olivier in SUPPORT OF 158 motion for leave to amend complaint. (Olivier, Monique) Modified on 2/5/2007 (Manzer, C). (Entered: 02/02/2007)
161 PROPOSED ORDER re 158 motion for leave to amend the complaint. (Olivier, Monique) Modified on 2/5/2007 (Manzer, C). (Entered: 02/02/2007)
162 OBJECTIONS by Plaintiffs to 156 2nd Amended Scheduling Order. (Olivier, Monique) Modified on 2/8/2007 (Manzer, C). (Entered: 02/07/2007)
163 EIGHTH AMENDED MOTION to STRIKE by Lawrence Swanson, Regents of the University of California, University of California at Davis, Christine Wing−Si Ng, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 3/21/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan.(Acero, George) Modified on 2/20/2007 (Donati, J). (Entered: 02/16/2007)
164 MEMORANDUM of Points and Authorities in OPPOSITION to plaintiffs' Motion to Amend Complaint 1 of 3 (Sheehan, Nancy) Modified on 2/27/2007 (Marciel, M). (Entered: 02/23/2007)
165 EXHIBIT 4 to 164 Memorandum of Points and Authorities in Opposition (Sheehan, Nancy) Modified on 2/27/2007 (Marciel, M). (Entered: 02/23/2007)
166 EXHIBIT 10 to 164 Memorandum of Points and Authorities in Opposition (Sheehan, Nancy) Modified on 2/27/2007 (Marciel, M). (Entered: 02/23/2007)
167 REPLY IN SUPPORT of 158 motion for leave to file first amended complaint. (Olivier, Monique) Modified on 3/5/2007 (Manzer, C). (Entered: 03/02/2007)
168 DECLARATION of Noreen Farrell in SUPPORT OF 158 motion for leave. (Olivier, Monique) Modified on 3/5/2007 (Manzer, C). (Entered: 03/02/2007)
169 DECLARATION of Lauren Mancuso in SUPPORT OF 158 motion for leave. (Olivier, Monique) Modified on 3/5/2007 (Manzer, C). (Entered: 03/02/2007)
170 MINUTE ORDER: from CRD M. Price for signed by Judge Frank C. Damrell Jr. on 3/9/07. The joint request to modify the 156 2nd Amended Scheduling Order−GRANTED. Discovery due by 11/30/2007.(Price, M) (Entered: 03/09/2007)
171 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 3/14/07. 158 Motion to Amend the Complaint − MOTIONS SUBMITTED: with oral argument. The hearing set for 3/16/07 is VACATED. The court shall issue a written order. (TEXT ONLY)(Price, M) (Entered: 03/14/2007)
172 CORRECTED MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 3/14/07. Pltf's 158 Motion to Amend the Complaint −MOTION SUBMITTED: WITHOUT oral argument. The hearing set for 3/16/07 is VACATED. The court shall issue a written order. (TEXT ONLY) (Price, M) Modified on 3/20/2007 (Marciel, M). (Entered: 03/14/2007)
173 WITHDRAWAL of 163 Eighth Amended Motion to Strike by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan,

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 19 of 55

03/19/2007 03/20/2007 03/27/2007 03/27/2007 03/29/2007
03/30/2007
04/23/2007 04/23/2007 04/24/2007
04/26/2007 04/26/2007 04/26/2007 05/07/2007

Nancy) (Entered: 03/19/2007)
174 STIPULATION and PROPOSED ORDER re Dismissal of Claims of Plaintiff Nancy Chiang by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 03/19/2007)
175 MEMORANDUM and ORDER signed by Judge Frank C. Damrell Jr. on 3/20/07. Plaintiff's 158 MOTION for Amend the Complaint is DENIED.(Marciel, M) (Entered: 03/20/2007)
176 STIPULATION requesting to modify the Scheduling Order to Continue Class Certification Briefing Schedule and Hearing by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) Modified on 3/28/2007 (Yin, K). (Entered: 03/27/2007)
177 PROPOSED ORDER granting 176 Stipulation requesting to modify Pretrial Scheduling Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) Modified on 3/28/2007 (Yin, K). (Entered: 03/27/2007)
178 STIPULATION and ORDER signed by Judge Frank C. Damrell Jr. on 3/29/07 AGREEING to the stipulation between the parties to DISMISS w/ prejudice the claims of pltf Nancy Nien−Li Chiang as against each of the dfts; the pending motion to dismiss pltf Chiang's damages claims is OFF CALENDAR; dfts to not take further action to obtain copies of pltf Chiang's medical or mental health records; each of the parties to bear their own costs. Nancy Nien−Li Chiang terminated. (Yin, K) (Entered: 03/29/2007)
179 ORDER signed by Judge Frank C. Damrell Jr. on 3/30/07 AGREEING to the 176 stipulation between the parties to further modify the 156 Second Amended Status (Pretrial Scheduling) Order: Pltfs' Supplemental Opening Brief due 4/27/07; Dfts' Supplemental Opposition Brief due 5/11/07; Pltfs' Reply Brief due 5/18/07; Class Certification Hearing set for 5/25/2007 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr..(Yin, K) (Entered: 03/30/2007)
180 STIPULATION to Modify the Scheduling Order to Take Class Certification Hearing and Briefing Schedule Off Calendar by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) Modified on 4/24/2007 (Donati, J). (Entered: 04/23/2007)
181 PROPOSED ORDER re 180 Stipulation. (Olivier, Monique) Modified on 4/24/2007 (Donati, J). (Entered: 04/23/2007)
182 ORDER signed by Judge Frank C. Damrell Jr. on 4/23/07 GRANTING 180 Stipulated Request to further modify the Second Amended Status (Pretrial Scheduling) Order. The class certification hearing currently scheduled for 5/25/07 and the corresponding briefing schedule will be taken off calendar pending the resolution of plaintiffs' request for voluntary dismissal of class claims. (Donati, J) (Entered: 04/24/2007)
183 MOTION to DISMISS class claims and a determination that Notice to the class is not required by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. Motion Hearing set for 6/8/2007 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Johnson, Mark) Modified on 4/27/2007 (Marciel, M). (Entered: 04/26/2007)
184 MEMORANDUM of Points and Authorities in SUPPORT of 183 MOTION to DISMISS class claims and a determination that Notice to the class is not required. (Johnson, Mark) Modified on 4/27/2007 (Marciel, M). (Entered: 04/26/2007)
185 PROPOSED ORDER granting plaintiffs' 183 Motion to Dismiss class claims and a determination that Notice to the class is not required by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Johnson, Mark) Modified on 4/27/2007 (Marciel, M). (Entered: 04/26/2007)
186 AMENDED NOTICE of Motion for Court Approval of voluntary dismissal by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. Motion Hearing RE−SET for 6/22/2007 at 10:00 AM in Courtroom 2 (FCD)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 20 of 55

05/16/2007 06/05/2007 06/05/2007 06/05/2007 06/05/2007 06/05/2007 06/05/2007 06/05/2007
06/12/2007 07/13/2007 07/13/2007 07/13/2007

before Judge Frank C. Damrell Jr.. (Olivier, Monique) Modified on 5/8/2007 (Marciel, M). (Entered: 05/07/2007)
187 STATEMENT of NON−OPPOSITION to 183 Motion for Court Approval of Voluntary Dismissal of Class Claims and Determination that Notice to the Class is Not Required. (Sheehan, Nancy) Modified on 5/17/2007 (Yin, K). (Entered: 05/16/2007)
188 MOTION for JUDGMENT Notice of Motion for Judgment on the Pleadings by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 7/27/2007 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Acero, George) (Entered: 06/05/2007)
189 MEMORANDUM OF POINTS AND AUTHORITIES in Support of Motion for Judgment on the Pleadings by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion (Acero, George) Modified on 6/5/2007 (Price, M). Modified on 6/8/2007 (Carlos, K). (Entered: 06/05/2007)
190 DECLARATION of Dennis Shimek in Support of Motion for Judgment on the Pleadings by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 6/5/2007 (Price, M). Modified on 6/8/2007 (Carlos, K). (Entered: 06/05/2007)
191 DECLARATION of George A. Acero in Support of Motion for Judgment on the Pleadings by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 6/5/2007 (Price, M). Modified on 6/8/2007 (Carlos, K). (Entered: 06/05/2007)
192 REQUEST FOR JUDICIAL NOTICE in Support of Motion for Judgment on the Pleadings and (Exhibits A−E) by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 6/5/2007 (Price, M). Modified on 6/8/2007 (Carlos, K). (Entered: 06/05/2007)
193 EXHIBITS F THROUGH M in support of Request for Judicial Notice in Support of Motion for Judgment on the Pleadings by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.(Acero, George) Modified on 6/5/2007 (Price, M). Modified on 6/8/2007 (Carlos, K). (Entered: 06/05/2007)
194 CLERK'S NOTICE of DOCKET CORRECTION from CRD M. Price for Judge Frank C. Damrell Jr. − The following documents were filed and docketed by the filer as motions for judgment on 6/5/07: 189 − Memorandum of Points and Authorities, 190 − Declaration, 191 − Declaration, 192 request and 193 request. The docket shall be corrected to accurately reflect the document filed and these motions shall be termed from the court's docket. The only pending motion in this matter is docket #188. (Price, M) (Entered: 06/05/2007)
195 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell Jr. on 6/12/07. 183 Motion to Dismiss − GRANTED. Accordingly, the class claims in this action are dismissed. (Price, M) (Entered: 06/12/2007)
196 MEMORANDUM/RESPONSE in OPPOSITION. to Defendants' Motion for Judgment on the Pleadings (Olivier, Monique) (Entered: 07/13/2007)
197 DECLARATION of Monique Olivier in SUPPORT OF. Plaintiffs' Opposition to Defendants' Motion for Judgment on the Pleadings (Olivier, Monique) (Entered: 07/13/2007)
198 RESPONSE in Opposition to dfts' 192 Request for Judicial Notice by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) Modified on 7/23/2007 (Yin, K). (Entered: 07/13/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 21 of 55

07/18/2007 07/18/2007 07/20/2007 07/20/2007 07/20/2007 07/20/2007 07/24/2007 07/25/2007
07/26/2007 07/27/2007
07/27/2007 08/01/2007 08/10/2007

199 EX PARTE APPLICATION for Page Extension to Defendants' Reply by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 7/19/2007 (Waggoner, D). (Entered: 07/18/2007)
200 PROPOSED ORDER to Defendants' Ex Parte Application to Extend Page Limit on Reply to Plaintiffs' Opposition to Motion for Judgment on the Pleadings by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 07/18/2007)
201 ORDER signed by Judge Frank C. Damrell Jr. on 7/20/07. 199 Deft's Ex Parte Application −GRANTED. Deft's are permitted to file their Reply to Plaintiffs' Opposition not to exceed 15 pages. (Price, M) (Entered: 07/20/2007)
202 REPLY to RESPONSE in Opposition to dfts' 188 Motion for Judgment on the Pleadings. (Acero, George) Modified on 7/23/2007 (Yin, K). (Entered: 07/20/2007)
203 REPLY to 198 Opposition to Request for Judicial Notice by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 7/23/2007 (Yin, K). (Entered: 07/20/2007)
204 NOTICE of Errata in Support of 202 Reply to Plaintiffs' Opposition to Defendants' Motion for Judgment on the Pleadings by dfts. (Acero, George) Modified on 7/23/2007 (Yin, K). (Entered: 07/20/2007)
205 NOTICE of RELATED CASE S−07−at−678 by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 07/24/2007)
206 RELATED CASE ORDER signed by Judge Frank C. Damrell Jr. on 7/25/07. The Action denominated 2:07−cv−1488 FCD KJM shall be reassigned to Magistrate Judge Edmund F. Brennan for all further proceedings. The Caption on documents filed in the reassigned case shall be shown as 2:07−cv−1488 FCD EFB. The Clerk is directed to make appropriate adjustment in the assignment of civi/criminal cases to compensate for this reassignment.(Mena−Sanchez, L) (Entered: 07/25/2007)
207 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 7/26/07. The start time for the hearing on 188 MOTION for JUDGMENT on the pleadings has been RESET for 7/27/2007 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (TEXT ONLY) (Price, M) (Entered: 07/26/2007)
208 MINUTES for proceedings held before Judge Frank C. Damrell Jr.: MOTION HEARING held on 7/27/2007 re 188 Motion for Judgment on the Pleadings filed by Greg Warzecka, Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Regents of the University of California, University of California at Davis, Lawrence Swanson − SUBMITTED AFTER ORAL ARGUMENT. Court to issue a written order. Plaintiffs Counsel Noreen Farrell, Monica Olivier present. Defendants Counsel George A. Acero present. Court Reporter/CD Number: M. Babbitt. (TEXT ONLY) (Price, M) (Entered: 07/27/2007)
209 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 7/27/07. This minute order is issued to confirm the briefing schedule as set during oral argument on defendant's motion for judgment on the pleadings on 7/27/07Plaintiffs brief not to exceed 10 pages to be filed no later than 8/10/07Defendants' brief not to exceed 10 pages to be filed no later 8/24/07 (Price, M) (Entered: 07/27/2007)
210 TRANSCRIPT of Oral Argument held on 7/27/2007 before Judge Frank C. Damrell, Jr.. Court Reporter: Michelle Babbitt. (TEXT ONLY) (Matson, R) (Entered: 08/02/2007)
211 SUPPLEMENTAL Memorandum of Points and Authorities in OPPOSITION to Defendants' MOTION for Judgment on the Pleadings 118 (Olivier, Monique) Modified on 8/16/2007 (Mena−Sanchez, L). (Entered: 08/10/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 22 of 55

08/17/2007 08/31/2007 08/31/2007 09/06/2007
09/11/2007
09/14/2007
09/14/2007 09/14/2007 09/14/2007 09/18/2007 09/19/2007
10/11/2007

212 REPLY to RESPONSE to MOTION. Reply to Plaintiffs' Supplemental Brief to Defendants' Motion for Judgment on the Pleadings (Acero, George) (Entered: 08/17/2007)
213 NOTICE OF MOTION AND MOTION for PROTECTIVE ORDER by Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 9/26/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 9/4/2007 (Carlos, K). (Entered: 08/31/2007)
214 ORDER re 213 MOTION for PROTECTIVE ORDER. Signed by Judge Edmund F. Brennan on 8/31/07. (Hinkle, T) (Entered: 08/31/2007)
215 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 9/6/07 re supplemental briefing needed on 188 Motion for Judgment on Pleadings. Pltfs to file letter brief, not to exceed 4 pages, on the issue of pltfs' notice of their claims of systemic discrimination against women by Friday, 9/14/07 at 5:00 p.m. Defts may file a reply letter brief, not to exceed 4 pages, by Friday, 9/21/07 at 5:00 p.m. (Price, M) (Entered: 09/06/2007)
216 AMENDED MOTION for PROTECTIVE ORDER amending 213 MOTION for PROTECTIVE ORDER by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 10/17/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 9/12/2007 (Mena−Sanchez, L). (Entered: 09/11/2007)
217 MINUTE ORDER (Text only) by CRD:The court construes plaintiffs' amended notice of motion 216 as a request to continue the hearing to October 17, 2007. L.R. 78−230(g). That request is granted and the hearing is continued. The joint statement required under Local Rule 37−251 shall be due five court days before the newly scheduled hearing. If the parties wish to continue the hearing again, they shall submit a request pursuant to 78−230(g), and if granted, the joint statement will be due five court days before the hearing date. (Cannarozzi, N) (Entered: 09/14/2007)
218 STIPULATION Joint Stipulated Request to Further Modify the Scheduling Order by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 09/14/2007)
219 PROPOSED ORDER Proposed Order re Joint Stipulated Request to Further Modify the Scheduling Order re 218 Stipulation by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 09/14/2007)
220 MEMORANDUM/RESPONSE in OPPOSITION. Supplemental Briefing in Opposition to Motion for Judgment on the Pleadings (Letter Brief) (Olivier, Monique) (Entered: 09/14/2007)
221 REPLY to RESPONSE to MOTION. Second Supplemental Reply in Support of Defendants' Motion for Judgment on the Pleadings (Acero, George) (Entered: 09/18/2007)
222 ORDER signed by Judge Frank C. Damrell Jr. on 09/18/07 MODIFYING SCHEDULING ORDER as follows:Expert Discovery Cut−off is 1/11/2008, Discovery due by 12/28/2007, Dispositive Motion to be heard by 2/22/2008, Deadline to file Joint PTS is 4/11/08, Final Pretrial Conference set for 4/18/2008 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. and trial still set for 6/17/08 at 9:00 am before Judge Frank C. Damrell Jr. (Dillon, M) (Entered: 09/19/2007)
223 NOTICE TO WITHDRAW JOINT STATEMENT RE: 216 AMENDED MOTION for PROTECTIVE ORDER amending 213 by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 10/15/2007 (Mena−Sanchez, L). (Entered: 10/11/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 23 of 55

10/12/2007
10/15/2007 10/18/2007
10/23/2007
10/23/2007 10/29/2007 11/06/2007 11/06/2007 11/06/2007 11/06/2007 11/06/2007 11/06/2007 11/06/2007 11/06/2007

224 MOTION for PROTECTIVE ORDER [F.R.C.P. 26(c)] by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 11/7/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 10/15/2007 (Yin, K). (Entered: 10/12/2007)
225 BRIEFING ORDER re 224 MOTION for PROTECTIVE ORDER under F.R.C.P. 26(c). Signed by Judge Edmund F. Brennan on 10/15/2007. (Hinkle, T) (Entered: 10/15/2007)
226 MEMORANDUM AND ORDER granting signed by Judge Frank C. Damrell Jr. on 10/18/07.The court makes the following orders on defts' 188 motion for judgment on the pleadings: Deft UCD's motion for judgment on the pleadings re: pltfs' first claim for relief under Title IX based upon a theory unequal treatment − GRANTED; re: pltfs' first claim for relief under Title IX based upon a theory of ineffective accommodation − DENIED; re: pltfs' second claim for relief under Title IX − GRANTED; re: pltfs' third claim for relief for retaliation in violation of Title IX − GRANTED; re: pltfs' claims for punitive damages under Title IX − GRANTED; re: pltfs' claims for emotional distress damages under Title IX − DENIED. The individual defts' motion for judgment on the pleadings re: pltfs' claims brought pursuant to 42 U.S.C. section 1983 − GRANTED. Defts' motion for judgement on the pleadings re: pltfs' state law claims − GRANTED.(Price, M) (Entered: 10/18/2007)
227 MOTION to COMPEL Further Disclosures and Discovery by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 11/14/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 10/24/2007 (Mena−Sanchez, L). (Entered: 10/23/2007)
228 BRIEFING ORDER re 227 MOTION to COMPEL Further Disclosures and Discovery. Signed by Judge Edmund F. Brennan on 10/23/07. (Hinkle, T) (Entered: 10/23/2007)
229 AMENDED MOTION for PROTECTIVE ORDER by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 11/14/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan.(Acero, George). (Entered: 10/29/2007)
230 DECLARATION of Nancy J. Sheehan in Support of. Joint Statement Re Discovery Disagreement/Motion for Protective Order (Acero, George) (Entered: 11/06/2007)
231 DECLARATION of George A. Acero in Support of. Joint Statement Re Discovery Disagreement/Motion for Protective Order (Acero, George) (Entered: 11/06/2007)
232 EXHIBIT Appendix of Exhibits in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)
233 EXHIBIT A−B in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)
234 EXHIBIT C−D in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)
235 DECLARATION of Whitney Huston in Support of. Attorney Huston, Whitney Bryn added. Joint Statement Re Discovery Disagreement / Motion For Protective Order (Attachments: # 1 Exhibit Exhibits A−C# 2 Exhibit Exhibits D−F# 3 Exhibit Exhibits G−I# 4 Exhibit Exhibits J−L# 5 Exhibit Exhibits M−N)(Huston, Whitney) (Entered: 11/06/2007)
236 EXHIBIT E−I in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)
237 EXHIBIT J−R in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 24 of 55

11/06/2007 11/06/2007 11/06/2007
11/07/2007 11/07/2007
11/08/2007
11/09/2007 11/14/2007
11/14/2007
11/15/2007 11/16/2007 11/19/2007 11/19/2007 11/28/2007

238 EXHIBIT S−T in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)
239 EXHIBIT U−Z in Support of Joint Statement Re Discovery Disagreement/Motion for Protective Order. (Acero, George) (Entered: 11/06/2007)
240 MOTION for PROTECTIVE ORDER Joint Statement Re Discovery Disagreement/Motion for Protective Order by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 11/14/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) (Entered: 11/06/2007)
241 NOTICE of Errata to Joint Statement Re: Discovery Disagreement/Motion for Protective Order
242 AMENDED Joint Statement Re Discovery Disagreement/Motion for Protective Order by Swanson, Regents of the University of California, University of California at Davis, Vanderhoef, Warzecka, Gill−Fisher, Franks. Motion Hearing set for 11/14/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 11/9/2007 (Matson, R). (Entered: 11/07/2007)
243 CLERK'S NOTICE of DOCKET CORRECTION re 233 Exhibit − A−B. This document contains pages that contains pages that are difficult to read. The clerk's office requests that the attorney refile the document online or to submit a more legible paper copy to the court. (Plummer, M) Modified on 11/14/2007 (Plummer, M). (Entered: 11/08/2007)
244 WITHDRAWAL of 227 MOTION to COMPEL by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 11/09/2007)
245 MINUTES (Text Only) for Motion hearing held on 11/14/07 before Judge Edmund F. Brennan re: Deft's Motion for Protective Order 229 .All parties present. Arguments heard. After consideration, the Court denied Deft's Motion. Court order to follow. Plaintiffs Counsel Monique Olivier and Whitney Huston present. Defendants Counsel George Acero present. Court Reporter/CD Number: Tiffany Brown, ECRO. (Cannarozzi, N) (Entered: 11/14/2007)
246 MOTION for PROTECTIVE ORDER by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 12/5/2007 at 10:00 PM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 11/15/2007 (Plummer, M). (Entered: 11/14/2007)
247 BRIEFING ORDER re 246 MOTION for PROTECTIVE ORDER filed by defendants. Signed by Judge Edmund F. Brennan on 11/15/07. (Hinkle, T) (Entered: 11/15/2007)
248 MOTION to COMPEL Discovery Responses by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. Motion Hearing set for 12/19/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Olivier, Monique) Modified on 11/16/2007 (Marciel, M). (Entered: 11/16/2007)
249 BRIEFING ORDER re 248 Motion to Compel Discovery Responses. Signed by Judge Edmund F. Brennan on 11/19/07. (Hinkle, T) (Entered: 11/19/2007)
250 ORDER signed by Judge Edmund F. Brennan on 11/19/07 ORDERING that Defendants' Motion for Protective Order deeming the documents unusable in this litigation 242 is DENIED. (Mena−Sanchez, L) (Entered: 11/19/2007)
251 DECLARATION of Mark T. Johnson in SUPPORT of Joint Discovery Statement re Discovery Disagreement / Motion for Protective Order 258 (Attachments: # 1 Exhibit A−B# 2 Exhibit C# 3 Exhibit D# 4 Exhibit E)(Johnson, Mark) Modified on 11/30/2007 (Mena−Sanchez, L). (Entered: 11/28/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 25 of 55

11/28/2007 11/28/2007 11/28/2007 11/28/2007 11/28/2007 11/28/2007 11/28/2007
12/03/2007 12/03/2007 12/04/2007
12/04/2007
12/04/2007

252 DECLARATION of Nancy J. Sheehan in Support of Motion for Protective Order Re: Chancellor Vanderhoef's Deposition (Acero, George) Modified on 11/30/2007 (Mena−Sanchez, L). (Entered: 11/28/2007)
253 DECLARATION of George A. Acero in Support. of Motion for Protective Order Re: Chancellor Vanderhoef's Deposition (Acero, George) (Entered: 11/28/2007)
254 Appendix of Exhibits in Support of Motion for Protective Order Re: Chancellor Vanderhoef's Deposition. (Acero, George) Modified on 11/30/2007 (Mena−Sanchez, L). (Entered: 11/28/2007)
255 EXHIBIT A − B in Support of Joint Statement Motion for Protective Order Re: Chancellor Vanderhoef's Deposition. (Acero, George) (Entered: 11/28/2007)
256 EXHIBIT C in Support of Joint Statement Motion for Protective Order Re: Chancellor Vanderhoef's Deposition. (Acero, George) (Entered: 11/28/2007)
257 EXHIBIT D − K in Support of Joint Statement Motion for Protective Order Re: Chancellor Vanderhoef's Deposition. (Acero, George) (Entered: 11/28/2007)
258 JOINT STATEMENT RE DISCOVERY DISAGREEMENT/MOTION for PROTECTIVE ORDER Re: Chancellor Vanderhoef's Deposition by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Motion Hearing set for 12/5/2007 at 10:00 AM in Courtroom 25 (EFB) before Judge Garland E. Burrell Jr.. (Acero, George) Modified on 11/30/2007 (Mena−Sanchez, L). (Entered: 11/28/2007)
259 EX PARTE APPLICATION to Extend Page Limit on Defendant's Motion for Summary Judgment by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 12/03/2007)
260 PROPOSED ORDER to Ex Parte Application to Extend Page Limit on Defendant's Motion for Summary Judgment by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 12/03/2007)
261 MOTION to COMPEL Defendant's Notice of Motion to Compel Further Discovery by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 12/19/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Acero, George) Modified on 12/5/2007 (Matson, R). (Entered: 12/04/2007)
262 MINUTE ORDER (text only) by CRD: Defendant's motion to compel discovery 261 is noticed for hearing on December 19, 2007, fewer than twenty−one days from the date the motion was filed. L.R. 37−251(a). Although defense counsel states in the notice that the parties have stipulated to have the motion heard on shortened time, the notice contains no evidence of plaintiffs' stipulation. Further, any such stipulation must be submitted to the court for approval pursuant to L.R. 6−144(e). Accordingly, pending receipt of a stipulated proposed order shortening time, the motion is vacated from the court's law and motion calendar. (Cannarozzi, N) (Entered: 12/04/2007)
263 ORDER signed by Judge Frank C. Damrell Jr. on 12/4/07. 259 Ex Parte Application filed by Greg Warzecka, Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Regents of the University of California, University of California at Davis and Lawrence Swanson − GRANTED IN PART. Deft REGENTS OF THE UNIVERSITY OF CALIFORNIA IS permitted to file Motion for Summary Judgment in excess of 20 pages, but not to exceed 40 pages. Plts are permitted to file its Opposition in excess of 20 pages, but not to exceed 40 pages. Deft is permitted to file a reply in excess of 10 pages, but not to exceed 20 pages. (Price, M) (Entered: 12/04/2007)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 26 of 55

12/04/2007 12/04/2007 12/05/2007 12/05/2007 12/05/2007 12/07/2007 12/10/2007 12/10/2007 12/12/2007 12/12/2007 12/13/2007
12/14/2007

264 STIPULATION and PROPOSED ORDER Stipulation to Have Defendant's Motion to Compel Further Discovery Heard on Shortened Time by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 12/04/2007)
265 PROPOSED ORDER Proposed Order Stipulation to Have Defendant's Motion to Compel Further Discovery Heard on Shortened Time by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) (Entered: 12/04/2007)
266 MINUTES (Text Only) for MOTION HEARING held on 12/5/2007 before Judge Edmund F. Brennan re: Deft's Motion for Protective Order 246 : All parties present. Arguments heard. Court order to follow. Plaintiffs Counsel Mark Johnson present. Defendants Counsel George Acero present. Court Reporter/CD Number: Tiffany Brown, ECRO. (Cannarozzi, N) (Entered: 12/05/2007)
267 STIPULATION and ORDER signed by Judge Edmund F. Brennan on 12/4/2007 GRANTING 264 Stipulation and Proposed Order to have defendant's Motion to Compel further discovery heard on shortened time.(Matson, R) (Entered: 12/05/2007)
268 BRIEFING ORDER re 261 Defendant's Notice of Motion to Compel Further Discovery filed by Greg Warzecka, Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Regents of the University of California, University of California at Davis, Lawrence Swanson. Signed by Judge Edmund F. Brennan on 12/5/07. (Hinkle, T) (Entered: 12/05/2007)
269 AMENDED MOTION to COMPEL amending 248 Motion to Compel Discovery Responses Amended Notice of Motion to Compel Discovery Responses by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng.Motion Hearing set for 12/19/2007 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Olivier, Monique) (Entered: 12/07/2007)
270 STIPULATION and PROPOSED ORDER Stipulation regarding Further Modification to the Second Amended Scheduling Order by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 12/10/2007)
271 PROPOSED ORDER Re: Further Modification to the Second Amended Scheduling Order re 270 Stipulation and Proposed Order, by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 12/10/2007)
272 WITHDRAWAL of 261 MOTION to COMPEL by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 12/17/2007 (Carlos, K). (Entered: 12/12/2007)
273 NOTICE to Withdraw pltfs' Motion to Compel by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) Modified on 12/17/2007 (Carlos, K). (Entered: 12/12/2007)
274 STIPULATION and ORDER (ORDER MODIFIED FROM SUBMITTED VERSION) signed by Judge Frank C. Damrell Jr. on 12/13/07. Dispositive Motion shall be heard no later than 3/28/2008. The parties are to refer to the order for the dispositive motion briefing schedule. Final Pretrial Conference RESET for 6/6/2008 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Jury Trial RESET for 8/12/2008 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Price, M) (Entered: 12/13/2007)
275 TRANSCRIPT of Hearing re: 246 Defendant's Motion for Protective Order held on 12/5/07 before The Honorable Edmund F. Brennan. (TEXT ONLY) (Schultz, C) (Entered: 12/17/2007)

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12/20/2007 12/20/2007 12/21/2007 12/21/2007
01/11/2008
01/11/2008
01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008

276 STIPULATION Joint Stipulated Request To Further Modify The Second Amended Scheduling Order by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 12/20/2007)
277 PROPOSED ORDER Re Joint Stipulated Request To Further Modify The Second Amended Scheduling Order by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 12/20/2007)
278 ORDER signed by Judge Edmund F. Brennan on 12/21/07 denying 246 Motion for Protective Order. Chancellor Vanderhoef shall appear for deposition and defendant shall produce the documents previously withheld on the basis of deliberative process privilege. (Plummer, M) (Entered: 12/21/2007)
279 ORDER RE JOINT STIPULATED REQUEST TO FURTHER MODIFY THE SECOND AMENDED SCHEDULING ORDER signed by Judge Frank C. Damrell Jr. on 12/21/07. Parties may take the deposition of Dennis Shimek on January 9, 2008. Plaintiffs may bring a motion to compel before Magistrate Brennan on defendants responses to interrogatories propounded by Lauran Mancuso and Christine Ng to be heard no later than January 30, 2008. Defendant may bring a motion to compel before Magistrate Brennan on Plaintiff Arezou Mansourians responses to request for admissions, set two, propounded by defendant to be heard no later than January 30, 2008. (Dillon, M) (Entered: 12/21/2007)
280 NOTICE of MOTION for SUMMARY JUDGMENT by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks.Motion Hearing set for 3/28/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Sheehan, Nancy) Modified on 1/15/2008 (Matson, R). (Entered: 01/11/2008)
281 NOTICE of Filing Records Under Seal Pursuant to Protective Order in Support of Defendant's Motion for Summary Judgment by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher.Motion Hearing set for 3/28/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Sheehan, Nancy) Modified on 1/15/2008 (Matson, R). (Entered: 01/11/2008)
282 REQUEST for JUDICIAL NOTICE in Support of Defendant's Motion for Summary Judgment by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher. (Sheehan, Nancy) Modified on 1/15/2008 (Matson, R). (Entered: 01/11/2008)
283 APPENDIX of Title IX Clarifications Cited in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) Modified on 1/15/2008 (Matson, R). (Entered: 01/11/2008)
284 MEMORANDUM of Points and Authorities in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) Modified on 1/16/2008 (Matson, R). (Entered: 01/11/2008)
285 STATEMENT of Undisputed Material Facts in Support of Defendant's Motion for Summary Judgment by Defendants Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 01/11/2008)
286 APPENDIX of Exhibits in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) Modified on 1/17/2008 (Matson, R). (Entered: 01/11/2008)
287 EXHIBIT A − H in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
288 DECLARATION of Nancy J. Sheehan in Support of Motion for Summary Judgment. (Sheehan, Nancy) Modified on 1/17/2008 (Matson, R). (Entered: 01/11/2008)

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01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/11/2008 01/15/2008 01/25/2008
01/28/2008

289 EXHIBIT I − U In Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
290 EXHIBIT V − Z in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
291 EXHIBIT AA − EE in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
292 EXHIBIT FF − KK in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
293 EXHIBIT FF − KK in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
294 EXHIBIT LL − SS in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
295 EXHIBIT TT − ZZ in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
296 EXHIBIT AAA − JJJ in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
297 EXHIBIT KKK − SSS in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
298 EXHIBIT TTT − VVV in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
299 EXHIBIT WWW − ZZZ in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
300 EXHIBIT AAAA (part 1 of 3) in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
301 EXHIBIT AAAA (part 2 of 3) in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
302 EXHIBIT AAAA (part 3 of 3) in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
303 EXHIBIT BBBB − CCCC in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
304 EXHIBIT DDDD in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
305 EXHIBIT EEEE in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
306 EXHIBIT FFFF − HHHH in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
307 EXHIBIT IIII in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
308 EXHIBIT JJJJ − QQQQ in Support of Defendant's Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 01/11/2008)
309 NOTICE of CHANGE of ADDRESS by Monique Olivier. (Olivier, Monique) (Entered: 01/15/2008)
310 NOTICE of Errata to Defedant's Motion for Summary Judgment by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 1/28/2008 (Matson, R). (Entered: 01/25/2008)
311 STIPULATION Joint Stipulated Request to Further Modify the Second Amended Scheduling Order by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 01/28/2008)

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01/28/2008 01/29/2008
03/06/2008
03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008
03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008

312 PROPOSED ORDER re Joint Stipulated Request to Further Modify the Second Amended Scheduling Order by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) Modified on 1/29/2008 (Dillon, M). (Entered: 01/28/2008)
313 STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 1/29/08. RESET MOTION HEARING as to 280 MOTION for SUMMARY JUDGMENT for 4/25/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs shall file their opposing papers on or before 3/6/08. Defendant shall file its reply papers on or before 3/31/08. (Price, M) (Entered: 01/29/2008)
314 MOTION to SEAL Confidential Documents Under Seal Pursuant To Protective Order In Opposition To Defendants Motion For Summary Judgment by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. Motion Hearing set for 4/25/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
315 Motion To File Confidential Documents Under Seal Pursuant To Protective Order In Opposition To Defendants Motion For Summary Judgment (Olivier, Monique) Modified on 3/7/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
316 PROPOSED ORDER RE: MOTION 314 . (Olivier, Monique) Modified on 3/7/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
317 Plaintiff's NOTICE OF FILING Sealed Confidential Documents Pursuant To Protective Order In Opposition To Defendants Motion For Protective Order (Olivier, Monique) Modified on 3/7/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
318 CERTIFICATE of SERVICE by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng re 315 . (Olivier, Monique) Modified on 3/7/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
319 MOTION to STRIKE Portions of the Declaration of Christine Grant In Support of Defendant's Motion for Summary Judgment by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. Motion Hearing set for 4/25/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
320 Plaintiffs' Motion to Strike Portions of the Declaration of Christine Grant in Support of Defendant's Motion for Summary Judgment (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
321 DECLARATION of Monique Olivier in Support of 319 Motion to Strike (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
322 [PROPOSED] ORDER Granting Plaintiffs' Motion to Strike 319 (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
323 OPPOSITION by Plaintiffs to Defendant's Request for Judicial Notice in Support of Defendant's Motion for Summary Judgment 280 (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
324 NOTICE of Lodging Deposition Transcripts Pursuant to Local Rule 5−133(J) by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 03/06/2008)
325 Evidence Submitted by Plaintiffs in Support of Their Opposition to Defendant's Motion for Summary Judgment 280 (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
326 EXHIBITS A−A:11 Volume 1 of Evidence Submitted by Plaintiffs in Support of Their Opposition to Defendants' Motion for Summary Judgment 280 (Attachments: # 1 Exhibit A to A:5, # 2 Exhibit A:6 to A:9, # 3 Exhibit A:10, # 4 Exhibit A:11)(Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 30 of 55

03/06/2008
03/06/2008 03/06/2008
03/06/2008
03/06/2008
03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008

327 EXHIBITS A:12−A:39 Volume 2 of Evidence Submitted by Plaintiffs in Support of Their Opposition to Defendant's Motion for Summary Judgment 280 . (Attachments: # 1 Exhibit A:12 to A:19, # 2 Exhibit A:17 to A:19, # 3 Exhibit A:20 to A:23, # 4 Exhibit A:24−A:33, # 5 Exhibit A:34 to A:39)(Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
328 EXHIBITS A:40−A:60 Volume 3 of Evidence Submitted By Plaintiffs in Support of Their Opposition To Defendants Motion For Summary Judgment 280 . (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
329 EXHIBITS A:40−A:60 Volume 3 of Evidence Submitted By Plaintiffs in Support of Their Opposition To Defendants Motion For Summary Judgment 280 . (Attachments: # 1 Exhibit A:40 to A:48, # 2 Exhibit A:49 − Part 1, # 3 Exhibit A:49 − Part 2, # 4 Exhibit A:49 − Part 3, # 5 Exhibit A:50 to A:53, # 6 Exhibit A:54 to A:59, # 7 Exhibit A:60)(Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
330 EXHIBITS A:61−A:153 Volume 4 of Evidence Submitted By Plaintiffs in Support of Their Opposition To Defendants Motion For Summary Judgment 280 . (Attachments: # 1 Exhibit A:61 to A:70, # 2 Exhibit A:71 to A:138, # 3 Exhibit A:139 to A:147, # 4 Exhibit A:148 to A:153)(Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
331 EXHIBITS A:154−A:180 Volume 5 of Evidence Submitted By Plaintiffs in Support of Their Opposition To Defendants Motion For Summary Judgment 280 . (Attachments: # 1 Exhibit A:154 to A:160, # 2 Exhibit A:161 to A:168, # 3 Exhibit A:169 to A:180)(Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
332 EXHIBITS B, B:1−B:13 Volume 6 of Evidence Submitted By Plaintiffs in Support of Their Opposition To Defendants Motion For Summary Judgment 280 . (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
333 EXHIBITS B:14−B:26 Volume 7 of Evidence in Support of Their Opposition to Defendants Motion For Summary Judgment 280 (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
334 EXHIBITS B:27−B:33 Volume 8 re: 280 . (Olivier, Monique) Modified on 3/11/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
335 EXHIBITS B:34−B:45 Volume 9 of Evidence Submitted By Plaintiffs in Support of their Opposition to Defendants Motion For Summary Judgment 280 . (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
336 EXHIBITS B:46−B:61 Volume 10 of Evidence Submitted By Plaintiffs in Support of Their Opposition To Defendants Motion For Summary Judgment 280 . (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
337 EXHIBITS B:62−C:4 Volume 11 of Evidence RE: 280 . (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
338 OBJECTIONS by Plaintiffs To Evidence Submitted By Defendant In Support of Motion for Summary Judgment 280 . (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
339 Plaintiffs' STATEMENT of Additional Disputed Facts In Support Of Plaintiffs Opposition To Defendants Motion For Summary Judgment. 280 (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
340 ORDER granting signed by Judge Frank C. Damrell, Jr on 3/6/08. Pltfs' 314 Motion to File Confidential Documents Under Seal Pursuant to Protective Order in Opposition to Defendants Motion for Summary Judgment − is GRANTED. (Price, M) (Entered: 03/06/2008)
341 Plaintiffs Response To Defendants' Separate Statement Of Material Facts In Support Of Motion For Summary Judgment 280 (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)

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03/06/2008 03/11/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008 03/31/2008
03/31/2008
03/31/2008
03/31/2008 03/31/2008

342 OPPOSITION to Defendant's Motion for Summary Judgment (Olivier, Monique) Modified on 3/12/2008 (Mena−Sanchez, L). (Entered: 03/06/2008)
343 SEALED EVENT (Attachments: # 1 Part 2 of 3, # 2 Part 3 of 3) (Mena−Sanchez, L) (Entered: 03/11/2008)
344 OBJECTIONS to 325 Plaintiffs' Evidence in Opposition to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
345 REPLY to Plaintiffs' Opposition to 282 Request for Judicial Notice in Support of Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
346 REPLY to 339 Plaintiffs' Statement of Additional Disputed Facts to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
347 DECLARATION of Mark Honbo in Support of Reply to Plaintiffs' Opposition to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
348 MOTION to STRIKE the Declaration of Carla Konet in Support of Plaintiffs' Opposition to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
349 REPLY to Plaintiffs' Opposition to Memorandum of Points and Authorities in Support of Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
350 SUPPLEMENTAL DECLARATION of Michelle Roppeau in Support of Reply to Plaintiffs' Opposition to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
351 SUPPLEMENTAL DECLARATION of Greg Warzecka in Support of Reply to Plaintiffs' Objections to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
352 RESPONSE in OPPOSITION to 319 Motion to Strike Portions of Christine Grant's Declaration in Support of Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
353 REPLY to Plaintiffs' Opposition to Defendant's Separate Statement of Undisputed Material Facts in Support of 280 Motion for Summary Judgement (Part 1 of 3) by Defendants Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
354 REPLY to Plaintiffs' Opposition to Defendant's Separate Statement of Undisputed Material Facts in Support of 280 Motion for Summary Judgement (Part 2 of 3) by Defendants Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
355 REPLY to Plaintiffs' Opposition to Defendant's Separate Statement of Undisputed Material Facts in Support of 280 Motion for Summary Judgement (Part 3 of 3) by Defendants Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
356 SUPPLEMENTAL DECLARATION of George A. Acero in Support of Reply to Plaintiffs' Objections to Defendant's 280 Motion for Summary Judgment. (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
357 REPLY to 338 Plaintiffs' Objections to Evidence Submitted by Defendant in Support of 280 Motion for Summary Judgment. (Part 1 of 2) (Acero, George)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 32 of 55

03/31/2008 03/31/2008 04/11/2008 04/17/2008 04/17/2008 04/17/2008 04/17/2008 04/17/2008 04/17/2008
04/22/2008
04/23/2008 04/23/2008 05/06/2008
05/06/2008 05/06/2008

Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
358 REPLY to 338 Plaintiffs' Objections to Evidence Submitted by Defendant in Support of 280 Motion for Summary Judgment. (Part 2 of 2) (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
359 REPLY to 338 Plaintiffs' Objections to Evidence Submitted by Defendant in Support of 280 Motion for Summary Judgment. (Part 3) (Acero, George) Modified on 4/1/2008 (Engbretson, K.). (Entered: 03/31/2008)
360 MEMORANDUM/RESPONSE in OPPOSITION to Defendants Motion to Strike (Olivier, Monique) Modified on 4/15/2008 (Dillon, M). (Entered: 04/11/2008)
361 REPLY to RESPONSE to MOTION. Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion to Strike Portions of Christine Grant's Declaration in Support of Motion for Summary Judgment (Olivier, Monique) (Entered: 04/17/2008)
362 DECLARATION of Noreen Farrell in Support Of. Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion to Strike Portions of the Declaration of Christine Grant (Olivier, Monique) (Entered: 04/17/2008)
363 REPLY/RESPONSE to Defendant's Objections to Evidence Submitted by Plaintiffs in Opposition to Defendant's Motion for Summary Judgment by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 04/17/2008)
364 DECLARATION of Whitney Huston. Supplemental Declaration of Whitney Huston in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment (Olivier, Monique) (Entered: 04/17/2008)
365 DECLARATION of Whitney Huston. Supplemental Declaration of Whitney Huston in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment (Attachments: # 1 Exhibit B:2 to B:32, # 2 Exhibit B:33 to B:69)(Olivier, Monique) (Entered: 04/17/2008)
366 OBJECTIONS by Plaintiffs Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. Plaintiffs' Objections to Defendant's Evidence Submitted in Support of Reply Brief and Amended Objections to Defendant's Evidence Submitted in Support of Motion for Summary Judgment (Olivier, Monique) (Entered: 04/17/2008)
367 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell, Jr on 04/22/08. Deft's 280 Motion for Summary Judgment and Pltf's 320 motion to strike − MOTIONS SUBMITTED: without oral argument. The hearing set for 4/25/08 is VACATED. The court shall issue a written order. (TEXT ONLY) (Price, M) (Entered: 04/22/2008)
368 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 04/23/08. Deft's 280 Motion for Summary Judgment − GRANTED. The Clerk is directed to close the file. All dates are VACATED. CASE CLOSED. (Price, M) (Entered: 04/23/2008)
369 JUDGMENT entered pursuant to Order entered on *04/23/08* by Judge Frank C. Damrell, Jr on 04/23/08. (Price, M) (Entered: 04/23/2008)
370 BILL of COSTS SUBMITTED ;Declaration of Nancy J. Sheehan in Support of Defendants' Cost Bill by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 05/06/2008)
371 BILL of COSTS SUBMITTED − Part 2 by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 05/06/2008)
372 BILL of COSTS SUBMITTED − Part 3 by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered:

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 33 of 55

05/15/2008 05/15/2008 05/22/2008 05/22/2008 05/23/2008 05/30/2008
06/05/2008 06/18/2008 06/19/2008 06/19/2008 06/19/2008 06/19/2008 06/19/2008
06/19/2008 06/19/2008 06/20/2008

05/06/2008)
373 STIPULATION and [PORPOSED] ORDER for 30 day Extension for Plaintiffs to file objections to Bill of Costs 370 , 371 , 372 by Arezou Mansourian. (Farrell, Noreen) Modified on 5/16/2008 (Mena−Sanchez, L). (Entered: 05/15/2008)
374 [PROPOSED] ORDER re Stipulation for Extension of time 373 (Farrell, Noreen) Modified on 5/16/2008 (Mena−Sanchez, L). (Entered: 05/15/2008)
375 ORDER signed by Judge Frank C. Damrell, Jr on 5/22/08 GRANTING Plaintiff an Extension of Time until 6/19/08 to file objections to the Bill of Costs. (Krueger, M) (Entered: 05/22/2008)
376 NOTICE of APPEAL by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng as to 369 Judgment, 368 Order on Motion for Summary Judgment. (Attachments: # 1 Appeal Notice Civil Appeals Docketing Statement)(Olivier, Monique) (Entered: 05/22/2008)
RECEIPT number #CAE200007289 $455.00 fbo Arezou Mansourian by Sarah Camiso on 5/23/2008. (Benson, A) (Entered: 05/23/2008)
378 APPEAL PROCESSED to Ninth Circuit re 376 Notice of Appeal − ATY filed by Christine Wing−Si Ng, Lauren Mancuso, Arezou Mansourian. Filed dates for Notice of Appeal *5/22/2008*, Complaint *12/18/2003* and Appealed Order / Judgment *4/23/2008*. ** *Fee Status: Paid on 5/22/2008 in the amount of $455.00* ** (Attachments: # 1 Appeal Notice, # 2 Certificate) (Matson, R) (Entered: 05/30/2008)
379 USCA CASE NUMBER 08−16330 for 376 Notice of Appeal − ATY filed by Christine Wing−Si Ng, Lauren Mancuso, Arezou Mansourian. (Dillon, M) (Entered: 06/09/2008)
380 STIPULATION and PROPOSED ORDER Stipulated Protective Order Regarding Financial Information of Plaintiffs by Arezou Mansourian, Lauren Mancuso, Nancy Nien−Li Chiang. (Olivier, Monique) (Entered: 06/18/2008)
381 STIPULATED PROTECTIVE ORDER regarding financial information of pltfs signed by Judge Frank C. Damrell, Jr on 6/18/08. (Carlos, K) (Entered: 06/19/2008)
382 NOTICE of Ex Parte Motion to File Confidential Documents Under Seal In Support of Plaintiffs' Opposition to Defendant's Bill of Costs by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) Modified on 6/23/2008 (Matson, R). (Entered: 06/19/2008)
383 Ex Parte Motion to File Confidential Documents Under Seal In Support of Plaintiffs' Opposition to Defendant's Bill of Costs. (Olivier, Monique) Modified on 6/23/2008 (Matson, R). (Entered: 06/19/2008)
384 PROPOSED ORDER. Granting Plaintiffs' Ex Parte Motion to File Confidential Documents Under Seal In Support of Plaintiffs' Preliminary Objections to Defendant's Bill of Costs (Olivier, Monique) (Entered: 06/19/2008)
385 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng: Confidential Documents Under Seal In Support of Plaintiffs' Preliminary Objections to Defendant's Bill of Costs Filed with court pursuant to Local Rule 39−141. (Olivier, Monique) (Entered: 06/19/2008)
386 CERTIFICATE of SERVICE by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng Re Motion to File Under Seal. (Olivier, Monique) Modified on 6/23/2008 (Matson, R). (Entered: 06/19/2008)
387 OBJECTIONS by Plaintiffs Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng to Defendant's Bill of Costs. (Olivier, Monique) Modified on 6/23/2008 (Matson, R). (Entered: 06/19/2008)
401 SEALED EVENT (Waggoner, D) (Entered: 07/31/2008)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 34 of 55

06/23/2008 06/24/2008 07/03/2008 07/03/2008 07/03/2008
07/03/2008
07/03/2008 07/11/2008 07/11/2008 07/11/2008 07/11/2008 07/11/2008

