A. B. and A. M. B., by their parents and next friends, C.B. and D.B.; T. T., by her parents and next friends, K.T. and S.T.; A. P., by her parents and next friends, C.P. and M.P, Plaintiffs-Appellants, v. HAWAII STATE DEPARTMENT OF EDUCATION; OAHU INTERSCHOLASTIC ASSOCIATION, Defendants-Appellees.
No. 20-15570
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 4, 2022
D.C. No. 1:18-cv-00477-LEK-RT
Opinion by Judge Collins
Appeal from the United States District Court for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 4, 2021
Honolulu, Hawaii
Filed April 4, 2022
Before: Richard R. Clifton, Ryan D. Nelson, and Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
Title IX / Class Certification
The panel reversed the district court‘s order denying female student athletes’ motion for class certification in their action seeking declaratory and injunctive relief to redress alleged violations of Title IX in the athletic programs at a public high school in Hawaii.
Plaintiffs brought Title IX claims for failure to provide equal treatment and benefits, failure to provide male and female students with equivalent opportunities for participation in athletics, and retaliation against female athletes when issues of Title IX compliance were brought to the attention of high school administrators. The district court denied plaintiffs’ motion for class certification on the grounds that, under
As to numerosity, the panel held that
The panel held that as to plaintiffs’ third cause of action for unlawful retaliation, the district court erred in also denying class certification on the further ground that plaintiffs failed to show commonality and typicality because this claim was centered on the high school water polo team, rather than on female student athletes as a whole. The panel concluded that the district court failed adequately to consider plaintiffs’ contention that defendants’ alleged retaliatory actions had a classwide effect. In addition, the district court failed to properly consider the legal principles that govern a retaliation claim of this nature under Title IX and require consideration of whether plaintiffs fall within the zone of interests that Title IX protects.
COUNSEL
Elizabeth Kristen (argued) and Kim Turner, Legal Aid at Work, San Francisco, California; Mateo Caballero and Jongwook Kim, ACLU of Hawaii Foundation, Honolulu, Hawaii; Harrison J. Frahn IV, Simpson Thacher & Bartlett LLP, Palo Alto, California; Jayma Marie Meyer, Simpson Thacher & Bartlett LLP, New York, New York; for Plaintiffs-Appellants.
Ewan C. Rayner (argued) and Kimberly T. Guidry, Deputy Attorneys General; Department of the Attorney General, Honolulu, Hawaii; for Defendant-Appellee Hawaii State Department of Education.
Lyle S. Hosoda and Addison D. Bonner, Hosoda and Bonner LLLC, Honolulu, Hawaii, for Defendant-Appellee Oahu Interscholastic Association.
Lee Brand, Roxane A. Polidora, and Athena G. Rutherford, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for Amici Curiae Civil Rights Organizations.
COLLINS, Circuit Judge:
Section 901(a) of Title IX of the Education Amendments of 1972 provides that, subject to certain exceptions, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
I
A
Plaintiffs A.B., her younger sister A.M.B., T.T., and A.P. are or were female student athletes at James Campbell High
In their first cause of action, Plaintiffs allege that Defendants violated § 901(a) by failing to provide equal treatment and benefits. We have held that § 901(a)‘s prohibition on discriminatory denial of educational benefits, as construed in the U.S. Department of Education‘s implementing regulation governing school athletic programs, “require[s] equivalence in the availability, quality and kinds of . . . athletic benefits and opportunities provided [to] male and female athletes.” Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 964 (9th Cir. 2010) (internal quotation marks omitted) (citing
In support of this claim, Plaintiffs allege, for example, that “male athletes at Campbell have exclusive access” to a very large “standalone athletic locker room facility that is located near the athletic fields,” while “female athletes at Campbell have no standalone athletic locker room facility, whether located near the athletic fields or elsewhere on campus.” Plaintiffs allege that, as a result, “female athletes, including Plaintiffs, must carry their athletic gear around with them all day and have resorted to changing in teachers’ closets, in the bathroom of the nearest Burger King, and even on the practice field, potentially in full view of bystanders.” Plaintiffs also allege that, in contrast to Campbell‘s well-
Plaintiffs’ second cause of action alleges that Defendants violated § 901(a) by failing to provide male and female students with equivalent opportunities for “participation” in athletics. See
Plaintiffs’ third cause of action is asserted only against the Department and alleges that it violated § 901(a) by retaliating against female athletes at Campbell when A.B., T.T., and others brought issues of Title IX compliance to the attention of Campbell administrators. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005) (holding that “the text of Title IX prohibits a funding recipient from retaliating against a person who speaks out against sex discrimination, because such retaliation is intentional ‘discrimination’ ‘on the basis of sex‘“). Specifically, Plaintiffs allege that school administrators retaliated by threatening to cancel Campbell‘s girls’ water polo program and by making the water polo team needlessly resubmit program paperwork. Plaintiffs further allege that these retaliatory actions created a “chilling effect among Campbell‘s female athletes regarding identifying and complaining about other gender inequities in athletics” to the Department.
