Education Law AlertSeptember 30, 2014By Dino Velez

School District Violated Title IX byFailing to Provide Equal Facilities andAccess, and Retaliated AgainstStudents by Firing Their Coach

In an opinion that provides clarity for school districtson Title IX standards, the Ninth Circuit Court ofAppeals ruled in Ollier v. Sweetwater Union HighSchool District ("Sweetwater") that Sweetwater"intentionally discriminated" against female studentathletes by failing to provide them with equaltreatment and benefits as compared to male athletes. More specifically, the Court ruled that female studentswere "deterred from participating" by Sweetwater'sdifferential treatment of female students, and thatSweetwater retaliated against the students when itfired their softball coach. This opinion also provides awarning on the dangers of ignoring complaints fromstudents, parents, and employees.

Analysis The Sweetwater case presents the classic situationwhere a set of students and parents sue a schooldistrict after their complaints were ignored and theschool district fired the district employee who hadbeen advocating on their behalf.

Plaintiffs were members of the girls' softball team atCastle Park High School ("Castle Park"), which wascoached by Chris Martinez. Coach Martinez, andsome of the Castle Peak parents, had previouslycomplained to Sweetwater about various issuesincluding inequitable facilities, equipmenttransportation; coaches and coaching facilities,scheduling of games and practice times, publicity,funding, and athletic participation opportunities. CastlePeak administrators threatened to fire Martinezbecause of his complaints, and they ultimatelyterminated him. After Martinez was fired, Sweetwater

Attorney Spotlight

Donald A. VelezPartner510.273.8776dvelez@bwslaw.com Donald (Dino) A. Velez has over 24years of litigation experience. Hispractice includes labornegotiations, employment andpersonnel issues, as well ascharter school litigation. Mr. Velezalso conducts trainings for boardmembers and administrators onkey issues such as the Brown Actand the California Public RecordsAct at ACSA and otherassociations as well as for schooldistricts throughout California.

stripped the softball team of its voluntary assistantcoaches, canceled the team's 2007 awards banquet,and forbade the team from participating in animportant softball tournament attended by collegerecruiters.

Plaintiffs cited the litany of complaints about unequaltreatment that had been previously raised and soughtrelief under 20 U.S.C. § 1681 et seq. for three allegedviolations of Title IX: (1) unequal treatment andbenefits in athletic programs; (2) unequal participationopportunities in athletic programs; and (3) retaliation.

The Court adopted the following three-part analysis that is set forth in the Department ofHealth & Human Services and Department of Education "Policy Interpretation" of Title IX todetermine whether an institution is complying with the "effective accommodation"requirement:

(1) Whether participation opportunities for male and female students are provided innumbers substantially proportionate to their respective enrollments; or

(2) Where the members of one sex have been and are underrepresented among ...athletes, whether the institution can show a history and continuing practice of programexpansion which is demonstrably responsive to the developing interest and abilities of themembers of that sex; or

(3) Where the members of one sex are underrepresented among athletes, and theinstitution cannot show a continuing practice of program expansion such as that citedabove, whether it can be demonstrated that the interests and abilities of the members ofthat sex have been fully and effectively accommodated by the present program.

With respect to the first prong relating to proportional participation opportunities, Sweetwaterargued that it had a greater number of female sports teams (23) than male sports teams (21)at Castle Park. However, the Court counted "actual athletes," not "unfilled slots," becauseTitle IX participation opportunities are real, not illusory. The Court found that Sweetwater violated students' rights to equal treatment because femaleathletic participation was not substantially proportionate to overall female enrollment atschool. Over a 10-year period, the Court found that the disparity between the percentage offemale athletes and male athletes was not less than 6.7% in any single year, and was lessthan 10% in only three years. With respect to the second prong relating to program expansion responsive to the interestsof the female athletes, the Court found no history or continuing practice of programexpansion for women's sports at Castle Peak. Rather, the Court found that Sweetwater hadlower numbers of female athletes in the 2007-2008 school year (149) than it did in the 1998-1999 school year (156). And with respect to the third prong relating to effective accommodation of interests by thecurrent programs, the Court pointed to the fact that Sweetwater had twice eliminated girls'field hockey despite a clear interest from female students in the sport. Sweetwater arguedthat it was unable to find a field hockey coach, but the Court dismissed this argument, findingthat the "school's inability to hire a coach does not indicate a lack of student interest in thesport." Sweetwater simply could not prove that its motivations were legitimate and that therewas not sufficient interest, ability, or available competition to sustain a field hockey team.

Education Law Public Law

Construction Law Labor & Employment

Litigation Real Estate and Business Law

Law Offices Throughout

California

With respect to retaliation, the students claimed that Sweetwater impermissibly retaliated against them by firing their softball coach in response to the Title IX complaints that he madeon their behalf. Generally, with a third-party claim, there are strict limitations on a claimant'sstanding to bring a suit. However, in this case, because the students' prospects forcompeting were hampered after their softball coach was fired, the students had standing tomaintain their claims because they fell within "zone of interests" that Title IX's implicit anti-retaliation provisions sought to protect. The Court ruled in favor of the softball players on their standing to claim that Sweetwaterretaliated against them by firing Martinez because he gave players extra practice time andindividualized attention, persuaded volunteer coaches to help them, and arranged for team toplay in tournaments attended by college recruiters. Further, after Martinez was terminated,Sweetwater stripped f voluntary assistant coaches from the team; its awards banquet wascancelled, and players were forbidden from participating in an important tournamentattended by college recruiters. Sweetwater attempted to counter the retaliation claim by arguing that Martinez was fired forlegitimate, non-retaliatory reasons, citing a preference for certified teachers as well as anincident where the terminated coach allegedly allowed an ineligible student to play, whichcaused the team to forfeit a game. The Court discounted Sweetwater's argument becausethe purported certified teacher preference was in place long before Martinez was hired, andanyway, there was no certified teacher ready to replace him after he was fired. Further, theMartinez was not reprimanded at the time that he allowed the ineligible student to play. Indeed, he was not fired until more than one year later.

Impact The Sweetwater case presents school and community college districts with clarity onnumerous aspects of the "effective accommodation" analysis under Title IX, and underscoresthe importance of assessing a district's Title IX compliance on a regular basis. Districts need to continually monitor participants and their interests, and show progression inaffording equal opportunities. The case also highlights the danger to a district if it fails to heed the desires and complaintsof students and parents, as well as warnings from its own employees. Such dangers areheightened in a situation where the employee is perceived to be a strong advocate for thestudents' and parents' interests.

Oliver v. Sweetwater Union High School District (9th Cir., 2014 WL 4654472)

| 444 South Flower Street | Suite 2400 | Los Angeles | California | 90071