A. B. v. Hawaii State Dept of Educ.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

A. B. and A. M. B., by their parents No. 20-15570
and next friends, C.B. and D.B.; T.
T., by her parents and next friends, D.C. No.
K.T. and S.T.; A. P., by her parents 1:18-cv-00477-
and next friends, C.P. and M.P, LEK-RT
Plaintiffs-Appellants,

v. OPINION

HAWAII STATE DEPARTMENT OF
EDUCATION; OAHU
INTERSCHOLASTIC ASSOCIATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted February 4, 2021
Honolulu, Hawaii

Filed April 4, 2022

Before: Richard R. Clifton, Ryan D. Nelson, and
Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins
2 A. B. V. HAWAII STATE DEP’T OF EDUC.

SUMMARY *

Title IX / Class Certification

The panel reversed the district court’s order denying
female student athletes’ motion for class certification in their
action seeking declaratory and injunctive relief to redress
alleged violations of Title IX in the athletic programs at a
public high school in Hawaii.

Plaintiffs brought Title IX claims for failure to provide
equal treatment and benefits, failure to provide male and
female students with equivalent opportunities for
participation in athletics, and retaliation against female
athletes when issues of Title IX compliance were brought to
the attention of high school administrators. The district court
denied plaintiffs’ motion for class certification on the
grounds that, under Fed. R. Civ. P. 23(a), they failed to meet
the requirement of numerosity, and as to the retaliation
claim, commonality and typicality were lacking. The district
court concluded that because plaintiffs failed to meet one or
more requirements of Rule 23(a), it was not necessary to
address the additional requirements of Rule 23(b)(1)(B) and
(b)(2).

As to numerosity, the panel held that Rule 23(a)(1)
requires a party seeking class certification to show that “the
class is so numerous that joinder of all members is
impracticable.” The panel applied the standard set forth in
Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir.
1982), vacated, 459 U.S. 810 (1982), on remand, 713 F.2d
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 A. B. V. HAWAII STATE DEP’T OF EDUC. 3

503 (9th Cir. 1983), modified, 726 F.2d 1366 (9th Cir. 1984),
which requires consideration of the size of the class as well
as potentially countervailing factors including the
geographical diversity of class members, the ability of
individual claimants to institute separate suits, whether
injunctive or declaratory relief is sought, and the ability to
identify and locate class members. The panel concluded that
the district court failed to give appropriate weight to the very
large size of the proposed class, which well exceeded 300
persons, and there were no countervailing case-specific
considerations indicating that, despite the large class size,
joinder of all class members was nonetheless practicable.
The panel held that the district court also erred in failing
adequately to consider the fact that the class, as defined,
included “future” female student athletes at the high school.
The panel therefore reversed the denial of class certification
as to plaintiffs’ first and second claims and remanded with
instructions to address whether plaintiffs also satisfied one
or more of the criteria in Rule 23(b).

The panel held that as to plaintiffs’ third cause of action
for unlawful retaliation, the district court erred in also
denying class certification on the further ground that
plaintiffs failed to show commonality and typicality because
this claim was centered on the high school water polo team,
rather than on female student athletes as a whole. The panel
concluded that the district court failed adequately to consider
plaintiffs’ contention that defendants’ alleged retaliatory
actions had a classwide effect. In addition, the district court
failed to properly consider the legal principles that govern a
retaliation claim of this nature under Title IX and require
consideration of whether plaintiffs fall within the zone of
interests that Title IX protects.
4 A. B. V. HAWAII STATE DEP’T OF EDUC.

The panel held that the district court abused its discretion
in concluding that plaintiffs did not meet the requirements of
Rule 23(a). The panel therefore reversed the district court’s
order denying class certification and remanded for it to
consider whether plaintiffs satisfied Rule 23(b).

COUNSEL

Elizabeth Kristen (argued) and Kim Turner, Legal Aid at
Work, San Francisco, California; Mateo Caballero and
Jongwook Kim, ACLU of Hawaii Foundation, Honolulu,
Hawaii; Harrison J. Frahn IV, Simpson Thacher & Bartlett
LLP, Palo Alto, California; Jayma Marie Meyer, Simpson
Thacher & Bartlett LLP, New York, New York; for
Plaintiffs-Appellants.

Ewan C. Rayner (argued) and Kimberly T. Guidry, Deputy
Attorneys General; Department of the Attorney General,
Honolulu, Hawaii; for Defendant-Appellee Hawaii State
Department of Education.

Lyle S. Hosoda and Addison D. Bonner, Hosoda and Bonner
LLLC, Honolulu, Hawaii, for Defendant-Appellee Oahu
Interscholastic Association.

