Duane Morris Class Action Review - 2023 - Report - Page 105
F.
Class Certification In Title IX Litigation
In A.B., et al. v. Hawaii State Department Of Education, 30 F.4th 828 (9th Cir. 2022),
the plaintiffs, a group of student athletes, filed a class action alleging that the defendant
violated Title IX by failing to provide equal treatment and benefits, to provide male and
female students with equivalent opportunities for participation in athletics, and retaliated
against female athletes when issues of Title IX compliance were brought to the attention
of school administrators. The district court denied the plaintiffs’ motion for class
certification pursuant to Rule 23 on the grounds that the proposed class lacked
numerosity, typicality, and commonality. On appeal, the Ninth Circuit reversed and
remanded. It ruled that the plaintiffs’ class was sufficiently numerous at over 300
persons. The Ninth Circuit also determined that the district court failed to adequately
consider the plaintiffs’ contention that the defendants’ alleged retaliatory actions had a
common class-wide effect. Id. at 830. The Ninth Circuit opined that since the retaliation
claims of the plaintiffs and the class members would rest on the underlying motivation
for the Department's alleged retaliatory actions in response to receiving Title IX
complaints, the issue of retaliatory motive raised a common question whose answer
would “resolve an issue that is central to the validity of each one of the claims in one
stroke.” Id. at 842. For these reasons, the Ninth Circuit reversed and remanded the
district court’s ruling denying the plaintiffs’ motion for class certification.
G.
Class Certification In Equal Protection Litigation
In Harrison, et al. v. Austin, 2022 WL 1183767 (E.D. Va. Apr. 6, 2022), a group of
service members of the Army and Air Force who were HIV-positive with undetectable
viral loads sought class certification of claims alleging that the military’s policies
prohibiting accession or deployment of HIV-positive service members violated the equal
protection component of the Fifth Amendment’s due process clause and the
Administrative Procedure Act (APA). After discovery, the parties cross-moved for
summary judgment. Based on extensive review of scientific evidence regarding the
transmission of and treatment for HIV in individuals with undetectable viral loads, the
court found that the government’s explanations regarding the deployment bar were
contradicted by medical evidence or unsupported. Id. at *10. The court rejected the
government’s cited exceptions to question its rule-making authority and found the equal
protection and APA claims meritorious under rational basis review. Id. at 12.
Specifically, the court reasoned that it was not necessary to show animus with respect
to the alleged discrimination; rather, under the Fourth Circuit’s applicable standard, all
that was required is a showing that the plaintiffs were irrationally or arbitrarily treated
differently from similarly-situated parties, which the plaintiffs were able to establish by
scientific evidence in combination with the permitted deployment and accession of
others with comparably chronic but asymptomatic conditions. Id. at *13-14. Among other
relief, the court granted a permanent class-wide injunction enjoining the defendants
from categorically barring deployment of asymptomatic HIV-positive service-members
based on their HIV-positive status. Id. at *20.
In Motley, et al. v. Taylor, 2022 U.S. App. LEXIS 12840 (11th Cir. May 12, 2022), the
Eleventh Circuit affirmed the dismissal of the putative class action brought against the
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Duane Morris Class Action Review – 2023
