US Supreme Court Declines To Hear 9th Circuit Decision Aimed At Public Higher Education

April 2012
Number 19

The United States Supreme Court recently declined to hear the appeal of a Christian sorority and a Christian fraternity in the case Alpha Delta Chi-Delta Chapter v. Charles Reed (March 19, 2012) ___ S.Ct. ___ (2012 WL 895984), letting stand the Ninth Circuit’s decision in Reed last year that public universities may require student groups to adopt a nondiscrimination policy that prohibits discrimination on enumerated grounds such as race, sex, religion, sexual orientation, and disability before granting them official recognition. For now, it appears settled that nondiscrimination policies that track California antidiscrimination laws by barring discrimination on enumerated bases are constitutional.

The Ninth Circuit’s decision in Reed extended the United States Supreme Court’s 2010 decision, Christian Legal Society v. Martinez (2010) 130 S.Ct. 2971, which held that public institutions may require student groups to comply with an “all-comers” policy before granting them status as recognized student groups. All-comers policies prohibit discrimination on any ground by requiring student groups to accept any student as a member, regardless of the student’s status or beliefs.

In Reed, a Christian sorority and a Christian fraternity objected to the requirement of San Diego State University (SDSU) that student groups comply with the university’s nondiscrimination policy in order to receive funding, access to facilities, and other benefits available only to officially recognized student organizations. SDSU’s nondiscrimination policy tracks state law barring discrimination on grounds such as race, sex, religion, sexual orientation, and disability. The Christian groups had various religious requirements for officers and members, and SDSU administrators repeatedly denied their applications for official recognition. The Christian groups sued SDSU, challenging the constitutionality of the nondiscrimination policy, and arguing in part that Martinezdid not apply because unlike the all-comers policy at issue in Martinez, SDSU’s policy permitted secular groups to discriminate on non-enumerated bases (for example, because SDSU’s policy does not forbid political belief discrimination, a Republican organization could exclude Democrats) while prohibiting discrimination based on religious beliefs.

The Ninth Circuit sided with SDSU, upholding the constitutionality of SDSU’s nondiscrimination policy because it was intended to ensure equal access and remove barriers imposed against historically-excluded groups, and it did not suppress or single out any particular group based on the group’s message or perspective. Student groups with religious membership requirements are not compelled to change their membership policies; rather, they remain free to exclude members on any basis if they forgo the benefits of official recognition.

Prior Client News Briefs reviewed the Martinez and Reed decisions in more detail. (For Martinez, see Client News Brief No. 24, July 2010; for Reed, see Client News Brief No.36, 2011) Additionally, note that while this decision involved an institute of higher education, other courts have reached similar conclusions in the K-12 setting. (For example, see Truth v. v. Kent School District (9th Cir. 2008) 542 F.3d 634, reviewed in Client News Brief No. 41, October 2007.)

If you have any questions regarding your university’s nondiscrimination policy, or for other higher education or student law issues, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

Written By

Kevin Mills
Senior Attorney and Higher Education Practice Group Chair
Walnut Creek Office
kmills@lozanosmith.com

Kimberly L. Gee
Associate
Monterey Office
kgee@lozanosmith.com

 

©2012 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Lozano Smith Attorneys Defending City Of Los Angeles And LAPD Secure Favorable Verdict In Employment Case

April 2012
Number 18

In a recent employment case brought against the City of Los Angeles and Los Angeles Police Department (LAPD), Lozano Smith attorneys Gregory Wedner and Mark Kitabayashi successfully defended the City and LAPD at trial, resulting in a much smaller finding of damages by the jury than the amount the plaintiff was seeking.

