Metropolitan News-Enterprise


Thursday, January 24, 2019


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College Players’ Discrimination Lawsuit Can Continue—Court of Appeal


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday reversed summary judgment against five California State University at San Marcos women’s basketball players who allege that the school’s former head coach had retaliated and discriminated against them based on their race, but barred the plaintiffs from pursuing causes of action under two federal civil rights statutes.

Justice William Dato of Div. One wrote the opinion. It reverses a judgment by San Diego Superior Court Judge Joan M. Lewis.

The players—all of whom are African-American—sought to affix liability on the Board of Trustees of California State University at San Marcos for alleged conduct by former head women’s basketball coach Sheri Jennum. They assert that Jennum referred to them derogatorily as “the group” and imposed on them harsher discipline and fewer opportunities than other players due to their race.

The opinion declares that claims of one of the five plaintiffs are barred based on untimeliness, but the other four are entitled to proceed on their claims for racial discrimination under the Civil Rights Act of 1964. It reinstates causes of action under that act as to three of the plaintiffs for retaliation, based on their complaints as to the coach’s alleged conduct, but says no such cause of action may be maintained by a plaintiff who had not uttered complaints.

Totality of Circumstances

Dato wrote:

“Although minor or trivial actions that merely upset a college athlete are not actionable, we look to the totality of circumstances to consider whether the freshmen plaintiffs can establish that they were deprived the terms, conditions, or privileges of participation on their college team, including by being denied the opportunity to participate in an environment free from discrimination, harassment, or retaliation.”

He said:

“Coaches have broad discretion to decide ‘who plays, how much they play, and whether they stay on the team from year to year,’ but they may not make coaching decisions for racially discriminatory reasons….The difficulty lies in deciding where to draw the line and avoid subjecting run-of-the-mill coaching decisions to unwarranted judicial oversight….

“Although we believe the trial court drew the line too narrowly, we need not define precisely where the line lies in every case.”

Difficult Question Avoided

The jurist declared:

“Had all four freshmen plaintiffs remained on the team, we might struggle to determine whether, on balance, the evidence was sufficient to raise a triable issue of an adverse action.…

“Here we need not decide that difficult question. As we explain, three of the four freshmen plaintiffs actually left the team, each attributing her departure in one way or another to Jennum’s allegedly discriminatory treatment. Although the fourth did not leave, a reasonable trier of fact could nevertheless conclude she suffered a materially adverse action; the departures of her peers suggests a sufficient severity or pervasiveness of Jennum’s treatment to withstand summary judgment. Therefore, a reasonable jury could find that each freshman plaintiff suffered a materially adverse action.”

He went on to say, however:

“We stress that our decision is a limited one. Viewing the record in the light most favorable to the freshmen plaintiffs, the Board did not meet its moving burden of proving that these players could not demonstrate a materially adverse action.”

It remains for the trier of fact, he continued, to determine the truth of the plaintiffs’ allegations.

The opinion orders the trial court to enter summary adjudication against the claims brought under 42 U.S.C. §1981, governing equal rights under the law, and §1983, which sets out a private cause of action for the deprivation of rights. The statutes allude to liability on the part of “persons.”

Dato noted that the United States Supreme Court in its 1989 decision in Will v. Michigan Department of State Police held that a board was “immune” from suit under §1983 because it is an “arm of the state,” not a “person.”

He observed:

“Following Will, courts have consistently concluded that states are not ‘persons’ subject to suit under section 1983….

“Courts have extended Will’s reasoning to claims under 42 United States Code section 1981.”

 These courts, he noted, include the Ninth U.S. Circuit Court of Appeals, and “[a]lthough California courts have yet to consider this issue,” the Ninth Circuit’s view will be followed.

The case is Mackey v. Board of Trustees of the California State University, 2019 S.O.S. 365.


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