High School Female Athletes Fail to Score on Class Certification
The U.S. District Court for the District of Hawaii recently denied female student-athletes’ motion for class certification under Title IX even though it rejected the defendants’ attacks on mootness and standing as well as Rule 23(a)’s requirements for commonality, typicality, and adequacy. Instead, the court found that the proposed class failed to satisfy the numerosity requirement that joinder would be impracticable.
The underlying case centered on Title IX allegations by female athletes at James Campbell High against defendants Hawaii State Department of Education and the Oahu Interscholastic Association. The athletes claimed that the defendants violated Title IX by failing to take remedial actions to meet Title IX’s anti-discrimination provisions and failed to provide Campbell female athletes with equivalent, athletic-participation opportunities. The athletes’ motion proposed the following class: “All present and future James Campbell High School female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” The plaintiffs alleged that the defendants’ records showed 366 Campbell female student-athletes in the 2018–2019 school year alone.
The court first addressed the issue of mootness after the defendants argued that two of the named plaintiffs had already graduated. The court found, however, that those athletes’ claims fit under the “inherently transitory” exception to mootness, given the necessarily finite duration of a high school student’s time as a student-athlete and the potential for repetition of the claims from similarly situated students.
The court next addressed the defendants’ argument that the named plaintiff — a ninth-grade water polo player — did not have standing because the water polo season had not yet begun at the time the motion was filed, and thus she had yet to experience the alleged discriminatory conduct. The court found that the defendants’ argument was erroneously narrow-focused and that the ninth-grade athletes had allegedly experienced discriminatory events generally suffered by the female student-athlete populations, which would apply even if a particular student’s athletic season had not yet started. Specifically, those student-athletes are forced to make plans around a discriminatory sports schedule or are exposed to a lack of publicity for female athletics programs, which are the types of harm that Title IX was implemented to prevent and remedy.
The court then turned its focus to Rule 23(a)’s requirements. While the court found that the athletes satisfied the commonality, typicality, and adequacy requirements, the court’s decision ultimately depended on the athletes’ inability to satisfy the numerosity requirement. Although the defendants did not appear to challenge numerosity, including that the class exceeded 300 members, the court found that the athletes had failed to demonstrate that joinder was impracticable and that the future members of the proposed class were reasonably identifiable. The court observed that the proposed class members were limited to the female population from a single high school and were geographically tied to one area of Hawaii and identifiable through school and athletic records. Thus, the court held that joinder of the current students within the class in a single lawsuit was not impracticable. The court also found that, with regard to the future and potential students, those subgroups were not reasonably identifiable and, thus, would not be considered in any numerosity determination.
As uncommon as it may be for a class of more than 300 members to fail the numerosity requirement of Rule 23(a), any case can offer distinct circumstances that allow a court to reject an otherwise presumed, accepted argument. The unique geographic facts here were sufficient for this court to reject certification. Ultimately, the facts always matter.
A.B. v. Haw. State Dep’t of Educ., Civ. No. 1:18-cv-00477 (D. Haw. Dec. 31, 2019).