Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 1 of 57 PageID #: 523 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF HAWAII 3 4 5 6 7 8 ) ) ) Plaintiffs, ) vs. ) ) DEPARTMENT OF EDUCATION, STATE ) OF HAWAII, et al., ) ) Defendants. ) _______________________________) T.N., et al., 9 11 APPEARANCES: 12 For the Plaintiffs: 13 14 15 17 18 21 22 23 24 25 Motion for Temporary Restraining Order DANIEL M. GLUCK LAURIE ANN TEMPLE American Civil Liberties Union Hawaii P. O. Box 3410 Honolulu, HI 96801 ALLISON K. GRIFFITHS SHELLIE K. PARK-HOAPILI TINA LEAH COLMAN Alston Hunt Floyd & Ing Honolulu ASB Twr. 1001 Bishop St., Ste. 1800 Honolulu, HI 96813 16 20 Honolulu, Hawaii March 19, 2010 2:00 P.M. TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID ALAN EZRA UNITED STATES DISTRICT JUDGE 10 19 CV 10-00159 DAE-LEK For the State Defendants: HOLLY T. SHIKADA Dept. of the Attorney General Education Division 235 S. Beretania St., Rm. 304 Honolulu, HI 96813 JANE E. LOVELL CHERYL A. TIPTON JEFFREY UEOKA Dept. of the Corporation Counsel County of Maui 200 S. High St. Wailuku, HI 96793 Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 2 of 57 PageID #: 524 2 1 APPEARANCES (Continued): 2 Official Court Reporter: 3 4 Debra Kekuna Chun, RPR, CRR United States District Court 300 Ala Moana Blvd. Ste. C285 Honolulu, HI 96850 (808) 534-0667 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceedings recorded by machine shorthand, transcript produced with computer-aided transcription (CAT). Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 3 of 57 PageID #: 525 3 1 FRIDAY, MARCH 19, 2010 2 THE CLERK: 2:11 O'CLOCK P.M. Civil 10-159 DAE-LEK, T.N., et al., 3 versus Department of Education, State of Hawai'i, et al. This 4 case is called for a Motion For Temporary Restraining Order. 5 Counsel, please state your names for the record. 6 MR. GLUCK: Good afternoon, Your Honor. Daniel Gluck 7 from the ACLU of Hawai'i Foundation. 8 from the ACLU, and from the law firm of Austin, Hunt, Floyd & 9 Ing are Allison Griffiths, Shellie Park-Hoapili, and Tina 10 With me is Laurie Temple Colman. 11 THE COURT: All right. 12 MS. SHIKADA: Good afternoon. Good afternoon, Your Honor. Holly 13 Shikada, Deputy Attorney General, representing the state 14 defendants. 15 THE COURT: 16 MS. LOVELL: All right. Good afternoon, Your Honor. Jane 17 Lovell, Deputy Corporation Counsel, representing the County of 18 Maui. 19 Corporation Counsel. 20 colleague Jeff Ueoka, who represents the Department of Parks -- I have with me my colleague Cheryl Tipton, also a Deputy And we are also joined today by our 21 THE COURT: 22 MS. LOVELL: 23 THE COURT: 24 Theresa, somebody took my pen from up here; so I need 25 All right. -- and Recreation. All right. to have -- thank you very much. Good afternoon to all of you. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 4 of 57 PageID #: 526 4 1 All right. Mr. Gluck. 2 MR. GLUCK: Thank you, Your Honor. 3 4 And may it please the court. First, I'd like to express our appreciation to the 5 court for holding a hearing on this motion so quickly. 6 understand the burden that it places on the court as well as on 7 opposing counsel. 8 plaintiffs had no choice but to file a request for immediate 9 injunctive relief. 10 We don't take that lightly. We However, On February 24th, plaintiff sent a detailed demand 11 letter to the County and the State, outlining the facts of this 12 case and also our legal theories. 13 first time the defendants had notice of the unlawful activities 14 happening to the girls' softball team. 15 complaints to various state officials as early as November. 16 The responses were twofold. 17 the defendants' oppositions: 18 We're working on it. 19 coach, informing him that he would be fired if he continued to 20 complain about these conditions. 21 However, this wasn't the Plaintiffs had made One was, and still is, based on We're working on it. Be patient. The second response was directed at the Our motion for temporary restraining order does not 22 seek to address all the issues in our complaint. It seeks to 23 address a narrow set of issues, and we seek narrow temporary 24 relief from the court. 25 are most concerned about the safety -- their physical safety on The girls, their coach, and the players Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 5 of 57 PageID #: 527 5 1 the field and getting to the field. 2 we have at least three of the softball players who have been 3 physically injured on the field as a result of the improper 4 conditions. 5 There is no dispute that We also have concerns from the parents about recent 6 assaults in the neighborhood. Now, I don't want to overstate 7 what's happened with those assaults. 8 facts. 9 know is that parents are so concerned for their daughters' We don't have all the We don't know entirely what has happened. What we do 10 safety that they are now taking time away from work, losing 11 valuable income, so that they can drive them from the school to 12 the practice field a mile away. 13 14 These injuries are likely to continue into the future. 15 The girls have -THE COURT: When you say "injuries," you're talking 16 about injuries as a result of an inadequate field, not -- not 17 injuries as a result of some assault that might have taken 18 place. 19 MR. GLUCK: No, that's correct, Your Honor. The 20 physical injuries as well as the psychological injuries from 21 being treated inferior. 22 THE COURT: Because, Mr. Gluck, Title -- as 23 unfortunate as it may be, if there was a comparable stadium, so 24 to speak, located in what one might consider a less enchanting 25 part of the community, there would be no Title IX violation. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 6 of 57 PageID #: 528 6 1 MR. GLUCK: Well, Your Honor, as you understand, 2 there are a list of factors under Title IX that we can 3 consider. 4 another part of the island, then we could look at those 5 different factors -- 6 THE COURT: 7 10 MR. GLUCK: 13 Of course, Your Honor. And the girls are not seeking access to the stadium for this season. They're not seeking access to anything special -- 11 12 Unless, of course, it was so far away that it was, in fact, inaccessible. 8 9 If there were another stadium in another part -- in THE COURT: You're talking about the baseball MR. GLUCK: The baseball stadium, yes, Your Honor. stadium. 14 What they are seeking for the remainder of this season, which 15 ends in two months, which is the reason why we need immediate 16 relief, is access to a safe playing field. 17 Now, we have proposed one option that the County and 18 DOE could comply with in order to meet their obligations under 19 Title IX and the Equal Protection Clause. 20 the girls to be reinstated to their old field, which currently 21 is not being used by party. 22 THE COURT: Okay. One proposal is for Now, here's what they say in 23 opposition, Mr. Gluck; so I need to have you address that. 24 They've suggested that it has recently been, as they put it, 25 resodded and that the fence has been somehow relocated or Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 7 of 57 PageID #: 529 7 1 moved. 2 MR. GLUCK: My understanding, Your Honor, is that the 3 fence has been moved. However, my understanding also is that 4 the County has purchased a temporary fence, which they have in 5 their possession but they're holding in abeyance pending this 6 lawsuit, such that they could use that fence for -- 7 THE COURT: Well, what about the resodding issue? 8 MR. GLUCK: I think resodding may be overstating the 9 case a little bit. From what I understand, there are not trays 10 of sod. 11 What I understand is that there are piles of dirt and that 12 there may be some grass growing out of that dirt, but it's in a 13 big pile and nothing more. 14 This isn't the fancy stuff you buy at Home Depot. Now, the defendants recently put that dirt there. 15 We're asking that we go back to what we had before the 16 defendants took -- 17 18 19 THE COURT: So they just simply dumped a pile of dirt in the middle of the field? MR. GLUCK: That's my understanding, Your Honor, in 20 the name of doing some renovations, but again nobody's using 21 the field right now, and we don't understand why they couldn't 22 have waited to do those renovations until some other time. 23 THE COURT: 24 Okay. 25 MR. GLUCK: All right. You may proceed. Thank you, Your Honor. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 8 of 57 PageID #: 530 8 1 The harm is immediate. 2 psychological harm is immediate. 3 seeking, again we're flexible on the outcome. 4 for example, would be to renovate their -- the field that they 5 are currently playing on to make it regulation distance and to 6 make the playing field safe. 7 administratively feasible option is to return them to their old 8 field. 9 The physical harm, the The remedy that we're Another option, In our view the most Now, it would require some effort on the part of the 10 County, and we don't dispute that. 11 already have the fence, given that there is no one else using 12 the field, and given that in our opinion all it would take is 13 some relatively simple grading and a relatively small amount of 14 county maintenance worker time to fix it, that would seem to us 15 to be the most plausible solution under the circumstances. 16 However, given that they The girls and their parents are champions in every 17 sense of the word. The girls have won the state title. The 18 girls have won the Maui Interscholastic League. 