Lee Brand, Roxane A. Polidora, and Athena G. Rutherford,
Pillsbury Winthrop Shaw Pittman LLP, San Francisco,
California, for Amici Curiae Civil Rights Organizations.
 A. B. V. HAWAII STATE DEP’T OF EDUC. 5

OPINION

COLLINS, Circuit Judge:

Section 901(a) of Title IX of the Education Amendments
of 1972 provides that, subject to certain exceptions, “[n]o
person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program
or activity receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a). Although Title IX contains no express language
creating a private cause of action, the Supreme Court has
long held that the statute is enforceable through a judicially
recognized implied private right of action. See Franklin v.
Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 65 (1992) (citing
Cannon v. University of Chicago, 441 U.S. 677 (1979)).
Invoking that right of action here, female student athletes at
Hawaii’s largest public high school brought this putative
class action seeking declaratory and injunctive relief to
redress multiple alleged violations of Title IX, including
systematic discriminatory deficiencies in their school’s
athletic programs. The district court subsequently denied
Plaintiffs’ motion for class certification, holding that
Plaintiffs had failed to satisfy the requirements of Federal
Rule of Civil Procedure 23(a). We authorized this
interlocutory appeal under Rule 23(f), and we reverse.

I

A

Plaintiffs A.B., her younger sister A.M.B., T.T., and A.P.
are or were female student athletes at James Campbell High
6 A. B. V. HAWAII STATE DEP’T OF EDUC.

School (“Campbell”) in Ewa Beach on the island of Oahu. 1
At the time A.B. and T.T. moved for class certification in
May 2019, all four were members of the Campbell girls’
varsity water polo team; A.B. and T.T. were also members
of the girls’ varsity swimming team; and A.P. was also a
member of the girls’ varsity soccer team. 2 A.M.B. later
stated that she also planned to join the swimming team.
Plaintiffs allege that they and other female students at
Campbell “experience grossly unequal treatment, benefits,
and opportunities in relation to male athletes,” resulting in
multiple violations of Title IX. As a result, A.B. and T.T.
filed this suit in December 2018 against Defendant Hawaii
State Department of Education (“the Department”), which is
the agency that manages Campbell’s operations, and
Defendant Oahu Interscholastic Association, which is an
unincorporated entity that administers high school athletic
programs for public high schools on Oahu. In the operative
second amended complaint, Plaintiffs assert three separate
causes of action available under Title IX and its
implementing regulations: “(1) unequal treatment and
benefits in athletic programs; (2) unequal participation
opportunities in athletic programs; and (3) retaliation.” See

1
A.B. and T.T. were seniors at the time this case was originally filed
in late 2018 and graduated before the district court ruled on the class
certification motion. A.P. was a senior at the time this case was argued
and has presumably graduated. A.M.B. was a junior at the time of oral
argument and is presumably a current senior. No party has suggested
that this case is moot, and we perceive no basis for concluding that it is.

2
After the class certification motion was filed, but before the district
court denied it, amended complaints were filed adding A.M.B. and A.P.
as additional plaintiffs. All four Plaintiffs submitted declarations in
support of the class certification motion.
 A. B. V. HAWAII STATE DEP’T OF EDUC. 7

Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843,
851 (9th Cir. 2014).

In their first cause of action, Plaintiffs allege that
Defendants violated § 901(a) by failing to provide equal
treatment and benefits. We have held that § 901(a)’s
prohibition on discriminatory denial of educational benefits,
as construed in the U.S. Department of Education’s
implementing regulation governing school athletic
programs, “require[s] equivalence in the availability, quality
and kinds of . . . athletic benefits and opportunities provided
[to] male and female athletes.” Mansourian v. Regents of
Univ. of Cal., 602 F.3d 957, 964 (9th Cir. 2010) (internal
quotation marks omitted) (citing 34 C.F.R. § 106.41(c)(2)–
(10)); see also 20 U.S.C. § 1682 (authorizing federal
agencies extending federal financial assistance to issue
appropriate “rules, regulations, or orders of general
applicability”). Plaintiffs allege that Defendants violated
this requirement by “failing to provide female student
athletes from Campbell with treatment and benefits that are
comparable to the treatment and benefits provided to male
student athletes.”

In support of this claim, Plaintiffs allege, for example,
that “male athletes at Campbell have exclusive access” to a
very large “stand-alone athletic locker room facility that is
located near the athletic fields,” while “female athletes at
Campbell have no standalone athletic locker room facility,
whether located near the athletic fields or elsewhere on
campus.” Plaintiffs allege that, as a result, “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.”
Plaintiffs also allege that, in contrast to Campbell’s well-
8 A. B. V. HAWAII STATE DEP’T OF EDUC.

equipped boys’ sports programs, the girls’ water polo and
soccer programs have not been given adequate equipment,
gear, and training facilities. Indeed, the complaint alleges
that on multiple occasions, the girls’ water polo team lacked
any access to a pool for practice, leaving them “no choice
but to hold dry-land training sessions and open-ocean swim
practices.” Plaintiffs also allege that coaches for the girls’
teams at Campbell are generally paid less than coaches for
the boys’ teams, and that some assistant coaches for the
girls’ teams are not paid at all.

