How the Ninth Circuit’s Decision in A.B. v. Hawaii State Department of Education Recognizes the Reality of Title IX Litigation

In one of few recent victories for Title IX plaintiffs, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit Court ruled in favor of four student athletes at James Campbell High School. The Ninth Circuit held that the district court erred in rejecting the plaintiffs’ request for class certification on their Title IX retaliation claims. A. B. v. Hawaii State Department of Education signals a major shift for plaintiffs in Title IX cases wishing to avail themselves of the benefits of class action lawsuits against educational institutions.

What Does Title IX of the Education Amendments of 1972 Prohibit?

Title IX of the Education Amendments of 1972 prohibits colleges, universities, and schools that receive federal funding from engaging in gender discrimination. Class action lawsuits are a useful tool for Title IX plaintiffs seeking relief for both the individual harm they experienced and on behalf of fellow students who also experienced harm from Title IX violations. To bring a class action, plaintiffs must satisfy the general requirements of Federal Rule of Civil Procedure 23(a): (1) the proposed 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.

What Did the Plaintiffs Allege in this Case?

In A.B., plaintiffs alleged that when they reported Campbell’s issues with Title IX compliance, school administrators retaliated by threatening to cancel the girls’ water polo program and required the team needlessly to resubmit program paperwork. The plaintiffs claimed these threats “created a chilling effect among Campbell’s female athletes regarding identifying and complaining about other gender inequities in athletics to the Department.” The plaintiffs moved to certify a class of all present and future Campbell female students and potential students who participate, seek to participate, and/or are or were deterred from participating in athletics at Campbell.

The Court Ruling

The district court in Hawaii initially denied class certification, in part based on its finding that the plaintiffs failed to satisfy the commonality and typicality requirements for their Title IX retaliation claims. In its ruling, the district court cited the lack of any alleged instances of retaliation against any athletes other than members of the water polo team.

The Ninth Circuit disagreed, finding that the district court failed to consider how the Department of Education’s direct retaliatory actions against the water polo team had a class-wide effect on all student athletes. In rejecting the district court’s approach as too “restrictive” for a Title IX retaliation claim, the court properly recognized that the plaintiffs’ class-wide claim of retaliation was not based simply on the direct retaliation against the water polo team. Rather, this claim “swept more broadly” to include the treatment of all female athletes at Campbell. Accordingly, the plaintiffs established commonality and typicality to satisfy the requirements of class certification.

What We Have Learned from this Case

A. B. v. Hawaii State Department of Education illuminates the reality of the harms students suffer when they experience retaliation in violation of Title IX. Retaliation under Title IX casts a wide net of harms, so recovery should not be limited to students who directly experienced retaliation. Consider the following, all-too-common scenario: a professor is widely known for sexually harassing female students. Students who submit to his advances are rewarded with high grades and positive references, while students who report the harassment are punished with low grades and blacklisted in the academic community. But there is also a third category of students who suffer from the harassment: students who do their best to ignore the harassment or choose to not avail themselves of the professor all together, either by changing their courses or entire study area to avoid potential harassment. These students are denied equal access to education because of the harassment and the fear they will experience retaliation if they attempt to stop it.

Accordingly, students do not need to experience direct retaliation in order to suffer from the retaliatory effects of Title IX. Rather, direct retaliation under Title IX creates, as the Ninth Circuit described, a broad “chilling effect” that deters other students from reporting. When students are deterred from challenging conduct prohibited by Title IX, the conduct goes unreported, allowing abusers to act with impunity. Students who choose not to report Title IX violations out of fear of retaliation should be allowed the same road to recovery as students who do report and experience direct retaliation.

Courts should model the Ninth Circuit’s decision when ruling on Title IX cases to promote the purpose of Title IX: providing equal educational opportunities to all students, regardless of gender.

If you have concerns that your school may be discriminating against female athletes, the Title IX lawyers at Sanford Heisler Sharp can evaluate your potential claims and help you fight to obtain equitable treatment. To request your case consultation, use our online contact form.

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