US appeals court recognizes class action status of high school female athletes in Hawaiʻi Title IX case

The US Ninth Circuit Court of Appeals reversed a lower court’s decision and recognized class action status of high school girls in a Hawaiʻi Title IX athletics civil rights case.

The three-judge panel ruled in favor of four girls at Hawaiʻi’s largest public high school, James Campbell High School in Ewa Beach on O’ahu. The girls sought the class action status in a lawsuit against the Hawai‘i Department of Education and the O‘ahu Interscholastic Association to eliminate blatant gender‐based inequity faced by the female athletes.

The ruling comes during the 50th anniversary of Title IX, a landmark civil rights law requiring gender equity in education that applies to sports programs run by federally‐funded high schools across the United States. The law was co-authored by Patsy T. Mink, who served 13 sessions in the US House of Representatives for Hawaiʻi.

The girls, on behalf of themselves and hundreds of girls at Campbell High School, are seeking gender equity in all aspects of the school’s sports programs. The girls seek system‐wide change and compliance with the school’s obligations under Title IX to end sex discrimination in athletics, according to a joint news release from the girls’ attorneys from Legal Aid at Work, the ACLU of Hawai’i and Simpson Thacher & Bartlett LLP.

Nanea Kalani, Communications Director for the Hawai‘i State Department of Education, said in an email: “This case is still being actively litigated. The Department cannot comment on active or pending litigation.”

The case, which originally was filed in December 2018, will resume in the U.S. District Court in Honolulu.

“The parties will be meeting to discuss how best to move forward,” said ACLU of Hawaiʻi legal director Wookie Kim. 

“We expect our school will finally treat girls fairly based on the Court’s ruling,” said A.M.B., one of the four female athletes representing the hundreds of girls at Campbell High School. “We’re relieved that the judges ruled in our favor and that girls who play sports are now one giant step closer to having equality in our school sports program when it comes to treatment, opportunities and benefits.”

In the original complaint, four girls — who competed in water polo, swimming and soccer — filed the lawsuit on behalf of all present and future female athletes at Campbell High School to address systemic gender discrimination in athletics. The discrimination includes the lack of a girls athletic locker room, while the boys at the school have a stand‐alone, dedicated athletic locker room.

The girls allege “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.”

The complaint also alleges female athletes have experienced a range of gender inequities throughout the program, including inferior practice and game facilities, the absence of coaches, unequal access to athletic trainers, and less publicity and promotion for girls’ teams. The school also has provided girls with far fewer athletic offerings compared to the boys.

In late 2019, the federal district court in Hawaiʻi denied the girls class action status. The 2019 ruling ignored long‐standing precedent and created an unfounded barrier for the girls to overcome. Indeed, the district court ruling would have required hundreds of separate lawsuits, which would have grossly burdened the girls, the school and the courts, the press release said.

Immediately after the late‐2019 class certification denial, the girls’ attorneys appealed the decision to the Ninth Circuit Court of Appeals, the federal appellate court that covers Hawaiʻi.

On April 4, 2022, the three‐judge panel of the appeals court resoundingly ruled in favor of the girls, recognizing that the district court erred in denying class action status. The Court acknowledged that, when girls seek equity under Title IX, allegations of systemic discrimination favor class actions. The Court also found that the girls’ claim for class‐wide retaliation could proceed because of the chilling effect retaliatory actions have throughout the high school.

The retaliation claim stems from the school’s threat to cancel the girls’ water polo program after girls and parents raised concerns about gender‐based athletic inequities.

Elizabeth Kristen with Legal Aid at Work said: “When girls and parents tried to solve problems on their own, the school retaliated, leaving them with no other choice but to sue the school to achieve the gender equity Title IX promised 50 years ago.”

Kim said that Mink, the co-author of Title IX, “worked tirelessly for education reform during her political career and overcame gender and racial discrimination to become the first woman from Hawaiʻi and first woman of color elected to Congress.

“It shouldn’t take nearly half a century for schools like Campbell to address obvious inequities such as the absence of locker rooms for girls, and fewer athletic opportunities for girls. We look forward to this ruling spurring immediate action at Campbell High School and within the Hawaiʻi Department of Education and the O‘ahu Interscholastic Association.”