A federal judge from the District of Delaware has granted a motion for class certification to a group of female student athletes at Delaware State University, who alleged that DSU has intentionally discriminated against them based on their gender in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88.
In so ruling, the court found that the plaintiffs met all the requirements of Rule 23 – numerosity, commonality, typicality, and adequacy.
The suit was brought on February 23, 2010 by more than a dozen members of DSU’s women’s equestrian team on behalf of themselves and others similarly situated in response to DSU’s decision to shutter its women’s equestrian team at the conclusion of the 2009-10 academic year.
On April 7, 2010, after the plaintiffs filed a motion for a temporary restraining order and preliminary injunction, a magistrate judge approved the parties’ jointly-proposed consent order, which stated that DSU may not eliminate the equestrian team until the end of the 2010-11 academic year.
In a revised compliant, the plaintiffs sought, among other requested relief, issuance of “a final injunction that restrains DSU from continuing to discriminate against female students on the basis of sex and from eliminating the women’s varsity equestrian team or any women’s athletic opportunities and requires DSU to provide females with an equal opportunity to participate in varsity intercollegiate athletics.”
The plaintiffs also sought class action certification pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, which is the issue in controversy in the instant opinion.
The plaintiffs proposed the following class definition: “All present, prospective, and future DSU female students, including currently enrolled students, students admitted for the 2010-11 academic year, and prospective students, who participate, seek to participate, or have been deterred or prevented from participating in or obtaining the benefits of, intercollegiate athletics sponsored by DSU.”
To obtain class certification under Rule 23, a party must establish the four requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy].
If all four requirements of Rule 23(a) are met, the plaintiffs, in this particular instance, must satisfy Rule 23(b)(2), which applies when a “party opposing the class has acted or refused to act on grounds that apply generally to the class.”
Addressing the numerosity requirement, the court found the class was sufficiently large enough and that the requirement could be “’relaxed in cases . . . where injunctive and declaratory relief is sought by the class,’ and classes as small as the numbers DSU believes are involved here have been certified. Jackson v. Danberg, 240 F.R.D. 145, 147 (D. Del. 2007).”
Next, the court turned to commonality and typicality, which requires plaintiffs to prove that there are questions of law or fact common to the class and that the claims of the representative parties are typical of the claims of the class.
“The court is satisfied that the named plaintiffs have claims against DSU that are common with and typical of the claims other members of the class have against DSU,” it held. “The common questions of law and fact belonging to both the named plaintiffs and the larger class include whether DSU is in compliance with its obligations under Title IX and, if not, whether any proposed corrective actions DSU might take would bring it into compliance with the statute. As Plaintiffs observe, their claims are typical of those of the class because they arise from the same practices: DSU’s alleged ‘failure to comply with Title IX by providing inadequate athletic opportunities and recruiting resources for its female students. … As a result, they seek the same relief as other female athletes who desire to participate, or have been deterred or prevented from participating in varsity sports, namely the equal opportunity to do so.’”
Amplifying on this point, the court wrote that “several courts have recognized that members of eliminated teams may serve as representatives of a class of all current and future athletes. See Favia v. Ind. Univ. of Pa., 7 F.3d 332, 335-36 (3d Cir. 1993) (recognizing certification of class consisting of all present and future women athletes at Indiana University of Pennsylvania where named plaintiffs were members of just two of IUP’s teams, both of which were being eliminated); Cohen v. Brown Univ., 991 F.2d 888, 893 (1st Cir. 1993); Biediger v. Quinnipiac Univ., 2010 U.S. Dist. LEXIS 50044, 2010 WL 2017773 (D. Conn. May 20, 2010); Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277 (D. Conn. 2009); see also D.I. 86 at 2-3 n.2, 6). In reaching this conclusion, these earlier cases necessarily determined that the claims of individuals on teams facing elimination may be common with and typical of the claims of athletes on teams that are not facing a threat of imminent elimination. Here, again, the members of the women’s equestrian team share a common interest with other DSU female students in compelling DSU’s compliance with its Title IX obligations; and in claiming that DSU has failed to comply with these obligations the members of the equestrian team are asserting discrimination claims that are typical of those that may be asserted by other members of the class. The commonality and typicality requisites of Rule 23 are satisfied.”
