Veronica Ollier v. Sweetwater Union High School

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VERONICA OLLIER; NAUDIA No. 12-56348

RANGEL, by her next friends Steve

and Carmen Rangel; MARITZA D.C. No.

RANGEL, by her next friends Steve 3:07-cv-00714-

and Carmen Rangel; AMANDA L-WMC

HERNANDEZ, by her next friend

Armando Hernandez; ARIANNA

HERNANDEZ, by her next friend OPINION

Armando Hernandez, individually

and on behalf of all those similarly

situated,

Plaintiffs-Appellees,

v.

SWEETWATER UNION HIGH SCHOOL

DISTRICT; ARLIE N. RICASA; PEARL

QUINONES; JIM CARTMILL; JAIME

MERCADO; GREG R. SANDOVAL;

JESUS M. GANDARA; EARL WEINS;

RUSSELL MOORE, in their official

capacities,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, Senior District Judge, Presiding

2 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Argued and Submitted

June 3, 2014—Pasadena, California

Filed September 19, 2014

Before: Ronald M. Gould and N.R. Smith, Circuit Judges,

and Morrison C. England, Jr., Chief District Judge.*

Opinion by Judge Gould

SUMMARY**

Civil Rights

The panel affirmed the district court’s judgment granting

declaratory and injunctive relief to plaintiffs in a class action

suit brought in part pursuant to Title IX of the Education

Amendments of 1972, alleging (1) unequal treatment and

benefits in athletic programs; (2) unequal participation

opportunities in athletic programs; and (3) retaliation.

The panel held that Sweetwater Union High School

District and its administrators and board members did not

fully and effectively accommodate the interests and abilities

of female athletes and therefore the district court did not err

*

The Honorable Morrison C. England, Jr., Chief District Judge for the

U.S. District Court for the Eastern District of California, sitting by

designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 3

in its award of summary judgment and injunctive relief to

plaintiffs on their Title IX unequal participation claim.

The panel held that the district court did not abuse its

discretion by: (1) striking the proposed testimony of

Sweetwater’s two experts because the record suggested that

the testimony was based on, at best, an unreliable

methodology; (2) excluding Sweetwater’s 38 untimely

disclosed witnesses from testifying at trial because

Sweetwater’s failure to comply with Fed. R. Civ. P. 26’s

disclosure requirement was neither substantially justified nor

harmless; and (3) declining to consider contemporaneous

evidence at trial.

The panel held that the student plaintiffs had Article III

standing to bring their Title IX retaliation claim arising from

the firing of the softball coach. The panel further determined

that the district court did not clearly err when it found that:

(1) plaintiffs established a prima facie case of Title IX

retaliation; and (2) Sweetwater’s purported non-retaliatory

reasons for firing the coach were pretextual excuses for

unlawful retaliation. The panel held, therefore, that the

district court did not abuse its discretion by granting

permanent injunctive relief to plaintiffs on their Title IX

retaliation claim.

COUNSEL

Paul V. Carelli, IV (argued), Daniel R. Shinoff, and Patrice

M. Coady, Stutz Artiano Shinoff & Holtz, APC, San Diego,

California, for Defendants-Appellants.

4 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Elizabeth Kristen (argued), Robert Borton, and Kim Turner,

Legal Aid Society Employment Law Center, San Francisco,

California; Vicky L. Barker and Cacilia Kim, California

Women’s Law Center, Los Angeles, California; Joanna S.

McCallum and Erin Witkow, Manatt, Phelps & Phillips, LLP,

Los Angeles, California, for Plaintiffs-Appellees.

Erin H. Flynn (argued), United States Department of Justice,

Civil Rights Division, Appellate Section; Philip H. Rosenfelt,

Deputy General Counsel; Thomas E. Perez, Assistant

Attorney General; Vanessa Santos, United States Department

of Education Office of the General Counsel; Dennis J.

Dimsey and Holly A. Thomas, United States Department of

Justice, Civil Rights Division, Appellate Section, for Amicus

Curiae United States of America.

Fatima Goss Graves, Neena K. Chaudhry, and Valarie Hogan,

National Women’s Law Center, Washington, D.C.; Lauren B.

Fletcher and Anant K. Saraswat, Wilmer, Cutler, Pickering,

Hale & Dorr LLP, Boston, Massachusetts; Megan Barbero,

Dina B. Mishra, and Brittany Blueitt Amadi, Wilmer, Cutler,

Pickering, Hale & Dorr LLP, Washington, D.C., for Amicus

Curiae National Women’s Law Center, et al.

Kristen Galles, Equity Legal, Alexandria, Virginia; Nancy

Hogshead-Makar, Women’s Sports Foundation, Jacksonville,

Florida, for Amicus Curiae Women’s Sports Foundation,

et al.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 5

OPINION

GOULD, Circuit Judge:

Defendants-Appellants Sweetwater Union High School

District and eight of its administrators and board members

(collectively “Sweetwater”) appeal the district court’s grant

of declaratory and injunctive relief to Plaintiffs-Appellees

Veronica Ollier, Naudia Rangel, Maritza Rangel, Amanda

Hernandez, and Arianna Hernandez (collectively “Plaintiffs”)

on Title IX claims alleging (1) unequal treatment and benefits

in athletic programs;1 (2) unequal participation opportunities

in athletic programs; and (3) retaliation. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

I

On April 19, 2007, Plaintiffs filed a class action

complaint against Sweetwater alleging unlawful sex

discrimination under Title IX of the Education Amendments

of 1972 (“Title IX”), see 20 U.S.C. § 1681 et seq., and the

Equal Protection Clause of the Fourteenth Amendment, see

42 U.S.C. § 1983.2 They alleged that Sweetwater

“intentionally discriminated” against female students at

Castle Park High School (“Castle Park”) by “unlawfully

fail[ing] to provide female student athletes equal treatment

1

Neither of Sweetwater’s briefs on appeal includes argument on

Plaintiffs’ unequal treatment and benefits claim. Thus, Sweetwater has

waived its appeal on that claim. See Hall v. City of L.A., 697 F.3d 1059,

1071 (9th Cir. 2012).

2

Plaintiffs’ 42 U.S.C. § 1983 sex-based discrimination claim dropped

out of the case in July 2010, when the district court severed it from the

Title IX claims upon agreement of the parties.

6 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

and benefits as compared to male athletes.” They said that

female student athletes did not receive an “equal opportunity

to participate in athletic programs,” and were “deterred from

participating” by Sweetwater’s “repeated, purposeful,

differential treatment of female students at Castle Park.”

Plaintiffs alleged that Sweetwater ignored female students’

protests and “continued to unfairly discriminate against

females despite persistent complaints by students, parents and

others.”

Specifically, Plaintiffs accused Sweetwater of “knowingly

and deliberately discriminating against female students” by

providing them with inequitable (1) practice and competitive

facilities; (2) locker rooms and related storage and meeting

facilities; (3) training facilities; (4) equipment and supplies;

(5) transportation vehicles; (6) coaches and coaching

facilities; (7) scheduling of games and practice times;

(8) publicity; (9) funding; and (10) athletic participation

opportunities. They also accused Sweetwater of not properly

maintaining the facilities given to female student athletes and

of offering “significantly more participation opportunities to

boys than to girls[.]” Citing Sweetwater’s “intentional and

conscious failure to comply with Title IX,” Plaintiffs sought

declaratory and injunctive relief under 20 U.S.C. § 1681 et

seq. for three alleged violations of Title IX: (1) unequal

treatment and benefits in athletic programs; (2) unequal

participation opportunities in athletic programs; and

(3) retaliation.3

3

Plaintiffs’ retaliation claim was premised on (1) the July 2006 firing of

Chris Martinez, “a highly qualified and well-loved softball coach,” which

occurred shortly after Castle Park received a formal Title IX complaint;

(2) a ban on a parent-run snack stand during softball games; and (3) a ban

on parental assistance in softball coaching.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 7

A

In July 2008, Plaintiffs moved for partial summary

judgment on their Title IX claim alleging unequal

participation opportunities in athletic programs. Sweetwater

conceded that “female athletic participation” at Castle Park

was “lower than overall female enrollment,” but argued that

the figures were “substantially proportionate” for Title IX

compliance purposes, and promised to “continue to strive to

lower the percentage.” As evidence, Sweetwater noted that

there are “more athletic sports teams for girls (23) than . . .

for boys (21)” at Castle Park.

