9th Circ. Clears Way for Hawaii Student Class in Sex Bias Suit

The Ninth Circuit has helped female high school student-athletes and graduates file a suit with the Hawaii State Department of Education for gender discrimination on behalf of a class – overturning a lower court's finding that they fell short of certification requirements.

In this week’s unanimous decision, the three-judge panel reversed a Hawaii federal court's determination that the group of plaintiffs hadn't shown that the proposed class was numerous enough to require that their claims receive class treatment. The plaintiffs alleged that female athletes at their public school hadn't been given the same benefits or participation opportunities as male student-athletes.

The panel also chose to override the lower court's ruling that the student-athletes' retaliation claims against the state education department weren't shared among the entire proposed class.

But the Ninth Circuit remanded the order back to the federal court for a final step in granting class certification, pointing out that while the district court had evaluated whether the class met its requirements under Rule 23(a) of the Federal Rule of Civil Procedure, the lower court hadn't weighed in on whether they fulfilled additional requirements under Rule 23(b).

According to the opinion, four pseudonymous current and former female high school student-athletes at James Campbell High School in Oahu filed suit under Title IX against the state education department and the Oahu Interscholastic Association, an affiliated entity that deals with student athletics at public high schools.

The lawsuit, first filed in December 2018 and subsequently twice amended, contended that female athletes were treated worse than male athletes. While the boys teams had access to a locker room, female athletes were forced to change in teachers' closets, outside on the field or in the bathroom of a nearby Burger King.

They also claimed that the high school girls water polo team — which all four plaintiffs played on — was occasionally required to practice on dry land or in the open ocean, while the boys team had access to a swimming pool.

Finally, as Monday's panel opinion stated, the athletes alleged that the state education department retaliated against female athletes who spoke up and claimed their Title IX rights were being violated, chilling them from coming forward. They claimed that school administrators cracked down by warning that they'd cancel water polo games, or imposed unnecessary administrative burdens.

While the district court in December 2019 denied class certification under Rule 23(a), finding that the athletes hadn't demonstrated the class was large enough to necessitate class treatment, the Ninth Circuit panel ruled Monday that the lower court abused its discretion in doing so.

"First, the district court failed to give appropriate weight to the very large size of the proposed class," the panel said, noting that a rough estimate of 300 people in the class, as the athletes argued, would mean the size was numerous enough. As a result, while demanding each of the plaintiffs proceed individually wouldn't technically be impossible, it would be an unnecessary burden, the Ninth Circuit judges said.

The panel also emphasized that the plaintiffs' allegations were systemic, rejecting the defendants' arguments that the plaintiffs hadn't demonstrated that all female athletes were affected by these alleged Title IX violations.

And although the lower court had found that the athletes' classwide retaliation claims against the education department fell short because they couldn't show that all female athletes had been retaliated against — not just specific water polo team members — the panel found that "this reasoning misapprehends plaintiffs' retaliation claim and the law governing it."

Instead, the panel acknowledged that while the state education department's alleged retaliation was aimed at the water polo team, the ramifications of these actions were to chill female student-athletes from coming forward with complaints.

Elizabeth Kristen, counsel for the pseudonymous student-athletes, told Law360 in an interview Tuesday that the Ninth Circuit's decision was critically important for clarifying the issue of classwide retaliation and the collective nature of Title IX class claims — and especially so on the 50th anniversary of the landmark law.

"We're already asking minor school children to come forward and sue their schools to achieve their own civil rights that they were promised 50 years ago. [Requiring all 300-plus students to proceed individually] would be an overwhelming barrier to ever achieving systemic change under Title IX," she said.

"So the fact that this [opinion] recognized female athletes banding together, being represented by a subset of the group of female athletes can bring a case for systemic change against their school … is critically important. You can even say it's a game-changer," Kristen continued.

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