19 are being told in many different ways that they simply are not 20 as good as boys. 21 far, that the girls are playing in a vastly inferior stadium to 22 the boys. 23 injured. 24 months, and that there is no likelihood, given the current 25 state of affairs, of them having any sort of relief before the But the girls There is no dispute, given the opposition so There is no dispute that they are being physically There is no dispute that their season ends in two Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 9 of 57 PageID #: 531 9 1 end of the season. And for those reasons, Your Honor, we ask 2 for injunctive relief. 3 THE COURT: All right. Thank you, Mr. Gluck. 4 MR. GLUCK: Thank you, Your Honor. 5 THE COURT: And I am going to assume that all the 6 papers that you have submitted to the court will be 7 incorporated in your argument. 8 MR. GLUCK: Of course, Your Honor. 9 THE COURT: All right, Miss Shikada. 10 11 Thank you. Now, you're representing the DOE, I guess, the high school. 12 MS. SHIKADA: Yes, Your Honor. The DOE, the interim 13 superintendent, the principal, Naty Gonsalves, and the athletic 14 director Kahai Shishido. 15 THE COURT: All right. 16 MS. SHIKADA: Well, Your Honor, returning the girls 17 to the Maui War Memorial Field 1 is not doable right now. 18 There is dirt on the field. 19 renovated. 20 THE COURT: It's my understanding it is being Well, let me ask you a question, 21 Miss Shikada, because -- now, although this court has not had 22 as much time as it might normally enjoy, there are -- appear to 23 be some relatively uncontested facts here, and I want to be 24 sure that I understand it. 25 to speed on this. And maybe you yourself are not up Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 10 of 57 PageID #: 532 10 1 My understanding is that the County's and the DOE's 2 position is that this is not doable because the County doesn't 3 have the money to do it? 4 to do it, or somebody doesn't have the money to do it? 5 it? 6 MS. SHIKADA: Or the State doesn't have the money I don't know. I can't speak for the 7 County. 8 money to do it, that they are putting -- 9 10 I can speak for the State that they do not have the THE COURT: this. Well, let me -- let me ask you about On March the 8th, which is not that long ago; right? 11 MS. SHIKADA: 12 THE COURT: 13 Is that Yes. Since this is, if my watch is correct, March the 19th. 14 MS. SHIKADA: 15 THE COURT: Yes. The County allocated $1,241,000 to repair 16 the stadium for this year. 17 currently playing in. 18 $100,000 to fix stadium lights earlier this year. 19 This is the stadium the boys are And $524,000 was allocated in 2009, and Now, by my math, that's about a million eight hundred 20 thousand dollars that's been spent or is intended to be spent 21 on the stadium that the boys are playing in, and the County is 22 telling us that they don't have enough money to hire a backhoe 23 to go out there and remove the dirt and to put up a temporary 24 fence? 25 MS. SHIKADA: Your Honor, I -- I -- sorry, but I Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 11 of 57 PageID #: 533 11 1 don't know. I mean, I cannot speak on behalf of the County and 2 what the County's position is with respect to the monies and 3 how it's being spent. 4 THE COURT: 5 You provided these figures to the court. 6 All right. Well, let me ask Mr. Gluck. Where did you get them? 7 MR. GLUCK: Your Honor, these are ordinances that we 8 got from Maui County. 9 know whether all that was spent or whether it was put back into 10 The is $529,000 was from 2009. I don't the figure for this year. 11 THE COURT: All right. 12 MR. GLUCK: The $100,000 figure was from minutes of a 13 budget committee hearing at Maui County Council a few weeks 14 ago. 15 16 17 THE COURT: And what about the big number, the million two hundred forty-one thousand on March 8th? MR. GLUCK: That was ordinance 3 -- I believe it was 18 3740, which we got from County Council -- I'm sorry. 19 yes, from County Council, Your Honor. 20 THE COURT: All right. 21 MS. SHIKADA: Not -- So there you are. Your Honor, with respect to the State 22 and the State's funding, the State is working on a softball 23 field for Baldwin. 24 architectural drawing. 25 They have hired someone to do the THE COURT: That's going to be down the road. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 12 of 57 PageID #: 534 12 1 MS. SHIKADA: 2 THE COURT: 3 MS. SHIKADA: 4 THE COURT: 5 MS. SHIKADA: 6 Sometime down the road. Yes. All right. But they are looking at putting in a softball field in Baldwin because of the need for it. 7 THE COURT: 8 MS. SHIKADA: 9 Yes, Your Honor. I would think everybody agrees with that. However, from all accounts the field that they are currently on, the Ke'opuolani Field, is a very 10 nice field. It's -- according to the athletic director, it's a 11 safe field. He's gone and walked the field himself. 12 looked at the field. 13 about safety. 14 injuries on that field and -- 15 He's He says he doesn't have any concerns He has not been aware of any injuries or major THE COURT: Well, I have the -- I have information 16 that these girls are having -- see, Miss Shikada, the question 17 isn't necessarily whether the field is a death trap; right? 18 MS. SHIKADA: 19 THE COURT: Yes. The question is whether Baldwin High 20 School and the County of Maui are providing comparable 21 facilities to boys and girls. 22 see, that in order to play these girls have to go out to the 23 field every day and attempt to pick up loose rocks and other 24 material, and that the actual facilities themselves are 25 substantially substandard by what -- in relationship to what It is unopposed, as far as I can Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 13 of 57 PageID #: 535 13 1 they were able to use before. 2 Also my understanding is, unless I'm mistaken -- and 3 you're at some disadvantage because you're here and you're not 4 there -- that the girls are able to make use of some of the 5 boys' facilities, such as the batting cages and other things at 6 the stadium. 7 Am I right, Mr. Gluck? 8 MR. GLUCK: 9 No? Your Honor, up until now the girls have not had use of the batting cages. 10 THE COURT: They have not. 12 MR. GLUCK: That's correct, Your Honor. 13 THE COURT: All right. 11 But you're requesting that. So, apparently -- but these 14 two fields are close enough so that they could use them. 15 talking about the ones that you want them to be able to use. 16 I'm MR. GLUCK: That's right. THE COURT: They're right next to each other, aren't 20 MR. GLUCK: Yes, Your Honor. 21 THE COURT: Okay. 17 another. 18 19 22 23 They're adjacent to one they? somewhat down the road. Whereas, this other one is All right. So while this athletic director is, apparently, not 24 having any problems, he's not playing softball out there. The 25 girls who do play softball are having problems, and they're Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 14 of 57 PageID #: 536 14 1 being injured because of the substandard quality of the field. 2 3 All right. Miss Shikada, let me hear from the County because they're the ones that are out there. 4 MS. TIPTON: Thank you, Your Honor, very much. We 5 apologize to the court for getting our papers, which are rather 6 thin, in so late, but we were just served this morning at 9:30. 7 8 THE COURT: I appreciate your making the effort. 9 10 I understand, and there's no apology due. MS. TIPTON: We -- the worst part was just trying to get here with flights and so forth. 11 First of all, I would like to assure the court that 12 the County of Maui is committed to providing equal 13 opportunities to boys and girls, men and women. 14 parks department is, of course, under no obligation to provide 15 playing fields for the Department of Education. 16 17 THE COURT: Our county I would agree with you there, but the law is very clear -- 18 MS. TIPTON: 19 THE COURT: That if --- once the County assumes the 20 responsibility, they must abide by Title IX just as if they 21 were the school itself. 22 MS. TIPTON: I think you would agree with me there. Well, actually, Your Honor, with respect 23 to the Title IX, I think we need to take a harder look at the 24 law -- 25 THE COURT: Well, I will tell you that it is the Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 15 of 57 PageID #: 537 15 1 court's belief that that is the case, and it certainly is the 2 case with respect to the Constitution. 3 MS. TIPTON: 4 THE COURT: Well, sir -But let me say this: It would be an 5 absolutely irregarious result if we had a situation where a 6 school district in order to avoid having to spend money on 7 girls' athletics simply cut a deal with the County in which the 8 school district was located and said, Hey, we can't 9 discriminate against these girls, but you can; so you provide 10 the facilities, and then we can all avoid having to deal with 11 Title IX. I think -- 12 MS. TIPTON: 13 THE COURT: 14 MS. TIPTON: 15 THE COURT: 16 MS. TIPTON: That would be --- that would not fly. That would be a dreadful thing. It would be. Your Honor, our County is headed by a 17 female mayor, a former parks department -- head of the parks 18 department, one demon -- 19 THE COURT: 20 MS. TIPTON: 21 THE COURT: I'm not suggesting -One demon softball player. Ma'am, I am not suggesting for a moment 22 that that's what the County did. I'm just telling you that it 23 would be entirely possible for a school district, if Title IX 24 were not enforceable across the board once the County -- in 25 fact, there are cases that say that you can't lateral your Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 16 of 57 PageID #: 538 16 1 responsibility. Okay? 2 MS. TIPTON: 3 THE COURT: Certainly. But that is not the case. So I don't want the record to suggest for 4 a moment that this court has indicated that I believe that 5 there was collusion here for the express purpose of 6 discriminating against girls. 