The district court gave summary judgment to Plaintiffs on

their unequal participation claim in March 2009. See Ollier

v. Sweetwater Union High Sch. Dist., 604 F. Supp. 2d 1264

(S.D. Cal. 2009). The court found that “substantial

proportionality requires a close relationship between athletic

participation and enrollment,” and concluded that Sweetwater

had not shown such a “close relationship” because it “fail[ed]

to provide female students with opportunities to participate in

athletics in substantially proportionate numbers as males.”

Id. at 1272. Rejecting one of Sweetwater’s arguments, the

district court reasoned that it is the “actual number and the

percentage of females participating in athletics,” not “the

number of teams offered to girls,” that is “the ultimate issue”

when evaluating participation opportunities. Id. After

finding that Plaintiffs had met their burden on each prong of

the relevant Title IX compliance test, the district court

determined that Sweetwater “failed to fully and effectively

accommodate female athletes and potential female athletes”

at Castle Park, and that it was “not in compliance with Title

IX based on unequal participation opportunities in [the]

athletic program.” Id. at 1275; see Neal v. Bd. of Trs. of Cal.

8 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

State Univs., 198 F.3d 763, 767–68 (9th Cir. 1999) (laying

out the three-prong test for determining whether a school has

provided equal opportunities to male and female students).

B

Before trial, the district court decided three other matters

at issue in this appeal. First, it granted Plaintiffs’ motion to

exclude the testimony of two Sweetwater experts because

(1) the experts’ conclusions and opinions “fail[ed] to meet the

standard of Federal Rule of Evidence 702” because they were

based on “personal opinions and speculation rather than on a

systematic assessment of [the] athletic facilities and

programs” at Castle Park, and (2) the experts’ methodology

was “not at all clear.”

Second, it granted Plaintiffs’ motion to exclude 38 of

Sweetwater’s witnesses because they were not timely

disclosed, reasoning that “[w]aiting until long after the close

of discovery and on the eve of trial to disclose allegedly

relevant and non-cumulative witnesses is harmful and without

substantial justification.” Because Sweetwater “offered no

justification for [its] failure to comply with” Federal Rule of

Civil Procedure 26(a) and (e), the district court concluded that

exclusion of the 38 untimely disclosed witnesses was “an

appropriate sanction” under Federal Rule of Civil Procedure

37(c)(1).

Third, it considered Sweetwater’s motion to strike

Plaintiffs’ Title IX retaliation claim as if it were a Federal

Rule of Civil Procedure 12(b)(6) motion to dismiss that

claim, and denied it on the merits. See Ollier v. Sweetwater

Union High Sch. Dist., 735 F. Supp. 2d 1222 (S.D. Cal.

2010). In so doing, the district court determined that

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 9

Plaintiffs had standing to bring their Title IX retaliation

claim—a claim the court viewed as premised on harm to the

class, not harm to the softball coach whose firing Plaintiffs

alleged was retaliatory. See id. at 1226 (“Plaintiffs . . . have

set forth actions taken against the plaintiff class members

after they complained of sex discrimination that are concrete

and particularized.”). The district court also concluded that

Plaintiffs’ retaliation claim was not moot after finding that

class members were still suffering the effects of Sweetwater’s

retaliatory conduct and that Sweetwater’s actions had caused

a “chilling effect on students who would complain about

continuing gender inequality in athletic programs at the

school.” Id. at 1225.

C

After a 10-day bench trial, the district court granted

Plaintiffs declaratory and injunctive relief on their Title IX

claims alleging (1) unequal treatment of and benefits to

female athletes at Castle Park, and (2) retaliation. See Ollier

v. Sweetwater Union High Sch. Dist., 858 F. Supp. 2d 1093

(S.D. Cal. 2012).

The district court concluded that Sweetwater violated

Title IX by failing to provide equal treatment and benefits in

nine different areas, including recruiting, training, equipment,

scheduling, and fundraising. Id. at 1098–1108, 1115. Among

other things, the district court found that female athletes at

Castle Park were supervised by overworked coaches,

provided with inferior competition and practice facilities, and

received less publicity than male athletes. Id. at 1099–1104,

1107. The district court found that female athletes received

unequal treatment and benefits as a result of “systemic

administrative failures” at Castle Park, and that Sweetwater

10 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

failed to implement “policies or procedures designed to cure

the myriad areas of general noncompliance with Title IX.”

Id. at 1108.

The district court also ruled that Sweetwater violated Title

IX when it retaliated against Plaintiffs by firing the Castle

Park softball coach, Chris Martinez, after the father of two of

the named plaintiffs complained to school administrators

about “inequalities for girls in the school’s athletic

programs.” Id. at 1108; see id. at 1115. The district court

found that Coach Martinez was fired six weeks after the

Castle Park athletic director told him he could be fired at any

time for any reason—a comment the coach understood to be

a threat that he would be fired “if additional complaints were

made about the girls’ softball facilities.” Id. at 1108.

Borrowing from “Title VII cases to define Title IX’s

applicable legal standards,” the district court concluded

(1) that Plaintiffs engaged in protected activity when they

complained to Sweetwater about Title IX violations and when

they filed their complaint; (2) that Plaintiffs suffered adverse

actions—such as the firing of their softball coach, his

replacement by a less experienced coach, cancellation of the

team’s annual awards banquet in 2007, and being unable to

participate in a Las Vegas tournament attended by college

recruiters—that caused their “long-term and successful

softball program” to be “significantly disrupted”; and (3) that

a causal link between their protected conduct and

Sweetwater’s retaliatory actions could “be established by an

inference derived from circumstantial evidence”—in this

case, “temporal proximity.” Id. at 1113–14. Finally, the

district court rejected Sweetwater’s non-retaliatory reasons

for firing Coach Martinez, concluding that they were “not

credible and are pretextual.” Id. at 1114. The district court

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 11

determined that Sweetwater’s suggested non-retaliatory

justifications were post hoc rationalizations for its decision to

fire Coach Martinez—a decision the district court said was

impermissibly retaliatory. See id.

D

Sweetwater timely appealed the district court’s decisions

(1) to grant partial summary judgment to Plaintiffs on their

Title IX unequal participation claim; (2) to grant Plaintiffs’

motions to exclude expert testimony and 38 untimely

disclosed witnesses; (3) to deny Sweetwater’s motion to

strike Plaintiffs’ Title IX retaliation claim; and (4) to grant a

permanent injunction to Plaintiffs on their Title IX claims,

including those alleging (a) unequal treatment of and benefits

to female athletes at Castle Park, and (b) retaliation.4

II

We review de novo a district court’s grant of a motion for

summary judgment to determine whether, viewing the

evidence in the light most favorable to the nonmoving party,

there exists a genuine dispute as to any material fact and

whether the district court correctly applied the substantive

law. See Fed. R. Civ. P. 56(a); Cameron v. Craig, 713 F.3d

1012, 1018 (9th Cir. 2013).

4

Sweetwater also gave notice of its intent to appeal the district court’s

decision to certify the Plaintiffs’ proposed class. However, neither of

Sweetwater’s briefs on appeal includes argument on the district court’s

decision to grant class certification. Sweetwater’s appeal on that issue is

waived. See Hall, 697 F.3d at 1071.

12 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Title IX of the Education Amendments of 1972 states 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). Title IX’s implementing regulations require that

schools provide “equal athletic opportunity for members of

both sexes.” 34 C.F.R. § 106.41(c). Among the factors we

consider to determine whether equal opportunities are

available to male and female athletes is “[w]hether the

selection of sports and levels of competition effectively

accommodate the interests and abilities of members of both

sexes.” Id. § 106.41(c)(1). In 1979, the Office of Civil

Rights of the Department of Health, Education, and

Welfare—the precursor to today’s Department of Health &

Human Services and Department of Education—published a

“Policy Interpretation” of Title IX setting a three-part test to

determine whether an institution is complying with the

“effective accommodation” requirement:

(1) Whether . . . 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 . . . 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

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 13

(3) Where the members of one sex are

underrepresented among . . . 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.

