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A.B. v. Hawaii State Department of Education

United States District Court, D. Hawaii

December 31, 2019

A. B., BY HER PARENTS AND NEXT FRIENDS, C.B. AND D.B., AND T. T., BY HER PARENTS AND NEXT FRIENDS, K.T. AND S.T., Plaintiffs,
v.
HAWAII STATE DEPARTMENT OF EDUCATION, and OAHU INTERSCHOLASTIC ASSOCIATION, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

          Leslie E. Kobayashi United States District Judge

         On May 3, 2019, Plaintiffs A.B., by her parents and next friends, C.B. and D.B.; and T.T., by her parents and next friends, K.T. and S.T. (“Plaintiffs”), filed their Motion for Class Certification (“Motion”). [Dkt. no. 59.] Defendant Oahu Interscholastic Association (“OIA”) filed a memorandum in opposition (“OIA Opposition”) on August 29, 2019 and Defendant Hawaii State Department of Education (“DOE”) filed a substantive joinder in the OIA Opposition and its memorandum in opposition (“DOE Opposition”) on August 30, 2019.[1] [Dkt. nos. 102, 104.] Plaintiffs filed their reply on September 6, 2019. [Dkt. no. 108.] This matter came on for hearing on September 19, 2019. On September 26, 2019, the DOE and Plaintiffs filed their respective supplemental memoranda. [Dkt. nos. 114, 117.] On October 3, 2019, the DOE, Plaintiffs, and the OIA filed responses to the supplemental memoranda. [Dkt. nos. 120, 121, 122.] For the reasons stated below, the Motion is denied.

         BACKGROUND

         The operative pleading at this time is the September 26, 2019 Second Amended Complaint for Declaratory and Injunctive Relief (“Second Amended Complaint”).[2] [Dkt. no. 116.] Plaintiff A.B. is a seventeen year-old, twelfth-grade student at James Campbell High School (“Campbell”), who is a member of the Campbell girls' varsity water polo and swimming teams. Plaintiff A.M.B. is a fourteen year-old, ninth-grade student at Campbell, who is a member of the Campbell girls' varsity water polo team. Plaintiff T.T. is also a seventeen year-old, twelfth-grade student at Campbell, who is a member of the Campbell girls' varsity water polo and swimming teams. Plaintiff. Plaintiff A.P. is a sixteen year-old, eleventh-grade student at Campbell, who is a member of the girls' varsity soccer and water polo teams. [Id. at ¶¶ 11-14.]

         According to the Second Amended Complaint, the DOE is a state administrative agency that manages 292 public schools within the State of Hawai`i, including Campbell, which is a four-year high school. Plaintiffs allege the DOE receives federal financial assistance and is subject to the antidiscrimination provisions of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq. [Id. at ¶ 15.] The OIA “is an unincorporated athletic association composed of all of the DOE's secondary schools on the island of Oahu, ” including Campbell. [Id. at ¶ 16.] Plaintiffs allege both that the OIA is an “instrumentality of, and is controlled by, the DOE, ” and that the DOE and the OIA are “pervasively entwined” because “[t]he OIA's Executive Director is a DOE employee, and all five regular members of the OIA's Executive Council are principals of DOE high schools.” [Id. at ¶¶ 16-17.] Because of the OIA's connections with the DOE, Plaintiffs allege it receives federal financial assistance, and is therefore subject to the anti-discrimination provisions of Title IX. [Id. at ¶ 18.]

         Campbell is the largest high school in the DOE by population. In the 2017-18 school year, of the 3, 123 students, 1, 506 were female. [Id. at ¶ 51.] Plaintiffs allege: female athletes at Campbell suffer worse treatment, receive fewer benefits, and have fewer opportunities than male athletes; and the OIA's policies and practices control and/or greatly influence this disparate treatment. [Id. at ¶¶ 52-53.] With regard to the DOE, Plaintiffs allege sex-based discrimination in its administration of:

(i) athletic locker rooms, [3] practice facilities, and competitive facilities; (ii) equipment and supplies; (iii) scheduling of games and practice times; (iv) availability and quality of coaching; (v) travel opportunities; (vi) medical and training services and facilities; and (vii) publicity and promotion.