7 MS. TIPTON: 8 happened, Your Honor. 9 THE COURT: Okay. I didn't say that. And, certainly, no such thing has But something -- something exactly like 10 that could easily happen and, in fact, in the cases has 11 happened in other places. 12 MS. TIPTON: That -- that may very well be, Your 13 Honor. 14 whatsoever for girls. 15 offer so many opportunities to girls in our county. 16 I grew up in an era when there were no sports And we are delighted that we are able to I would like to address the criteria for granting of 17 the extraordinary relief that is sought here. 18 start with irreparable harm. 19 here, and that is shown by the photographs which the court has 20 had an opportunity to review. 21 getting them to you so late. 22 And I'd like to There is no irreparable harm And again we're sorry for These photographs were taken in the last two weeks. 23 They show a park in beautiful condition. 24 grass. 25 score board. They show well-kept grounds. They show green They show a functioning They show functioning water fountains. They show Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 17 of 57 PageID #: 539 17 1 2 3 4 5 well-maintained bathrooms and so forth. We also submitted the declaration of John Kim with our papers. THE COURT: He's the parent from a different school. 6 MS. TIPTON: 7 THE COURT: 8 Yeah, I've read it. He's a parent of -- yes. And in his opinion everything is hunky-dory. 9 MS. TIPTON: 10 That's pretty recent. 11 well-maintained and one of the best in the state. 12 very least we have a controversy here that needs to be resolved 13 through further evidence and a full evidentiary hearing. 14 His daughter played there last night. And in his opinion the field is So at the We have the declaration of our parks director, also 15 female, who points out that it would be unsafe to allow the 16 Baldwin girls to play on their old field right now in the 17 condition that it's in. 18 19 20 THE COURT: You know, with the pile of dirt in the middle of it. MS. TIPTON: The field is undergoing a complete 21 renovation. As was mentioned, has recently been resodded. And 22 this work is being done by the Little League. 23 League, in fact, is the organization that built three of the 24 ball fields that are in this general complex. 25 a long interest in these fields, and they are the ones who are The Little They have taken Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 18 of 57 PageID #: 540 18 1 actually doing the work. 2 Now, I have a photograph with me that shows the 3 relation of some of these things to each other. 4 be helpful to the court, I could certainly enter it into 5 evidence. 6 7 8 9 THE COURT: If that would I don't know what you mean by relation of one to the other. MS. TIPTON: Of the Baldwin High School, the War Memorial Complex, which includes a swimming pool, tennis 10 courts, the baseball stadium, the football stadium, and 11 Ke'opuolani Park, which is by the scale on the GIS photograph 12 that we have with us 1600 feet from the -- where the boys play 13 to the girls play. 14 I could have it marked in evidence. 15 And if that would be helpful to the court, THE COURT: Well, you're certainly entitled to put 16 anything in evidence you wish to put in evidence. 17 I'm really looking at is the comparables. 18 MS. TIPTON: Right. I -- what Well, again on four hours' 19 notice or six hours' notice, or whatever, we aren't able to put 20 on a full evidentiary hearing today, but I will make an offer 21 of proof that if -- 22 23 24 25 THE COURT: Well, you put on quite a bit. I mean, I don't -- I wouldn't -- I wouldn't, you know -MS. TIPTON: Well, if we're allowed to do so, we certainly could put on more. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 19 of 57 PageID #: 541 19 1 2 THE COURT: on more, I assure you. 3 MS. TIPTON: 4 THE COURT: 5 MS. TIPTON: 7 THE COURT: 8 MS. TIPTON: 10 Yes. This case isn't going away anytime soon -- 6 9 Well, you will get an opportunity to put Yes. -- I don't think. Right. So, therefore, it is not safe for the girls to return to where they were. They are safe where they are. 11 There was mention of three injuries, but when you 12 look at paragraph 52 of the declaration of Joe Duran, the 13 coach, that's on page 16 of his declaration, he says, "Three 14 girls were injured this year because of the poor field 15 condition. 16 eye by a ball after it took a bad bounce, and another one cut 17 her ankle while sliding into a base." One girl tore her fingernail, one was hit above the 18 Now, these are the kind of injuries that can take 19 place almost anywhere, and it is -- it is our firm position 20 that we would not allow children to use this field -- this 21 particular field in Ke'opuolani Park if it were not safe. 22 Certainly, Mr. Kim allows his daughter to play there, and he 23 thinks it's not only a fine field in good condition but one of 24 the best in the state. 25 We do not feel that the public interest will be Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 20 of 57 PageID #: 542 20 1 served by a mandatory injunction, and part of the reason is 2 that the County parks department, of course, serves more than 3 just Baldwin High School. 4 facilities are open to all segments of our society and must be 5 shared. 6 by one particular team. 7 with the St. Anthony boys. 8 with the St. Anthony girls. 9 Our ball fields and all of our We don't have the luxury to allow one field to be used The Baldwin boys share their field The Baldwin girls share their field And the Little League field that is being refurbished 10 that the Baldwin girls want to take back serves a number of 11 other entities: 12 girls; the women's slow pitch softball league; the Special 13 Olympics; the Makule League, which is older men. 14 with -- that's where the coach plays with that group. 15 girls' fast pitch softball league that consists of girls 6 to 16 14. 17 happy to produce evidence to support all of those things. Little League, which includes both boys and Apparently, And the And, obviously, if this case goes any further, we would be 18 The temporary fence that opposing counsel spoke of is 19 a fence that we want to install in Ke'opuolani Park, and we are 20 missing some pegs that have to be used to secure it. 21 on order, and we expect that they will arrive almost any day. 22 There is a locked storage facility for the girls' equipment and 23 so forth and so on. They are 24 So the balance of the equities really, if the Baldwin 25 girls were to come back to the field that they used temporarily Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 21 of 57 PageID #: 543 21 1 for three years, that is going to have a ripple effect with all 2 of these other entities who use it, including many other girls' 3 organizations and women's organizations. 4 THE COURT: 5 MS. TIPTON: That use what? The Little League field, once it's 6 refurbished and repaired. 7 condition that it is by anyone. 8 9 It cannot be used right now in the And, finally, we feel that there is no great likelihood of success on the merits once we are allowed to put 10 on a full case and fully brief all of the issues that are 11 before -- that are before you today. 12 The stadium that the girls -- the field that the 13 girls are using doesn't have a mound. 14 skinned infield. 15 fields and so forth. 16 THE COURT: 17 18 19 20 It has what they call a The boys need a mound. They need longer Counsel, I'm very well aware of the difference between softball and baseball. MS. TIPTON: Yes. Well, thank you, Your Honor. That will save us some time, then. So in closing, we field that there is no case for a 21 temporary injunction, particularly a mandatory injunction of 22 the type that is sought here, particularly when the girls have 23 a safe place to play now. 24 is not safe in its current condition. 25 The place they want to play instead And we would also be more than willing to sit down Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 22 of 57 PageID #: 544 22 1 with your magistrate, a mediator, a facilitator of some kind 2 because, frankly, we don't think this case should be in this 3 court. 4 great deal smaller than one would conclude from the papers that 5 you've seen from the plaintiffs. 6 likelihood of success that a mediated settlement could be 7 reached and reached quickly. 8 defend ourselves vigorously, we also are more than willing 9 today, tomorrow, the next day, to sit down and try to work 10 through whatever we can because we want our kids out there 11 playing ball on our ball fields. We think that the bones of contention are actually a We think there is every We -- although we fully intend to 12 THE COURT: 13 Mr. Gluck. 14 MR. GLUCK: 15 confer with co-counsel, please. 16 THE COURT: Sure. 17 MR. GLUCK: Thank you. 18 (Counsel conferring.) 19 MR. GLUCK: We have nothing further, Your Honor. 21 THE COURT: Well, I have a few questions for you. 22 MR. GLUCK: Of course, Your Honor. 