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S.G. v. Jordan School District

United States District Court, D. Utah, Central Division

October 9, 2018

S.G., by and through her general guardian, BRENT GORDON, et al., Plaintiffs,
v.
JORDAN SCHOOL DISTRICT, et al., Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION TO CERTIFY CLASS

          ROBERT J. SHELBY UNITED STATES DISTRICT JUDGE

         This case involves a group of female students who want more athletic opportunities, including a girls' football team, at their high schools. Plaintiffs originally sought to certify a class of all present and future female high school students, including those who seek to participate “in girls-only football teams, or in other sports or teams not offered at the Districts' high schools.”[1] Plaintiffs' counsel made an oral motion to withdraw the Motion to Certify during a hearing on February 13, 2018.[2] The court granted the oral motion to withdraw and allowed Plaintiffs an opportunity to amend their Complaint. Plaintiffs amended their Complaint, and now seek to certify a class of female students seeking more athletic opportunities and a subclass of female students seeking a girls' football team. For the reasons stated below, the Motion to Certify Class is granted in part and denied in part.[3]

         BACKGROUND

         Plaintiffs are seven minor female students, by and through their guardians, who attend or will attend high schools in Jordan, Granite, or Canyons school districts. The lead Plaintiff, S.G., helped start a recreational girls-only tackle football league in 2015.[4] The recreational league started with 50 participants but quickly grew to approximately 200 by spring 2017.[5] Plaintiffs allege the majority of girls who play in the recreational league “reside within the Districts' boundaries and either attend or will attend high school at one of the Districts' high schools.”[6]

         Plaintiffs allege female students in the Districts also want more athletic opportunities in general. Based on public records requests, Plaintiffs allege high schools in the Districts “provided an average of 2, 260 more participation opportunities to boys than girls” for each of the three years before they filed this action.[7]

         Plaintiffs sued the Districts and their superintendents (collectively, the Districts), together with the Utah High School Activities Association, alleging three violations of Title IX and one violation of the Equal Protection Clause.

         Based on the allegations in their Second Amended Complaint, [8] Plaintiffs now seek to certify two classes: (1) a “female athletes” class of “[a]ll present and future Jordan, Canyon, and Granite school district female high school students who seek to participate and/or are or were deterred from participating in athletics, ” and (2) a “football subclass” of “[a]ll present and future Jordan, Canyon, and Granite school district female high school students who seek to participate and/or are or were deterred from participating on girls high school football teams.”[9] Plaintiffs seek to certify both the female athletes class and the football subclass for their Title IX equal accommodation claim, and to certify only the football subclass for their Title IX contact sports claim, Title IX equal treatment claim, and Equal Protection Clause claim.[10]

         ANALYSIS

         Class certification is appropriate only if the moving party satisfies the four requirements of Federal Rule of Civil Procedure 23(a) and one of the requirements of Rule 23(b).[11]

         I. Rule 23(a) requirements

         Under Rule 23(a), class certification is appropriate 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.”[12] The party seeking class certification must “affirmatively demonstrate” compliance with Rule 23(a) by proving “that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”[13] The district court “has an independent obligation to conduct a rigorous analysis before concluding that Rule 23's requirements have been satisfied.”[14]

         A. Adequacy

         The court begins the Rule 23 analysis with adequacy because it will determine how each class proceeds. The adequacy requirement has two components: (1) “the proposed class representative must have an interest in vigorously pursuing the claims of the class, ” and (2) the representative “must not have interests antagonistic to the interests of other class members.”[15]

         Defendants ask the court to deny certification based on a failure of the second component because the class and subclass seek conflicting remedies. As Defendants note, “If the Districts implemented girls football today, it is unclear whether the named Plaintiffs would continue to represent the Female Athlete Class at all.”[16] The court agrees that the remedies the class and subclass seek could conflict with each other in a way that would render their representation inadequate.[17]

         In their Reply in support of the Motion to Certify, Plaintiffs ask the court to redefine the classes or certify only a football class if the court finds a failure with one of the proposed classes.[18] Where a proposed class has potential conflicts between members, the court may instead certify two separate subclasses.[19] Each subclass is then treated as its own class, “meaning it has its own independent class representative who is a member of that subclass and its own independent counsel.”[20] Splitting the female athletes class and football subclass into two separate classes-each with its independent representative and counsel-would resolve the conflict presented. The court thus will split the classes and analyze whether each independently satisfies the remaining Rule 23(a) factors.[21]