Plaintiffs’ second cause of action alleges that Defendants
violated § 901(a) by failing to provide male and female
students with equivalent opportunities for “participation” in
athletics. See 20 U.S.C. § 1681(a). Relying again on the
regulations implementing § 901(a)’s requirements, we have
held that this obligation to provide equivalent participation
opportunities requires consideration of “whether ‘the
selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both
sexes.’” Mansourian, 602 F.3d at 964 (quoting 34 C.F.R.
§ 106.41(c)(1)). In addressing that question, our precedent
applies a “three-part test,” under which a school has “three
options” for satisfying this obligation: “(1) showing
substantial proportionality (the number of women in
[interscholastic] athletics is proportionate to their
enrollment); (2) proving that the institution has a ‘history
and continuing practice of program expansion’ for the
underrepresented sex (in this case, women); or (3) where the
[school] cannot satisfy either of the first two options,
establishing that it nonetheless ‘fully and effectively
accommodate[s]’ the interests of women.” Id. at 965
(citation omitted); see also Ollier, 768 F.3d at 855 (applying
this three-part test to high schools). Plaintiffs’ complaint
alleges that Defendants’ management of athletics at
 A. B. V. HAWAII STATE DEP’T OF EDUC. 9

Campbell fails to satisfy any of these alternative prongs. In
particular, Plaintiffs allege that there is 6.6% “participation
gap” at Campbell between “female athletic participation”
(which is 41.6% of the total number of athletic “roster
spots”) and “female student body enrollment” (which is
48.2% of the student body).

Plaintiffs’ third cause of action is asserted only against
the Department and alleges that it violated § 901(a) by
retaliating against female athletes at Campbell when A.B.,
T.T., and others brought issues of Title IX compliance to the
attention of Campbell administrators. See Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005) (holding
that “the text of Title IX prohibits a funding recipient from
retaliating against a person who speaks out against sex
discrimination, because such retaliation is intentional
‘discrimination’ ‘on the basis of sex’”). Specifically,
Plaintiffs allege that school administrators retaliated by
threatening to cancel Campbell’s girls’ water polo program
and by making the water polo team needlessly resubmit
program paperwork. Plaintiffs further allege that these
retaliatory actions created a “chilling effect among
Campbell’s female athletes regarding identifying and
complaining about other gender inequities in athletics” to the
Department.

Plaintiffs’ complaint seeks only declaratory and
injunctive relief against Defendants, as well as attorneys’
fees and costs under 42 U.S.C. § 1988.

B

Relying on Federal Rule of Civil Procedure 23(b)(1)(B)
and (b)(2), 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
10 A. B. V. HAWAII STATE DEP’T OF EDUC.

deterred from participating in athletics at Campbell.” After
considering the evidence and arguments of both sides, the
district court denied the motion.

The district court held that, as to all three claims,
Plaintiffs had failed to make the required threshold showing
that the class was “so numerous that joinder of all members
is impracticable.” See FED. R. CIV. P. 23(a)(1). The court
noted that the evidence supplied by Defendants indicated
that “there were 366 Campbell female student-athletes in the
2018–19 school year.” Nonetheless, because the “proposed
class members are limited to the female student population
from a single high school” and are thus “geographically tied
to one area of Hawai`i, and identifiable through school and
athletic records,” the court concluded that joinder of all class
members was not impracticable. Although school records
could not similarly identify future or potential female student
athletes at Campbell, the district court held that those
“subgroups” were irrelevant to the numerosity analysis
because neither was “reasonably identifiable.”

Turning to the other elements of Rule 23(a), the district
court held that Plaintiffs’ first and second causes of action—
which alleged denial of equal treatment and equal
participation opportunities—raised several common
questions of law or fact that were “capable of classwide
resolution,” see Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011) (construing FED. R. CIV. P. 23(a)(2)), and
that the individual Plaintiffs’ claims under these two causes
of action were “typical” of the claims of the class.
Specifically, Plaintiffs alleged a number of discrete
discriminatory actions with inherently systemic effects on
female student athletes, and the resulting “[u]nequal access,
treatment, and benefits of athletic programs is a common
injury among the named Plaintiffs and proposed class.”
 A. B. V. HAWAII STATE DEP’T OF EDUC. 11

By contrast, the district court held that commonality and
typicality were lacking with respect to Plaintiffs’ third cause
of action, which alleges retaliation. Commonality was
absent, the court concluded, because the retaliation claim
arose from a dispute between “Campbell administrators[]
and the water polo team and their parents,” and Plaintiffs had
not “allege[d] any instances of retaliation against any
athletes other than members of the water polo team.” For
similar reasons, the district court concluded that the alleged
retaliatory actions of the Department were “unique to the
named Plaintiffs” and were therefore “not typical of the
proposed class.”

Lastly, the district court found that Plaintiffs would be
adequate representatives of the class, without distinguishing
among the three claims.

Having concluded that Plaintiffs had failed to satisfy one
or more requirements of Rule 23(a), the court stated that it
was “not necessary to address” the additional requirements
of Rule 23(b)(1)(B) and (b)(2).

Plaintiffs timely petitioned for leave to appeal pursuant
to Federal Rule of Civil Procedure 23(f), and a panel of this
court granted Plaintiffs’ petition. This court has jurisdiction
over Plaintiffs’ appeal under 28 U.S.C. § 1292(e).

