Recent Cases Summer 2019 Defense Comment v DISCRIMINATION; CIVIL RIGHTS; COLLEGE ATHLETICS Mackey v. Board of Trustees of the California State University (2019) 31 Cal.App.5th 640, 242 Cal.Rptr.3d 757 FACTS: Plaintiffs were five African-American women who were on the basketball team at CSU San Marcos (CSU). The coach was a woman named Jennum. Various of the plaintiffs claimed that Jennum discriminatedagainstthembecauseoftheirrace. They claimed that they were more harshly treated than white players; that they were singled out unfairly for discipline; that they were sometimes made to “take laps,” even though Jennum knew they had medical problems; that the group of them were referred to as “the group” by Jennum, indicating a discriminatory intent; that some of them were not allowed to play in games; that they were not allowed to practice with no legitimate reasons; and that they were yelled at. A few of them left the team. One was cut. PlaintiffscomplainedtotheadministrationofCSU. An investigator found that there was no discrimination, as such, but that there was harassment based on race. Some plaintiffs sought psychological counseling and suffereddepression. Theyfiled suitforviolationof the Civil Rights Act (§§ 1981, 1983) and for violation of Title VI (prohibiting discrimination by any college which receives Federal funds), and for violation of the Unruh Act (California statute prohibiting discrimination in places of public accommodation). CSU filed a motion for summary judgment, and the trial court in large part granted the motion. APPELLATE COURT DECISION: Reversed. The trial court was correct in dismissing the §§ 1981 and 1983 causes of action. These causes of action cannot be brought against State agencies. CSU is an arm of the State and, therefore, cannot be sued. Under Title VI, plaintiffs can bring a claim for violation of section if they show discrimination based upon race and also show an adverse result to the conduct of the defendant. Many triable issues of fact exist with respect to this claim, and, therefore, it was improper tograntsummaryjudgmentinfavoroftheBoard. The trial court erred in saying that it was necessary for the plaintiffs to show that they were dismissed from the team in order to show an adverse action. Failing to provideplayingopportunity,failuretoallowaplaintiff to participate in practice, harsh treatment (resulting in mental distress) which is different than the treatment afforded to white players – all such conduct can lead to “adverse action” – is sufficient to state a claim under Title VI. Plaintiffs would be entitled to go to trial on such matters and it cannot be said that for summary judgment purposes, no reasonable jury could refuse to find in their favor. LIBEL; ANTI-SLAPP Issa v. Applegate (2019) 31 Cal.App.5th 689, 242 Cal.Rptr.3d 809 FACTS: Darrell Issa was a Republican congressman from San Diego and was first elected in 2000. In 2016, according to the financial records of Congress, he was ranked as the wealthiest person in the House. In 2016, he ran for re-election and his opponent was a man named Applegate. Applegate ran some television advertisement, purporting to quote from a New York Times article, critical of Issa. Among other statements, Applegate in the advertisement said that Issa was “gaming” the system and had obtained numerous earmarks that directly benefitted the many properties that Issa owned in San Diego County, such as roadways, sewage systems, etc., and that these directly benefitted his many business interests there. Applegate also ran a separate advertisement, also based on a NewYorkTimes article, saying that Issa had refused to vote further funds for the 9/11 victims and first responders on grounds that enough money had been voted already from the Federal government and this was now a State matter. Issa sued Applegate for libel. He largely contended that the advertisements purported to quote directly from the New York Times, whereas the Times had said no such thing. Applegate filed anti-SLAPP motion under C.C.P. § 425.16. The motion was granted by the trial court on the grounds that this was political speech and was a matter of public interest and that Issa had not shown that he had a probability of prevailing in the action. APPELLATE COURT DECISION: Affirmed. Wide latitude is given to political speech, which this was. A review of the lengthy New York Times articles does show that they were talking about various conflicts of interest that Issa had, his many properties, and his congressional votes which did benefit his properties. Although the advertisements were not “exact quotes” of what the Times said, they were a fair comment on the articles, and given the strong presumption against libel actions for political speech, the trial court correctly granted the motion to dismiss the Issa claim.