See 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). We have

adopted this three-part test, which by its terms provides that

an athletics program complies with Title IX if it satisfies any

one of the above conditions. See Neal, 198 F.3d at 767–68.5

A

Sweetwater contends that the district court erred in

granting summary judgment to Plaintiffs on their Title IX

unequal participation claim because (1) there is “overall

proportionality between the sexes” in athletics at Castle Park;

(2) Castle Park “expanded the number of athletic teams for

female participation over a 10-year period”; (3) “the trend

over 10 years showed increased female participation in

sports” at Castle Park; and (4) Castle Park “accommodated

express female interest” in state-sanctioned varsity sports.

Relatedly, Sweetwater argues that there was insufficient

interest among female students to sustain viable teams in field

hockey, water polo, or tennis.

5

We give deference to the Department of Education’s guidance

according to Chevron USA v. Natural Resources Defense Council,

467 U.S. 837, 843–44 (1984). See Mansourian v. Regents of Univ. of

Cal., 602 F.3d 957, 965 n.9 (9th Cir. 2010).

14 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Plaintiffs, on the other hand, contend that (1) the number

of female athletes at Castle Park has consistently lagged

behind overall female enrollment at the school—that is, the

two figures are not “substantially proportionate”; (2) the

number of teams on which girls could theoretically participate

is irrelevant under Title IX, which considers only the number

of female athletes; and (3) “girls’ interest and ability were not

slaked by existing programs.”

The United States as amicus curiae sides with Plaintiffs

and urges us to affirm the district court’s award of summary

judgment. The Government says that the district court

“properly analyzed” Castle Park’s athletic program under the

three-part “effective accommodation” test, and that it

correctly concluded that Sweetwater “failed to provide

nondiscriminatory athletic participation opportunities to

female students” at Castle Park. The Government’s position

rejects Sweetwater’s argument that Title IX should be applied

differently to high schools than to colleges, as well as the idea

that the district court’s “substantial proportionality”

evaluation was flawed.6 We agree with the Government that

the three-part test applies to a high school. This is suggested

by the Government’s regulations, See 34 C.F.R. § 106.41(a)

(disallowing sex discrimination “in any interscholastic,

intercollegiate, club or intramural athletics”), and,

accordingly, apply the three-part “effective accommodation”

test here. Although this regulation does not explicitly refer to

high schools, it does not distinguish between high schools and

6

On appeal, Sweetwater propounds a new theory that, with respect to

the first prong of the “effective accommodation” test, “the idea of

proportionality relies on percentages, rather than absolute numbers.” The

Government calls this theory, which has no precedential support, “flatly

incorrect.”

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 15

other types of interscholastic, club or intramural athletics.

We give Chevron deference to this regulation. See note 5,

supra. See also McCormick ex rel. McCormick v. School

Dist. of Mamaroneck, 370 F.3d 275, 300 (2d Cir. 2004)

(applying three-part test to high school districts); Horner v.

Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 272–75 (6th Cir.

1994) (same).

B

In 1996, the Department of Education clarified that our

analysis under the first prong of the Title IX “effective

accommodation” test—that is, our analysis of whether

“participation opportunities for male and female students are

provided in numbers substantially proportionate to their

respective enrollments,” 44 Fed. Reg. at 71,418—“begins

with a determination of the number of participation

opportunities afforded to male and female athletes.” Office

of Civil Rights, U.S. Dep’t of Educ., Clarification of

Intercollegiate Athletics Policy Guidance: The Three-Part

Test (Jan. 16, 1996) (“1996 Clarification”). In making this

determination, we count only “actual athletes,” not “unfilled

slots,” because Title IX participation opportunities are “real,

not illusory.” Letter from Norma V. Cantú, Assistant Sec’y

for Civil Rights, Office of Civil Rights, U.S. Dep’t of Educ.,

to Colleagues (Jan. 16, 1996) (“1996 Letter”).

The second step of our analysis under the first prong of

the three-prong test is to consider whether the number of

participation opportunities—i.e., athletes—is substantially

proportionate to each sex’s enrollment. See 1996

Clarification; see also Biediger v. Quinnipiac Univ., 691 F.3d

85, 94 (2d Cir. 2012). Exact proportionality is not required,

and there is no “magic number at which substantial

16 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

proportionality is achieved.” Equity in Athletics, Inc. v. Dep’t

of Educ., 639 F.3d 91, 110 (4th Cir. 2011); see also 1996

Clarification. Rather, “substantial proportionality is

determined on a case-by-case basis in light of ‘the

institution’s specific circumstances and the size of its athletic

program.’” Biediger, 691 F.3d at 94 (quoting 1996

Clarification).7 As a general rule, there is substantial

proportionality “if the number of additional participants . . .

required for exact proportionality ‘would not be sufficient to

sustain a viable team.’” Id. (quoting 1996 Clarification).

Between 1998 and 2008, female enrollment at Castle Park

ranged from a low of 975 (in the 2007–2008 school year) to

a high of 1133 (2001–2002). Male enrollment ranged from

1128 (2000–2001) to 1292 (2004–2005). Female athletes

ranged from 144 (1999–2000 and 2003–2004) to 198

(2002–2003), while male athletes ranged from 221

(2005–2006) to 343 (2004–2005). Perhaps more helpfully

stated, girls made up 45.4–49.6 percent of the student body at

Castle Park but only 33.4–40.8 percent of the athletes from

1998 to 2008. At no point in that ten-year span was the

disparity between the percentage of female athletes and the

percentage of female students less than 6.7 percent. It was

less than 10 percent in only three years, and at least 13

percent in five years. In the three years at issue in this

7

An institution that sought to explain a disparity from substantial

proportionality should show how its specific circumstances justifiably

explain the reasons for the disparity as being beyond its control.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 17

lawsuit, the disparities were 6.7 percent (2005–2006), 10.3

percent (2006–2007), and 6.7 percent (2007–2008).8

There is no question that exact proportionality is lacking

at Castle Park. Sweetwater concedes as much. Whether there

is substantial proportionality, however, requires us to look

beyond the raw numbers to “the institution’s specific

circumstances and the size of its athletic program.” 1996

Clarification. Instructive on this point is the Department of

Education’s guidance that substantial proportionality

generally requires that “the number of additional participants

. . . required for exact proportionality” be insufficient “to

sustain a viable team.” Biediger, 691 F.3d at 94 (internal

quotation marks omitted).

At Castle Park, the 6.7 percent disparity in the 2007–2008

school year was equivalent to 47 girls who would have played

sports if participation were exactly proportional to enrollment

and no fewer boys participated.9 As the district court noted,

47 girls can sustain at least one viable competitive team.10

Defendants failed to raise more than a conclusory assertion

8

That there are “more athletic sports teams for girls (23) than . . . for

boys (21)” at Castle Park is not controlling. We agree with Plaintiffs that

counting “sham girls’ teams,” like multiple levels of football and

wrestling, despite limited participation by girls in those sports, is “both

misleading and inaccurate.” It is the number of female athletes that

matters. After all, Title IX “participation opportunities must be real, not

illusory.” 1996 Letter.

9

In 2005–2006 (6.7 percent; 48 girls) and 2006–2007 (10.3 percent; 92

girls), the disparity was even greater.

10

The Department of Education says only that a 62-woman gap would

likely preclude a finding of substantial proportionality, but that a six-

woman gap would likely not. 1996 Clarification.

18 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

that the specific circumstances at Castle Park explained the

6.7% disparity between female participation opportunities

and female enrollment, or that Castle Park could not support

a viable competitive team drawn from the 47 girls. As a

matter of law, then, we conclude that female athletic

participation and overall female enrollment were not

“substantially proportionate” at Castle Park at the relevant

times.

C

Participation need not be substantially proportionate to

enrollment, however, if Sweetwater can show “a history and

continuing practice of program expansion which is

demonstrably responsive to the developing interest and

abilities of” female athletes. 44 Fed. Reg. at 71,418; see also

Neal, 198 F.3d at 767–68. This second prong of the Title IX

“effective accommodation” test “looks at an institution’s past

and continuing remedial efforts to provide nondiscriminatory

participation opportunities through program expansion.”

1996 Clarification. The Department of Education’s 1996

guidance is helpful: “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 developing interests and abilities

of” female students. Id. The guidance also makes clear that

an institution must do more than show a history of program

expansion; it “must demonstrate a continuing (i.e., present)

practice of program expansion as warranted by developing

interests and abilities.” Id.