II

To obtain certification of a plaintiff class under Federal
Rule of Civil Procedure 23, a plaintiff must satisfy both the
four requirements of Rule 23(a)—“numerosity,
commonality, typicality, and adequate representation”—and
“one of the three requirements listed in Rule 23(b).” Wal-
Mart, 564 U.S. at 345, 349. These are not “mere pleading”
requirements, and a plaintiff must “affirmatively
12 A. B. V. HAWAII STATE DEP’T OF EDUC.

demonstrate . . . compliance with the Rule—that is, he [or
she] must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or
fact, etc.” Id. at 350. Here, the district court never reached
the issue of whether Plaintiffs had shown one of the elements
of Rule 23(b), 3 because it concluded that (1) Rule 23(a)’s
required threshold showing of numerosity had not been
made as to any of Plaintiffs’ claims; and (2) Rule 23(a)’s
requirements of commonality and typicality had not been
shown as to Plaintiffs’ retaliation claim. We review these
determinations for abuse of discretion, keeping in mind that
a “district court abuses its discretion where it commits an
error of law, relies on an improper factor, omits a substantial
factor, or engages in a clear error of judgment in weighing
the correct mix of factors.” Senne v. Kansas City Royals
Baseball Corp., 934 F.3d 918, 926 (9th Cir. 2019). Applying
those standards, we reverse.

III

A

Rule 23(a)(1) requires a party seeking class certification
to show that “the class is so numerous that joinder of all
members is impracticable.” See FED. R. CIV. P. 23(a)(1). As
the Supreme Court has explained, this “numerosity

3
In moving for class certification, Plaintiffs argued that the requisite
element of Rule 23(b) was satisfied either (1) because Defendants had
“acted or refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole,” see FED. R. CIV. P. 23(b)(2);
or (2) because separate actions by individual class members could, “as a
practical matter, . . . be dispositive of the interests of the other members”
or could “substantially impair or impede [the other members’] ability to
protect their interests,” see FED. R. CIV. P. 23(b)(1)(B).
 A. B. V. HAWAII STATE DEP’T OF EDUC. 13

requirement requires examination of the specific facts of
each case and imposes no absolute limitations.” General
Tel. Co. of the NW., Inc. v. EEOC, 446 U.S. 318, 330 (1980).
While thus eschewing any bright-line rules, the Court did go
on to state that a class with only 15 members “would be too
small to meet the numerosity requirement.” Id.

Plaintiffs contend that we should apply the standards for
evaluating numerosity set forth in Jordan v. County of Los
Angeles, 669 F.2d 1311 (9th Cir. 1982), vacated, 459 U.S.
810 (1982), on remand, 713 F.2d 503 (9th Cir. 1983),
modified, 726 F.2d 1366 (9th Cir. 1984). Defendants,
however, contend that Jordan is no longer good law and in
any event is distinguishable. Because the parties have
pointed us to no other decision in which we have elaborated
on the substantive standards for evaluating numerosity—and
our own research has likewise revealed none—we begin by
closely examining our decisions in Jordan.

In that case, the plaintiff’s class action complaint alleged
that the defendant county’s consideration of “three types of
criminal record, i.e., juvenile record, arrest record, and
marijuana conviction record” constituted unlawful race
discrimination against Blacks in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well
as a violation of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. See 669 F.2d at 1314–15. The district court denied
plaintiff’s motion to certify separate classes as to each type
of criminal record, concluding that all four requirements of
Rule 23(a), including numerosity, had not been satisfied. Id.
at 1318–23. We initially reversed, holding that all four
requirements had been met. Id.

In addressing numerosity, Jordan indicated that a court
must consider what the evidence shows concerning “the
absolute number of class members.” 669 F.2d at 1319.
14 A. B. V. HAWAII STATE DEP’T OF EDUC.

Although the size of the class “is not the sole determining
factor,” we stated that, “where a class is large in numbers,
joinder will usually be impracticable.” Id. By contrast,
where the size of the class is more modest, “the number of
class members does not weigh as heavily” in the analysis,
and “other factors” bearing upon the feasibility and
convenience of joinder may assume more significance. Id.
These potentially countervailing factors include “the
geographical diversity of class members, the ability of
individual claimants to institute separate suits, and whether
injunctive or declaratory relief is sought,” as well as the
ability to identify and locate class members. Id. at 1319–20.

Applying these standards, we held that, “[a]lthough we
would be inclined to find the numerosity requirement in the
present case satisfied solely on the basis of the number of
ascertained class members, i.e., 39, 64, and 71, we need not
do so since the presence of other indicia of impracticability
persuade us that the requirement has been met.” Id. at 1319.
Specifically, we noted that “the relatively small size of each
class member’s claim and the probability that the class
members may be difficult to locate combine to make it
impracticable for individual class members to join in the
lawsuit.” Id. at 1319–20. We also observed that each class
included “unnamed and unknown future black applicants”
and that the “joinder of unknown individuals is inherently
impracticable.” Id. at 1320. Based on these reasons, we held
that “the district court erred in denying class certification for
failure to satisfy the numerosity requirement.” Id.