In Leonard Avila v. City of Los Angeles, Los Angeles Police Department, Commander Stuart Maislin, et al. (2012) Case No. CV 11-01326 SJO (FMOx), the plaintiff, a police officer, alleged that the LAPD retaliated against him after the officer testified against the LAPD in another trial for alleged violations of the Fair Labor Standards Act (FLSA) and unpaid overtime. During his testimony in that prior matter, the officer had admitted that over a number of years, he had knowingly failed to submit requests for overtime pay and also failed to report that his supervisors had allegedly pressured the officer not to request payment for overtime. Following his termination by the LAPD for this misconduct, the officer filed a lawsuit against the City, the LAPD and a commanding officer, seeking $4.5 million. The LAPD had also terminated two other officers for the same misconduct and one of them later secured a $4 million verdict against the LAPD for retaliation.

With such high stakes, the City and LAPD asked Lozano Smith to take over the case just a few days prior to the trial date. Following testimony, Lozano Smith asked the judge to dismiss certain claims because the officer had not introduced sufficient evidence. The judge agreed in part, and the jury was only asked to consider the officer’s claims concerning retaliation under the FLSA and due process violations. The jury’s verdict was a good one for the City and the LAPD, because they prevailed on the due process claim, and, although the jury found for the officer on the FLSA retaliation claim, it awarded the officer just $50,000 which was substantially less than a previous settlement offer made by defendants before trial.

The outcome in this case was due, in part, to strategic maneuvers which allowed the Lozano Smith attorneys to educate the judge on the weaknesses of the plaintiff’s claims, which meant that many of the plaintiff’s claims were not even considered by the jury. The effectiveness of these efforts in this case demonstrates that litigation strategy should be considered at every stage. If you have any questions about Lozano Smith’s litigation practice, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

Written By

Mark K. Kitabayashi
Shareholder
Los Angeles Office
mkitabayashi@lozanosmith.com

Jonathan Dale
Associate
Monterey Office
jdale@lozanosmith.com

 

©2012 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Eliminates One Basis For Public Agencies To Recover Attorney Fees In Stop Notice Enforcement Actions

April 2012
Number 17

When a public entity receives a stop notice on one of its public works projects, it has a statutory obligation to withhold the amount of the stop notice and its “reasonable cost of any litigation.” (Civ. Code, § 3186.) Many public entities have historically treated “reasonable cost” as including attorney fees. However, in Tri-State, Inc. v. Long Beach Community College District (Mar. 12, 2012) __ Cal.App.4th __ (2012 WL 764416), the court ruled that “reasonable cost” does not include attorney fees, although the court noted that public agencies may still recover attorneys’ fees by depositing the funds with the court via interpleader.

In Tri-State, a subcontractor filed a stop notice with the public agency owner, and then initiated litigation against the general contractor and owner. The general contractor obtained a stop notice release bond, which the owner chose to accept. Based on the bond, the parties stipulated to the dismissal of the owner, and the owner then sought attorney fees based on Civil Code section 3186. The trial court ruled in favor of the owner.

However, the appellate court reversed and held that the use of the word “cost” was not meant to include attorney fees: “We believe that the Legislature would have expressly provided for an attorney fee award . . . if the Legislature so intended.” The word “cost” merely refers to “ordinary [litigation] costs exclusive of attorney fees.”

Due to the Tri-State decision, public agencies should no longer litigate stop notice enforcement actions under an assumption that they will recover their attorney fees as long as sufficient funds were withheld. As pointed out by the appellate court, in order to recover attorney fees, a public agency owner should interplead (i.e., move to deposit) the withheld funds with the court under Code of Civil Procedure section 386.6. Obtaining a dismissal from the subcontractor or accepting a stop notice release bond from the general contractor might end the litigation, but will not permit recovery of attorney fees.