389 LETTER from attorney Nancy J. Sheehan confirming that dft Regents have until 07/03/08 to file a response to the plf's Preliminary Objections to dft's Bill of Costs. (Benson, A) (Entered: 06/24/2008)
388 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr on 6/24/08: Pursuant to the parties Stipulated Protective Order 381 , Plaintiff's Motion to File Confidential Documents 382 is DENIED AS MOOT. (TEXT ONLY) (Krueger, M) (Entered: 06/24/2008)
390 REPLY/RESPONSE to Plaintiffs' Preliminary Objections to Bill of Costs by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 07/03/2008)
391 APPENDIX by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Appendix of Exhibits in Support of Defendants' Response to Plaintiffs' Preliminary Objections to Bill of Costs (Sheehan, Nancy) (Entered: 07/03/2008)
392 APPENDIX by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks re 391 Appendix, filed by Greg Warzecka, Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Regents of the University of California, University of California at Davis, Lawrence Swanson. Appendix of Exhibits in Support of Defendants' Response to Plaintiffs' Preliminary Objections to Bill of Costs (2 of 3) (Sheehan, Nancy) (Entered: 07/03/2008)
393 APPENDIX by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks re 392 Appendix,, filed by Greg Warzecka, Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Regents of the University of California, University of California at Davis, Lawrence Swanson, 391 Appendix, filed by Greg Warzecka, Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Regents of the University of California, University of California at Davis, Lawrence Swanson. Appendix of Exhibits in Support of Defendants' Response to Plaintiffs' Preliminary Objections to Bill of Costs (3 of 3) (Sheehan, Nancy) (Entered: 07/03/2008)
394 APPENDIX by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. Federal Appendix of Cited Cases in Support of Defendants' Response to Plaintiffs' Preliminary Objections to Bill of Costs [Local Rule 5−133(i)] (Sheehan, Nancy) (Entered: 07/03/2008)
395 MOTION to CONTINUE Consideration of Bill of Costs by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. Motion Hearing set for 8/15/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Farrell, Noreen) Modified on 7/11/2008 (Krueger, M). (Entered: 07/11/2008)
396 AMENDED MOTION to CONTINUE Consideration of Bill of Costs by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. Motion Hearing set for 8/22/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Farrell, Noreen) Modified on 7/11/2008 (Krueger, M). (Entered: 07/11/2008)
397 DECLARATION of Noreen Farrell in SUPPORT of 396 AMENDED MOTION to CONTINUE Consideration of Bill of Costs. (Farrell, Noreen) Modified on 7/11/2008 (Krueger, M). (Entered: 07/11/2008)
398 MEMORANDUM/RESPONSE in SUPPORT. OF MOTION TO CONTINUE CONSIDERATION OF DEFENDANTS' BILL OF COSTS (Farrell, Noreen) (Entered: 07/11/2008)
399 PROPOSED ORDER re 396 AMENDED MOTION to CONTINUE Consideration of Bill of Costs. (Farrell, Noreen) Modified on 7/17/2008 (Carlos, K). (Entered: 07/11/2008)

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07/15/2008
01/09/2009 08/31/2009
09/08/2009 02/08/2010 04/29/2010 04/29/2010
05/03/2010 05/10/2010 05/14/2010 05/18/2010 05/20/2010 06/17/2010 06/22/2010
06/23/2010

400 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 7/15/08 ORDERING that Plaintiffs' Motion to Deny Defendants' Bill of Costs is GRANTED. Plaintiffs' Motion to Continue Consideration of Bill of Costs 396 is MOOT and the Hearing date of 8/22/08 is VACATED. (Krueger, M) (Entered: 07/15/2008)
402 NOTICE of Change of Counsel by plaintiffs. (Olivier, Monique) Modified on 2/8/2010 (Marciel, M). (Entered: 01/09/2009)
403 TRANSMITTED RECORD on APPEAL to USCA # *08−16330* re 376 Notice of Appeal. * Volumes of Files: 2. Paper Documents: 1 to 35. Volumes of Expandable Folders: 1.* *Electronic Documents: 36 to 402.* (Mena−Sanchez, L) (Entered: 08/31/2009)
404 ACKNOWLEDMENT RECEIPT OF CLERK'S RECORDS. The USCA is in receipt of volumes 1−2 and EX 1. re 403 . (Mena−Sanchez, L) (Entered: 09/10/2009)
405 USCA OPINION for 376 Notice of Appeal filed by plaintiffs / appellants: the decision of District Court REVERSED and REMANDED for Further Proceedings consistent with this ruling. (Marciel, M) (Entered: 02/08/2010)
406 MANDATE of USCA: the 4/20/10 judgment as to the 405 Opinion takes affect this date. (Owen, K) (Entered: 04/29/2010)
407 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr on 4/29/2010: Pursuant to the Judgment from the United States Court of Appeals for the Ninth Circuit, this matter has been REVERSED and REMANDED to this Court. Therefore, a Status Conference has been SET for Friday, June 25, 2010 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. The parties are to submit a Joint Status Report on or before June 18, 2010. (TEXT ONLY) (Krueger, M) (Entered: 04/29/2010)
408 BILL of COSTS SUBMITTED by Arezou Mansourian, Lauren Mancuso, Christine Wing−Si Ng. (Olivier, Monique) (Entered: 05/03/2010)
409 AMENDED USCA JUDGMENT as to 376 Notice of Appeal filed by Christine Wing−Si Ng, Lauren Mancuso, Arezou Mansourian (Waggoner, D) (Entered: 05/10/2010)
410 USCA − PLAINTIFFS' BILL of COSTS SUBMITTED. (Becknal, R) Modified on 5/17/2010 (Becknal, R). (Entered: 05/17/2010)
411 COSTS TAXED in the amount of $780.25 against Defendants. (Becknal, R) Modified on 5/19/2010 (Becknal, R). Modified on 5/20/2010 (Krueger, M). (Entered: 05/19/2010)
APPEAL RECORD RETURNED from USCA 08−16330 (vol 1−2 and EX1) re 376 Notice of Appeal. (Mena−Sanchez, L) (Entered: 10/26/2010)
412 JOINT STATUS REPORT by Lawrence Swanson, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka, Pam Gill−Fisher, Robert Franks. (Sheehan, Nancy) (Entered: 06/17/2010)
413 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr on 6/22/2010: In light of the parties Joint Status Report filed on June 17, 2010 412 , the Status Conference hearing set for June 25, 2010 is hereby VACATED. The Court will issue a written scheduling order. (TEXT ONLY) (Krueger, M) (Entered: 06/22/2010)
414 SCHEDULING ORDER signed by Judge Frank C. Damrell, Jr on 06/22/10: Discovery due by 9/25/2010. Dispositive Motions filed by 11/5/2010. Joint Pretrial Statement due no later than 7 days prior to Final Pretrial Conference set for 3/4/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Jury Trial set for 4/26/2011 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Manzer, C) (Entered: 06/23/2010)

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08/27/2010 09/03/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010
09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010
09/10/2010 09/10/2010 09/10/2010

415 NOTICE of APPEARANCE by Jora Thu Trang on behalf of Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Attorney Trang, Jora Thu added. (Trang, Jora) (Entered: 08/27/2010)
416 NOTICE of CHANGE of ADDRESS by Monique Olivier. (Olivier, Monique) (Entered: 09/03/2010)
417 MOTION for SUMMARY JUDGMENT by Lawrence Vanderhoef. Motion Hearing set for 10/22/2010 at 10:00 AM in Courtroom 2 (AWI) before Judge Frank C. Damrell Jr.. (Sheehan, Nancy) (Entered: 09/10/2010)
418 DECLARATION of Nancy J. Sheehan in SUPPORT OF 417 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 09/10/2010)
419 STATEMENT of Undisputed Material Facts by Defendant Lawrence Vanderhoef re 417 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 09/10/2010)
420 EXHIBIT Appendix re 417 MOTION for SUMMARY JUDGMENT filed by Lawrence Vanderhoef. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sheehan, Nancy) (Entered: 09/10/2010)
421 REQUEST for JUDICIAL NOTICE by Lawrence Vanderhoef in re 417 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/10/2010)
422 EXHIBIT 1, part 1 to Request for Judicial Notice re 417 MOTION for SUMMARY JUDGMENT filed by Lawrence Vanderhoef. (Sheehan, Nancy) (Entered: 09/10/2010)
423 EXHIBIT 1 parts 2 − 6 to Request for Judicial Notice re 417 MOTION for SUMMARY JUDGMENT filed by Lawrence Vanderhoef. (Attachments: # 1 Exhibit 1 part 3, # 2 Exhibit 1 part 4, # 3 Exhibit 1 part 5, # 4 Exhibit 1 part 6)(Sheehan, Nancy) Modified on 9/22/2010 (Reader, L). (Entered: 09/10/2010)
424 EXHIBIT 2 and 3 to Request for Judicial Notice re 417 MOTION for SUMMARY JUDGMENT filed by Lawrence Vanderhoef. (Attachments: # 1 Exhibit)(Sheehan, Nancy) (Entered: 09/10/2010)
425 MEMORANDUM by Lawrence Vanderhoef in SUPPORT of 417 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 09/10/2010)
426 MOTION for SUMMARY JUDGMENT by Robert Franks. Motion Hearing set for 10/22/2010 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Sheehan, Nancy) (Entered: 09/10/2010)
427 DECLARATION of Nancy J. Sheehan in support of 426 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/10/2010)
428 STATEMENT of Undisputed Material Facts by Defendant Robert Franks re 426 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 09/10/2010)
429 EXHIBIT Appendix re 426 MOTION for SUMMARY JUDGMENT filed by Robert Franks. (Attachments: # 1 Exhibit Exhibits A−J to Appendix of Exhibits, # 2 Exhibit Exhibits K−O to Appendix of Exhibits)(Sheehan, Nancy) (Entered: 09/10/2010)
430 REQUEST for JUDICIAL NOTICE by Robert Franks in re 426 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/10/2010)
431 EXHIBIT 1, part 1 to Request for Judicial Notice re 426 MOTION for SUMMARY JUDGMENT filed by Robert Franks. (Sheehan, Nancy) (Entered: 09/10/2010)
432 EXHIBIT 1, parts 2−6 to Request for Judicial Notice re 426 MOTION for SUMMARY JUDGMENT filed by Robert Franks. (Attachments: # 1 Exhibit Exhibit 1, part 3 to Request for Judicial Notice, # 2 Exhibit Exhibit 1, part 4 to Request for Judicial Notice, # 3 Exhibit Exhibit 1, part 5 to Request for Judicial Notice, # 4 Exhibit Exhibit 1, part 6 to Request for Judicial Notice)(Sheehan, Nancy) (Entered: 09/10/2010)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 37 of 55

09/10/2010 09/10/2010 09/10/2010 09/13/2010
09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/14/2010
09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/17/2010 09/17/2010 09/17/2010
09/20/2010

433 EXHIBIT 2 and 3 to Request for Judicial Notice re 426 MOTION for SUMMARY JUDGMENT filed by Robert Franks. (Attachments: # 1 Exhibit)(Sheehan, Nancy) (Entered: 09/10/2010)
434 MEMORANDUM by Robert Franks in SUPPORT of 426 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 09/10/2010)
435 STIPULATION and PROPOSED ORDER for to Modify the Status (Pretrial Scheduling) Order by Regents of the University of California, University of California at Davis. (Sheehan, Nancy) (Entered: 09/10/2010)
436 STIPULATION and ORDER 435 To Modify The Status (Pretrial Scheduling) Order, signed by Judge Frank C. Damrell, Jr., on 9/13/10: The last date to hear dispositve motions shall BE 12/3/10. Discovery is to be completed BY 10/25/2010, aside from individual Dft financial status discovery. (Kastilahn, A) (Entered: 09/13/2010)
437 MOTION for SUMMARY JUDGMENT by Pam Gill−Fisher. Motion Hearing set for 10/22/10 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr. (Sheehan, Nancy) (Entered: 09/14/2010)
438 DECLARATION of Nancy J. Sheehan in support of 437 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/14/2010)
439 STATEMENT of Undisputed Material Facts by Defendant Pam Gill−Fisher re 437 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/14/2010)
440 MEMORANDUM by Pam Gill−Fisher in support of 437 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/14/2010)
441 APPENDIX OF EXHIBITS re 437 Motion for Summary Judgment filed by Pam Gill−Fisher. (Attachments: # 1 Exhibit A, # 2 Exhibit Exhibit B part 1 of 2, # 3 Exhibit B part 2 of 2)(Sheehan, Nancy) (Entered: 09/14/2010)
442 EXHIBITS C−P to 441 Appendix of Exhibits filed by Pam Gill−Fisher. (Attachments: # 1 Exhibits D−J to Appendix of Exhibits, # 2 Exhibit K−P to Appendix of Exhibits)(Sheehan, Nancy) Modified on 9/24/2010 (Benson, A.). (Entered: 09/14/2010)
443 MOTION for SUMMARY JUDGMENT by Lawrence Swanson. Motion Hearing set for 10/22/10 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Sheehan, Nancy) (Entered: 09/14/2010)
444 DECLARATION of Nancy J. Sheehan in support of 443 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/14/2010)
445 MEMORANDUM by Lawrence Swanson in support of 443 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/14/2010)
446 STATEMENT of Undisputed Material Facts by Defendant Lawrence Swanson re 443 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 09/14/2010)
447 APPENDIX OF EXHIBITS re 443 Motion for Summary Judgment filed by Lawrence Swanson. (Sheehan, Nancy) (Entered: 09/14/2010)
448 REQUEST for Page Limit Extension by Greg Warzecka. (Sheehan, Nancy) (Entered: 09/17/2010)
449 NOTICE of Withdrawal of Defendant Warzecka's Request for Page Limit Increase by All Defendants re 448 Request. Attorney Burkett, David Pontus Eugene added. (Burkett, David) (Entered: 09/17/2010)
450 STIPULATION and PROPOSED ORDER for Continuance of Motion for Summary Judgment Hearing by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Sheehan, Nancy) (Entered: 09/17/2010)
451 STIPULATION and ORDER 450 signed by Judge Frank C. Damrell, Jr., on 9/20/10, ORDERING that the hearing on dfts' motions for summary judgment 443 , 437 , 426 , 417 is CONT'D to 12/3/2010 at 10:00 AM in Courtroom 2 (FCD)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 38 of 55

09/22/2010 09/22/2010 09/22/2010
09/27/2010 09/27/2010 10/08/2010 10/11/2010 10/12/2010
10/14/2010 10/22/2010
10/26/2010 10/27/2010

before Judge Frank C. Damrell, Jr. Pltfs shall file their oppositions to the motions for summary judgment no LATER than 11/9/10; and dfts shall file their replies no LATER than 11/24/10. (Kastilahn, A) (Entered: 09/20/2010)
452 MOTION for SUMMARY JUDGMENT by Greg Warzecka. Motion Hearing set for 12/3/2010 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Declaration of Nancy J. Sheehan, # 3 Points and Authorities) (Sheehan, Nancy) Modified on 9/27/2010 (Marciel, M). (Entered: 09/22/2010)
453 APPENDIX of EXHIBITS in support of 452 Motion for Summary Judgment filed by Greg Warzecka. (Attachments: # 1 Exhibit B, part 1 to Appendix of Exhibits, # 2 Exhibit B, part 2 to Appendix of Exhibits, # 3 Exhibit C−J to Appendix of Exhibits, # 4 Exhibit K−X to Appendix of Exhibits) (Sheehan, Nancy) Modified on 9/27/2010 (Marciel, M). (Entered: 09/22/2010)
454 MOTION to FILE DOCUMENT UNDER SEAL pursuant to Protective Order by Greg Warzecka. Motion Hearing set for 12/3/2010 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Attachments: # 1 Notice of Motion to file Document Under Seal, # 2 Notice of filing Sealed Document pursuant to Protective Order, # 3 Proposed Order granting Motion to Seal Document) (Sheehan, Nancy) Modified on 9/27/2010 (Marciel, M). (Entered: 09/22/2010)
455 ORDER GRANTING 454 Motion to File Document Under Seal signed by Judge Frank C. Damrell, Jr on 9/27/10. Exhibit N in support of dft Warzecka's motion for summary judgment shall be filed under seal. (Manzer, C) (Entered: 09/27/2010)
456 SEALED DOCUMENT. (Krueger, M) (Entered: 09/27/2010)
457 REQUEST for Referral to Settlement Conference by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) (Entered: 10/08/2010)
458 RESPONSE by Regents of the University of California, University of California at Davis to 457 Request. (Sheehan, Nancy) (Entered: 10/11/2010)
459 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr on 10/12/2010: In light of Plaintiffs' Request for Referral to Settlement Conference 457 , and Defendants' Response thereto 458 , the Court hereby SETS a Status Conference regarding the request for settlement for Friday, October 22, 2010 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (TEXT ONLY) (Krueger, M) (Entered: 10/12/2010)
460 NOTICE of Change in Counsel by All Plaintiffs. (Farrell, Noreen) (Entered: 10/14/2010)
461 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: STATUS CONFERENCE re Plaintiffs' Request for Referral to a Settlement Conference held on 10/22/2010. The Court suggest the parties appear before Magistrate Judge Kimberly J. Mueller for a Settlement Conference and the parties agree. A Settlement Conference is thereby SET before Magistrate Judge Kimberly J. Mueller for Wednesday, February 9, 2011 at 1:30 PM in Courtroom # 26. At least seven (7) calendar days before the Settlement Conference, each party shall submit to the Chambers of Judge Mueller a Confidential Settlement Conference Statement. Each party shall serve notice on all other parties that the statement has been submitted. Plaintiffs Counsel Noreen Farrell present. Defendants Counsel Nancy Sheehan present. Court Reporter: Lisa Ussery, Diamond Court Reporters. (Krueger, M) (Entered: 10/22/2010)
462 EX PARTE APPLICATION by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng for Leave to File (1) a Consolidated Opposition to the Motions for Summary Judgment by the Individual Defendants; (2) a Consolidated Memorandum that Exceeds (20) Pages. (Attachments: # 1 Proposed Order Granting Ex−Parte Application)(Farrell, Noreen) (Entered: 10/26/2010)
463 ORDER signed by Judge Frank C. Damrell, Jr on 10/27/10 ORDERING 462 Ex Parte Application filed by Christine Wing−Si Ng, Lauren Mancuso, Arezou Mansourian GRANTED and they shall be permitted to file a consolidated opposition to the motions for summary judgment filed by the individual dfts and to

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 39 of 55

11/05/2010 11/08/2010
11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/09/2010

file asingle memorandum of points and authorities to address the motions of the individual dfts that exceeds the Court's 20 page limited but which is not more than 50 pages. (Carlos, K) (Entered: 10/27/2010)
464 STIPULATION and PROPOSED ORDER for DISMISSAL of Lawrence "Larry" Swanson by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) Modified on 11/8/2010 (Duong, D). (Entered: 11/05/2010)
465 STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 11/5/2010re 464 ORDERING that Plaintiffs' claims against defendant Lawrence Swanson in this action are dismissed in their entirety, with prejudice. Defendant Larry Swanson shall not seek attorneys' fees, costs or any other relief against Plaintiffs, on their own or through counsel, based upon the filing or prosecution of this action by them. Defendant agrees that neither he nor anyone on his behalf will pursue any claim against Plaintiffs or their counsel for their prosecution of this action against him, including a malicious prosecution claim. Defendant Larry Swanson will withdraw his Motion for Summary Judgment currently set for hearing on December 3, 2010. Each of the parties to bear their own costs.(Duong, D) (Entered: 11/08/2010)
466 EXHIBIT of EVIDENCE − VOLUME 1 (Exhibits A: 001−A:011) submitted by plts in support of their Opposition to dfts' 417 426 437 452 dfts' Motions Motions for Summary Judgment . Attorney Huston, Whitney Bryn added. (Attachments: # 1 Exhibit A:001 − A:005, # 2 Exhibit A:006 − A:009, # 3 Exhibit A:010, # 4 Exhibit A:011)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
467 EXHIBIT of EVIDENCE − VOLUME 2 (Exhibits A:12 − A:39) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment. (Attachments: # 1 Exhibit A:012 − A:016, # 2 Exhibit A:017 − A:019, # 3 Exhibit A:020 − A:023, # 4 Exhibit A:024 − A:033, # 5 Exhibit A:034 − A:039)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
468 EXHIBIT of EVIDENCE − VOLUME 3 (Exhibits A:40 − A:60) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment . (Attachments: # 1 Exhibit A:040 − A:048, # 2 Exhibit A:049 (Part 1 of 3), # 3 Exhibit A:049 (Part 2 of 3), # 4 Exhibit A:049 (Part 3 of 3), # 5 Exhibit A:050 − A:053, # 6 Exhibit A:054 − A:059, # 7 Exhibit A:060)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
469 EXHIBIT of EVIDENCE − VOLUME 4 (Exhibits A:61 − A:153) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment. (Attachments: # 1 Exhibit A:061 − A:070, # 2 Exhibit A:071 − A:138, # 3 Exhibit A:139 − A:147, # 4 Exhibit A:148 − A:153)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
470 EXHIBIT of EVIDENCE − VOLUME 5 (Exhibits A:154 − A:179) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment .(Attachments: # 1 Exhibit A:154 − A:164, # 2 Exhibit A:165 − A:179)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
471 EXHIBIT of EVIDENCE − Volume 6 (Exhibits A:180 − A:209) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment . (Attachments: # 1 Exhibit A:180 − A:184, # 2 Exhibit A:185 − A:209)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
472 EXHIBIT of EVIDENCE − VOLUME 7 (Exhibits B − B:11) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment . (Attachments: # 1 Exhibit B − B:011)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
473 EXHIBIT of EVIDENCE − VOLUME 8 (Exhibits B:12 − B:25) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment . (Attachments: # 1 Exhibit B:012 − B:025)(Huston, Whitney) Modified

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 40 of 55

11/09/2010
11/09/2010
11/09/2010
11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/10/2010 11/12/2010 11/16/2010
11/18/2010 11/19/2010 11/19/2010 11/19/2010 11/19/2010

on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
474 EXHIBIT of EVIDENCE − VOLUME 9 (Exhibits B:26 − B:37) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment . (Attachments: # 1 Exhibit B:026 − B:037)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
475 EXHIBIT of EVIDENCE − VOLUME 10 (Exhibits B:38 −B:55) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment . (Attachments: # 1 Exhibit B:038 −B:055)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
476 EXHIBIT of EVIDENCE − VOLUME 11 (Exhibits B:56 − B:63) submitted by plts in support of their Opposition to dfts' 417 426 437 452 Motions for Summary Judgment. (Attachments: # 1 Exhibit B:056 − B:063)(Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
477 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) (Entered: 11/09/2010)
478 CERTIFICATE of SERVICE by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng re 477 Notice of Request to Seal Document(s). (Huston, Whitney) (Entered: 11/09/2010)
479 OBJECTIONS by plts to dfts' Evidence re 453 442 420 429 441 Exhibits submitted in support of their motion for summary judgment. (Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
480 STATEMENT OF ADDITIONAL DISPUTED FACTS by plts in support of Opposition to dfts' 452 Motion for Summary Judgment. (Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
481 Consolidated RESPONSE by plts to dfts' 439 419 428 Separate Statement in support 452 dfts' Motion for Summary Judgment. (Huston, Whitney) Modified on 11/9/2010 (Duong, D). (Entered: 11/09/2010)
482 OPPOSITION by plts to 417 426 437 452 dfts' Motions for Summary Judgment. (Huston, Whitney) Modified on 11/10/2010 (Duong, D). (Entered: 11/09/2010)
483 APPENDIX by plts re 467 472 468 466 476 475 474 469 470 471 473 Exhibits of Evidence in support of Oppostiion to dfts' motions for summary judgment . (Huston, Whitney) Modified on 11/10/2010 (Duong, D). (Entered: 11/10/2010)
484 ORDER signed by Judge Frank C. Damrell, Jr on 11/12/10 ORDERING that Plaintiffs' Request to Seal Confidential documents is GRANTED.(Mena−Sanchez, L) (Entered: 11/12/2010)
485 MINUTE ORDER by CRD M. Caspar for Magistrate Judge Kimberly J. Mueller on 11/16/2010: At the request of the parties the 2/9/2011 Settlement Conference has been ADVANCED to 12/16/2010 at 01:30 AM in Courtroom 26 (KJM) before Magistrate Judge Kimberly J. Mueller. (TEXT ONLY)(Caspar, M) (Entered: 11/16/2010)
486 NOTICE of Withdrawal of Defendant Larry Swanson's Motion for Summary Judgment by Lawrence Swanson. (Sheehan, Nancy) (Entered: 11/18/2010)
487 SEALED EVENT (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6) (Donati, J) (Entered: 11/19/2010)
488 SEALED EVENT [Continued from 487 Sealed Document] (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6) (Donati, J) (Entered: 11/19/2010)
489 SEALED EVENT [Continued from 488 Sealed Event] (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6) (Donati, J) (Entered: 11/19/2010)
490 SEALED EVENT [CONTINUED from 489 Sealed Event] (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6) (Donati, J) (Entered: 11/19/2010)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 41 of 55

11/19/2010 11/24/2010
11/24/2010
11/24/2010
11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010 11/29/2010
11/30/2010 12/08/2010
12/10/2010

491 SEALED EVENT [Continued from 490 Sealed Event] (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5) (Donati, J) (Entered: 11/19/2010)
492 REPLY by Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Greg Warzecka to RESPONSE to 437 Motion for Summary Judgment, 426 MOTION for SUMMARY JUDGMENT, 417 MOTION for SUMMARY JUDGMENT, 452 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
493 REQUEST for JUDICIAL NOTICE by Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Greg Warzecka in re 437 Motion for Summary Judgment, 426 Motion for Summary Judgment, 417 Motion for Summary Judgment, 452 Motion for Summary Judgment,. (Sheehan, Nancy) (Entered: 11/24/2010)
494 OBJECTIONS by Defendants Robert Franks, Pam Gill−Fisher, Lawrence Vanderhoef, Greg Warzecka to 437 Motion for Summary Judgment, 426 MOTION for SUMMARY JUDGMENT, 417 MOTION for SUMMARY JUDGMENT, 452 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
495 REPLY by Lawrence Vanderhoef to RESPONSE to 417 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 11/24/2010)
496 REPLY by Robert Franks to RESPONSE to 426 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 11/24/2010)
497 REPLY by Pam Gill−Fisher to RESPONSE to 437 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
498 REPLY by Greg Warzecka to RESPONSE to 452 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
499 REPLY by Lawrence Vanderhoef to RESPONSE to 417 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 11/24/2010)
500 REPLY by Robert Franks to RESPONSE to 426 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 11/24/2010)
501 REPLY by Pam Gill−Fisher to RESPONSE to 437 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
502 REPLY by Greg Warzecka to RESPONSE to 452 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
503 REPLY by Lawrence Vanderhoef to RESPONSE to 417 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 11/24/2010)
504 REPLY by Robert Franks to RESPONSE to 426 MOTION for SUMMARY JUDGMENT. (Sheehan, Nancy) (Entered: 11/24/2010)
505 REPLY by Greg Warzecka to RESPONSE to 452 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
506 REPLY by Pam Gill−Fisher to RESPONSE to 437 Motion for Summary Judgment. (Sheehan, Nancy) (Entered: 11/24/2010)
507 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr on 11/29/2010: Defendants' Motions for Summary Judgment 417 , 426 , 437 , and 452 are hereby SUBMITTED without oral argument. The hearing set for December 3, 2010 is VACATED. The Court will issue a written order. (TEXT ONLY) (Krueger, M) (Entered: 11/29/2010)
508 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng re 494 Objections,. (Farrell, Noreen) (Entered: 11/30/2010)
509 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 12/8/2010 ORDERING Defendants' Motions for Summary Judgment 417 , 426 , 437 , and 452 GRANTED in Part and DENIED in Part. (Krueger, M) (Entered: 12/08/2010)
510 NOTICE OF LODGING DOCUMENT IN PAPER by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 42 of 55

12/10/2010 12/13/2010 12/14/2010 12/16/2010
12/29/2010 01/05/2011
01/07/2011 01/10/2011 01/10/2011 01/12/2011

Davis, Lawrence Vanderhoef, Greg Warzecka ( Confidential Settlement Conference Statement). (Sheehan, Nancy) Modified on 12/13/2010 (Kaminski, H). (Entered: 12/10/2010)
511 NOTICE OF LODGING DOCUMENT IN PAPER by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng: (Confidential Settlement Conference Statement) .(Huston, Whitney) Modified on 12/13/2010 (Kaminski, H). (Entered: 12/10/2010)
512 MINUTE ORDER by CRD M. Caspar for Magistrate Judge Kimberly J. Mueller on 12/13/2010: Confirming with the parties that the Settlement Conference set for 12/16/2010 has been advanced from 1:30 PM to 01:00 PM in Courtroom 26 (KJM) before Magistrate Judge Kimberly J. Mueller.(Caspar, M) (Entered: 12/13/2010)
513 MOTION for PROTECTIVE ORDER re Financial Discovery by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. Motion Hearing set for 1/5/2011 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. (Burkett, David) Modified on 12/15/2010 (Kaminski, H). (Entered: 12/14/2010)
514 MINUTES for SETTLEMENT CONFERENCE proceedings held before Magistrate Judge Kimberly J. Mueller on 12/16/2010: CASE NOT SETTLED. Plaintiffs Counsel Whitney Huston, Noreen Farrell, Monique Olivier, Jora Trang present; plaintiffs Arezou Mansourian and Lauren Mancuso present. Defendants Counsel Nancy Sheehan, Steve Drown, Jennifer Ward, Margaret Wu, Eric Kvigne, Greer Gustavson, Paul Gill−Fisher, Bob Franks, Larry Vanderhoff, Greg Warzecka, David Burkett present. (Text Only) (Caspar, M) (Entered: 12/17/2010)
515 JOINT STATEMENT re Discovery Disagreement/Motion for Protective Order 513 by Defendants Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. (Attachments: # 1 Exhibits)(Burkett, David) Modified on 12/30/2010 (Mena−Sanchez, L). (Entered: 12/29/2010)
516 MINUTES (Text Only) for MOTION HEARING held on 1/5/2011 before Magistrate Judge Edmund F. Brennan re: Deft's Motion for Protective Order 513 . All parties present. Arguments heard regarding the pending motion. Pltf's counsel to draft a proposed order by 01/07/11 for review and signature by the Court. Plaintiffs Counsel Noreen Farrell present. Defendants Counsel David Burkett present. Court Reporter/CD Number: ECRO, CD 1 of 1. (Cannarozzi, N) (Entered: 01/05/2011)
517 PROPOSED ORDER re 515 Statement, by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Attachments: # 1 Exhibit A)(Huston, Whitney) Modified on 1/10/2011 (Kaminski, H). (Entered: 01/07/2011)
518 OBJECTION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka to RESPONSE to 513 MOTION for PROTECTIVE ORDER Regarding Financial Discovery. (Burkett, David) Modified on 1/10/2011 (Cannarozzi, N). (Entered: 01/10/2011)
519 RESPONSE by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 517 Proposed Order, 518 OBJECTION. (Huston, Whitney) Modified on 1/11/2011 (Kaminski, H). (Entered: 01/10/2011)
520 ORDER signed by Magistrate Judge Edmund F. Brennan on 1/12/11, ORDERING that 513 dfts' Motion for a Protective Order, is DENIED in PART and GRANTED in PART as discussed in this Order. Dfts Vanderhoef, Warzecka, Roberts, and Gill−Fisher SHALL respond to the discovery demands set forth in this Order within 21 days of the entry of this Order. It is further ORDERED that the Stipulation Regarding Financial Information of Individual Defendants executed by the parties through their respective attorneys on June 18, 2008 and attached hereto as Exhibit A is hereby incorporated as part of this Order. (Attachments: # 1 Exhibit A)(Kastilahn, A) (Entered: 01/12/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 43 of 55

01/25/2011 01/25/2011 01/26/2011
01/26/2011 02/01/2011 02/02/2011 02/02/2011 02/07/2011 02/11/2011
02/15/2011

521 MOTION to CONTINUE TRIAL DATE by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 02/25/11 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Noreen Farrell, # 3 Exhibit A, # 4 Proposed Order)(Huston, Whitney) Modified on 1/25/2011 (Benson, A.). (Entered: 01/25/2011)
522 STIPULATION and PROPOSED ORDER to Shorten Time on Hearing 521 Motion to Continue Trial Date by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) Modified on 1/25/2011 (Benson, A.). (Entered: 01/25/2011)
523 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr on 1/26/2011: The Court has reviewed the parties Stipulation re Plaintiffs' Motion to Continue the Trial Date, and SETS the following Briefing Schedule: Defendants' Opposition is due no later than February 2, 2011, and Plaintiffs' Reply is due by February 7, 2011. A Hearing, if necessary, is SET for February 11, 2011 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (TEXT ONLY) (Krueger, M) (Entered: 01/26/2011)
524 MOTION for RECONSIDERATION re 520 Order by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Burkett, David) Modified on 1/27/2011 (Benson, A.). (Entered: 01/26/2011)
525 RESPONSE by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka to 521 Motion to Continue Trial Date. (Burkett, David) (Entered: 02/01/2011)
526 OPPOSITION by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 524 Motion for Reconsideration. (Huston, Whitney) (Entered: 02/02/2011)
527 DECLARATION of Noreen Farrell in OPPOSITION TO 524 Motion for Reconsideration. (Attachments: # 1 Exhibit A)(Huston, Whitney) (Entered: 02/02/2011)
528 REPLY by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 521 Motion to Continue Trial Date. (Huston, Whitney) (Entered: 02/07/2011)
529 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: MOTION HEARING held on 2/11/2011 re 521 Motion to Continue Trial Date by Plaintiffs. The Court GRANTS the Motion and provides the following new dates to the parties: The Final Pretrial Conference shall be Continued to April 21, 2011 at 10:00 a.m., with a Court Trial commencing on May 23, 2011 at 1:30 p.m. in Courtroom #2 before Judge Frank C. Damrell, Jr. The parties are to confer with their clients regarding the new dates and are instructed to notify the Courtroom Deputy by Tuesday, February 15, 2011 as to whether or not the new dates are acceptable. The Final Pretrial Conference set for March 4, 2011 and the Trial date of April 26, 2011 are VACATED. The Court DENIES as MOOT Defendants' Motion for Reconsideration 524 . Plaintiffs Counsel Noreen Farrell present. Defendants Counsel Nancy Sheehan, and David Burkett present. Court Reporter: Michelle Babbitt. (Krueger, M) (Entered: 02/11/2011)
530 TRANSCRIPT of Defendants' Motion for Protective Order Proceedings held on 01/05/11, before Magistrate Judge Edmund F. Brennan. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 3/10/2011. Redacted Transcript Deadline set for 3/18/2011. Release of Transcript Restriction set for 5/16/2011 filed by ECRO Jonathan Anderson, Phone number 916−930−4072 E−mail janderson@caed.uscourts.gov. (Anderson, J) (Entered: 02/15/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 44 of 55

02/18/2011 02/22/2011
04/15/2011 04/21/2011
04/25/2011 04/26/2011 04/26/2011 04/26/2011 04/26/2011 04/26/2011 04/26/2011 04/26/2011

531 STIPULATION and PROPOSED ORDER to modify status (pretrial scheduling) order to continue trial date by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Farrell, Noreen) (Entered: 02/18/2011)
532 STIPULATION and ORDER 531 signed by Judge Frank C. Damrell, Jr., on 2/18/11: The Status (Pretrial Scheduling) Order is modified as follows: Final Pretrial Conference is SET for 4/21/2011 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr.. Bench Trial is SET for 5/23/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr.. Jury Trial is tentatively SET for August 9−11, 2011 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr.. (See order for further dates.)(Kastilahn, A) (Entered: 02/22/2011)
533 JOINT PRETRIAL STATEMENT by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Attachments: # 1 Appendix A, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Huston, Whitney) Modified on 4/18/2011 (Reader, L). (Entered: 04/15/2011)
534 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: PRETRIAL CONFERENCE held on 4/21/2011: The court orders the parties to file simultaneous briefs (no more than 10 pages), on the issue relating to Relevant Time Period no later than April 26, 2011; replies (no more than 5 pages), if any, are due April 27, 2011. Motions in Limine and trial briefs are due by May 5, 2011, with oppositions due May 11, 2011, and replies due May 13, 2011. A Hearing on the Motions in Limine is SET for Friday, May 20, 2011 at 1:30 p.m.. Trial is confirmed to start on Monday, May 23, 2011 at 1:30 p.m. in Courtroom #2. The parties proposed findings of fact and conclusions of law are then due by Friday, July 8, 2011. The Jury Trial on damages is scheduled to start on Tuesday, August 9, 2011 at 9:00 a.m. in Courtroom #2. A Final Pretrial Order to follow. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Diane Shepard. (Krueger, M) (Entered: 04/21/2011)
535 JOINT STIPULATION and PROPOSED ORDER re Briefing Schedule on Motion for Reconsideration by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) Modified on 4/26/2011 (Duong, D). (Entered: 04/25/2011)
536 BRIEF re Relevant Time Period for the Title IX Claim by dfts.(Sheehan, Nancy) Modified on 4/26/2011 (Duong, D). (Entered: 04/26/2011)
537 ORDER signed by Judge Frank C. Damrell, Jr on 04/26/2011 GRANTING 535 Joint Stipulation Re Briefing Schedule on Motion For Reconsideration.(Streeter, J) (Entered: 04/26/2011)
538 PRETRIAL CONFERENCE ORDER signed by Judge Frank C. Damrell, Jr on 04/26/2011. (Streeter, J) (Entered: 04/26/2011)
539 BRIEF re Determination of Relevant Time Period by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Attachments: # 1 Declaration W. Huston Decl In Support, # 2 Exhibit A # 3 Exhibit B # 4 Exhibit C # 5 Exhibit D)(Huston, Whitney) Modified on 4/27/2011 (Krueger, M). (Entered: 04/26/2011)
540 MOTION for RECONSIDERATION and/or CLARIFICATION of 509 Order by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Olivier, Monique) Modified on 4/27/2011 (Duong, D). (Entered: 04/26/2011)
541 MEMORANDUM by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng in SUPPORT of 540 MOTION for RECONSIDERATION and/or CLARIFICATION. (Olivier, Monique) (Entered: 04/26/2011)
542 DECLARATION of Monique Olivier in SUPPORT OF 540 MOTION for RECONSIDERATION and/or CLARIFICATION. (Attachments: # 1 Exhibit A)(Olivier, Monique) (Entered: 04/26/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 45 of 55

04/27/2011 04/27/2011 04/29/2011
05/03/2011 05/03/2011 05/04/2011 05/04/2011 05/05/2011 05/05/2011
05/05/2011 05/05/2011 05/05/2011 05/05/2011

543 REPLY by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef re 539 Trial Brief,. (Sheehan, Nancy) (Entered: 04/27/2011)
544 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng re 536 Trial Brief. (Huston, Whitney) (Entered: 04/27/2011)
545 MEMORANDUM and ORDER on Relevant Time Period signed by Judge Frank C. Damrell, Jr on 4/29/2011: The Court ORDERS Defendant's argument relating to standing is inapposite. Both plaintiffs and defendant agree that plaintiffs may only recover based upon demonstration of actual harm. Indeed, plaintiffs' ability to recover for Title IX violations are wholly separate from the determination of whether defendant was in violation of Title IX. As such, defendant's argument in support of a truncated time period is without merit. (Krueger, M) (Entered: 04/29/2011)
546 OBJECTIONS by Defendants Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 538 Order. (Sheehan, Nancy) (Entered: 05/03/2011)
547 OBJECTIONS by Plaintiffs Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) (Entered: 05/03/2011)
548 NOTICE of Errata Regarding Defendants' 546 Objections and Augmentations to Pretrial Conference Order by Defendants. (Sheehan, Nancy) Modified on 5/5/2011 (Kastilahn, A). (Entered: 05/04/2011)
549 AMENDED PRETRIAL CONFERENCE ORDER signed by Judge Frank C. Damrell, Jr on 5/4/2011. (Attachments: # 1 Attachments)(Krueger, M) (Entered: 05/04/2011)
550 MOTION IN LIMINE NO. 1: To Exclude NCAA Evidence; and Declaration of Whitney Huston in Support Thereof by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Huston, Whitney) (Entered: 05/05/2011)
551 MOTION IN LIMINE NO. 2: To Exclude Information Not Timely Disclosed; and Declaration of Whitney Huston in Support Thereof by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr.. (Attachments: # 1 Exhibits A − D, # 2 Exhibits E − G, # 3 Exhibits H − P)(Huston, Whitney) (Entered: 05/05/2011)
552 MOTION IN LIMINE NO 3: To Preclude Defendants Use of the Office for Civil Rights Investigation; and Declaration of Whitney Huston in Support Thereof by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr.. (Huston, Whitney) (Entered: 05/05/2011)
553 MOTION IN LIMINE NO. 4: To Exclude Certain Evidence re: Michael Burch by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Huston, Whitney) (Entered: 05/05/2011)
554 MOTION IN LIMINE NO. 5: To Exclude Evidence of Interest, Ability, and Competition in Wrestling; and Declaration of Whitney Huston in Support Thereof by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Huston, Whitney) (Entered: 05/05/2011)
555 MOTION IN LIMINE NO. 6: To Preclude Defendants From Acting Contrary to the Law of This Case and Defendants Judicial Admissions by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Huston, Whitney) (Entered: 05/05/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 46 of 55

05/05/2011
05/05/2011
05/05/2011
05/05/2011
05/05/2011 05/05/2011 05/05/2011 05/05/2011 05/06/2011 05/09/2011 05/09/2011 05/11/2011 05/11/2011

556 MOTION IN LIMINE No.1 To Exclude Evidence of The Brust v. Regents Case and The Stipulated Judgment Therein by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Attachments: # 1 Supplement Request for Judicial Notice, # 2 Proposed Order)(Sheehan, Nancy) (Entered: 05/05/2011)
557 MOTION IN LIMINE No. 2 to Exclude Evidence Related to Michael Burch by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Attachments: # 1 Supplement Request for Judicial Notice, # 2 Proposed Order)(Sheehan, Nancy) (Entered: 05/05/2011)
558 MOTION IN LIMINE No. 3 to Exclude Evidence Contrary to the Northern District of California's Order by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Attachments: # 1 Supplement Request for Judicial Notice, # 2 Proposed Order)(Sheehan, Nancy) (Entered: 05/05/2011)
559 MOTION IN LIMINE No. 4 to Exclude Evidence Regarding Allegations by Terri Patraw Against Cary Groth by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. Motion Hearing set for 5/20/2011 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Attachments: # 1 Proposed Order)(Sheehan, Nancy) (Entered: 05/05/2011)
560 Defendants' REQUEST for JUDICIAL NOTICE in SUPPORT of 559 Motion in Limine,. (Attachments: # 1 Exhibit D)(Sheehan, Nancy) Modified on 5/9/2011 (Kastilahn, A). (Entered: 05/05/2011)
561 TRIAL BRIEF by Plaintiffs.(Farrell, Noreen) Modified on 5/9/2011 (Kastilahn, A). (Entered: 05/05/2011)
562 JOINT Request for Judicial Notice in Support of Joint Final Pretrial Statement. Attorney Sheehan, Nancy Joan added. (Sheehan, Nancy) Modified on 5/9/2011 (Kastilahn, A). (Entered: 05/05/2011)
563 TRIAL BRIEF by Defendants. (Attachments: # 1 Defendants' Request for Judicial Notice)(Sheehan, Nancy) Modified on 5/9/2011 (Kastilahn, A). (Entered: 05/05/2011)
564 JOINT STIPULATION re OBJECTION to 549 AMENDED PRETRIAL CONFERENCE ORDER by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) Modified on 5/9/2011 (Kaminski, H). (Entered: 05/06/2011)
565 NOTICE of Errata Regarding Trial Brief by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka re 563 Trial Brief. (Sheehan, Nancy) (Entered: 05/09/2011)
566 OPPOSITION to 540 MOTION for RECONSIDERATION and/or CLARIFICATION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. (Attachments: # 1 Declaration of Nancy J. Sheehan)(Sheehan, Nancy) Modified on 5/10/2011 (Krueger, M). (Entered: 05/09/2011)
567 OPPOSITION by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 556 MOTION IN LIMINE No.1 To Exclude Evidence of The Brust v. Regents Case and The Stipulated Judgment Therein. (Huston, Whitney) (Entered: 05/11/2011)
568 OPPOSITION by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 557 MOTION IN LIMINE No. 2 to Exclude Evidence Related to Michael Burch. (Huston, Whitney) (Entered: 05/11/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 47 of 55

05/11/2011 05/11/2011 05/11/2011 05/11/2011
05/11/2011 05/11/2011
05/11/2011 05/11/2011 05/11/2011
05/11/2011 05/12/2011 05/13/2011 05/13/2011

569 OPPOSITION by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 558 MOTION IN LIMINE No. 3 to Exclude Evidence Contrary to the Northern District of California's Order. (Huston, Whitney) (Entered: 05/11/2011)
570 OPPOSITION by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 559 MOTION IN LIMINE No. 4 to Exclude Evidence Regarding Allegations by Terri Patraw Against Cary Groth. (Farrell, Noreen) (Entered: 05/11/2011)
571 OPPOSITION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 550 MOTION IN LIMINE NO. 1: To Exclude NCAA Evidence; and Declaration of Whitney Huston in Support Thereof. (Sheehan, Nancy) (Entered: 05/11/2011)
572 OPPOSITION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 552 MOTION IN LIMINE NO 3: To Preclude Defendants Use of The Office for Civil Rights Investigation; and Declaration of Whitney Huston in Support Thereof. (Attachments: # 1 Declaration)(Sheehan, Nancy) (Entered: 05/11/2011)
573 OPPOSITION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 553 MOTION IN LIMINE NO. 4: To Exclude Certain Evidence re: Michael Burch. (Attachments: # 1 Declaration)(Sheehan, Nancy) (Entered: 05/11/2011)
574 OPPOSITION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 554 MOTION IN LIMINE NO. 5: To Exclude Evidence of Interest, Ability, and Competition in Wrestling; and Declaration of Whitney Huston in Support Thereof . (Attachments: # 1 Declaration)(Sheehan, Nancy) (Entered: 05/11/2011)
575 OPPOSITION by Defendants Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 561 Trial Brief. (Attachments: # 1 Declaration)(Sheehan, Nancy) (Entered: 05/11/2011)
576 OPPOSITION by Plaintiffs Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 563 Trial Brief. (Farrell, Noreen) (Entered: 05/11/2011)
577 OPPOSITION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 555 MOTION IN LIMINE NO. 6: To Preclude Defendants From Acting Contrary to the Law of This Case and Defendants Judicial Admissions . (Attachments: # 1 Declaration, # 2 Request for Judicial Notice)(Sheehan, Nancy) (Entered: 05/11/2011)
578 OPPOSITION by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka to 551 MOTION IN LIMINE NO. 2: To Exclude Information Not Timely Disclosed; and Declaration of Whitney Huston in Support Thereof . (Attachments: # 1 Declaration)(Sheehan, Nancy) (Entered: 05/11/2011)
579 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 540 MOTION for RECONSIDERATION and/or CLARIFICATION. (Olivier, Monique) (Entered: 05/12/2011)
580 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 552 MOTION IN LIMINE NO 3: To Preclude Defendants Use of The Ofice for Civil Rights Investigation; and Declaration of Whitney Huston in Support Thereof . (Huston, Whitney) (Entered: 05/13/2011)
581 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 554 MOTION IN LIMINE NO. 5: To Exclude Evidence of Interest, Ability, and Competition in Wrestling; and Declaration of Whitney Huston in Support Thereof . (Huston, Whitney) (Entered: 05/13/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 48 of 55

05/13/2011 05/13/2011 05/13/2011 05/13/2011
05/13/2011 05/13/2011
05/13/2011 05/13/2011 05/16/2011 05/16/2011 05/16/2011 05/16/2011
05/18/2011 05/19/2011

582 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 553 MOTION IN LIMINE NO. 4: To Exclude Certain Evidence re: Michael Burch. (Huston, Whitney) (Entered: 05/13/2011)
583 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 551 MOTION IN LIMINE NO. 2: To Exclude Information Not Timely Disclosed; and Declaration of Whitney Huston in Support Thereof. (Huston, Whitney) (Entered: 05/13/2011)
584 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 550 MOTION IN LIMINE NO. 1: To Exclude NCAA Evidence; and Declaration of Whitney Huston in Support Thereof. (Huston, Whitney) (Entered: 05/13/2011)
585 REPLY by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka re 556 MOTION IN LIMINE No.1 To Exclude Evidence of The Brust v. Regents Case and The Stipulated Judgment Therein. (Sheehan, Nancy) (Entered: 05/13/2011)
586 REPLY by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka re 558 MOTION IN LIMINE No. 3 to Exclude Evidence Contrary to the Northern District of California's Order. (Sheehan, Nancy) (Entered: 05/13/2011)
587 REPLY by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka re 559 MOTION IN LIMINE No. 4 to Exclude Evidence Regarding Allegations by Terri Patraw Against Cary Groth. (Attachments: # 1 Declaration)(Sheehan, Nancy) (Entered: 05/13/2011)
588 REPLY by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka re 557 MOTION IN LIMINE No. 2 to Exclude Evidence Related to Michael Burch. (Sheehan, Nancy) (Entered: 05/13/2011)
589 REPLY by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to RESPONSE to 555 MOTION in Limine NO. 6: to preclude defendants from acting contrary to the law of this case and defendants judicial admissions. (Farrell, Noreen) Modified on 5/17/2011 (Reader, L). (Entered: 05/13/2011)
590 OBJECTIONS to designation of certain declarations by defendants by Plaintiffs Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Farrell, Noreen) Modified on 5/17/2011 (Reader, L). (Entered: 05/16/2011)
591 WITNESS LIST by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng.(Huston, Whitney) (Entered: 05/16/2011)
592 DESIGNATION of Depositions and Interrogatories to be used at Trial by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) Modified on 5/17/2011 (Reader, L). (Entered: 05/16/2011)
593 NOTICE OF FILING of final witness list, deposition and declaration designations and discovery designations by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka.(Sheehan, Nancy) Modified on 5/17/2011 (Reader, L). (Entered: 05/16/2011)
594 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 5/18/2011 ORDERING Plaintiffs' Motion for Reconsideration and/or Clarification 540 DENIED. (Krueger, M) (Entered: 05/18/2011)
595 NOTICE OF LODGING DOCUMENT IN PAPER by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka: Notice of Lodging Original Deposition Transcripts. (Sheehan, Nancy) (Entered: 05/19/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 49 of 55