Plaintiffs’ complaint seeks only declaratory and injunctive relief against Defendants, as well as attorneys’ fees and costs under
B
Relying on
The district court held that, as to all three claims, Plaintiffs had failed to make the required threshold showing that the class was “so numerous that joinder of all members is impracticable.” See
Turning to the other elements of
Lastly, the district court found that Plaintiffs would be adequate representatives of the class, without distinguishing among the three claims.
Having concluded that Plaintiffs had failed to satisfy one or more requirements of
Plaintiffs timely petitioned for leave to appeal pursuant to
II
To obtain certification of a plaintiff class under
III
A
Plaintiffs contend that we should apply the standards for evaluating numerosity set forth in Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982), vacated, 459 U.S. 810 (1982), on remand, 713 F.2d 503 (9th Cir. 1983), modified, 726 F.2d 1366 (9th Cir. 1984). Defendants, however, contend that Jordan is no longer good law and in any event is distinguishable. Because the parties have pointed us to no other decision in which we have elaborated on the substantive standards for evaluating numerosity—and our own research has likewise revealed none—we begin by closely examining our decisions in Jordan.
In that case, the plaintiff‘s class action complaint alleged that the defendant county‘s consideration of “three types of criminal record, i.e., juvenile record, arrest record, and marijuana conviction record” constituted unlawful race discrimination against Blacks in violation of Title VII of the Civil Rights Act of 1964,
In addressing numerosity, Jordan indicated that a court must consider what the evidence shows concerning “the absolute number of class members.” 669 F.2d at 1319.
Applying these standards, we held that, “[a]lthough we would be inclined to find the numerosity requirement in the present case satisfied solely on the basis of the number of ascertained class members, i.e., 39, 64, and 71, we need not do so since the presence of other indicia of impracticability persuade us that the requirement has been met.” Id. at 1319. Specifically, we noted that “the relatively small size of each class member‘s claim and the probability that the class members may be difficult to locate combine to make it impracticable for individual class members to join in the lawsuit.” Id. at 1319–20. We also observed that each class included “unnamed and unknown future black applicants” and that the “joinder of unknown individuals is inherently impracticable.” Id. at 1320. Based on these reasons, we held that “the district court erred in denying class certification for failure to satisfy the numerosity requirement.” Id.
We then proceeded to find that the plaintiff had also satisfied the commonality, typicality, and adequacy requirements of
On remand, we concluded that, in light of the Supreme Court‘s intervening abrogation of the across-the-board rule, as well as our “recomputation of the actual number of rejected black applicants,” the “numerosity requirement of Rule 23” had not been met. See Jordan, 726 F.2d at 1367 (emphasis added), amending 713 F.2d at 504. In reaching that conclusion, however, we did not in any way suggest that our original decision‘s substantive articulation of the numerosity standards was erroneous. Moreover, Falcon does not address the standards for numerosity at all, and it therefore provides no basis for declining to follow our elaboration of the numerosity requirement in our initial decision in Jordan. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). Accordingly, we will apply Jordan‘s framework in assessing numerosity here.
B
We conclude that the district court‘s numerosity analysis was inconsistent with Jordan in two respects.
First, the district court failed to give appropriate weight to the very large size of the proposed class. Plaintiffs presented uncontroverted evidence that in the 2016–2017, 2017–2018, and 2018–2019 school years, the annual number of female student athletes at Campbell ranged between 366 and 434. Thus, even considering only currently enrolled students, the evidence amply shows that a reasonable estimate of the size of the class well exceeds 300 persons.