We then proceeded to find that the plaintiff had also
satisfied the commonality, typicality, and adequacy
requirements of Rule 23(a). Id. at 1320–23. However, our
analysis of the commonality and typicality factors expressly
relied on the Fifth Circuit’s so-called “across-the-board”
 A. B. V. HAWAII STATE DEP’T OF EDUC. 15

rule, under which a plaintiff challenging one discriminatory
practice was permitted to represent employees challenging
different practices if all employees suffered similar injuries.
Id. at 1320, 1322 (citing Johnson v. Georgia Hwy. Express,
417 F.2d 1122, 1124 (5th Cir. 1969)). Shortly thereafter, the
Supreme Court explicitly rejected that “across-the-board
rule,” concluding that it improperly relied on a presumption
that a discriminatory employment decision against the
named plaintiff reflects a pervasive discriminatory policy
that is then reflected in all of the defendant’s various hiring
practices. See General Tel. Co. of the SW. v. Falcon,
457 U.S. 147, 157–58 (1982). The Court consequently
vacated our decision in Jordan for reconsideration in light of
Falcon. See Jordan, 459 U.S. at 810.

On remand, we concluded that, in light of the Supreme
Court’s intervening abrogation of the across-the-board rule,
as well as our “recomputation of the actual number of
rejected black applicants,” the “numerosity requirement of
Rule 23” had not been met. See Jordan, 726 F.2d at 1367
(emphasis added), amending 713 F.2d at 504. In reaching
that conclusion, however, we did not in any way suggest that
our original decision’s substantive articulation of the
numerosity standards was erroneous. Moreover, Falcon
does not address the standards for numerosity at all, and it
therefore provides no basis for declining to follow our
elaboration of the numerosity requirement in our initial
decision in Jordan. See Miller v. Gammie, 335 F.3d 889,
899–900 (9th Cir. 2003) (en banc). Accordingly, we will
apply Jordan’s framework in assessing numerosity here.

B

We conclude that the district court’s numerosity analysis
was inconsistent with Jordan in two respects.
16 A. B. V. HAWAII STATE DEP’T OF EDUC.

1

First, the district court failed to give appropriate weight
to the very large size of the proposed class. Plaintiffs
presented uncontroverted evidence that in the 2016–2017,
2017–2018, and 2018–2019 school years, the annual number
of female student athletes at Campbell ranged between 366
and 434. Thus, even considering only currently enrolled
students, the evidence amply shows that a reasonable
estimate of the size of the class well exceeds 300 persons.

Defendants contend that Plaintiffs failed to make any
showing that all current female student athletes have been
subjected to the alleged Title IX violations and are therefore
class members, but we think this argument overlooks both
the substance of Plaintiffs’ claims and the applicable
standards for liability under Title IX. Some aspects of
Plaintiffs’ first cause of action, which alleges unequal
treatment and benefits, explicitly rest on allegations of
systemic discrimination (such as, for example, the complete
lack of standalone athletic locker facilities) that, if proved,
would necessarily apply to all current female student
athletes. See supra at 7–8. As to the second cause of action
for unequal participation opportunities, the three-part test we
apply for evaluating such claims is framed in terms that
examine the school’s overall treatment of female athletic
programs versus male athletic programs. See supra at 8.
And for reasons we explain further below, we conclude that
Plaintiffs’ third cause of action for retaliation likewise
properly rests upon asserted classwide adverse impacts on
female student athletes at Campbell. See infra at 24–26. It
follows that Plaintiffs amply showed that the absolute
number of class members as to each claim is well over 300
persons. The resulting class size qualifies as “large in
numbers” by any metric, and therefore, under Jordan, that
 A. B. V. HAWAII STATE DEP’T OF EDUC. 17

large class size weighs in favor of concluding that joinder of
all of these persons is impracticable. 669 F.2d at 1319.

On this record, we find no countervailing case-specific
considerations indicating that, despite the large class size,
joinder of all class members is nonetheless practicable. In
concluding that joinder of all class members was practicable
here, despite the potential size of the class, the district court
emphasized that all of Campbell’s current female student
athletes could be identified “through school and athletic
records” and that all of them were local and within the
jurisdiction of the court. But the standard under Rule 23(a)
is not, as the district court seemed to think, whether joinder
is a literal impossibility. Rather, the question is whether
joinder of all class members is “practicable”—i.e.,
“reasonably capable of being accomplished.” See
Practicable, BLACK’S LAW DICTIONARY (11th ed. 2019)
(emphasis added); see also Harris v. Palm Springs Alpine
Ests., Inc., 329 F.2d 909, 913–14 (9th Cir. 1964)
(“‘[I]mpracticability’ does not mean ‘impossibility,’ but
only the difficulty or inconvenience of joining all members
of the class.”); Robidoux v. Celani, 987 F.2d 931, 935 (2d
Cir. 1993) (“Impracticable does not mean impossible.”).

