A federal judge from the Central District of California delivered a partial victory on Pepperdine University’s motion to dismiss the claim of two former women’s basketball players, who claimed they were discriminated against because of their sexual orientation.
The plaintiffs in the case are Haley Videckis and Layana White. Videckis is a former member of Pepperdine’s women’s basketball team who transferred to Pepperdine from Arizona State University in July 2013. White is a former member of Pepperdine’s women’s basketball team who transferred to Pepperdine from Arizona State University in January 2014. Meanwhile, Ryan Weisenberg is the head coach of the Pepperdine women’s basketball team. Finally, Adi (whose full name was not provided in the complaint) is an athletic academic coordinator of the Pepperdine women’s basketball team.
The plaintiffs alleged that, in the spring of 2014, Coach Ryan and others on the staff of the women’s basketball team came to the conclusion that the plaintiffs were lesbians and were in a lesbian relationship. The plaintiffs further alleged that Coach Ryan and the coaching staff were concerned about the possibility of the relationship causing turmoil within the team. The plaintiffs alleged that, due to their concerns, Coach Ryan and members of the coaching staff harassed and discriminated against the plaintiffs in an effort to force the plaintiffs to quit the team.
The plaintiffs alleged that, beginning in February 2014, Adi would hold individual meetings with each of the plaintiffs in order to determine their sexual orientation and their relationship status, according to the complaint. The questions consisted of asking, among other things, how close the plaintiffs were, whether they took vacations together, where they slept, whether they pushed their beds together, whether they went on dates, and whether they would live together. The questioning lasted at least through June 2014.
The plaintiffs complained to the head coach, who promised to assign a monitor to their meetings. Yet, more examples of discrimination followed, according to the plaintiffs.
They even went so far as to complain to the athletic director (AD). After multiple complaints, the AD launched an investigation, which involved the Title IX coordinator.
On November 7, 2014, they received a letter from the Title IX coordinator which stated that there was “insufficient evidence to conclude that harassment or sexual orientation discrimination had occurred,” according to the plaintiffs.
The plaintiffs ultimately sued, alleging three causes of action: (1) violation of the right of privacy under the California constitution; (2) violation of California Educational Code §§ 220, 66251, and 66270; and (3) violation of Title IX. Pepperdine moves to dismiss on all claims.
The federal court denied the motion to dismiss the invasion of privacy claim as to the plaintiffs’ sexual orientation. The plaintiffs have failed to state a claim for invasion of privacy insofar as the medical records are concerned. However, the plaintiffs may be able to plead a claim as to the medical records requests if they are allowed an opportunity to amend the complaint. Accordingly, the court will grant the motion without prejudice as to the portion of the privacy claim concerning the plaintiffs’ medical records. See Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997)
Turning to the plaintiffs’ cause of action under California Educational Code §§ 220, 66251, and prevail, a plaintiff must prove the following elements: “(1) he or she suffered severe, pervasive and offensive harassment, that effectively deprived plaintiff of the right of equal access to educational benefits and opportunities; (2) the school district had actual knowledge of that harassment; and (3) the school district acted with deliberate indifference in the face of such knowledge.” Donovan, 167 Cal. App. 4th at 579.
The two primary elements that Pepperdine successfully challenged was that the plaintiffs have not shown “severe, pervasive and offensive” harassment and that the school acted “with deliberate indifference.”
Regarding the plaintiff’s Title IX Cause of Action, Pepperdine argued that the plaintiffs have failed to state a cause of action under Title IX because Title IX only bans discrimination based on gender, and not discrimination based on sexual orientation.
The plaintiffs acknowledged that their Title IX claim, as currently pled, alleges a Title IX violation due to discrimination on the basis of sexual orientation. Thus, they requested “leave to amend their Title IX claim because they argue they can state a claim of discrimination on the basis of ‘stereotyped gender roles,’ which would fall within the bounds of Title IX.”
They did note that “the law is rapidly developing and far from settled insofar as determining where sexual orientation discrimination lies within the framework of gender-based discrimination. Recent Ninth Circuit cases suggest that the distinction between sexual orientation discrimination and sexual discrimination is illusory. Furthermore, discrimination based on a same-sex relationship could fall under the umbrella of sexual discrimination even if such discrimination were not based explicitly on gender stereotypes. For example, a policy that female basketball players could only be in relationships with males inherently would seem to discriminate on the basis of gender. In this example, the gender discrimination would be that the female players would be prevented from entering into relationships with other females because their chosen partner was female. Even if a similar same-sex ban were imposed on the men’s basketball team, the unequal classification would still hold, as women seeking to be in relationships with men would not be treated equally as men seeking to be in relationships with men. For these reasons, the court would be disinclined to give weight to older out-of-circuit cases that make a categorical distinction between gender-based discrimination and sexual orientation discrimination.”
Haley Videckis and Layana White v. Pepperdine University; C.D. Cal.; Case No. CV 15-00298 DDP (JCx), 2015 U.S. Dist. LEXIS 51140; 4/16/15
Attorneys of Record: (for plaintiff) Jeffrey J Zuber, LEAD ATTORNEY, Jeremy J Gray, ZuberLawler and Del Duca LLP, Los Angeles, CA. (for defendant) Paula Tripp Victor, Peter B Rustin, LEAD ATTORNEYS, Anderson McPharlin and Conners LLP, Los Angeles, CA.