05/20/2011
05/23/2011 05/23/2011 05/23/2011 05/23/2011
05/24/2011 05/24/2011 05/25/2011
05/26/2011

598 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: MOTIONS IN LIMINE HEARING held on 5/20/2011: The Court hears oral argument on the parties Motions in Limine. The Court RULES as follows as to Plaintiffs' Motions in Limine: Grants in Part and Denies in Part Motion #1 550 ; Denies and (defers ruling as to Joint Exhibit 40) Motion #2 551 ; Grants in Part and Denies in Part #3 552 ; Grants Motion #4 553 ; Defers and takes Motion #5 under submission 554 ; Denies Motion #6 555 . The Court RULES as follows as to Defendants' Motions in Limine: Grants Motions #1 556 , #2 557 , #3 558 and #4 559 . The Court Trial is SET to begin on May 23, 2011 at 1:30 p.m. in Courtroom #2 before Judge Frank C. Damrell, Jr. Plaintiffs Counsel Noreen Farrell present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Kathy Swinhart. (Krueger, M) Modified on 5/23/2011 (Krueger, M). (Entered: 05/23/2011)
596 SUPPLEMENTAL OPPOSITION to 557 Motion in Limine No. 2 by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. (Attachments: # 1 Declaration of David P.E. Burkett)(Sheehan, Nancy) Modified on 5/24/2011 (Benson, A.). (Entered: 05/23/2011)
597 SUPPLEMENTAL BRIEF by plfs re dfts' late filed disclosures. (Huston, Whitney) Modified on 5/24/2011 (Benson, A.). (Entered: 05/23/2011)
599 SUPPLEMENTAL BRIEF by plfs to exclude evidence related to interest, ability and competition in wrestling. (Farrell, Noreen) Modified on 5/24/2011 (Benson, A.). (Entered: 05/23/2011)
600 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL held on 5/23/2011. The Court rules that Plaintiffs' Motion in Limine #2 DENIED as to Joint Exhibit 40, and DENIES Plaintiffs' Motion in Limine #5. Opening Statements made; Plaintiff calls witness/plaintiff Arezou Mansourian, sworn and testified; Exhibits Admitted. Bench Trial CONTINUED to 5/24/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 05/24/2011)
601 NOTICE OF POTENTIAL EXHIBITS to be admitted under seal to protect student privacy under FERPA by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka.(Sheehan, Nancy) Modified on 5/26/2011 (Benson, A.). (Entered: 05/24/2011)
602 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 2) held on 5/24/2011: Continued testimony from witness/plaintiff Arezou Mansourian, witness excused. Plaintiff calls witness Michael Burch, sworn and testified on direct; Exhibits Admitted. Bench Trial CONTINUED to 5/25/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 05/25/2011)
603 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 3) held on 5/25/2011: Continued testimony from Michael Burch, witness excused; Plaintiff calls witness/plaintiff Christine Ng, witness excused; Plaintiff calls witness/plaintiff Lauren Mancuso, sworn and testified; Exhibits Admitted. Bench Trial CONTINUED to 5/26/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 05/26/2011)
604 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 4) held on 5/26/2011: Continued testimony from Lauren Mancuso, witness excused; Plaintiff calls witnesses Keith William, and Michael Maben, sworn and testified and witnesses excused; Exhibits Admitted. Bench Trial CONTINUED to 5/31/2011 at 10:30 AM in Courtroom 2 (FCD) before Judge

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 50 of 55

05/31/2011 06/01/2011 06/02/2011 06/03/2011
06/06/2011 06/06/2011 06/07/2011 06/08/2011

Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan, Michael Pott and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 05/27/2011)
605 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 5) held on 5/31/2011, Plaintiff calls witness Dr. Donna Lopiano, sworn and testified; Exhibits Admitted. Bench Trial CONTINUED to 6/1/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/01/2011)
606 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 6) held on 6/1/2011. Continued testimony from Dr. Donna Lopiano, and witness excused; Plaintiff calls Greg Warzecka, sworn and testified. Exhibits Admitted. Bench Trial CONTINUED to 6/2/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/02/2011)
607 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 7) held on 6/2/2011. Plaintiffs call defendants/witnesses Robert Frank and Larry Vanderhoef, sworn and testified. Exhibits Admitted. Bench Trial CONTINUED to 6/3/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/03/2011)
609 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 8) held on 6/3/2011: Continued with defendant/witness Larry Vanderhoef, witness excused. Plaintiffs call defendants/witness Pamela Gill−Fisher, sworn and testified on cross and direct, and to be recalled. Defendants call witnesses Cris Brines, Mary Claire Robinson, James (Jamey) Wright, Suzanne Williams, and Deanne Vochatzer, all sworn and testified, and excused. Exhibits Admitted. Bench Trial CONTINUED to 6/6/2011 at 1:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli/Kathy Swinhart. (Krueger, M) (Entered: 06/06/2011)
608 JOINT REQUEST for Judicial Notice for Use in Trial by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. (Sheehan, Nancy) Modified on 6/7/2011 (Mena−Sanchez, L). (Entered: 06/06/2011)
610 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 9) held on 6/6/2011: Continued with direct examination of defendant/witness Pamela Gill−Fisher. Exhibits Admitted. Bench Trial CONTINUED to 6/7/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/07/2011)
611 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 10) held on 6/7/2011: Continued testimony from defendant/witness Pamela Gill−Fisher, and excused. Defendants call witness Christine Grant, Ph.D., sworn and testified. Exhibits Admitted. Bench Trial CONTINUED to 6/8/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/08/2011)
612 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 11) held on 6/8/2011: Continued testimony from witness Christine Grant, Ph.D., and witness excused. Defendants call witness/defendant Greg

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 51 of 55

06/09/2011 06/13/2011
06/14/2011
06/15/2011
06/22/2011 06/24/2011 06/27/2011 07/11/2011

Warzecka, previously sworn, and testified. Exhibits Admitted. Bench Trial CONTINUED to 6/9/2011 at 10:30 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/09/2011)
613 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 12) held on 6/9/2011: Continued testimony from defendant/witness Greg Warzecka, witness excused. Defendants called witnesses Kathleen DeYoung, and Leonard Zalesky, sworn and testified. Exhibits Admitted. Bench Trial CONTINUED to 6/13/2011 at 10:30 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Deanna Scarpelli. (Krueger, M) (Entered: 06/10/2011)
614 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 13) held on 6/13/2011: Defendants call witness Dennis Shimek, sworn and testified and excused. Both parties rest their case in chief. Plaintiffs call rebuttal witness Sharon Lettinger Gish, sworn and testifed and excused. Plaintiffs call rebuttal witness Dr. Donna Lopiano, previously sworn. Exhibits Admitted. Bench Trial CONTINUED to 6/14/2011 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 06/14/2011)
615 MINUTES for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL (DAY 14) held on 6/14/2011: Continued testimony from Dr. Donna Lopiano, and excused. Plaintiffs call rebuttall witness Christine Sing, previously sworn and excused. Defendants call rebuttal witness Robert Franks and Cary Sue Groth, and excused. Both parties rest. Defendants make a Rule 52(c) Motion regarding the 1983 claim, and the Court will allow plaintiff to respond in a written brief and defendants to reply in a written brief. Bench Trial CONTINUED to 6/15/2011 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 06/14/2011)
616 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: BENCH TRIAL COMPLETED (DAY 15) on 6/15/2011: The Court hears Closing Arguments. The parties Proposed Findings and Conclusions and plaintiffs' Opposition to defendants' Rule 52(c) Motion regarding the 1983 claim is due by July 15, 2011. Defendants' waive any reply to plaintiffs' opposition to the Rule 52(c) Motion. The Jury Trial date of August 9, 2011 is VACATED, and tentatively reset for November 29, 2011 at 9:00 a.m. Plaintiffs' counsel to confirm with plaintiffs regarding date. Plaintiffs Counsel Noreen Farrell and Whitney Huston present. Defendants Counsel Nancy Sheehan and David Burkett present. Court Reporter: Michelle Babbitt/Kathy Swinhart. (Krueger, M) (Entered: 06/16/2011)
617 LIST OF EXHIBITS ADMITTED DURING TRIAL − Joint Exhibit List. (Attachments: # 1 Plaintiffs' Exhibit List, # 2 Defendants' Exhibit List)(Krueger, M) (Entered: 06/22/2011)
618 STIPULATION and PROPOSED ORDER for Regarding The Admission of NCAA Manuals by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. (Burkett, David) (Entered: 06/24/2011)
619 STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 6/27/11 ORDERING the admission into evidence excerpts of NCAA Manuals. (Meuleman, A) (Entered: 06/27/2011)
620 STIPULATION and PROPOSED ORDER for Extending the Post−Trial Briefing Schedule by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Attachments: # 1 Proposed Order Proposed Order)(Farrell, Noreen) (Entered: 07/11/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 52 of 55

07/12/2011 07/18/2011 07/19/2011 07/19/2011 07/19/2011 07/22/2011 07/22/2011 08/03/2011
08/09/2011 08/12/2011 08/24/2011
08/31/2011 09/02/2011
09/06/2011

621 STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 7/12/11 EXTENDING proposed findings of facts and conclusions of law deadline from 7/15/11 to 7/19/11; plaintiffs' written response to defendants' Rule 52 Motion shall be EXTENDED from 7/15/11 to 7/22/11. (Meuleman, A) (Entered: 07/12/2011)
622 NOTICE of Withdrawal of Attorney of Record by Nancy Nien−Li Chiang, Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Huston, Whitney) Modified on 7/19/2011 (Zignago, K.). (Entered: 07/18/2011)
623 PROPOSED FINDINGS of FACT by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka.(Sheehan, Nancy) (Entered: 07/19/2011)
624 PROPOSED FINDINGS of FACT by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng.(Farrell, Noreen) (Entered: 07/19/2011)
625 BRIEF Proposed Conclusions of Law by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Farrell, Noreen) (Entered: 07/19/2011)
626 OPPOSITION to Defendants' Rule 52 Motion by Plaintiffs Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Farrell, Noreen) Modified on 7/25/2011 (Michel, G). (Entered: 07/22/2011)
627 CORRECTED OPPOSITION to Defendants' Rule 52 Motion by Plaintiffs Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng re 626 Opposition. (Galles, Kristen) Modified on 7/25/2011 (Michel, G). (Entered: 07/22/2011)
628 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 8/3/2011 ORDERING that plaintiffs have prevailed on their claims against UC Davis for ineffective accommodation of female student−athletes under Title IX based upon UC Davis' failure to demonstrate a continuing practice of program expansion. However, plaintiffs have not prevailed on any other theories of Title IX liability. Moreover, plaintiffs have not prevailed on their claims for Equal Protection Clause violations against any of the individual defendants. As such, defendants Larry Vanderhoef, Greg Warzecka, Pam Gill−Fisher, and Robert Franks are DISMISSED. (Krueger, M) (Entered: 08/03/2011)
629 ORDER signed by Judge Frank C. Damrell, Jr. on 8/9/2011 ORDERING that dfts' 524 motion for reconsideration of the magistrate judge's discovery order re: punitive damages and dfts' Rule 52(c) motion (made orally on the record on 6/14/2011) are MOOT. (Zignago, K.) (Entered: 08/09/2011)
630 DESIGNATION of COUNSEL FOR SERVICE., attorney George A. Acero terminated (Sheehan, Nancy) (Entered: 08/12/2011)
631 TRANSCRIPT of Proceedings held on May 20, 2011, before Judge Frank C. Damrell, Jr, filed by Court Reporter Kathy Swinhart, Phone number 916−446−1347 E−mail kswinhart_csr@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/15/2011. Redacted Transcript Deadline set for 9/26/2011. Release of Transcript Restriction set for 11/28/2011. (Swinhart, K) (Entered: 08/24/2011)
632 ORDER by Chief Judge Anthony W. Ishii: Due to the retirement of Senior Judge *Frank C. Damrell, Jr.,* this action is reassigned to *Judge Kimberly J. Mueller* for all further proceedings. (Waggoner, D) (Entered: 08/31/2011)
633 ORDER signed by Judge Kimberly J. Mueller on 9/1/2011. Since Judge Mueller was the Magistrate Settlement Judge in this matter, parties are ordered to inform Court, w/in 2 weeks of entry of this Order, whether they will will waive any conflict if she remains on the case as trial judge. (Marciel, M) (Entered: 09/02/2011)
634 Defendants' Waiver of Claim of Disqualification. (Sheehan, Nancy) Modified on 9/8/2011 (Mena−Sanchez, L). (Entered: 09/06/2011)

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09/15/2011 10/05/2011 10/11/2011 10/12/2011 10/26/2011 10/26/2011 10/28/2011 11/02/2011
11/03/2011
11/09/2011 11/09/2011 11/16/2011 12/07/2011

635 Plaintiffs' Waiver of Claim of Disqualification by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Farrell, Noreen) Modified on 9/16/2011 (Kaminski, H). (Entered: 09/15/2011)
636 JOINT REQUEST for Status Conference by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Burkett, David) Modified on 10/6/2011 (Kaminski, H). (Entered: 10/05/2011)
637 NOTICE of APPEARANCE by Jamie Elise Dolkas on behalf of Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. Attorney Dolkas, Jamie Elise added. (Dolkas, Jamie) (Entered: 10/11/2011)
638 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller on 10/12/2011 GRANTING the joint request for status conference 636 and ORDERING a Status Conference SET for 11/2/2011 at 10:00 AM in Courtroom 3 before Judge Kimberly J. Mueller. The parties shall file a joint status report no later than 10/26/2011. (TEXT ONLY ENTRY) (Schultz, C) (Entered: 10/12/2011)
639 STATUS REPORT by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Burkett, David) (Entered: 10/26/2011)
640 JOINT STATUS REPORT by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Burkett, David) (Entered: 10/26/2011)
641 MOTION to STRIKE and RESPONSE by plaintiffs to 639 Separate Status Conference Statement. (Farrell, Noreen) Modified on 10/31/2011 (Marciel, M). (Entered: 10/28/2011)
642 MINUTES for STATUS (PRETRIAL SCHEDULING) CONFERENCE held before Judge Kimberly J. Mueller on 11/2/2011. Plaintiffs' Counsel Noreen Farrell, Kristen Galles, and James Sturdevant, present. Defendants' Counsel, Nancy Sheehan and David Burkett, present. The court and parties discussed case scheduling. Defendant's confirmed they will stand on their separate status report 639 as their opening brief for leave to file a dispositive motion and a briefing schedule was set. The court advised the parties, the case would be referred for a settlement conference and the parties should file a stipulation as to the parties' availability. Order to issue. Court Reporter: Cathie Bodene. (Text Only) (Schultz, C) (Entered: 11/02/2011)
643 ORDER signed by Judge Kimberly J. Mueller on 11/2/11 ORDERING that the court SETS the following schedule: Joint pretrial statement due February 1, 2012; Final Pretrial Conference set for 2/8/2012; Hearing on motions in limine sets for 2/8/2012 at 10:00 AM; Jury Trial set for 3/5/2012 at 09:00 AM. Hearing on the proposed dispositive motion in limine set for 12/14/2011 at 10:00 AM. The court will issue a briefing schedule in accordance with this hearing date, if the hearing is confirmed. The court also will refer this case to settlement. The parties are to submit a stipulation with seven (7) days of the issuance of this order indicating their availability for settlement conference. Upon receipt of the stipulation, the court will issue an order of referral. (Duong, D) (Entered: 11/03/2011)
644 RESPONSE by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng to 639 Status Report. (Sturdevant, James) (Entered: 11/09/2011)
645 STIPULATION Re: Availability for Settlement Conference and Briefing Schedule for Motions in Limine by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Greg Warzecka. (Burkett, David) (Entered: 11/09/2011)
646 Defendants' REPLY to Plaintiff's OPPOSITION to Defendants' MOTION for Leave to file a Motion in Limine 644 Response. (Burkett, David) Modified on 11/17/2011 (Mena−Sanchez, L). (Entered: 11/16/2011)
647 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller on 12/7/2011 VACATING the 12/14/2011 hearing date. (TEXT ONLY ENTRY) (Schultz, C) (Entered: 12/07/2011)

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 54 of 55

12/08/2011
12/13/2011 12/19/2011 12/27/2011 12/27/2011 01/03/2012 01/09/2012 01/10/2012
01/17/2012 01/19/2012 01/20/2012

648 ORDER signed by Judge Kimberly J. Mueller on 12/7/2011 ORDERING that this case is set for a settlement conference before Magistrate Judge Kendall J. Newman on 1/3/2012, at 1:00 p.m. at the U. S. District Court, 501 I Street, Sacramento, CA 95814 in Courtroom #25. The parties are directed to exchange non−confidential settlement conference statements seven days prior to this settlement conference. These statements shall simultaneously be delivered to the court using the following email address: kjnorders@caed.uscourts.gov. If a party desires to share additional confidential information with the court, they may do so pursuant to the provisions of Local Rule 270(d) and (e). Each party shall e−file a one page document entitled Notice of Submission of Settlement Conference Statement. See Local Rule 270(d). Each party is reminded of the requirement that it be represented in person at the settlement conference by a person able to dispose of the case or fully authorized to settle the matter at the settlement conference on any terms. See Local Rule 270. (Zignago, K.) (Entered: 12/08/2011)
649 ORDER signed by Judge Kimberly J. Mueller on 12/12/11 ORDERING that Defendant's Request 641 is DENIED. Additionally, Plaintiff's MOTION TO STRIKE [641[ is DENIED as moot. (Mena−Sanchez, L) (Entered: 12/13/2011)
650 NOTICE to COURT of Potential Conflict for Plaintiffs' Trial Expert by Plaintiffs . (Farrell, Noreen) Modified on 12/20/2011 (Duong, D). (Entered: 12/19/2011)
651 NOTICE of Submission of Settlement Conference Statement by All Defendants re 648 Order. (Burkett, David) Modified on 12/28/2011 (Kaminski, H). (Entered: 12/27/2011)
652 NOTICE of Submission of Settlement Conference Statement by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng re 648 Order. (Farrell, Noreen) Modified on 12/28/2011 (Kaminski, H). (Entered: 12/27/2011)
653 MINUTES for SETTLEMENT CONFERENCE proceedings held before Magistrate Judge Kendall J. Newman on 1/3/2012: After settlement negotiations conducted, the case did not settle. Plaintiffs Counsel James Sturdevant, Jamie Dolkas and Noreen Farrell present. Defendants Counsel Hancy Sheehan, Margaret Wu, Greer Gustavson, Eric Kvigne and Steven Drwon present. (Text Only) (Caspar, M) (Entered: 01/04/2012)
654 STIPULATION and PROPOSED ORDER requesting to modify Scheduling re: Pretrial filings by Regents of the University of California and University of California at Davis. (Burkett, David) Modified on 1/10/2012 (Marciel, M). (Entered: 01/09/2012)
655 STIPULATION and ORDER 654 requesting modification of Scheduling Order signed by Judge Kimberly J. Mueller on 1/10/2012. The current due dates for Pretrial filings are as follows: Motions In Limine − 1/11/2012; Oppositions to Motions In Limine − 1/25/2012; Replies to Oppositions and Joint Final Pretrial Statement − 2/1/2012; Hearing on Motions In Limine and Final Pretrial Conference − 2/8/2012; Trial Briefs − 2/17/2012; and Responses to Trial Briefs − 2/27/2012. Parties' due date for filing Motions In Limine and Oppositions to Motions is STAYED for period of 7 days so that they may focus thier efforts on reaching resolution of remaining issues in litigation. Parties to file a Joint Status Report no later than 1/17/2012 advising Court of status of Settlement discussions. (Marciel, M) (Entered: 01/10/2012)
656 STIPULATION and PROPOSED ORDER for ORDER REGARDING REQUEST TO MODIFY SCHEDULING ORDER RE PRE−TRIAL PROCEEDINGS re 655 Stipulation and Order,,,, Set Motion and FRDeadlines/Hearings,,, by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Sheehan, Nancy) (Entered: 01/17/2012)
657 STIPULATION and ORDER signed by Judge Kimberly J. Mueller on 1/18/2012 STAYING case until 1/20/2012. A Joint Status Report is due at that time. (Michel, G) (Entered: 01/19/2012)
658 STIPULATION and PROPOSED ORDER for Joint Status Report re 657 Stipulation and Order, Case Stayed by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson,

Case: 2:03-cv-2591 As of: 06/16/2013 08:26 PM PDT 55 of 55

01/23/2012
01/24/2012 01/26/2012 04/09/2012 04/12/2012

Lawrence Vanderhoef, Greg Warzecka. (Sheehan, Nancy) (Entered: 01/20/2012)
659 STIPULATION and ORDER signed by Judge Kimberly J. Mueller on 01/23/12 ORDERING that the parties will file a further Joint Status Report by 01/24/12 advising the Court whether final confirmation of the settlement terms has been reached. If confirmation has been reached, the Court will vacate the 03/05/12 trial date, and order the parties to file either a Stipulated Request for Dismissal of the action or a further Joint Status Report by 04/09/12. (Benson, A.) (Entered: 01/23/2012)
660 STIPULATION and PROPOSED ORDER for Joint Status Report; Stipulation and [Proposed] Order Re: Pre−Trial Scheduling re 659 Stipulation and Order, by Robert Franks, Pam Gill−Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef, Greg Warzecka. (Sheehan, Nancy) (Entered: 01/24/2012)
661 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller on 1/26/2012 ADOPTING the parties' stipulation regarding pretrial proceedings 660 and ORDERING the 2/8/2012 Final Pretrial Conference and the 3/5/2012 phase two trial VACATED; no later than 4/9/2012, the parties shall file a stipulation for dismissal or joint status report. (TEXT ONLY ENTRY)(Schultz, C) Modified on 1/26/2012 (Schultz, C). (Entered: 01/26/2012)
662 STIPULATION Re Request for Dismissal and Prop. Order by Lauren Mancuso, Arezou Mansourian, Christine Wing−Si Ng. (Farrell, Noreen) (Entered: 04/09/2012)
663 CLERK'S NOTICE issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller on 4/12/2012: Pursuant to the parties' stipulated request for dismissal 662 and Federal Rule of Civil Procedure 41(a)(1)(A)(ii), this action is DISMISSED with prejudice in its entirety; CASE CLOSED. (TEXT ONLY ENTRY) (Schultz, C) (Entered: 04/12/2012)

 
 08-16330 Docket

General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 08-16330 Nature of Suit: 3440 Other Civil Rights Arezou Mansourian, et al v. Regents of the University of C, et al
Appeal From: U.S. District Court for Eastern California, Sacramento Fee Status: Paid

Case Type Information:       1) civil       2) private       3) null

Originating Court Information:

      District: 0972-2 : 2:03-cv-02591-FCD-EFB

      Trial Judge: Frank C. Damrell, Junior, Senior District Judge

      Date Filed: 12/18/2003

      Date Order/Judgment:

      Date Order/Judgment EOD:

      04/23/2008

      04/23/2008

      Date NOA Filed:       05/22/2008

Prior Cases:       None

Current Cases:       None

Docketed: 06/04/2008 Termed: 02/08/2010
      Date Rec'd COA:       06/03/2008

AREZOU MANSOURIAN                       Plaintiff - Appellant,
LAUREN MANCUSO                       Plaintiff - Appellant,

Kristen Galles Direct: 703-683-4491 [COR LD NTC Retained] Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301
Monique Olivier, Attorney [COR LD NTC Retained] STURDEVANT LAW FIRM Firm: 415-477-2410 354 Pine St. San Francisco, CA 94104
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR Retained] Equal Rights Advocates Suite 250 180 Howard Street Suite 300 San Francisco, CA 94105
James C. Sturdevant, Attorney Direct: 415-477-2410 [COR Retained] The Sturdevant Law Firm Fourth Floor 354 Pine Street San Francisco, CA 94104
Kristen Galles Direct: 703-683-4491

https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom[4/25/2011 5:50:22 AM]

08-16330 Docket
CHRISTINE WING-SI NG                       Plaintiff - Appellant,
   v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, UNIVERSITY OF CALIFORNIA AT DAVIS                       Defendant - Appellee,
LAWRENCE VANDERHOEF                       Defendant - Appellee, GREG WARZECKA                       Defendant - Appellee, PAM GILL-FISHER                       Defendant - Appellee,

[COR LD Retained] (see above)
Monique Olivier, Attorney [COR LD Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR Retained] (see above)
James C. Sturdevant, Attorney Direct: 415-477-2410 [COR Retained] (see above)
Kristen Galles Direct: 703-683-4491 [COR LD Retained] (see above)
Monique Olivier, Attorney [COR LD Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR Retained] (see above)
James C. Sturdevant, Attorney Direct: 415-477-2410 [COR Retained] (see above)
Nancy Joan Sheehan, Esquire, Attorney Direct: 916-929-1481 [COR LD Retained] Porter Scott Suite 200 Firm: 916-929-1481 350 University Avenue Sacramento, CA 95825
Nancy Joan Sheehan, Esquire, Attorney Direct: 916-929-1481 [COR LD Retained] (see above)
Nancy Joan Sheehan, Esquire, Attorney Direct: 916-929-1481 [COR LD Retained] (see above)
Nancy Joan Sheehan, Esquire, Attorney Direct: 916-929-1481 [COR LD Retained] (see above)

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LAWRENCE SWANSON                       Defendant - Appellee,
------------------------------

Nancy Joan Sheehan, Esquire, Attorney Direct: 916-929-1481 [COR LD Retained] (see above)

EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND                       Amicus Curiae,

Lawrence John Joseph, Attorney Direct: 202-669-5135 [COR LD NTC Retained] Law Office of Lawrence J. Joseph Suite 200 1250 Connecticut Avenue Washington, DC 20036

CALIFORNIA STATE UNIVERSITY                       Amicus Curiae,

Janet P. Judge [COR LD NTC Retained] Sportslaw Associates, LLC P.O. Box 486 Cumberland, ME 04021

Timothy J. O'Brien, Attorney [COR LD NTC Retained] Libby O'Brien Kingsley & Champion, LLC 62 Portland Road Suite 17 Kennebunk, ME 04043

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION                       Amicus Curiae,

Janet P. Judge [COR LD NTC Retained] (see above)

Timothy J. O'Brien, Attorney [COR LD NTC Retained] (see above)

STATE OF NEVADA, ex rel. its Board of Regents of the Nevada System of Higher Education, Acting on Behalf of the University of Nevada, Las Vegas, and Baylor University                       Amicus Curiae,

Janet P. Judge [COR LD NTC Retained] (see above)
Timothy J. O'Brien, Attorney [COR LD NTC Retained] (see above)

UNIVERSITY OF WASHINGTON                       Amicus Curiae,

Karin L. Nyrop, Senior Counsel [COR LD NTC Government] Washington Attorney General's Office University of Washington Division UW Box 359475 4333 Brooklyn Ave NE Seattle, WA 98195-9475

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,

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08-16330 Docket                      Defendants - Appellees.

06/04/2008

1

3 pg, 172.47 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Appellant Lauren Mancuso, Appellant Arezou Mansourian and Appellant Christine Wing-Si Ng opening brief due 07/14/2008. Appellee Pam Gill-Fisher, Appellee Regents of the University of California, University of California at Davis, Appellee Lawrence Swanson, Appellee Lawrence Vanderhoef and Appellee Greg Warzecka answering brief due 08/13/2008. Appellant's optional reply brief is due 14 days after service of the answering brief. (GR)

06/04/2008

2

Filed representation notice of James C. Sturdevant, Mark T. Johnson, Monique Oliver, Debra Smith, Noreen Farrell, Kristen Galles. (GR)

06/04/2008

3

Filed certificate of record on appeal. RT filed in DC NT n.s. (GR)

06/04/2008

4

Filed certificate of record on appeal. RT filed in DC TR n.s. (GR)

06/04/2008

5

Filed Civil Appeals Docketing Statement. Served on 05/22/2008. (GR)

06/10/2008

6

Received Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng notice of designation of reporter's transcript. (CW)

06/24/2008

7

Filed Appellants and Appellees joint motion for extension of time to file briefs and excerpts of records. Served on 06/20/2008. (JFF)

06/26/2008

8

8 pg, 78.15 KB

Filed order MEDIATION (EPM): This case is under consideration for inclusion in the Mediation Program. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. A settlement assessment conference will be held by telephone on July 23, 2008, at 11:00 a.m. PACIFIC (San Francisco) Time......The briefing schedule previously set by the court is vacated. (AF)

07/03/2008

9

Filed order MEDIATION (LJE): At the request of counsel, the assessment conference scheduled for July

1 pg, 23.47 KB 23, 2008 is continued to July 31, 2008 at 11:30 a.m. (AF)

07/10/2008

10

Filed order MEDIATION (lje): At the request of counsel, the assessment conference scheduled for July

1 pg, 23.42 KB 31, 2008 is continued to August 4, 2008, at 11:30 a.m. (BJB)

08/05/2008

11

Filed order MEDIATION (lje): The court will initiate a further assessment conference by telephone on

1 pg, 30.36 KB August 27, 2008, at 11:30 a.m. PACIFIC (San Francisco) Time. (BJB)

08/27/2008

12

2 pg, 27.92 KB

Filed order MEDIATION (lje): The briefing schedule previously set by the court is reset as follows: appellants shall file an opening brief on or before February 13, 2009; appellees shall file an answering brief on or before April 10, 2009; appellants may file an optional reply brief within fourteen (14) days from the service date of the answering brief. The court has determined that this appeal will not be selected for inclusion in the Mediation Program. (BJB)

02/03/2009

13

Filed (ECF) Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng Motion to

3 pg, 11.25 KB withdraw as counsel. Date of service: 02/03/2009. [6795350] (MO)

02/10/2009

14

2 pg, 24.83 KB

Filed clerk order (Deputy Clerk:LKK ): Appellants' motion for leave to withdraw counsel Mark Johnson as counsel of record is granted. Court records shall be amended to reflect that Mark Johnson is no longer co-counsel for appellant. (BJB)

02/13/2009

15

Submitted (ECF) Opening brief for review. Submitted by Appellants Lauren Mancuso, Arezou

104 pg, 1.43 MB Mansourian and Christine Wing-Si Ng. Date of service: 02/13/2009. [6809129] (MO)

02/20/2009

16

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by

39 pg, 164.68 KB American Civil Liberties Union, American Civil Liberties Union of Northern California, Association of

Gender Equity Leadership in Education. Date of service: 02/20/2009. [6815963] (EM)

02/20/2009

17

Filed (ECF) National Women's Law Center Motion to become amicus curiae. Date of service:

33 pg, 97.92 KB 02/20/2009. [6816081] (DL)

02/20/2009

18

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by

32 pg, 140.67 KB Women's Sports Foundation et al.. Date of service: 02/20/2009. [6816269] (SAD)

02/24/2009

Electronically-filed document [17] Motion (ECF Filing) , [17] motion to become amicus is stricken

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19 1 pg, 28.06 KB because there is an error in the document. Pleading is the amici brief with consent, not a motion. (CW)

02/25/2009

20

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by

32 pg, 140.67 KB Women's Sports Foundation et al. Date of service: 02/20/2009. [6820584] (SAD)

02/25/2009

21

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by

33 pg, 97.92 KB National Women's Law Center. Date of service: 02/20/2009. [6820949] (DL)

02/25/2009
1 pg, 28.48 KB

Filed Opening Brief [15] filed by Arezou Mansourian, Lauren Mancuso and Christine Wing-Si Ng. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Blue cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK)

02/26/2009
1 pg, 28.53 KB

Filed Amicus Brief [16]. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Green cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK)

02/26/2009
1 pg, 28.54 KB

Filed Amicus Brief [18]. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Green cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK)

02/27/2009

22

Received 10 paper copies of Opening brief [15] filed by Arezou Mansourian, Lauren Mancuso and Christine Wing-Si Ng in 08-16330. One copy to Case Files, the remainder to Records. (SJ)

02/27/2009

23

Filed Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng excerpts of record in 24 volumes. Served on 02/13/2009 (PK)

02/27/2009

24

Received Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng notice regarding Filing under seal excerpts of record vols 25 and 26 pursuant to protective order. (PK)

02/27/2009

25

Filed Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng excerpts of record in volumes 25 and 26 UNDER SEAL. Served on 02/13/2009 (PK)

02/27/2009

26

Received 10 paper copies of Amicus brief [20]. One copy to Case Files, the remainder to Records. (MA)

02/27/2009

27

Received 10 paper copies of Amicus brief [16]. One copy to Case Files, the remainder to Records. (MA)

03/02/2009
1 pg, 28.08 KB

Filed clerk order: Amicus Brief [20]. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Green cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK)

03/02/2009
1 pg, 28.06 KB

Filed clerk order: Amicus Brief [21]. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Green cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK)

03/03/2009

28

Received 10 paper copies of Amicus brief [21]. One copy to Case Files, the remainder to Records. (MA)

03/16/2009

29

14 day oral extension by phone of time to file Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka brief. Appellee Pam Gill-Fisher, Appellee Regents of the University of California, University of California at Davis, Appellee Lawrence Swanson, Appellee Lawrence Vanderhoef and Appellee Greg Warzecka answering brief due 04/24/2009. The optional reply brief is due 14 days after service of the appellee brief. (TH)

04/24/2009

30

Submitted (ECF) Answering brief for review. Submitted by Appellees Pam Gill-Fisher, Regents of the

100 pg, 4.64 MB University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and

Greg Warzecka. Date of service: 04/24/2009. [6895851] (NJS)

04/24/2009

31

7 pg, 369.93 KB

Filed (ECF) Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka Motion to take judicial notice of Notice of Related Cases and the Related Case Order. Date of service: 04/24/2009. [6895870] (NJS)

04/24/2009

32

Filed Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka excerpts of record in 2 volumes. Served

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on 04/23/2009 (PK)

04/28/2009

33

Oral extension by phone of time to file Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng optional reply brief. Optional reply brief is due 28 days after service of the answering brief. (CG)

04/30/2009

34

Filed clerk order: Electronically-filed document [30] Brief Submitted for Review (ECF Filing) is stricken

1 pg, 27.04 KB because there is an error in the document. Brief needs a Certificate of Service. (PK)

04/30/2009

35

101 pg, 4.7 MB

Submitted (ECF) Answering brief for review. Submitted by Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka. Date of service: 04/24/2009. [6903397] (NJS)

05/01/2009

36

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Eagle

63 pg, 204.07 KB Forum Education & Legal Defense Fund. Date of service: 05/01/2009. [6905952] (LJJ)

05/01/2009

42

Entered appearance of Amicus Curiae Eagle Forum Education and Legal Defense Fund. (LA)

05/05/2009
1 pg, 28.35 KB

Filed clerk order: Answering Brief [35] filed by Greg Warzecka, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Pam Gill-Fisher and Lawrence Swanson. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. (PK)

05/06/2009

37

Filed (ECF) Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng response

12 pg, 28.45 KB opposing motion (Brief Submitted for Review (ECF Filing) ,Motion (ECF Filing) ,Motion (ECF Filing)

motion to become amicus). Date of service: 05/06/2009. [6911859] (NAF)

05/11/2009

38

1 pg, 23.68 KB

Filed clerk order (Deputy Clerk:LKK ): Eagle Forum Education and Legal Defense Fund's opposed motion for leave to file an amicus brief and any related filing shall be referred to the panel that shall decide the merits of the appeal. (BJB)

05/11/2009

39

Received 10 paper copies of Answering brief [35] filed by Greg Warzecka, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Pam Gill-Fisher and Lawrence Swanson in 08-16330. One copy to Case Files, the remainder to Records. (SJ)

05/13/2009

40

Filed (ECF) Eagle Forum Education and Legal Defense Fund Reply to Response to Motion to become

13 pg, 68.14 KB amicus curiae. Date of service: 05/13/2009. [6919890] [Court corrected docket text - 5/13/09 by SS]

(LJJ)

05/22/2009

41

Submitted (ECF) Reply brief for review. Submitted by Appellants Lauren Mancuso, Arezou Mansourian

48 pg, 346.54 KB and Christine Wing-Si Ng. Date of service: 05/22/2009. [6930974] (MO)

05/22/2009

43

Filed Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng excerpts of record in volume 27. Served on 05/22/2009 (PK)

05/26/2009
1 pg, 28.37 KB

Filed clerk order: Reply Brief [41] filed by Arezou Mansourian, Lauren Mancuso and Christine Wing-Si Ng. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Grey cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. (LA)

05/28/2009

44

Received 10 paper copies of Reply brief [41] filed by Arezou Mansourian, Lauren Mancuso and Christine Wing-Si Ng in 08-16330. One copy to Case Files, the remainder to Records. (SD)

06/19/2009

45

3 pg, 149.26 KB

Filed (ECF) Errata to Answering Brief ([35] Brief Submitted for Review (ECF Filing) ). Filed by Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka. Date of service: 06/19/2009. [6962416] (NJS)

06/23/2009

46

Filed clerk order (Deputy Clerk:LKK): The court is in receipt of appellees' errata to the answering brief.

1 pg, 23.97 KB The errata shall be filed. [6965808] (BJB)

07/03/2009

47

Calendar check performed. [6980172] (MW)

07/17/2009

48

Calendar materials being prepared. [6996287] [08-10386, 08-16683, 05-16154, 05-16157, 05-16189, 05-16909, 05-16158, 05-16187, 08-16330] (AW)

07/20/2009

49

CALENDARED: 10/08/2009 9:30 AM San Francisco, CA Courtroom 1 [6997982] [08-10386, 08-16683, 05-16154, 05-16157, 05-16189, 05-16909, 05-16158, 05-16187, 08-16330] (AW)

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08/21/2009

50

1 pg, 32.14 KB

Filed clerk order (Deputy Clerk:BJB): The motion for leave to file an amicus brief by Eagle Forum Education & Legal Defense Fund is granted. The court will not consider any issues covered in that brief but not raised or adopted by the parties, see Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n.1 (9th cir. 1998), without first notifying the parties and providing an opportunity for briefing. [7037046] (BJB)

08/27/2009

51

5 pg, 122.39 KB

Notice of Oral Argument on OCTOBER 8, 2009 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case.[7042810] (AM)

08/28/2009

52

9 pg, 439.92 KB

Filed (ECF) Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka Motion to continue hearing of case. Date of service: 08/28/2009. [7044988] (NJS)

08/31/2009

53

4 pg, 13.05 KB

Filed (ECF) Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng response opposing motion (Motion (ECF Filing) ,Motion (ECF Filing) motion to continue hearing). Date of service: 08/31/2009. [7046667] (MO)

09/03/2009

54

FILED (ORIGINAL) CERTIFIED RECORD ON APPEAL. Record Part: Clerks Record, No. of Volumes: 2, Sealed: n; Record Part: Reporters Transcript, No. of Volumes: 2 in expando file, Sealed: n. [7050534] (JAS)

09/03/2009

55

1 pg, 23.6 KB

Filed clerk order (Deputy Clerk:BJB): Based on consultation with the parties, the motion to continue is hereby denied. Argument in this case will be heard on October 8, 2009. [7050759] (BJB)

10/08/2009

56

ARGUED AND SUBMITTED TO MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR. [7089203] (YA)

10/28/2009

57

3 pg, 37.33 KB

Filed order (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR):......While the parties are not required to brief this aspect of the case, the court is relatedly concerned that the parties did not expressly inform the court that (a) Brust, Bulala and Ludwig had graduated and so were no longer viable plaintiffs for injunctive relief in the Mansourian action; (b) Brust, Bulala and Ludwig had already entered a settlement with UC Davis (subject to district court approval of the class settlement) and were for that additional reason not viable plaintiffs for injunctive relief in this case; and (c) the Brust case is a class action in which the parties were seeking approval of a settlement providing broad injunctive relief for the class, a settlement with a clear impact on the amendment issue in Mansourian. The briefs shall be submitted within fourteen days of this order. [7110271] (AF)

11/12/2009

58

Submitted (ECF) Supplemental brief for review. Submitted by Appellants Lauren Mancuso, Arezou

11 pg, 28.03 KB Mansourian and Christine Wing-Si Ng. Date of service: 11/12/2009. [7128569] (MO)

11/12/2009

59

Submitted (ECF) Supplemental brief for review. Submitted by Appellees Pam Gill-Fisher, Regents of the

15 pg, 171.02 KB University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and

Greg Warzecka. Date of service: 11/12/2009. [7128918] (NJS)

11/12/2009

60

93 pg, 6.57 MB

Filed (ECF) Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka Motion to take judicial notice of In Order to Respond to Order by the Court for Supplemental Briefing. Date of service: 11/12/2009. [7128934] (NJS)

11/13/2009

61

Filed clerk order: supplemental brief [58] filed by Arezou Mansourian, Lauren Mancuso and Christine

1 pg, 26.87 KB Wing-Si Ng. No paper copies of this brief are required. [7129907] (PK)

11/13/2009

62

1 pg, 26.87 KB

Filed clerk order: supplemental brief [59] filed by Greg Warzecka, Regents of the University of California, University of California at Davis, Lawrence Vanderhoef, Pam Gill-Fisher and Lawrence Swanson. No paper copies of this brief are required. [7129927] (PK)

11/20/2009

63

1 pg, 31.8 KB

Filed order (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR) Appellees’ motion for judicial notice of documents relating to Brust v. Regents of the University of California, No. 07-1488 (E.D. Cal. 2009), is hereby granted. [7138265] (BJB)

01/20/2010

64

Filed (ECF) Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng Motion to

3 pg, 10.81 KB withdraw as counsel. Date of service: 01/20/2010. [7201516] (NAF)

01/26/2010

65

Filed order (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR) The motion to

1 pg, 24.28 KB withdraw Debra A. Smith as plaintiffs’ counsel is granted. [7208911] (BJB)

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01/26/2010

66

Terminated Debra Smith for Christine Wing-Si Ng, Arezou Mansourian and Lauren Mancuso in 0816330 [7208913] (BJB)

02/08/2010

67

FILED OPINION (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR)

30 pg, 502.21 KB REVERSED AND REMANDED. , Judge: MSB Authoring. FILED AND ENTERED JUDGMENT.

[7222737] (RP)

02/22/2010

68

47 pg, 1.78 MB

Filed (ECF) Appellees Pam Gill-Fisher, Regents of the University of California, University of California at Davis, Lawrence Swanson, Lawrence Vanderhoef and Greg Warzecka petition for panel rehearing and petition for rehearing en banc (from 02/08/2010 opinion). Date of service: 02/22/2010. [7239529] (NJS)

02/22/2010

69

3 pg, 69.4 KB

Filed (ECF) Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng bill of costs (Form 10) in the amount of 3812.2 USD. Date of service: 02/22/2010 [7239892] (MO)

02/24/2010

70

1 pg, 24.62 KB

Filed order (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR) The appellants are requested to file a response to the petition for rehearing en banc within 21 days of the date of this order. The response shall not exceed 15 pages in length. [7243395] (BJB)

03/04/2010

71
31 pg, 101.07 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by National Collegiate Athletic Association, California State University, The State of Nevada, ex rel. its Board of Regents of the Nevada System of Higher Education, Acting on Behalf of the University of Nevada, Las Vegas, Baylor University, University of WA. Date of service: 03/04/2010. [7252552] (TJO)

03/04/2010

72

Entered appearance of - NCAA. [7253658] (SW)

03/04/2010

73

Added attorney Timothy J. O'Brien for NCAA, in case 08-16330. [7253664] (SW)

03/04/2010

74

Added attorney Karin Lisa Nyrop for NCAA, in case 08-16330. [7253677] (SW)

03/05/2010

75

Added attorney Janet P. Judge for NCAA, in case 08-16330. [7254838] (ASW)

03/05/2010

76

Entered appearance of Amicus Curiae - Pendings CALIFORNIA STATE UNIVERSITY and State of Nevada. (Court Correction of docket) [7254848] (ASW)

03/05/2010

77

Entered appearance of Amicus Curiae - Pending University of Washington. (Court correction of docket) [7254856] (ASW)

03/05/2010

78

Terminated Karin L. Nyrop for NCAA in 08-16330 (Counsel added for wrong party) [7254858] (ASW)

03/08/2010

79

1 pg, 24.33 KB

Filed order (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR) The motion by the National Collegiate Athletic Association; California State University; the State of Nevada, acting on behalf of the University of Nevada, Las Vegas; Baylor University; and the University of Washington for leave to file a brief as amici curiae in support of the defendants-appellees’ petition for rehearing and rehearing en banc is granted. [7256812] (BJB)

03/17/2010

80

Filed (ECF) Appellants Lauren Mancuso, Arezou Mansourian and Christine Wing-Si Ng response to ,for

20 pg, 122.22 KB panel and en banc rehearing (statistical entry),for panel and en banc rehearing. Date of service:

03/17/2010. [7269983]. (MO)

04/20/2010

81
27 pg, 128.45 KB

Filed order and amended opinion (MARY M. SCHROEDER, MARSHA S. BERZON and MILTON I. SHADUR)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. [7307859] (RP)

04/28/2010

82

1 pg, 81.9 KB

MANDATE ISSUED.(MMS, MSB and MIS) [7317177] (SW)

05/10/2010

83

AMENDED MANDATE ISSUED. MMS, MSB and MIS. Cost in favor of appellant in the amount of

1 pg, 83.01 KB $3812.20 [7330724] (SW)

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 2009 WL 2444218 (C.A.9)

Page 1

United States Court of Appeals, Ninth Circuit. Arezou MANSOURIAN, et al., Plaintiffs/Appellants,
v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants/Appellees.
No. 08-16330. February 13, 2009.
On Appeal from the United States District Court for the Eastern District of California, The Honorable Frank C. Damrell, Jr. presiding, Eastern District Civil Case No. 03-cv-02591-FCD-EFB
Appellants' Opening Brief
James C. Sturdevant, SBN 94551, (jsturdevant@sturdevantlaw.com), Monique Olivier, SBN 190385, (molivier@sturdevantlaw.com), The Sturdevant Law Firm, A Professional Corporation, 354 Pine Street, Fourth Floor, San Francisco, CA 94104, Telephone: (415) 477-2410, Facsimile: (415) 477-2420, Debra Smith, SBN 147863, (dsmith@equalrights.org), Noreen Farrell, SBN 191600, (nfarrell @equalrights.org), Equal Rights Advocates, 1663 Mission Street, Suite 250, San Francisco, CA 94103, Telephone: (415) 621-0672, Facsimile: (415) 621-6744, Kristen Galles, SBN 148740, (kgalles@comcast.net), Equity Legal, 10 Rosecrest Avenue, Alexandria, VA 22301, Telephone: (703) 683-4491, Attorneys for Plaintiffs/Appellants Arezou Mansourian, Lauren Mancuso, and Christine Wing-SI NG.
TABLE OF CONTENTS
JURISDICTIONAL STATEMENT ... 1
STATEMENT OF ISSUES FOR REVIEW ... 1
STATEMENT OF THE CASE ... 2
STATEMENT OF FACTS ... 5
I. The Framework for Evaluating a Title IX Claim of Ineffective Accommodation ... 5
II. UCD's Athletic Program ... 7
A. UCD's Failure to Provide Women's Athletic Participation Opportunities Proportionate to Women's Enrollment ... 8
B. UCD's Failure to Expand Participation Opportunities For Women Athletes ... 8
C. UCD's Refusal to Fully and Effectively Accommodate The Interests and Abilities of Its Female Students ... 11
D. UCD's Elimination of Existing Women's Wrestling Vasity Opportunities ... 12
1. UCD's Women's Wrestling Program ... 12
2. Plaintiffs' Attendance at UCD with the Desire and Intent to Wrestle ... 13
3. UCD's Removal of Women Wrestlers from the Varsity Wrestling Program ... 14

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SUMMARY OF THE ARGUMENT ... 18
ARGUMENT ... 22
I. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS' EQUAL PROTECTION CLAIMS ... 22
A. Applicable Standard of Review ... 22
B. The District Court Erred in Dismissing Plaintiffs' § 1983 Claims for Monetary Damages Against the Individual Defendants ... 22
C. The District Court Erred in Dismissing Plaintiffs' § 1983 Claim for Injunctive Relief Against UCD ... 23
II. THE DISTRICT COURT ERRED IN DENYING PLAINTIFFS LEAVE TO AMEND TO ADD CURRENT STUDENTS TO THE LAWSUIT ... 24
A. Applicable Standard of Review ... 24
B. The Court Erred in Refusing to Allow Plaintiffs to Modify the Scheduling Order ... 25
1. The Court Misapprehended the Scope of the Original Complaint by Finding that Plaintiffs Should Have Sought Amendment Upon Receipt of Program-Wide Discovery ... 26
2. The Court Ignored the Impact of Intervening Factors on Class Certification to Deny Plaintiffs a Routine Amendment to Strengthen Representation of the Class ... 28
C. The District Court Erred in Concluding that Plaintiffs' Proposed Amendments Would Prejudice Defendants ... 31
III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO UCD ON P LAINTIFFS' TITLE IX CLAIM ... 33
A. Applicable Standard of Review ... 33
B. The District Court Erred in Applying the Notice Requirement of Title IX Sexual Harassment Cases to Plaintiffs' Ineffective Accommodation Claim ... 34
1. Title IX Imposes No Actual Notice Requirements on Plaintiffs Challenging an Institution's Discrimination in its Athletics Program ... 35
2. The Actual Notice Requirement in Sexual Harassment Cases ... 37
3. The District Court's Erroneous Application of Gebser ... 38
C. The Evidence Establishes That UCD Was on Notice of Plaintiffs' Ineffective Accommodation Charge ... 43
IV. AFTER THE NOTICE DEFENSE IS STRIPPED AWAY, IT IS CLEAR FROM THE RECORD THAT UCD DISCRIMINATES AGAINST FEMALE ATHLETES IN VIOLATION OF TITLE IX AND § 1983 ... 50