Here, joinder of all class members is not “reasonably
capable of being accomplished” because it would impose
very substantial logistical burdens for little, if any, benefit.
Where, as here, the class seeks only prospective injunctive
and declaratory relief, the practical value of joining each of
the 300+ class members as a formal party is slim to non-
existent and is plainly outweighed by the substantial
logistical burdens that would entail. See Jordan, 669 F.2d
at 1319 (noting that “whether injunctive or declaratory relief
is sought” is relevant to assessing whether joinder of class
members is impracticable); see also Harris, 329 F.2d at 913
18 A. B. V. HAWAII STATE DEP’T OF EDUC.

(stating that, in assessing impracticability, the court should
consider “the expense and burden[] to the parties and the
court”).

2

Second, the district court also failed adequately to
consider the fact that the class, as defined, included “future”
Campbell female student athletes.

“The inclusion of future class members in a class is not
itself unusual or objectionable,” because “[w]hen the future
persons referenced become members of the class, their
claims will necessarily be ripe.” Rodriguez v. Hayes,
591 F.3d 1105, 1118 (9th Cir. 2010). We have recognized
that when, as here, a class’s membership changes continually
over time, that factor weighs in favor of concluding that
joinder of all members is impracticable. See Jordan,
669 F.2d at 1320 4; see also J.D. v. Azar, 925 F.3d 1291, 1322

4
Plaintiffs construe Jordan as standing for the broader proposition
that any proposed class that includes future members automatically
satisfies the numerosity requirement, because future members are
inherently unidentifiable at the time of class certification and thereby
cannot practicably be joined. We do not read Jordan as establishing such
a sweeping proposition. As an initial matter, Jordan’s assumption that
the plaintiff in that case could represent all “future” class members
appears to have rested in part on its application of the Fifth Circuit’s
“across-the-board” rule. See 669 F.2d at 1320 (citing Jack v. American
Linen Supply Co., 498 F.2d 122 (5th Cir. 1974)). That aspect of the
decision therefore did not survive Falcon, which would also explain why
we did not mention future class members in our decision on remand in
Jordan. See 713 F.2d at 504, as amended, 726 F.2d at 1366–67.
Moreover, as we explicitly recognized in Rodriguez, the inclusion of
future class members in a class definition is subject to the ripeness
requirement of Article III, see 591 F.3d at 1118, and so the relevant
numerosity inquiry concerning future class members is whether it would
be practicable to join such future members as their claims become ripe.
 A. B. V. HAWAII STATE DEP’T OF EDUC. 19

(D.C. Cir. 2019) (noting that this factor weighs in favor of
impracticability of joinder even if current class members are
relatively fewer in number); cf. Smith v. Swormstedt, 57 U.S.
288, 303 (1854) (indicating, in a pre-Rules equitable suit
brought by members and preachers of one branch of a church
against those in the other branch, that joinder of all members
would be impracticable due to the large and changing
membership of the churches); see generally 7A CHARLES
ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE,
FEDERAL PRACTICE AND PROCEDURE § 1762 at 227–29 (4th
ed. 2021).

The district court declined to consider this factor because
it concluded that future class members were not “reasonably
identifiable,” and the court therefore could not make a
“reasonable approximation” of the number of such members.
This reasoning misconstrues the significance of this factor.
The fact that it may not be possible to identify future class
members at the time of class certification does not mean that
this factor therefore drops out of the analysis and may be set
aside. On the contrary, as we held in Jordan, the fact that
the membership of a class changes over time makes joinder
of every class member all the more impracticable. See
669 F.2d at 1320. This case well illustrates the point. Every
year, as new freshmen matriculate into Campbell and as
seniors graduate, the membership of potentially 25% of the
student body may be expected to turn over. Given the purely
equitable nature of the claims, there is little if any benefit to
continually joining, or potentially dismissing, large numbers
of additional class members. That makes the
impracticability analysis all the more lopsided in favor of
finding numerosity.

For similar reasons, the district court abused its
discretion in concluding that a “reasonable approximation”
20 A. B. V. HAWAII STATE DEP’T OF EDUC.

of future class members could not be made in this case.
Given the three years of data in the record concerning the
approximate number of current class members for each
school year from 2016–2019, it is not difficult to reasonably
estimate the extent to which class membership might be
expected to change each year. For present purposes, all that
is needed is a sufficient estimate of the number of future
class members to allow the court to assess what weight to
give to this factor when considered together with the other
pertinent considerations. Here, as we have explained, the
estimate of the current membership is well over 300 persons
and already weighs heavily in favor of finding numerosity.
The fact that additional persons, totaling as many as 25% of
that number, would also need to be formally joined each year
tips the balance even more strongly in favor of concluding
that the “class is so numerous that joinder of all members is
impracticable.” See FED. R. CIV. P. 23(a)(1). 5

C

We therefore conclude that the district court erred in
holding that Plaintiffs had not satisfied the numerosity
requirement of Rule 23(a). And because that was the sole
ground on which the court concluded that the requirements
of Rule 23(a) had not been met as to Plaintiffs’ first and
second causes of action, we reverse the denial of class
certification as to those claims and remand with instructions
to address whether Plaintiffs also satisfied one or more of the
criteria in Rule 23(b).