Sweetwater contends that Castle Park has increased the

number of teams on which girls can play in the last decade,

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 19

showing evidence of the kind “history and continuing practice

of program expansion” sufficient to overcome a lack of

“substantial proportionality” between female athletic

participation and overall female enrollment. But

Sweetwater’s methodology is flawed, and its argument misses

the point of Title IX. The number of teams on which girls

could theoretically participate is not controlling under Title

IX, which focuses on the number of female athletes. See

Mansourian, 602 F.3d at 969 (“The [Prong] Two analysis

focuses primarily . . . on increasing the number of women’s

athletic opportunities rather than increasing the number of

women’s teams.”).

The number of female athletes at Castle Park has varied

since 1998, but there were more girls playing sports in the

1998–1999 school year (156) than in the 2007–2008 school

year (149). The four most recent years for which we have

data show that a graph of female athletic participation at

Castle Park over time looks nothing like the upward trend line

that Title IX requires. The number of female athletes shrank

from 172 in the 2004–2005 school year to 146 in 2005–2006,

before growing to 174 in 2006–2007 and shrinking again to

149 in 2007–2008. As Plaintiffs suggest, these “dramatic ups

and downs” are far from the kind of “steady march forward”

that an institution must show to demonstrate Title IX

compliance under the second prong of the three-part test. We

conclude that there is no “history and continuing practice of

program expansion” for women’s sports at Castle Park.

D

Female athletic participation is not substantially

proportionate to overall female enrollment at Castle Park.

And there is no history or continuing practice of program

20 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

expansion for women’s sports at the school. And yet,

Sweetwater can still satisfy Title IX if it proves “that the

interests and abilities of” female students “have been fully

and effectively accommodated by the present program.”

44 Fed. Reg. at 71,418; see also Neal, 198 F.3d at 767–68.

This, the third prong of the Title IX “effective

accommodation” test, considers whether a gender imbalance

in athletics is the product of impermissible discrimination or

merely of the genders’ varying levels of interest in sports.

See 1996 Clarification. Stated another way, a school where

fewer girls than boys play sports does not violate Title IX if

the imbalance is the result of girls’ lack of interest in

athletics.

The Department of Education’s 1996 guidance is again

instructive: In evaluating compliance under the third prong,

we must consider whether there is (1) “unmet interest in a

particular sport”; (2) ability to support a team in that sport;

and (3) a “reasonable expectation of competition for the

team.” Id. Sweetwater would be Title IX-compliant unless

all three conditions are present. See id. Finally, if an

“institution has recently eliminated a viable team,” we

presume “that there is sufficient interest, ability, and available

competition to sustain” a team in that sport absent strong

evidence that conditions have changed. Id.; see also Cohen

v. Brown Univ., 101 F.3d 155, 180 (1st Cir. 1996).

Sweetwater contends that (1) Plaintiffs were required to,

but did not, conduct official surveys of female students at

Castle Park to gauge unmet interest; (2) field hockey is

irrelevant for Title IX purposes because it is not approved by

the California Interscholastic Federation (“CIF”); and (3) in

any event, field hockey was eliminated only because interest

in the sport waned.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 21

Sweetwater’s arguments are either factually wrong or

without legal support. First, Title IX plaintiffs need not

themselves gauge interest in any particular sport. It is the

school district that should evaluate student interest

“periodically” to “identify in a timely and responsive manner

any developing interests and abilities of the underrepresented

sex.” 1996 Clarification. Second, field hockey is a CIF-

approved sport.11 But even if it were not, Sweetwater’s

position is foreclosed by Title IX’s implementing regulations,

which state that compliance “is not obviated or alleviated by

any rule or regulation of any organization, club, athletic or

other league, or association.” 34 C.F.R. § 106.6(c); see also

Biediger, 691 F.3d at 93–94 (noting that we are to determine

whether a particular “activity qualifies as a sport by reference

to several factors relating to ‘program structure and

administration’ and ‘team preparation and competition’”

(quoting Letter from Stephanie Monroe, Assistant Sec’y for

Civil Rights, Office of Civil Rights, U.S. Dep’t of Educ., to

Colleagues (Sept. 17, 2008))). Third, the record makes clear

that Castle Park cut its field hockey team not because interest

in the sport waned, but because it was unable to find a coach.

And the school’s inability to hire a coach does not indicate

lack of student interest in the sport.

Castle Park offered field hockey from 2001 through 2005,

during which time the team ranged in size from 16 to 25 girls.

It cut the sport before the 2005–2006 school year before

offering it again in 2006–2007. It then cut field hockey a

second time before the 2007–2008 school year. The

Department of Education’s guidance is clear on this point: “If

11

See Field Hockey, Cal. Interscholastic Fed’n,

http://www.cifstate.org/index.php/other-approved-sports/field-hockey (last

visited July 28, 2014).

22 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

an institution has recently eliminated a viable team . . . , there

is sufficient interest, ability, and available competition to

sustain a[] . . . team in that sport unless an institution can

provide strong evidence that interest, ability, or available

competition no longer exists.” 1996 Clarification; see also

Cohen, 101 F.3d at 180. Castle Park’s decision to cut field

hockey twice during the relevant time period, coupled with its

inability to show that its motivations were legitimate, is

enough to show sufficient interest, ability, and available

competition to sustain a field hockey team.

E

We conclude that Sweetwater has not fully and effectively

accommodated the interests and abilities of its female

athletes. The district court did not err in its award of

summary judgment to Plaintiffs on their Title IX unequal

participation claim, and we affirm the grant of injunctive

relief to Plaintiffs on that issue.

III

We review a district court’s evidentiary rulings, such as

its decisions to exclude expert testimony and to impose

discovery sanctions, for an abuse of discretion, and a showing

of prejudice is required for reversal. See Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014) (en

banc); see also United States v. Chao Fan Xu, 706 F.3d 965,

984 (9th Cir. 2013) (exclusion of expert testimony); R & R

Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1245 (9th Cir.

2012) (imposition of discovery sanctions for Rule 26(a) and

(e) violations).

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 23

In non-jury cases such as this one, “the district judge is

given great latitude in the admission or exclusion of

evidence.” Hollinger v. United States, 651 F.2d 636, 640 (9th

Cir. 1981). The Supreme Court has said that district courts

have “broad latitude” to determine whether expert testimony

is sufficiently reliable to be admitted. Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 153 (1999). And “we give

particularly wide latitude to the district court’s discretion to

issue sanctions under Rule 37(c)(1),” which is “a recognized

broadening of the sanctioning power.” Yeti by Molly, Ltd. v.

Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001);

see also R & R Sails, 673 F.3d at 1245 (same); Jeff D. v.

Otter, 643 F.3d 278, 289 (9th Cir. 2011) (“[A] district court

has wide discretion in controlling discovery.”) (alteration in

original) (internal quotation marks omitted).

A

We first address the exclusion of defense experts. Federal

Rule of Evidence 702 governs the admissibility of expert

testimony. It provides that a witness “qualified as an expert

by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise if”:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of

fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient facts

or data;

(c) the testimony is the product of reliable

principles and methods; and

24 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

(d) the expert has reliably applied the

principles and methods to the facts of the

case.

Fed. R. Evid. 702.

“It is well settled that bare qualifications alone cannot

establish the admissibility of . . . expert testimony.” United

States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002).

Rather, we have interpreted Rule 702 to require that “[e]xpert

testimony . . . be both relevant and reliable.” Estate of

Barabin, 740 F.3d at 463 (alteration and ellipsis in original)

(internal quotation marks omitted). A proposed expert’s

testimony, then, must “have a reliable basis in the knowledge

and experience of his discipline.” Kumho Tire, 526 U.S. at

148 (internal quotation marks omitted). This requires district

courts, acting in a “gatekeeping role,” to assess “whether the

reasoning or methodology underlying the testimony” is valid

and “whether that reasoning or methodology properly can be

applied to the facts in issue.” Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 592–93, 597 (1993) (“Daubert

I”). It is not “the correctness of the expert’s conclusions” that

matters, but “the soundness of his methodology.” Estate of

Barabin, 740 F.3d at 463 (internal quotation marks omitted).

The district court excluded the proposed testimony of

Peter Schiff—a retired superintendent of a different school

district who would have testified about “the finances of

schools and high school athletic programs, as well as

equitable access to school facilities at Castle Park,”—because

it could not “discern what, if any, method he employed in

arriving at his opinions.” The district court also found that

Schiff’s “conclusions appear to be based on his personal

opinions and speculation rather than on a systematic

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 25

assessment of . . . athletic facilities and programs at [Castle

Park].” Further, the district court called Schiff’s site visits

“superficial,” and noted that “experience with the non-

relevant issue of school finance” did not qualify him “to

opine on Title IX compliance.”