Defendants contend that Plaintiffs failed to make any showing that all current female student athletes have been subjected to the alleged Title IX violations and are therefore class members, but we think this argument overlooks both the substance of Plaintiffs’ claims and the applicable standards for liability under Title IX. Some aspects of Plaintiffs’ first cause of action, which alleges unequal treatment and benefits, explicitly rest on allegations of systemic discrimination (such as, for example, the complete lack of standalone athletic locker facilities) that, if proved, would necessarily apply to all current female student athletes. See supra at 7–8. As to the second cause of action for unequal participation opportunities, the three-part test we apply for evaluating such claims is framed in terms that examine the school‘s overall treatment of female athletic programs versus male athletic programs. See supra at 8. And for reasons we explain further below, we conclude that Plaintiffs’ third cause of action for retaliation likewise properly rests upon asserted classwide adverse impacts on female student athletes at Campbell. See infra at 24–26. It follows that Plaintiffs amply showed that the absolute number of class members as to each claim is well over 300 persons. The resulting class size qualifies as “large in numbers” by any metric, and therefore, under Jordan, that
On this record, we find no countervailing case-specific considerations indicating that, despite the large class size, joinder of all class members is nonetheless practicable. In concluding that joinder of all class members was practicable here, despite the potential size of the class, the district court emphasized that all of Campbell‘s current female student athletes could be identified “through school and athletic records” and that all of them were local and within the jurisdiction of the court. But the standard under
Here, joinder of all class members is not “reasonably capable of being accomplished” because it would impose very substantial logistical burdens for little, if any, benefit. Where, as here, the class seeks only prospective injunctive and declaratory relief, the practical value of joining each of the 300+ class members as a formal party is slim to nonexistent and is plainly outweighed by the substantial logistical burdens that would entail. See Jordan, 669 F.2d at 1319 (noting that “whether injunctive or declaratory relief is sought” is relevant to assessing whether joinder of class members is impracticable); see also Harris, 329 F.2d at 913
2
Second, the district court also failed adequately to consider the fact that the class, as defined, included “future” Campbell female student athletes.
“The inclusion of future class members in a class is not itself unusual or objectionable,” because “[w]hen the future persons referenced become members of the class, their claims will necessarily be ripe.” Rodriguez v. Hayes, 591 F.3d 1105, 1118 (9th Cir. 2010). We have recognized that when, as here, a class‘s membership changes continually over time, that factor weighs in favor of concluding that joinder of all members is impracticable. See Jordan, 669 F.2d at 13204; see also J.D. v. Azar, 925 F.3d 1291, 1322
The district court declined to consider this factor because it concluded that future class members were not “reasonably identifiable,” and the court therefore could not make a “reasonable approximation” of the number of such members. This reasoning misconstrues the significance of this factor. The fact that it may not be possible to identify future class members at the time of class certification does not mean that this factor therefore drops out of the analysis and may be set aside. On the contrary, as we held in Jordan, the fact that the membership of a class changes over time makes joinder of every class member all the more impracticable. See 669 F.2d at 1320. This case well illustrates the point. Every year, as new freshmen matriculate into Campbell and as seniors graduate, the membership of potentially 25% of the student body may be expected to turn over. Given the purely equitable nature of the claims, there is little if any benefit to continually joining, or potentially dismissing, large numbers of additional class members. That makes the impracticability analysis all the more lopsided in favor of finding numerosity.
For similar reasons, the district court abused its discretion in concluding that a “reasonable approximation”
C
We therefore conclude that the district court erred in holding that Plaintiffs had not satisfied the numerosity requirement of
As to Plaintiffs’ third cause of action for unlawful retaliation, the district court also denied class certification on the further ground that Plaintiffs had failed to show commonality and typicality. This conclusion was also flawed.
The commonality requirement of
The district court concluded that these two requirements were not satisfied here, because in its view Plaintiffs’ retaliation claim is centered on the water polo team rather than on female student athletes as a whole. As the district court explained, the Department‘s retaliatory actions arose from “a dispute between Defendants, specifically limited to Campbell administrators, and the water polo team and their
Although the Department‘s alleged retaliatory actions were immediately directed at the water polo team, whose members and their parents had made complaints about unequal treatment, the district court failed adequately to consider Plaintiffs’ contention that those actions had a classwide effect. Specifically, Plaintiffs assert that the example that the Department made of the girls’ water polo team had the effect of broadly dissuading Campbell‘s female student athletes from “raising the issue of sex discrimination” out of fear that the Department would likewise retaliate against them. Indeed, a declaration submitted by one of the Plaintiffs’ parents specifically averred that other students and parents had “expressed interest in joining the lawsuit, but were scared about the repercussions from [the Department] if they did so.” This parent explained that, for example, one student who was a “star athlete” and who hoped to win college scholarships, was too afraid “to jeopardize her relationship with the school.”