23 THE COURT: You saw the pictures that they submitted. 24 MR. GLUCK: Uh-huh. 25 THE COURT: All right. 20 All right. Thank you so much. Your Honor, may I have one moment to Thank you. And their contention is that, Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 23 of 57 PageID #: 545 23 1 basically, what you're arguing about is the fact that you have 2 to drive down the road, that the facility that these girls are 3 being asked to play in now is really no worse or less 4 accommodating than the facility they were playing in and for 5 which they now claim it is impossible for them to play in even 6 were I to order them to be able to do so. 7 answer those two questions. So you need to 8 MR. GLUCK: Certainly, Your Honor. 9 What they haven't provided you with is a close-up 10 shot of the field itself. 11 were on the field picking up rocks the size of their thumbs, 12 which they said they are afraid to play. 13 their declarations they are hesitant, they are nervous, they 14 are afraid that they are going to be injured because of the 15 injuries that have already occurred. 16 THE COURT: We have -- as of yesterday the girls They have said in What is -- besides -- let's assume that 17 that is correct. Why is the field they're being asked to play 18 on that much less desirable than the field they were playing 19 on? Besides the rocks. 20 MR. GLUCK: Certainly, Your Honor. The girls have 21 for years coped with unequal facilities; so the differences 22 between the stadium where the boys play and where the girls 23 were playing were vast, and then the differences between where 24 they're playing now and where they were playing are also very 25 large. So it's one more -- I want to say the straw that broke Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 24 of 57 PageID #: 546 24 1 the camel's back is the loss of practice time from having to 2 share the fields, the rocks, the distance, the safety concerns. 3 Now, there was a declaration that I believe the State 4 submitted, saying that the boys also have to share the practice 5 facility, but from what I understand the boys' facility is so 6 large that you're able to accommodate two teams practicing at 7 the same time. 8 they can use the warming-up areas, they can use different areas 9 of the field, they're not interfered with in the exercise of 10 So because the boys can use the batting cages, their practice. 11 Whereas, the girls have a very strictly enforced 12 practice time. Once 4:30 hits, they need to be done, and they 13 don't have another facility to practice at at all. 14 old facility the girls used to have from three o'clock until 15 six o'clock. 16 tutoring. 17 where there weren't safety concerns for the distance. 18 didn't have to carry all their equipment to the new field. 19 Everything was right there for them. 20 practice field for several hours that they felt safe playing 21 on. So in the They used to be able to go to after-school They used to be able to go right next to the field They had a dedicated 22 THE COURT: All right. 23 MR. GLUCK: Thank you, Your Honor. 24 THE COURT: First of all, this court is very 25 They conservative, as the law mandates, when it comes to the Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 25 of 57 PageID #: 547 25 1 issuance of injunctions, particularly mandatory injunctions. 2 In order to obtain mandatory injunctive relief, the plaintiff 3 must show that the facts and law clearly favor the plaintiff's 4 allegations that, number one -- and we're talking in 5 relationship to a Title IX case now -- a large disparity exists 6 between the benefits, treatments, services, and/or 7 opportunities provided to the girls' and boys' teams by the 8 Department of Education and the County; that they are 9 substantial enough in and of themselves to deny equal athletic 10 opportunity. 11 Number two, that plaintiffs are likely to suffer 12 irreparable injury if a preliminary relief of some form is not 13 granted. 14 tip in favor, and relief must be in the advancement of the 15 public interest. 16 And, of course, the balance of hardships must clearly Plaintiffs allege that there are sex-based 17 differences between girls' softball team and boys' baseball 18 team in equipment and supplies, practice time, opportunity for 19 tutoring, availability of medical staff, and training time such 20 that the Department of Education and the County are violating 21 Title IX. 22 Now, this court at this early stage must make a 23 considered and relevant judgment. The facts are indisputable 24 that the boys are playing in what one might consider a near 25 semiprofessional baseball stadium, complete with all of the Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 26 of 57 PageID #: 548 26 1 amenities available to them as a result of what is clearly a 2 Class A facility. 3 On the other hand, the young women of Baldwin High 4 School are relegated to a park facility substantially 5 substandard in every respect to that which is afforded to the 6 boys. 7 for under the law, the kind of unequal treatment forbidden by 8 Title IX is at this stage of these proceedings apparent on its 9 face. 10 As a result of that, the kind of large disparity called Title IX, the so-called Patsy Mink Act, as it's been 11 renamed, was designed to avoid disparities between men and 12 women, boys and girls in educational opportunities and 13 facilities. 14 girls' participation, particularly at this level in athletics, 15 there is much more here than simply an Olympic dream or 16 potential riches in some sort of professional career down the 17 road. 18 self-advancement. 19 There is no question that, when we talk about It is a road to self-esteem. It is a road to It is a road to success. A successful girls' team with all the accoutrements 20 that that suggests provides not only the kind of psychological 21 and physical benefit to the girls who are actually 22 participating but to every single girl in the school who looks 23 up to them and sees them as a role model. 24 our society for the kind of unequal treatment which appears to 25 be the norm today at Baldwin High School. There is no place in Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 27 of 57 PageID #: 549 27 1 Now, I am not suggesting for a moment that there are 2 not economic reasons by which the County and the State might be 3 laboring under difficult circumstances. 4 hundreds of thousands of dollars being poured into the 5 embellishment of a stadium designed to accommodate many 6 activities but including the boys' baseball team, and not even 7 a fraction of that kind of money allocated toward the 8 embellishment of a women's team and facilities, the contrast is 9 stark and unfortunate. 10 But when I read about Now, the court is mindful of the fact that there are 11 plans down the road, and the court welcomes those plans, to 12 build a better facility. 13 solution to the problem of simply shifting girls down to an 14 inadequate field down the road where it may be satisfactory for 15 much younger girls to play, there is a vast difference between 16 elementary and intermediate girls and high school girls in 17 terms of the velocity in which they hit the ball and the kind 18 of injuries that can be sustained from an uneven and 19 unsatisfactory playing field. 20 made. 21 22 The comparison may simply not be The fact that the gentleman who submitted the declaration, I believe his daughter is in intermediate school? 23 MS. TIPTON: 24 THE COURT: 25 But a solution -- the County's I thought that she was in high school. Oh, maybe she is. said -- it's hard to tell. I don't know. It Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 28 of 57 PageID #: 550 28 1 2 MS. TIPTON: Yes. And, certainly, we would be happy to provide -- as we said, Your Honor, we are -- 3 THE COURT: But the bottom line is that the County 4 has attempted here to defend itself by suggesting that moving 5 from one inadequate facility to another equally inadequate 6 facility is okay. 7 MS. TIPTON: 8 THE COURT: 9 Ma'am, I've given you your opportunity, and you've argued adequately I think. 10 11 No, Your Honor, not at all. These facilities are inadequate when -- in comparison to what the boys use. 12 There's no comparison. Now, the law doesn't require the County to provide 13 identical facilities. All right. And there's no suggestion 14 that the County is required to build a stadium for the girls' 15 softball program. 16 Baldwin High School has a pretty fine softball team, one in 17 which I'm sure, and I would hope, the entire county was proud 18 of. Although, that would be nice. Apparently, But there just isn't that requirement. 19 The law recognizes, for instance, that let's say the 20 University of Hawai'i plays its football games at Aloha 21 Stadium. 22 the University of Hawai'i playing at Aloha Stadium. 23 someplace else. 24 see the Wahine volleyball team playing in Stan Sheriff Center 25 along with the men's volleyball team. Well, we don't have girls who play touch football at They play However, where you have comparable sports, you They're not playing off Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 29 of 57 PageID #: 551 29 1 in some high school gymnasium, which is the equivalent of what 2 Baldwin High School is doing to these girls. 3 the boys to play in a highly energetic facility from which the 4 boys when they run on the field can feel the pride of their 5 presence, and the girls instead are relegated to a field where 6 they have to bend down and pick up rocks. 