We recommend that public agencies confer with their legal counsel to evaluate their handling of stop notice enforcement actions in light of the Tri-State ruling. If you have any questions about this decision, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

 

Written By

Daniel Maruccia
Shareholder
Sacramento Office
dmaruccia@lozanosmith.com

Arne Sandberg
Senior Counsel
Walnut Creek Office
asandberg@lozanosmith.com

 

©2012 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Narrows Use Of Categorical Exemptions Under CEQA

April 2012
Number 16

In a recent decision, Berkeley Hillside Preservation v. City of Berkeley(2012) 203 Cal.App.4th 656, the court of appeal significantly limited categorical exemptions to the California Environmental Quality Act (CEQA) that are regularly relied upon by public agencies to avoid undertaking further environmental analysis of discretionary projects.There is a relatively complex set of considerations when undertaking CEQA review.  The first determination that must be made is whether or not the contemplated action or activity is a “project” within the meaning of CEQA.  What some agencies may overlook is that even very simple actions giving final approval of a discretionary activity may meet the broad definition of a “project,” and thus be subject to CEQA.  Projects can sometimes include actions as seemingly benign as relocating a program, or closing a facility.If the determination has been made that the contemplated action is a project under CEQA, public agencies may be able to rely upon various “categorical exemptions” contained in CEQA.  The CEQA guidelines contain 33 categories of projects that are presumed not to have a significant effect on the environment and are therefore exempted from a requirement of further CEQA review.  Filing of a Notice of Exemption triggers a 35-day deadline for any legal challenge under CEQA.  However, the CEQA guidelines also contain exceptions to the exemptions.

One exception is the “significant effect” exception, which states that even if an activity falls into a categorical exemption, the exemption does not apply if there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.  Previously, courts have interpreted this to mean that there must be both unusual circumstances and a reasonable possibility of a significant environmental impact due to the unusual circumstances to disqualify the categorical exemption.

In Berkeley Hillside Preservation, the court of appeal examined the significant effect exception, and greatly broadened its scope, potentially narrowing the availability of all categorical exemptions and effectively doing away with the “due to unusual circumstances” part of the test.  In this case, the City of Berkeley approved construction of a large new home, authorizing two categorical exemptions to keep the project from needing to undergo further CEQA review.  The project opponents sued under CEQA.  The trial court ruled in favor of the City, and found that while there was the potential for significant environmental impact, the exception was not triggered because the potential significant impact was not “due to unusual circumstances.”

The appellate court overturned the trial court’s decision.  In what appears to be a new standard, the court held that evidence of a “fair argument” that a project will have a significant impact “is itself an unusual circumstance” that invalidates a categorical exemption.  Because opponents to the home project submitted an expert’s opinion alleging a significant environmental impact, the court found that additional investigation must be done to determine the true potential for significant effects from the project, regardless of whether or not there was anything particularly unusual about the project.

In light of this ruling, public agencies must be aware that project opponents now have an easier method to challenge a categorical exemption for a project.  As a result, agencies may be forced to undertake some environmental analysis in order to justify the use of the exemption.  This has the potential of doing away with the benefits of the exemption in the first place.  The case also potentially empowers any individual “expert” to offer an opinion that blocks the use of a categorical exemption.

We have spoken to the attorneys representing the property owners in Berkeley Hillside Preservation, and they have indicated that they have already filed a petition for review with the California Supreme Court.  We also understand that various statewide organizations representing public agencies are filing amicus letters in support of the appeal.  Regardless of the outcome with the Supreme Court, which may elect not even to hear the appeal, the case serves as a cautionary tale regarding CEQA.  Even when it appears on the surface that a project is exempt from CEQA, it is prudent to review that determination closely before relying on it.

For a checklist prepared by Lozano Smith regarding the different levels of CEQA review and when each may apply, please visit CEQA Checklist for School Districts.  To monitor the latest CEQA developments that affect public agencies, or if you have any questions about the Berkeley Hillside Preservation decision and CEQA, please feel free to contact one of our eight offices located statewide.  You can also visit our website or follow Lozano Smith on Facebook.