Similarly, the district court excluded the proposed

testimony of Penny Parker—an assistant principal at a

different high school who would have testified about the

“unique nature of high school softball and its role at Castle

Park,”—because her “methodology is not at all clear” and

“her opinions are speculative . . . inherently unreliable and

unsupported by the facts.”

We assume without deciding that (1) Schiff and Parker’s

proposed testimony was relevant, and (2) Schiff and Parker

were qualified as Title IX experts under Rule 702.

Nonetheless, we conclude that the district court did not abuse

its discretion when it struck both experts’ proposed

testimony. The record suggests that the district court’s

determination that Schiff and Parker’s proposed testimony

was based on, at best, an unreliable methodology, was not

illogical or implausible.

Schiff did not visit Castle Park to conduct an in-person

investigation until after he submitted his initial report on the

case. And when he did visit, his visit was cursory and not in-

season: Schiff only walked the softball and baseball fields.

His opinion that the “girls’ softball field was in excellent

shape,” then, was based on no more than a superficial visual

examination of the softball and baseball fields. Schiff—who

Sweetwater contends is qualified “to assess the state of the

athletic facilities for both boys and girls teams” at Castle Park

because of his “experience on the business side of athletics,”

26 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

his “extensive[]” work with CIF, and his high school baseball

coaching tenure—did not enter the softball or baseball

dugouts (or batting cages), and yet he sought to testify “on the

renovations to the softball field, including new fencing,

bleachers, and dugout areas.”

Parker’s only visit to Castle Park lasted barely an hour.

And that visit was as cursory as Schiff’s: Parker—a former

softball coach who Sweetwater offered as an expert on “all

aspects of the game of softball,”—“toured the Castle Park

facilities,” including the softball and baseball fields and boys

and girls locker rooms, and “was present while both a

baseball and a softball game were being played

simultaneously.” She “observed the playing surfaces, dugout

areas, field condition, fencing, bleachers, and amenities,” but

only from afar. Like Schiff, Parker took no photographs and

no measurements. She did not speak to anyone at Castle Park

about the fields. And she admitted that her proposed

testimony about the softball team’s allegedly inferior

fundraising and accounting practices was speculative.

Schiff and Parker based their proposed testimony on

superficial inspections of the Castle Park facilities. Even if

a visual walkthrough, without more, could be enough in some

cases to render expert testimony admissible under Rule 702,

it certainly does not compel that conclusion in all cases.

Moreover, as the district court found, Schiff and Parker’s

conclusions were based on their “personal opinions and

speculation rather than on a systematic assessment of [Castle

Park’s] athletic facilities and programs.” But personal

opinion testimony is inadmissible as a matter of law under

Rule 702, see Daubert v. Merrell Dow Pharm., Inc., 43 F.3d

1311, 1319 (9th Cir. 1995)(“Daubert II”), and speculative

testimony is inherently unreliable, see Diviero v. Uniroyal

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 27

Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir. 1997); see

also Daubert I, 509 U.S. at 590 (noting that expert testimony

based on mere “subjective belief or unsupported speculation”

is inadmissible). We cannot say the district court abused its

discretion when it barred Schiff and Parker from testifying at

trial after finding their testimony to be “inherently unreliable

and unsupported by the facts.” The district court properly

exercised its “gatekeeping role” under Daubert I, 509 U.S. at

597.

B

We next address the exclusion of fact witnesses. The

general issue is whether witnesses not listed in Rule 26(a)

disclosures—and who were identified 15 months after the

discovery cutoff and only ten months before trial—were

identified too late in the process.

The Federal Rules of Civil Procedure require parties to

provide to other parties “the name . . . of each individual

likely to have discoverable information—along with the

subjects of that information—that the disclosing party may

use to support its claims or defenses.” Fed. R. Civ. P.

26(a)(1)(A)(i). And “[a] party who has made a disclosure

under Rule 26(a) . . . must supplement or correct its

disclosure” in a “timely manner if the party learns that in

some material respect the disclosure . . . is incomplete or

incorrect, and if the additional or corrective information has

not otherwise been made known to the other parties during

the discovery process or in writing.” Id. R. 26(e). A party

that does not timely identify a witness under Rule 26 may not

use that witness to supply evidence at a trial “unless the

failure was substantially justified or is harmless.” Id. R.

37(c)(1); see also Yeti by Molly, 259 F.3d at 1105. Indeed,

28 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Rule 37(c)(1) is “intended to put teeth into the mandatory . . .

disclosure requirements” of Rule 26(a) and (e). 8B Charles

Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2289.1 (3d ed. 2014).

The district court excluded 38 Sweetwater witnesses as

untimely disclosed, in violation of Rule 26(a) and (e), in part

because it found “no reason why any of the 38 witnesses were

not disclosed to [P]laintiffs either initially or by timely

supplementation.” The district court concluded that “the

mere mention of a name in a deposition is insufficient” to

notify Plaintiffs that Sweetwater “intend[s] to present that

person at trial,” and that to “suggest otherwise flies in the

face of the requirements of Rule 26.” And the district court

reasoned that “[w]aiting until long after the close of discovery

and on the eve of trial to disclose allegedly relevant and non-

cumulative witnesses is harmful and without substantial

justification.”

A “district court has wide discretion in controlling

discovery.” Jeff D., 643 F.3d at 289 (internal quotation marks

omitted). And, as we noted earlier, that discretion is

“particularly wide” when it comes to excluding witnesses

under Rule 37(c)(1). Yeti by Molly, 259 F.3d at 1106.

Sweetwater argues that exclusion of 30 of its 38 witnesses

was an abuse of discretion because (1) “Plaintiffs were made

aware” of those witnesses during discovery—specifically,

during Plaintiffs’ depositions of other Sweetwater witnesses,

and (2) any violation of Rule 26 “was harmless to Plaintiffs.”

Of the remaining eight witnesses, Sweetwater contends that

untimely disclosure was both justified because those

witnesses were not employed at Castle Park before the

discovery cutoff date, and harmless because they were

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 29

disclosed more than eight months before trial. We conclude

that the district court did not abuse its discretion by imposing

a discovery sanction. The record amply supports the district

court’s discretionary determination that Sweetwater’s lapse

was not justified or harmless.

Initial Rule 26(a) disclosures were due October 29, 2007.

At least 12 of Sweetwater’s 38 contested witnesses were

Castle Park employees by that date. The discovery cutoff

was August 8, 2008, and lay witness depositions had to be

completed by September 30, 2008. At least 19 of the 38

witnesses were Castle Park employees by those dates. And

yet, Sweetwater did not disclose any of the 38 witnesses until

November 23, 2009, more than 15 months after the close of

discovery and less than a year before trial.

Sweetwater does not dispute that it did not formally offer

the names of any of the 38 witnesses by the October 29, 2007,

deadline for initial Rule 26(a) disclosures (or by the August

8, 2008, discovery cutoff, for that matter). Nor does it

dispute that it did not “supplement or correct its disclosure or

response,” see Fed. R. Civ. P. 26(a)(1), by offering the

witnesses’ names in accord with Rule 26(e). Instead,

Sweetwater contends that because other disclosed witnesses

had mentioned the contested witnesses at their depositions,

Plaintiffs were on notice that the contested witnesses might

testify and were not prejudiced by untimely disclosure.

Sweetwater contends, in essence, that it complied with Rule

26 because Plaintiffs knew of the contested witnesses’

existence.

The district court did not abuse its discretion by rejecting

Sweetwater’s argument. The theory of disclosure under the

Federal Rules of Civil Procedure is to encourage parties to try

30 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

cases on the merits, not by surprise, and not by ambush.

After disclosures of witnesses are made, a party can conduct

discovery of what those witnesses would say on relevant

issues, which in turn informs the party’s judgment about

which witnesses it may want to call at trial, either to

controvert testimony or to put it in context. Orderly

procedure requires timely disclosure so that trial efforts are

enhanced and efficient, and the trial process is improved. The

late disclosure of witnesses throws a wrench into the

machinery of trial. A party might be able to scramble to

make up for the delay, but last-minute discovery may disrupt

other plans. And if the discovery cutoff has passed, the party

cannot conduct discovery without a court order permitting

extension. This in turn threatens whether a scheduled trial

date is viable. And it impairs the ability of every trial court

to manage its docket.