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A. UCD Discriminated Against Female Students, Including Plaintiffs, By Failing All Three Prongs of Title IX's Three-Part Test for Measuring Equal Accommodation ... 50 1. UCD Admits Its Failure to Satisfy Both Prong One and Prong Three of the Three-Part Test, Because It Has Neither Achieved Substantial Proportionality Nor Effectively and Fully Accommodated Female Interest in Athletics ... 51 2. UCD Did Not Satisfy the Requirements of Prong Two Because It Has Never Had a History and Continuing Practice of Program Expansion for Women ... 52 a. UCD Has No History or Continuing Practice of Program Expansion ... 54 b. UCD Eliminated Existing Female Participation Opportunities, Including Women's Varsity Wrestling ... 57 V. CONCLUSION ... 60
TABLE OF AUTHORITIES FEDERAL CASES Acri v. International Association of Machinists & Aeorspace Workers, 781 F.2d 1393 (9th Cir. 1986) ... 31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (19860 ... 34 Barrett v. West Chester University of Pennsylvania, 2003 WL 22803477 (E.D. Pa. Nov. 12, 2003) ... 53, 57 Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998) ... 49 Bertrand v. Sava, 535 F.Supp. 1020 (S.D.N.Y. 1982), rev'd on other grounds, 684 F.2d 204 (2d Cir. 1982) ... 33 Bromley v. Mich. Education Association, 178 F.R.D. 148 (E.D. Mich. 1998) ... 30 In re California Micro Devices Securities Litigation, 168 F.R.D. 276 (N.D. Cal. 1996) ... 30 Cannon v. University of Chicago, 441 U.S. 667 (1979) ... 36 Chalenor v. University of North Dakota, 291 F.3d 1042 (8th Cir. 2002) ... 42 Clicks Billiards, Inc. v. Sixshooters, Inc. (Billiards), 251 F.3d 1252 (9th Cir. 2001) ... 33, 44 Cohen v. Brown University (Cohen I), 809 F.Supp. 978 (D.R.I 1992), aff'd, 991 F.2d 888 (1st Cir. 1993) ... 53 Cohen v. Brown University (Cohen II), 991 F.2d 888 (1st Cir. 1993) ... 6, 28, 57 Cruz v. Beto, 405 U.S. 319 (1972) ... 22 Davis ex rel. LaShonda v. Monroe County Board of Education (Davis), 526 U.S. 629 (1999) ... 38, 39, 42

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Easter v. America West Finance, 381 F.3d 948 (9th Cir. 2004) ... 34 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) ... 32 Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788, 2009 WL 128173 (Jan. 21, 2009) ... 18, 22, 23, 36, 40 Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) ... 20, 36 Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) ... passim Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001) ... 41, 42, 43 Gray v. First Winthrop Corp., 82 F.3d 877 (9th Cir. 1996) ... 48 Hartford Insurance Co. v. Socialist People's Libyan Arab Jamahirya, 422 F.Supp.2d 203 (D.D.C. 2006) ... 33 Jackson v. Bank of Hawii, 902 F.2d 1385 (9th Cir. 1990) ... 31 Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) ... 36 Johnson v. Clovis Unified School District, 2007 WL 1456062 (E.D. Cal. May 17, 2007) ... 42 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ... 25 Kaisha v. BASF Corp., 2007 WL 39313 (N.D. Cal. Jan 4, 2007) ... 31 Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007), overruled by Pub. L. 111-2, 123 Stat. 5 (Jan. 29, 2009) ... 4 Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999) ... 31 Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ... 34 Merrithew/Howell v. Park Pointe Realty, Inc., 2007 WL 129040 (D. Idaho Jan. 12, 2007) ... 31 Michelle M. v. Dunsmuir Joint Union School District, 2006 WL 2927485 (E.D. Cal. Oct. 12, 2006) ... 42 Neal v. Board of Trustees., 1997 WL 1524813 (E.D. Cal. Dec. 26, 1997) ... 50 Neal v. Board of Trustees, 198 F.3d 763 (9th Cir. 1999) ... 6, 34 Noyes v. Kelly Services, 488 F.3d 1163 (9th Cir. 2007) ... 25 O'Connor v. Board of Education, 449 U.S. 1301 (1980) ... 58 Pederson v. La. State University, 213 F.3d 858 (5th Cir. 2000) ... 41

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Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981) ... 20, 35 Reese v. Jefferson School District, 208 F.3d 736 (9th Cir. 2000) ... 39, 42 Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993) ... 6, 54, 56, 57 Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462 (9th Cir. 1990) ... 49 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351 (9th Cir. 1996) ... 25 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (2002) ... 34 Sousa v. Unilab Corp. Class II (Non-Exempt) Members Group Benefit Plan, 252 F.Supp.2d 1046 (E.D. Cal. 2002) ... 25 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ... 22 Ventress v. Japan Airlines, 486 F.3d 1111 (9th Cir. 2007) ... 22 In re Vitamins Antitrust Litigation, 217 F.R.D. 34 (D.D.C. 2003) ... 33 Williams v. School District of Bethlehem, Pennsylvania, 998 F.2d 168 (3d Cir. 1993) ... 27, 51 FEDERAL STATUTES AND RULES 34 C.F.R. § 106.4(a) ... 41 § 106.41(b) ... 58 § 106.41(c) ... 5 § 106.41(c)(1) ... 6 45 C.F.R. § 86.41(b) ... 58 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1092 ... 39 § 1681 et. seq ... passim § 1681(a) ... 35 § 1682 ... 37, 40

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Title IX of the Education Amendments of 1972; A Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed.Reg. 71,413 et seq ... 6 71,417, Part VII.B.5 ... 27, 44 71,418, Part VII.C.4.a ... 58 71,418, Part VII.C.5.a ... 7 71,418, Part VII.C.5.a.(2) ... 52, 54 71,422, App. B, Resp. to Add'l Comment (8) ... 27, 44 42 U.S.C. §1983 ... passim Federal Rules of Civil Procedure Rule 8(a) ... 27, 49 Rule 8(e) ... 27, 49 Rule 15 ... 24 Rule 15(a)(2) ... 32 Rule 16 ... 24 Rule 56 ... 34 Federal Rules of Appellate Procedure Rule 4(a)(1)(A) ... 1 OTHER AUTHORITY Clarification of Intercollegiate Athletic Policy Guideline: The Three Part Test (U.S. Dep't of Education 1996) ... 7, 8 JURISDICTIONAL STATEMENT This Court has jurisdiction under 28 U.S.C. § 1291. The United States District Court for the Eastern District of California possessed jurisdiction over this civil rights suit under 20 U.S.C. § 1681, 42 U.S.C. § 1983, and 28 U.S.C. §§ 1331, 1334 (3), 1334(4), 1367, 2201, and 2202. On April 23, 2008, the district court directed the entry of final

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judgment against Plaintiffs-Appellants Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng (hereinafter “Plaintiffs”). (ER 7-28.)[FN1] That final judgment was entered on April 23, 2008. (ER 6.) Plaintiffs timely filed their notice of appeal on May 22, 2008. (ER 1-5.) Fed. R. App. P. 4(a)(1)(A).
FN1. References to “ER” are to Appellants' Excerpts of the Record, which are being filed concurrently herewith.
STATEMENT OF ISSUES FOR REVIEW
1. DID THE DISTRICT COURT ERR IN GRANTING JUDGMENT AGAINST THE PLAINTIFFS' CLAIMS UNDER 42 U.S.C. § 1983 FOR DAMAGES BASED UPON VIOLATIONS OF THE EQUAL PROTECTION CLAUSE? (YES.) 2. DID THE DISTRICT COURT ERR IN DENYING PLAINTIFFS LEAVE TO AMEND THEIR COMPLAINT TO ADD CURRENTLY ENROLLED STUDENTS? (YES.) 3. DID THE DISTRICT COURT ERR IN APPLYING THE NOTICE REQUIREMENT OF TITLE IX SEXUAL HARASSMENT CASES TO PLAINTIFFS' CLAIM THAT DEFENDANT VIOLATED TITLE IX BY FAILING TO PROVIDE EQUAL ATHLETIC OPPORTUNITIES? (YES.) 4. DID THE DISTRICT COURT ERR IN HOLDING THAT NO MATERIAL ISSUE OF FACT EXISTED AS TO WHETHER ANY SUCH NOTICE WAS GIVEN IN THIS CASE? (YES.)
STATEMENT OF THE CASE
This case is rooted in the University of California at Davis' (“UCD”) long history of discriminating against women by failing to provide equal athletic opportunities to its female students, including Plaintiffs, as required by the Equal Protection Clause of the Fourteenth Amendments, as enforced through 42 U.S.C. § 1983, and Title IX of the Education Amendment of 1972, 20 U.S.C. § 1681 et. seq. Despite a continuing and steady growth of women's interest in sports since the enactment of Title IX, UCD has repeatedly refused to “fully and effectively accommodate” that interest as that law requires. For Plaintiffs, this case is about UCD's denial of their opportunity to fully participate in campus life at UCD because they are women. It is about the denial of their opportunity to participate in women's wrestling - an opportunity that existed for years for women at UCD - which was arbitrarily stripped away from them and never restored, and about UCD's refusal to equally accommodate women in its athletics program as a whole.
Plaintiffs filed their Complaint as a proposed class action on December 18, 2003. (ER 6407-62.) The Complaint charged that Defendant Regents of the University of California and certain officials at UCD had been and were continuing to discriminate against women in UCD's athletics program.[FN2] (Id.) Plaintiffs were then students at UCD who attended UCD, in significant part, because of its wrestling program. Two of the Plaintiffs were terminated from the varsity wrestling team solely because they were women; the third was never allowed to participate on the team. Plaintiffs alleged that Defendants' conduct was part of an overall failure to comply with UCD's affirmative obligations under Title IX, and also violated the Equal Protection Clause and various California civil rights and education laws.
FN2. Defendant Regents shall be referred to herein as “UCD” herein because the events of this case took place on the campus of the University of California at Davis.
On March 5, 2004, Defendants filed a motion to dismiss the Complaint on several grounds, which was denied. In December 2005, Plaintiffs filed their motion for class certification. After the motion was filed, the Court issued two separate stays of the action due to the unforeseen and serious health issues of both Defendants' and Plaintiffs' counsel.

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The stay was lifted on January 26, 2007 after new counsel for Plaintiffs substituted into the action. Plaintiffs then moved to amend the Complaint to add current UCD students. The court denied this request on two bases: first, that Plaintiffs were not diligent in seeking the amendment; second, that the amendment would be prejudicial to Defendants. (ER 73-84.)
On June 5, 2007, Defendants moved for judgment on the pleadings, asking the court to dismiss a number of Plaintiffs' claims. On October 18, 2007, the district court issued a decision dismissing some of Plaintiffs' claims, and refusing to dismiss others. (ER 29-72.) Plaintiffs' § 1983 claims were among those dismissed, with the court holding that “Title IX's enforcement scheme is sufficiently comprehensive to subsume plaintiffs' section 1983 claims and demonstrate that Congress intended to preclude § 1983 claims when it enacted this statute.” (ER 36:7-10.)[FN3]
FN3. The district court also dismissed what it considered to be a Title IX claim for denial of equal treatment in athletics, finding it to be barred by the statute of limitations under a Title VII case, Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162, 2169 (2007). However, Plaintiffs did not assert an equal treatment claim, only an effective accommodation claim. Since Defendants did not raise a statute of limitations defense with respect to the latter claim, Plaintiffs are not briefing this issue. (ER 48:13-21:6; 51 n.12.) Plaintiffs nevertheless note that Ledbetter was never applicable to this case, and that it has recently been overruled by Congress with the passage of the Lilly Ledbetter Fair Pay Act of 2009. Pub. L. 111-2, 123 Stat. 5 (Jan. 29, 2009) If this Court believes that analysis of the district court's statute of limitations ruling is pertinent to the issues, Plaintiffs respectfully request leave to address it in a supplemental brief.
Defendants then filed a motion for summary judgment on Plaintiffs' Title IX equal accommodation claim, which the district court granted. (ER 7-28.) First, relying on Supreme Court Title IX sexual harassment cases that require actual notice of discrimination, “[t]he court conclude[d] that money damages cannot be awarded unless a plaintiff has given notice of and an opportunity to rectify the specific violation alleged by a Title IX plaintiff.” (ER 13:2-5.) Second, the district court held that “[t]he undisputed evidence establishes that plaintiffs did not provide defendants with notice and an opportunity to cure a violation of Title IX for ineffective accommodation.” (ER 20:27-21:1.)
This appeal was timely filed on May 22, 2008. (ER 1-5.)
STATEMENT OF FACTS
I. The Framework for Evaluating a Title IX Claim of Ineffective Accommodation.[FN4]
FN4. The legal framework is included in the Statement of Facts to provide the Court with the legal context in which to understand the relevant facts.
Title IX prohibits sex discrimination in educational programs that, like UCD, receive federal funding. This broad prohibition extends to any education program or activity, including intercollegiate athletics. The regulations promulgated pursuant to Title IX require institutions to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c) (emphasis added). (AD 4.)[FN5]
FN5. References to “AD” are to the Addendum attached hereto pursuant to C.R. 28-2.7.
The critical aspect of that requirement in this case is “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). (AD 4.) It is well-established that “an institution may violate Title IX simply by failing to accommodate effectively the interests and abilities of student athletes of both sexes.” Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993) (citation omitted); Neal v. Bd. of Trs., 198 F.3d 763, 767-68 (9th Cir. 1999); Cohen v. Brown Univ. (Cohen II), 991 F.2d 888, 897-98 (1st Cir. 1993).

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In 1979, the Department of Education's Office for Civil Rights (“OCR”) issued a Policy Interpretation to provide guidance on the meaning of equal athletic opportunity under an effective accommodation claim.[FN6] Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 et seq. (1979) (the “Policy Interpretation”). (AD 8-16.) The Policy Interpretation sets forth a three-part test for determining whether a school is in compliance with the regulatory mandate:
FN6. The Department of Education, acting through the OCR, is the administrative agency charged with administering Title IX. Neal, 198 F.3d at 770 (citations omitted). The Policy Interpretation is a “considered interpretation” of the applicable regulations, and is entitled to deference by the courts. Id.
(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
Policy Interpretation, 44 Fed. Reg. at 71,418, Part VII.C.5.a. (AD 11.) The three-part test is further explained in a Clarification of Intercollegiate Athletic Policy Guideline: The Three-Part Test (hereafter “1996 OCR Clarification”) issued by OCR in 1996. (AD 17-29.) A school can demonstrate compliance by meeting any one of the three prongs.
II. UCD's Athletic Program.
Defendant UCD is charged with overseeing the administration and operation of the University, including its athletics program. (ER 1204 ¶ 1; 1996-97 ¶ 4; 2004-07 ¶ 5.) As an institution that receives federal funds, UCD is subject to Title IX's requirement that it provide equal athletic opportunities to its female athletes. (ER 1204 ¶ 2; 6413:8-22.) As a state university, UCD is subject to the Fourteenth Amendment's Equal Protection Clause and thus to 42 U.S.C. § 1983. Defendants Chancellor Larry Vanderhoef, Athletic Director Greg Warzecka, former Associate Athletic Directors Pam Gill-Fisher and Lawrence Swanson, and former Associate Vice Chancellor for Student Affairs Robert Franks are or were the UCD officials responsible for implementing UCD's policies and practices during the time relevant to this action.
A. UCD's Failure to Provide Women's Athletic Participation Opportunities Proportionate to Women's Enrollment.
Because UCD admits that it has never provided females with athletic opportunities that are substantially proportionate to their enrollment, it is not in compliance with Prong One, the proportionality prong, of the three-part test. (ER 1205 ¶ 5; 1710-13; 2279:1-18; 2289:11-2290:8; 3181:25-3182:9; 3195:25-3196:3; 5944 ¶14.) In 1995, the number of women who would have had to have been provided with varsity opportunities to achieve a ratio proportionate to women's enrollment was 267. (ER 1961.) In 2004, UCD was still short of achieving proportionality by over 100 women's varsity opportunities. (Id.; AD 23-24 (explaining that a school is not in compliance with Prong One where the opportunities available for women are not proportionate and there is a “significant number” of unaccommodated women at that school, such that a “viable sport could be added”).)

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B. UCD's Failure to Expand Participation Opportunities for Women Athletes
UCD also fails to comply with Prong Two of the three-part test. (See AD 29 n.2 (“Part two focuses on whether an institution has expanded the number of intercollegiate participation opportunities provided to the underrepresented sex.”).) Between the passage of Title IX in 1972 and 1996, UCD failed to expand athletic opportunities for women at all. (ER 1207 ¶ 17; 1209 ¶ 27; 1375; 1388; 1401; 1427; 1453; 1493; 1549; 1613; 1710-13; 1961; 4132.) In 1976, UCD issued an internal report showing serious deficiencies in Title IX compliance, yet took no steps to address these deficiencies for nearly twenty years. (See ER 1206 ¶¶7-9; 1710-13.) In 1983, UCD dropped women's field hockey despite the fact that there were existing teams, active interest, ability, and available competition. (ER 1208 ¶¶ 19-20; 1710-13; 2324; 4541-42; 4543-51.) It also dropped women's golf. (Id.) Between 1989 and 1991, UCD eliminated nearly 100 women's varsity opportunities. (ER 1207-08 ¶ 18; compare 1710 with 2317.)
An internal report issued in 1991 again warned of deficiencies in Title IX compliance. (ER 1206 ¶¶7-9; 1710-13.) In 1996, when female participation rates were 20% lower than female enrollment, UCD finally added three women's varsity teams. (ER 1207 ¶ 12; 1208 ¶ 21; 1345-46; 1354-55; 1961.) Even so, the participation rates of women remained disproportionate to their enrollment by 11%. (Id.) Then in 2000, UCD removed all women from the varsity wrestling program (ER 1204 ¶ 4; 2644-45; 2935:9-2939:16; 2945:19-2946:18; 3027:22-3028:2; 3029:21-3030:14; 3665:14-3666:8; 3841:18-3842:21), and denied Plaintiffs' pleas, and the entreaties of their coach, for reinstatement (see ER 1221 ¶ 77; 2433-54).
In 2002, the participation rates of women remained disproportionate by nearly 10%. (ER 1207 ¶ 15; 1829.) The actual number of participation opportunities for women athletes at UCD dropped by approximately 60 varsity slots between 1999-2005. (ER 1209 ¶ 27; 1375; 1388; 1401; 1427; 1453; 1493; 1549; 1961.)
In fact, UCD has provided fewer, not more, opportunities for women athletes over time, even though its enrollment of women has grown. In 1999-2000, UCD had a female enrollment population of 10,446 with 424 female varsity athletes (ER 1961), yet in 2004-2005, UCD's female enrollment had soared to 12,834 but with only 368 female athletes (ER 1091:15-1092:11; 1508, 1549). The actual number of women athletes in 2005 was less than what it was in 1999, even though over 2, 200 more women students attended UCD in 2005 than in 1999. (Compare ER 1961 with 1561 & 1601.) UCD knew about the significant reduction in varsity opportunities for women, but did not replace the eliminated participation opportunities or expand opportunities during this time period. (ER 1210-11 ¶¶ 34-35; 1620; 1622; 1786; 1790; 1795-96; 1829; 3214:3-9; 3248:3-11; 4129:17-21; 4130:18-24; 4138:7-24; 4139:4-14; 4146:14-4147:11.)
In 2005, two years after this lawsuit was filed, UCD added women's varsity golf. (ER 1208 ¶ 22; 1601; 2053 ¶ 5; 2055 ¶ 2.b.; 2343-44; 5867.) Golf added only seven opportunities for women athletes. (Id.) Any of the pre-existing club teams that sought varsity status would have added considerably more participation opportunities. (ER 1212 ¶ 40; 3874:3-3875:10; 4225:24-4226:1; 5775; 5797; 5884-85)
C. UCD's Refusal to Fully and Effectively Accommodate the Interests and Abilities of Its Female Students.
UCD has also not complied with Prong Three of the three-part test: it has not fully and effectively accommodated the interests and abilities of its female students. (ER 1212 ¶ 42; 1713; 4400.) Although a report in 1991 urged UCD to conduct a survey to determine the interest and ability of women in varsity athletics, it waited 13 years to do so. (ER 1206 ¶¶7-9; ER 1208 ¶ 22; 1601; 1710-13; 2055 ¶ 2.b.) In 1996, UCD denied requests by the women's badminton and field hockey club teams to be elevated to varsity status. (ER 1212 ¶ 44; 2323-24; 2329-30; 2662-63.) Between 1995 and 2003, UCD never communicated to female students that they could seek the addition of a new women's varsity sport. (ER 1212 ¶ 45; 3263:16-3264:24; 4125:22-4127:5; 4411:6-9.) In 2003, UCD solicited and received applications for elevation to varsity status from field hockey, rugby, equestrian, bowling, and badminton club teams. The applications demonstrated strong interest, a high level of ability, and competitive opportunities at the varsity level for each sport. (ER 1211 ¶ 36; 1601; 5763-893.) UCD rejected all of these applications. (ER 1211 ¶ 37; 5763-893.)

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D. UCD's Elimination of Existing Women's Wrestling Varsity Opportunities.
1. UCD's Women's Wrestling Program.
Since 1992, when women first began wrestling at UCD, the varsity wrestling program included both men and women, each competing against their respective sex. (ER 1212-13 ¶ 46; 3369:9-3372:3; 3376:18-3377:8; 3397:19-20; 6593-610.) In 1995, UCD hired Michael Burch as a wrestling coach. (ER 1213 ¶ 47; 2874:17-25; 2875:9-22; 3397:19-20; 3369:9-3371:3; 3376:18-3377:8.) Women wrestled at UCD as varsity athletes under Coach Burch throughout his tenure. (ER 1213 ¶ 48; 2878:15-18; 3137:24-3138:2.)
UCD, including Athletic Director Warzecka, admits that Plaintiffs were varsity athletes on the wrestling roster. (ER 1217 ¶ 58-59; 1871-76; 3137:24-3138:2; 3150:10-19; 4200:23-25; 4201:12-19; 4470:15-4475:19; 4479:12-16; 4533:12-22; 4661 ¶ 6.) Women wrestlers at UCD received highly qualified coaching (ER 1213 ¶ 50; 3691:20-3692:5; 3987:21-23), wrestled women using women's freestyle rules (ER 1213 ¶ 49; 2891:11-21; 3036:11-24; 3626:15-3627:1; 3682:8-18), and received all of the benefits of varsity status including training services, medical services, and academic support services (ER 1213 ¶ 49; 2891:11-21; 3018:1-7; 3036:11-24; 3626:15-3627:1; 3658:22-3659:1; 3682:8-18; 3830:25-3831:3; 4150:25-4152:7). UCD sponsored a women's division in its annual Aggie Open wrestling tournament. (ER 1213 ¶ 51; 2372-427; 2474-77; 2896:25-2897:6; 2921:19-23.)
As members of the varsity program, women wrestlers attended practice regularly and had the same responsibilities as any male team member. (ER 1213-14 ¶ 52; 3015:1-4; 3024:7-13; 3383:17-19; 3385:19-20; 3969:13-21; 3986:1-23.) The women wrestlers were listed as varsity athletes on participation lists, roster lists, and in the Aggie Open programs. (ER 1215-16 ¶ 55; 2394-95; 2398; 2403; 2405; 4148:12-4149:9; 4462:7-23; 4469:14-4470:1; 6611-998.)
2. Plaintiffs' Attendance at UCD with the Desire and Intent to Wrestle.
Plaintiffs chose to attend UCD to contribute to its strong tradition of women's wrestling. (ER 1204 ¶ 3; 3556:18-3557:5; 3558:18-3559:6; 3626:15-3627:1; 3628:15-3629:24; 3797:13-21.) Plaintiffs Ng and Mansourian were both high school wrestlers who selected Davis because it o ffered them the opportunity to wrestle. (ER 3628:15-3629:24; 3791:3-3793:14; 3797:13-21.) In fact, Plaintiff Mansourian selected UCD over a prestigious program that would have put her on track for acceptance at medical school, because only at UCD would she have the opportunity to wrestle. (ER 1218 ¶ 62; 3628:13-3629:24.) Plaintiffs Ng and Mansourian actively participated in the wrestling program, including regularly attending practice six days a week, receiving benefits as varsity team members, and being dedicated members of the team. (ER 1218 ¶ 61 & 63; 3656:12-3659:1; 3816:14-17; 3825:23-3826:8; 3832:15-3833:2; 3839:5-14.)
Plaintiff Mancuso also chose to attend UCD because it afforded her the opportunity to continue wrestling. (ER 1218 ¶ 64; 3541:2-11; 3556:18-3557:5; 3558:18-3559:6; 3569:9-15; 3570:22-23.) She was a highly-skilled wrestler in high school who planned to train for the Olympic team. (ER 1218 ¶ 65; 2879:1-5; 2890:5-10; 3553:8-14; 3569:19-24; 3576:19-23.) Prior to coming to UCD in 2001, she was aware of the controversy about women's wrestling, but understood that the women had been reinstated on the team. (ER 1218-19 ¶ 66; 3582:24-3583:15; 3586:9-3587:5; 3596:23-3597:13.) She entered in 2001 and attended practices in the fall of 2001 along with Ng and Mansourian. (ER 1219 ¶ 67; 3580:12-25; 3582:6-8; 3588:1-13; 3590:7-3592:7.) However, when she was forced to wrestle-off against a man in order to participate on the team, she was cut from the wrestling program. (Id.)
3. UCD's Removal of Women Wrestlers from the Varsity Wrestling Program.
In October 2000, the UCD athletic department administration instructed Coach Burch to remove the women from the wrestling team. (ER 1219 ¶ 68; 2644-45; 2935:9-2939:16; 2945:19-2946:18; 3027:22-3029:2; 3029:21-3030:14;

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3665:14-3666:8; 3841:18-3842:21.) Although Burch protested against this instruction, he informed the women wrestlers of the directive. (Id.) Burch permitted the women to continue practicing with the wrestling team. (Id.) Mansourian was injured during a practice in January 2001 and received assistance from a varsity trainer. (ER 1219 ¶ 69; 3677:8-12; 3678:4-25; 3845:16-20.) When the administration learned of Mansourian's use of this varsity benefit, Warzecka met with the women wrestlers and directed them not to participate in wrestling. (ER 1219 ¶ 70; 3669:24-3670:13.) He also told them that they could not participate on the wrestling team because they were a liability to UCD. (ER 1219 ¶ 71; 3082:15-18; 3085:2-9; 3592:21-3593:8.)
UCD eliminated women's varsity wrestling despite the strongest possible evidence of interest and ability in the sport, and a reasonable expectation of competition: women were participating on the team and competing in open events.[FN7] Coach Burch testified that he could have easily recruited enough women to field several women's varsity teams. (ER 1219-20 ¶ 72; 2680:16-23; 3442:16-3443:13; 4167:20-4168:4; see supra note 7.)
FN7. (ER 1220 ¶ 73; 2428-32; 2455-59; 2479-81; 2498:23-2499:27; 2508-10; 2817:12-2818:4; 2822:18-2823:19; 2837:11-2838:1; 2841:24-2843:16; 2889:9-25; 3728:20-3730:13; 3733:22-3734:19; 3738:3-24; 3909:11-3910:20; 3915:23-3919:9; 3951:20-25; 4069:5-11.)
Numerous individuals with knowledge of women's wrestling agree that there was sufficient interest to field a collegiate team at UCD in 2001. (ER 1220 ¶ 74; 3742:11-3744:11; 3748:24-3749:17; 3753:18-3756:2; see also supra note 7.) Ample intercollegiate competition for women's wrestling existed throughout UCD's competitive regions with over 40 colleges and universities fielding varsity women programs or wrestlers. (Id.) Despite this interest, ability, and available competition for women wrestlers, UCD admits that it did not consider interest in women's wrestling before it removed women from the program. (ER 1220-21 ¶ 75; 2154-267; 4379:12-4380:7; 4390:5-10; 4390:23-4391:1; 4404:17-22; 4483:4-10; 4489:17-4493:14.)
In April 2001, Ng and Mansourian submitted a complaint to the OCR, charging that they had been subject to sex discrimination due to the elimination of intercollegiate athletic opportunities for women. (ER 1221 ¶ 77; 2433-54.) Subsequently, Ng, Mancuso, and Mansourian filed supplemental complaints of sex discrimination with OCR. (Id.) Soon after the OCR complaints were filed, UCD fired Burch for his support of women's wrestling. (ER 1221 ¶ 81; 2890:19-23; 2946:9-13; 2957:23-2958:9.)
OCR never interviewed a single plaintiff, or any other women wrestler. (ER 1221 ¶ 78; 3035:2-13; 3037:1-5; 3685:7-3686:1; 3861:2-6.) Instead, after discussions solely between UCD and OCR, OCR accepted the “voluntary resolution” of Plaintiffs'complaints that was suggested by UCD, in which UCD agreed to reinstate the women to the wrestling program. (ER 1222 ¶ 82; 1857-58; 2482-89.) However, the plan conditioned reinstatement on Plaintiffs' ability to compete against men for a varsity slot - a condition that had never previously existed. (ER 1222 ¶ 83; 1857-58.) Significantly, UCD never advised the OCR that the women wrestlers had previously only competed against other women. (ER 1222 ¶ 84; 1857-58; 4480:10-4481:20.)
In May 2001, after the wrestling season was over, the women were once again placed on the roster for the wrestling team. (ER 1222 ¶ 85; 3589:15-24; 3687:1-19.) However, that fall, UCD required the women to wrestle-off against men for a spot on the team. UCD told them that this was necessary because slots on the team were limited by roster caps, even though roster caps were intended to limit the number of men participating in order to move toward gender equity. (ER 1222 ¶¶ 86-87; 1620-22; 2512; 3688:9-17.) UCD's expert testified that forcing women to be counted within a roster cap for the men's team and to compete against men to be on the team is the effective elimination of women's opportunities. (ER 1222-23 ¶ 88; 3295:5-13; 3297:1-3298:3.) Roster caps have never been applied to any other women's team at UCD. (ER 1223 ¶ 89; 1693:23-27.)
In the fall of 2001, Plaintiffs attended wrestling practices with the rest of the team. (ER 1223 ¶ 90; 3580:12-25; 3581:15-18; 3582:6-8; 3709:9-25; 3867:17-25.) At the practices, the new coach was hostile to the women and did not

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provide them with any coaching, tips, or support. (ER 1223 ¶ 91; 3594:1-14; 3598:17-3599:1; 3700:18-3701:3; 3703:5-12; 3862:17-3863:7; 3863:15:-3864:13.) Feeling unwelcome and humiliated, Mansourian stopped attending practices. (ER 1223 ¶ 92; 3709:9-3710:5; 3711:1-3712:8.) Ng wrestled off against Mancuso, who beat her. (ER 1223 ¶ 93; 3589:4-3592:7; 3869:12-20; 3870:1-12.) Mancuso then wrestled off against a male wrestler, who beat her. (Id.)
Plaintiffs were devastated by their dismissal from varsity wrestling. (ER 1223 ¶ 94; 3601:9-24; 3630:21-22; 3667:23-3668:20; 3843:7-3844:1.) They filed suit, requesting reinstatement of the women's wrestling program, equal accommodation of women in UCD's athletics program, and damages. UCD continues to refuse to provide wrestling opportunities to women, even though high schools girls from throughout the state continue to inquire about wrestling at UCD. (ER 1224 ¶ 95; 2455-59; 2479-81; 2432; 4515:9-15; 4516:11-4517:8; 4518:24-4519:14.)
SUMMARY OF THE ARGUMENT
Three erroneous rulings of the district court are before this Court on appeal, the first of which has been resolved by an intervening Supreme Court decision. In the first ruling, which was in response to Defendants' Motion for Judgment on the Pleadings, the district court dismissed Plaintiffs' claims under 42 U.S.C. § 1983 against all Defendants for discrimination in violation of the Equal Protection Clause on the basis that Title IX is the exclusive remedy for sex discrimination by educational institutions. On January 21, 2009, the United States Supreme Court reached the opposite conclusion in Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 2009 WL 128173 (Jan. 21, 2009), holding that Title IX does not preempt constitutional claims under § 1983, and that remedies under both statutes can be pursued. Therefore, the order of the district court dismissing Plaintiffs' § 1983 claims must be reversed.
Second, the district court erroneously denied Plaintiffs leave to amend their Complaint to add current students at UCD. The proposed amendment was limited and reasonable in light of unforeseen stays of the action, and necessary to Plaintiffs' diligent prosecution of this action. The court abused its discretion in finding that Plaintiffs had not established good cause under Federal Rules of Civil Procedure, rule 16(b) and that the proposed amendment was prejudicial under rule 15(a).
Third, the district court erroneously held that the actual notice required in Title IX sexual harassment cases seeking damages was required here and had not been provided. It concluded, therefore, that UCD was not liable for violations of Title IX in its athletics program. This holding is legally untenable. The concern in the Title IX sexual harassment cases on which the district court relied is not present here. That concern is ensuring that an educational institution will not be held liable for damages for the behavior of rogue employees, as opposed to its own actions. E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-88 (1998) (funding recipient must have actual notice of teacher's sexual harassment of student to which it responds with deliberate indifference).
In this case, UCD itself is not innocent of sex discrimination while rogue employees secretly committed improper acts. Instead, UCD itself has been discriminating against women in its athletics program for decades. It has continually and directly failed to provide equal opportunities for its female students to participate in sports.
This case thus has nothing in common with Gebser. It is UCD's own actions in administering its athletics program including dropping the women's wrestling program - that are at issue, and those actions fall far short of its affirmative obligations under Title IX's three-part test. Institutions receiving federal funds have long been on notice that they are subject to liability for their own violations of Title IX. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992).
Moreover, even assuming that Plaintiffs were somehow required to show that UCD had actual notice that it was discriminating against them on the basis of sex, they met that standard. The substantial record of evidence establishes that UCD had ample notice that it was not providing Plaintiffs and its other female students with equal athletic participation opportunities. Prior to bringing suit, Plaintiffs repeatedly complained that UCD was denying them and other

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women athletes at UCD the opportunity to participate fully in varsity athletics. Plaintiffs even filed complaints with, and attempted resolution through, the OCR long before they filed their Complaint in court. Moreover, all of this occurred against the backdrop of a University that repeatedly told itself over the course of decades, in internal reports and memos, that it was failing to live up to its obligations under Title IX. The district court's conclusion that the notices that Plaintiffs (and others) gave UCD were not adequate because they focused too heavily upon wrestling rather than the broader failure of UCD to provide equal accommodation to female athletes only shows the court's misunderstanding of the applicable Title IX regulations and policies. Even if notice were required - which it was not - UCD had it.
The importance of correcting the district court's errors is particularly acute in this case because the record below makes clear that UCD violated Title IX by failing to meet any prong of the three-part test for determining whether a school is providing its female students with equal opportunities to play sports. By denying Plaintiffs the opportunity to make their case, the district court's error compounds the inequities that they and other female students at UCD have faced for years and continue to face. As Plaintiffs will show on remand, UCD also violated the Equal Protection Clause by discriminating against women in its provision of educational programs and they should also be allowed to pursue those claims.
ARGUMENT
I. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS' EQUAL PROTECTION CLAIMS.
A. Applicable Standard of Review.
The dismissal of a complaint from a judgment on the pleadings is reviewed de novo. Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007). On a motion for judgment on the pleadings, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). “A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (citation omitted).
B. The District Court Erred in Dismissing Plaintiffs' § 1983 Claims for Monetary Damages Against the Individual Defendants.
In response to Defendants' Motion for Judgment on the Pleadings, the district court dismissed Plaintiffs' claims for violation of the Equal Protection Clause of the United States Constitution under 42 U.S.C. § 1983 seeking monetary damages against Defendants Vanderhoef, Warzecka, Swanson, Gill-Fisher, and Franks on the sole basis that these claims were precluded by Title IX. On January 21, 2009, however, the United States Supreme Court held in Fitzgerald v. Barnstable that there is no such preclusion. Specifically, the Court stated that: Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights. Accordingly, we hold that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.
Fitgerald, 2009 WL 128173, at *8. Because the district court dismissed Plaintiffs' § 1983 claims on the sole basis that such claims are precluded by Title IX, in light of Fitzgerald, the district court must be reversed and Plaintiffs' § 1983 claims against the individual defendants must be reinstated.
C. The District Court Erred in Dismissing Plaintiffs' § 1983 Claim for Injunctive Relief Against UCD.
In their Motion for Judgment on the Pleadings, Defendants also sought dismissal of Plaintiffs' claim for violation of the Equal Protection Clause of the United States Constitution under 42 U.S.C. § 1983 seeking injunctive relief against Defendant UCD on the sole basis that this claim was precluded by Title IX. Rather than dismissing on that ground, the

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district court sua sponte dismissed Plaintiffs' § 1983 claim against UCD on the ground that Plaintiffs did not have standing to assert a claim for injunctive relief as they were no longer current students at UCD. (ER 61 n.15.) Plaintiffs' lack of standing, however, was the direct result of the district court's denial of Plaintiffs' motion for leave to amend to add plaintiffs who were current UCD students. As discussed infra, the court erred in denying Plaintiffs leave to amend to add current students. Had it not been for this error, Plaintiffs would have had standing to maintain their § 1983 claim against UCD for injunctive relief. And in light of Fitzgerald, UCD has no other argument on appeal that the dismissal of this claim was proper. Accordingly, Plaintiffs must be allowed to reassert their § 1983 claim against UCD for injunctive relief upon a showing of standing in the district court.
II. THE DISTRICT COURT ERRED IN DENYING PLAINTIFFS LEAVE TO AMEND TO ADD CURRENT STUDENTS TO THE LAWSUIT.
The district court erred in denying Plaintiffs leave to amend their Complaint to add three current students as plaintiffs and proposed class representatives before the hearing on class certification and long before the close of discovery. Plaintiffs sought the amendment eight months before the close of discovery, eleven months before the dispositive motion deadline and fifteen months before trial. (See ER 85-91.) The court held, however, that: (1) Plaintiffs lacked good cause to modify the scheduling order because they failed to be diligent in seeking the modification, as required by Fed. R. Civ. P. 16 (ER 80:17-82:5); and (2) Plaintiffs' proposed amendments to the Complaint would be prejudicial to Defendants, even under the very liberal standards of Fed. R. Civ. P. 15 (ER 82:6-84:11). Both findings are erroneous, and are premised on a m isapplication of the standards, as well as a misapprehension of the gravamen of Plaintiffs' Complaint. The court's order should, accordingly, be reversed.
A. Applicable Standard of Review
An abuse of discretion standard governs review both of a district court's denial of a request to modify a pretrial scheduling order, and of its denial of a motion for leave to amend a pleading. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 (9th Cir. 2007); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Because of the strong policy favoring leave to amend, denials of leave to amend, however, are “strictly” reviewed. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).
B. The Court Erred in Refusing to Allow Plaintiffs to Modify the Scheduling Order.
The district court's finding that Plaintiffs lacked good cause to modify the scheduling order was based on its conclusion that Plaintiffs should have foreseen the need to bring current students into the lawsuit and their failure to do so earlier was due to a lack of diligence. (ER 80:17-82:5.) This was, however, a misapplication of Rule 16's standard which looks to the reasonable diligence of the moving party and her reasons for modification. Johnson, 975 F.2d at 609-10. Where the non-moving party is already on notice of the reasons for the proposed modification, good cause can be found. Sousa v. Unilab Corp. Class II (Non-Exempt) Members Group Benefit Plan, 252 F. Supp. 2d 1046, 1059 (E.D. Cal. 2002). Failing to understand the scope of the lawsuit and its posture as a Title IX class action seeking broad injunctive relief, the district court committed two distinct errors in finding that Plaintiffs lacked good cause.
1. The Court Misapprehended the Scope of the Original Complaint by Finding that Plaintiffs Should Have Sought Amendment Upon Receipt of Program-Wide Discovery.
The court misapprehended the scope of Plaintiffs' Complaint by finding that they should have sought to amend to include plaintiffs interested in other sports when they “discovered” evidence about discrimination involving other sports. (ER 81:9-23.) Plaintiffs' Complaint has always included a Title IX claim of ineffective accommodation, which necessarily requires a program-wide analysis of UCD's athletics program, and therefore necessarily involves other women athletes. (ER 6441:1-6443:19.)

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The court found that Plaintiffs “had notice that the named plaintiffs in this action only alleged that they participated or wished to participate in a varsity wrestling program.” (ER 81:17-20.) This finding demonstrates the court's error. The gravamen of the Complaint is that Defendants were refusing to equally accommodate women in athletics and exacerbated this discrimination by eliminating women's varsity wrestling opportunities. (ER 6417:17-6434:12; 6441:1-6443:19.) Plaintiffs challenged UCD's overall failure “to provide equitable athletic participation and scholarship opportunities for women, despite the athletic interests and abilities of UC-Davis female students and high school female students who will become UC-Davis students in the future.” (ER 6408:20-24.) Plaintiffs sought injunctive relief on behalf of all female athletes. (ER 6409:9-24.)
The court also ignored critical allegations in the Complaint that defined the proposed class to include all women student athletes, including wrestlers.[FN8] (ER 6409:1-8.) These allegations are consistent with Plaintiffs' December 2005 class certification motion, which defined the class to compasses all female athletes. (ER 6405:22-25.) Plaintiffs' status as wrestlers did not preclude them from adequately representing a class of women athletes interested in various sports. Adding current students with a variety of athletic interests simply was consistent with the original allegations of the Complaint and with the program-wide scope of an ineffective accommodation claim.
FN8. Notably, the pleading requirements under Rule 8 are non-technical and extremely liberal. Fed. R. Civ. P. 8(a) & (e). (See infra note 14.)
Indeed, as UCD repeatedly acknowledged, the court is required to analyze Plaintiffs' Title IX ineffective accommodation claim involving the athletics program as a whole. Title IX looks at compliance on a programmatic rather than sport-specific basis. Policy Interpretation, 44 Fed. Reg. at 71,417, Part VII. B.5. (AD 10.) Assessment is according to whether the institution's “program as a whole” is satisfactory. Id.; see also id. at 71,422, App. B, Resp. to Add'l Comments (8). (AD 15.) “Title IX protects the individual as a student-athlete, not as a basketball player, or swimmer.” Id. at 71,422 (AD 15); see Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 174-75 (3d Cir. 1993) (Title IX regulations require inquiry regarding overall opportunities rather than opportunities in a particular sport). Any remedy necessarily will affect the entire student body of women athletes. Cohen v. Brown Univ. (Cohen II), 991 F.2d 888, 897 (1st Cir. 1993).
Plaintiffs' proposed amendment sought to add new plaintiffs with the same claims against the same defendants who were suffering the same injury as the original Plaintiffs: denial of a right to equal accommodation in athletics. Indeed, proposed Plaintiff Ludwig was another wrestler. Moreover, the proposed amendments did not seek to “add” field hockey and rugby because the experience of female student athletes interested in different varsity opportunities has always been integral to the analysis in this case. The court's failure to recognize the scope of Plaintiffs' proposed class action led it to erroneously conclude that Plaintiffs did not diligently seek to modify the scheduling order.
2. The Court Ignored the Impact of Intervening Factors on Class Certification to Deny Plaintiffs a Routine Amendment to Strengthen Representation of the Class.
In refusing to modify the scheduling order, the district court also failed to recognize the impact of an unexpected stay of the case on the timing of class certification. Plaintiffs' proposed amendment merely sought to add plaintiffs and proposed class representatives who were current students at UCD to address the fact that Plaintiff Mancuso had graduated during the unforeseen delay of the case.
Plaintiffs filed their class certification motion in December 2005, while Mancuso was still a UCD student. Mancuso would have still been a current student had class certification been heard as scheduled in April 2006. (ER 75:3-20; 6102:5-8; 6405.) Shortly before the class certification hearing, however, the court stayed the action at the request of Plaintiffs' counsel, who had been diagnosed with cancer. (ER 6384-89.) The action was stayed until January 2007 to allow Plaintiffs to secure other counsel. (Id. & ER 76:1-23.) Mancuso graduated during the stay and before resolution of class certification. (ER 6102:5-8.)

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Plaintiffs immediately advised the Court of their intent to amend the Complaint once the stay was lifted. (ER 6373:4-7.) In February 2007, Plaintiffs moved to amend their Complaint to add three current students as named Plaintiffs and proposed class representatives: Laura Ludwig, a wrestler and UCD club rugby player, as well as Jessica Bulala and Kelsey Brust, both of whom were UCD club field hockey players. (ER 6327:4-28.) Plaintiffs also sought to add allegations to reflect the continuing nature of UCD's discrimination (ER 6339:13-6340:11) and to amend the class definition to conform to the allegations and relief sought in the original Complaint and to the class definition set forth in Plaintiffs' class certification motion (ER 6324: 24-27; 6405).
Although the original Plaintiffs continued to have standing to prosecute this action and represent the proposed class, it was appropriate to seek the addition of current student once Mancuso had graduated during the unforeseen delay. Plaintiffs' counsel has a duty to protect the class, even at the precertification stage. It is routine to permit amendment of a complaint to add additional representatives where appropriate to strengthen representation. Bromley v. Mich. Educ. Ass'n, 178 F.R.D. 148, 156-60 (E.D. Mich. 1998) (amendment allowed to cure standing problem); In re Cal. Micro Devices Sec. Litig, 168 F.R.D. 276, 277-78 (N.D. Cal. 1996) (class representatives added to address court's concern over adequacy of representation).
The district court misapplied the diligence standard, finding that Plaintiffs knew before the stay that Mancuso's graduation was imminent.[FN9] Mancuso's eventual graduation, even if imminent, is not determinative of whether Plaintiffs were diligent. But for the unforeseen delay in resolution of class certification, Mancuso would have been a current student when class certification was decided. The addition of current students as plaintiffs and proposed class representatives was intended to protect the class, and did not enlarge the case in any way. These circumstances thus were good cause to modify the scheduling order. See, e.g., Merrithew/Howell v. Park Pointe Realty, Inc., 2007 WL 129040, at *2 (D. Idaho Jan. 12, 2007) (finding good cause because delays were result of unforeseen circumstances).
FN9. The district court noted testimony by Mancuso that she filed an “intent to graduate” in the Fall of 2005. (ER 79:26-28.) However, the record does not support any assumption that this action would result in a graduation date before June 2006.
The proposed amendment was limited, reasonable, and timely. Plaintiffs' proposed amendment was well before the discovery cut-off. This fact alone contrasts sharply with the cases relied on by the court below, where bad faith amendments were sought after close of discovery See, e.g., Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990) (request to add new defendants and new claims fourteen months after advising defendants of intent to file amended complaint and one year after close of discovery); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 983, 986 (9th Cir. 1999) (request to add new claims made after discovery closed); Acri v. Int'l Ass'n of Machinists & Aeorspace Workers, 781 F.2d 1393, 1395 (9th Cir. 1986) (finding undue delay and bad faith for plaintiffs' request to add new theory of liability at summary judgment hearing, where plaintiffs admitted delay as a “tactical choice”).
The court abused its discretion in finding that Plaintiffs had not established good cause under Rule 16(b). Kaisha v. BASF Corp., 2007 WL 39313, at *3 (N.D. Cal. Jan. 4, 2007) (good cause where discovery ongoing).
C. The District Court Erred in Concluding that Plaintiffs' Proposed Amendments Would Prejudice Defendants.
Once Plaintiffs have shown good cause under Rule 16, the next inquiry is whether the amendment is proper under Rule 15(a). Johnson, 975 F.2d at 608. When a party seeks to amend her pleading, leave shall be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied with extreme liberality” in consideration of factors such as prejudice, bad faith, undue delay and futility of the amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051, 1052 (9th Cir. 2003) (citation omitted). The burden of proof falls on the party opposing the

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amendment. Id.
The district court erroneously found prejudice to Defendants. The court concluded that the addition of other female athletes would burden Defendants with defending against an entirely new theory of liability. (ER 82:6-84:3.) But this conclusion is flawed because, as explained above, Plaintiffs' ineffective accommodation claim necessarily requires an analysis of UCD's accommodation of female interest program-wide. Further, any injunctive relief would necessarily impact all women athletes at UCD.
The proposed amendment did not allege any new theories of liability or change the scope of the action; it merely would have added three current women athletes at UCD who were ready and willing to serve as class representatives. Discovery regarding the availability of opportunities in other sports had already been conducted and relied upon by experts in the case. (E.g., ER 5939-68; 6108-20; 6201-39.) In addition, Defendants had eight months before the close of discovery to conduct any discovery specific to the new plaintiffs. And Defendants knew Plaintiffs' Title IX claim involved the entire athletics program. The test for allowing amendment is not whether defendants will be disadvantaged at all, but whether they would be “unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely.” In re Vitamins Antitrust Litig., 217 F.R.D. 34, 36 (D.D.C. 2003) (citations omitted); Hartford Ins. Co. v. Socialist People's Libyan Arab Jamahirya, 422 F. Supp. 2d 203, 206 (D.D.C. 2006).
Given the scope of the case, the discovery already conducted, and the amount of time remaining to litigate this case, the court abused its discretion in denying the motion to amend under Rule 15(a). See Bertrand v. Sava, 535 F. Supp. 1020, 1023 (S.D.N.Y. 1982), rev'd on other grounds, 684 F.2d 204 (2d Cir. 1982).
III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO UCD ON PLAINTIFFS' TITLE IX CLAIM.
A. Applicable Standard of Review.
This Court reviews all grants of summary judgment de novo. See Clicks Billiards, Inc. v. Sixshooters, Inc. (Billiards), 251 F.3d 1252, 1257 (9th Cir. 2001) (“Viewing the evidence in the light most favorable to the nonmoving party . . . and drawing all reasonable inferences in its favor, [the Court] must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” (citations omitted)). The district court's interpretation of Title IX is reviewed de novo. Neal, 198 F.3d at 766. Summary judgment may be rendered only if all evidence shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. Rule 56(c).
All evidence submitted on behalf of the non-moving parties must be believed and all justifiable inferences must be drawn in their favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Easter v. Am. West Fin., 381 F.3d 948, 949, 960 (9th Cir. 2004). The weighing of evidence is a jury functions not suitable for resolution on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
B. The District Court Erred in Applying the Notice Requirement of Title IX Sexual Harassment Cases to Plaintiffs' Ineffective Accommodation Claim.
The district court held that Plaintiffs' claim for damages under Title IX is barred as a matter of law because Plaintiffs did not give UCD actual notice of their ineffective accommodation charge. This holding is legally and factually in error. The court's error was, in significant part, caused by its failure to recognize two distinct concepts of notice in Title IX jurisprudence - notice required under the Spending Clause to an institution of potential liability for its own Title IX violations when it accepts federal funds (Pennhurst notice), and actual notice to the institution when the acts of third

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parties, e.g., a teacher or a student, who engaged in sexual harassment are at issue (Gebser notice). There is no question that UCD had Pennhurst notice that it was subject to liability for violations of the Title IX athletics regulations and policies. And there is no reasonable interpretation of Gebser that would cause it to be applied here.
1. Title IX Imposes No Actual Notice Requirements on Plaintiffs Challenging an Institution's Discrimination in its Athletics Program.
Plaintiffs seek to hold UCD liable under Title IX for its own acts in administering its athletics program. Title IX explicitly provides that “[n]o 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 activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). (AD 1.) As the Supreme Court explained in Pennhurst, 451 U.S. at 17, legislation such as Title IX that is enacted pursuant to the Constitution's Spending Clause is in the nature of a contract: “in return for federal funds, the States agree to comply with federally imposed conditions.” Those conditions must be clear, as there is “no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Id. In accepting federal funds, UCD accepted its obligation under Title IX not to discriminate against women in the operation of its programs. That this includes the obligation not to discriminate in athletics, as defined by the longstanding Title IX athletics regulations and policies, is not reasonably subject to dispute. Plaintiffs are not attempting to hold UCD liable for some novel theory of discrimination. Instead, they have alleged a straightforward, established claim that UCD has failed to provide equal participation opportunities in its athletics program.
Further, UCD has been on notice since Cannon v. Univ. of Chi., 441 U.S. 667 (1979), that it is subject to suit under Title IX by individuals, and since Franklin, 503 U.S. 60, that those suits can subject it to liability for monetary damages. See Franklin, 503 U.S. at 75 (“Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe.”); Jackson v. Birmingham Bd. of Educ, 544 U.S. 167, 182 (2005) (“Funding recipients have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX since 1979, when we decided Cannon.”).
As the Supreme Court recently stated, “Title IX has no administrative exhaustion requirement and no notice provisions. Under the implied private right of action, plaintiffs can file directly in court, . . . and can obtain the full range of remedies, . . .” Fitzgerald, 2009 WL 128173, at *7. Thus, while the express enforcement mechanism of Title IX is an administrative procedure resulting in the withdrawal of federal funds from institutions that are not in compliance, see 20 U.S.C. § 1682, the implied right of action operates independently, and allows private plaintiffs to seek both injunctive relief and damages. Id.
2. The Actual Notice Requirement in Sexual Harassment Cases.
In Gebser, the Court addressed whether a school district could be held liable for a student's sexual harassment by a teacher who involved her in a secret sexual relationship. Gebser, 524 U.S. at 274. The student sought to hold the school district liable for the teacher's conduct by applying two alterative theories of agency liability: either respondeat superior, that the teacher was aided in carrying out the sexual harassment by his position of authority, irrespective of the district's knowledge of the harassment; or constructive notice, where the district knew or should have known about the harassment but failed to uncover and eliminate it. Id. at 282.
The Court concluded that these agency principles did not apply to attach liability to the school district for the teacher's unlawful conduct. Instead, for the district to be liable for damages for the acts of the teacher, the Court established the requirement that an authorized employee or official have actual notice of the sexual harassment and react with deliberate indifference to that harassment. Gebser, 524 U.S. at 290-91. Thus, in a case that seeks to hold the funding recipient liable for money damages not for its own actions, but for the acts of third parties, the recipient should only be liable for the rogue conduct of an employee if the recipient knew of the conduct and failed to address it. Id. at 287-91.