Written By

Harold M. Freiman
Shareholder
Walnut Creek Office
hfreiman@lozanosmith.com

Benjamin C. Rosenbaum
Associate
Fresno Office
brosenbaum@lozanosmith.com

 

©2012 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Finds That High School Athletic Program Violated Title IX

April 2012
Number 15

In the recent decision Ollier v. Sweetwater Union High School District (S.D. Cal. Feb. 9, 2012) 2012 WL 424413, the U.S. District Court of the Southern District of California conducted a detailed examination of a high school athletic program’s Title IX compliance.  In Ollier, the court found that the high school’s female athletes were denied the opportunity to participate in sports on an equal level with the male students at their school in violation of Title IX.Title IX of the Equal Opportunity in Education Act of 1972 bans sex discrimination in schools.  Although most litigation and controversy under Title IX relates to student athletics, as it did in this case, schools should keep in mind that the law applies equally to academics.  Title IX requires female student athletes to have equal opportunities as male student athletes, while giving schools the flexibility to choose athletic programs based on student body interest, geographic influence, budget restraints, and gender ratio.  For example, Title IX does not require female student athletes to be able to participate in football, nor does it require exactly the same amount of money be spent on softball and baseball.  Instead, female student athletes must be provided with overall equal opportunities, treatment and benefits compared to male student athletics.

In Ollier, the plaintiff class consisted of all present and future high school female students and potential students who participate, seek to participate, and are or were deterred from participating in student athletics activities at the high school.  In March 2009, the court found that the district was not in compliance with Title IX based upon unequal participation opportunities in the athletic program.  Most recently in February 2012, the court found the district to be in violation of Title IX based on unequal treatment and benefits provided to females at the high school and the school’s retaliatory termination of the softball coach for complaining about the female athletes’ softball facilities.

Framing its analysis and decision, the court stated that compliance in the area of equal treatment and benefits under Title IX is based on an overall comparison of the male and female athletic programs.  A disparity in one program component can be offset by a comparable advantage to that sex in another area as long as the overall effect of any differences is negligible.  However, a disparity in one program component can violate Title IX if it is substantial enough to deny equality of athletic opportunity to students of one sex at a school.

The court also noted the strong public interest in remedying gender discrimination, highlighting the lifelong, positive benefits that participating in team sports can have on females.  For these reasons, gender discrimination remains a current issue that can be addressed by the judicial system.

In ruling that Title IX had been violated, the court detailed eight categories of unequal treatment and benefits:  recruiting benefits; locker rooms, practice and competition facilities; equipment, uniforms and storage; scheduling benefits; equal access to coaching; medical and training services; publicity and promotional support; and fundraising benefits.  For example, the court found that female athletes were provided with fewer coaches, coaches with more limited experience, and coaches who were unable to adequately coach because of excessive other assignments.  The court reasoned that because coaches for female athletic teams had higher turnover rates, female athletes received less stable coaching, in turn resulting in less successful teams and recruitment of female athletes.  Critical to the court’s decision was expert testimony presented by the plaintiff class and based primarily on an on-site inspection and evaluation of the school’s athletic programs and facilities.  The court also found that the high school failed to provide a system for Title IX implementation and compliance.

As a result of the court’s decision, the plaintiff class received declaratory and injunctive relief from the court, and the parties were ordered to jointly prepare a plan to ensure the district’s compliance with Title IX.   Since the court’s February 2012 decision, the defendants have filed a motion for, among other things, more, additional or amended findings in the decision, and the parties have also filed the ordered compliance plan.  It is unclear at this time whether the defendants intend to appeal the court’s ruling.

Reflective of the results in Ollier, it is recommended that school districts review their athletic programs for Title IX implementation and compliance.  If you have any questions regarding the Ollier decision, or Title IX implementation and compliance in general, please do not hesitate to contact one of our eight offices located statewide.  You can also visit our website or follow Lozano Smith on Facebook.

Written By

Sloan Simmons
Shareholder and Student Practice Group Co-Chair
Sacramento Office
ssimmons@lozanosmith.com

Kirsten Zumwalt Kuitu
Associate
Fresno Office
kkuitu@lozanosmith.com

 

©2012 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.