With these considerations in mind, we return to the

governing rules. Rule 26 states that “a party must, without

awaiting a discovery request, provide to the other parties . . .

the name and, if known, the address and telephone number of

each individual likely to have discoverable information.”

Fed. R. Civ. P. 26(a)(1)(A) (emphasis added). Compliance

with Rule 26’s disclosure requirements is “mandatory.”

Repulic of Ecuador v. Mackay, 742 F.3d 860, 865 (9th Cir.

2014).

The rule places the disclosure obligation on a “party.”

That another witness has made a passing reference in a

deposition to a person with knowledge or responsibilities who

could conceivably be a witness does not satisfy a party’s

disclosure obligations. An adverse party should not have to

guess which undisclosed witnesses may be called to testify.

We—and the Advisory Committee on the Federal Rules of

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 31

Civil Procedure—have warned litigants not to “‘indulge in

gamesmanship with respect to the disclosure obligations’” of

Rule 26. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 n.3

(9th Cir. 1994) (quoting Fed. R. Civ. P. 26 advisory

committee’s note (1993 amend.)). The record shows that the

district court did not abuse its discretion when it concluded

that Sweetwater’s attempt to obfuscate the meaning of Rule

26(a) was just this sort of gamesmanship. There was no error

in the district court’s conclusion that “the mere mention of a

name in a deposition is insufficient to give notice to”

Plaintiffs that Sweetwater “intend[ed] to present that person

at trial.”

The district court did not abuse its discretion when it

concluded that Sweetwater’s failure to comply with Rule 26’s

disclosure requirement was neither substantially justified nor

harmless. See Fed. R. Civ. P. 37(c)(1). Sweetwater does not

argue that its untimely disclosure of these 30 witnesses was

substantially justified. Nor was it harmless. Had

Sweetwater’s witnesses been allowed to testify at trial,

Plaintiffs would have had to depose them—or at least to

consider which witnesses were worth deposing—and to

prepare to question them at trial. See Yeti by Molly, 259 F.3d

at 1107. The record demonstrates that the district court’s

conclusion, that reopening discovery before trial would have

burdened Plaintiffs and disrupted the court’s and the parties’

schedules, was well within its discretion. The last thing a

party or its counsel wants in a hotly contested lawsuit is to

make last-minute preparations and decisions on the run. The

late disclosures here were not harmless. See Hoffman v.

Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir.

2008).

32 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Nor did the district court abuse its discretion by finding

that the untimely disclosure of the eight remaining witnesses

also was not harmless. Allowing these witnesses to testify

and reopening discovery would have had the same costly and

disruptive effects. Nor was it substantially justified merely

because the eight witnesses were not employed at Castle Park

until after the discovery cutoff date. Sanctioning this

argument would force us to read the supplementation

requirement out of Rule 26(e). We will not do that.

Sweetwater did not comply with the disclosure

requirements of Rule 26(a) and (e). That failure was neither

substantially justified nor harmless. The district court did not

abuse its discretion when it excluded Sweetwater’s 38

untimely disclosed witnesses from testifying at trial.

C

The next issue concerns whether the district court abused

its discretion by declining to consider contemporaneous

evidence at trial. On April 26, 2010, the district court set a

June 15, 2010, cutoff date for Sweetwater to provide evidence

of “continuous repairs and renovations of athletic facilities at

Castle Park” for consideration at trial. Improvements made

after June 15, 2010, but before the start of trial on September

14, 2010, the district court explained, would not be

considered. Sweetwater did not then object to the district

court’s decision.

On appeal, however, Sweetwater argues that injunctive

relief should be based on contemporaneous evidence, not on

evidence of past harm. And if the district court had

considered contemporaneous evidence at trial, Sweetwater

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 33

speculates, it would have found Castle Park in compliance

with Title IX and would not have issued an injunction.

This argument fails for several reasons. First, a “trial

court’s power to control the conduct of trial is broad.” United

States v. Panza, 612 F.2d 432, 438 (9th Cir. 1979).

Establishing a cutoff date after which it would not consider

supplemental improvements to facilities at Castle

Park—especially one that was only 90 days before

trial—aided orderly pre-trial procedure and was well within

the district court’s discretion.

Second, the district court did consider some of

Sweetwater’s remedial improvements, “particularly with

respect to the girls’ softball facility,” but concluded that

“those steps have not been consistent, adequate or

comprehensive” and that “many violations of Title IX have

not been remedied or even addressed.” Sweetwater’s

contention that “the District Court appeared to ignore key

evidence of changed facilities” is unpersuasive.

Third, even if contemporaneous evidence showed that

Sweetwater was complying with Title IX at the time of trial,

the district court still could have issued an injunction based

on past harm. See United States v. Mass. Mar. Acad.,

762 F.2d 142, 157–58 (1st Cir. 1985). The plaintiff class

included future students, who were protected by the

injunction. “Voluntary cessation” of wrongful conduct “does

not moot a case or controversy unless subsequent events

ma[ke] it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.

701, 719 (2007) (alteration in original) (internal quotation

marks omitted).

34 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Fourth, the district court found no evidence that

Sweetwater had “addressed or implemented policies or

procedures designed to cure the myriad areas of general

noncompliance with Title IX.” In light of the systemic

problem of gender inequity in the Castle Park athletics

program, the district court did not abuse its discretion by

issuing an injunction requiring Sweetwater to comply with

Title IX.

IV

We review de novo a district court’s decision to deny a

Rule 12(b)(6) motion to dismiss.12 See Dunn v. Castro,

621 F.3d 1196, 1198 (9th Cir. 2010). Similarly, whether a

party has standing to bring a claim is a question of law that

we review de novo. See Jewel v. Nat’l Sec. Agency, 673 F.3d

902, 907 (9th Cir. 2011). But we review a district court’s

fact-finding on standing questions for clear error. See In re

ATM Fee Antitrust Litig., 686 F.3d 741, 747 (9th Cir. 2012).

Article III of the Constitution requires a party to have

standing to bring its suit. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). The elements of standing are well-

established: the party must have suffered (1) an “injury in

fact—an invasion of a legally protected interest which is

(a) concrete and particularized; and (b) actual or imminent,

not conjectural or hypothetical”; (2) “there must be a causal

connection between the injury and the conduct complained

of,” meaning the injury has to be “fairly traceable to the

challenged action of the defendant”; and (3) “it must be

12

Because the district court construed Sweetwater’s motion to strike

Plaintiffs’ Title IX retaliation claim as a Rule 12(b)(6) motion to dismiss

that claim, see Ollier, 735 F. Supp. 2d at 1224, we do the same.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 35

likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.” Id. at 560–61

(alteration, ellipsis, citations, and internal quotation marks

omitted).13 “In a class action, standing is satisfied if at least

one named plaintiff meets the requirements.” Bates v. United

Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en

banc).

The district court held that Plaintiffs had standing to bring

their Title IX retaliation claim, but gave few reasons for its

decision. See Ollier, 735 F. Supp. 2d at 1226. On appeal,

Sweetwater argues, as it did before the district court, that

Plaintiffs lack standing to enjoin the retaliatory action

allegedly taken against Coach Martinez because students may

not “recover for adverse retaliatory employment actions taken

against” an educator, even if that educator “engaged in

protected activity on behalf of the students.” Sweetwater

contends that while Coach Martinez would have had standing

to bring a Title IX retaliation claim himself, the “third party”

students cannot “maintain a valid cause of action for

retaliation under Title IX for their coach’s protected activity

and the adverse employment action taken against the coach.”

We reject this argument. It misunderstands Plaintiffs’

claim, which asserts that Sweetwater impermissibly retaliated

against them by firing Coach Martinez in response to Title IX

13

Sweetwater does not contest that Plaintiffs’ alleged harm is “fairly

traceable” to them. Sweetwater’s argument against redressability is

premised on the idea that prospective injunctive relief cannot redress past

harm. Because Plaintiffs’ harm is ongoing, that argument fails. See

McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d

275, 284–85 (2d Cir. 2004); see also N. Haven Bd. of Educ. v. Bell,

456 U.S. 512, 553 n.15 (1982) (Powell, J., dissenting). Only Plaintiffs’

alleged injury in fact, then, is at issue in our analysis.