[Id. at ¶ 57.] With regard to the OIA, Plaintiffs allege discrimination is evidenced by its treatment of the girls' teams with respect to: “(i) competitive facilities; (ii) scheduling of games; (iv) [sic] travel opportunities; and (iv) publicity and promotion.” [Id. at ¶ 58.]

         Plaintiffs allege they have submitted numerous complaints to the DOE regarding unfair treatment, and have made written and oral requests to obtain equal accommodation and/or to engage in discussions with the DOE regarding the same. [Id. at ¶¶ 158-59.] In response, the DOE and Campbell administrators have allegedly retaliated against Plaintiffs by, inter alia, threatening to cancel the Campbell girls' water polo season, eliminate the team, or both; and increasing administrative burdens on the water polo team, such as forcing the team to resubmit program paperwork after a particularly heated meeting between the water polo athletes, their parents, and Campbell administrators. [Id. at ¶ 161-62.]

         Plaintiffs have alleged the following claims: 1) a violation of Title IX against Defendants 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 at Campbell (“Count I”); 2) a violation of Title IX against Defendants based on their failure to provide Campbell female athletes with equivalent athletic participation opportunities (“Count II”); and 3) a violation of Title IX against the DOE based on the DOE's retaliation for Plaintiffs' attempts to report and/or discuss the DOE's practice of sex discrimination (“Count III”).

         The Motion proposes the following class of plaintiffs: “All present and future James Campbell High School (‘Campbell') female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” [Motion at 1.] Plaintiffs assert the proposed class satisfies the requirements of Fed.R.Civ.P. 23(a), (b)(1)(B) and (b)(2). Plaintiffs ask this Court to certify them as class representatives. Plaintiffs also move to have their counsel appointed as class counsel under Rule 23(g).

         STANDARD

         Fed. R. Civ. P. 23 states, in pertinent part:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

         The Rule 23(a) requirements are known as: “(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.” Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014).

         “Class certification is proper only if the trial court has concluded, after a ‘rigorous analysis,' that Rule 23(a) has been satisfied.” Id. (some citations and internal quotation marks omitted) (quoting Wal-Mart Stores, Inc. v. Dukes, __U.S.__, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)). The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart, 564 U.S. at 348 (citation and quotation marks omitted). The Ninth Circuit has stated:

In evaluating whether a party has met the requirements of Rule 23, we recognize that “Rule 23 does not set forth a mere pleading standard.” Wal-Mart, 131 S.Ct. at 2551. We therefore require a party seeking class certification to “affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. Similarly a party must affirmatively prove that he complies with one of the three subsections of Rule 23(b).

Parsons, 754 F.3d at 674 (emphasis in Parsons).

         DISCUSSION

         I. Mootness and Standing

         A. Mootness

         As a threshold matter, Defendants argue Plaintiffs A.B. and T.T.'s claims are unsustainable as moot.[4] [OIA Opp. at 11; DOE Opp. at 2.] Defendants argue that, because A.B. and T.T. have graduated from Campbell since filing the Motion, they no longer qualify as members of the proposed class, and therefore cannot pursue their claims. [OIA Opp. at 11.] It is true that, if “the plaintiff's claim becomes moot before the district court certifies the class, the class action normally also becomes moot.” Slayman v. FedEx Ground Package Sys., Inc., 765 F.3d 1033, 1048 (9th Cir. 2014). However, under the “inherently transitory” exception to mootness, a court may “avoid[] the spectre of plaintiffs filing lawsuit after lawsuit, only to see their claims mooted before they can be resolved.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011). “‘Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.'” Id. (brackets omitted) (quoting Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661 (1991)). An inherently transitory claim is one in which a trial court will not have enough time to rule before the expiration of the representative's ...


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