By Doriyon Glass, of Jackson Lewis
A United States District Court for the District of Hawaii recently denied a motion for class certification filed by female high school students of James Campbell High School (“Campbell” ), regarding their claims that the Oahu Interscholastic Association (“OIA”) violated Title IX of the Education Amendments of 1972. The Court explained that the plaintiff’s proposed class failed to meet the numerosity requirement, and as to count three of their complaint, the plaintiffs’ failed to meet the commonality and typicality requirements.
In A.B. v. Hawaii State Department of Education, athletes on the female high school water polo and swim team filed a class action lawsuit against OIA and the Hawaii State Department of Education (“DOE”) alleging violations of Title IX. In their three-count complaint, the plaintiffs claim the defendants violated Title IX based on:
their failure to take remedial actions to meet the anti-discrimination provisions under Title IX, and their continued unequal treatment of female athletes;
their failure to provide female athletes with equivalent athletic participation opportunities; and
the DOE’s retaliation against the plaintiffs for their attempts to report or discuss the DOE’s practice of sex discrimination.
The DOE is a state administrative agency managing 292 schools in Hawai’i, including the plaintiffs’ school, Campbell. The OIA is an unincorporated athletic association consisting of the DOE’s secondary schools in Oahu, which includes Campbell. The plaintiffs alleged that the DOE receives federal financial assistance and, therefore is subject to Title IX’s anti-discrimination provisions. According to the plaintiffs’ complaint, female athletes at Campbell are treated worse, receive fewer benefits and fewer opportunities than male athletes, and the OIA’s policies and practices control or influence this disparate treatment immensely.
On May 24, 2019, the district court denied OIA’s motion to dismiss the complaint, and held, “the Plaintiffs have provided sufficient factual matter to plausibly allege that OIA may be subject to the anti-discrimination provisions of Title IX under a ‘controlling authority’ theory.”
Following the court’s decision, the plaintiffs sought to certify a class of “present and future [Campbell] female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” Accordingly, the court engaged in a four-part analysis to determine whether the plaintiffs’ proposed class satisfied the requirements of Federal Rule of Civil Procedure 23.
As a threshold matter, the court analyzed OIA’s allegations that the plaintiffs’ claims were unsustainable as moot because the named plaintiffs had graduated from Campbell since filing their complaint. Generally, if a plaintiff’s claim becomes moot before the court certifies the class, the class action also becomes moot. However, the court held that the claims were not moot, but instead were inherently transitory due to 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, under the particular circumstances of the case.”
The court then went on to analyze whether the plaintiff’s met the Rule 23(a) requirements, of numerosity, commonality, typicality, and adequacy. Under the rule, a proposed class must be so numerous that joinder of all members is impracticable. The plaintiffs argued that the proposed class was numerous, as it included 366 Campbell female student-athletes, and that joinder was impracticable because the future members of the proposed class were necessarily unidentifiable. The court disagreed and explained that joinder was not impracticable as to current students because the class members would be the female student population of a single high school. The court further explained that it could not make a reasonable approximation as to “future or potential students” because they were not reasonably identifiable, and, thus, it did not consider them in its numerosity determination.
The court then looked at commonality, whether class members share a common issue of law or fact, and typicality, whether the representative parties’ claims and class members’ claims arise from the same course of events, together. The court concluded that commonality and typicality were satisfied as to counts one and two of the complaint. The plaintiffs successfully identified a common legal issue connecting the proposed class members, “unequal treatment suffered on the basis of sex, as substantially related to the resolution of the litigation.” The plaintiffs also identified an injury based on OIA’s actions that was typical to the class members, unequal access, treatment, and benefits of athletic program. In relation to count three, the retaliation claim, the court concluded that the claim did not arise from a fact pattern typical of all the class members and there were no questions of law or fact common to the proposed class.
Finally, the court concluded that the plaintiffs had satisfied adequacy requirement of Rule 23. The requirement assesses whether “the named plaintiffs and their counsel have any conflicts of interest with other class members.” The court dismissed OIA’s argument that proposed class could be antagonistic because it included groups that play different sports. The court also concluded that adequacy was supported by plaintiffs’ declarations that they were motivated to obtain equal opportunities for female students at Campbell.
Based on the plaintiffs’ failure to satisfy the numerosity requirement, and the as to count three, the commonality and typicality requirements of Rule 23(a), the court held that the class could not be certified.