5
In view of this analysis, we find it unnecessary to address the
parties’ arguments as to whether numerosity is further established by the
presence, in the class definition, of female student non-athletes who were
deterred from participation in sports by Defendants’ alleged Title IX
violations.
 A. B. V. HAWAII STATE DEP’T OF EDUC. 21

IV

As to Plaintiffs’ third cause of action for unlawful
retaliation, the district court also denied class certification on
the further ground that Plaintiffs had failed to show
commonality and typicality. This conclusion was also
flawed.

The commonality requirement of Rule 23(a)(2) requires
plaintiffs seeking class certification to show that their claims
“depend upon a common contention” that “is capable of
classwide resolution—which means 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.” Wal-Mart,
564 U.S. at 350. To establish typicality, as required by Rule
23(a)(3), plaintiffs must show that “the claims or defenses of
the representative parties are typical of the claims or
defenses of the class.” FED. R. CIV. P. 23(a)(3). “The test of
typicality ‘is whether other members have the same or
similar injury, whether the action is based on conduct which
is not unique to the named plaintiffs, and whether other class
members have been injured by the same course of conduct.’”
Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.
1992) (citation omitted). Because the considerations
underlying the two requirements overlap considerably, the
Supreme Court has noted that “[t]he commonality and
typicality requirements of Rule 23(a) tend to merge.”
Falcon, 457 U.S. at 157 n.13.

The district court concluded that these two requirements
were not satisfied here, because in its view Plaintiffs’
retaliation claim is centered on the water polo team rather
than on female student athletes as a whole. As the district
court explained, the Department’s retaliatory actions arose
from “a dispute between Defendants, specifically limited to
Campbell administrators, and the water polo team and their
22 A. B. V. HAWAII STATE DEP’T OF EDUC.

parents,” and the only claimed instances of actual retaliation
were against “members of the water polo team.” This
reasoning misapprehends Plaintiffs’ retaliation claim and the
law governing it.

Although the Department’s alleged retaliatory actions
were immediately directed at the water polo team, whose
members and their parents had made complaints about
unequal treatment, the district court failed adequately to
consider Plaintiffs’ contention that those actions had a
classwide effect. Specifically, Plaintiffs assert that the
example that the Department made of the girls’ water polo
team had the effect of broadly dissuading Campbell’s female
student athletes from “raising the issue of sex
discrimination” out of fear that the Department would
likewise retaliate against them. Indeed, a declaration
submitted by one of the Plaintiffs’ parents specifically
averred that other students and parents had “expressed
interest in joining the lawsuit, but were scared about the
repercussions from [the Department] if they did so.” This
parent explained that, for example, one student who was a
“star athlete” and who hoped to win college scholarships,
was too afraid “to jeopardize her relationship with the
school.”

In addition to overlooking the broader theory of unlawful
retaliation that Plaintiffs raised here, the district court failed
to properly consider the legal principles that govern a
retaliation claim of this nature under Title IX. On this point,
we find our prior decision in Ollier to be instructive, and so
we address that decision in some detail.

In Ollier, complaints concerning a high school’s
compliance with Title IX were made by the named plaintiffs’
parents and the girls’ softball coach, Chris Martinez.
768 F.3d at 853, 866–67. In response, the school fired
 A. B. V. HAWAII STATE DEP’T OF EDUC. 23

Coach Martinez and replaced him with a “far less
experienced coach,” eliminated the girls’ softball team’s
assistant coaches, and took a variety of other actions that
“disrupted” the girls’ softball program. Id. at 869. On
appeal, the defendants made a series of arguments that
resemble those made by the Department here. Specifically,
the Ollier defendants argued that the named plaintiffs
“lack[ed] standing to enjoin the retaliatory action allegedly
taken against Coach Martinez”; that they also “lack[ed]
standing because it was not they who made the Title IX
complaints”; and that classwide relief was unwarranted
because “only some members of the plaintiff[s’] class . . .
can urge they engaged in protected activity.” Id. at 865–66,
868. We rejected all of these contentions, concluding that
they rested on too restrictive a view of Title IX’s cause of
action for retaliation. Id. at 866–69.

We held that the named plaintiffs clearly asserted a
sufficient injury-in-fact to satisfy Article III, because their
“prospects for competing were hampered” when the
defendants “impermissibly retaliated against them by firing
Coach Martinez.” Id. at 865 (emphasis in original). We also
recognized, however, that what the defendants characterized
as “standing” arguments actually rested primarily on the
general prudential rule against asserting the rights of third
parties. Id. (citing Warth v. Seldin, 422 U.S. 490, 499
(1975)); cf. Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 126 (2014) (noting that “the
general prohibition on a litigant’s raising another person’s
legal rights” is “not derived from Article III,” but reflects
what has inexactly been called the “‘prudential’ branch of
standing”). Addressing the question that way, we held that
the named plaintiffs could assert a Title IX retaliation claim
based on retaliatory actions that were directed at another
person (Coach Martinez) and that were triggered by
24 A. B. V. HAWAII STATE DEP’T OF EDUC.

complaints made by others (Coach Martinez and various
parents). Ollier, 768 F.3d at 866–67.