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In Davis ex rel. LaShonda v. Monroe County Bd. of Educ. (Davis), 526 U.S. 629, 639-40 (1999), the Supreme Court reaffirmed that the type of notice explained in Gebser is required only where - unlike here - a plaintiff seeks to hold a funding recipient liable for the independent conduct of third parties. The Court held that, as in Gebser, a funding recipient can be liable for “its own decision to remain idle in the face of known student-on-student harassment in its schools.” 526 U.S. at 641 (emphasis in original).
Nothing in these decisions suggests that the difficult standard of deliberate indifference to actual knowledge of discrimination applies to situations where - as here - the funding recipient itself is intentionally violating Title IX by excluding persons from, denying benefits to, or subjecting persons to discrimination on the basis of sex in its own operation of its programs or activities. Id. at 640-41.
3. The District Court's Erroneous Application of Gebser.
That the Supreme Court in Gebser and Davis required actual notice to a funding recipient of the sexual harassment by a teacher or a student of another student and deliberate indifference to that harassment before holding the recipient liable in a suit for money damages imposes no unmet burden on Plaintiffs in this effective accommodation case.
First, Gebser notice is only required in cases of sexual harassment by a third party, because the Supreme Court concluded that agency principles are not applicable in Title IX cases. See Davis, 526 U.S. 629 (1999); Reese v. Jefferson Sch. Dist., 208 F.3d 736, 739 (9th Cir. 2000). Plaintiffs do not seek to recover for sexual harassment by a teacher or a student.
Second, Plaintiffs do not, and need not, rely on any type of agency theory to establish UCD's violation of Title IX because Plaintiffs claim that UCD itself has been discriminating and continues to discriminate against women in the operation of its athletic program. UCD is fully and uniquely responsible for the level and extent of athletic opportunities it provides and decides how many opportunities to provide to its female and to its male students. It has affirmative obligations to comply with Title IX in the provision of these opportunities - obligations that it has utterly failed to meet in this case.[FN10] Thus, in cases such as this where the funding recipient itself is charged with sex discrimination, individuals bringing suit under Title IX do not have a separate obligation to inform the funding recipient of its own discriminatory conduct.
FN10. In fact, under the 1994 Equity in Athletics Disclosure Act, UCD must annually file and make publicly available a report with the United States Department of Education detailing information about its athletics program. See 20 U.S.C. § 1092. In effect, as its name suggests, the law requires universities to perform an annual self-audit of many of Title IX's requirements. Among other data, UCD must report the number of females and males enrolled, and the number and gender of participants on each varsity team that it sponsors. The notion that it is not on “notice” of the gender equity, or lack thereof, in its athletics program thus is nonsensical.
The district court's reliance on Title IX's administrative process to avoid this conclusion is misplaced. As the Supreme Court recently reiterated, Title IX has no exhaustion requirement; its administrative scheme is independent of its implied right of private action. Fitzgerald, 2009 WL 128173, at *1, 7. The language in Gebser that referenced the administrative scheme simply underscored the concern with holding the funding recipient liable for acts of which it was unaware. See Gebser, 524 U.S. at 289-90 (implied right of action should not permit “substantial liability without regard to the recipient's knowledge”).
Third, the district court never suggests that UCD somehow did not know that it was not providing equal athletic opportunities to its women students, but is instead imposing a requirement that Plaintiffs were obliged to give formal notice of that fact before they could sue for damages. This requirement goes beyond the Gebser standard, has no foundation in reason or precedent, and is in direct conflict with the express terms of the three-part test, which states

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that a school is not in compliance if it cannot meet one of the three prongs. That is precisely the situation UCD finds itself in.
Where, as here, UCD itself is responsible for all relevant aspects of its athletics program, including the obligation to ensure its compliance with Title IX, no additional notice is required before a student may bring a private right of action for damages for the University's failure to meet its Title IX obligations. It is necessarily on notice of its own conduct. (ER 1204 ¶¶ 1-2; 1996-97 ¶ 4; 2004-07 ¶ 5; 6413:8-22.) See generally Pederson v. La. State Univ., 213 F.3d 858, 878-83 (5th Cir. 2000) (holding university accountable for Title IX damages on equal accommodation theory).
The Pederson case is directly on point. It addressed whether the notice requirements in Title IX sexual harassment cases applied where the claim was a university's failure to provide equal athletic opportunities. The court held: “In the instant case, it is the institution itself that is discriminating. The proper test is not whether it knew of or is responsible for the actions of others, but is whether Appellees intended to treat women differently on the basis of their sex by providing them unequal athletic opportunity, and, as we noted above, we are convinced that they did.” Id. at 882. This conclusion, of course, goes hand in hand with UCD's affirmative obligations to comply with Title IX's provisions. See, e.g., 34 C.F.R. § 106.4(a).
In this case, therefore, this Court should make clear that the district court's application of Gebser notice was erroneous and that its reliance on Grandson v. Univ. of Minn., 272 F.3d 568 (8th Cir. 2001) is entirely misplaced. Grandson is neither controlling nor persuasive.[FN11] Prior to the district court's decision, Grandson stood alone in applying Gebser to an athletics case. The reason for this is evident. As Davis makes plain, Gebser applies only in sexual harassment cases seeking damages where there is a question as to whether the federal recipient itself engaged in discrimination. See, e.g., Gebser, 524 U.S. at 287-88 (it is “sensible to assume that Congress did not envision a recipient's liability in damages” when the recipient “was unaware of the discrimination”); Davis, 526 U.S. at 643 (Gebser sought “to eliminate any risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions” (citation and internal quotation marks omitted)).
FN11. In fact, a decision by the Eighth Circuit the year after Grandson was decided that addressed an ineffective accommodation claim under Title IX made no reference to Grandson or to Gebser. See Chalenor v. Univ. of N.D., 291 F.3d 1042 (8th Cir. 2002).
Recognizing this concept, this Court has applied Gebser and Davis only in the context of sexual harassment claims. See, e.g., Reese, 208 F.3d at 739. The district court's decision is also contrary to those of other courts in this Circuit. See Johnson v. Clovis Unified Sch. Dist., 2007 WL 1456062, at *3 (E.D. Cal. May 17, 2007); Michelle M. v. Dunsmuir Joint Union Sch. Dist., 2006 WL 2927485, at *4 (E.D. Cal. Oct. 12, 2006).
Finally, as established below, even if the Grandson case correctly stated the legal principles, it is distinguishable. Whereas Grandson accepted the district court's questionable determination that administrators at the defendant campus somehow were unaware of the unequal treatment of women in athletics, Grandson, 272 F.3d at 575-76, the evidence here plainly establishes that UCD was well aware of its obligations and of the facts giving rise to Plaintiffs' ineffective accommodation claim.
C. The Evidence Establishes That UCD Was on Notice of Plaintiffs' Ineffective Accommodation Charge.
Plaintiffs should not have to provide notice to an institution of its own Title IX violations. Even if the Court accepts the district court's holding that Plaintiffs were required to provide UCD with some sort of “notice” of its violations of Title IX, however, evidence abounds that UCD was on notice both of Plaintiffs' claims and of its ineffective accommodation of women athletes long before the commencement of this suit.
Quite unlike the school district that was oblivious to a teacher's covert abuse of a student in Gebser, the evidence here

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establishes that UCD had direct oversight and responsibility for all aspects of its athletic program relevant to Plaintiffs' ineffective accommodation claim, including ensuring the University's compliance with Title IX. (ER 1204 ¶¶ 1-2; 1996-97 ¶ 4; 2004-07 ¶ 5; 6413:8-22.) UCD admits, as it must, that it received notice of Plaintiffs' OCR complaints. (ER 1831; see also infra. note 12.) The district court held that this notice was insufficient, however, because Plaintiffs' complaints related to wrestling and were not general enough. (See ER 21:12-13 (“the complaints allege specific acts of unequal treatment with respect to women's wrestling”).) The court held that this, as a matter of law, was not enough to demonstrate that “defendants received notice and an opportunity to cure an ineffective accommodation claim.” (ER 22:2-3.)
The district court's position is erroneous and should be reversed. First, the court plainly took every inference against Plaintiffs (the non-moving party in the summary judgment proceedings), by interpreting a direct notification of sex discrimination relating to women's wrestling as not being a notification of “ineffective accommodation.” But the district court's must view all evidence in favor of the non-moving party. Billiards, 251 F.3d at 1257.
Second, the district court's conclusion cannot be reconciled with the applicable standards under Title IX, which require an analysis of compliance on a programmatic rather than sport-specific basis. Policy Interpretation, 44 Fed. Reg. at 71,417, Part VII. B.5. (AD 10.) See also id. at 71,422, App. B, Resp. to Add'l Comments (8). (AD 15.) Plaintiffs' OCR complaints about UCD's failure to effectively accommodate women in the varsity wrestling program were therefore necessarily a complaint that UCD was failing to effectively accommodate women in its athletics program in violation of Title IX. The distinction drawn by the district court is untenable.
Third, the record below makes clear that in addition to Plaintiffs' OCR complaints (ER 1221 ¶ 77; 2433-54), UCD was on notice of Plaintiffs' complaints of discrimination, from, among other things, Plaintiffs' meetings and attempted meetings with Defendants Warzecka, Franks, and Vanderhoef,[FN12] the involvement of state legislators, the student senate, and the media (see ER 1221 ¶ 76; 1831-32; 1886-88; 1889-1939; 2158-2267; 3103:5-3104:1; 4087:9-23), and the filing of both Coach Burch's and plaintiffs' civil rights complaints. In addition, UCD knew about the protests, flyers, letters, news articles and possible legislative sanction generated by UCD's elimination of women's varsity wrestling. (See id. & supra note 12.)[FN13] These events raised broad questions about UCD's sex discrimination and Title IX compliance in regards to its athletic program. (Id.)
FN12. (ER 1165-68 ¶ 93; 1205-6 ¶¶ 6 -11; 1620-22; 1710-13; 1778-842; 1831-32; 1883-947; 2269-74; 3103:5-3104:1; 3151:15-3152:9; 4087:9-23; 4105:15-4106:3.)
FN13. When the decision by UCD to eliminate women's wrestling became public, there was a strong public backlash. (ER 1221 ¶ 76; 1886-88; 1889-1939; 2158-2267; 3103:5-3104:1; 4087:9.23.) Assemblywoman Helen Thomson threatened to withhold significant funding towards a UCD building, a protest was held, flyers and petitions were distributed, campus and statewide newspapers published news articles, and UCD's administration was contacted by concerned alumni. (Id)
Again, erroneously taking every inference against the non-moving party, the district court held that all of these notifications from Plaintiffs to UCD that it was engaged in sex discrimination in its sports program were supposedly so specific to wrestling as not to place UCD on notice of the broader issue. (E.g., ER 22-25.) In fact, however, the evidence shows that UCD regarded the OCR complaints and OCR's investigation as a program-wide grievance. (ER 1221 ¶ 80; 1871; 4197:14-4198:5; 4199:4-9; 4202:10-13; 4203:1-9; 4204:1-8; 4204:18-20; 4377:24-4378:12.)
The district court's distinction between notices related to wrestling and broader Title IX violations is also inexplicable in light of the district court's own earlier statement that the “gravamen” of the Complaint in this case revolved around UCD's handling of its women's wrestling program. (ER 44:24-27.) Moreover, on February 2, 2007, the district court denied Plaintiffs' permission to amend their Complaint because the original Complaint related “only” to opportunities for women in the wrestling program, but the amendments would involve other sports. The district court's switches in

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position leave the Plaintiffs whipsawed - on the one hand, their claims only relate to wrestling and other issues may not be raised; on the other hand, their notices to UCD of sex discrimination in sports supposedly only related to wrestling rather than to broader issues and therefore were insufficient as a matter of law to allow this case to proceed. The only consistent element to the district court's approach is that no matter what Plaintiffs said or did, they could not win.
Moreover, UCD's awareness of its program-wide noncompliance is evidenced by dozens of internal memos and official reports in which UCD admits that it is concerned about its compliance with Title IX. (Supra note 12.) Reports, memoranda, and emails from 1976, 1991, 1992, 1993, 1994, 1997, 1998, 2000, 2001, and 2002 acknowledge and warn of UCD's failure to comply with Title IX. (Id.) In 1976, UCD issued an internal report showing serious deficiencies in Title IX compliance. (See ER 1703.) In 1991, UCD issued a report by a committee studying compliance with Title IX in UCD athletics. (ER 1710-13.) The Report warned of “resistance within the Athletic Program to UC Davis's efforts to ensure total compliance with Title IX.” (ER 1703.) The Report also revealed that “participation by females [in varsity athletics] is clearly not substantially proportionate to their enrollment” at UCD. (ER 1711 ( emphasis in original).) In 1997, an internal committee at UCD again stated that participation levels “are not substantially proportionate to the undergraduate population of the institution. This suggests potential non-compliance with Title IX participation level requirements.” (ER 1620.) In 1998, Defendant Warzecka acknowledged that a gender imbalance in the athletic department “is not a new issue.” (ER 1624.) Indeed, UCD's Chief Title IX Compliance Officer admitted that he had a continuing concern about UCD's female participation rates throughout his tenure and believed UCD should be doing more to achieve Title IX compliance, stating “we could and should be doing more.” (ER 1207 ¶ 16; 4095:19-4097:6; 4144:20-4145:15; 4161:24-4162:4.)
All of this evidence contradicts the district court's holding that UCD had not received enough notice to “provide some indication of the basis for the institution's non-compliance so that an institution may attempt to remedy the situation voluntarily.” (ER 23:9-12.) UCD was clearly aware of its broad problem of noncompliance with Title IX. This was hardly a secret known only to a handful of women wrestlers who refused to let the world know; this was a fact that was hammered by UCD's own personnel to administrators time and time again. At a minimum, the evidence established a question of material fact that needed to be resolved by the jury. See, e.g., Gray v. First Winthrop Corp., 82 F.3d 877, 881 (9th Cir. 1996) (inquiry notice is a matter for the jury).
Further, the distinction relied upon by the district court is also inconsistent with UCD's own statements throughout this litigation, which demonstrate that it knows that a complaint from women athletes about unequal accommodation is a complaint that goes to UCD's athletic program as a whole. As UCD stated in its briefing in the district court: “A claim of ineffective accommodation encompasses the entire athletic program for the underrepresented sex - not just one specific aspect.” (ER 6058:28-6059:1.) Its expert also examined compliance by looking at the athletics program as a whole. (ER 5939-59.)
Finally, when this Court examines the notice requirement demanded by the district court, it becomes clear that it imposes upon ordinary students an extraordinary burden. The crux of the court's holding is not that Plaintiffs gave UCD no notice of sex discrimination, but rather that Plaintiffs' OCR complaints were insufficiently comprehensive and failed to specify the exact legal theories that would later be pursued, such that UCD only concerned itself with wrestling team issues. To require OCR complaints to allege exhaustive facts and legal theories with such particularity would be to import into Title IX a far more burdensome standard than applies even to pleadings prepared by counsel under Rule 8 of the Federal Rules of Civil Procedure.[FN14] Especially in light of the remedial intent of Title IX, this cannot possibly be the law. Particularly since it is undisputed that Plaintiffs' OCR complaints asserted Plaintiffs' right to participate on the varsity wrestling team - a right that by UCD's own analysis does not exist independently of program-wide noncompliance with Title IX - the district court erred in finding that UCD was ignorant of allegations of Title IX violations and, on that basis, stamping out Plaintiffs' ineffective accommodation claim as a matter of law.
FN14. Pleading requirements under Rule 8 are - by express congressional design - nontechnical and extremely liberal. Fed. R. Civ. P. 8(a) & (e). Exhaustive pleading is not required; indeed, “a complaint is not required to allege all, or any, of the facts logically entailed by the claim.” Bennett v. Schmidt, 153 F.3d 516,

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518 (7th Cir. 1998) (citation, internal quotation marks, and emphasis omitted). A complaint need not even specify the precise nature of the claim asserted where the facts alleged put the defendant on notice. Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir. 1990). The district court's requirement of such specificity conflicts with its earlier statement that the United States Supreme Court had “rejected applying a heightened pleading standard to discrimination claims.” (ER 53:17-18 (citing Swierkiewicz, 534 U.S. at 511).)
IV. AFTER THE NOTICE DEFENSE IS STRIPPED AWAY, IT IS CLEAR FROM THE RECORD THAT UCD DISCRIMINATES AGAINST FEMALE ATHLETES IN VIOLATION OF TITLE IX AND § 1983.
The stakes involved in the forgoing discussion of the notice defense to Plaintiffs' Title IX claim and the dismissal of the § 1983 claims become clearer when they are placed in the broader context of this case: the record establishes that UCD has plainly not provided the opportunities to women athletes required by federal law.
A. UCD Discriminated Against Female Students, Including Plaintiffs, By Failing All Three Prongs of Title IX's Three-Part Test for Measuring Equal Accommodation.
UCD has failed to provide female students, including Plaintiffs, with an equal opportunity to participate in varsity athletics. The evidence established that UCD was not in compliance with Title IX under any of the three prongs, or (at least) that a material issue of fact existed on this point.
The three-part test should be viewed as a whole: Put another way, Part (1) provides that if institutions have not distributed athletic opportunities in numbers ‘substantially proportionate’ to the gender composition of their student bodies, they have presumptively violated Title IX. The rest of the test recognizes that there are circumstances under which, as a practical matter, something short of substantial proportionality will suffice to rebut the presumption that Title IX has been violated.
Neal v. Bd. of Trs., 1997 WL 1524813, at *9 (E.D. Cal. Dec. 26, 1997).
Because of the historic discrimination against females in athletics, Title IX requires “continued affirmative steps” by institutions to achieve equity, which “ ‘[i]n most cases . . . will entail development of athletic programs that substantially expand opportunities for women to participate and compete at all levels.’ ” Williams, 998 F.2d at 176 (quoting Policy Interpretation, 44 Fed. Reg. at 71,414) (AD 7).
1. UCD Admits Its Failure to Satisfy Both Prong One and Prong Three of the Three-Part Test, Because It Has Neither Achieved Substantial Proportionality Nor Effectively and Fully Accommodated Female Interest in
Athletics.
UCD has conceded that it cannot rely on Prongs One or Three of the three-part test as a basis for establishing compliance with Title IX in this case. First, UCD admits, and the evidence establishes, that at all times relevant to this case, the participation rates of women in varsity athletics were short of substantial proportionality by hundreds of varsity slots. (ER 1205 ¶ 5; 1710-13; 2279:1-18; 2289:11-2290:8; 3181:25-3182:9; 3195:25-3196:3; 5944 ¶14.) Indeed, in 2001-2002, the very year that UCD forced women wrestlers to compete against men, UCD's female participation proportionality rates fell to their worst level since 1997, with a shortfall of 156 varsity opportunities for women. (ER 1961.) Thus, no claim can be made that Prong One's proportionality test was satisfied.
Second, UCD also admits that it failed to fully and effectively accommodate the interest and ability of female students in varsity athletics in violation of Prong Three. (ER 1212 ¶ 42; 1713; 4400.) Hundreds of female students have sought varsity status at UCD, only to be rejected time and time again. UCD's own admissions establish that it has known for decades that it does not accommodate the significant interest and ability of women in athletics. (Supra note 12.) Thus,

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the legality of UCD's conduct turns on whether UCD has established, by evidence of undisputed material facts, that it was in compliance with Prong Two and is entitled to judgment as a matter of law. UCD cannot establish as a matter of law that it satisfied Prong Two's requirement of having a history and continuing practice of program expansion for women during the periods relevant to this case, much less that it acted responsively to the developing interests of its female students. To the contrary, undisputed and disputed facts support Plaintiffs' contention that UCD failed to satisfy those requirements.
2. UCD Did Not Satisfy the Requirements of Prong Two Because It Has Never Had a History and Continuing Practice of Program Expansion for Women.
The intensely factual nature of a Prong Two analysis coupled with the significant disputes in material fact should have precluded summary judgment here. Prong Two saves non-proportional schools from violation if they can show “a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex.” Policy Interpretation, 44 F ed. Reg. at 71,418, Part VII.C.5.a. (2) (emphasis added). (AD 11.) OCR's 1996 Clarification of the three-part test provides, in part: “In effect, part two looks at an institution's past and continuing remedial efforts to provide nondiscriminatory participation opportunities through program expansion.” (AD 24.) Of paramount importance is not the addition of teams, but rather whether “an institution has expanded the number of intercollegiate participation opportunities provided to the underrepresented sex.” (AD 29 n.2.) Both parties' Title IX experts agree that an institution must expand actual participation opportunities for women every two to three years to remain in compliance with Prong Two. (ER 1962; 3200:13-18; 3216:25-3217:16; 3246:3-3247:4; 3436:4-17; 3459:17-3460:11; 3488:13-3489:5.) Both the OCR and the few courts that have addressed Prong Two have confirmed that it is a factually intensive analysis, which considers the number of students participating in athletics, as well as the developing interest and abilities of other students. (AD 24-26.) Cohen v. Brown Univ. (Cohen I), 809 F. Supp. 978, 981-82 (D.R.I 1992), aff'd, 991 F.2d 888 (1st Cir. 1993). Court decisions have not defined the permissible outer limits of non-expansion under Prong Two, but have confirmed that periods of non-expansion in excess of nine years is too long. Cohen I, 809 F. Supp. at 979-80 (court approval of preliminary injunction to stop elimination of team where no expansion from 1982 to 1991); Barrett v. West Chester Univ. of Pa., 2003 WL 22803477, at *7 (E.D. Pa. 2003) (“periods in excess of a decade are too long to constitute continued expansion”). Notably, Plaintiffs are unaware of any court decision affirming a Prong Two defense asserted by an institution.
UCD bears the burden of proof to establish compliance with Prong Two. Policy Interpretation, 44 Fed. Reg. at 71,418, Part VII.C.5.a.(2) (AD 10); Roberts, 998 F.2d at 830. UCD has not met its burden on summary judgment where its own documents and other admissions establish that: (1) UCD did not expand opportunities for women whatsoever from 1971 to 1996, and (2) female participation opportunities actually contracted from 1997 to 2005, regardless of what teams UCD claims it added during this period, in large part because UCD eliminated existing varsity opportunities in wrestling and other sports. (ER 1207 ¶ 17; 1209 ¶ 27; 1375; 1388; 1401; 1427; 1453; 1493; 1549; 1613; 1710-13; 1961; 4132.) Additionally, even if the evidence established that UCD has expanded athletic opportunities for women, which it does not, UCD did not do so in a manner that was demonstrably responsive to the developing interest and abilities of women. UCD rejected applications for varsity status from hundreds of UCD female club sports athletes between 1995 and 2005 (ER 1211 ¶ 37; 5763-893), as well as terminated existing varsity opportunities, including Plaintiffs' (ER 1209 ¶ 27; 1375; 1388; 1401; 1427; 1453; 1493; 1549; 1961).
a. UCD Has No History or Continuing Practice of Program Expansion.
Title IX's enactment did nothing to prompt UCD to expand its women's program to ensure equity. UCD did not expand female participation opportunities from 1972 to 1996. (ER 1207 ¶ 17; 1613; 1710-13; 4132.) Instead, UCD eliminated women's golf and women's field hockey during this time period. (ER 1208 ¶ 19; 1710-13; 2324.) Though UCD added women's soccer in 1983 after it e liminated women's field hockey, UCD admits that the addition did not result in program expansion for women. (ER 1207 ¶ 17; 1613; 1710-13; 4132.)

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UCD also did not expand actual female opportunities from 1999 to 2005. (ER 1209 ¶ 27; 1375; 1388; 1401; 1427; 1453; 1493; 1549; 1961.) Rather, UCD eliminated dozens of varsity opportunities, without replacing them or engaging in further expansion, during a time period in which female enrollment grew by over 2, 200 students. (Id.)
In the court below, UCD claims “expansion” because the percentage of women athletes relative to their enrollment increased between 1995 and 2005. But this fact alone tells an incomplete story. In 1995, UCD was out of compliance by 20%. For a brief period, until 1999, it increased the actual athletic opportunities for women as well as narrowed the margin between the percentage of women athletes relative to the percentage of women students. But from 1999 until 2005, that margin fluctuated (it improved in 2000, but then worsened in 2001, 2002, 2003, and again in 2005), and the actual number of women's athletic opportunities declined - from 426 in 1999 to 368 in 2005. Moreover, the reason that margin improved at all between 1999 and 2005 was because UCD was using roster caps to reduce the number of men's varsity opportunities at the same time they were eliminating women's opportunities, thus improving the appearance, but not the reality, of women's athletics at UCD. As conceded by UCD's Title IX expert, reductions in the men's athletic program is not program expansion for women under Prong Two. (ER 3184:17-3185:3; 3280:8-14; 4212:16-4313:5.) See OCR's 1996 Clarification (AD 25) (OCR will not find compliance with Prong Two “where an institution increases the proportional participation opportunities for the underrepresented sex by reducing opportunities for the overrepresented sex alone.”) (AD 25.) See Roberts, 998 F.2d at 830. (“[T]he ordinary meaning of the word ‘expansion’ may not be twisted to find compliance under this prong when schools have increased the relative percentages of women participating in athletics by making cuts in both men's and women's sports programs.”)
The evidence establishes that UCD added three teams in 1996, but then rested on its laurels until prompted by this litigation to add another team in 2005. In the meanwhile, UCD dropped female participation opportunities on existing varsity teams, such as women's lacrosse, water polo, and wrestling. (ER 1204 ¶ 4; 1210 ¶ 33; compare ER 1388 with 1401 and 1427; 2644-45; 2945:19-2946:18; 3206:8-3213:16; 3241:11-14; 3248:3-6.) UCD took no action to replace these eliminated participation opportunities much less engage in program expansion. Between 1998 and 2005, female enrollment added over 2,200 women to UCD. (ER 1209 ¶¶ 27 & 29; 1375; 1388; 1401; 1427; 1453; 1493; 1549; 1961; 3206:8-3212:16; 3241:11-14; 3248:3-6.) At the same time, 63 female participation opportunities were dropped at UCD, a drop that UCD's expert conceded was “drastic.” (Id.) By 2005, the athletic participation rates for women were at the lowest point since 1997. (Id.) UCD's failure to expand opportunities is determinative of the Prong Two analysis, or at the least, it is sufficient to raise a genuine issue of material fact.
b. UCD Eliminated Existing Female Participation Opportunities, Including Women's Varsity Wrestling.
UCD's elimination of women's wrestling at a time when it was not otherwise complying with Title IX also precluded its reliance on Prong Two on summary judgment. Where an institution is not in compliance with Title IX, its elimination of existing and viable female participation opportunities is evidence that Prong Two is not satisfied and constitutes a further violation of Title IX. See Barrett, 2003 WL 22803477, at *7 (elimination of women's gymnastic team was evidence of non-compliance with Prong Two where institution was not otherwise in compliance with Title IX); Cohen II, 991 F.2d at 897-98 (elimination women's volleyball and gymnastic teams was evidence non-compliance with Prong Two); Roberts, 998 F.2d at 830 (elimination of women's softball team was evidence of non-compliance with Prong Two).
UCD's contended below that its elimination of the women's varsity wrestling program was not discriminatory because Plaintiffs had the opportunity to try out for the men's wrestling team. Requiring that women compete against men in a contact sport, in order to have a varsity athletic opportunity, is hardly nondiscriminatory. If such a policy were generally permitted there would be a substantial risk that boys would dominate the girls thereby denying them a r eal opportunity to compete. This is precisely why courts have repeatedly upheld separate but equal athletic programs under Title IX as constitutionally permissible. See, e.g., O'Connor v. Bd. of Educ, 449 U.S. 1301 (1980).[FN15]
FN15. In fact, UCD's failure to create a separate women's wrestling team upon Plaintiffs' requests beginning in 2001 is a distinct violation of Title IX. For purposes of Title IX, wrestling is a contact sport. 34 C.F.R. §

2009 WL 2444218 (C.A.9)

Page 27

106.41(b), 45 C.F.R § 86. 41(b). OCR's 1979 T itle IX Policy Interpretation explains that, with respect to contact sports: Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: (1) The opportunities for members of the excluded sex have historically been limited; and (2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.
Policy Interpretation, 44 Fed. Reg. at 71,418, Part VII.C.4.a. (AD 11.) In the court below, UCD disregarded this aspect of Title IX in its entirety. Instead, it claimed that it had no obligation to allow women to try out for the men's wrestling team, but did so anyway, suggesting that in doing so it exceeded its obligations under Title IX. Because wrestling is a contact sport from which women have been historically excluded, and because, as the evidence demonstrates, there was and continues to be sufficient interest, ability and competition to sustain a viable women's wrestling team, UCD violated Title IX by refusing to field a women's wrestling team after being asked repeatedly by Plaintiffs to do so. (See ER 1831; 2432; 2498:23-2499:27; 2889:9-25; 3733:22-3734:19.)
Plaintiffs were varsity wrestlers who were eliminated from the wrestling program because of their sex, and were then refused the creation of a separate women's team by UCD. (ER 2512; 2935:9-2939:16; 3665:14-3666:8.) UCD eliminated equal opportunities and replaced them with discriminatory requirements for continued participation. This violates Title IX.
V. CONCLUSION
For the reasons set forth above, this Court should reverse: (1) the district court's order dismissing Plaintiffs' § 1983 claims against all Defendants; (2) the district court's order denying Plaintiffs' leave to modify the scheduling order and to amend to add current students at UCD; (3) the district court's order granting summary judgment to UCD on Plaintiffs' Title IX claim; and (4) the judgment for Defendants in this case. The case should be remanded for trial.
Appendix not available.
Arezou MANSOURIAN, et al., Plaintiffs/Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants/Appellees. 2009 WL 2444218 (C.A.9 ) (Appellate Brief )
END OF DOCUMENT

 
 Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...

2009 WL 2444221 (C.A.9) (Appellate Brief) United States Court of Appeals, Ninth Circuit.
Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants-Appellees.
No. 08-16330. April 24, 2009.
On Appeal from the United States District Court for the Eastern District of California, Honorable Frank C. Damrell, Jr., Case No. 2:03-CV-02591-FCD-EFB

Appellees’ Answering Brief

Porter Scott, A Professional Corporation, Nancy J. Sheehan, SBN 109419, 350 University Ave., Suite 200, Sacramento, California 95825, Tel: 916.929.1481, Fax: 916.927.3706, Attorney for Defendants-Appellees.
TABLE OF CONTENTS

JURISDICTIONAL STATEMENT ...............................................................................................................................................

1

STATEMENT OF ISSUES ...............................................................................................................................................................

1

STATEMENT OF THE CASE ........................................................................................................................................................

2

A. Introduction ........................................................................................................................................................................................

2

B. Procedural History ...........................................................................................................................................................................

2

STATEMENT OF FACTS ................................................................................................................................................................

6

A. Women and Intercollegiate Wrestling at UCD ....................................................................................................................

6

B. Plaintiffs’ Participation in Wrestling at UCD .......................................................................................................................

9

C. Roster Management and Burch’s Choices on Filling the 2000/2001 Team Roster ................................................

10

D. O.C.R. Complaints and Investigation ......................................................................................................................................

12

E. Try-Outs in the Fall of 2001 ........................................................................................................................................................

14

F. UCD Complied with Title IX Under Prong Two .................................................................................................................

15

SUMMARY OF ARGUMENT ........................................................................................................................................................

19

ARGUMENT ..........................................................................................................................................................................................

23

I. THE DISTRICT PROPERLY DENIED THE MOTION TO AMEND THE COMPLAINT .............................

23

A. Applicable Standard of Review ..................................................................................................................................................

23

B. Plaintiffs Were Not Diligent in Moving to Amend .............................................................................................................

24

1

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...

C. The Proposed Amended Complaint Would Have Significantly Expanded the Scope of the Litigation ........ II. THE CLAIMS UNDER 42 U.S.C. § 1983 WERE PROPERLY DISMISSED, NOTWITHSTANDING THE HOLDING IN BARNSTABLE v. FITZGERALD ............................................................................................................ A. The Section 1983 Claim is Barred by the Statute of Limitations .................................................................................. B. The Section 1983 Claim Against the Individual Defendants is Barred by the Doctrine of Qualified Immunity ................................................................................................................................................................................................... C. Reinstatement of the Section 1983 Claim for Injunctive Relief Against UCD is not Justified Because that Claim is Moot .......................................................................................................................................................................................... III. THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF UCD .... A. The Remedial Nature of Title IX ............................................................................................................................................... B. The District Court Properly Followed the Holding in Grandson v. University of Minnesota ............................ C. The District Court Properly Concluded that Plaintiffs’ OCR Complaints Did Not Place UCD on Notice of Their Ineffective Accommodation Claim ............................................................................................................................... D. In the Event this Court Disagrees with the District Court on the Issue of Notice, the Case Should be Remanded to the Lower Court for a Ruling on the Remaining Issues Raised in the Motion for Summary Judgment ................................................................................................................................................................................................... IV. CONCLUSION ...............................................................................................................................................................................
TABLE OF AUTHORITIES SUPREME COURT CASES Cannon v. University of Chicago, 441 U.S. 677 (1979) ......................................................................... Davis v. Monroe County Bd. Of Education, 526 U.S. 629 (1999) ...................................................... Elder v. Holloway, 510 U.S. 510 (1994) ....................................................................................................... Fitzgerald v. Barnstable, 129 S. Ct. 788 (2009) ........................................................................................ Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1988) ....................................... Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ....................................................................................... Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) ................................................... Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981) ......................................................................................................................................................................................... Nat’l Railroad Passenger Corp, v. Morgan, 536 U.S. 101 (2002) ..................................................... Nordlinger v. Hahn, 505 U.S. 1 (1992) .........................................................................................................
2

26 29 29 32 40 40 41 44 53 57
61
43 42 33 passim passim 33 48 22 30 34

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...
Pearson v. Callahan, 129 S. Ct. 808 (2009) ............................................................................................... Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984) ....................................... Saucier v. Katz, 533 U.S. 194 (2001) .............................................................................................................
FEDERAL CASES AmerisourceBergen Corp. V. Dialysist West, Inc., 465 F.3d 946 (9th Cir. 2006) ........................ Bromley v. Mich. Educ. Ass’n, 178 F.R.D. 148 (E.D. Mich. 1998) .................................................... Chalenor v. University of North Dakota, 291 F.3d 1042 (8th Cir. 2002) ........................................ Cherosky v. Henderson 330 F.3d 1243 (9th Cir. 2003) .......................................................................... Cohen v. Brown University (Cohen III), 879 F.Supp. 185 (D. R.I. 1995) ....................................... Cohen v. Brown University (Cohen II), 991 F.2d 888 (8th Cir. 1993) .............................................. Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) ............................................................................... Force v. Pierce City R-VI School Dist., 570 F.Supp. 1020 (W.D. Mo. 1983) ............................... Gonyo v. Drake University, 837 F.Supp. 989 (S.D. Iowa 1993) ......................................................... Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001) ................................................ Harmon v. Apfel, 211 F.3d 1172 (9th Cir. 2000) ....................................................................................... In re Cal. Micro Devices Securities Litigation, 168 F.R.D. 276 (N.D. Cal. 1996) ...................... Inouye v. Kemna, 504 F.3d 705 n.6 (9th Cir. 2007) ................................................................................. Jackson Water Works v. Public Utilities Commission, 793 F.2d 1090 (9th Cir. 1992) .............. Johnson v. Mammoth Recreations, 975 F.2d 604(9th Cir. 1992) ........................................................ Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ........................................................................................... Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) ................................................................................... Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ...................................................................... McCormick v. Sch. Dist. Of Mamaroneck, 370 F.3d 275 (2nd Cir. 2004) ....................................... Maldonado v. Harris, 370 F.3d 945 (9th Cir. 2006) ................................................................................ Miami University Wrestling Club v. Miami University, 302 F.3d 608 (6th Cir. 2002) .............. National Wrestling Coaches Ass’n v. Department of Education, 366 F.3d 930 (D.C. Cir. 2004) ........................................................................................................................................................................... Neal v. Board of Trustees, 198 F.3d 763 (9th Cir. 1999) .......................................................................
3

33 46 33
26 25 49 30 35, 58 35, 58 33, 39 35 34 passim 24 25 33 34, 52 23 31 52 36 37 31, 32 34, 38 43
37, 38

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...
Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000) ............................................ Pickern v. Pier J Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) ....................................... Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 n.10 (10th Cir. 1993) ............... Romano v. Bible, 169 F.3d 1182 (9th Cir. 1999) ....................................................................................... Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 n.17 (9th Cir. 1995) ....................................................... Sischo-Nownejad v. Merced Cmty. College Dist. 934 F.2d 1104 (9th Cir. 1991) ........................ Stanley v. Board of Trustees of the California State University, 433 F.3d 1129 (9th Cir. 2006) ........................................................................................................................................................................... Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002) ............................................................................. Vasquez v. De La Rosa, 414 F. Supp. 2d 124 (D.P.R. 2006) ................................................................ Warner v. Graham, 845 F.2d 179 (8th Cir. 1988) .....................................................................................
FEDERAL STATUTES AND RULES 34 C.F.R. §100.6 ......................................................................................................................................................................... §100.6(a) ................................................................................................................................................................... §100.7 ......................................................................................................................................................................... §100.7(b) ................................................................................................................................................................... §100.7(c) ................................................................................................................................................................... §100.8 ......................................................................................................................................................................... §100.9 ......................................................................................................................................................................... §100.10 ...................................................................................................................................................................... §106.41 ...................................................................................................................................................................... §106.41(b) ................................................................................................................................................................ §106.71 ...................................................................................................................................................................... 42 U.S.C. §1983 ..................................................................................................................................................... Federal Rules of Civil Procedure Rule 15 ....................................................................................................................................................................... Rule 16 .......................................................................................................................................................................
4

passim 28
35, 58 29 60 31 32
60 38 38
47 43 47 44 44 44, 47 47 47
6 35 43, 47 passim
23 23, 26

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...

Rule 26 .......................................................................................................................................................................

27

Title IX of the Education Amendments of 1972, 20 U.S.C.

§1681 ..........................................................................................................................................................................

42

§1682 ..........................................................................................................................................................................

42

44 Fed. Reg. 71413-71418....................................................................................................................................

35

OTHER AUTHORITY

Secretary of Health Education & Welfare (Office for Civil Rights of the Department of

43

Education ..................................................................................................................................................................

JURISDICTIONAL STATEMENT
Defendants/Appellees Regents of the University of California, Lawrence “Larry” [sic] Vanderhoef, Greg Warzecka, Pam Gill-Fisher, Robert Franks and Lawrence Swanson agree with Appellants’ statement of jurisdiction.
STATEMENT OF ISSUES
1. THE HOLDING IN FITZGERALD V. BARNSTABLE CONTROLS ON THE ISSUE OF WHETHER A CLAIM UNDER 42 U.S.C. § 1983 MAY BE MAINTAINED CONCURRENTLY WITH A CLAIM UNDER TITLE IX. HOWEVER, PLAINTIFFS’ §1983 CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS AND THE DOCTRINE OF QUALIFIED IMMUNITY.
2. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING PLAINTIFFS LEAVE TO AMEND THEIR COMPLAINT? (NO)
3. DID THE DISTRICT COURT PROPERLY RULE THAT A PLAINTIFF IN A TITLE IX ATHLETICS INEFFECTIVE ACCOMMODATION CASE MUST PROVIDE NOTICE OF HER ALLEGATION AND AN OPPORTUNITY TO CURE AS A PREREQUISITE TO FILING A SUIT FOR DAMAGES? (YES)
4. DID THE DISTRICT COURT PROPERLY GRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT UCD ON THE GROUND THAT THE NOTICE GIVEN BY PLAINTIFFS WAS LIMITED TO ISSUES PERTAINING TO THEIR EXPERIENCES IN REGARD TO WRESTLING AND THUS DID NOT PROVIDE NOTICE THEY WERE ASSERTING AN INEFFECTIVE ACCOMMODATION CLAIM? (YES)
STATEMENT OF THE CASE
A. Introduction
Well before Title IX of the Educational Amendments of 1972 was enacted, the University of California, Davis (UCD) had an established intercollegiate athletic program for its female students. UCD’s intercollegiate athletic program is rooted on traditional notions of athletics at the varsity level, including competition for spots on the team roster and the right of the coach to select those student-athletes who demonstrate the highest level of skill and ability to compete in the sport in issue. This case arises from Plaintiffs’ belief that they were entitled to a spot on the wrestling team because they are female, whether or not they possessed the skill and ability to compete at the intercollegiate level. While Plaintiffs and their amici describe this case in terms of a large-scale athletic accommodation claim that has broad-reaching consequences, in reality it involves events unique to fewer than five former UCD students.
B. Procedural History 5

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...
Plaintiffs sued the Regents of the University of California and the Chancellor, Athletic Director, Associate Athletic Directors and former Vice Chancellor for Student Affairs at UCD, claiming Defendants denied them equal athletic participation opportunities and financial assistance in violation of Title IX, retaliated against them, violated 42 U.S.C.§ 1983 by treating them disparately on the basis of gender, and violated various state statutes. The factual allegations in the Complaint were based almost exclusively on events relating to wrestling. (ER 6416-6430).1 “Class Plaintiffs” Mansourian and Mancuso sought to represent a class consisting of “all present and future female students at UC Davis who are denied equal athletic participation opportunities and scholarships in women’s wrestling by Defendants’ discriminatory actions.” (ER 6435).
Plaintiffs filed a motion for class certification in December 2005 (ER 6390-6404). Defendants opposed the motion on April 4, 2006, raising a number of arguments including the bar of the statute of limitations and the fact that the Plaintiffs’ eligibility to participate in intercollegiate sports had expired or was about to expire, which affected their standing as proposed class representatives. (SER 00368-00408). On the day Plaintiffs’ reply brief was due, the attorney representing them at the time (Ms. Galles) filed a motion to stay the action due to her health issues. (ER 6384-6389). Defendants filed a response to the motion, responding to claims made by Ms. Galles that she had not had sufficient time to engage in discovery. (SER 00354-00367). On April 18, 2006 the District Court issued an order staying the case. Judge Damrell set a status conference for June 16, 2006 in order to give Ms. Galles time to find substitute or additional counsel. The parties were ordered to file a joint status report by June 6, 2006. (SER 00352-00353). The date of the status conference was later continued to July 28, 2006. (SER 00350-00351).
Ms. Galles did not comply with the Court’s order to file a joint status report. Instead, she filed another motion to extend the stay. (SER 00346-00349). Defendants filed a response asking that the Court go forward with the status conference as scheduled so that the parties could determine how much more time Ms. Galles needed to find other counsel. (SER 00342-00345). Judge Damrell issued an order requiring Ms. Galles to submit either a substitution or a motion to withdraw by August 18, 2006. (SER 00341). Plaintiffs’ current counsel filed a notice of appearance on August 18th. (SER 00337-00339).
Several months after Plaintiffs’ new counsel appeared in the case they filed a motion to amend the complaint to add current students as plaintiffs and to expand the scope of the litigation to include claims regarding field hockey and rugby. The Court denied the motion, finding that Plaintiffs had not been diligent in seeking leave to file an amendment and that the proposed amendment would be prejudicial to Defendants because it changed the scope of the litigation. (ER 73-84). After the motion was denied Plaintiffs took the motion for class certification off calendar and asked that the class claims be dismissed. (SER 00127-00129).
Defendants filed a motion for judgment on the pleadings on June 5, 2007 (SER 00130-334). After requesting and receiving supplemental briefing (SER 00017-00026; 00001-00016), the Court granted the motion on all claims for relief except the claim of ineffective accommodation under Title IX (ER 29-72). As a result, there were no claims remaining against the individual Defendants.
Defendant UCD filed a motion for summary judgment on the remaining claim. The motion addressed the merits of the claim (that UCD complied with Title IX under prong two of the three part test and thus was not required to add a women’s intercollegiate wrestling team). It also raised the issue of Plaintiffs’ failure to provide UCD with notice of their allegation of systemic noncompliance with Title IX in regard to the women’s athletic program as a whole. (ER 6017-6061). The Court granted the motion on the notice issue only, finding it to be dispositive. (ER 7-28).
STATEMENT OF FACTS
A. Women and Intercollegiate Wrestling at UCD
UCD is a member of the National Collegiate Athletic Association (NCAA). Its intercollegiate wrestling team competes at the NCAA Division I level. (ER 4659-4660:9; 5984:7-9; 6024:21-24). The team competes with other schools in the Pac-10 Conference, using collegiate wrestling rules. The competition consists of dual meets2 against other Pac-10 schools, invitational tournaments and post-season championship contests. UCD has not declared wrestling to be a contact sport. Thus, pursuant to 34 C.F.R. § 106.41 students of both genders may try out for the team. The head coach of the wrestling team has
6