36 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

complaints he made on Plaintiffs’ behalf. With their softball

coach fired, Plaintiffs’ prospects for competing were

hampered. Stated another way, Plaintiffs’ Title IX retaliation

claim seeks to vindicate not Coach Martinez’s rights, but

Plaintiffs’ own rights. Because Plaintiffs were asserting their

own “legal rights and interests,” not a claim of their coach,

the generally strict limitations on third-party standing do not

bar their claim. See Warth v. Seldin, 422 U.S. 490, 499

(1975).

Justice O’Connor correctly said that “teachers and

coaches . . . are often in the best position to vindicate the

rights of their students because they are better able to identify

discrimination and bring it to the attention of administrators.

Indeed, sometimes adult employees are the only effective

adversaries of discrimination in schools.” Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 181 (2005)

(alteration and internal quotation marks omitted).

Sweetwater’s position—that Plaintiffs lack standing because

it was not they who made the Title IX complaints—would

allow any school facing a Title IX retaliation suit brought by

students who did not themselves make Title IX complaints to

insulate itself simply by firing (or otherwise silencing) those

who made the Title IX complaints on the students’ behalf.

We will “not assume that Congress left such a gap” in Title

IX’s enforcement scheme. Id.

An injured party may sue under the Administrative

Procedure Act, 5 U.S.C. § 551 et seq., if he “falls within the

‘zone of interests’ sought to be protected by the statutory

provision whose violation forms the legal basis for his

complaint.” Thompson v. N. Am. Stainless, LP, 131 S. Ct.

863, 870 (2011) (internal quotation marks omitted).

Plaintiffs, of course, do not bring their suit under the APA,

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 37

but the Supreme Court has extended its “zone of interests”

jurisprudence to cases brought under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., whose anti-

retaliation provisions are analogous here. See Thompson,

131 S. Ct. at 870. And students like Plaintiffs surely fall

within the “zone of interests” that Title IX’s implicit anti-

retaliation provisions seek to protect. See Jackson, 544 U.S.

at 173–77.

Finally, the Supreme Court has foreclosed Sweetwater’s

position. Faced with the argument that anti-retaliation

provisions limit standing to those “who engaged in the

protected activity” and were “the subject of unlawful

retaliation,” the Court has said that such a position is an

“artificially narrow” reading with “no basis in text or prior

practice.” Thompson, 131 S. Ct. at 869-70.14 Rather, “any

plaintiff with an interest arguably sought to be protected by”

a statute with an anti-retaliation provision has standing to sue

under that statute. Id. at 870 (alteration and internal quotation

marks omitted). Students have “an interest arguably sought

to be protected by” Title IX—indeed, students are the

statute’s very focus.

Coach Martinez gave softball players extra practice time

and individualized attention, persuaded volunteer coaches to

help with specialized skills, and arranged for the team to play

in tournaments attended by college recruiters. The softball

team was stronger with Coach Martinez than without him.

After Coach Martinez was fired, Sweetwater stripped the

softball team of its voluntary assistant coaches, canceled the

team’s 2007 awards banquet, and forbade the team from

14

Thompson v. North American Stainless, LP was a Title VII case, but

the Supreme Court’s reasoning applies with equal force to Title IX.

38 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

participating in a Las Vegas tournament attended by college

recruiters. The district court found these injuries, among

others, sufficient to confer standing on Plaintiffs. We agree.

Plaintiffs have alleged judicially cognizable injuries

flowing from Sweetwater’s retaliatory responses to Title IX

complaints made by their parents and Coach Martinez. The

district court’s ruling that Plaintiffs have Article III standing

to bring their Title IX retaliation claim and its decision to

deny Sweetwater’s motion to strike that claim were not error.

V

We review a district court’s decision to grant a permanent

injunction for an abuse of discretion, but we review for clear

error the factual findings underpinning the award of

injunctive relief, see Momot v. Mastro, 652 F.3d 982, 986

(9th Cir. 2011), just as we review for clear error a district

court’s findings of fact after bench trial. See Spokane Arcade,

Inc. v. City of Spokane, 75 F.3d 663, 665 (9th Cir. 1996).

However, we review de novo “the rulings of law relied upon

by the district court in awarding injunctive relief.” Sierra

Forest Legacy v. Sherman, 646 F.3d 1161, 1177 (9th Cir.

2011) (internal quotation marks omitted).

We come to the substance of Plaintiffs’ retaliation claim,

an important part of this case. “Title IX’s private right of

action encompasses suits for retaliation, because retaliation

falls within the statute’s prohibition of intentional

discrimination on the basis of sex. . . . Indeed, if retaliation

were not prohibited, Title IX’s enforcement scheme would

unravel.” Jackson, 544 U.S. at 178, 180. The Supreme Court

“has often looked to its Title VII interpretations . . . in

illuminating Title IX,” so we apply to Title IX retaliation

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 39

claims “the familiar framework used to decide retaliation

claims under Title VII.” Emeldi v. Univ. of Or., 698 F.3d

715, 724–25 (9th Cir. 2012), cert. denied, 133 S. Ct. 1997

(2013) (internal quotation marks omitted).

Under that framework, a “plaintiff who lacks direct

evidence of retaliation must first make out a prima facie case

of retaliation by showing (a) that he or she was engaged in

protected activity, (b) that he or she suffered an adverse

action, and (c) that there was a causal link between the two.”

Id. at 724. The burden on a plaintiff to show a prima facie

case of retaliation is low. Only “a minimal threshold showing

of retaliation” is required. Id. After a plaintiff has made this

showing, the burden shifts to the defendant to “articulate a

legitimate, non-retaliatory reason for the challenged action.”

Id. If the defendant can do so, the burden shifts back to the

plaintiff to show that the reason is pretextual. See id.

A

The district court found that Plaintiffs had made out a

prima facie case of retaliation: They engaged in protected

activity when they complained about Title IX violations in

May and July 2006 and when they filed their complaint in

April 2007. They suffered adverse action because the softball

program was “significantly disrupted” when, among other

things, Coach Martinez was fired and replaced by a “far less

experienced coach.” And a causal link between Plaintiffs’

protected conduct and the adverse actions they suffered “may

be established by an inference derived from circumstantial

evidence”—in this case, the “temporal proximity” between

Plaintiffs’ engaging in protected activity in May 2006, July

2006, and April 2007, and the adverse actions taken against

them in July 2006 and spring 2007.

40 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

Sweetwater contends that these findings were clearly

erroneous because (1) “At most, the named plaintiffs who

attended CPHS at the time of the complaints can legitimately

state they engaged in protected activity”; (2) the district court

did not articulate the standard it used to determine which

actions were “adverse” and did not, as Sweetwater says was

required, evaluate whether Plaintiffs “were denied access to

the educational opportunities or benefits provided by the

school as a direct result of retaliation”; and (3) there was no

causal link between protected activity and adverse action

because Coach Martinez was fired to make way for a

certified, on-site teacher, not because of any Title IX

complaints.

“In the Title IX context, speaking out against sex

discrimination . . . is protected activity.” Id. at 725 (alteration

and internal quotation marks omitted). Indeed, “Title IX

empowers a woman student to complain, without fear of

retaliation, that the educational establishment treats women

unequally.” Id. That is precisely what happened here. The

father of two of the named plaintiffs complained to the Castle

Park athletic director in May 2006 about Title IX violations;

Plaintiffs’ counsel sent Sweetwater a demand letter in July

2006 regarding Title IX violations at Castle Park; and

Plaintiffs filed their class action complaint in April 2007.

These are indisputably protected activities under Title IX, and

the district court’s finding to that effect was not clearly

erroneous.

It is not a viable argument for Sweetwater to urge that a

class may not “sue a school district for retaliation in a Title

IX athletics case.” As we have previously held: “The

existence of a private right of action to enforce Title IX is

well-established.” Mansourian v. Regents of Univ. of

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 41

California, 602 F.3d 957, 964 n.6 (9th Cir. 2010). Further, a

private right of action under Title IX includes a claim for

retaliation. As the United States Supreme Court has said:

“Title IX’s private right of action encompasses suits for

retaliation, because retaliation falls within the statute’s

prohibition of intentional discrimination on the basis of

sex. . . . Indeed, if retaliation were not prohibited, Title IX’s

enforcement scheme would unravel.” Jackson, 544 U.S. at

178, 180. Nor is it a viable argument for Sweetwater to

complain that only some members of the plaintiff’s class

who attended CPHS when complaints were made can urge

they engaged in protected activity. That the class includes

students who were not members of the softball team at the

time of retaliation, and who benefit from the relief, does not

impair the validity of the relief. See Thompson v. N. Am.

