Keeping Tabs on the Ninth Circuit
April 08, 2022 - This Week at the Ninth

This Week at the Ninth: Class Questions

This Week at the Ninth: Class Questions

This week, the Ninth Circuit digs into class certification standards for Title IX cases.


The Court holds that a putative class action by female student athletes of Hawaii’s largest public high school alleging discrimination and retaliation satisfied Rule 23’s numerosity, commonality, and typicality requirements.

Panel: Judges Clifton, Nelson, and Collins, with Judge Collins writing the opinion.

Key Highlight: “The standard under Rule 23(a) [for numerosity] is not, as the district court seemed to think, whether joinder is a literal impossibility.  Rather, the question is whether joinder of all class members is ‘practicable’—i.e., ‘reasonably capable of being accomplished.’”

Background: Plaintiffs, female student athletes at Hawaii’s largest public high school, brought a putative class action seeking declaratory and injunctive relief to redress multiple alleged violations of Title IX of the Education Amendments of 1972, including systematic discriminatory deficiencies in their school’s athletic program.  The district court denied plaintiffs’ motion for class certification under Federal Rules of Civil Procedure 23(b)(1)(B) and (b)(2).  The district court held that plaintiffs failed to show that the class met Rule 23’s numerosity requirement because although there were 366 female student-athletes in a given class year, the proposed class members are limited to the female student population from a single high school and were thus geographically tied to one area of Hawaii, making joinder not impracticable.  The district court found Rule 23’s commonality and typicality requirements met for two of plaintiffs’ claims, but not for their retaliation claim.  The district court reasoned that the relation claim arise from a dispute between high school administrators and the water polo team and plaintiffs had not alleged any instances of retaliation against any athletes other than members of the water polo team.  The Ninth Circuit authorized an interlocutory appeal under Federal Rule of Civil Procedure 23(f).

Result: The Ninth Circuit reversed and remanded.  The Court first held that the district court abused its discretion in concluding that the class was not sufficiently numerous.  The Court explained that the district court failed to give appropriate weight to the very large size of the proposed class.  The annual number of female student athletes ranged from 366 to 434.  And the Court disagreed with defendants that the plaintiffs had failed to make any showing that all current female student athletes have been subjected to the alleged Title IX violations because some aspects of plaintiffs’ claims explicitly rested on allegations of systematic discrimination that, if proved, would necessarily apply to all current female student athletes.  The Court also found no countervailing case-specific considerations indicating that, despite the large class size, joinder of all class members is practicable.  The standard is not whether joinder is a literal impossibility, but whether it is reasonable capable of being accomplished.  Joinder was not reasonable capable of being accomplished because it would impose very substantial logistical burdens for little, if any, benefit.  The Court further held that the district court’s numerosity analysis was flawed because it failed to consider the fact that the class was defined to include future female student athletes.

The Court also disagreed with the district court that plaintiffs had failed to prove commonality and typicality for their retaliation claim.  The district court misapprehended plaintiffs’ retaliation claim in concluding that it arose only from a dispute between defendants and the water polo team.  Although the retaliatory actions were immediately directed at the water polo team, plaintiffs asserted that those actions had a classwide effect by broadly dissuading the high school’s female student athletes from raising the issue of sex discrimination out of fear that the defendant would likewise retaliate against them.