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...
the sole discretion to select team members. (ER 6025:2-14; 5984:10-5985:19; 4659-4661:2; 4670-4674).
Although Plaintiffs’ claims have been largely based on the myth that UCD eliminated a women’s wrestling team, in fact there was never a separate women’s wrestling team at UCD. (ER 6025:16-6026:16; 5985:20-21; 5986:3-5987:7; 4661:3-8; 4667:23-27; 4683:24-28; 4693:23-4694:2; 4694:27-4695:2). Over the years a few female students were permitted to practice with the wrestling team in furtherance of their goal of competing in open tournaments3 or on the USA national women’s team, rather than against other schools in the Pac-10. (ER 6026:17-6027:9; 5987:14-5988:12; 4928; 4929:21-23; 4930:10-24; 4931:3-13; 4932:14-25; 4933:3-18; 4934:15-4936:6; 4938:9-21; 4938:25-4939:20; 4941:4-18).
Michael Burch was the coach of the UCD wrestling team between 1995 and 2001. His approach to the women wrestlers was consistent with his belief that they did not have the skills required for competition at the level engaged in by the intercollegiate team. Burch allowed the few women who were interested in wrestling the extraordinary opportunity of access to the team’s facilities and to work out with the team without requiring them to compete for a spot on the team, roster as males had to do. There were no schools in the Pac-10 that had women’s wrestling teams;4 thus in order to participate in a dual meet the women would have had to wrestle against men in their weight class. By their own admission, they did not have the skill or strength necessary to do so. The women never wore a UCD uniform in the few open tournaments they participated in. Burch never attempted to offer athletic scholarships to the women until the spring of 2001, and did so only after he learned that his contract would not be renewed for the following year. The material he submitted for the team media guides referred only to goals and accomplishments of male wrestlers. Women’s wrestling was described in the guides as having “unofficial status.” (ER 6026:17-6028:25; 6029:27-6030:22; 5984:26-5985:17; 5988:13-19; 5988:23-5989:8; 5990:9-5992:19; 5993:5-8: 5994:2-8; 4661:16-4662:9; 4670-4671; 4672:16-26; 4673-4674; 4695:1-17; 4770:2-8; 4771:17-20; 4772:17-4774:16; 4775:4-7; 4793:24-4795:7; 4822:4823:8; 4824:17-20; 4825:22-4826:10; 4827:23-4828:11; 4891:23-4893:5; 4899:8-11; 4946:17-19; 4947:21-4948:10; 4949:9-4951:1; 4952:9-12; 4967:22-4968:5; 4968:13-4969:7; 4974:1.4-4975:4; 4976:5-4977:8; 5010; 5011:25-5012:1; 5023:9-5024:11; 4665:22-4666:2; 4667:21-4668:10; 5009; 5020:10-22; 5025-5026; 5027:10-13; 5028:7-5029:22; 5030:16-22; 4954:13-24; 5191-5193; 4900:8-16; 4982:19-4983:12; 4985:19-24; 4700; 4777:16-24; 4789:1-6; 4799:6-24; 4816:22-24; 5694-5734; 4953:11-25; 6547-6548).
B. Plaintiffs’ Participation in Wrestling at UCD
Plaintiff Mansourian participated in wrestling in her freshman year. Her participation was limited to attending practices and the Aggie Open5 tournament. In the fall of 2001 she notified the new coach (who had replaced Burch) that participating on the wrestling team was too exhausting for her because of other demands on her time and that she preferred to wrestle at the club sport6 level. (ER 6030:23-6031:9; 5992:27-5993:8; 5993:12-20; 4899:22-24; 4890:6; 4891:23-4893:5; 4898:1-14; 4925:1-11; 5237-5238; 4673:9-13).
Plaintiff Ng participated in wrestling for three years at UCD. During that time she went to only one off-campus tournament. She did not compete on behalf of UCD at that event nor did Burch accompany her to the tournament. Although she professed to be a varsity wrestler, Ng confessed in her deposition that “...I have a fear of competing. And so I tend to avoid it when I can. So that’s why I’m not exactly up for competing.” (ER 6031:10-6032:2; 5993:23-5994:12; 4966:14-21; 4973:21-24; 4667:21-4668:2; 4697:22-4698:5; 4968:13-4969:7; 4974:14-4974:14-4976:8; 4977:21-4978:7; 4981:7-15).
During the time Plaintiffs Mansourian and Ng were enrolled as undergraduates a few other women occasionally participated in wrestling by coming to practice or competing in the Aggie Open tournament. Their limited participation ended due to failure to submit required paperwork, academic ineligibility, or because they voluntarily quit. (ER 6027:10-6028:14; 5988:13-5990:4; 4946:17-19; 4944:18-4945:20; 4947:21-4948:10; 4949:9-4951:1; 4952:9-12; 5009; 5013:22-25; 5014:13-5015:23; 5023:9-5024:11; 4667:21-4668:10; 5020:10-22; 5027:10-13).
C. Roster Management and Burch’s Choices on Filling the 2000/2001 Team Roster 7

Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v...., 2009 WL 2444221...
As part of its commitment to gender equity in athletics, VCD uses a roster management program for its men’s teams. Although students of both sexes can try out for a place on the wrestling team, the campus considers it to be a men’s team because the NCAA does not sponsor women’s wrestling as an intercollegiate sport and because no women have ever qualified to regularly participate in intercollegiate wrestling against males. Thus, the wrestling team is subject to the roster management program. (ER 6033:14-20; 5996:24-5997:4; 4677:23-27; 4678:21-4679:21; 5173; 4700; 4798:12-23).
In the fall of 2000 Athletic Director Warzecka advised Burch that the roster for the wrestling team was limited to 30 spots. Burch negotiated an increase to 34 spots and then filled them all with males. He did not believe any of the women could actually compete on the team, and as a result, was of the opinion that they should not be counted towards the roster limit. Warzecka did not care whether roster spots were filled with males or females so long as Burch did not exceed the roster limit. He disagreed with Burch’s position on the application of the roster limit to women. Allowing women who could not otherwise earn a spot on the intercollegiate team to be members would be unfair to males who were not selected for membership because they also lacked the necessary skill. (ER 6033:14-6034:5; 5997:5-5998:3; 4800:1-18; 4801:6-4802:7; 5175-5176; 4803:7-4804:9; 4805:11-21; 4807:8-25; 4679:22-4680:19).
Burch did not tell Ng and Mansourian7 that he had not allotted any of the roster spots to them. Instead, in November, 2000 he told them the Athletic Department administration did not support women’s wrestling and required him to remove women from the team. Even though they were not on the roster Burch allowed the women to continue to practice with the team for several more months. (ER 6034:6-19; 5998:4-13; 4806:3-19; 5178-5179; 4901:14-4904:1; 4907:3-10; 4923:5-10; 4986:8-24; 4901:14-4906:13; 4986:8-4990:22; 4994:7-16; 4998:18-4999:20; 4801:24-4802:7; 4804:10-4805:19; 4806:9-4810:13).
D. O.C.R. Complaints and Investigations
In April 2001 Ng and Mansourian filed a complaint with the Office for Civil Rights of the Department of Education (OCR) in which they alleged they had been subject to discrimination because they could no longer participate on the wrestling team. The complaint did not make reference to the overall women’s athletic program at UCD; it was restricted to Plaintiffs’ experience with the wrestling team. (ER 6034-6035; 5998:15-5999:3; 4991:19-4992:2; 5201-5208; 4910:12-16; 4911:1-19; 4912:5-8; 4724:22-4725:5; 4728:1-17; 4916:1-12; 4917:18-4919:1; 4995:20-4996:6; 4997:3-16; 5164; 4681:3-22; 4662:10-28; 4699:22-4700:7; 4702:24-4703:10; 4728:1-17; 4730:22-4731:7; 4731:12-4732:2). In May they filed a supplemental OCR complaint setting forth a list of allegations pertaining to the wrestling team. Again, there was no reference to the athletic program as a whole or to female student-athletes in general. In June and August Plaintiffs filed two more OCR complaints, each of which addressed a specific issue pertaining to their experience with the wrestling team (Burch’s attempt to give them scholarships after he was told of his non-renewal and their claim that Burch’s non-renewal was an act of retaliation against them). (ER 6035; 5999:3-14; 4920:21-4921:7; 4922:5-22; 4924:1-12; 5002:11-24; 5211-5212; 5228-5231; 5233-5234).
The Vice Chancellor for Student Affairs at UCD conducted an investigation shortly after he received the first OCR complaint. He concluded that Burch had (1) allotted the spots on the team roster to males because they were more qualified than the women; (2) failed to tell the women they weren’t on the roster; and (3) allowed the women to continue to practice with the team notwithstanding the fact he had not allotted a roster spot to them. Burch denied removing the women from the team as did Warzecka, who noted that the coach is the person solely responsible for tilling the roster. The Vice Chancellor chose to resolve the issue by leaving the women on the team for the remainder of the 2000/2001 school year. If they were interested in participating on the team the following year, they could compete for a roster spots as males were required to do. (ER 6035-6036; 5999:15-6000:12; 4732:3-4733:9; 4681:23-4682:9; 5166; 4726:19-4727:2; 5199; 5214-5215; 5914-5915).
The campus worked with the OCR to resolve the complaints. It entered into a Voluntary Resolution Plan that confirmed UCD supported the development of wrestling as a club sport for those students (male and female) who did not have the skills necessary to compete at the intercollegiate level. It also supported the participation of any woman who, by reason of her eligibility and qualifications, was selected for inclusion on the intercollegiate team. The Plan set forth clear criteria for inclusion on the intercollegiate team. Both men and women were encouraged to try out. The coach of the team would select those athletes who demonstrate the highest skill and competitive ability in their weight class. OCR closed the case, finding that no violation of Title IX had occurred. (ER 6036:21-6037:5; 6001:19-6002:12; 4727:3-28; 5184-5185; 5156-5162).
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Ng and Mansourian asked the Vice Chancellor whether UCD would consider having separate roster “caps” for males and females on the wrestling team. The campus considered the request and concluded it was not feasible, as there is an upper limit to the number of students who can be accommodated on every intercollegiate team. Plaintiffs then asked if UCD would waive the minimum number of students needed to form a club sport (ten) so that they could form a wrestling club sport team. UCD agreed to do so. (ER 6036:5-20; 6000:12-6001:7; 6001:14-19; 4733:10-20; 4703:11-21; 5171; 4735:22-28; 4736:25-4737:9; 4831; 4840:18-4841:19; 4892:20-4893:5).
E. Try-Outs in the Fall of 2001
Lennie Zalesky replaced Burch as the head wrestling coach. Consistent with the practice he had followed during his many years of intercollegiate-level coaching and with the terms of the Voluntary Resolution Plan, Zalesky held try-outs for the team in the fall of 2001 by having students in the same weight class “wrestle-off against each other. Ng and Mancuso wrestled off against each other, with Mancuso prevailing. Mancuso then wrestled off against a male in her weight class. She was pinned. As the result of the wrestle-offs Zalesky cut a number of students including Ng, Mancuso and males who also did not have the necessary skills. Mansourian did not try out for the team. (ER 6028:27-6029:11; 6031:3-9; 6032:3-11; 6032:25-6033:10; 5990:13-5991:4; 5993:12-20; 5994:20-27; 5996:6-21; 6002:9-12; 4671:10-27; 4672:16-4673:8; 5095; 5097:15-22; 5098:2-12; 5099:25-6000:25; 5104:21-5105:9; 4707:22-4710:5; 4718:14-23; 4777:16-24; 4789:1-15; 4816:22-24; 4670:23-4671:27; 5238; 4673:9-13; 5000:23-5001:24; 5003:14-20; 5004:22-5005:20; 4672:16-4673:8; 5038; 5061:21-5062:4; 5063:4-8; 5063:24-5064:20; 5065:1-5066:7; 4672:16-4673:8; 4838:25-4839:20; 4675:6-14).
F. UCD Complied With Title IX Under Prong Two
UCD agrees that it receives federal funding and thus is required to comply with Title IX regarding athletic opportunities. It also agrees that OCR uses the three-prong test set forth on pages 6-7 of Appellants’ brief to assess whether an institution is in compliance with Title IX regulations. Throughout the time period in issue UCD was in compliance under prong two of the test.8 Prong two is satisfied when an institution can demonstrate a history and practice of athletic program expansion that is demonstrably responsive to the developing interest and abilities of the underrepresented sex (usually females). If an institution is in compliance under any one of the three prongs, a Title IX ineffective accommodation claim against it will fail.
As of the time Title IX was enacted UCD had intercollegiate teams for women in seven sports. Later in that decade it added women’s teams in gymnastics and cross-country. In 1983 UCD replaced women’s field hockey with women’s soccer, due to a decrease in available competition in field hockey. (ER 6041:14-6042:2; 6003:23-6004:23; 4739:22-4740: 23; 4700:17-4701:10; 5075: 5077:13-5079:7; 5082; 5084:15-18; 5085:12-17; 5086:7-5089:8; 5090:18-5092:4).
The budget situation at UCD in the early 1990’s was grim. After passage of a student referendum that resulted in more funding for intercollegiate sports, consideration was given to adding new women’s teams. UCD used a formalized process to select the new sports consisting of solicitation of proposals, review of the proposals by various committees, and a recommendation by the Athletic Director. Proposals were submitted on behalf of water polo, badminton, field hockey, lacrosse and crew. Women’s intercollegiate water polo, lacrosse and crew were added in 1996 as the result of this process. (ER 6042:3-19; 6004:24-6005:19; 4725:16-4726:7; 4701:11-23; 4731:8-11; 5240-5253).
Indoor and outdoor track are different sports. Women started competing in indoor track events in 1993, but the sport was not officially established at UCD until 1999. (ER 6042:20-6043:3; 6005:19-6006:6; 4743:22-4745:7; 4682:27-4683:20).
In 2003 another call for proposals was made. Proposals were submitted on behalf of bowling, field hockey, rugby, horse polo, and golf.9 Golf was selected as the new women’s intercollegiate sport in 2004, with competition starting in 2005. (ER 6043:4-6044:4; 6006:7-6007:23; 4684:1-4686:9; 4703:22-4704:3; 4689:22-4690:25; 5255-5260; 5262-5263; 5763-5893; 5896-5903). The growth of UCD’s women’s intercollegiate program demonstrates the requisite history of program expansion under prong two.10
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There have been fluctuations in the number of women participating in intercollegiate sports over the years. The changes were due to external factors such as a decrease in local competition or natural attrition. As an example, there are often fluctuations in the sport of rowing because it relies primarily on non-recruited athletes. (ER 6046-6047; 6007:24-6009:6; 4747:23-4748:18; 4750:22-475126).
UCD has also demonstrated a practice of program expansion, as required under prong two. This is established by the fact it created a Title IX Officer position on campus many years ago; it has a Title IX grievance process available to students; it regularly conducts self-assessments on compliance; and it has established various committees showing a commitment to broad-based input on athletic issues. (ER 6046:16-27; 6012:4-18; 4714:8-4715:9; 5240-5253; 5255-5260; 5919-5929; 5939-5959).
SUMMARY OF ARGUMENT
Plaintiffs Ng and Mansourian participated on the intercollegiate wrestling team to a limited extent prior to the imposition of roster management. By their own admission, they did not have the skills necessary to compete against the team’s Pac-10 opponents. The women came to practices and wrestled against other women in an occasional open tournament but did not compete in matches between UCD and other Division I teams. The roster management program was implemented in the fall of 2000. It imposed an upper limit or cap on the number of members on each men’s intercollegiate team. While Burch was willing to allow the women to attend practice and be part of the team when there was no limit on the number of student-athletes who could be on the team, once he was restricted to 34 wrestlers he did not want to allot any roster spots to the women because, in his opinion, they were not competitive at the intercollegiate level. Unfortunately, rather than notifying the women of the reason he did not want to give any of his limited roster spots to them, Burch falsely told them the Athletic Department administrators wanted them removed from the team.
Ng and Mansourian were knowledgeable about Title IX and the OCR complaint process. Based on their erroneous belief that UCD administrators were responsible for their exclusion from the team, they filed complaints with the OCR demanding that they be given “the same opportunity to wrestle as a male.” The complaints triggered an investigation, which in turn led to a written clarification that male and female students would be judged by the coach under the same criteria for the purpose of determining which students would be selected for the intercollegiate wrestling team. The complaint process worked in the manner envisioned by the drafters of the Title IX regulations as the issue was resolved at the lowest possible level.
Plaintiffs were told in the spring of 2001 that UCD would not establish a separate roster cap for women on the wrestling team. They were also told of the criteria that would be used to determine which students would be given a spot on the team roster. In the fall of 2001, those criteria were used by Coach Zalesky to select members of the wrestling team. Ng and Mancuso competed for a spot on the team but were not selected because, in the opinion of the coach, they did not have the necessary skills to wrestle against the team’s opponents. Mansourian chose not to try out for the team.
The lawsuit filed by Plaintiffs more than two years after Ng and Mancuso were not selected for the team focused almost exclusively on events pertaining to their experience with wrestling at UCD and their contention that the campus had an obligation to either establish a separate wrestling team for women or to use different criteria for selection of women for the team. Three years into the case and well after the scheduling order had been issued, Plaintiffs attempted to amend the complaint to widely expand its scope and to bring in current students as new plaintiffs. By that point the parties had engaged in extensive discovery based on the allegations in the original complaint; Plaintiffs had filed a motion for class certification and Defendants had filed an opposition to it; and Defendants had done significant preparation work on a motion for summary judgment. The District Court properly exercised its discretion and denied the motion to amend as untimely.
By way of Defendants’ motion to dismiss, the District Court correctly found that the equal protection claim asserted in the complaint was time-barred. After that ruling the sole issue remaining was a Title IX ineffective accommodation claim based on Plaintiffs’ contention that they were ready and able to wrestle at the intercollegiate level, and that sufficient interest in intercollegiate wrestling existed among UCD’s female students to field a women’s intercollegiate team. The United States Supreme Court has held that prior notice and a concomitant opportunity to cure is an essential prerequisite before a school can be held liable for damages under Title IX. The District Court properly granted summary judgment on this one remaining claim, finding that Plaintiffs had failed to comply with the notice requirement established by Gebser v. Lago Vista Independent School District because the complaints they filed with OCR related solely to their allegation that they were treated unequally in regard to the manner in which members of the wrestling team were selected. The complaints did not
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include allegations that UCD was not in compliance with Title IX in regard to athletic opportunities provided to its female students, that the interests and abilities of the female students were not being met, or that UCD had to add a women’s wrestling team in order to increase the number of female participants in intercollegiate athletics. Thus, the Gebser notice requirement was not met.
In 2007 the District Court dismissed the section 1983 claim asserted against UCD and the individual Defendants based on the holding in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1 (1981). This year the Supreme Court confirmed that a claim under 42 U.S.C. § 1983 can be asserted concurrently with a claim under Title IX. Fitzgerald v. Barnstable, 129 S. Ct, 788 (2009). The ruling in Fitzgerald does not require that the section 1983 claims be reinstated. The individual Defendants are entitled to a finding of qualified immunity, and the claim for injunctive relief against UCD is time-barred.
ARGUMENT
I.
THE DISTRICT COURT PROPERLY DENIED THE MOTION TO AMEND THE COMPLAINT
More than three years after the suit was filed Plaintiffs made a motion to amend the complaint to add current students as plaintiffs. Plaintiffs also sought to greatly expand the scope of the suit by adding allegations pertaining to the sports of field hockey and rugby. The District Court properly denied the motion, finding that Plaintiffs failed to demonstrate the good cause required by F.R.C.P. 16 and that Defendants would be prejudiced by the late amendment. (ER 73-84).
A. Applicable Standard of Review
In their motion to amend Plaintiffs erroneously applied the standard relating to relief under F.R.C.P. 15. The law is clear that once a scheduling order has been entered, F.R.C.P. 16 governs a proposed amendment of the pleadings. Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992). Parties seeking relief under Rule 16 must demonstrate good cause for the amendment, including diligence. A District Court’s ruling on a motion to amend will not be disturbed absent a clear abuse of discretion. The reviewing Court must be firmly convinced the decision lies beyond the pale of reasonable justification under the circumstances. Id. at pp. 607, 609; Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).
B. Plaintiffs Were Not Diligent In Moving To Amend
Plaintiffs rely heavily on the fact that the case was stayed from April 2006 to late January 2007. They argue that but for this “unforeseen delay” at least one of the Plaintiffs (Mancuso) would still have been a current student as of the time the motion for class certification was set to be heard. While it is true the nine month stay was triggered by a request from Plaintiffs’ counsel because of medical issues, the lack of diligence on which the District Court made its ruling preceded the request for the stay.
Well before they filed the motion for class certification (in December 2005) or the motion to amend (in January 2006) Plaintiffs were aware they were in danger of not having current student status at the time the motions were heard by the District Court. Mansourian had graduated in June 2004. Ng had graduated in 2002. Plaintiff Nancy Chiang, who was still a party at the time,11 left UCD in the fall of 2000. Mancuso had filed a notice of intent to graduate in the fall of 2005, and actually did graduate in June 2006. (ER 6160:10-25; 6253-6254; 6258; 6250; 6265; 6275-6276; 6282). The District Court relied on Plaintiffs’ awareness of these dates in reaching the conclusion they had not acted diligently in seeking to amend their complaint. (ER 79:13-80:16).
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Plaintiffs offered no justification as to why they had not moved to add new students as parties prior to the imposition of the stay in April 2006. The District Court concluded the motion to amend was triggered by recognition on the part of Plaintiffs’ new counsel that they would be facing an uphill battle in regard to class certification. (ER 80:17-81:8; 84:4-11). Defendants had argued that the existing Plaintiffs lacked standing to serve as class representatives because they had graduated or would graduate shortly, and because their athletic eligibility had expired. Defendants also argued their claims were barred by the statute of limitations. (SER 00395; 00400-00404). The District Court described the motion for leave to amend as an attempt to take a “second bite at the apple” as the proposed amendment specifically addressed deficiencies raised in Defendants’ opposition to the motion for class certification. (ER 80:17-81:8; 84:4-11).
The primary reason for seeking leave to amend was not to “protect the class” as Plaintiffs argue on page 30 of their appellate brief, but rather to attempt to save what likely would be a losing motion for class certification. This does not qualify as “good cause” under Rule 16. Bromley v. Mich. Educ. Ass’n and In re Cat. Micro Devices Securities. Litigation, cited by Plaintiffs on page 30 of their brief, are inapposite at neither case addresses the diligence standard of Rule 16.
C. The Proposed Amended Complaint Would Have Significantly Expanded the Scope Of The Litigation
The proposed amended complaint would have greatly expanded the scope of the three-year old litigation because it added allegations pertaining to sports other than wrestling. Plaintiffs had been aware of the information on which they based the proposed amendment for years, as the result of discovery. (ER 81:9-82:5). Under such circumstances, the District Court properly denied the motion. AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 953 (9 Cir. 2006) (delay of fifteen months between discovery of information used for amended pleading and motion justified denial, since opposing party would have to “scramble” to deal with new facts in the eight months that discovery would remain open).
Plaintiffs’ contention that the “proposed amendment did not allege any new theories of liability or change the scope of the action” is belied by a comparison of the allegations in the original complaint and those in the proposed amended complaint. The four original Plaintiffs did not allege they participated in, or wanted to participate in, any sport but wrestling. (ER 6411: ¶ 9-6413: ¶ 12). The factual allegations in the original complaint focused exclusively on events pertaining to women wrestlers during the 2000/2001 school year. (ER 6416: ¶ 24-6430: ¶ 89). There is no reference to field hockey, rugby, or events involving those sports. Plaintiffs did not disclose any field hockey or rugby players on their Rule 26 witness list. (ER 6164:5-7). All of the expert witnesses disclosed by Plaintiffs in June 2005 related to wrestling. (ER 6164:24-6165:2). Class Plaintiffs sought to represent “the class of all present and future female students at UC-Davis who are denied equal participation opportunities and scholarships in women’s wrestling by Defendants’ discriminatory actions.” (ER 6435: ¶ 108, emphasis added). The injunctive relief sought was reinstatement of athletic participation opportunities for women in the sport of wrestling. (ER 6460, emphasis added).
The proposed amended complaint sought to add Kelsey Brust, Jessica Bulala and Laura Ludwig as plaintiffs.12 They were not UCD students in 2000/2001. Ludwig entered UCD in 2004, Bulala in 2005 and Brust in 2006. Ludwig wanted to compete in intercollegiate rugby or wrestling. Bulala and Brust wanted to compete in intercollegiate field hockey. (ER 6324-6359). The class included in the proposed amended complaint was not limited to women who wanted to participate in intercollegiate wrestling but rather encompassed “the class of all present and future female students at UC Davis who are denied an equal opportunity to participate in varsity intercollegiate athletics and/or to receive financial assistance because of their sex.” (ER 6324, 6343, emphasis added). The proposed amended complaint alleged that UCD had violated Title IX by failing to establish intercollegiate teams in field hockey and rugby, an allegation that was not raised in the original complaint. (ER 6343-6345, 6346-6357). The relief sought by the proposed amended complaint included “reinstating women’s varsity wrestling and establishing other varsity athletic opportunities for women at UC Davis....” (ER 6358, emphasis added).
A defendant is justified in relying on the allegations stated in a complaint to determine the claims being made against it. Pickern v. Pier 1 Imports (U.S.) Inc., 457 F.3d 963, 968 (9th Cir. 2006). The District Court properly found that the scope of the proposed amended complaint changed the face of the Mansourian litigation, and that UCD would be prejudiced by an amendment at that late date. (ER 82:6-84:3). Its decision was well-reasoned, and does not constitute an abuse of its discretion. Accordingly, it should be upheld by this Court.
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II.
THE CLAIMS UNDER 42 U.S.C. § 1983 WERE PROPERLY DISMISSED, NOTWITHSTANDING THE HOLDING IN BARNSTABLE V. FITZGERALD
Defendants agree the Supreme Court recently resolved a split among the Circuits and held that Title IX does not preclude a concurrent claim under 42 U.S.C.§ 1983. Fitzgerald v. Barnstable, 129 S. Ct. 788 (2009). Although the District Court came to a different conclusion in ruling on Defendants’ motion to dismiss, the Fitzgerald opinion is not the end of the analysis. This Court may uphold the dismissal on any basis fairly supported by the record. Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999).
Defendants also agree with Plaintiffs’ statement of the standard for review of this claim.
A. The Section 1983 Claim Is Barred By The Statute of Limitations
In ruling on the motion to dismiss filed by all Defendants, the District Court concluded Plaintiffs were asserting both unequal treatment and ineffective accommodation claims. (ER 37:20-24). Although Plaintiffs now deny making an unequal treatment claim,13 a review of the factual allegations in the complaint leads to the inescapable conclusion that the “heart” of their claim was that they were treated in an unfair manner on the basis of their gender in regard to their experience with the intercollegiate wrestling team. This claim is based on a number of discrete events, most of which occurred during the 2000/2001 school year. (ER 6416: ¶ 24-6430: ¶ 89). In Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003), this Court held that a plaintiff cannot circumvent the bar of the statute of limitations by arguing that discrete acts were part of an alleged policy or practice of discrimination which continued throughout the period in issue. Cherosky noted that the limitations on the continuing violation doctrine set forth in Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) apply with equal force to civil rights laws other than Title VII, the statute in issue in that case. Cherosky, supra, at 1246 n.3.
Since the District Court held that the section 1983 claim was preempted by the Title IX claim it did not rule on whether the section 1983 claim was time-barred. (ER 61-66). However, its ruling that the Title IX unequal treatment claim was barred by the statute of limitations applies with equal force to the section 1983 claim made against UCD and the individual Defendants.
The fourth claim for relief alleges that Defendants violated the Equal Protection Clause of the Fourteenth Amendment. In order to assert a section 1983 claim Plaintiffs must plead and prove that Defendants intentionally discriminated against them on the basis of their gender. Sischo-Nownejad v. Merced Cmty College Dist. 934 F.2d 1104, 1111 (9th Cir. 1991). Plaintiffs contend that “each of the individual defendants participated in or otherwise had authority over and approved the discriminatory decisions made and actions taken that deny Plaintiffs of their right to equal protection.” The claim incorporates by reference the preceding paragraphs in the complaint, all of which pertain to specific incidents involving women wrestlers. (ER 6411-6430; 6449-6451).
The statute of limitations for a section 1983 claim is controlled by the forum state’s limitation for a personal injury claim. Prior to January 1, 2003, the California statute of limitations for personal injury claims was one year. After that date the statute was lengthened to two years. Jones v. Blanas, 393 F.3d 918, 927 (9 Cir. 2004). The proper analysis is whether the suit was timely filed based on the limitation in effect at the time the claim ripened. Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Stanley v. Board of Trustees of the California State University, 433 F.3d 1129, 1134-35 (9th Cir. 2006).
Based on the allegations in the complaint and the OCR complaints, the District Court held that the last alleged discrete discriminatory act took place in October 2001 when Plaintiffs’ OCR complaints were resolved. The one year statute of limitations started running at that time. It expired in October 2002. (ER 48:25-49:6). Plaintiffs did not file their suit until December 18, 2003, more than a year after the statute expired. (ER 6407). The 2003 change in the statute of limitations does not save the claim as it was already time-barred by the effective date of the statutory amendment. Maldonado, supra at 955.
B. The Section 1983 Claim Against The Individual Defendants Is Barred By The Doctrine Of Qualified Immunity 13

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Defendants raised the affirmative defense of qualified immunity in their answer to the complaint. (SER 00434). That issue was never briefed to the District Court because it disposed of the section 1983 claim via the doctrine of preemption. Reinstating the section 1983 claims against the individual Defendants because of the holding in Fitzgerald would be a waste of judicial resources, as the record provides more than sufficient grounds for a finding of qualified immunity.
The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where there is no dispute as to the discretionary nature of the act(s) in question, the analysis of a qualified immunity defense involves two steps: (1) a determination of whether the plaintiff has alleged a constitutional violation, and (2) a determination of whether the right in issue was clearly established as of the time of the alleged violation. Saucier v. Katz, 533 U.S. 194 (2001); Crawford v. Carroll, 529 F.3d 961, 977 (11th Cir. 2008). The Ninth Circuit has, at times, added a third step of inquiring whether the official’s action was reasonable, or has merged that issue with the second step. Inouye v. Kemna, 504 F.3d 705, 712 n.6 (9 Cir. 2007). The Supreme Court recently clarified that analysis of the Saucier elements need not be done in a strict “step one, step two” order. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). The question of whether a defendant is entitled to qualified immunity is one of law for the court to decide. Elder v. Holloway, 510 U.S. 510, 516 (1994).
The Equal Protection Clause of the Fourteenth Amendment holds that no state actor may deny another person equal protection of the law. It prohibits governmental decision-makers from treating differently “persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Stated another way, the Equal Protection Clause requires that all persons similarly situated be treated alike. Jackson Water Works v. Public Utilities Comm’n, 793 F.2d 1090, 1092 (9th Cir. 1992). It is undisputed that women at UCD were given an equal opportunity to try out for a spot on the men’s wrestling team. Those students (both male and female) who did not have the skill necessary to compete at the Division I level were not selected for the team. (ER 6036:21-6037:5; 6001:19-6002:12; 4727:3-28; 5184-5185; 5156-5162). There is no “clearly established law” holding that female students who want to be part of a men’s team must compete only against other women, or that a school must provide any other type of preferential treatment to them in regard to earning a place on the roster.
Plaintiffs contend that they do not have an equal shot at making the team because of the difference in strength between men and women, and thus UCD should have either created a separate category for them on the men’s team or started a separate women’s intercollegiate team. Neither is required by the Equal Protection Clause or by Title IX. “Title IX does not establish a right to participate in any particular sport in one’s college and there is no constitutional right to participate in intercollegiate or high school athletics.” Gonyo v. Drake University, 837 F. Supp. 989, 994 (S.D. Iowa 1993); Miami University Wrestling Club v. Miami University, 302 F.3d 608, 615 (6th Cir. 2002). The law is clear that the school retains the sole discretion to determine which sports it will sponsor. Cohen v. Brown University (Cohen III), 879 F. Supp. 185, 208 (D. R.I. 1995). [“Of course, institutions do retain discretion when met with requests for the creation of a new team or the upgrading of an existing team. They need not upgrade or create a team where the interest and ability of the students are not sufficiently developed to field a varsity team.”] The mere fact that a few female students are interested in a sport does not require the establishment of a team for them. Cohen v. Brown University (Cohen II), 991 F.2d 888, 898 (8th Cir. 1993); Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 830 n.10 (10th Cir. 1993). Further, there is no requirement that a school provide the same sports for women as it does for men or vice versa. 44 Fed. Reg. No. 71413, p. 71417-71418.
The Title IX regulations state that if an institution sponsors a team for members of only one sex in a particular sport and previous athletics opportunities have been limited for the other sex, members of the other sex must be allowed to try out for the team unless the sport in question is a contact sport. 34 C.F.R. § 106.41(b). It is this opportunity to try out- not a guaranteed spot on the team- that the law protects. Force v. Pierce City R-VI School Dist., 570 F.Supp. 1020, 1031 (W.D. Mo. 1983). In Force, a girl wanted to try out for the boys’ football team. The school precluded her from doing so solely because of her gender. The Court held that she had the right to try out, but no constitutional entitlement to a place on the team if she didn’t have the necessary skill. “Nicole Force obviously has no legal entitlement to a starting position on the Pierce City Junior High School football team, since the extent to which she plays must be governed solely by her abilities, by those who coach her. But she seeks no such entitlement here. Instead, she seeks simply a chance, like her male counterparts, to display those abilities. She asks, in short, only the right to try.” Ibid. Defendants in this case provided Plaintiffs “with the right to try” by deeming wrestling at UCD to be a non-contact sport and by allowing both men and women to vie for the limited roster spots. There is no evidence UCD or any of the individual Defendants acted with the intent to treat women who yearned to be on the intercollegiate team any differently than men who had the same desire, and thus no basis for a finding of violation of the Equal Protection Clause. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001).
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The record also does not support a finding that the individual Defendants acted unreasonably in regard to the events in issue. Mansourian and Ng’s experiences with the wrestling team during Burch’s tenure differed from those of intercollegiate athletes in general. They were not required to compete for a place on the team or with the team’s opponents. Burch’s willingness to carry them as part of the team waned when he was required to comply with roster management. His unwillingness to tell Plaintiffs that he did not want to use any of his limited roster spots for them created confusion and a belief on the part of Ng and Mansourian (and later Mancuso) that they were entitled to a place on the wrestling team year after year simply because they had practiced with the team previously. Defendants and the OCR cleared up any confusion caused by Burch’s actions by entering into the Voluntary Resolution Plan which clarified the process used to determine membership on the intercollegiate wrestling team. The process treats all students who hope to obtain a place on the team equally. Those who do not make the team have the opportunity to participate in wrestling by joining the club sport team. OCR issued a letter to UCD stating it considered the matter closed because of the implementation of the Plan. There was no finding that UCD violated Title IX.14 (See p. 12-14, above). The OCR is charged with investigating Title IX violation claims. (See McCormick v. Sch. Dist Of Mamaroneck, 370 F.3d 275, 285-291 (2nd Cir. 2004) for discussion of history of Title IX statute and regulations and Neal v. Board of Trustees, 198 F.3d 763, 770 (9th Cir. 1999) regarding deference given to administrative agency charged with enforcing Title IX.) Defendants were justified in complying with a Plan that OCR had approved and in relying on the Title IX regulation pertaining to non-contact sport teams when it held try-outs for the wrestling team in the fall of 2001. Vasquez v. De La Rosa, 414 F. Supp.2d 124, 133 (D.P.R. 2006) This reliance cannot form the basis for a claim that they knowingly violated an established right.
Even if this Court should determine that OCR and/or the regulations do not comply with constitutional requirements, Defendants are entitled to qualified immunity because there was no clearly established law on how a school should handle competition among men and women for spots on an intercollegiate wrestling team. Most of the jurisprudence addressing the issue of intercollegiate wrestling has revolved around the question of whether a men’s wrestling team may be eliminated for purposes of Title IX compliance. (See Neal v. Trustees and Miami University Wrestling Club v. Miami University, supra). Defendants are not aware of any case that requires the coach of an intercollegiate wrestling team to hold sex segregated try-outs using different wrestling rules. A government official is “not expected to anticipate the law’s development or its possible application to a unique situation.” Warner v. Graham, 845 F.2d 179, 182 (8th Cir. 1988). Coach Zalesky’s approach of selecting members of the team based on their demonstrated skills and competitive ability is one used almost universally by coaches of all teams at the intercollegiate level. If the Equal Protection Clause requires something else, that was certainly not evident based on existing case law. “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such concrete and factually defined context to make it obvious to all reasonable government actors, in defendant’s place, that what he is doing violates federal law.” Crawford, supra at 978.
To the extent this Court views the equal protection claim more broadly (e.g. whether the campus complied with Title IX in regard to opportunities for women in athletics under prong two of the three-part test), the fact that two of the nation’s leading experts on Title IX (Plaintiffs’ expert Dr. Lopiano and Defendants’ expert Dr. Grant) have conflicting opinions on that point is evidence that the law is far from clear or settled. (ER 6044:5-6046:15; 6009:17-6012:3; 4707-4719; 5939-5959; 5095; 5103:19-5104:14; 5102:8-13; 5108:14-20; 5109:15-5110:9; 5111:14-5112:17; 5121:11-23; 5122:23-5123:13; 5124:4-15; 5127:13-5128:4; 5131; 5132:10-22).
In sum, Defendants Larry Vanderhoef, Robert Franks, Greg Warzecka, Pam Gill-Fisher and Larry Swanson are entitled to qualified immunity on the section 1983 claim that was asserted against them.
C. Reinstatement of The Section 1983 Claim For Injunctive Relief Against UCD Is Not Justified Because That Claim Is Moot
Plaintiffs argue the District Court erred in dismissing the section 1983 claim against UCD on the basis of lack of standing. They contend the District Court should have granted their motion to amend the complaint to add current students who would have had standing to assert an injunctive relief claim. As set forth in section I, supra, the Court did not abuse its discretion in denying the motion to amend. Thus, there is no reason to allow Plaintiffs to re-assert the section 1983 claim for injunctive relief against UCD because none of them have standing to assert the claim for injunctive relief. They have all graduated from UC Davis and thus could not benefit from “reinstatement of athletic participation opportunities for women [at UC Davis] in
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the sport of wrestling.”
In conclusion, while the Supreme Court came to a different conclusion than the District Court on the issue of preemption, the holding in the Fitzgerald case does not warrant reversal of the lower Court’s rulings.
III.
THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF UCD.
The only claim that survived UCD’s motion to dismiss was the allegation of violation of Title IX under an ineffective accommodation theory. Specifically, the District Court found that Plaintiffs had sufficiently alleged that “they were able and ready to wrestle at UCD and that sufficient interest existed in the female student population at UCD to field a women’s wrestling team.” (ER 51:1-52:25). When the case reached the summary judgment stage the question before the Court was whether a triable issue of material fact existed on that claim. UCD argued in its motion for summary judgment that Plaintiffs’ failure to notify the campus they were attacking the women’s athletic program as a whole barred their ineffective accommodation claim for damages. The notice that had been given via the OCR complaints related only to their unique experiences with the wrestling team, which was couched in terms of an unequal treatment claim. (ER 6053:1-6060:13).
The notice issue had been previously raised in the motion for judgment on the pleadings. (ER 54-55; SER 00010). Since there was no way for Defendant to know in advance of the ruling on the motion for summary judgment whether the District Court would agree with its position, UCD also argued the merits of the ineffective accommodation claim. (ER 6022:19-6023:11; 6024:5-17; 6037:7-6052:28). The District Court granted the motion, finding that Plaintiffs failed to give UCD notice and an opportunity to cure the alleged ineffective accommodation claim. (ER 7-28). In so holding, Judge Damrell noted that this was an issue of first impression in this Circuit. The lower court’s ruling is consistent with the remedial nature of Title IX and a well-established body of jurisprudence, and should be upheld by this Court.
Defendants agree that the standard of review for this claim is de novo review by this Court.
A. The Remedial Nature of Title IX
Recipients of federal funding may not deny anyone the benefit of or the right to participate in educational programs or activities on the basis of sex, nor may a recipient discriminate on the basis of sex in regard to such programs or activities. 20 U.S.C. § 1681. “Congress authorized an administrative enforcement scheme for Title IX. Federal departments or agencies with the authority to provide financial assistance are entrusted to promulgate rules, regulations and orders to enforce the objectives of [20 U.S.C.] § 1681. see 8 1682, and these departments or agencies may rely on ‘any...means authorized by law’ including the termination of funding, to give effect to the statute’s restrictions.” Davis v. Monroe County Bd. Of Education, 526 U.S. 629, 639 (1999).
Consistent with the mandate of section 1682, the Secretary of Health, Education and Welfare15 promulgated regulations implementing Title IX in regard to intercollegiate athletics. National Wrestling Coaches Ass’n v. Department of Education, 366 F.3d 930, 933 (D.C. Cir. 2004). The regulations include 34 C.F.R. §106.71, which states that the procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are adopted and incorporated by reference into the Title IX regulations. This comes as no surprise, as courts have found that Title VI and Title IX are very close in nature. Cannon v. University of Chicago, 441 U.S. 677, 694 (1979). During a Congressional discussion about Title IX prior to its passage Senator Bayh “lauded the enforcement procedures available under the former [Title VI] and ‘their great effectiveness and flexibility.’ ” Id. at 704 n. 40 (1979).
The procedural provisions that apply to Title IX enforcement start at 34 C.F.R. §100.6. They emphasize Congress’ intent to have complaints of alleged non-compliance investigated and remediated at the lowest possible level. Section 100.6 (a) requires the federal agency charged with enforcement of Title IX to work with the recipients of federal funds to seek their compliance with the statute. It also requires the agency to provide assistance and guidance to recipients to help them comply
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voluntarily with the regulation. Any person who believes Title IX has been violated may file a complaint with the Department of Education (D.O.E.). The D.O.E. investigates such complaints via its Office for Civil Rights. If the investigation confirms a violation, the D.O.E. must advise the recipient of this fact “and the matter will be resolved by informal means whenever possible.” 34 C.F.R. § 100.7(b), (c). Section 100.8, which addresses the procedure to be used in order to effectuate compliance, again emphasizes that a failure or threatened failure to comply with Title IX should be corrected by informal means whenever possible. In the event the drastic measure of termination of federal funding is justified, the regulation states that there must be a determination that voluntary compliance cannot be secured.
B. The District Court Properly Followed The Holding In Grandson v. University of Minnesota
The District Court relied on the holding in Grandson v. Univ. of Minn., 272 F.3d 568, 575 (8 Cir. 2001) in reaching its decision on the motion for summary judgment. Grandson is well-reasoned and consistent with the goals of Title IX and the established body of case law holding that a recipient of federal funding cannot be held liable for claims of which it has no notice. A complaint against the University of Minnesota was submitted to the OCR in 1996, prior to the filing of the Grandson suit. The complaint alleged that the University did not effectively accommodate the athletic interests and abilities of its female students; that it failed to provide females with proportional financial aid; and that it failed to provide female athletes with other benefits attendant to intercollegiate athletics. Id. at 572. The University and the OCR entered into an agreement to resolve the claims. As a result of compliance with the agreed-upon terms, OCR ceased its monitoring of the University three years later.
Grandson filed suit in 1997 seeking injunctive relief and compensatory damages for the financial support she would have received as a member of the intercollegiate soccer team had the University not allegedly discriminated on the basis of sex. Three months later, a group of female students (“the Thompson plaintiffs”) filed a second action on behalf of themselves and a purported class, seeking injunctive relief in the form of an order requiring the University to increase participation opportunities for women and add another NCAA Division I team. Ibid. The District Court struck the class allegations as futile, and dismissed Grandson’s claim because she had failed to comply with the notice requirements of Gebser v. Lago Vista Indep. Sch. Dist. 524 U.S. 274 (1998).
The Eighth Circuit upheld the dismissal. It noted that this was the first Title IX athletics case where a class action was brought after an OCR complaint was made against the athletic program as a whole; where the plaintiffs sought injunctive relief over and above that a compliance plan that OCR found to be fully adequate; and where plaintiffs sought damages for alleged programmatic deficiencies that had been voluntarily resolved by the University. Id. at 573. The Court stated “We read Gebser as requiring that an implied private action for systemic Title IX relief must likewise take a back seat to an agency proceeding that has led to satisfactory voluntary compliance.” Id. at 574. In Gebser, the Supreme Court noted that the express remedy set forth in Title IX “operates on an assumption of prior notice of alleged discrimination to the funding recipient and an opportunity to rectify any violation voluntarily.” Grandson, supra at 575 (citing Gebser, at 288). The Grandson court concluded that when a plaintiff seeks monetary damages for a specific alleged Title IX violation, “Gebser requires prior notice to a University official with authority to address the complaint and a response demonstrating deliberate indifference to the alleged violation.” Id. at 576.
Plaintiffs argue that UCD’s acceptance of federal funding is sufficient to constitute notice that it will be held liable for a claim of intentional discrimination on the basis of sex. They rely on the holding in Pennhurst State School v. Halderman, and a sentence in Fitzgerald which states “Title IX has no administrative exhaustion requirement and no notice provisions.” While it is true the Supreme Court made that statement, it did so in the context of determining whether the preemption doctrine bars a section 1983 claim brought concurrently with a Title IX claim. The Supreme Court did not discuss 34 C.F.R. §100.6-100.10 or 34 C.F.R. § 106.71 in Fitzgerald, nor was the question of whether the plaintiff gave the school district sufficient notice before the Court. UCD does not dispute that in exchange for accepting federal funds it is obligated to comply with Title IX (see Pennhurst, supra, at 17). However, that “contractual” agreement alone is not sufficient to provide the notice required to be given before a recipient can be held liable for damages. To hold otherwise would render the Title IX regulations moot and encourage students and their attorneys to file costly and extended litigation with the hope of receiving monetary compensation and large attorney’s fee awards, rather than work with the school to address the perceived issues.
Plaintiffs and their amici claim that if Grandson is followed enforcement of Title IX will rest “solely in the hands of students,
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many of whom are only children” and that “violations will go largely ignored.” They contend that students are generally ignorant of Title IX and its enforcement mechanisms. This argument is undermined by the fact that the Plaintiffs in this case filed not one, but four complaints with the OCR. In this case, the failure to give adequate notice of the ineffective accommodation claim was not the result of ignorance on the part of the Plaintiffs in regard to Title IX. Their OCR complaints focused solely on wrestling issues because that is all they were interested in at the time they filed the complaints. The issue of alleged ineffective accommodation of the interests of UCD women undergraduates as a whole came to the forefront in Plaintiff’s case only after the District Court dismissed their unequal treatment claims as untimely and their state court claims on other grounds. Nor do Plaintiffs or amici explain why it is easier for “children” such as Plaintiffs to deploy the resources necessary to file a federal lawsuit than it is for them to initiate a complaint process.
Four years ago the Supreme Court emphasized the importance of notice in Title IX athletics cases in Jackson v. Birmingham Board of Education, 544 U.S. 167, 181 (2005). “Title IX’s enforcement scheme also depends on individual reporting because individuals and agencies may not bring suit under the statute unless the recipient [of federal funds] has received ‘actual notice’ of the discrimination.” (citing to Gebser). The notice requirement is not onerous, nor does it hold students or other complainants to an unreasonably high standard. It may be satisfied by a formal OCR complaint, or something as informal as a call to the Athletic Director. Either way, the student or other person complaining must let the institution know whether their complaint is a systemic one or limited to their specific situation. This notice gives the institution an opportunity to look into the issue and take remedial action if warranted. The outcome of the OCR complaints filed by Plaintiffs demonstrates the wisdom of the notice requirement. The Voluntary Resolution Plan put to rest any confusion that may have existed about how members of the UCD intercollegiate wrestling team are selected. As in the Grandson case, Plaintiffs’ claim for damages should “take a back seat to an agency proceeding that has led to satisfactory voluntary compliance.”
Plaintiffs describe Grandson as an outlier opinion16 and instead urge this Court to follow the holding in Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000). The Pederson case is distinguishable in many aspects. The attitude and actions of LSU’s athletic administration towards women’s athletics was chauvinistic and backwards. The disparity between male and female student population and athletic participation was very significant. Males comprised only 51% of the undergraduate population, but 71% of its intercollegiate athletes. In comparison, women comprised 49% of the undergraduates but only 29% of the intercollegiate athletes. Id. at 878. The District Court in Pederson found that the situation at LSU in regard to intercollegiate athletics was the result of “arrogant ignorance, confusion regarding the practical requirements of the law, and a remarkably outdated view of women and athletics which created the by-product of resistance to change.” Id. at 880. The Court of Appeals agreed, and noted other evidence supporting a finding of intentional discrimination including the fact that the Athletic Director referred to women student-athletes as “honey,” “sweetie” and “cutie” and said he would “love to help a cute girl like you” to one of the plaintiffs. The Athletic Director also stated that soccer was a “more feminine sport” that deserved consideration for intercollegiate status because female soccer players “would look cute running around in their soccer shorts.” The Senior Woman’s Athletic Administrator slot, a position defined by the NCAA as the most senior woman in an athletic department, was occupied by a low level male employee of LSU. Id. at 881. LSU did not even try to justify its actions; instead it argued that holding and following archaic values does not equate to intentional discrimination.
The issue in Pederson was not whether the notice given by the plaintiffs was adequate, but whether the evidence supported a finding that LSU intentionally discriminated against women. LSU relied on Gebser to support its argument that it was either ignorant of or confused by Title IX and thus could not be found to have intentionally discriminated. The Court of Appeals found that Gebser and the other cases requiring a showing of deliberate indifference actually supported the claim against LSU because it acted with deliberate indifference to the rights of female students. Id. at 882. “The proper test is not whether it knew of or is responsible for the actions of others, but is whether Appellees intended to treat women differently on the basis of their sex by providing them unequal athletic opportunity, and, as we noted above, we are convinced that they did. Our review of the record convinces us that an intent to discriminate, albeit it one motivated by chauvinist notions as opposed to one fueled by enmity, drove LSU’s decisions regarding athletic opportunities for its female students.” Id. at 882.
In comparison, there is no evidence that UCD was either deliberately indifferent to the issues pertaining to the women wrestlers or that it intentionally discriminated against them on the basis of gender. The campus cooperated with the OCR, and worked out an agreement that clearly delineated the criteria for membership on the intercollegiate wrestling team. The denial of Plaintiffs’ request that they be allowed to be part of the intercollegiate team over and above the roster maximum or that in the alternative, UCD establish a separate women’s intercollegiate wrestling program for them, was neither unreasonable nor discriminatory. Allowing women who could not earn a roster berth via skill to be part of the intercollegiate team would result
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in discrimination against males who also did not have the necessary skill. There was insufficient interest and local competition to justify the establishment of a separate women’s wrestling team. The NCAA does not sponsor women’s wrestling, nor is it on that agency’s list of “emerging sports.” Neither the NCAA nor the National Association of Intercollegiate Athletics offers a women’s wrestling championship. During the time period in issue, the only local source of possible intercollegiate competition for women wrestlers was Menlo College in California and Pacific University in Oregon. Those schools are not members of the Pac-10 conference and UCD does not compete against them. During the years Burch was at UCD, there were never more than four women at any one time participating in wrestling on campus. Neither Plaintiffs nor any other person had ever submitted a proposal that women’s wrestling be sponsored as an intercollegiate sport at UCD. (ER 5982:22-5983:21; 5990:3-4; 6006:12-14; 6014:10-22; 4651-4653; 4674:9-17; 4684:1-10; 4717:24-4718:4; 4776:12-16).
The fact that UCD made the decisions referenced above is not sufficient to establish intentional discrimination. As recognized in Jackson and by this Court in Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002), there must either be facial discrimination or a deliberate act designed to violate the law, such as retaliatory conduct. Neither exists here.
C. The District Court Properly Concluded That Plaintiffs’ OCR Complaints Did Not Place UCD on Notice Of Their Ineffective Accommodation Claim
This case is a mirror image of Grandson. Ms. Grandson attempted to sue for damages arising from her specific experience with the soccer team. She unsuccessfully attempted to use prior complaints relating to the women’s athletic program as a whole for purposes of Gebser notice. Here, Plaintiffs unsuccessfully attempted to use their OCR complaints, which related solely to their claim they were treated differently than male wrestlers, to serve as notice that they were attacking the women’s athletic program as a whole and seeking damages for alleged failure to adequately accommodate the interests of all women students. The April, 2001 OCR complaint filed by Ng stated “There has [sic] been females on the wrestling team for the past five years. This year, after the first month of practice, the Athletic Directors told us that we were no longer allowed to be on the team.” The complaint went on to provide specifics of the alleged actions of the Athletic Department administrators. Ng concluded “I want and deserve the same opportunity to wrestle as a male does [sic]. The Athletic Administration will not allow me to wrestle, nor any other female, and I strongly believe it is due to my sex.” The complaint is devoid of any reference to women’s participation in other sports at UCD, or the women’s OCR complaint. Again, the allegations related solely to the wrestling team and her perception that women were treated unequally. (ER 5211-5212). That complaint was followed by two others, each of which focused exclusively on Plaintiffs’ complaints about the wrestling team. (ER 5224-5231; 5233-5234). None of the complaints referenced the overall athletic program. Campus administrators understood the complaints to relate solely to the wrestling team, not to the intercollegiate athletics program as a whole (ER 6059:16-20; 5988:23-5989:3; 4681:3-22; 4662:10-28; 4702:24-4703:10; 4728:1-17; 4731:12-4732:2).
There is no evidence that OCR’s investigation of the complaints spanned beyond issues pertaining to wrestling. (ER 23:15-27:3). The campus worked with OCR to devise a resolution that would clarify the requirements for membership on the wrestling team. In closing its investigation, OCR stated “As indicated above, wrestling is a contact sport and thus is exempt from any requirement that an intercollegiate athletic team include both men and women. Inasmuch as the University has chosen to provide an intercollegiate athletic wrestling team that is open to both men and women, it has undertaken to provide equivalent benefits, services, and opportunities, as required. OCR has determined that, contingent on implementation of the VRP, the issues raised by this complaint are resolved.” (ER 6001:19-6002:8; 5155-5162). The District Court properly found the OCR complaints did not put UCD on notice that Plaintiffs were raising a claim of ineffective accommodation. Rather, the clear message from the OCR complaints was that they were making a claim of alleged unequal treatment in regard to wrestling. (ER 20:10-22:3).
Plaintiffs’ argument that publicity about the women wrestler’s claims sufficed as notice of an ineffective accommodation claim is without merit. They point to evidence relating to newspaper coverage of protests relating to their allegation that Mr. Warzecka removed them from the wrestling team and to the involvement of a member of the State Assembly. The newspaper coverage did nothing more than notify the campus that Plaintiffs believed they were entitled to be part of the wrestling team over and above the roster limit. The involvement of the member of the State Assembly in the fray did not give the campus notice of anything other than the fact that she and her chief of staff accepted the Plaintiffs’ claims at face value and chose to champion their cause for a short period of time. It is worth noting that less than a year later, that same Assembly member recognized Ms. Gill-Fisher as her Assembly District “Woman of the Year” because of Gill-Fisher’s efforts and
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accomplishments in women’s collegiate athletics. (ER 6016:5-10; 6016:5-10; 5145; 5146:2-4; 5147:20-5148:16; 5149:7-10; 5150:7-5151:21; 5195-5197). Neither public debate nor politics qualify as sufficient notice. Grandson, supra, 576.
Similarly, internal campus documents pertaining to UCD’s Title IX compliance efforts from as far back as 1976 do not constitute sufficient notice. The Title IX athletic regulation allows an institution to choose its method of compliance under the three-part test. These are flexible standards, not hard and fast requirements. The drafters purposely chose to use amorphous terms such as “substantially proportionate” in regard to prong one compliance, and “history and continuing practice of expansion” in regard to prong two compliance. Without a bright-line test to follow, it is not surprising administrators at schools that take Title IX seriously engage in internal discussions about whether the standards are being met and whether there is room for improvement. If courts allow documents reflecting such discussions to be used as de facto notice of an alleged violation even in the absence of a specific complaint by a student, it will have a chilling effect on a school’s willingness to engage in open and robust discussion on the issues of compliance and continued improvement of its athletics program.
In conclusion, Defendants urge this Court to adopt the reasoning of the Eighth Circuit, follow the holding in Grandson, and affirm the ruling of the District Court in granting summary judgment.
D. In The Event This Court Disagrees With the District Court On The Issue Of Notice, the Case Should Be Remanded To The Lower Court For a Ruling On The Remaining Issues Raised In The Motion For Summary Judgment
Plaintiffs ask this Court to reverse the ruling on the motion for summary judgment and return the case to the District Court for trial. Defendants urge the Court to uphold the rulings made by the District Court, and to dismiss the section 1983 claim on the basis of qualified immunity and the bar of the statute of limitations.
The issue of notice was only one of four arguments raised in the motion for summary judgment. (ER 6017-6061). The remaining arguments were (1) UCD complied with Title IX under prong two of the three part test, based on its history and practice of program expansion; (2) UCD did not eliminate the opportunity for women to try out for the wrestling team, nor did it eliminate a “women’s wrestling team”; and (3) there was no evidence of intentional discrimination on the basis of gender. (ER 6037-6058). The lower court did not rule on these arguments because it decided the case solely on the notice issue. (ER 7-28). While it is true this Court reviews a grant of summary judgment de novo, appellate courts routinely remand a case to the lower court for a decision on an issues it had an opportunity to address, but did not. Fitzgerald v. Barnstable, supra, 798 (“Ordinarily, ‘we do not decide in the first instance issues not decided below.”).
It is particularly appropriate for this Court to send the case back to the District Court if it reverses on the notice question, as the issue of whether a school complies with Title IX’s three part test is a judgment call for the trial court that will not be disturbed on appeal absent a finding of unreasonableness. Cohen v. Brown University (Cohen II), supra, at 903. UCD contends it complied with the three part test under prong two. OCR’s 1996 Clarification of the three part test does not provide strict numerical formulas or “cookie cutter” answers to questions that are inherently unique to each school in question. The 1996 Clarification states the following in regard to prong two compliance: “There are no fixed intervals of time within which an institution must have added participation opportunities. Neither is a particular number of sports dispositive. Rather, the focus is on whether the program expansion was responsive to the developing interests and abilities of the underrepresented sex.” (Addendum to Defendants’ brief, p. 20).
Only a handful of courts have decided the issue of whether a college or university complies with Title IX under prong two. In each of those cases, the athletic program in issue bore no resemblance to the women’s program at UCD. See e.g. Cohen v. Brown (Cohen III), supra; Roberts v. Colorado State Bd. Of Agriculture, supra; Pederson v. LSU, supra. UCD had an established women’s intercollegiate sports program prior to the passage of Title IX. The campus was a founding member of the Association of Intercollegiate for Women, which was the governing body for women’s intercollegiate athletics before the NCAA agreed to include women in 1981. (ER 6041; 6003:23-6004:3; 4700:17-4701:3; 4739:22-28; 4740:1-10). Over the years, UCD has consistently expanded its women’s program by adding new sports in response to the developing interests and abilities of its female students. It discontinued field hockey as an intercollegiate sport in 1983 because of a lack of local competition and declining interest, but immediately replaced it with women’s soccer, a much more popular sport. (ER
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6041-6042; 6004:15-23; 4701:4-10; 4740:16-23). The elimination of a team does not per se negate compliance under prong two; the 1996 Clarification states that the circumstances surrounding the elimination must be taken into consideration. (Addendum to Defendants’ brief, p. 21). In 1996 UCD added three new sports for women all at once. (ER 6042:3-19; 6004:24-6005:19; 4725:16-4726:7; 4701:11-23; 4731:8-11; 5240-5253). The campus contends that adding three sports at the same time demonstrates a continuing history of program expansion for women, and that the concurrent addition of three sports benefitted women more than stringing the expansion out over six to nine years by adding one new team at a time. Several years later UCD added women’s indoor track as a separate sport. (ER 6042:20-6043:3; 6005:19-6006:6; 4743:22-4745:7; 4682:27-4683:20). In 2003 it started the process again for proposals for the addition of another women’s sport. Golf was selected as the result of that process. (ER 6043:4-6044:4; 6006:7-6007:23; 4684:1-4686:9; 4703:22-4704:3; 4689:22-4690:25; 5255-5260; 5262-5263; 5763-5893; 5896-5903).
Plaintiffs contend the addition of three sports in 1996 is no different than the addition of one sport, and that the passage of time between the 1996 expansion and the addition of golf in 2003 disqualifies UCD from relying on prong two. Plaintiffs also contend that, contrary to the express language of the 1996 OCR clarification, a school may never rely on prong two if there are downward fluctuations in the participation numbers for women. Finally, in their quest to recover damages, Plaintiffs rely heavily on events that took place at UCD in the 1970’s and 1980’s, years before they attended the school. The District Court is better suited to rule in the first instance on the arguments made by each side and to rule on evidentiary issues, in the event this Court believes reversal is appropriate.
Should this Court choose to review the entire motion for summary judgment de novo, there is sufficient evidence in the record on which this Court may affirm the District Court’s judgment in favor of Defendants other than on the notice issue. Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th Cir. 2002); see also Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 n.17 (9th Cir. 1995). (“[W]e may affirm a summary judgment on any ground finding support in the record, whether or not relied upon by the trial court.”). However, in the event the Court takes that approach Defendants request an opportunity for supplemental briefing in order to elucidate the points raised below but not considered by the District Court in its ruling.
V.
CONCLUSION
The District Court did not abuse its discretion in denying Plaintiff’s motion to amend the complaint. The motion was filed well after the time for amending the pleadings had expired, and was little more than a futile attempt to overcome insurmountable problems that had been indentified in Defendants’ opposition to their motion for class certification. The Supreme Court has ruled that a section 1983 claim may be concurrently maintained with a Title IX claim. That ruling does not affect the outcome of this case, as the individual Defendants are shielded from liability under the doctrine of qualified immunity, and the section 1983 claims against them and UCD are barred by the statute of limitations.
Finally, the District Court correctly applied the Gebser notice requirement to the Title IX claim and found that Plaintiffs’ OCR complaints did not alert the campus to their claim that the women’s athletic program as a whole failed to accommodate the interests and abilities of all female undergraduates. The notice requirement does not stifle compliance with Title IX. Rather, it provides an opportunity for students and their schools to engage in meaningful discussion about perceived or actual inequities and for the school to take remedial action if necessary. Plaintiffs did not receive the outcome they sought from the OCR process, which was a berth on the intercollegiate wrestling team notwithstanding their lack of ability to earn one based on skill. This does not amount to gender discrimination or form the basis of a lawsuit. Title IX does not require a school to give preferential treatment to women who want a place on a men’s team or to provide separate teams for each gender in each sport sponsored. All that is required is an equal chance to try out for a team. Plaintiffs were given that opportunity.
Defendants ask that judgment in their favor be affirmed. In the event this Court disagrees with the District Court on the notice issue, Defendant Regents of the University of California requests remand so that the District Court may rule on the remaining issues raised in its motion for summary judgment.
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Appendix not available.