7 suggest these are comparable experiences would be, I think, 8 living in fantasy land. 9 They're allowing Anyone that would Now, I don't have a history of granting injunctions 10 lightly. 11 case, Miss Shikada was there. 12 then when I stepped out to try -- most exasperating experience 13 of my life -- to work on and try to settle the furlough Fridays 14 and Judge Tashima came in, Judge Tashima followed my suit. 15 denied an junction in spite of a very vigorous argument there 16 that one should be granted because the law did not provide for 17 one. 18 In the recent furlough Fridays case, which was a DOE I denied that injunction, and I These circumstances, however, are different. Now, I do not want a situation where the girls are 19 put into a dangerous set of circumstances, and I don't believe 20 either does the County, nor what I suspect do the plaintiffs. 21 So I am not today going to order that they immediately be 22 allowed to resume play on their former field because, as we sit 23 here today, I do not know the condition of that field. 24 here's what I am going to do. 25 But I am going to be appointing an expert -- and I will Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 30 of 57 PageID #: 552 30 1 give the parties an opportunity to submit names to the court -- 2 so that that expert may go out and examine the field and 3 provide the court with an assessment as to what it will take to 4 put that field back into playable condition. 5 I think the County needs to understand something. 6 And this is really kind of more of a County problem. The 7 County took the steps to -- or somebody did -- to allow the 8 work that was done to be done and made a deliberate choice. 9 And that choice further exacerbated an already unequal 10 situation. So the County is going to have to rectify the 11 problem, at least in the short run, and then we will see where 12 we go from there. 13 So I am going to grant the -- grant the injunction 14 applied for by the plaintiffs but stay its effect until such 15 time as the court can receive a report that shows that the 16 condition of the field and what it will take to put the field 17 back into play. 18 dirt in the middle of the field, the girls are not going to be 19 able to go out there tomorrow and start practicing. 20 got to get out there with a backhoe, the dirt has to be 21 removed, a fence has to be put up, bases need to be put back 22 down again, and that may take some time. 23 afraid the girls will have to continue to practice on the 24 inadequate facility in which they are currently practicing, but 25 there's no other choice. Because if, in fact, there's a big mound of Somebody's In the meantime, I'm The court has no options available to Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 31 of 57 PageID #: 553 31 1 it because I can't order them to practice in the baseball 2 stadium because softball and baseball are two different sports, 3 and you simply cannot -- it's not like a football stadium where 4 you can have a girls' tag football team or something, or a 5 soccer stadium where boys and girls can play equally, or even a 6 volleyball court. 7 softball are different sports, and they have different 8 requirements, and so the boys simply can't vacate and the girls 9 step in. 10 Baseball and football -- baseball and But what the County is going to have to do is it's 11 going to have to ultimately move the girls back until there is 12 an adequate facility for them. 13 spend -- and this is something that we can work on -- adequate 14 funds to bring the old -- the new facility up to absolute par 15 with the facility in which the girls were previously 16 practicing. Unless the County wants to And pictures or no pictures, it isn't there now. 17 Yes, ma'am. 18 MS. TIPTON: Your Honor, if I could just say a couple 19 of words. I believe that when we have an opportunity to put on 20 a full case, the finances, the picture that was shown by the 21 declaration and the information that you have on the County 22 budget, will paint a somewhat different picture. 23 that what you have already before you is evidence that shows 24 that the stadium where the boys play was in serious disrepair 25 to the point of being a health and safety concern. I believe And I think Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 32 of 57 PageID #: 554 32 1 some of the dollars that were presented were double- or perhaps 2 even triple-counted because of two or three different budgets. 3 THE COURT: Well, let's say that -- let's say that 4 that is absolutely correct, and the County decided they would 5 spend $400,000 to repair the field where the boys play or half 6 a million dollars. 7 expenditure. I think that's probably a responsible Would you agree? 8 MS. TIPTON: 9 THE COURT: 10 Yes, and certainly because it's used -And that then means that the County has to do the same for the girls. 11 MS. TIPTON: 12 THE COURT: Well, actually -They can't -- no. They cannot say, We're 13 going to spend hundreds of thousands of dollars to make a safe 14 playing field where the boys can play, but where the girls play 15 we'll just run a grader. 16 MS. TIPTON: That doesn't work. Well, first of all, Your Honor, I don't 17 believe that that will be the evidence: 18 nothing and spent no money for the girls. 19 20 21 22 Secondly, the stadium serves many, many, many purposes other than the Baldwin boys' baseball team. THE COURT: And so does the other field in which the girls were practicing. 23 MS. TIPTON: 24 THE COURT: 25 that we have done And so does the other -But as long as -- but, Counsel, this is where I think you're missing the boat. All right? I'm going Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 33 of 57 PageID #: 555 33 1 to be candid with you. 2 MS. TIPTON: 3 THE COURT: Lay it on me. All right. The fact that the stadium may 4 be used for 30 other things doesn't obviate the fact that it is 5 the boys' facility for Baldwin High School. 6 that the girls' facility for Baldwin High School and the fact 7 that it may be used for other purposes is decidedly inferior in 8 virtually every respect. 9 make those choices. 10 And the fact is Title IX doesn't allow the County to Do you understand? MS. TIPTON: Certainly, Your Honor. And I think when 11 your expert has an opportunity to view all of these facilities, 12 including the old field that the girls were using, a somewhat 13 different picture will emerge, and we look forward to being 14 able to put on that evidence. 15 THE COURT: Well, let me say I don't have a closed 16 mind on this, I have an open mind. But one thing the County 17 had better understand -- and I don't think they're going to 18 find a lot of sympathy up at the Ninth Circuit on this. 19 be very wrong. 20 Title IX cases -- is that you must provide functionally 21 equivalent opportunities. I may The Ninth Circuit has been very tough on 22 MS. TIPTON: 23 day the evidence will show that. 24 THE COURT: 25 MS. TIPTON: Yes. And we believe at the end of the Well, it doesn't show that now. And on six hours' preparation time, we Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 34 of 57 PageID #: 556 34 1 are sorry that we were not able -- 2 THE COURT: The plaintiffs only had the same amount 3 of time, but the facts are there. 4 you, it is the same as if we had a situation where we had a 5 women's swimming team that was practicing in somebody's 6 backyard pool, and a men's swimming team that got to use the 7 facilities of an Olympic swimming park. 8 Well, but, you know, it's kind of safe over there, and, you 9 know, yeah, they have to walk three-quarters of the way, and 10 I mean, it's -- as I told And then you say, that -- the facilities are not the same. 11 I think what you have to remember, and you certainly 12 as an accomplished woman member of this bar understand, better 13 than I do, that the psychological aspects of this are huge for 14 girls. 15 television, what is the first thing that they show? 16 the players running out onto the field. 17 football, whether it be in the college, the high school, 18 whether it be professional, it is a huge part of the 19 experience. 20 they have a sense of pride. 21 they have accomplished something. 22 running out on a dirt field in some park, are they filled with 23 the same kind of pride? 24 it takes a genius to figure out those differences. 25 Thank you very much, Counsel. When they -- you know, when you see a sporting event on They show In baseball, in When these boys run out on that stadium field, It fills them with a sense that When a girl is relegated to I don't think so. And I don't think It's fine. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 35 of 57 PageID #: 557 35 1 Miss Shikada. 2 MS. SHIKADA: Thank you, Your Honor. I would just 3 like to say it appears that there are facts in dispute, and I 4 would like to ask you for this expert who you have stated that 5 we should look at coming out to do an assessment of the old 6 field, I would like to make sure and clarify that we could have 7 that expert look at all of the fields. 8 MS. TIPTON: 9 THE COURT: Yes. I have no -- I have no problem, 10 Miss Shikada, in having the expert look at all of the 11 facilities. 12 but what I -- I've granted the injunction. And that expert's testimony may be relevant later, 13 MS. SHIKADA: 14 THE COURT: Yes. And what I'm interested in now is how 15 soon these girls can move back to the facility in which they 16 were improperly removed. Safely. 