Dec. 10

Fallout from Fresno State’s Multi-Million Dollar Case(s)

Just five months ago, a $5.85 million verdict in favor of Linda L. Vivas, the former California State University at Fresno women’s volleyball coach, set a record for Title IX verdicts. On Thursday, a second Fresno jury blew that mark away, ordering the university to pay $19.1 million to Stacy Johnson-Klein in a case that involved alleged sex discrimination and retaliation for the former women’s basketball coach’s advocacy for female athletes. In between the two verdicts, Fresno State settled a similar case with its former associate athletics director, Diane Milutinovich, for $3.5 million.

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Meanwhile, elsewhere in the country in 2007, appeals courts reinstated two high-profile sexual harassment lawsuits filed under Title IX — the landmark 1972 federal law barring gender discrimination in institutions receiving federal funds — against the University of North Carolina at Chapel Hill and the University of Colorado at Boulder, respectively. (Both cases had major developments last week. The decade-old suit against UNC women’s soccer coach Anson Dorrance got an April trial date, as Sports Illustrated reported on Tuesday. And, on Wednesday, Colorado settled the suit filed by two former students who claimed the university had failed to do enough to prevent an alleged rape by football players and recruits for $2.85 million.)

Other claims challenging alleged retaliation against coaches who stood up for the law’s principles – their right to sue under Title IX for retaliation settled by the U.S. Supreme Court in 2005 — are percolating at Feather River Community College in California and Florida Gulf Coast University, said Erin Buzuvis, an assistant professor at Western New England College School of Law. On top of that, the decision by the University of Hawaii at Manoa women’s cross-country and track coach to file a lawsuit this fall alleging gender inequities in athletics — while she’s still employed there — could only be possible in a climate in which coaches and others are legally protected from retaliation, Buzuvis said.

“This is the year to be a Title IX plaintiff,” said Buzuvis, who writes a blog on Title IX issues. “I wouldn’t want to be a defendant in a Title IX suit this year.”

At Fresno State, university officials have vowed to appeal the Johnson-Klein verdict, which the president called “excessive.” And while the university’s appeal of the Vivas verdict has barely begun, a judge did reduce the award from $5.85 to $4.52 million. Dan Siegel, a lawyer for Johnson-Klein, Milutinovich and Vivas, estimates, however, that as of right now, the three cases would cost the university $40 million, including legal costs and interest. On the Vivas case, “we have interest of about $1,000 a day on the verdict, so it keeps growing.”

By all accounts, from among the three lawsuits, the university had the strongest legs to stand on in the Johnson-Klein case. The trial evolved into a media spectacle in Fresno, the university’s defense gripping, as summarized in Wednesday’s Fresno Bee: that the coach was dependent on prescription painkillers and had taken some from a player, that she had engaged in financial improprieties, and that her players had been in rebellion due to her erratic behavior and alleged verbal abuse. Those were the reasons she was fired, for the welfare of the students, not because of sex discrimination or retaliation for her attempts to ensure gender equity, the university defense said. The jury didn’t buy it.

“This was just a colossal mistake to take this case to trial thinking they were going to win it,” said Siegel. “It wasn’t an easy case, but still they could have settled the case for a million dollars, actually for $950,000.”

“I think it’s very much about forcing them to be accountable. This is just an incredible story of the abuse of the university’s powers and resources to back an athletic director to wage a campaign against women who fought for Title IX,” he added of the results to the three lawsuits.

“The definition of insanity is doing the same thing over and over again and getting the same results,” Nancy Hogshead-Makar, a law professor at Florida Coastal School of Law and former Olympic swimmer, said of the university’s handling of the string of multi-million dollar suits.

“At what point do you go, you know, we have a real problem in our athletics department and how it is that we are treating women and let’s get in here and fix it rather than putting their head in the sand?” she asked.

The Fresno State Case

In interviews Friday, both Fresno State President John D. Welty and the athletics director, Thomas Boeh, described what Welty called “a new era in Fresno State athletics.”

“We have pretty much an entirely new athletics administration,” said Boeh, who came to the university in 2005 after the events alleged in the three lawsuits took place. Boeh said seven new administrators, including him, are in place. After cutting women’s swimming and diving in 2004, university leaders expect to announce the addition of new women’s sports teams later this month in order to obtain proportional distribution of scholarship monies.

For his part, Welty — president of Fresno State since 1991 — rebuffed a question about calls for his resignation by saying “I’ve got a lot to do at the university and I’m going to get it done.” He pointed to the work of a gender equity plan task force established this summer as an example of a changing athletics culture. The task force is nearing completion on a five-year plan.

But Margie Wright, a women’s softball coach who has been at the university for 23 years and whose own Title IX complaint regarding retaliation is pending mediation, questioned the university’s official line. She said she offered this fall to testify to the gender equity task force about her experiences as a veteran of the department through the turbulent 1990s — about her account of the battles surrounding a review by the U.S. Education Department’s Office for Civil Rights that found the university out of compliance with Title IX in 11 areas, and the subsequent backlash over the construction of new facilities for women’s sports.

Asked about the environment, which she called the definition of a hostile one, she recalled first-hand the shameful celebration proclaimed on a sign as “Ugly Women’s Athletes Day” in the athletics department business office. It resulted, Wright said, only in letters of reprimand — for the participants, yes, but also for her, “because I didn’t have control over my softball players who went in there and took the sign down.”

Wright said she was initially told “in no uncertain terms” that she would not be welcome to speak to the task force about the department’s past. Members apparently had a change of heart on Thursday, inviting her for a 15-minute window at this morning’s meeting. She will have five minutes to speak, she said, and 10 to answer questions. Suffice to say, she believes the time is insufficient.

“You clearly have to worry about what’s happened in the past in order to change the future. And that is not happening,” she said.

Uptick in Title IX Suits Expected

Back on a national level, several experts said Friday that the 2005 Supreme Court decision, Jackson v. Birmingham Board of Education, clarifying the right to sue for retaliation under Title IX, as well as recent lower court decisions unpacking the responsibility of institutions to prevent harassment, will likely pave the way for more plaintiffs.

“The first generation of cases litigated under Title IX’s expanded standard has clearly begun to navigate the courts. As a result of Jackson, the number of retaliation claims against institutions of higher learning brought under Title IX is likely to increase,” Kerry Brian Melear, an assistant professor of higher education at the University of Mississippi who has written about the Jackson case, said via e-mail.

More broadly, Sheldon E. Steinbach, a lawyer in the postsecondary education practice of the Washington law firm Dow Lohnes, said the Fresno State verdict, while “an aberration,” still “sends a clear warning sign to institutions throughout the country of the potential for liability for mistreatment of university personnel” throughout the institution, not just the athletics department.

“It’s just a startling wake-up call to senior university administrators that will spur a scrutiny of existing policies and procedures and the mechanism for ensuring that they are employed consistently,” he said.

“Universities, certainly in faculty cases, have been vindicated time and time again when they follow all their own procedures. And they have lost dramatically when they haven’t.”

— Elizabeth Redden

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