Federal Appeals Court Vacates District Court Decision in Fresno State Title IX Case, Opens Door for All-Female-Student-Athlete Class Action


For more information, contact:

Joshua I. Hammack, Bailey & Glasser, LLP, (202) 202.463.2101, jhammack@baileyglasser.com

Arthur Bryant, Bailey & Glasser, LLP, (510) 507-9972, abryant@baileyglasser.com

January 17, 2024, San Francisco, CA – Six former members of the women’s lacrosse team at Fresno State won an important appellate victory today, as the U.S. Court of Appeals for the Ninth Circuit vacated the district court’s orders denying class certification. In February 2021, the women filed a lawsuit against Fresno State for violating Title IX by depriving women of equal opportunities to participate in varsity athletics and equal treatment and benefits. In February 2022, the women asked the court to certify the case as a class action on behalf of all women athletes and/or potential athletes. But the district court twice held it could not do so because there was an inherent conflict between athletes who played on different teams.

The Ninth Circuit disagreed. It held the lower court “clearly erred” by holding such a conflict exists as to the equal opportunities claim. It explained, as the women had repeatedly argued, that Title IX requires equality for women and men, whether the school increases opportunities for women, decreases them for men, or does both. How the school decides to achieve equality—by, for example, “leveling down programs instead of ratcheting them up”—does not give rise to a conflict. The order confirmed the district court’s contrary conclusion was based on “speculation” that was not a proper basis to deny class certification.

The Ninth Circuit reached a similar conclusion as to the equal treatment claim, holding the district court erred by failing to analyze it separately. It then remanded the case back to the district court for consideration consistent with its opinion. As a result, the fight for certification of an all-female-student-athlete class will continue there.

Joshua I. Hammack, the Bailey Glasser partner who briefed and argued the appeal, said: “The Ninth Circuit opened a door the district court twice tried to slam shut. In a real sense, this order vindicates the brave young women who stood up and demanded that Fresno State provide what Title IX promises—equality. And the Court confirmed that those who seek equality are not in conflict with those who stand to benefit from it. The fight isn’t over, of course, but today is an important step toward justice.”

Lead counsel and Title IX team leader Arthur Bryant noted, “This is a huge and critical victory. The district court held that women on one team could not constitutionally represent women on other teams. The Ninth Circuit’s ruling makes clear that isn’t so. It vacated the district court’s decision and will allow this case to proceed, as it should, as a class action on behalf of all female student-athletes and potential student-athletes at Fresno State.”

In addition to Hammack and Bryant, plaintiffs are represented by Bailey Glasser partners Cary Joshi and Lori Bullock, and Cynthia Chapman, Mike Caddell, and Amy Tabor of Caddell & Chapman.

To read the Ninth Circuit’s opinion, click here.

For additional background about the Fresno State litigation, visit here.

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