17 Now, their moving back to that facility should, from 18 what I gather, be of some benefit to whomever else plays there 19 because whatever remediation is done to the field to put it in 20 good playable condition is the same kind of remediation that 21 would take place for a Little Leaguer to play on that field. 22 MS. SHIKADA: 23 THE COURT: 24 25 No, I'm not sure that's quite true. Unless they're planning on putting a big mound there or something. MS. SHIKADA: I'm not sure if there is going to be a Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 36 of 57 PageID #: 558 36 1 mound there, but -- 2 3 THE COURT: All right. Well, we're only talking here between now and May is the end of the season? 4 MR. GLUCK: Yes, Your Honor. 5 THE COURT: All right. So there isn't going to be a 6 mound there before May, I can tell you that, because the girls 7 are going to play there between now and May, as soon as that 8 field is put back into appropriate condition where they can 9 play. 10 MS. TIPTON: Your Honor, would you care to set a 11 briefing and hearing schedule? 12 THE COURT: 13 MS. TIPTON: 14 THE COURT: 15 here. 16 opportunity to argue. 17 order. 18 For what? For the preliminary? No. You just had a preliminary. The court has heard the evidence. You had an This wasn't a temporary restraining This was a preliminary injunction hearing. MS. TIPTON: Well, Your Honor, I'm sorry, but for the 19 record I must object to that procedure. 20 not noticed as such and -- 21 You're THE COURT: It was not -- it was The court has the right under the Federal 22 Rules of Civil Procedure where the court has received briefing 23 and the arguments of counsel as well as evidence, and evidence 24 has been submitted by both sides, to transform a temporary 25 restraining order into a preliminary injunction. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 37 of 57 PageID #: 559 37 1 Now, let me say this to you, in all fairness to you, 2 all right? 3 wish to have the court at a later time conduct a further 4 hearing on this, you can make an appropriate application, and I 5 will consider it. 6 I have nothing against the County of Maui. If you But you understand that it wouldn't do you any good 7 for -- if I issued a TRO today, that TRO's only good for 8 several hours. 9 mounds of information, unless you were to agree to maintain the You wouldn't have the time to be gathering 10 previous status quo in the meantime, which would be to put the 11 girls back in their proper field, and then we could have 12 further hearing sometime down the road. 13 you're in a position to do that, are you? 14 MS. TIPTON: But I don't think Certainly not today because, as the 15 evidence that was put in in this proceeding demonstrates, it 16 would not be safe to send the girls back to the field today to 17 where -- 18 THE COURT: I agree with you, and that's why the 19 court has -- see, I think you need to step back for a minute. 20 What did I actually do today? 21 the evidence is very clear that the girls' facilities are 22 decidedly inferior to those of the boys', and they have been 23 for years. 24 Title IX suit on this years ago is beyond me, but they didn't. 25 That's number one. Number two. I granted the injunction because Why somebody didn't file a I didn't order the girls back on that Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 38 of 57 PageID #: 560 38 1 field today, did I? 2 3 MS. TIPTON: No. I appreciate that you were having your expert -- 4 THE COURT: I didn't do it because I am not going to 5 put their safety in jeopardy. I think it would be 6 irresponsible for me to do that. 7 MS. TIPTON: And we certainly appreciate this stay so 8 that the expert can give a report to the court and to the 9 parties. The -- the Little League field the renovations are 10 taking place were designed to accommodate different types of 11 sports that require a mound and grass as opposed to the skinned 12 infield and so forth. 13 THE COURT: 14 MS. TIPTON: 15 So we will have -All right. Now, listen, do you -- We'll have to find a place to accommodate the other people that will be -- 16 THE COURT: When is it anticipated that this field 17 will eventually be ready for the girls that would be their more 18 permanent Baldwin High School field? 19 20 MS. TIPTON: THE COURT: 25 Yes. You talked to me earlier about a girls' softball field that was to be built. 23 24 That will be their permanent? 21 22 I'm sorry. MS. TIPTON: Education. When is that? No, I believe that was the Department of The County has no plans to build -THE COURT: All right. Do you have any idea about Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 39 of 57 PageID #: 561 39 1 that, Miss Shikada? 2 MS. SHIKADA: I don't. 3 Do we have any idea when? 4 (Counsel conferring.) 5 THE COURT: 6 MS. SHIKADA: 7 THE COURT: 8 now; right? 9 time. 10 11 13 Yeah. Well, that's, you know, a few years from It's not that long. I mean, it sounds like a long It's not that long. MS. TIPTON: Your Honor. 12 2012, is that what I heard? Right. I understand. I understand, And we will -- we will certainly -- THE COURT: See, that will solve the problem. That will rectify the problem. 14 MS. TIPTON: Right. And many of the issues, I must 15 say, that are alleged seem to be very much between the girls 16 and their school or the Department of Education, the uniforms 17 and so forth. 18 THE COURT: 19 MS. TIPTON: 20 21 22 out. And I think some of those can be worked I really do believe that. THE COURT: Well, I am more -- look, I am more than happy to -- who's the magistrate judge on this? 23 MS. TIPTON: 24 THE COURT: 25 Well, I agree with -- I believe it's Judge Kobayashi. Yeah. I'm more than happy to -- I would rather have her stay out of mediation because she's going to Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 40 of 57 PageID #: 562 40 1 have to be making decisions. 2 participate. 3 MS. TIPTON: 4 THE COURT: For that reason, I wouldn't Certainly. Is there someone on Maui? Which is the whole reason why I stepped 5 out of the furlough Friday case because you can't be making -- 6 you know, mediating and then ruling. 7 MS. TIPTON: 8 THE COURT: 9 Certainly. So what I would do -- I'd be more than happy to do would be to ask Judge Chang or Judge Kurren, two of 10 our magistrate judges, to step in and assist the parties in 11 attempting to mediate. 12 substitute for providing the girls with the kind of facility 13 that will adequately allow them a full educational experience. 14 And make no mistake about it, athletics is part of the 15 educational experience. 16 MS. TIPTON: 17 THE COURT: But in the meantime, that is not a I fully appreciate that, Your Honor. And so -- by the way, there are reported 18 cases -- you may not have had an opportunity to find them, but 19 there are reported cases that are virtually on all fours with 20 this case in which injunctions were issued. 21 Now, I am -- so we can all be on the same, if I may 22 use the pun, playing field here -- you can be seated, Counsel. 23 You don't need to stand up. 24 MS. TIPTON: 25 THE COURT: Thank you. You're not on the hot seat here. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 41 of 57 PageID #: 563 41 1 I am issuing the injunction, but I'm staying its 2 effect until such time as I can get a report back from the 3 expert. 4 this initial review be limited to looking at the remediation 5 aspect of the field in which the girls were ejected and the 6 safety of the field in which they are currently playing. 7 Or practicing. 8 do a big study at this point in time of the big stadium or any 9 of the planned facilities because this -- this is a rather -- 10 11 We need to get an expert here who will for purposes of All right? Okay? I'm not going to have them go and we don't have a lot of time here. So that's what they're going to do. And then they're 12 going to report back to the court as to how long it would take 13 and what steps are necessary to bring the field in which the 14 girls were playing, the one next to the stadium, back to a 15 playable condition, how long it will take and what steps are 16 necessary to do that. 17 Okay? Now, he may -- if he comes back and he says, It's 18 impossible to do it, it can't be done for some reason, then the 19 court will shift its attention to what it will take the County 20 to bring where the girls are currently playing up to 21 appropriate standards, the same standards that existed at the 22 previous facility prior to their ejectment. 23 Do you understand what I'm saying here? 24 MS. TIPTON: 25 THE COURT: I -- I do, Your Honor. I don't know, you were conferring with Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 42 of 57 PageID #: 564 42 1 co-counsel. 2 MS. TIPTON: 3 a fact. 4 the old one. 5 I'm sorry, I was just trying to confirm We actually believe the current field is superior to THE COURT: I understand you do that. Okay. 6 you're right and maybe you're wrong. 7 don't think you're right, however, for the reasons which the 8 plaintiffs have put on the record. 9 I don't know. Maybe I -- I But in any event, the court's preferable course is 10 going to be to reinstate the girls where they were, unless it 11 is physically impossible to do so within an appropriate amount 12 of time. 13 can, you know, we can fix the field back up to the standards it 14 was, but it will take three months, well, three months is the 15 end of the season. 