Footnotes

1

ER refers to Appellants’ Excerpts of the Record. SER refers to Appellees’ Supplemental Excerpts of the Record

2

A dual meet is a contest between two teams.

3

This refers to a tournament that is open to anyone who signs up, whether or not they are a university student.

4

At one point in time there was one woman on the Stanford University wrestling team who wrestled against a male from anther

school during one dual meet. She did not compete regularly against other Pac-10 schools.

5

The Aggie Open was an annual fundraising event. It was open to anyone, whether or not they were a student.

6

Club sport teams compete with club teams from other schools. The level of skill necessary to compete at the club level is usually

less than that required for intercollegiate competition, and the demands on club sport athletes’ time is less than the demand placed

on intercollegiate athletes.

7

Plaintiff Mancuso did not enter UCD until the fall of 2001.

8

Although for a number of the years at issue UCD had more female than male intercollegiate athletes, it has not sought to claim

compliance under the proportionality test of prong one because there has been a substantial predominance of women

(approximately 56% during the time in issue) in the undergraduate population.

9

Notably, neither Plaintiffs nor any other person submitted a proposal on behalf of women’s wrestling.

10

The 1996 Clarification issued by the OCR provides several hypotheticals designed to provide guidance to schools on compliance

under prong two. One of the hypotheticals involves a school (Institution C) that had seven women’s sports at the inception of its

women’s program in the mid-1970’s. It added another team in 1984 and upgraded a club team to varsity status in 1990 in response

to a request by the club and NCAA surveys showing a significant increase in participation in that sport at the high school level. The

school had a plan to add another varsity sport for women in 1996. OCR stated “Based on these facts, OCR would find Institution C

in compliance with part two because it has a history of program expansion and is continuing to expand its program for women in

response to their developing interests and abilities.” (Addendum to Appellees’ Brief, p. 21)

11

Chiang voluntarily dropped out of the case in March 2007.

12

Brust, Bulala and Ludwig later filed a Title IX suit of their own. That litigation has been identified by Judge Damrell as related to

this case. See Appellees’ Request for Judicial Notice.

13

See footnote 3 of the A.O.B. The complaint asserts that Plaintiffs Ng and Mansourian were part of the UCD wrestling program and

that they were later removed from it via an event they call the “No Females Directive.” Plaintiffs further alleged Defendants treated

female wrestlers less favorably than male wrestlers because males were given the opportunity to wrestle and were not subject to the

“No Females Directive.” (ER 6411: ¶ 9; 6413:¶ 12; 6417: ¶ 30; 6423: ¶¶ 57-59; 6442: ¶ 130). Such allegations are consistent with

an athletics unequal treatment claim. Pederson v. LSU, 213 F.3d 858, 865 n.4 (5th Cir. 2000)

14

In paragraph 72 of their District Court complaint Plaintiffs allege that “OCR concluded that UC-Davis had discriminated against

the women wrestlers by issuing the No Females Directive.” This is not true. See E.R. 5156-5162.

15

The Office for Civil Rights of the Department of Education subsequently took over as the federal agency responsible for Title IX

enforcement, including investigation of complaints.

16

They argue the Eighth Circuit has not followed its own opinion, citing to Chalenor v. University of N.D., 291 F.3d 1042 (8th Cir.

2002). The issue in Chalenor was whether a university violates Title IX by eliminating a men’s team in order to comply under

prong one. The issue of notice was not raised in that case.

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United States Court of Appeals, Ninth Circuit. Arezou MANSOURIAN, et al., Plaintiffs-Appellants,
v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants-Appellees.
No. 08-16330. February 22, 2010.
Appeal from a Summary Judgment U.S.D.C. for the Eastern Dist. of Cal. No. 2:03-cv-02591-FCD-EFD Hon. Frank C. Darmell, District Judge Date of Decision: February 8, 2010 Judges: Schroeder, Berzon and Shadur
Appellees' Petition for Rehearing and Rehearing En Banc
Porter Scott, A Professional Corporation, Nancy J. Sheehan, SBN 109419, 350 University Avenue, Suite 200, Sacramento, California 95825, Tel: 916.929.1481, Fax: 916.927.3706, Attorneys for Defendants-Appellees.
*i TABLE OF CONTENTS
I. RULE 35(b) STATEMENT ... 1
II. BACKGROUND PERTINENT TO PETITION ... 2
III. THE COURT SHOULD REHEAR EN BANC THE PANEL'S TITLE IX OPTION TWO ANALYSIS TO RESOLVE THE CONFLICT THE ANALYSIS INJECTS INTO PREVIOUSLY SETTLED LAW ... 6
IV. THE PANEL SHOULD REHEAR THIS MATTER TO FURTHER CONSIDER ITS OPTION TWO ANALYSIS ... 14
V. CONCLUSION ... 16
CERTIFICATE OF COMPLIANCE ... 17
PROOF OF SERVICE ... 18
*ii TABLE OF AUTHORITIES
U.S. Supreme Court Cases
Fitzgerald v. Barnstable 129 S.Ct. 788, 798 (2009) ... 4
U.S. Circuit Court Cases
Cohen v. Brown University 991 F.2d 888, 898 (1st Circuit 1993) ... 10, 11, 13, 14
U.S. District Court Cases
Biediger v. Quinnipiac University 616 F.Supp.2d 277 (D.Conn. 2009) ... 9

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Cohen v. Brown Univ. 809 F.Sup. 978, 991 (D.R.I 1992) ... 10, 11, 13, 14
Miller v. University of Cincinnati 2008 WL 203025 at *7 (S.D. Ohio, January 22, 2008) ... 8
Federal Statutes and Rules
20 U.S.C
§1681 ... 1
§1681(a) ... 6
34 C.F.R.
§668.47(b)(3) ... 9
§ 106.41(c)(1) ... 6
§ 1092(g) ... 9
*iii 34 C.F.R.
§1092(g)(1)(B)(I) ... 9
44 C.F.R.
71,413 ... 6
71,415 ... 10
71,418 ... 6
*1 I. RULE 35(b) STATEMENT
The panel's opinion decided an appeal from a summary judgment in an action that contends the University of California at Davis (“University”) denied plaintiffs equal athletic participation opportunities in violation of Title IX, 20 U.S.C § 1681. The panel reversed the district court on the ground on which the lower court had granted summary judgment-whether plaintiffs were required to give the University notice of their Title IX contentions and an opportunity to cure. This petition does not challenge that ruling.
The panel also, however, decided a point that the district court had not reached-whether the University's athletic program complied with Option Two of the alternative three part test by which schools can establish compliance with Title IX's “effective accommodation” obligation. Defendants (collectively “Appellees” or “University”) had urged the panel to remand that issue if it reversed on the notice ground. (Appellee's brief “AB” 57-60) Alternatively, the University requested an opportunity to submit supplemental briefing if the panel elected to review the issue. (AB 60-61) In deciding the issue without the benefit of either a district court decision or plenary briefing, the panel made statements regarding how Title IX compliance is measured that disturb settled law and conflict with authoritative agency inter-

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pretations of Title IX.
In assessing the University's compliance under Option Two, the panel held that the addition of women's indoor track did not constitute program expansion because it did not result in an increase of the number of female athletes. [Op. 18] This holding contradicts existing case law as well as authoritative agency interpretations. Agency interpretations of Title IX-*2 which the panel recognized command deference [Op. 9 n.9]-are clear that it is expansion of participation opportunities that matter under Option Two, as opposed to the expansion of the number of athletes. If a new team is added, the opportunities created by that addition count toward Option Two compliance even if the roster for the new team is filled in whole or in part with athletes who also participate in another sport. By focusing on the number of athletes rather than the number of opportunities, the panel disregarded the impact of the addition of indoor track on the University's compliance under Option Two. Similar discrepancies between the panel's standards and standards previously articulated appear in the Opinion and are discussed further below.
En banc review is necessary because the conflict between the Title IX standards the panel announced and previously articulated standards is an issue of exceptional importance. All schools that receive federal funding must comply with Title IX on an ongoing basis. These institutions rely on authoritative agency interpretations and the small body of case law on Title IX in developing their programs. Certainty and predictability about which standards control is, therefore, essential. Accordingly, Appellees petition for rehearing en banc [see Part III, supra] or panel rehearing [see Part IV, supra].
II. BACKGROUND PERTINENT TO PETITION
Prior to Title IX's enactment in 1972, the University had an established women's intercollegiate sports program that included basketball, field hockey, swimming, softball, tennis, volleyball and track/field teams. It was a *3 founding member of the Association for Intercollegiate Athletics for Women, which was the national governing body for women's intercollegiate athletics in the 1970s. (Excerpts of Record “ER” 4739:22-4740:23; 4699:22-4701:3)
The University added women's gymnastics as an intercollegiate team in 1974, and women's cross-country in 1977. In 1983, it replaced its field hockey team with varsity women's soccer in response to other schools in its conference dropping field hockey, the growth in popularity of women's soccer and a parallel decline in popularity of field hockey. (ER 4699:22-4701:10; 5075:13-5079:7) In 1996, the University added women's water polo, lacrosse and crew as varsity sports. Women's indoor track was added in 1999, followed by women's golf in 2003. (ER 4724:22-4726:7; 4743:22-4745:7;4677:22-28 ;4682:27-4683:5; 4683:14-4685:7; 5262-5263)
The University's intercollegiate wrestling team competes at the NCAA Division I level with other schools in the Pac-10 Conference. (ER 4659-4661:9). Since no schools in the Pac-10 have separate women's wrestling teams, a female athlete on the wrestling team would have to compete against a male in her weight class in Conference competition. (ER 4659-4661:7)
Between 1995 and 2000, University wrestling coach Michael Burch allowed a handful of women to work out with the wrestling team and receive other benefits associated with varsity status. (Op. at 4; ER 1143:4-7; 1148:5-9; 1152:20-24; 1154:18-25). As a result of roster management, the size of the wrestling team was limited to 34 spots for the 2000/2001 school year. Burch filled the spots with male wrestlers; the women were not selected because they did not have the skills to compete at the Division I level. (ER4677:23-27; 4678:21-4679:24; 4768, 4803:7-24; 4805:18-21; 4808:13-*4 25) Two of the women filed a complaint with the Department of Education's Office for Civil Rights (“OCR”). OCR investigated and entered into a resolution plan with the University that included a provision that students of both genders may try out for the wrestling team, and that the coach would select for membership on the team those students who demonstrated the highest level of skill and competitive ability in their weight class. (ER 4724:22-4725:5; 4726:13-4727:23; 5155-5159) The following fall Plaintiffs Ng and Mancuso tried out for the team but were not selected. Plaintiff Mansourian did not try out. (ER 4670:22-4671:9;4672:16-4673:5; 4965, 5003:14-18;

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5005:12-25; 4888; 4925:8-11; 5238)
Plaintiffs sued the University and several University officials. Their claims included an assertion that the University failed to provide “effective accommodation,” a Title IX concept that is governed by a test that provides universities three alternative measures to demonstrate compliance. See Op. 8-10).
The university moved for summary judgment on the grounds inter alia that (1) plaintiffs were required, but had failed, to provide the University pre-suit notice of their claimed Title IX violation and an opportunity to cure it, or (2) undisputed facts established that the University complied with the Option Two test for establishing effective accommodation. That test focuses on “whether past actions of the institution have expanded participation opportunities for the underrepresented sex ...” (Op. 17) The district court granted summary judgment on t he first ground without reaching the second ground, involving the Option Two test.
The University fully briefed the notice issue on appeal. But, citing *5 Fitzgerald v. Barnstable, 129 S.Ct. 788, 798 (2009) (“Ordinarily, ‘we do not decide in the first instance issues not decided below.”), the University argued that if the Court reversed on the notice issue, it should remand the question of whether the University had established its compliance with Option Two. (AB 57-59) Alternatively, the University requested that, if the Court elected to review the Option Two question de novo, it should request supplemental briefing on the issue. (AB 59)
The panel elected to review the Option Two issue, but did not request supplemental briefing on it. It held that the University's addition of a varsity indoor women's track team was not evidence of program expansion because the addition “did nothing to expand the number of female athletes, as all the women participating in indoor track also participated in an existing varsity sport.” Op. 18. The panel also stated “[t]he Option Two analysis focuses primarily, but not exclusively on increasing the number of women athletes rather than increasing the number of women's teams.” (Op. 17.) After applying similar standards to the University's addition of a women's golf team in 2003, the panel held the summary judgment could not be affirmed on the alternative ground that the University complies with Title IX's effective accommodation duties.
As a result of this decision, one of the leading public universities in the world-and a pioneer in intercollegiate women's athletics-has been publicly branded a potential Title IX violator based on an analysis of the Option Two issue that the district court did not reach and the University did not fully brief on appeal because of the district court's narrow ruling. Given the exceptional importance of the issue and the conflict with previously settled law noted *6 below, this conclusion is worth a second look.
III. THE COURT SHOULD REHEAR EN BANC THE PANEL'S TITLE IX OPTION TWO ANALYSIS TO RESOLVE THE CONFLICT THE ANALYSIS INJECTS INTO PREVIOUSLY SETTLED LAW
Title IX of the Educational Amendments of 1972 holds that no person 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 receiving federal financial assistance. 20 U.S.C. § 1681(a).
The Title IX concept of “effective accommodation” is derived from a Department of Education (“DOE”) regulation that bases compliance in part on whether “the selection of sports and levels of competition effectively accommodates the interests and abilities of members of both sexes.” See 34 C.F.R. § 106.41(c)(1). (Op. 8) Whether a funding recipient has met its “effective accommodation” duty is determined using a three part test drawn from the OCR's 1979 Policy Interpretation, 44 Fed. Reg. 71,413 (Dec 11, 1979). (Op. 9) The test is further explained in a 1996 OCR Clarification. (Id.); (Addendum to AB, pp. 14-25).
The test gives universities three options for demonstrating compliance: (1) showing the number of women in intercollegiate athletics is proportionate to their enrollment, (2) proving that the institution has a “history and practice of

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program expansion” for the underrepresented sex; or (3) where the university cannot satisfy either of the first two options, establishing that it nonetheless “fully and effectively accommodates” the interests of women. (Op. 9; 44 Fed. Reg. 71,418) As the panel noted [Op. 9 n. 9], the courts give *7 substantial deference to the DOE's 1979 Policy Interpretation and its 1996 Clarification in applying this three-part test.
In the 1996 Clarification, the OCR provided hypothetical examples to illustrate the principles stated in the document. One such hypothetical is: At the inception of its women's program in the mid-1970s, Institution C established seven teams for women. In 1984 it added a women's varsity team at the request of students and coaches. In 1990 it upgraded a women's club sport to varsity team status based on a request by the club members and an NCAA survey that showed a significant increase in girls high school participation in that sport. Institution C is currently implementing a plan to add a varsity women's team in the spring of 1996 that has been identified by a regional study as an emerging sport in the region. The addition of these teams resulted in an increased percentage of women participating in varsity athletics at the institution. Based on these facts, OCR would find Institution C in compliance with part two because it has a history of program expansion and is continuing to expand its program for women to meet their developing interests and abilities.
In the district court, the University sought summary judgment in part on the ground that it had established compliance under Option Two because it showed a history and practice of program expansion very similar to the hypothetical noted above. Although the court did not reach that issue, the panel reviewed it and held the University had not established Option Two compliance. The panel held the University's 1999 addition of a women' s indoor track team was not evidence of program expansion because the new team “did nothing to expand the number of female athletes, as all the women *8 participating in indoor track also participated in an existing varsity sport.” (Op. 18)
This conclusion conflicts with well established law. “Participation” is determined based on the number of roster spots that student-athletes fill on each team and not-as the panel stated-by the number of athletes in the athletic program as a whole. Accordingly, each available spot is counted as a “participation opportunity.” A student-athlete who participates in three sports is counted three times for participation purposes.
This principle is as old as Title IX and was first set forth in the 1979 Policy Interpretation, which defined participants on a team-by-team basis and contained no exclusion for an individual who had been counted as part of another team. See 44 Fed. Reg. at 71415. The 1996 Clarification likewise focused on “participation opportunities”: “In effect, part two looks at an institution's past and continuing remedial efforts to provide nondiscriminatory participation opportunities through program expansion.” (Addendum to AB, p. 20) (emphasis added); see alo Addendum to AB, p. 24, n2).
Lest there were any doubt, the Clarification plainly stated that it is the number of roster spots, not the number of athletes participating, that count: “In determining the number of participation opportunities for the purposes of the interests and abilities analysis, an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates. (Addendum to AB, p. 19).
Based on that plain statement, which is entitled to deference [Op. 9 n. 9], two recent cases have rejected arguments that each athlete should be counted only once even if she plays multiple sports. In *9Miller v. University of Cincinnati, 2008 WL 203025, at *7 (S.D.Ohio, Jan. 22, 2008), the district court, relying upon the Clarification, held: “Plaintiffs' argument depends on using the unduplicated count of athletes, that is, counting an athlete only once, regardless of how many different roster spots that athlete occupies on different teams. Plaintiffs offer no authority for using the unduplicated count and, to the contrary, the Department of Education prescribes the duplicated count.” (Id.) The court added: Plaintiffs assert that the University also incorrectly reports the number of male and female athletes by counting indoor track and field, outdoor track and field, and cross-country as separate sports. The Department of Education has established this format, however....The current Department of Education reporting of “All Track Combined,” http:// ope.ed.gov/athletics/InstDetail.asp, does not change that approach. Thus, it is proper for the University to count an

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athlete who competes on the cross-country team, indoor track team and outdoor track team as competing on three separate teams. Id.
In Biediger v. Quinnipiac University, 616 F.Supp.2d 277, (D.Conn. 2009), the court employed a similar analysis in the preliminary injunction context, stating “the plaintiffs do not appear likely to prevail in their arguments that Quinnipiac cannot ‘triple count’ its women track athletes .... Cross country, indoor track, and outdoor track have separate NCAA championships and are, at their heart, different sports.” Id. at 295.
Moreover, the Equity in Athletics Disclosure Act (EADA), 20 U.S.C. § 1092(g) similarly requires institutions to report participation numbers on a team by team basis as part of an annual report that must be filed with the DOE. 20 U.S.C. § 1092( g)(1)(B)(i). Although not identical, the regulations *10 implementing the EADA define the term “participants” in a manner that is similar to the Policy Interpretation. 34 CFR §668.47(b)(3).
Educational institutions across the country understand and report participation on this basis. The panel's holding injects a serious conflict into that previously settled understanding. The exceptional importance of this issue cannot be understated. The opinion raises doubt about a previously settled manner in which schools nationwide have been determining their Title IX compliance. The Court should grant rehearing en bane to settle this issue before it roils the operations of our nation's schools.
The district court case cited by the panel, Cohen v. Brown Univ., 809 F. Supp. 978, 991 (D.R.I. 1992), aff'd 991 F.2d 888 (1st Cir. 1993), does not support its conclusion that addition of the indoor track team should not be counted toward Option Two compliance. On the contrary, in Cohen, the district court acknowledged winter track was added 10 years prior to the commencement of the litigation, but concluded the university had failed to establish the requisite program expansion because the only previous expansion occurred in the 1970's. This decision was issued four years before the 1996 Clarification. Accordingly, in its second decision on this case in 1996, the First Circuit focused its attention on the number of participants on each team (without discounting multiple sport athletes). Cohen, 101 F.3d at 173.
The panel made further errors that have broad significance in its analysis of the University's 2003 addition of a golf team. The panel discounted the addition on the grounds that “the fact that there were no women currently attending the University who were interested enough in golf to participate at the club level or to request varsity status suggests that the addition of golf instead *11 of field hockey, bowling, horse polo or rugby was not ‘demonstratively responsive’ to the interests of current female students.” (Op. 21) The panel said the golf addition was not expansion because “the University's selection of golf, which added only seven participation opportunities for women, was at odds with its stated priority of taking a significant step toward overall gender equity. Elevating horse polo, rugby or field hockey would have added far more female varsity athletes.” (Op. 22)
The definition of “developing interests” is not so narrow as construed by the panel. The 1996 Clarification states: “Developing interests include interests that already exist at the institution. [footnote omitted].” Addendum to AB, p. 20). “[I]nclude” is not the same as “are” or “limited to.” While an Option Two analysis should consider interests expressed on campus, in the Clarification OCR was clear that such interests are not the only factor: “In addition [to campus based interests], OCR will look at participation rates in sports in high schools, amateur athletic associations, and community sports leagues that operate in areas from which the institution draws its student in order to ascertain likely interest and ability of its students and admitted students in particular sport(s).” (Addendum to AB, p. 23).
Consistent with this approach, three examples of acceptable program expansion that OCR provided include the addition of sports based in whole or in part on national trends or surveys. (See: Discussion of “Institution C”: adding a team based on a request and an NCAA survey showing increased high school participation in the sport; “Institution E”: adding sport based on nationwide survey of most popular sports, and “Institution F”: adding a sport based on survey of current and admitted students and a regional survey of most *12 popular sports). (Addendum to AB, p. 21-22). In Cohen, the First Circuit also held that a university may consider interests from outside the campus to inform its pro-

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gram expansion. 991 F.2d at 898 (“For example, so long as a university is continually expanding athletic opportunities in an ongoing effort to meet the needs of the underrepresented gender, and persists in this approach as interest and ability levels in its student body and secondary feeder schools rise, benchmark two is satisfied...”).
The panel made no mention of the factors considered by Athletic Director Warzecka in recommending the addition of golf over other proposed sports, which included numerous expressions of interest in golf from high school students, the existence of an NCAA championship, and the vast number of universities that offered women's golf which provided sources for competition. (ER 4677:22-27; 4784:1-4685:6; 5262-5263)
The panel's undue emphasis on campus interest conflicts with the principles previously articulated by OCR. The same is true of the panel's statement that the University should have added a sport with a greater number of roster spots than golf. Option Two only requires continuous expansion that is responsive to the developing interests and abilities of the underrepresented sex. It does not require that expansion be achieved by adding the sport with the largest roster or by elevating an existing club team. The fact that addition of a large roster sport may boost proportionality compliance under Option One is not a consideration for Option Two compliance because the two tests are distinct alternatives.
The panel's analysis of the golf expansion conflicts with one of the most important precepts of Option Two. As Norma Cantu, Assistant Secretary for *13 Civil Rights, emphasized in a letter that accompanied the 1996 Clarification, Option Two affords a university broad flexibility to decide how best to comply with the law: “the Clarification does not provide strict numerical formulas or ‘cookie cutter’ answers... Such an effort would not only belie the meaning of Title IX, but would at the same time deprive institutions of the flexibility to which they are entitled when deciding how best to comply with the law.” (Addendum to AB, p. 15. The Clarification also recognizes that an institution may heed the views of its coaches and other leaders: “OCR will look for interest by the underrepresented sex as expressed through the following indicators, among others: ...interviews with students, admitted students, coaches, administrators and others regarding interest in particular sports; ...” (Id. p.23).
As the Clarification recognizes, to achieve Title IX's salutary goals schools must be free to expand athletic programs by choosing sports that are viable, have sufficient local intercollegiate competition, and respond to expressions of interest. The addition of golf in 2003 is an example of this. The panel's opinion, by contrast, encourages universities not to be truly “responsive” or innovative, but rather to look to roster size only when considering the addition of a new sport. That shadow that the panel's opinion casts over Title IX flexibility adds to the exceptional importance of the issues presented, and warrants rehearing en banc.
Finally, the panel's opinion creates further conflicts and confusion because it conflates Option Two with the other alternative Options for establishing compliance. Option Two is not measured against the relative percentages of females participating in athletics as a percentage of their *14 undergraduate enrollment, as the panel erroneously suggested. (Op. 18). This statistical assessment relates to a proportionality determination under Option One. Option Two, by contrast, is based on steady progress in a university's offerings for the underrepresented sex. As the First Circuit explained in Cohen, “[t]he second and third parts of the accommodation test recognize that there are circumstances under which, as a practical matter, something short of this proportionality is a satisfactory proxy for gender balance. For example, so long as a university is continually expanding athletic opportunities in an ongoing effort to meet the needs of the underrepresented gender, and persists in this approach as interest and ability levels in its student body and secondary feeder schools rise, benchmark two is satisfied and Title IX does not require that the university leap to complete gender parity in a single bound.” Cohen, 991 F.2d at 898.
Because there are relatively few decisions applying an Option Two analysis, the panel's erroneous conflation of the Option One and Two analyses poses a problematic risk of unsettling the law in this area. This is another reason why rehearing en banc is warranted.
IV. THE PANEL SHOULD REHEAR THIS MATTER TO FURTHER CONSIDER ITS OPTION TWO ANALYSIS

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At a minimum, the panel should grant rehearing to clarify some of the above points. Due to the lack of plenary briefing on the issue, the Court did not have before it many of the above points. Nor does the opinion mention important undisputed summary judgment evidence, such as the evidence explaining that the fluctuations in the number of female participants was *15 connected directly to the elimination of junior varsity or “B” program for water polo years after other institutions had taken that action and available competition for that team had gradually disappeared, or the fact that the 1996 Clarification expressly recognizes that a school can still comply with Option Two even if it eliminates a sport. (ER 4747:22-4748:22; Addendum to AB, p. 21)
The opinion also is internally inconsistent. For example, the panel relied upon the reports submitted by the University under the EADA in concluding there was data demonstrating the University could not satisfy the substantial proportionality prong. Thus, the panel implicitly accepted the well established version of “participation” in that portion of the decision discussing the notice issue. (Op. 14) The EADA reports list male and female athletes as participants for each team on which they competed (including both indoor and outdoor track). The panel's later conclusion that the addition of indoor track does not constitute program expansion because the student-athletes already participate in another sport is internally inconsistent with its reliance upon the traditional notion of “participation” as contained in the EADA reports.
When all of the undisputed evidence is considered, against the correct legal standards, the University's program compares favorably to the example OCR gave in its 1996 Clarification of a compliant program. See example quoted pp. 6-7, ante. But regardless of what the panel concludes about the propriety of summary judgment on this issue, the panel should at least consider whether any of the above noted points warrant modification of the opinion-irrespective of whether the modification changes the outcome.
*16 There are only a few cases that have conducted a thorough Option Two analysis, and the points of law discussed above are central to how many educational institutions measure Title IX compliance. Because these points are important to the operations of the entire University of California system, as well as that of many other schools, the University appreciates this opportunity to present the above points, which were not fully covered in the briefing in this appeal. The University respectfully requests that the panel consider whether these points warrant further rehearing or any modification of the opinion.
V. CONCLUSION
The petition should be granted.
Arezou MANSOURIAN, et al., Plaintiffs-Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants-Appellees. 2010 WL 1232003 (C.A.9 ) (Appellate Brief )
END OF DOCUMENT

 
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United States Court of Appeals, Ninth Circuit. Arezou MANSOURIAN, et al., Plaintiffs/Appellants,
v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants/Appellees.
No. 08-16330. March 17, 2010.
On Appeal from the United States District Court for the Eastern District of California The Honorable Frank C. Damrell, Jr. presiding Eastern District Civil Case No. 03-cv-02591-FCD-EFB Date of Decision: February 8,2010 Judges: Schroeder, Berzon and Shadur
Appellants' Response to Respondent's Petition for Rehearing and Rehearing En Banc
James C. Sturdevant, SBN 94551, (jsturdevant@sturdevantlaw.com), Monique Olivier, SBN 190385, (molivier@sturdevantlaw.com), The Sturdevant, Law Firm, A Professional Corporation, 354 Pine Street, Fourth Floor, San Francisco, CA 94104, Telephone: (415) 477-2410, Facsimile: (415) 477-2420.Noreen Farrell, SBN 191600, (nfarrell@equalrights.org), Equal Rights, Advocates, 180 Howard Street, San Francisco, CA 94105, Telephone: (415) 621-0672, Facsimile: (415) 621-6744.Kristen Galles, SBN 148740, (kgalles@comcast.net), Equity Legal, 10 Rosecrest Avenue, Alexandria, VA 22301, Telephone: (703) 683-4491, Attorneys for Plaintiffs/appellants Arezou Mansourian, Lauren Mancuso, and Christine Wing-Sing.
*i TABLE OF CONTENTS
INTRODUCTION ... 1
ARGUMENT ... 3
I. THE COURT'S APPLICATION OF ESTABLISHED TITLE IX STANDARDS TO THIS FACT INTENSIVE RECORD IS SOUND AND DOES NOT WARRANT EN BANC REVIEW ... 3
A. UCD Fails to Demonstrate the Extraordinary Circumstances that Call for En Banc Review ... 3
B. The Court Properly Considered and Ruled on UCD's Alternative Grounds for Summary Judgment ... 4
C. The Court Properly Considered and Did Not Credit UCD's Claim on Summary Judgment that It Had “Added” an Indoor Track Team ... 5
D. There Is No Conflict with Any Appellate Decision Regarding the Court's Application of Title IX Standards ... 10
E. The Court Properly Considered and Rejected UCD's Claim on Summary Judgment that the Addition of Golf Was Responsive to the Developing Interests of Fem ale Students ... 11
II. UCD IS LIKEWISE NOT ENTITLED TO PANEL REHEARING ... 14
CONCLUSION ... 15
*ii TABLE OF AUTHORITIES

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FEDERAL CASES Barrett v. West Chester University of Pennsylvania, 2003 WL 22803477 (E.D. Pa. 2003) ... 9, 10 Biediger v. Quinnipiac University, 616 F. Supp. 2d 277 (D. Conn. 2009) ... 11 Cohen v. Brown University (Cohen I), 809 F. Supp. 978 (R.I. 1992), aff'd, 991 F.2d 888 (1st Cir. 1993) ... 2, 9, 11 Cohen v. Brown University (Cohen II), 991 F.2d 888 (1st Cir. 1993) ... 6, 10 Miller v. University of Cincinnati, 2008 WL 203025 (S.D. Ohio 2008) ... 11 Neal v. Board of Trustees, 198 F.3d 763 (9th Cir. 1999) ... 6, 10 Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993) ... 6, 9, 10 United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992) ... 3 Williamns v. School District of Bethlehem, Pennsylvania, 998 F.2d 168 (3d Cir. 1993) ... 10 FEDERAL STATUTES AND RULES 34 C.F.R. § 106.41(c) ... 6 § 106.41(c)(1) ... 6 Title IX of the Education Amendments of 1972; A Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 et seq ... 6 71,414 ... 10 Federal Rules of Appellate Procedure Rule 35 (a) ... 3 Rule 35(b) ... 3 *iii 9th Circuit Rule 35-1 ... 3 OTHER AUTORITY Clarification of Intercollegiate Athletic Policy Guideline: The Three Part Test (U.S. Dep't of Education 1996) ... 6, 9, 11, 13, 14, 15 INTRODUCTION

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On February 8, 2010, a panel of this Court determined that after over seven years in litigation, Plaintiffs - female athletes who simply wanted an opportunity to wrestle - are entitled to their day in court against Defendants, the Regents of the University of California and certain of its officials (“UCD”), for UCD's conduct in stripping Plaintiffs of their varsity status and depriving them of equal sports participation opportunities. The panel's decision simply remands the case to the district court for trial, but UCD seeks a further delay by erroneously claiming that the decision expressed “statements” that conflict with established Title IX standards and must be revisited. (Petition for Rehearing (“PFR”) 1.)
None of the issues raised by UCD demonstrates the exceptional circumstances that would warrant en banc review or panel rehearing. UCD does not argue that the decision presents any inter- or intra-circuit conflict. Indeed, it concedes that there is no appellate case law on the issues it argues here. Instead, UCD points to the very agency interpretation that the Court applied and argues that the Court got it wrong. Rehearing is not, however, a remedy for a party that merely does not like the outcome of a decision.
UCD's petition is framed by several fundamental misunderstandings regarding the posture of the case, the holdings of the Court, and the reach of this decision. The case came to this Court on review of an order granting summary judgment in favor of UCD on the basis that Plaintiffs were required, but failed, to give notice to UCD before seeking damages under Title IX. The Court reversed that order, and UCD does not seek review here of that determination.
Instead, UCD argues that the Court erred when it then considered and rejected UCD's own argument that summary judgment should be affirmed on the alternative ground that it was in compliance with Option Two of Title IX's three-part participation test because it proved a history and continuing practice of program expansion for female students. UCD's petition contends that the Court “held,” contrary to accepted Title IX standards, that program expansion must be measured by an increase in the number of female athletes as opposed to the number of participation opportunities, thus precluding an institution from double counting, i.e., counting an athlete that plays on two teams as two participation opportunities. But this Court made no such holding. Rather the Court properly applied the Title IX standards, as to which all parties and the panel agree, and held that UCD was not entitled to summary judgment because it failed to prove as a matter of law on an undisputed factual record that it has a history and continuing practice of program expansion for women's athletics. (Op. 2227.)
UCD concedes that the Court properly articulated the standards (PFR 1-2), but claims that it went awry by focusing on the number of athletes rather than the number of participation opportunities when it considered and rejected UCD's claim that the addition of a new indoor track team was evidence of program expansion. As UCD acknowledges, however, this argument presupposes that a new team was actually added. (PFR 2 (“[i]f a new team is added, the opportunities created by that addition count toward Option Two compliance”).) But the issue on this factual record was whether a new team was created or whether, as in Cohen v. Brown Univ. (Cohen I), 809 F. Supp. 978, 991 (R.I. 1992), aff'd, 991 F.2d 888 (1st Cir. 1993), UCD was improperly attempting to claim credit for a team, and thus participation opportunities, that did not exist. The issue was not, as UCD attempts to cast it now, how to count participation opportunities if there are in fact two teams. And it certainly was not, as amici would have this Court believe, a pronouncement that an institution can never double count athletes for purposes of compliance with Title IX's participation requirements.
The issue actually presented in UCD's petition, therefore, is not the appropriate legal standard to employ, but how that standard applies to the facts in the summary judgment record. Equally important is which version of the facts controls. While UCD clearly wants the Court to accept its version of the facts that it “added” an indoor track team and therefore “added” participation opportunities (as is apparent from its improper recitation of its version of the facts both in its Answering Brief on the merits and again in the petition), the operative facts are those in which all reasonable inferences favor Plaintiffs, the non-moving party.
What's more, UCD does not even attempt to argue that the grounds it raises here would change the outcome of this Court's decision. That is, even if the Court gave UCD “credit” for adding indoor track, that finding would not alter the

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ultimate conclusion that UCD failed to meet its burden on summary judgment.
The other arguments that UCD raises similarly do not justify review of the panel decision. Its claim that the decision conflates two parts of the three-part test is simply incorrect. Its claim that the addition of golf should be viewed as responsive to female student interest is another factual inquiry that does not raise a legal issue for this Court's reconsideration.
To the extent that UCD believes it has additional facts it can raise on its behalf at trial, nothing in the Court's decision precludes it from doing so. En banc review, however, should be reserved for fully developed legal conflicts, not the uniquely factual question this Court considered and addressed in its decision.
Plaintiffs are entitled to their day in court without further delay. The petition should be denied.
ARGUMENT
I. THE COURT'S APPLICATION OF ESTABLISHED TITLE IX STANDARDS TO THIS FACT INTENSIVE RECORD IS SOUND AND DOES NOT WARRANT EN BANC REVIEW.
A. UCD Fails to Demonstrate the Extraordinary Circumstances that Call for En Banc Review.
UCD has not and cannot demonstrate that: (1) consideration by the full court is necessary to secure or maintain uniformity of the court's decisions, or (2) the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a) & (b); 9th Cir. R. 35-1; United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc).
UCD concedes, as it must, that there is no conflict whatsoever between the panel *4 decision and any other appellate court decision. Instead, it claims that the panel decision “contradicts” two district court decisions and agency regulations interpreting certain Title IX standards and therefore presents “an issue of exceptional importance.” (PFR 1, 2.) Not only does UCD's argument reach well beyond circumstances where en banc review would be warranted, but it starts with the faulty premise that the panel decision conflicts with any published statutory, regulatory or other law construing the Title IX standards. There are no circumstances presented here that justify en banc review.
B. The Court Properly Considered and Ruled on UCD's Alternative Grounds for Summary Judgment.
Throughout its petition, UCD repeatedly suggests that it was inappropriate for the Court to consider and address whether UCD was entitled to summary judgment on the basis that it was in compliance with Option Two, claiming that the Court did not have the benefit of “plenary briefing.” (PFR 1, 14.) But in its Answering Brief, UCD itself urged that the Court affirm summary judgment on the alternate ground that it complied with Option Two. (Appellees' Answering Brief (“AAB”) 60.) In fact, although it sought supplemental briefing, UCD argued that it was in compliance with Option Two and also stated that “there is sufficient evidence in the record on which this Court may affirm the District Court's judgment in favor of Defendants other than on the notice issue.” (Id.) There is no credible dispute that the Court had the authority to consider and address UCD's alternative ground for summary judgment.[FN1]
FN1. Interestingly, UCD urged the Court on appeal to consider an issue - qualified immunity - that it was forced to concede neither party had the opportunity to brief in the district court. (See AAB 29,32-33.)
Moreover, the matter was fully briefed (with a factual record of over 5,000 pages) in the court below. Thus, this Court had the benefit of a complete factual and legal record on this issue as well as additional briefing on appeal. After a careful review, the Court held that UCD was not entitled to summary judgment on the alternative ground that it *5 complied with Option Two of the three-part test. (Op. 2227.) As demonstrated below, that conclusion was correct and

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in no way warrants rehearing.
C. The Court Properly Considered and Did Not Credit UCD's Claim on Summary Judgment that It Had “Added” an Indoor Track Team.
UCD's primary contention is that the Court, in discussing and applying Option Two of the three-part test to measure effective athletic accommodation, “made statements regarding how Title IX compliance is measured that disturb settled law and conflict with authoritative agency interpretations of Title IX.” (PFR 1.) The Court did no such thing. It thoughtfully and correctly applied the law to a full factual record presented to this Court on the de novo review of a summary judgment order.
UCD's argument is based primarily on this passage: UCD represents that it created another women's varsity team, indoor track, in 1999. The addition of indoor track, however, cannot be considered evidence of program expansion. It did nothing to expand the number of female athletes, as all the women participating in indoor track also participated in an existing varsity sport. See Cohen v. Brown Univ., 809 F.Supp. 978, 991 (R.I. 1992), aff'd, 991 F.2d 888 (1st Cir. 1993) (dismissing the alleged addition of winter track as “a sport that merely involved providing indoor space to the existing women's track team”).
(Op. 2229.) UCD claims that this language is a departure from settled law because it suggests that a school cannot count students who participate on two teams as separate participation opportunities for purposes of Title IX. Amici, the NCAA and a selection of colleges, take this one step further and argue that the decision lays down a rule of law that a university can never double count athletes (i.e., count an athlete who participates on two teams as two participation opportunities rather than one) for the purpose of determining compliance with Title IX's participation test.
But the Court's statement - made as part of a comprehensive Option Two analysis - does nothing of the sort. As the dense factual record demonstrates, the issue with respect to indoor track was not whether to count twice a student who participated in track and another team, but whether UCD in fact had an indoor track team, that offered any *6 additional participation opportunities.
In order to fully understand the Court's statement, a review of its complete analysis is necessary. Tellingly, there is no dispute between the parties, or the parties and the Court, about the appropriate analysis for an effective accommodation violation under Title IX. The Title IX regulations require institutions to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c). (Addendum to Appellants' Opening Brief (“AD”) 4.) The critical aspect of that requirement in this case is “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). (AD 4.)
Whether an institution has met its “effective accommodation” duty is determined using a three-part test drawn from the Department of Education's 1979 Policy Interpretation, 44 Fed. Reg. 71,413 et seq. (1979) (the “Policy Interpretation”) (AD 6-16), which is further explained in a 1996 Clarification (AD 17-29). The test provides institutions three options for demonstrating compliance with Title IX. In the district court and in this Court, UCD claimed to have satisfied Option Two by proving that it has a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of its female students.
The Court accurately set forth the legal framework in its decision. (Op. 2218-22.) Citing the 1996 Clarification, this Court noted that the focus is “on whether an institution has expanded the number of intercollegiate participation opportunities for women,” but provides institutions “flexibility” in choosing which teams are added,” and that the number of “participation opportunities” for women “is defined by the number of female athletes actually playing intercollegiate sports.” (Op. 2221.) That is, it is the number of actual “participation opportunities” that is key. All circuit courts discussing the legal standard for Option Two are in accord. See Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993) (citation omitted); Neal v. Bd. of Trs., 198 F.3d 763, 767-68 (9th Cir. 1999); Cohen v.