Stainless, LP, 562 U.S. 170, 131 S. Ct. 863, 870, 178 L. Ed.

2d 694 (2011) (holding that Title VII “enabl[es] suit by any

plaintiff with an interest arguably sought to be protected.”)

(internal quotations and alteration omitted); Mansourian,

602 F.3d at 962 (approving a class of female wrestlers “on

behalf of all current and future female” university students).

The relief of injunction is equitable, and the district court had

broad powers to tailor equitable relief so as to vindicate the

rights of former and future students. See generally Dobbs on

Remedies, §§ 2.4, 2.9.

Under Title IX, as under Title VII, “the adverse action

element is present when ‘a reasonable [person] would have

found the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable

[person] from making or supporting a charge of

discrimination.’” Id. at 726 (alterations in original) (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)). Sweetwater does not argue—because it cannot

42 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

argue—that the district court’s adverse action findings do not

satisfy this standard.15 The district court found that Plaintiffs’

“successful softball program was significantly disrupted to

the detriment of the program and participants” because:

(1) Coach Martinez was fired and replaced by a “far less

experienced coach”; (2) the team was stripped of its assistant

coaches; (3) the team’s annual award banquet was canceled

in 2007; (4) parents were prohibited from volunteering with

the team; and (5) the team was not allowed to participate in

a Las Vegas tournament attended by college recruiters. It

was not clear error for the district court to conclude that a

reasonable person could have found any of these actions

“materially adverse” such that they “well might have

dissuaded [him] from making or supporting a charge of

discrimination.” Id. (internal quotation marks omitted).

We construe the causal link element of the retaliation

framework “broadly”; a plaintiff “merely has to prove that the

protected activity and the [adverse] action are not completely

unrelated.” Id. (internal quotation marks omitted). In Title

VII cases, causation “may be inferred from circumstantial

evidence, such as the [defendant’s] knowledge that the

plaintiff engaged in protected activities and the proximity in

time between the protected action and the allegedly

retaliatory” conduct. Yartzoff v. Thomas, 809 F.2d 1371,

1376 (9th Cir. 1987). Emeldi extended that rule to Title IX

cases. See 698 F.3d at 726 (“[T]he proximity in time

15

Rather, Sweetwater contends that the district court applied the wrong

standard and that Plaintiffs, to show adverse action, must prove “that they

were denied access to the educational opportunities or benefits provided

by the school as a direct result of retaliation.” Our decision in Emeldi v.

University of Oregon, however, illustrates that Sweetwater’s position is

simply not the law.

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 43

between” protected activity and allegedly retaliatory action

can be “strong circumstantial evidence of causation.”).

Plaintiffs have met their burden: They engaged in protected

activity in May 2006, July 2006, and April 2007. Coach

Martinez was fired in July 2006 and the annual awards

banquet was canceled in Spring 2007. The timing of these

events is enough in context to show causation in this Title IX

retaliation case. That the district court found as much was not

clearly erroneous. Plaintiffs state a prima facie case of Title

IX retaliation.

B

Sweetwater offered the district court four legitimate, non-

retaliatory reasons for firing Coach Martinez: First, Castle

Park wanted to replace its walk-on coaches with certified

teachers. Second, Coach Martinez mistakenly played an

ineligible student in 2005 and forced the softball team to

forfeit games as a result. Third, he allowed an unauthorized

parent to coach a summer softball team. Fourth, he filed late

paperwork related to the softball team’s participation in a Las

Vegas tournament—a mishap that Sweetwater said created an

unnecessary liability risk. The district court rejected each

reason, concluding that all four were “not credible and are

pretextual.”

Sweetwater argues on appeal that the district court

committed clear error by disregarding these legitimate, non-

retaliatory reasons because it “failed to evaluate and weigh

the evidence before it” when it “looked past the abundance of

uncontradicted information preexisting the Title IX

complaints . . . and focused almost entirely” on Coach

Martinez’s termination. Sweetwater also adds that Castle

Park did not renew Coach Martinez’s contract in part because

44 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

“he was a mean and intimidating person” who often spoke in

a “rough voice” and could be “abrasive.” Coach Martinez,

Sweetwater contends, “did not possess the guiding principles

required of a coach because he constantly failed to follow the

rules” at Castle Park.

Sweetwater disregards the salient fact that the district

court held a trial on retaliation. The district court could

permissibly find that, on the evidence it considered,

Sweetwater’s non-retaliatory reasons for firing Coach

Martinez were a pretext for unlawful retaliatory conduct.

First, Sweetwater contends that Castle Park fired Coach

Martinez “primarily” because he allowed an unauthorized

parent to coach a summer league team, but also that this

incident merely “played a role” in his firing, and that the

reason given Martinez when he was fired was that Castle Park

“wanted an on-site coach.” These shifting, inconsistent

reasons for Coach Martinez’s termination are themselves

evidence of pretext. See Hernandez v. Hughes Missile Sys.

Co., 362 F.3d 564, 569 (9th Cir. 2004) (“From the fact that

Raytheon has provided conflicting explanations of its

conduct, a jury could reasonably conclude that its most recent

explanation was pretextual.”).

Second, the district court’s findings underlying its

conclusion that Sweetwater’s “stated reasons for Martinez’s

termination are not credible and are pretextual” are

convincing and not clearly erroneous. Coach Martinez was

not fired as part of a coordinated campaign to replace walk-on

coaches with certified teachers, as Sweetwater contends.

There was a preference for certified teachers in place long

before Coach Martinez was hired, and there was no certified

teacher ready to replace him after he was fired. Nor was the

district court required by the evidence to find that Coach

OLLIER V. SWEETWATER UNION HIGH SCH. DIST. 45

Martinez was fired because he played an ineligible student

and forced the softball team to forfeit games as a result. This

incident occurred during the 2004–2005 school year, but

Coach Martinez was not reprimanded at the time and was not

fired until more than a year later. Also, eligibility

determinations were the responsibility of school

administrators, not athletics coaches.

Sweetwater’s argument that it fired Coach Martinez

because he let an unauthorized parent coach a summer

softball team is specious. Not only was Coach Martinez

absent when the incident occurred, but he forbade the parent

from coaching after learning of his ineligibility to do so.

Moreover, the summer softball team in question “was not

conducted under the auspices of the high school.” Finally,

while Coach Martinez did file late paperwork for the Las

Vegas tournament, he was not then admonished for it. As

with the ineligible player incident, the timing of his

termination suggests that Sweetwater’s allegedly non-

retaliatory reason is merely a post hoc rationalization for what

was actually an unlawful retaliatory firing. See Gaffney v.

Riverboat Servs. of Ind., Inc., 451 F.3d 424, 452 (7th Cir.

2006) (concluding that a district court’s finding that

“defendants first fired the plaintiffs and then came up with

post hoc rationalizations for having done so” was not clearly

erroneous).

On the record before it, the district court correctly could

find that Coach Martinez was fired in retaliation for

Plaintiffs’ Title IX complaints, not for any of the pretextual,

non-retaliatory reasons that Sweetwater has offered.

46 OLLIER V. SWEETWATER UNION HIGH SCH. DIST.

C

Having determined that the district court did not clearly

err when it found (1) that Plaintiffs established a prima facie

case of Title IX retaliation, and (2) that Sweetwater’s

purported non-retaliatory reasons for firing Coach Martinez

were pretextual excuses for unlawful retaliation, we conclude

that it was not an abuse of discretion for the district court to

grant permanent injunctive relief to Plaintiffs on their Title IX

retaliation claim. We affirm the grant of injunctive relief to

Plaintiffs on that issue.16

VI

We reject Sweetwater’s attempt to relitigate the merits of

its case. Title IX levels the playing fields for female athletes.

In implementing this important principle, the district court

committed no error.

AFFIRMED.

16

We also affirm the grant of injunctive relief to Plaintiffs on their Title

IX unequal treatment and benefits claim, any objection to which

Sweetwater waived on appeal by not arguing it. See Hall, 697 F.3d at

1071.