16 happens, but it's not going to be what happens in the short 17 run, as this litigation moves forward. 18 the court would switch its attention over to where they are now 19 and what it will take to quickly bring that up to a standard 20 where it is safe for the girls to play and where they can play 21 with some degree of pride, which they, obviously, don't have 22 there now in that facility. 23 I mean, if the expert comes back and says, Yeah, we So that may actually end up being what In the short run, then But I will tell you without reservation that the 24 Department of Education and people who acted in concert with 25 them with respect to the relative merits of the facilities that Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 43 of 57 PageID #: 565 43 1 the boys and girls have played in have not met Title IX or 2 constitutional standards, period. 3 question. 4 facility that you could put minor league ball teams in, and put 5 girls down in a park. 6 did at one time. 7 This isn't even a close You don't let boys play baseball in a first-class That just doesn't fly under the law. It It doesn't anymore. And I'll tell you, I am very proud to say that I live 8 in a state where the rights of women are valued, where some of 9 our most important leaders are women. We have a woman 10 governor. 11 previous woman member of Congress, Patricia Saiki. 12 had a previous woman of Congress, Patsy Mink, for whom this law 13 is now named. 14 members of the legislature and others, all of whom, including 15 the women in this room, received the kind of support and 16 nourishment which allowed them to reach their full potential. 17 We have a woman member of Congress. We have had a And we have We have untold numbers of educators, lawyers, These girls deserve the same. And for many, many 18 years in the County of Maui the Baldwin High School girls did 19 not get it. 20 championship. 21 blame the individual teachers, the coaches. 22 there was any malice here. 23 were done and accepted. 24 attention of the court, it's just not appropriate. 25 In spite of that, they excelled and won a state And I would think that, in fairness, I don't I don't think I just think this is the way things But once it's been brought to the Now, as I said, we're not suggesting, the court isn't Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 44 of 57 PageID #: 566 44 1 and I don't think the plaintiffs are, that we build -- that the 2 County of Maui build a major new stadium for girls to play 3 softball in. 4 they don't have one. But they do deserve a first-rate facility, and 5 Anything else, Mr. Gluck? 6 MR. GLUCK: 7 Yes, Your Honor. I have a few housekeeping matters. 8 THE COURT: All right. 9 MR. GLUCK: First, the timing for submitting names of 10 expert witnesses, do you have a suggestion for that? 11 THE COURT: Counsel, what would you like? I mean, I 12 would think that you wouldn't have -- I'm sure that you can -- 13 it should be somebody on Maui, and there's plenty of architects 14 and engineers on Maui. 15 over from O'ahu at great expense. We don't need to be flying somebody 16 MR. GLUCK: Certainly, Your Honor. 17 THE COURT: Does anybody have any ideas? 18 MR. GLUCK: I would suggest by Wednesday of next 19 week, Your Honor. 20 21 THE COURT: Wednesday of next week? Is that satisfactory? 22 MS. TIPTON: Yes. 23 THE COURT: Okay. 24 next week. 25 the United States Courts. I will not be here on Wednesday of I will be sitting in the Administrative Office of I'm on the United States Courts Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 45 of 57 PageID #: 567 45 1 Council on budget and finance. So I understand budget issues. 2 We have lots of them around here, believe me. 3 MR. GLUCK: Okay. 4 THE COURT: So Wednesday of next week. But I'm in 5 touch with my office here every day; so -- believe me, many 6 times a day. 7 the parties -- I would like to have the parties confer and, 8 hopefully, agree upon someone. 9 MR. GLUCK: Of course, Your Honor. 10 THE COURT: I don't see this as a huge political 11 12 issue. So by Wednesday of next week I would like to have I think we just need to have somebody. Now, secondly, would counsel like the court to 13 appoint one of our magistrate judges to assist in attempting to 14 mediate this issue? 15 MS. TIPTON: 16 THE COURT: Definitely, Your Honor. All right. Now, let me say that I was 17 involved with the County of Maui recently, as you probably are 18 well aware, involving the famous rock slide case; right? 19 think that your colleague will tell you that I was fair to the 20 County in that case, and the case was settled. 21 get it settled. 22 23 24 25 MS. TIPTON: And I We were able to Your Honor, I was at that settlement, and Judge Kobayashi was beyond brilliant. THE COURT: Good. Well, I hope so because looks like she's going to be our colleague on the bench here. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 46 of 57 PageID #: 568 46 1 2 MS. TIPTON: I nominated her for a Nobel Peace Prize after that settlement conference. 3 THE COURT: Okay. Well, she, unfortunately, can't be 4 beyond brilliant in this case because she's working with me on 5 it. 6 So with concurrence of both parties, I will appoint one of 7 those two to assist you. So it will have to either be Judge Kurren or Judge Chang. 8 9 In the meantime, what we will do in order so this thing doesn't kind of -- kind of slip away from us, I will set 10 another hearing in two weeks. 11 preliminary report of the architect or engineer, whomever is 12 chosen. 13 sport. Should be somebody with some understanding of the 14 15 By that time we should have the MR. GLUCK: Certainly, Your Honor. And, Your Honor, do you have a suggestion for who would pay for the expert? 16 THE COURT: That will have to be worked out, I think, 17 as we get down the road. 18 in this case the defendants because the issue here is -- is and 19 was caused by the defendants; so I would suspect the defendants 20 will pay. 21 We're not talking about somebody coming out and designing the 22 stadium. 23 involving the design of the Aloha Stadium, and that thing took 24 15 years, that litigation. 25 Generally speaking, it's going to be But I don't see this as some huge monumental cost. Thank goodness. MR. GLUCK: I was involved in the litigation Your Honor, that leads me to my third Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 47 of 57 PageID #: 569 47 1 housekeeping item, which is that in our motion we had neglected 2 to include a request that a bond be waived or nominal. 3 I would like to make that request now. 4 And so THE COURT: Yes, there will be no bond required in 6 MR. GLUCK: Thank you, Your Honor. 7 THE COURT: Now, you also moved that the names of 8 your plaintiffs be made public? 9 MR. GLUCK: Yes, Your Honor. 10 THE COURT: Normally, they don't like to be made 5 this case. 11 public. You know, we had that big squabble over the Kamehameha 12 Schools case. But in this case they don't have a problem? 13 MR. GLUCK: No, they're very proud, Your Honor. 14 THE COURT: All right. 15 Then I will direct that the names of the plaintiffs be listed as their real names. 16 MR. GLUCK: Thank you, Your Honor. 17 THE COURT: You'll make the media happy. 18 They usually have to search around for this information. 19 MR. GLUCK: Thank you, Your Honor. 20 I have two other items, not to push my luck. One is 21 that while these interim measures are being considered, I'm 22 wondering whether the court would be inclined to grant 23 plaintiffs' use of a bus of some kind to take them to and from 24 the KP-3. 25 MS. TIPTON: Your Honor, the distance is by our Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 48 of 57 PageID #: 570 48 1 measurement 1600 feet. 2 THE COURT: 1600 feet? 3 MR. GLUCK: Well, Your Honor, I think it depends on 4 whether you measure directly or measure on the road that they 5 have to take, which goes a substantial distance around. 6 girls also do have to carry -- 7 THE COURT: 8 9 10 11 These aren't crows, you know. The They're not flying over mountains. MS. TIPTON: True. But I believe we've measured it, and by car it's about .3 of a mile. THE COURT: You know, at this -- at this point, 12 Mr. Gluck, I'm not inclined to be getting into the 13 transportation business. 14 MR. GLUCK: Very well, Your Honor. 15 And the last request I have is if the order could 16 reflect that we are prevailing parties and can go to the 17 magistrate for costs and fees. 18 THE COURT: No, not yet. 19 MR. GLUCK: Okay. 20 THE COURT: That's premature. 21 MR. GLUCK: Thank you, Your Honor. 22 THE COURT: All right. Thank you, Your Honor. So what we have is we have an 23 injunction in place directing the County to meet the 24 requirements of Title IX with respect to the girls -- you know, 25 it's always difficult. I always -- I mean, everybody has used Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 49 of 57 PageID #: 571 49 1 the term "girls" here. 2 to being young women, but I hope nobody's offended because 3 everybody's used the term "girls" here. 4 Some of them, you know, are very close The girls' softball team, that they be accorded an 5 appropriate constitutional and -- facility in which to play in 6 accordance with the requirements of Title IX. 7 effect of an order to compel them to be allowed to play on the 8 field from which they were ejected. 9 field? 10 11 MR. GLUCK: I believe the War Memorial Complex, Your THE COURT: All right. MS. TIPTON: 15 THE COURT: 17 The War Memorial Complex field. 