In addition to overlooking the broader theory of unlawful retaliation that Plaintiffs raised here, the district court failed to properly consider the legal principles that govern a retaliation claim of this nature under Title IX. On this point, we find our prior decision in Ollier to be instructive, and so we address that decision in some detail.
In Ollier, complaints concerning a high school‘s compliance with Title IX were made by the named plaintiffs’ parents and the girls’ softball coach, Chris Martinez. 768 F.3d at 853, 866–67. In response, the school fired
We held that the named plaintiffs clearly asserted a sufficient injury-in-fact to satisfy Article III, because their “prospects for competing were hampered” when the defendants “impermissibly retaliated against them by firing Coach Martinez.” Id. at 865 (emphasis in original). We also recognized, however, that what the defendants characterized as “standing” arguments actually rested primarily on the general prudential rule against asserting the rights of third parties. Id. (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)); cf. Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (noting that “the general prohibition on a litigant‘s raising another person‘s legal rights” is “not derived from Article III,” but reflects what has inexactly been called the “‘prudential’ branch of standing“). Addressing the question that way, we held that the named plaintiffs could assert a Title IX retaliation claim based on retaliatory actions that were directed at another person (Coach Martinez) and that were triggered by
In reaching that conclusion, we noted that the Supreme Court had addressed a somewhat similar individual third-party retaliation claim under Title VII in Thompson v. North American Stainless, LP, 562 U.S. 170, 177–78 (2011). See Ollier, 768 F.3d at 866. There, both Thompson and his fiancée worked in the same company, and the allegation was that Thompson was fired in retaliation for complaints about sex discrimination made by his fiancée. Thompson, 562 U.S. at 172. The Court held that, because Thompson was within the “zone of interests” protected by Title VII, he had a cause of action for retaliation even though his fiancée was the one who had engaged in the protected activity that led to the retaliation. Id. at 177–78. We concluded in Ollier that this same zone-of-interest analysis applies to Title IX, and we therefore considered whether the named plaintiffs in that case were “within the ‘zone of interests’ that Title IX‘s implicit antiretaliation provisions seek to protect.” Ollier, 768 F.3d at 866; see also Lexmark, 572 U.S. at 127 & n.3 (suggesting that, in many cases, “third-party standing” is really an issue of whether the party has a cause of action under a statute, which in turn depends in part on the zone-of-interests test). Because those named plaintiffs were students who had suffered a diminished athletic experience due to retaliation, we concluded that they easily fell within Title IX‘s zone of interests. Ollier, 768 F.3d at 866. They therefore had a cause of action under Title IX to seek redress for those injuries, despite the fact that the actual Title IX complaints that led to the retaliation were “made by their parents and Coach Martinez.” Id. at 866–67.
We similarly held that classwide injunctive relief was properly awarded in Ollier, despite the fact that many of the
Although Ollier did not directly address the issue of class certification, see id. at 854 n.4, it is clear that the district court‘s application of
For similar reasons, the district court erred in concluding, in effect, that the direct victims of unlawful retaliation have claims that are atypical of the claims of the indirect victims. Plaintiffs’ retaliation claim is not premised solely on the injury of threatening to cancel Campbell‘s girls’ water polo program and make the water polo team needlessly resubmit program paperwork. Instead, it is also premised on the “chilling effect” felt by female athletes throughout the high school. And where, as claimed here, the persons who raised broader concerns about Title IX compliance were met with a retaliatory response that likewise impacted female student athletes generally, the indirect victims’ claims depend critically upon the success of the direct victims’ claims. As a result, there is little prospect that the named plaintiffs’ claims could be said to be burdened with defenses or issues unique to them and distinct from the other class members. See Hanon, 976 F.2d at 508. Plaintiffs thus established typicality under
*
*
*
For the foregoing reasons, the district court abused its discretion in concluding that Plaintiffs had not met the
REVERSED AND REMANDED.