In reaching that conclusion, we noted that the Supreme
Court had addressed a somewhat similar individual third-
party retaliation claim under Title VII in Thompson v. North
American Stainless, LP, 562 U.S. 170, 177–78 (2011). See
Ollier, 768 F.3d at 866. There, both Thompson and his
fiancée worked in the same company, and the allegation was
that Thompson was fired in retaliation for complaints about
sex discrimination made by his fiancée. Thompson, 562 U.S.
at 172. The Court held that, because Thompson was within
the “zone of interests” protected by Title VII, he had a cause
of action for retaliation even though his fiancée was the one
who had engaged in the protected activity that led to the
retaliation. Id. at 177–78. We concluded in Ollier that this
same zone-of-interest analysis applies to Title IX, and we
therefore considered whether the named plaintiffs in that
case were “within the ‘zone of interests’ that Title IX’s
implicit antiretaliation provisions seek to protect.” Ollier,
768 F.3d at 866; see also Lexmark, 572 U.S. at 127 & n.3
(suggesting that, in many cases, “third-party standing” is
really an issue of whether the party has a cause of action
under a statute, which in turn depends in part on the zone-of-
interests test). Because those named plaintiffs were students
who had suffered a diminished athletic experience due to
retaliation, we concluded that they easily fell within Title
IX’s zone of interests. Ollier, 768 F.3d at 866. They
therefore had a cause of action under Title IX to seek redress
for those injuries, despite the fact that the actual Title IX
complaints that led to the retaliation were “made by their
parents and Coach Martinez.” Id. at 866–67.

We similarly held that classwide injunctive relief was
properly awarded in Ollier, despite the fact that many of the
 A. B. V. HAWAII STATE DEP’T OF EDUC. 25

class members had not even been “members of the softball
team at the time of retaliation.” Id. at 868. In so holding, we
reiterated the breadth of Title IX’s zone of interests, see id.
(citing Thompson, 562 U.S. at 178), and asserted that we had
approved similarly broadly-defined classes that included “all
current and future” female students, id. (citation omitted).
Because the class members in Ollier had been affected by
the retaliation and were within the zone of interests protected
by Title IX’s prohibition on retaliation, the district court
properly extended its grant of injunctive relief “so as to
vindicate the rights of former and future students.” Id.

Although Ollier did not directly address the issue of class
certification, see id. at 854 n.4, it is clear that the district
court’s application of Rule 23(a)’s requirements to
Plaintiffs’ retaliation claim in this case cannot be reconciled
with Ollier’s analysis of the law governing such claims.
Here, as in Ollier, the specific Title IX complaints that led to
the retaliation were made only by a particular subset of
people (here, particular students and parents associated with
the water polo team). But the concerns those persons raised
swept more broadly to include Campbell’s treatment of girls’
athletics generally, and Plaintiffs have likewise presented
evidence that the resulting retaliation had a deterrent effect
on female students more generally. See supra at 22. Thus,
under Ollier’s reasoning, those other putative class
members—even those not on the water polo team—would
fall within Title IX’s zone of interests and would have a
cause of action for equitable relief against the Department’s
retaliatory actions. See 768 F.3d at 866–67. And, as in
Ollier, the fact that many of the class members were not the
direct targets of the alleged retaliation would not necessarily
be a bar to classwide relief. Id. at 868.
26 A. B. V. HAWAII STATE DEP’T OF EDUC.

It follows from these conclusions that the district court
abused its discretion in holding that Plaintiffs had not
established commonality and typicality as to their retaliation
claim. Given that the retaliation claims of both the named
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, that issue of retaliatory motive raises a common
question whose answer will “resolve an issue that is central
to the validity of each one of the claims in one stroke.” Wal-
Mart, 564 U.S. at 350. That is sufficient to satisfy Rule
23(a)(2).

For similar reasons, the district court erred in concluding,
in effect, that the direct victims of unlawful retaliation have
claims that are atypical of the claims of the indirect victims.
Plaintiffs’ retaliation claim is not premised solely on the
injury of threatening to cancel Campbell’s girls’ water polo
program and make the water polo team needlessly resubmit
program paperwork. Instead, it is also premised on the
“chilling effect” felt by female athletes throughout the high
school. And where, as claimed here, the persons who raised
broader concerns about Title IX compliance were met with
a retaliatory response that likewise impacted female student
athletes generally, the indirect victims’ claims depend
critically upon the success of the direct victims’ claims. As
a result, there is little prospect that the named plaintiffs’
claims could be said to be burdened with defenses or issues
unique to them and distinct from the other class members.
See Hanon, 976 F.2d at 508. Plaintiffs thus established
typicality under Rule 23(a)(3).

* * *

For the foregoing reasons, the district court abused its
discretion in concluding that Plaintiffs had not met the
 A. B. V. HAWAII STATE DEP’T OF EDUC. 27

requirements of Rule 23(a). We reverse the district court’s
order denying class certification and remand for it to
consider whether Plaintiffs satisfied Rule 23(b).

REVERSED AND REMANDED.