14 16 What do we call that Honor. 12 13 I'm staying the That's the Lau Hee Little League Field. All right. The Lau Hee Little League Field or whatever. Because I have taken cognizance of the County's 18 concern that at the present time it would not be safe for them 19 to play there, something which I believe the plaintiffs agree 20 at the present state of affairs. 21 continue to play on the facility in which they are currently 22 playing for the short term because I can't put them on a field 23 in which they can't play. 24 25 So they are going to have to I have ordered the appointment of a court expert for the purposes of assessing, number one, how long it would take Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 50 of 57 PageID #: 572 50 1 and what measures would be needed to bring the facility where 2 the girls originally were playing before they were ejected from 3 that field back to a condition where they can safely play there 4 again. 5 If the report indicates that it will take too long or 6 be impossible to do before the majority of the softball season 7 is completed, then the court will turn its attention to 8 requiring the County to upgrade the temporary facility that 9 they're in now to a place where the girls can play safely and 10 with some dignity for the remainder of this year. 11 The ultimate litigation will determine where the 12 girls will play after that. 13 ultimately be -- go one place, the other place, or yet a third 14 location. 15 reasons we've talked about. 16 Okay. Okay. Whether the girls will We know they can't go in the stadium for the This case is in its infancy; so there's a lot going 17 on here. But I don't think the County should be too 18 disappointed if they truly have the girls' interest at heart. 19 MS. TIPTON: 20 May I just have one point of clarification. 21 22 And, certainly, Your Honor, we do. Did you mean the injunction to be only against the County? THE COURT: No, no, it's against the Department of 23 Education as well. I've tried to be reasonable here and 24 responsible in issuing an order that protects the interest of 25 the young women who are involved in these -- in this team, on Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 51 of 57 PageID #: 573 51 1 the one hand, while at the same time not forcing the County to 2 do something which is impossible for them to do. 3 not going to -- I'm just not going to issue an order that can't 4 be complied with without making it, you know, physically and 5 financially -- it would be irresponsible for the court and not 6 safe for the girls. 7 Okay. Now, anything else? You know, I'm I'm going to be issuing 8 an order that will conform to what I have just ruled. 9 right? 10 11 MR. GLUCK: All Your Honor, just a date for the hearing in two weeks. 12 THE COURT: Yes. 14 THE CLERK: April 2d at 1:30 P.M. 15 THE COURT: This is assuming that the federal courts 13 16 Theresa, can we have a date, please. have enough money to fly me back home again. 17 MS. TIPTON: Your Honor, that is a day on which 18 the -- neither the County nor the State is -- is working. 19 a state holiday. 20 THE COURT: 21 MS. TIPTON: 22 THE COURT: 23 It's Is this a furlough Friday? No, actually, it's a state holiday. Oh, it's a state holiday. Which one is it? 24 MS. TIPTON: It raises another constitutional 25 question, but it is Good Friday. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 52 of 57 PageID #: 574 52 1 THE COURT: You know, when I was chief judge, I 2 ordered the federal courts to observe every single state 3 holiday, except Good Friday. 4 nothing to do with the religious aspect of Good Friday. 5 because we took one holiday and the State didn't take another 6 one, and so we had to equal it out. 7 All right. 8 MS. TIPTON: 9 THE COURT: 10 MS. TIPTON: 11 THE COURT: 12 And that was because -- it had We'll have another day. Would it be possible on the 6th or 7th? Of -- of what? Of April. That's -- that's kind of far down the road. 13 (Counsel conferring.) 14 THE COURT: Oh, well, they were just -- we were going 15 to do it on -- how about -- we could do it on Thursday. 16 about Thursday, the 1st? 17 MR. GLUCK: 18 MS. TIPTON: 19 THE COURT: 21 MS. TIPTON: 22 THE COURT: 23 MS. TIPTON: 25 How That's fine with plaintiffs, Your Honor. Well, Your Honor, I'm scheduled to -- to leave for the mainland at 1:15 that day from Maui. 20 24 It was Oh, okay. If we could have it -But how long are you going to be gone? Through Monday the 5th. We could try it -- could we do something by telephone? THE COURT: Well, your co-counsel could be here, and Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 53 of 57 PageID #: 575 53 1 then you could appear by telephone. 2 (Counsel conferring.) 3 MS. TIPTON: 4 Well, we'll do our best to cobble something together. 5 THE COURT: 6 MS. TIPTON: 7 THE COURT: 8 MS. LOVELL: 9 those periods; so that's why -- 10 THE COURT: 11 otherwise. 12 couldn't be here. 13 date here, that's all. 14 15 Okay. So what day? All we can do is our best, Your Honor. I know. I have an arbitration that's set for Counsel, I'm not -- I'm not suggesting I'm sure you have many good reasons why you I wasn't -- I'm just trying to figure out a MS. TIPTON: Right. Right. If the court's calendar allows early enough in the morning that day. 16 THE COURT: 17 MS. TIPTON: On April 1st or -- 18 THE COURT: Yeah, we can do it. 19 MS. TIPTON: 20 THE COURT: 21 What date? Or as I said, April 6th. How about 8:30 in the morning on April -- you know, you've got to get here, though. 22 MS. TIPTON: You have to fly -- I was thinking if only we did this by 23 telephone. 24 intend that this would be our time to mediate? 25 We're only reporting back on the -- or did you THE COURT: Well, no, no. I'm hoping that mediation Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 54 of 57 PageID #: 576 54 1 will start before then. 2 MS. TIPTON: 3 THE COURT: Yes, we -- as I said -No, no, this would be the time in which 4 I'm going to get a preliminary report and then make a 5 preliminary determination -- 6 MS. TIPTON: 7 THE COURT: 8 9 10 11 12 13 14 Oh, then --- as to whether the girls are going to move or they're going to say. MS. TIPTON: I see. Well, in that case we really should have someone here with -THE COURT: I think so. All right. how about the -- I will make it April the 6th. MS. TIPTON: me, Your Honor. You know what, Is that okay? That -- that would certainly work for We would appreciate that accommodation. 15 THE COURT: All right. Is that all right, Mr. Gluck? 16 MR. GLUCK: That's fine, Your Honor. 17 THE COURT: In the meantime, however, I will ask Thank you. 18 Judge Chang or Judge -- I can't tell you which one yet because 19 I don't know who's going to be on duty, but I will ask Judge 20 Chang or Judge Kurren to immediately get in contact with the 21 parties and immediately start the mediation process to see if 22 we can't work this out. 23 worked out, we may not need to have the additional hearing, if 24 you can work this out. 25 MS. SHIKADA: And if it's susceptible of being Okay? All right? Your Honor, can I -- I'm sorry. Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 55 of 57 PageID #: 577 55 1 THE COURT: Miss Shikada. 2 MS. SHIKADA: 3 THE COURT: Give me a time. 4 THE CLERK: Nine o'clock. 5 THE COURT: Thank you, Miss Shikada. 6 Nine o'clock on April the 6th is all right? 7 MS. TIPTON: 8 MR. GLUCK: Yes, Your Honor. 9 THE COURT: Okay. Time of the hearing on April 6? Yes, Your Honor. Now, I want to make it very clear, 10 I'm not -- and I did not intend to cast any dispersions on 11 anyone. 12 any of the officials on Maui intentionally discriminated 13 against young women. Okay. 14 I don't think that any of the lawyers here or All right? Or the DOE. We don't have the situation we had many, many years 15 ago where there was some intentional discrimination involved in 16 our educational process involving disabled children. 17 have that. 18 of a situation that should never have occurred in the first 19 place and was allowed to continue and fester to a point where 20 it finally brought itself to a head. 21 We don't But what we do have here is, I think, an acceptance And this may be a good opportunity for the County, 22 for the Department of Education, and for the plaintiffs to 23 rectify a situation that really needs to be rectified and 24 brought up to appropriate constitutional standards and meet the 25 goals of Title IX, which I'm sure the County wishes to do and Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 56 of 57 PageID #: 578 56 1 the DOE certainly does and I'm sure that the plaintiffs wish to 2 have done. I don't think we disagree on that; right? 3 MS. TIPTON: 4 THE COURT: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Certainly not, Your Honor. All right. See, I'm always able to get an agreement among counsel one way or the other. Thank you very much. Court stands in recess. (Court recessed at 3:32 P.M.) Case 1:10-cv-00159-DAE-LK Document 37 Filed 04/07/10 Page 57 of 57 PageID #: 579 57 1 2 COURT REPORTER'S CERTIFICATE I, Debra Kekuna Chun, Official Court Reporter, United 3 States District Court, District of Hawaii, do hereby certify 4 that the foregoing is a true, complete, and correct transcript 5 from the record of proceedings in the above-entitled matter. 6 DATED at Honolulu, Hawaii, April 6, 2010. 7 8 /s/ Debra Chun 9 DEBRA KEKUNA CHUN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RPR, CRR