In a narrow 2005 U.S. Supreme Court decision  hailed by women’s sports advocates, a 5-4 majority ruled that individuals who protest sex discrimination can seek damages if their colleges or schools retaliate against them for speaking up in the name of Title IX . The case settled a much-disputed debate about whether the 1972 law mandating gender equity in institutions receiving federal funds includes a right for whistle blowers facing retaliation to sue and, by so doing, the law’s supporters argued, opened the way for greater reporting and enforcement.
Officials at California State University at Fresno may be ruing that ruling this week, after a jury handed down a staggering $5.85 million award Monday to a women’s volleyball coach who alleged just such retaliation for her efforts to ensure gender equity in sports on campus, along with discrimination on the basis of her gender and perceived sexual orientation. Although individuals can't sue public institutions in California for punitive damages, Linda L. Vivas was awarded damages for past and future economic losses and emotional distress.
“My impression is that Fresno State was seen by this jury and, I think, rightfully so, as kind of an outlaw in terms of Title IX,” said Dan Siegel, the lawyer for Vivas, whose contract as Fresno State’s women’s volleyball coach was not renewed in late 2004. “Over the course of a dozen years,” Siegel said of Vivas, hired in 1991, “there were at least a dozen battles in which she was on the front line in gender equity issues.”
"We're 35 years after Title IX was passed and Fresno State still doesn't get it," Siegel said.
In a telephone interview Tuesday, Dawn Theodora, a lawyer with the California State University system's Office of General Counsel, refuted that the university had retaliated against Vivas. “Not only do we flatly deny that, but we expect our employees to advocate for Title IX. We are bound by that law," Theodora said.
The university plans to appeal the case on a number of grounds, and the defense’s first step, Theodora said, will be to file a post-trial motion asking the judge to reduce the award to be commensurate with the evidence presented.
“There truly is no evidence to support this verdict. We are all shocked by this outcome,” Theodora said. The evidence was overwhelming, Theodora added, that Vivas was not performing: in terms of her failure to schedule matches with top 25 teams, a dearth of National Collegiate Athletic Association playoff appearances (three first-round berths in 14 years) and a drop in season ticket sales during her tenure.
“Coaches are not like other employees,” Fresno State officials said in a prepared statement , on which a university spokeswoman declined to elaborate. “Coaches have individual contracts with the university which provide them better benefits and other perks for their added responsibilities. Those same contract agreements also hold coaches responsible to meet certain performance goals. When those goals aren’t met, the university can choose not to renew or renegotiate contracts. That’s what happened in this case.”
Yet, in a telephone interview Tuesday, Siegel described a divided athletics department in which Vivas allied with two other female athletics staff -- including a former associate athletics director, Diane Milutinovich, whose own suit against the university will be heard in September -- to protest systemic manifestations of gender inequity.
Vivas, who, according to a trial brief written by Siegel, maintained an overall record of 263 wins and 167 losses and led the team to its highest winning percentage ever in 2002, advocated for equitable marketing, radio and television coverage, and resources for women's teams. She opposed “gender-based hostility by some male coaches and their supporters” -- including, Siegel said, the celebration of an “Ugly Women’s Athlete Day” in which some athletics department staff participated.
Her inability to schedule top 25 opponents hinged on the university's refusal to allow the volleyball team to play in the Save Mart Center, "making it impossible for her to schedule matches with top ranked teams and to generate income from attendance," the trial brief argues. The exclusion of Vivas's team from the center was just one of several examples presented by the plaintiff of ways in which she was treated differently, following the appointment of Scott Johnson as the athletic director in 2002, than "similarly situated coaches" -- who were male, perceived as heterosexual (Vivas was perceived to be a lesbian), or who did not protest discrimination.
Two other suits against Fresno State on similar grounds are pending, including that of Milutinovich, who was removed by Johnson as associate athletics director in 2002 and shuffled to a position running the student union before being dismissed in 2006, Siegel said Tuesday.
“Obviously it is a large verdict,” said Dina Lassow, senior counsel with the National Women’s Law Center. “It will hopefully send a message.”
Retaliation against Title IX whistle blowers is common and takes many forms, Lassow said: A recent study the center conducted of civil rights complaints over the past five years  found that about 50 percent of those complaining about unequal treatment on the part of girls’ or women’s teams also indicated they were being retaliated against.
“I hope it will have two impacts,” Lassow added of the Vivas verdict. “One in encouraging coaches to speak up if they see discrimination and [secondly] to hopefully make schools think twice about retaliation – and not retaliate, but to respond to the issues and try to make the programs more equitable rather than lashing out against the people who are bringing these things to their attention.”