         B. Numerosity

         For each class, the moving party must show that “the class is so numerous that joinder of all members is impracticable.”[22] This requires setting forth “ascertainable numbers constituting the class in order to satisfy even the most liberal interpretation of the numerosity requirement.”[23]There is no “set formula” to determine whether a proposed class is so numerous that joinder of all members is impracticable. Instead, “[a] number of factors are relevant in determining whether joinder is impracticable, including the class size, the geographic diversity of class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of class members, and the ability of class members to institute individual lawsuits.”[24] In other words, whether joinder is impractical turns on the particular circumstances of the case. “The duty of establishing those particular circumstances rests with the party who asserts the existence of the class and that party must produce some evidence or otherwise establish by reasonable estimate the number of class members who may be involved.”[25]

         1. Female athletes numerosity

          For the female athletes class, Plaintiffs allege the Districts provided an average of 2, 260 more athletic participation opportunities to boys than girls each year, which they argue is evidence of how many girls were deterred from participating in athletic opportunities. Plaintiffs also argue it is difficult to identify how many other girls are interested in playing new sports, pointing to anecdotal evidence showing that the number of girls who joined high school golf teams when offered far exceeded schools' expectations. Finally, Plaintiffs seek to include future students and contend that because future class members are “necessarily unidentifiable, ” joinder is impracticable.

         Defendants insist none of this provides an ascertainable number of class members. Defendants insist the smaller number of athletic opportunities for girls does not show numerosity because it does not prove how many girls were deterred by the lack of opportunities. Defendants also argue the evidence of how many girls participated in golf is irrelevant to the question of how many girls seek to participate in other sports.

         The court concludes Plaintiffs have not met the numerosity requirement for the female athletes class. Plaintiffs have not produced any competent evidence or reasonable estimate of how many girls “seek to participate and/or are or were deterred from participating in athletics.” The evidence about how many girls joined golf teams years ago does not provide persuasive evidence or a reasonable estimate of how many girls are still deterred from participating in athletics. It may indeed be difficult to determine how many girls will join a team before that team is available; however, Plaintiffs did not even provide relatively accessible evidence, such as survey responses from students indicating that a given student would play a given sport, if offered by their District. And even if such survey evidence was somehow inaccessible, that would not change Plaintiffs' burden under Rule 23(a) “to prove that there are in fact sufficiently numerous parties.”[26] Plaintiffs' arguments about golf serve only to show that the number of girls who express interest before a team exists may be much lower than the number of girls who end up participating. But Plaintiffs have not provided any evidence pointing to the first part of this conclusion-that a number of girls have expressed interest in more athletic opportunities in the Districts. Without such evidence, the court cannot conclude that Plaintiffs have established the number of girls who seek more athletic opportunities is so large that joinder is impracticable.[27]

         The addition of future members in the proposed class also does not satisfy the numerosity prong because Plaintiffs have still provided no reasonable estimate or basis for the court to extrapolate how many future members of the class would actually seek to participate or are deterred from participating in athletics.

         Plaintiffs have failed to show numerosity exists for the female athletes class. Because the class fails on this prong, it is not necessary to address commonality or typicality. The Motion for Class Certification for the female athletes class is denied.

         2. Football class numerosity[28]

         For the football class, Plaintiffs point to the fact that a recreational girls' football league has grown in recent years from 50 to more than 200 participants, representing a rapid upward trend in interest and participation. Plaintiffs argue even more girls would play for a high school team, which would provide opportunities for school support, awards and recognition, regional and state competitions, and school credit.[29] Defendants argue Plaintiffs have not shown that all the 200 participants on the recreational league will be eligible to play on a high school team and would choose football over other sports.

         The court rejects Defendants' suggestion that it should require evidence that female students would choose to play football over other sports. The proposed class is for female students “who seek to participate and/or are or were deterred from participating on girls high school football teams.” The court need not look into whether proposed class members would seek to play other sports to determine whether they seek to participate in football.