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Brown Univ. (Cohen II), 991 F.2d 888, 897-98 (1st Cir. 1993).
*7 In assessing compliance with Option Two, the Court followed the 1996 Clarification - which UCD agrees is controlling - and reviewed both UCD's history “of adding female participation opportunities” and its “current ‘plan of program expansion that is demonstrably responsive to the developing interests and abilities' of women.” (Op. 2227.) It also specifically considered and applied the factors identified in the Clarification for Option Two: UCD's record of adding women's intercollegiate teams; UCD's record of increasing the number of women participants on intercollegiate teams; and UCD's affirmative responses to requests by students or others for the addition or elevation of sports. (Op. 2227-28.)
It was in this context that the Court considered - and rejected - UCD's claim that it had offered undisputed facts on summary judgment providing that it created a women's indoor track team in 1999. The record supports that finding. First, UCD's athletics personnel offered contradictory statements about when, and if, indoor track was added. (See, e.g., ER 4289:2-13 (women's track coach believed indoor track season was added in 1994), 4302:6-21, 4305:20-25 (men's track coach testified that it was 1997), 4340:18-4341:2 (athletic director testified that it was 1997 or 1998).)
Second, UCD's own documents and testimony indicate that it treated indoor and outdoor track as one sport with an extended season. (ER 1208-09 ¶¶ 23-26, 2758-68, 4419:11-4424:5 (“they were saying that here at UC Davis, we treat it as kind of one budget, one sport”), 4306:9-10 (the season expansion was only approved if it did not require additional funds).) UCD publicized one track schedule with indoor and outdoor meets combined, and UCD's media guides treat indoor and outdoor track as one sport. (ER 4417:2-4418:2,2119-22; see also ER 2123-46.) UCD awarded only one grant-in-aid per athlete to cover both the indoor and outdoor season. (ER 4415:10-15, 4416:10-13.)
Third, UCD's facts at best demonstrated that the outdoor track season included some indoor track meets for some athletes because it increased the coaches' ability to *8 recruit athletes to the existing team and it was convenient, not because it increased athletic opportunities for women. (ER 4288:11-12, 4744:1-6, 1177-79 ¶ 120; see also ER 4413:22-4414:1.) In fact, UCD conceded that it did not follow its formal process for adding indoor track. (ER 4286:19-4289:1, 4289:17-22; see also ER 4304:17-4305:16, 4306:4-4307:7, 4308:4-4309:1,4438:15-4439:12.) Instead, the coach asked the athletic director to add some indoor track meets to the outdoor track season for some athletes. (ER 4286:19-4289:22,4304:17-4305:16, 4306:4-4307:7, 4438:15-4439:12.) The athletic director agreed, on the condition that any funding came from the already existing budget. (Id.)
It was upon this record, then, that the panel properly concluded that UCD's purported addition of indoor track “cannot be considered evidence of program expansion” and cited to Cohen, noting that in that case, the district court dismissed the alleged addition of winter track as “a sport that merely involved providing indoor space to the existing women's track team.” (Op. 2229.) Obviously, if indoor track was not a new team or new sport, it could not provide meaningful participation opportunities. (AD 24-26.)
Contrary to UCD's and amici's argument,[FN2] therefore, the decision does not announce a n ew or conflicting rule regarding duplicate counting. There simply was a factual dispute as to whether indoor track had been created as a new team offering new participation opportunities for women at UCD. In the end, what UCD really takes issue with is not a new rule of law, but the proper application of the law to the facts before the Court. This is precisely the type of issue - review of a factual record on summary judgment - that is not appropriate for en banc review.
FN2. Amici simply restate UCD's argument. Amici also did not have the benefit of knowing any of the factual record before submitting their brief.
This is particularly the case where, as here, UCD does not contend (nor could it) *9 that the Court's holding would be any different regardless of the outcome of any rehearing. The Court's statements with respect to indoor track were part and parcel of a comprehensive analysis of the entire history of UCD's athletics program as it pertains to participation

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opportunities for women. Even if UCD were to get “credit” for the addition of indoor track, the factual record on summary judgment was that UCD still did not have a history of expanding opportunities.
Between 1998 and 2005, female enrollment at UCD went from 10,596 to 12,834, adding over 2,200 women to UCD. (See ER 1209 ¶ 27.) At the same time, 63 female participation opportunities were dropped at UCD, a drop that UCD's expert conceded was “drastic.” (ER 1209 ¶¶ 27, 29.) By 2005, athletic participation for women, even including numbers for indoor track, was at the lowest point since 1997. (ER 1209 ¶ 27, 1091:18-1092:2, 1961.) It was during this time that UCD removed Plaintiffs from the wrestling team. These facts remain constant regardless of how this Court treats indoor track. Because UCD eliminated opportunities at a time when its record was at best stagnant, even under UCD's version of the facts, it is not entitled to summary judgment on the basis of Title IX compliance. (Op. 2230-31.) See AD 29 n.2; Barrett v. West Chester Univ. of Pa., 2003 WL 22803477, at *7 (E.D. Pa. 2003) (elimination of women's gymnastic team was evidence of non-compliance with part two); Cohen I, 991 F.2d at 897-98 (elimination of women's volleyball and gymnastic teams was evidence non-compliance with part two); Roberts, 998 F.2d at 828-30 (elimination of women's softball team was evidence of non-compliance with part two).
Finally, UCD's claim that the decision improperly considers the relative percentages of females participating in athletics as compared to their undergraduate enrollment as part of the Option Two analysis fails. (PFR 13-14.) Although proportionality is the hallmark of the Option One test, it does not stand to reason that it is not relevant to the Option Two inquiry. All three options in the three-part test have the same goal, that institutions provide equal participation opportunities to women. Option *10 One is essentially a statistical analysis: Does an institution provide athletic opportunities for male and female students that are substantially proportionate to their respective enrollments? An “athletic opportunity” under Option One is necessarily the same as an “athletic opportunity” under Option Two. And the 1996 Clarification specifically references the percentages of women participating in athletics as a measurement of Option Two compliance. (AD 25.) The Court properly considered the number of women students at UCD relative to the number of athletic opportunities as a measure of UCD's program expansion. Surely if the number of women enrolled at UCD dropped off sharply, UCD would claim a lesser burden in expanding women's athletics. UCD's suggestion to the contrary makes no sense.
In sum, the Court's decision does not set any higher or different bar for institutions seeking to comply with Title IX. An institution - and a court - must look at the athletic opportunities for women students overall, and must do so in the context of that particular institution's conduct.
D. There Is No Conflict with Any Appellate Decision Regarding the Court's Application of Title IX Standards.
UCD fails to identify a single appellate case that is at odds with the holding of this Court and would create an inter- or intra- circuit conflict justifying en banc review. Moreover, UCD ignores entirely the several circuit cases that discuss or apply the same Option Two legal analysis that the Court employs here. See Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 176 (3d Cir. 1993) (Title IX requires “continued affirmative steps” by institutions to achieve equity, which “ ‘ [i]n most cases ... will entail development of athletic programs that substantially expand opportunities for women to participate and compete at all levels' ” (quoting Policy Interpretation, 44 Fed. Reg. at 71,414 (AD 7))); see also Roberts, 998 F.2d at 828-30; Neal, 198 F.3d at 767-68; Cohen II, 991 F.2d at 897-98; Barrett, 2003 WL 22803477, at *7. The only cases upon which UCD relies for its “conflict” argument are two district court cases presenting entirely *11 different issues and facts than are present here.
The case of Miller v. Univ. of Cincinnati, 2008 WL 203025 (S.D. Ohio 2008) is an unpublished district court case that considered whether a university was in compliance with Option One of the three-part test. The only evidence before the court was the university's roster statistics. Plaintiffs argued that the university should be required to count an athlete only once regardless of how many different sports she plays. Id. at *7. The court disagreed. The court also rejected plaintiffs' argument that track and field should be counted as one sport, rather than broken out into separate sports. Because plaintiffs offered no evidence on this point, the court relied solely upon statements from the Department of Education, rather than any evidence specific to any circumstances at the university, to reach its conclusion.

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Id.
In Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009), the court made no finding regarding duplicated counting. In dicta, it noted that plaintiffs did “not appear likely to prevail” in the argument that the university cannot use duplicated counting. As in Miller, the court did not look to any evidence specific to the university's program but instead made generalized statements that indoor track, outdoor track, and cross-country are different sports. Id. at 295.
The difference between these cases and the case here underscores the intensely factual nature of inquiry. As the 1996 Clarification explains, the goal of the three-part test is to ensure that an institution complies with Title IX by providing meaningful athletic participation opportunities to women. (See AD 29 n.2.) Whether or not a team was actually added, and opportunities actually provided, is plainly a question of fact that will vary by institution. See, e.g., AD 24-26; Cohen I, 809 F. Supp. at 981-82.
E. The Court Properly Considered and Rejected UCD's Claim on Summary Judgment that the Addition of Golf Was Responsive to the Developing Interests of Female Students.
UCD tries to foment yet another “conflict” to entice en banc review by claiming that the Court improperly discounted UCD's addition of its women's golf team in 2003. *12 As with its indoor track argument however, the full record discloses that there was a factual dispute as to whether the addition of golf was, as Title IX requires, demonstrably responsive to the developing interests of female students. UCD was not entitled to the inference it seeks.
The 1996 Clarification states that the focus of an Option Two analysis “is on whether the program expansion was responsive to developing interests and abilities of the underrepresented sex.” (AD 24.) UCD argues that the Court construed “developing interests” too narrowly to include only interests that already existed at UCD, instead of also considering UCD's evidence that golf was popular among high school students and had competition among other universities and an NCAA championship. (PFR 11-12.) UCD also claims that the Court improperly looked at the small size of the golf team in considering UCD's current plan of expansion. Neither contention is correct.
Again, the facts are instructive, and dispositive. In determining whether the addition of golf was demonstrably responsive to student interest, the Court noted the following: UCD had a process for adding varsity teams that is consistent with what the Title IX regulations and agency interpretations suggest is necessary. (Op. 2231.)[FN3] In 2003, it received, pursuant to that process, applications from four women's club sport teams seeking elevation to varsity status, including field hockey, which had also sought but was denied varsity status in 1995. Field hockey's application in 2003 was again denied, even though in 1995 UCD's Title IX advisory group had noted that field hockey had “strong interest from students,” was “a relatively strong NCAA sport,” and was “a prime candidate for addition to the ICA program in the future.” (Op. 2232.) In fact, UCD rejected all club sport applications and instead picked golf, for which there was no club sport team and no student request for varsity status, at the behest of the men's golf *13 coach. (Id.) In addition, golf added only seven opportunities for women athletes, whereas any of the other pre-existing club teams that applied for varsity status would have added considerably more participation opportunities. (ER 1208 ¶ 22, 1212 ¶40.)[FN4]
FN3. UCD touted that process as being responsive to student interest because it involved having students submit applications for varsity status. (See ER 1177 ¶ 118,1179 ¶ 122.)
FN4. The golf application was completed by the UCD administration. (ER 1211 ¶ 39.) A full year of off-campus recruitment was required before UCD could field a golf team. (ER 1211 ¶¶ 38-39.) Although UCD claimed that golf was selected to comply with a Big West Conference rule, that selection criterion was never communicated to applicants for varsity status. (ER 1211 ¶ 38.) UCD admitted that it deviated from its selection criteria for new sports when it added golf. (ER 1177-79 ¶ 122.)
The Court correctly applied the law to these facts in determining that UCD failed to demonstrate that the addition of

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golf was demonstrably responsive to student interest. As an initial matter, UCD relies upon language regarding “developing interests” in the agency interpretation that addresses the third part of the three-part test, not Option Two. (PFR at 11; AD 27.) Moreover, the Court properly recognized that current student interest is one, but not the only, factor to consider in addressing an institution's responsiveness to allow institutions flexibility in their approach. (AD 24-26.) This Court, in fact, considered those factors. It found that although universities are free to consider applications from individuals other than students and to evaluate high school as well as current student interest, the fact that there was no student interest in varsity (or even club) golf at a time when there was significant interest in several other sports suggested that adding golf was not a response to female student interest. (Op. 2232.) The Court noted the small number of opportunities added by golf only in light of UCD's stated priority of improving gender equity through its varsity elevation process, not as an independent test of Option Two compliance. (Op. 2231, 2233.)
In contrast to the factually sensitive inquiry in which the Court engaged, UCD asks for rehearing to establish bright line rules that a court in addressing Option Two compliance: (1) cannot place “undue emphasis” (whatever that means) on current student interest; and (2) cannot consider the number of participation opportunities *14 provided by the addition of a sport. (PFR 12.) Such legal rulings would only impede the accurate assessment of whether an institution's program expansion is “responsive to developing interests and abilities of the underrepresented sex.” (AD 24.)[FN5]
FN5. UCD quotes the letter that accompanied the 1996 Clarification to stress that flexibility is required, but tellingly leaves out the statement that these issues are “inherently case-and fact-specific.” (PFR 13; AD 18.)
Moreover, as with UCD's indoor track issue, rehearing or review of the Court's treatment of golf would not yield a different holding. Nor would it have any legal significance beyond this case. The summary judgment record discloses that between 1976 and 1995, UCD dropped two women's sports and added only one (ER 1207-1208 ¶¶ 17-20, 1276 ¶ 116), thus failing to demonstrate a history of program expansion. Although UCD expanded opportunities for women in 1995, it then waited ten more years before adding golf during which time women's wrestling was cut, thus failing to demonstrate a history or continuing practice of program expansion. (See AD 26; see also ER 3246:3-3247:4 & 3436:4-17 (both parties' Title IX experts agree that an institution must add participation opportunities every two to three years).) Thus even if UCD is given “credit” for adding golf, the Court's holding that UCD failed to present undisputed facts to compel summary judgment in its favor would remain unchanged.
II. UCD IS LIKEWISE NOT ENTITLED TO PANEL REHEARING.
Panel rehearing is also not warranted by any of the issues raised by UCD. As demonstrated above, the Court's legal analysis was correct. To the extent that UCD is arguing that panel rehearing is justified because material facts were overlooked (PFR 14-16), UCD fails to appreciate that it is not entitled to this Court's consideration of the version of facts favoring UCD on review of a summary judgment motion. All of its arguments cannot prevail against that standard.
Its argument that the Court fails to “mention important undisputed summary judgment evidence” is of no moment. (PFR 14.) Similarly, its claim that the decision is *15 internally inconsistent because it views the EADA reports differently for Option One and for Option Two is without merit. (PFR 15.) UCD conceded that it was not in compliance with Title IX by using Option One. (AAB 15-16 & n.8, 58.) That UCD listed indoor track on its EADA reports, in any event, simply begs the question in light of the full factual record as to whether UCD added indoor track as a new sport.
UCD invited the Court to affirm on the alternative ground that, as a matter of law, it complied with Option Two of the three-part test. The Court properly found that the “record before us does not contain undisputed facts showing a history and continuing practice of program expansion that is responsive to women's interests.” (Op. 2233.) UCD is not entitled to rehearing because it is unhappy with that result.
CONCLUSION

2010 WL 1232004 (C.A.9)

Page 10

Plaintiffs filed this case more than seven years ago. This panel correctly concluded that the case must be remanded for trial, a holding that UCD does not contest. Dissatisfied with the result it obtained, UCD now seeks a second bite of the apple by claiming that the Court issued a new and conflicting rule of law. But UCD has failed to identify any basis for en banc review or for panel rehearing. Its petition should be denied.
Arezou MANSOURIAN, et al., Plaintiffs/Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants/Appellees. 2010 WL 1232004 (C.A.9 ) (Appellate Brief )
END OF DOCUMENT

 
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United States Court of Appeals, Ninth Circuit.
Arezou MANSOURIAN; Lauren Mancuso; Christine Wing-Si Ng, Plaintiffs-Appellants, v.
REGENTS OF the UNIVERSITY OF CALIFORNIA, University of California at Davis; Lawrence Vander-
hoef; Greg Warzecka; Pam Gill-Fisher; Lawrence Swanson, Defendants-Appellees.
No. 08-16330. Argued and Submitted Oct. 8, 2009.
Filed February 8, 2010. Amended April 20, 2010.
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.FN1 The plaintiffs participated in varsity wrestling and enjoyed the benefits associated *962 with varsity status: training, coaching, and laundry services; academic tutoring; insurance; and access to varsity facilities and equipment.FN2 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.
FN1. Nancy Chiang, an additional plaintiff named in the complaint, was on a leave of absence from UCD when the complaint was filed. She dismissed her claims in June 2007. Mansourian, Ng, and Mancuso graduated from UCD during the course of the litigation.
FN2. UCD disputes the very existence of a women's varsity wrestling program, insisting that the plaintiffs were merely “permitted to practice with the wrestling team.” UCD acknowledges, however, that the plaintiffs “participated in wrestling” and that Mansourian, at least, was “on the wrestling team roster” and received varsity-associated benefits. Moreover, UCD listed four female varsity wrestlers in its 1999-2000 athletics report pursuant to the Equity in Athletics Disclosure Act, 20 U.S.C. § 1092(g). Viewing the facts in favor of the plaintiffs on UCD's motion for summary judgment, we conclude that the plaintiffs were varsity wrestlers for purposes of Title IX.

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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),FN3 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.
FN3. OCR is the division of the United States Department of Education charged with enforcing Title IX.
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. FN4
FN4. The Title IX claims are asserted only against the university. The individual defendants are Larry Vanderhoef, University Chancellor; Greg Warzecka, Athletic Director; Pam Gill-Fisher and Lawrence Swanson, Associate Athletic Directors; and Robert Franks, Associate Vice Chancellor for Student Affairs. We refer to the individual defendants and the University collectively as “UCD.”
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 *963Middlesex 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 [1] 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).
[2] 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 “[a]ll 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 ap-

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parent 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.
[3] 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.FN5 See, e.g., *964McQuillion 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).
FN5. The parties did not inform this court before oral argument that (1) the putative additional plaintiffs had also all graduated and (2) those plaintiffs had settled their separate lawsuit for class injunctive relief and were awaiting approval of that settlement by

the district court. We as judges take our responsibilities seriously, preparing carefully before argument on all issues presented in the briefs. Where, as here, the complexion of the case has entirely changed while the appeal is pending, counsel for both parties have an obligation to so inform the court. That is so even if a party believes it has a basis for arguing that the issue should still be decided.
No such notice of changed circumstances was given here. Instead, the panel learned only at argument that Brust, Ludwig, and Bulala had graduated, and learned only after independent post-argument research that there was a motion pending, to be heard in a matter of days, for approval of a settlement for broad-ranging injunctive relief in the Brust litigation.
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
[n]o 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 activity receiving Federal financial assistance.
20 U.S.C. § 1681(a). As applied to intercollegiate athletics, the Department of Education's Title IX regulations interpret the statute as requiring funding recipients to “provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c).FN6
FN6. The existence of a private right of action to enforce Title IX is well-established and not at issue in this case. See Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).
[4][5] The regulations establish two components of Title IX's equal athletic opportunity requirement: “effective accommodation” and “equal treatment.” “Effective accommodation” Title IX requirements derive from the Title IX regulation at 34 C.F.R. § 106.41(c)(1), which bases Title IX compliance in part on whether “the selection of sports and levels of competition effectively accommodate the interests

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and abilities of members of both sexes.” FN7 The “equal treatment” Title IX standard, in contrast, derives from 34 C.F.R. § 106.41(c)(2)-(10), which has been interpreted by OCR to require “equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided male and female athletes.” FN8 Department of Education Office*965 for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Clarification) (1996), available at http:// www. ed. gov/ about/offices/list/ocr/docs/clarific .html. Effective accommodation claims thus concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics. See McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 299 (2d Cir.2004) (holding that a competition schedule permitting male but not female high school soccer players to participate in state and regional championships deprived female players of equal treatment under Title IX); see also Pederson v. La. State Univ., 213 F.3d 858, 865 n. 4 (5th Cir.2000) (explaining the relationship between effective accommodation and equal treatment claims); Boucher v. Syracuse Univ., 164 F.3d 113, 115 n. 1 (2d Cir.1999) (same). So “an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes,” even if the benefits provided athletes of both sexes are equivalent. Kelley v. Bd. of Trs., 35 F.3d 265, 268 (7th Cir.1994); see also Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir.1993); Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir.1993).
FN7. “Effective accommodation” as a doctrine within Title IX jurisprudence is analytically distinct from similarly titled doctrines under other statutes-for example, the obligation to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” under the Americans with Disabilities Act, 42 U.S.C. § 12112(b)(5).
FN8. The regulation requires OCR to consider, in assessing whether equal opportunities are available to students of both sexes:
The provision of equipment and supplies; [s]cheduling of games and practice time; [t]ravel and per diem allowance;

[o]pportunity to receive coaching and academic tutoring; [a]ssignment and compensation of coaches and tutors; [p]rovision of locker rooms, practice and competitive facilities; [p]rovision of medical and training facilities and services; [p]rovision of housing and dining facilities and services; [p]ublicity.
34 C.F.R. § 106.41(c).
[6] Whether a funding recipient has met its “effective accommodation” obligation is determined using a “three-part test” drawn from OCR's 1979 Policy Interpretation, 44 Fed.Reg. 71,413 (Dec. 11, 1979), and further elaborated in OCR's 1996 Clarification.FN9 Congress has specifically authorized OCR to promulgate regulations governing intercollegiate athletics, FN10 see Pub.L. No. 93-380, § 844, 88 Stat. 612 (1974), and the resulting three-part test gives universities three options for demonstrating compliance with Title IX: (1) showing substantial proportionality (the number of women in intercollegiate athletics is proportionate to their enrollment); (2) proving that the institution has a “history and continuing practice of program expansion” for the underrepresented sex (in this case, women); or (3) where the university cannot satisfy either of the first two options, establishing that it nonetheless “fully and effectively accommodate[s]” the interests of women. 44 Fed.Reg. 71,418.
FN9. We and other circuits have held that both the Policy Interpretation and the Clarification are entitled to deference under Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). See Neal v. Bd. of Trs., 198 F.3d 763, 770, 771 (9th Cir.1999); accord Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir.2002); Kelley, 35 F.3d at 270-71; Cohen, 991 F.2d at 896-97.
FN10. “Intercollegiate” refers to varsity and junior varsity teams, as opposed to club or intramural teams, which do not receive coaching or athletic scholarships and other benefits listed in the regulations. See supra

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note 8.
[7][8] Funding recipients can satisfy any of the three options to comply with Title IX. UCD claims to have satisfied the second option by showing a history and continuing practice of program expansion.FN11 Compliance with this option “focuses on whether an institution has expanded the number of intercollegiate participation opportunities” for women, but provides institutions “flexibility in choosing which teams [they] add[ ].” Clarification nn. 2-3. The number of “participation opportunities”*966 for women is defined by the number of female athletes who actually participate in varsity athletics, except that athletes who participate in more than one sport are counted as a participant for each sport they play.FN12
FN11. The record does not demonstrate that UCD has complied with either Option One or Option Three, and UCD does not contend that it has.
FN12. Some language in the Clarification suggests that the unduplicated count of female athletes is relevant in assessing Title IX compliance. For example, hypothetical Institution C and Institution E comply with Option Two because their “addition of teams resulted in an increased percentage of women participating in varsity athletics.” But the Clarification elsewhere states that participation opportunities are the relevant metric, and that a student who plays two varsity sports represents two participation opportunities, so we assume that the sentence quoted means to refer to female participation opportunities, not individual women. Similarly, although this opinion sometimes for brevity refers to the number of “female athletes” at UCD for the purposes of Option Two compliance, we are always referring to participation opportunities, a number in which some female athletes count twice. We also count participation opportunities, not individuals, when comparing the number of “athletes” to overall student enrollment.
The district court determined that the plaintiffs had adequately pleaded a claim for effective accommodation under Title IX by alleging that UCD “chooses to make fewer athletic participation oppor-

tunities [available] to female students than to male students.” The district court did not, however, reach the merits of whether UCD complied with Option Two, instead concluding that “money damages cannot be awarded unless a plaintiff has given notice of and an opportunity to rectify the specific violation alleged by a Title IX plaintiff.” Finding that the plaintiffs had failed to provide such notice, the district court granted summary judgment to UCD.
This circuit has yet to address whether any such requirement applies in the athletics context. We conclude that it does not.
UCD's notice argument, adopted by the district court, proceeds by analogy to the Supreme Court's holding that notice and an opportunity to cure a violation is an essential precursor to a sexual harassment suit for damages under Title IX. We therefore begin by discussing the pertinent Title IX sexual harassment cases. As will appear, the analogy between this case and those is not apt.
The starting point for this inquiry is Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), in which the defendant school district was aware of a teacher's sexual harassment of a student but took no action to stop it. The Court recognized that Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28-29, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), precludes the award of damages for unintentional violations of statutes, like Title IX, enacted pursuant to Congress's spending authority. See Franklin, 503 U.S. at 74, 112 S.Ct. 1028. Franklin held, however, that the failure to halt harassment of which a school district is aware constitutes intentional discrimination for which monetary damages are an appropriate remedy. Id. at 75-76, 112 S.Ct. 1028.
[9] Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), further defined the scope of a school's monetary liability under Title IX for inaction in the face of serious sexual harassment. In Gebser, the Court held that principles of respondeat superior and constructive notice are inadequate to impose Title IX liability on a school district for a teacher's sexual abuse of a high school student. Id. at 285, 118 S.Ct. 1989. Noting that Title IX's express enforcement scheme, termination of federal funding, requires “an

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opportunity for voluntary compliance” before suspending or terminating funding, see *96720 U.S.C. § 1682, Gebser held that the judicially implied private right of action similarly should not impose liability “without regard to the recipient's knowledge or its corrective actions upon receiving notice.” Id. at 289, 118 S.Ct. 1989. Monetary damages premised on constructive notice or respondeat superior for sexual harassment, the Court held in Gebser, would entail a risk that “the recipient of funds was unaware of the discrimination.” Id. at 287, 118 S.Ct. 1989. Rather,
in cases like this one that do not involve official policy of the recipient entity, ... a damages remedy will not lie under Title IX unless an official who ... has authority to address the alleged discrimination and to institute corrective measures ... has actual knowledge of discrimination ... and fails adequately to respond.
Id. at 290, 118 S.Ct. 1989 (emphasis added).
[10][11] Critically for present purposes, Gebser does not make pre-litigation notice of an alleged violation a prerequisite to recovery in every Title IX case, or even in every sexual harassment case. Proof of actual notice is required only when the alleged Title IX violation consists of an institution's deliberate indifference to acts that “do not involve official policy of the recipient entity.” Id. In sexual harassment cases, it is the deliberate failure to curtail known harassment, rather than the harassment itself, that constitutes the intentional Title IX violation.FN13 See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 641, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (holding that Gebser permits the plaintiff “to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools.”). The Tenth Circuit has held that a corollary of this principle is that where the official policy is one of deliberate indifference to a known overall risk of sexual harassment, notice of a particular harassment situation and an opportunity to cure it are not predicates for liability. See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir.2007).FN14
FN13. The harassment itself may be actionable under state law or 42 U.S.C. § 1983. Gebser, 524 U.S. at 292, 118 S.Ct. 1989.
FN14. Simpson concerned two female Uni-

versity of Colorado (CU) students sexually assaulted by football players and high school football recruits. The Tenth Circuit held that Gebser's notice standard did not apply. The record supported the finding that the head football coach was aware of “the serious risk of sexual ... assault during college-football recruiting efforts [and] that such assaults had indeed occurred during CU recruiting visits,” Simpson, 500 F.3d at 1184, and that, although the Boulder District Attorney's office had recommended a policy to curb such assaults after a previous incident involving recruits, the policy was not followed and CU continued to sponsor an “unsupervised player-host program to show highschool recruits „a good time.‟ ” Id. The court held this sequence of events satisfied the “official policy” element of Gebser and that a woman assaulted thereafter need provide no separate notice and opportunity to cure before filing suit.
Consistent with the reasoning underlying Gebser, the Supreme Court has made clear that no notice requirement is applicable to Title IX claims that rest on an affirmative institutional decision. Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005), held that a high school athletics coach fired in retaliation for complaining about discrimination in athletics funding had a private right of action under Title IX. The Court held that no pre-litigation notice is required in the retaliation context. In Gebser and Davis, the Court stated, “we emphasized that [the notice] limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute.” Id. at 182, 125 S.Ct. 1497 (quotation omitted). As retaliation is “easily attributable to the *968 funding recipient and it is always-by definition-intentional,” id., the Court allowed Jackson's retaliation claim to proceed without regard to whether adequate pre-litigation notice and opportunity to cure the violation had been provided.
[12] Universities' decisions with respect to athletics are even more “easily attributable to the funding recipient and ... always-by definition-intentional,” id. at 183, 125 S.Ct. 1497, than the retaliation in Jackson. Institutions, not individual actors, decide how to allocate resources between male and female athletic teams. Decisions to create or eliminate teams or to add

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or decrease roster slots for male or female athletes are official decisions, not practices by individual students or staff. Athletic programs that fail effectively to accommodate students of both sexes thus represent “official policy of the recipient entity” and so are not covered by Gebser's notice requirement. Gebser, 524 U.S. at 290, 118 S.Ct. 1989.
Moreover, a judicially imposed notice requirement would be superfluous in light of universities' ongoing obligations to certify compliance with Title IX's athletics requirements and to track athletics gender equity data. OCR regulations require funding recipients to evaluate their policies and certify, as a condition for receiving funds, that they are “tak[ing] whatever remedial action is necessary ... to eliminate ... discrimination.” 34 C.F.R. § 106.4; see also id. § 106.3. UCD and other funding recipients therefore have an affirmative obligation to ensure compliance with at least one prong of the three-part effective accommodation test.
The Equity in Athletics Disclosure Act (EADA) further requires federally funded universities to report to the Department of Education and make available to students the number of undergraduates and athletes, broken down by sex, as well as sex-segregated data on operating expenses, coach salaries, athletic scholarships, recruiting expenditures, and revenues. 20 U.S.C. § 1092(g). UCD's EADA reports contain ample data demonstrating that it could not satisfy the substantial proportionality option and that the trend of increasing female athletic participation reversed after 2001, indicating that UCD may not have had a continuing practice of program expansion. Thus, where the alleged harm is unequal provision of athletic opportunity, the notice requirement would not supply universities with information of which they are legitimately unaware. See Gebser, 524 U.S. at 289, 118 S.Ct. 1989.
[13] We conclude for these reasons that pre-litigation notice and opportunity to cure is not necessary in cases alleging unequal provision of athletic opportunities in violation of Title IX. Applying the notice requirement to institutional decisions would contravene the clear language of Gebser and its progeny. It would also be inconsistent with funding recipients' affirmative obligations to provide nondiscriminatory athletic participation opportunities and continually to assess and certify compliance with Title IX.

The Fifth Circuit has reached the same conclusion we do, holding that
the requirement in the sexual harassment cases-that the academic institution have actual knowledge of the sexual harassment-is not applicable for purposes of determining whether an academic institution intentionally discriminated on the basis of sex by denying females equal athletic opportunity.... In the instant case, it is the institution itself that is discriminating.
Pederson, 213 F.3d at 882. The Eighth Circuit, the only other circuit to address the issue, has assumed, without any analysis, that Gebser's notice requirement applies equally to Title IX cases where plaintiffs allege discrimination in the administration of an athletic program. *969 Grandson v. Univ. of Minn., 272 F.3d 568, 575 (8th Cir.2001). But the plaintiffs in Grandson did not argue otherwise, id., and the Eighth Circuit reached the merits of a later Title IX athletics case without mentioning Grandson, Gebser, or the notice requirement. See Chalenor, 291 F.3d 1042. It is therefore far from clear that Grandson is controlling even in the Eighth Circuit. If it is, then the circuits are already split on the issue, and we find the Fifth Circuit's holding (and that of the Tenth Circuit in Simpson, on a different but related issue) the more persuasive, for reasons already surveyed.
[14] We therefore join the Fifth Circuit in holding that Gebser's notice requirement is inapplicable to cases alleging that a funding recipient has failed effectively to accommodate women's interest in athletics. The district court's decision granting summary judgment on that basis is reversed.
[15] UCD also moved for summary judgment on the grounds that the record demonstrated “a history and continuing practice of program expansion” for women that satisfied Option Two of the three-part test. Although the district court granted summary judgment on the notice grounds discussed above, UCD contends that we could, alternatively, affirm the district court's decision on the merits. See Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003). That is so, but only if, viewing the evidence in the light most favorable to the students, there are no genuine issues of material fact concerning UCD's compliance with Option Two. See, e.g., Becerril v. Pima County As-

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sessor's Office, 587 F.3d 1162, 1163 (9th Cir.2009). On the record before us we cannot affirm on this alternative ground.
In assessing compliance with Option Two, we must, under the Clarification, focus on both the institution's record of adding female participation opportunities and its current “plan of program expansion that is demonstrably responsive to the developing interests and abilities” of women. “History” and “continuing practice” thus constitute two separate inquiries. We conclude that the undisputed facts fall short of demonstrating UCD's compliance with either facet of Option Two.
[16] The Clarification specifies the following factors as evidence of an institution's history of program expansion:
[A]n institution's record of adding intercollegiate teams, or upgrading teams to intercollegiate status, for [women]; an institution's record of increasing the number of participants in intercollegiate athletics who are [women]; and an institution's affirmative responses to requests by students or others for addition or elevation of sports.
The Option Two analysis focuses primarily, but not exclusively, on increasing the number of women's athletic opportunities rather than increasing the number of women's teams. “OCR will assess whether past actions of the institution have expanded participation opportunities for the underrepresented sex ...” (emphasis added).
UCD had seven women's teams in 1970 and added another in 1974, thereby increasing the number of female varsity participation opportunities. The record indicates that UCD did not further expand participation opportunities for women until 1996. The 1991 Report of the UCD Title IX Review Committee (Report) indicated that UCD did not comprehensively review its compliance with Title IX between 1976 and 1991. The Report also stated that since 1976, UCD had added two women's sports (soccer and cross country track) but dropped two (golf and field hockey).FN15 The Report concluded that UCD's record “cannot*970 be termed a demonstrably responsive process of program expansion ... particularly when female participation relative to male participation has been decreasing over the past three years.” Internal

UCD memoranda from directors of the athletics program suggest that the numerical participation gap continued to grow over the next two years.FN16
FN15. UCD does not dispute that it eliminated field hockey but denies that it eliminated a women's golf team, asserting that UCD “attempted” to start a women's golf team in the 1970s that “never got off the ground.” Drawing all reasonable inferences in favor of the plaintiffs, as we must, we credit UCD's internal report as accurately describing the elimination of a women's golf team.
FN16. In 1992 an associate athletic director warned of a “backward slide in compliance,” and in 1993 UCD's acting athletic director noted that “the ratio of women participating has decreased slightly in recent years.”
In 1995, UCD decided to add three women's varsity teams. The university reviewed proposals from five women's club teams and elevated water polo, crew and lacrosse to varsity status. When the three new teams began competing the following year, the number of female athletes rose from 211 to 348, with the difference between female enrollment and female varsity participation opportunities dropping from twenty percent to eleven percent.FN17
FN17. Again, “the number of female athletes” may include athletes who are counted more than once by virtue of participating in more than one sport.
UCD represents that it created another women's varsity team, indoor track, in 1999. There is some dispute as to whether indoor track was added as an independent women's varsity team or merely extended the track season for the existing female track team. The record indicates that “adding” the team was contingent on the fact that it could be accomplished without awarding additional grants-in-aid to student athletes or otherwise affecting UCD's athletics budget, because all the students who would be participating in indoor track were already members of the outdoor track team. With or without an additional female track team, the number of participation opportunities for female athletes continued to rise, so the dispute over how to characterize the addition of an indoor female

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track season does not matter. Indeed, in the 1999-2000 school year, women varsity athletes at UCD reached a historic high in both total numbers and proportion of female athletes to enrolled women students.
Two years later, however, the number of female participation opportunities had fallen by 17%, even as the number of women enrolled at the university had grown by 19%. The number of female participation opportunities fluctuated thereafter, but never regained the apex it reached in 2000. There were four varsity participation opportunities for every hundred female students in 2000, but only three in 2006.
[17] In sum, UCD expanded varsity opportunities for women only between 1996 and 2000. UCD's elimination of women from the varsity wrestling team thus took place in the context of an overall contraction of female athletic participation opportunities that began in 2000.FN18 UCD's *971 post-2000 strategy for sports equality between the sexes appears to have consisted of reducing varsity athletics overall, and in the process reducing men's participation opportunities more than women's participation opportunities by using “roster management” to limit the size of men's teams. The Clarification explicitly precludes considering such reductions as evidencing program expansion:
FN18. As noted, supra note 2, the plaintiffs have submitted sufficient facts showing the existence of female varsity wrestling opportunities to survive summary judgment. UCD's subsequent decision to permit women to compete against men for a slot on the team does not affect our analysis. By requiring women to prevail against men, the university changed the conditions under which women could participate in varsity wrestling in a manner that foreseeably precluded their future participation.
UCD's contention that it “ha[d] not declared wrestling to be a contact sport” does not advance its position. First, wrestling is a contact sport under OCR regulations. 34 C.F.R. § 106.41(b). While women must be permitted to try out for all-male teams if there is no women's team in that sport, this requirement is waived for contact sports. Id. But the contact sport “exemption did

not give [UCD] license to discriminate against [the plaintiffs] because of their sex once [UCD] decided to allow [them] to join the team.” Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir.2005) (citation omitted).
OCR will not find a history and continuing practice of program expansion where an institution increases the proportional participation opportunities for [women] by reducing opportunities for [men] alone or by reducing participation opportunities for [men] to a proportionately greater degree than for [women]. ... [Option Two] considers an institution's good faith remedial efforts through actual program expansion.... Cuts in the program for [women], even when coupled with cuts in the program for [men], cannot be considered remedial because they burden members of the sex already disadvantaged by the present program. An institution that has eliminated some participation opportunities for women can still satisfy Option Two if the elimination is offset by a strong history of program expansion. In UCD's case, however, the elimination of women's wrestling opportunities occurred in the context of a women's athletics program that was, at best, stagnant. We therefore hold that UCD has not had a history of program expansion for women and so did not satisfy Option Two through such a history.
The 1996 Clarification lists two factors that may indicate a continuing practice of program expansion:
[A]n institution's current implementation of a non-discriminatory policy or procedure for requesting the addition of sports (including the elevation of club or intramural teams) and the effective communication of the policy or procedure to students; and an institution's current implementation of a plan of program expansion that is responsive to developing interests and abilities.
The record contains undisputed evidence that UCD has a procedure for requesting additional varsity sports and effectively communicates that procedure to students. According to the procedure distributed to students, the “primary factor” in UCD's evaluation of proposals to create new varsity teams is the “[o]verall impact on intercollegiate program gender equity.” In 2003, UCD received detailed applications from

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members of four women's club sports (bowling, horse polo, field hockey, and rugby) seeking elevation to varsity status. These applications indicate that students are aware of the opportunity to request new varsity athletic opportunities.FN19
FN19. UCD points to its Title IX Compliance Officer and grievance procedure as evidence of a practice of program expansion. As both are required by OCR regulations, 34 C.F.R. § 106.8, and neither affects the number of female athletes or teams, they do not indicate program expansion for purposes of Option Two.
The 2003 application was the field hockey club team's second attempt to regain varsity status. An earlier application was rejected in 1995. At that time, the Title IX Advisory Committee advocated elevating lacrosse rather than field hockey to varsity status but noted that field hockey had “developed strong interest from students” and was “a relatively strong NCAA sport,” with three Division I teams competing*972 at nearby universities. The committee recommended that “[s]hould gender equity not be achieved by the addition of the three sports proposed, and funding be available in the future, field hockey would be considered a prime candidate for addition to the ICA program in the future.”
When field hockey club players applied for varsity status in 2003, however, their application was again denied. In fact, UCD rejected all four club team applications, even though all applicants were evaluated as “successful” and “active” club teams with “a long tradition of participation.” Instead, UCD decided to create a women's golf team at the behest of the men's golf coach, even though no women attending UCD were interested enough in golf to participate at the club level or to request varsity status.
UCD contends that the fact that golf was proposed by the men's golf coach absent any demonstrated interest by female students is irrelevant. We disagree. A funding recipient can only satisfy Option Two by showing an expansion of participation opportunities that is “demonstrably responsive to [women's] developing interests and abilities ... includ[ing] interests that already exist at the institution.” Universities are free to consider applications from individuals other than students, and it is appropriate to

evaluate interest at the high school level as well as among current UCD students. UCD has failed to establish, however, that the choice of golf was “demonstrably responsive” to the “developing interests and abilities” of either current or prospective female students.
The Clarification's examples of Option Two compliance all describe institutions that have added women's varsity teams based on requests from current club teams; questionnaires assessing interest among current and incoming female students; or survey data that shows “a significant increase in high school participation in that sport” or identifies the new sport as “emerging” or “among the most popular sports played by women” in the relevant region. UCD does not contend that any current or incoming students expressed interest in golf, and points to no surveys or other data demonstrating that golf is a popular or emerging sport among high school girls, either regionally or nationally.
UCD's observation that golf is offered at 639 high schools and 27 community colleges in California does not indicate that golf's popularity or growing presence compared to other sports was a significant factor in its selection. FN20 UCD also noted, for example, that 1,646 high schools in the country, including Davis High School, sponsor field hockey; that “[r]ugby is an emerging sport for women within the NCAA” and was offered at Davis High School; and that “[t]here is growing interest [in bowling] at the community college and high school level in the state of California.” There is no evidence that UCD evaluated golf as more popular or “emerging” than these other sports for purposes of meeting the interests of future students.
FN20. Defendant Warzecka chose to create a varsity golf team in part because the Big West Conference requires participating schools to add conference-sponsored sports, of which golf is one, before adding other sports, and because golf could be added at minimal expense, thanks to a local country club's willingness to provide a course for UCD athletes to practice and compete. While athletic conference rules and cost are, of course, legitimate factors in sport selection, neither takes precedence over the requirements of Title IX.

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Moreover, UCD's selection of golf, which added only seven participation opportunities for women, was at odds with its own stated priority of taking a significant step toward overall gender equity. Elevating horse polo, rugby or field hockey would have added far more female varsity athletes.FN21
FN21. UCD's review committee estimated that field hockey would add 22 female athletes; horse polo, 35; rugby, 30 to 40. Bowling would have added 12 to 15.
*973 [18][19][20] We recognize that budgetary constraints often prevent universities from creating new teams and adding varsity slots. But “Title IX does not require that a school pour ever increasing sums into its athletic establishment.” Cohen v. Brown Univ., 991 F.2d at 898-99 n. 15. Universities may achieve compliance by reducing men's athletic slots until participation rates become substantially proportionate to the undergraduate population. Id.; Neal, 198 F.3d at 771; Kelley, 35 F.3d at 270; Roberts, 998 F.2d at 830. They may not, however, maintain varsity teams for male students while denying female students comparable “opportunities to enjoy the thrill of victory, the agony of defeat, and the many tangible benefits that flow from just being given a chance to participate in intercollegiate athletics.” Neal, 198 F.3d at 773.
[21] UCD took a significant step towards Title IX compliance by adding three women's teams in 1996, but Option Two requires more than a single step. It requires evidence of continuous progress toward the mandate of gender equality that Title IX has imposed on funding recipients for the past thirty years. The record before us does not contain undisputed facts showing a history and continuing practice of program expansion that is responsive to women's interests.
We conclude that the grant of summary judgment to UCD cannot be affirmed on the alternative merits ground that UCD complies with Title IX's requirement of providing equal athletic opportunities to students of both sexes.
[22] The students also sue under 42 U.S.C. § 1983, alleging that UCD violates the Equal Protection Clause by maintaining an athletics program that discriminates on the basis of gender. The district court dismissed the claim because it determined that “Title IX's enforcement scheme is sufficiently comprehen-

sive to ... demonstrate that Congress intended to preclude § 1983 claims when it enacted this statute.”
Fitzgerald v. Barnstable School Committee, --U.S. ----, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009), decided after the district court dismissed the students' claims, held, to the contrary, that Title IX does not bar § 1983 suits to enforce rights under the Equal Protection Clause. As in Fitzgerald, the plaintiffs here invoke § 1983 to seek damages for violations of constitutional rights. See id. at 796-97 (explaining distinctions between the rights created by Title IX and those afforded by the Equal Protection Clause).
The defendants concede that the district court ruling does not survive Fitzgerald but urge us to affirm dismissal of the § 1983 claim on other grounds. We decline to do so, for reasons we now explain.
UCD first contends that the § 1983 claim for damages is precluded by the statute of limitations and that the district court did not address this argument. In fact, the district court considered and rejected the statute of limitations defense as to both the Title IX effective accommodation and § 1983 equal protection claims in response to UCD's original motion to dismiss. The court held that because the students claimed that they were “currently being subjected to defendants' allegedly sex discriminatory practices ... their claims accrue each and every day they are denied equal access to athletic participation.”
[23][24][25] The district court was quite correct. Section 1983 “is presumptively available to remedy a state's ongoing violation of federal law.” AlohaCare v. Haw. Dep't. of Human Servs., 572 F.3d 740, 745 (9th Cir.2009) (quotation omitted). A *974 plaintiff has adequately pled an ongoing claim if she can “show a systematic policy or practice that operated, in part, within the limitations period-a systematic violation.” Douglas v. Cal. Dep't. of Youth Auth., 271 F.3d 812, 822 (9th Cir.2001) (quotation omitted); see also Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir.1997) (holding plaintiff's § 1983 claims timely because she alleged “widespread policy and practices of discrimination [that] continued every day of her employment, including days that fall within the limitation period”). FN22 A university's ongoing and intentional failure to provide equal athletic opportunities for women is a systemic violation. As the plaintiffs were students and therefore subject to the policy that

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allegedly discriminated on the basis of sex at the time they filed their complaint, their § 1983 claim is not time-barred.
FN22. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), held that each “[d]iscrete act[ ] such as termination, failure to promote, denial of transfer or refusal to hire ... constitutes a separate actionable „unlawful ... practice‟ ” for the purposes of triggering the statute of limitations period in a Title VII case. Morgan left undisturbed our case law governing continuing systemic violations.
[26][27] UCD next urges this court to conclude that the § 1983 claim against the individual defendants is precluded by the doctrine of qualified immunity. The defendants, however, did not raise a qualified immunity defense in any of their dispositive motions before the district court.FN23 Our discretion to affirm on grounds other than those relied on by the district court extends to issues raised in a manner providing the district court an opportunity to rule on it. See Proctor v. Vishay Intertechnology, Inc., 584 F.3d 1208, 1226 (9th Cir.2009); Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 478 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (“[T]he prevailing party ... was of course free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court. ...”) (emphasis added). As the district court has had no opportunity to rule on the individual defendants' qualified immunity defense, we will not affirm on that basis. The dismissal of the students' § 1983 claim is therefore reversed.
FN23. UCD raised a qualified immunity defense in its answer to the students' complaint but never litigated it thereafter.

C.A.9 (Cal.),2010. Mansourian v. Regents of University of California 602 F.3d 957, 256 Ed. Law Rep. 53, 10 Cal. Daily Op. Serv. 4848, 2010 Daily Journal D.A.R. 5820
END OF DOCUMENT

CONCLUSION For the foregoing reasons, the plaintiffs' motion to amend their complaint is dismissed as moot. The district court's grant of summary judgment to the defendants on the Title IX claim is reversed. The district court's order dismissing the equal protection § 1983 claim is also reversed, and the case is remanded for further proceedings consistent with this opinion.