On August 19, 1997, eleven female student-athletes brought suit under
Title IX of the Education Amendments of 1972 against the Virginia High School League
(VHSL). The student-athletes alleged that the VHSL denied certain female athletes
opportunities to participate in athletics based on their sex in violation of Title IX and
the Equal Protection Clause of Amendment XIV of the United States Constitution.
The plaintiffs asserted that the VHSL's scheduling practices
treated boys' sports differently than girls' sports, while at the same time
forcing some girls to stop playing sports that they previously were able to play while no
boys were forced to stop playing sports because of schedule changes. The plaintiffs
further alleged that the current classifications system deprived girls of opportunities to
play all sports of their preference and hindered opportunities for college athletic
scholarships.
Virginia schools compete in classifications designated A, AA, or AAA,
based on enrollment sizes. Because enrollment fluctuates, some schools change
classifications when the league adjusts the grouping every two years. However, the
classification system is treated differently among boys' and girls' sports. The
sport seasons for girls differ across classifications. AAA schools play basketball in the
winter, while A and AA schools compete in the fall. Therefore, if a AAA school is
reclassified as AA, a basketball player accustomed to running cross-country, a fall sport,
would have to choose between cross-country and basketball. Conversely, boys' sports
are played in the same seasons regardless of classification.
Before to trial, the plaintiffs sought class action certification
pursuant to Rule 23 of the Federal Rules of Civil Procedure. Class certification is a
case-by-case analysis, there are no legal claims that automatically bind the court to
certify any and every class bringing those claims. The plaintiffs proposed class
definition included all present and future female students enrolled in Virginia public
schools who participate in interscholastic athletics.
In order to receive class certification, the plaintiffs had to satisfy
the requirements set forth in Rule 23. Under this rule, one or more members of a class may
sue as a representative party on behalf of all only if (1) the class is so numerous the
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 [typicality], and (4) the representative parties will
fairly and adequately protect the interests of the class [adequacy].
Only two of the prerequisites to class certification were contested:
typicality and adequacy. Both requirements look to the potential for conflicts in the
class. In examining the adequacy requirement, the court attempted to uncover conflicts
between the named parties and the class they sought to represent. The court also wanted to
see if the named parties possessed the same interest and suffered the same injury as the
class members. In examining the typicality requirement, the court wanted to ensure that
only those plaintiffs who could advance the same factual and legal arguments were grouped
together as a class.
The court was presented with unrebutted evidence of a conflict of
interests between the named plaintiffs and other members of the class which precluded
certification under Rule 23. A survey presented by the VHSL indicated that the plaintiffs
did not adequately represent the interests of all members of their class and that
plaintiffs' claims were not typical of their class. A majority of the female
student-athletes who responded to the survey expressed a desire to maintain the current
system. This conflict prevented the plaintiffs from satisfying the typicality requirement
as well as the adequacy of representation requirement. Therefore, the requested relief
would not benefit all other persons subject to the practice under attack, as required in a
class action.
After the request for class certification was denied, the plaintiffs
proposed a narrower sub-class. The narrower class would consist of all present and future
student-athletes enrolled in Virginia public schools who were forced to choose between or
among sports because of the VHSL's discriminatory scheduling practices. However, the
plaintiffs also failed to meet their burden for the narrow sub-class. As a result the
court declined to certify the narrower sub-class.
The court would allow the suit to go forward with the plaintiffs as
representatives only of themselves.
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You Make the Call. . . Index
"You Make The Call..." is a newsletter published four times per year (spring,
summer, fall, winter) by the National Sports Law Institute of Marquette University Law
School, PO Box 1881, Milwaukee, Wisconsin, 53201-1881. (414) 288-5815, fax (414) 288-5818,
munsli@vms.csd.mu.edu. (www.marquette.edu/law/sports/call.html).
This publication is distributed via fax and email to individuals in the sports field upon
request.
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Editorial Staff:
Paul M. Anderson, Editor & Designer
Kirsten Hauser, Associate Editor
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Copyright © 1999 -- All rights reserved.