         Nevertheless, the court is troubled by the paucity of evidence Plaintiffs have provided. The court notes that Plaintiffs could almost certainly acquire evidence demonstrating the interest and eligibility of the 200 recreational league participants because at least some of the Plaintiffs helped form the league and presumably know the identities of its participants. It seems Plaintiffs could easily have submitted questionnaires or surveys from the 200 participants regarding their interest and eligibility for playing on a high school team in the Districts.[30]

         Such evidence would have been helpful in this case; without it, the court must infer that an unknown but substantial number of the recreational league participants desire to play on a high school team and are eligible to do so. And in another context, the court would hold Plaintiffs' evidentiary showing insufficient. However, in cases seeking only injunctive relief, Tenth Circuit law instructs that such evidence is not always necessary.[31]

         Notably, the Tenth Circuit has drawn similar inferences as the ones Plaintiffs urge the court to draw here. For example, in Colorado Cross Disability Coalition, the defendant, which operated Hollister stores nationwide, argued that Colorado Cross Disability Coalition (CCDC), a group suing on behalf of disabled customers, had failed to meet the numerosity requirement because it had presented no evidence about the size of the proposed class.[32] In reviewing the evidence submitted before the district court, the Tenth Circuit noted there were nearly 250 Hollister stores with allegedly inaccessible porches in over 40 states, and five proposed class members stated in declarations that they shop at malls where Hollister stores are located.[33] That evidence, combined with the court's judicial notice of the fact that millions of Americans have disabilities, created a reasonable inference that “a substantial number of disabled people live in the 40 states where Hollister stores are located; that these people, like CCDC members and many Americans, shop at malls, including the 250 malls with porched Hollisters; and that joining all of these people in one suit would be impracticable.”[34] Thus, the Tenth Circuit held, the district court had not abused its discretion in finding the plaintiffs satisfied the numerosity requirement.[35]

         Other circuits have reached similar conclusions. For example, in Pederson v. Louisiana State University, the Fifth Circuit addressed numerosity for a class of college athletes.[36] In that case, the district court provisionally certified a class of “[t]hose who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU's failure to field teams in said female varsity athletics.”[37] The district court later concluded the plaintiffs had failed to satisfy the numerosity requirement and decertified the class.[38] On appeal, the Fifth Circuit held the district court abused its discretion in decertifying the class, stating that “[o]ur independent review of the record satisfies us that the numerosity prong has been satisfied.”[39] The Fifth Circuit noted that even though only eight women attended varsity soccer tryouts, “well over 5, 000 young women were playing soccer or fast-pitch softball at the high school level in Louisiana.”[40] The Court also noted that former members of a Louisiana soccer club had received scholarships to play soccer at other colleges.[41]Although those women were not students at Louisiana State University and therefore could not be members of the class, the Court considered the evidence relevant to “the talent pool in Louisiana” and therefore appropriate to consider for class certification purposes.[42]

         The inferences Plaintiffs urge the court to draw in this case (at least for the football class) are similar to those in Colorado Cross Disability Coalition and Pederson. Plaintiffs have presented evidence of 200 girls who play girls' football and will attend high schools in the Districts.[43] It is reasonable to infer that a substantial number of the girls who play in the recreational league will also want to play on a high school team. Additionally, even assuming some of the girls on the recreational league are ineligible to play on a high school team, common sense leads to the conclusion that the remaining athletes would constitute a number too great for joinder.[44] In this limited context, Plaintiffs have satisfied the numerosity requirement for the football class.

         C. Commonality

         The party seeking class certification must also show “there are questions of law or fact common to the class.”[45] This requires a demonstration that the proposed class members “have suffered the same injury” that is based on a “common contention, ” i.e., “that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”[46]

         Plaintiffs argue a common question of law and fact exists for three claims. For their Title IX equal accommodation claim, Plaintiffs assert the court must determine “whether the Districts' failure to provide substantially equal participation opportunities to girls ‘is the result of girls' lack of interest in athletics.'”[47] Second, Plaintiffs contend the court is faced with a common question of law and fact for the Title IX contact sports claim-namely, whether “opportunities for girls have historically been limited and there is sufficient interest and ability among girls to sustain viable teams and reasonable expectation of competition for the teams.”[48] Finally, Plaintiffs assert a common question of law exists for the Equal Protection Clause claim because the court must look to whether the Equal Protection Clause requires girls' football teams if schools offer boys' football teams.

         The Title IX claims do not involve a common question that is capable of classwide resolution. First, to determine “whether the Districts' failure to provide substantially equal participation opportunities to girls ‘is the result of girls' lack of interest in athletics, '” the court would need to look to whether female students in each of the three Defendant school districts lack interest in athletics. This is necessarily an individualized assessment, and the determination of its truth or falsity in each District will not necessarily resolve the issue for all proposed class members (drawn collectively from all three districts) in one stroke.

         The second Title IX claim does not satisfy commonality for the same reason. The court cannot determine whether “there is sufficient interest and ability among girls to sustain viable teams and reasonable expectation of competition for the teams” without looking to facts specific to the schools within each District. If there is sufficient interest and ability ...


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