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A lawsuit seeking to represent all current and potential future female athletes at Hawaii’s largest high school in sex discrimination claims against the state Department of Education cannot move forward as a class action case, a federal judge recently ruled.

The from U.S. District Judge Leslie E. Kobayashi is the first significant development to come out of the Title IX suit since it was filed a little over a year ago. It marks a setback for the ACLU of Hawaii, which filed the case on behalf of the students.

The civil rights organization on Jan. 14 petitioned the 9^th Circuit Court of Appeals for permission to appeal.

“The decision is a setback in the sense we cannot currently proceed as a class action, but our current plaintiffs can continue with their individual claims,” said ACLU of Hawaii legal director Mateo Caballero. “We have every expectation that the court erred in its ruling, and that will be addressed on appeal.”

The plaintiffs are four female students at Campbell High School who participate in varsity water polo, swimming and soccer.

Their December 2018 Title IX lawsuit against the DOE and Oahu Interscholastic Association alleged discrimination on the basis of sex over lack of equal access as student male athletes to locker rooms, practice and competitive facilities, equipment and supplies, coaching resources, travel opportunities and publicity and promotion, among other things.

The suit also alleged retaliation by Campbell school administrators after they allegedly threatened to cancel the girls’ water polo program after players complained about the school’s failure to secure a practice pool.

The plaintiffs sought to represent a class of all current and future female students at Campbell — a grade 9-12 school whose total female student count in 2017-18 was 1,506 among a total 3,123 — who were or might be deterred from participating in school athletics due to these barriers.

In the 2018-19 school year, there were 366 female student athletes at the Ewa school, according to the ACLU.

The suit seeks an injunction against the DOE and OIA for a halt to the discriminatory actions and a court order to remedy the Title IX violations.

Having this case proceed as a class action would ensure the appropriate approach toward girls and boys athletic programs to address how they’re experiencing access, said Kim Turner, senior staff attorney at Legal Aid At Work, which is co-representing the plaintiffs with the ACLU.

“Title IX really requires a program-wide analysis of girls and boys athletics because you can’t see inequity unless you’re comparing one to the other,” she said. “You can’t look at one single girls sport in a vacuum.”

In her 26-page ruling, Kobayashi said the plaintiffs failed to satisfy one of four criteria needed to establish class certification — that a class size is so numerous, joining individual members to the suit would be impractical.

“The proposed class members are limited to the female student population from a single high school,” Kobayashi wrote. “The proposed class members are geographically tied to one area of Hawaii, and identifiable through school and athletic records.”

The judge also disagreed that the plaintiffs’ claim of retaliation was typical of claims of the proposed class, reasoning it was only unique to the girls’ water polo players’ allegation.

A hearing on the motion was held in September. At the end of that hearing, Kobayashi requested the ACLU provide additional information on how it calculated the number of female athletes at Campbell who would fall within the class definition.

In its , the ACLU argues the district judge applied “a more onerous burden than required by controlling precedent” in her class certification finding and also didn’t consider other important related or unique factors to the case.

The brief also argued the judge relied on “dated and out-of-circuit district court cases in inapposite contexts” in reaching her decision.

It also notes that courts generally find that proposed class sizes of 40 or more individuals make joining more parties to a lawsuit impractical and that courts routinely certify similarly-sized Title IX high school athletics cases.

“A class action would save significant judicial resources by ensuring all Title IX claims from the same school are adjudicated in an efficient and consistent manner,” the petition states.

Nanea Kalani, a DOE spokeswoman, said since the case was still in litigation, the DOE could not comment on the ruling.

The ACLU’s suit was filed months after the organization sent a demand letter to the DOE after publication of a Civil Beat article in February 2018 exposing the lack of girls’ athletic locker rooms at Campbell High that caused softball players and track and fielders to change into uniform by the school bleachers or run to a Burger King off school grounds to use the restrooms, while male athletes didn’t face the same barriers.

The developments triggered a broader within the state DOE, including training for athletic directors and coaches, and a proposed slate of school construction projects calling for girls’ athletic locker rooms, field improvements and renovations at schools across the state.

The DOE, which is represented by the state Attorney General’s Office, has two weeks to file a response to the ACLU’s bid to appeal to the 9th Circuit. A decision by that court on whether to grant the petition to appeal could take several months. A ruling on the appeal could take up to a year.

Read the district court ruling here: