January 2015 - Parks & Recreation - 31

side of the protected class were treated better, " or that Jefferson " received
services in a markedly hostile manner
that is objectively discriminatory. "
Despite any alleged disparate impact, the court found the city of Fremont had demonstrated " legitimate
purposes for its actions, such as enforcing FTC rules applicable to all. "
In particular, the court found legitimate reasons for the residency requirements, specifically the need " for
added criteria because of demand
for court time. " Further, the court
noted the City's actions were similar
to " other regional tennis centers that
also use residency policies to give priority to USTA league teams. "
Municipal Policy Liability?
In response to Jefferson's allegations of racial discrimination against
Gonce, the city of Fremont further
contended " there was no official policy or custom sufficient to establish
causation under Section 1983. "
According to the federal district
court, municipal liability under Section 1983 requires " an action pursuant to official municipal policy of
some nature, " which causes a deprivation of an individual's civil rights.
Specifically, the court noted a municipal entity will be held liable under
Section 1983 " only when execution
of a government's policy or custom,
whether made by its lawmakers or by
those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury. "
Accordingly, the court acknowledged that the city of Fremont could
not be " subject to municipal liability
absent proof of the existence of an
unconstitutional municipal policy. "
Within the context of Section 1983,
the court found " official municipal policy includes the decisions of a govern

ment's lawmakers, the acts of its policy-making officials, and practices so
persistent and widespread as to practically have the force of law, " which
causes a " deprivation of rights. "
Under the circumstances of this
particular case, the federal district
court found Jefferson had failed to
show a " policy or custom " giving
rise to municipal liability. In so doing, the court noted that Jefferson
and the testimony of teammates had
" not shown a pattern of repeated
discrimination with respect to other
minority players. " Moreover, at one
point in his deposition, Jefferson had
conceded that Gonce " did not handle
scheduling USTA tournaments " and
Gonce " did not interfere with Jefferson's ability to reserve courts for recreational play. "
Accordingly, absent evidence of a
" persistent, widespread or well-settled custom, " the federal district court
found any problems relating to recreational play were not an " informal policy " that could provide a legal basis for
municipal liability under Section 1983.
Municipal Decision Maker?
Moreover, the court found Jefferson
had failed to show that his alleged
" deprivation resulted from an official
policy or custom established by a municipal policy maker possessed with
final authority to establish that policy. " In so doing, the federal district
court found " the residency requirements have at least one core characteristic of a policy. "
The word " policy " generally implies
a course of action consciously chosen
from among various alternatives. Here,
it is undisputed that Gonce considered
" various ways " of limiting the number
of USTA teams seeking to play at the
FTC in revising the USTA guidelines.
In other words, the residency require-

ments were consciously chosen from
various alternatives.
That being said, the federal district
court found " no evidence that the alleged 'policy' or 'custom' was established by the municipal decision makers of the city of Fremont. " On the
contrary, the revised guidelines with
the residency requirements were approved by King, not Gonce. Further,
Gonce was " neither the final policy
maker nor delegated final policy-making authority. " As a part-time tennis
operations supervisor, Gonce lacked
authority to make final policy for the
city of Fremont. The city of Fremont's
general ordinances treat Fremont's city
council as responsible for general policies regarding community recreation.
Further, the federal district court
found " no evidence that any final
policy maker knew of or ratified any
alleged disparate impact or discriminatory motive behind the residency
requirements. " Instead, in the opinion
of the court, the record indicated " the
residency requirements were developed at the request of Kelly King, in
response to increased USTA league
team demand, in consultation with
the USTA, and after consideration of
similar residency requirements adopted by other regional tennis centers. "
Conclusion
Having found no evidence of any
race-based discrimination by the city,
the federal district court granted summary judgment in favor of the city,
dismissing Jefferson's federal civil
rights claims.

James C. Kozlowski, J.D., Ph.D., is an
attorney and Associate Professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows

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