As for adequacy, the court agreed with the plaintiffs that DSU “’has failed to demonstrate the existence of any conflicts.’ Instead, DSU has merely pointed to speculative, potential conflicts: if DSU adheres to its plan to eliminate the women’s equestrian team and if DSU otherwise satisfies its obligations under Title IX, then at that point it will become possible that the named plaintiffs will not adequately represent the interests of the class, because maybe then the named plaintiffs will abandon their stated commitment to equal athletic opportunities for all female students at DSU. In the present circumstances, the Court will not credit such speculation. See T.B. v. Sch. Dist. of Phila., 1997 U.S. Dist. LEXIS 19300, 1997 WL 786448, at *5 (E.D. Pa. Dec. 1, 1997) (finding ‘any potential conflict [to be] too remote and speculative to warrant withholding class certification’). This is particularly so because several of the named plaintiffs have testified expressly that they are motivated to obtain equal opportunities for all female students at DSU, not just to preserve the equestrian team. See Foltz Dep. Tr. at 57-58 (D.I. 88 at C00182) (stating she will still pursue case even if equestrian team is reinstated because there still will be inequality for women athletes); Savosh Dep. Tr. at 7 (D.I. 88 at C00204) (stating she joined lawsuit to reinstate equestrian team and bring equality in number of opportunities for women to participate on athletic teams); Hotz Dep. Tr. at 28-29 (D.I. 88 at C00185) (same); Collins Dep. Tr. at 4 (D.I. 88 at C00179) (same); Huyett Dep. Tr. at 54-55 (D.I. 88 at C00191) (same).
“Indeed, as DSU itself points out, at least two of the named plaintiffs (Collins and Hotz) ‘recognize [that] Title IX does not require the support of any particular sport and, if DSU is otherwise in compliance with the law, it may eliminate the equestrian team without legal consequence.’ (D.I. 80 at 11 n.7 (citing Collins Dep. Tr. at 6 (D.I. 81 at B159); Hotz Dep. Tr. at 66 (D.I. 81 at B176))) Notwithstanding this recognition, these named plaintiffs (as well as the others) are pursuing and actively prosecuting this case. It may be possible that this case will conclude with DSU eliminating the equestrian team but nonetheless being found in compliance with Title IX. That the named plaintiffs recognize this possibility, yet continue vigorously to prosecute the action nonetheless, supports rather than undermines Plaintiffs’ contention that they satisfy the requirements for class certification.”
Next, the court looked at Rule 23(b)(2), which “requires the party opposing class certification to have acted on grounds generally applicable to the class.”
The court continued that “it is difficult to see how DSU, in eliminating only the women’s equestrian team, has acted in a manner generally applicable to the proposed class of all current and future female DSU students and athletes. DSU contends that such a class is ‘hopelessly overbroad.’ (Id.) This is essentially the same argument DSU makes in connection with the Rule 23(a) requisites to class certification. DSU’s position regarding Rule 23(b)(2) is rejected for the same reasons it was rejected in connection with Rule 23(a).”
Caroline Foltz et al. v. Delaware State University; D. Del.; Civil Action No. 10-149-LPS, 2010 U.S. Dist. LEXIS 69106; 7/12/10
Attorneys of Record: (for plaintiff) Joanne P. Pinckney, LEAD ATTORNEY, Pinckney, Harris & Weidinger, LLC, Wilmington, DE; William J. Burnett, LEAD ATTORNEY, Flaster/Greenburg P.C., Wilmington, DE; Abbe F. Fletman, Terry L. Fromson, PRO HAC VICE. (for defendant) Kathleen Furey McDonough, LEAD ATTORNEY, Sarah Elizabeth DiLuzio, Potter Anderson & Corroon, LLP, Wilmington, DE.
