thank you your honor good morning elizabeth kristen from legal aid at work for the plaintiffs i'd like to reserve five minutes for recall hundreds of girls at home why is the largest public high school have for years endured i need all athletic facilities and conditions at their school as just a few examples boy is but not girls had access to a standalone athletic locker room while girls were forced to change under the bleachers or at a local fast food restaurant these inequalities continued with respect to athletic uniforms equipment coaching transportation and a host of other factors all of which we numbers of class members alone are sufficient to establish numerosity under rule twenty three a one which says that the class needs to be so numerous that jointer of all members is impractical analysis and because title nine allows for sex segregation and athletics the way in which the cases are analyzed is to look at the entire athletic program and so all girls participating in athletics and those deterred or not able to participate because of lack of participation opportunities are all harmed under the way the title nine statute were my nd response has to do with the idea that defendants seem to suggest that the proper class definition would be as we said met a fail safe class in interpreting some kind of determination of liability within the class definition here was then that the class definition was proper and was tailored to the arrays of liability and it's also show the number of girls that are representing what we call the participation gap we said mid of that that was a measure of deterred female athletes that number was approximately one hundred and fifteen that's also just played in those two chart girls who had tried out for sports and had been cut and that those athletes were not being allowed to participate because there were insufficient opportunities for girls to play the other measure that we put forward this produce is going to ask you about that one though is that a fair i appreciate the example your honor with respect to title nine though what we're looking at is sex based and equality and because title nine allows for there to be male teams and female teams so i understand that you're suggesting that every female that twenty members and there were thirty five girls that came in tried out how do you know how do you how did it you distinguish on those grounds what we did your honor as we explain title nine is three part test and with respect to that that's a measure of whether a school or an institution is failing to provide equal athletic opportunity to girls that's a test that's been put forward and deferred to by this court in the sweetwater case with respect to the st part of the t substantial proportionality that looks at the percentage of girls in rolled in a school and then looks at the percentage of boys enrolled in the school and it says what i don't i looked at is do girls and boys then have a proportional share of those athletic together might be assuming a five thousand and fifty dollars split at the school between boys and girls is that that's what you're saying that's right your honor what you look to is whether the total number of athletic spots being provided to boys and the total number of athletic spots being promoted to girls are proportional to their in roman and football is a perfect example your honor because many schools offer football which is predominantly played by boys even if there are a few girls here and there who play football and so  that's correct your honor just looking at the current athletes we were over three hundred dollars and i have not had an opportunity to talk yet about the future athletes which also were inherently impracticable to join under this court's jordan president and know there's only twenty buyable are you also claiming that the number of spots for girls is lower than the number of spots for boys are you just claiming that they have the same number of spots but they're not getting the same list of all of the things that you have when you're an athlete locker rooms fields coaching transportation all of those treatment and benefits issues the other nd cause of action for our titling claims is this failure to provide equal athletic opportunity  number of slots that is supposed to be substantially proportional to girls in roman death at school there's two other parts to the test again title nine is flexible it doesn't require that exact proportionality in every case but in this case we would argue that the school would not meet the other two parts of the test and sort of get back to your question the reason that thailand looks to the total program analysis is because there may be inequalities and differences among boys and girls teams but also there will be differences in among girls teams and so it looks out is it says you have to as an institution overall treat girls on par with boyce and that's why class treatment in title nine cases is particularly important in fact the policy failing to certify the retaliation claims based on commonality and typicality grounds there was one at least one very important common answer that was driven by these claims and that had to do with these adverse actions that were taken against the girls that we said met based on the objective task that applies that the supreme court in burlington and thompson has talked about and sweetwater as well that these title nine were seeking to clara torreon injunction relief on all claims your honor but i do see there being a distinction between our television claim and just fermentation and claim under title nine with treatment of benefits or participation opportunities for example we would seek declaratory judgment that retaliation occurred and an injunction against future retaliation so the remedy would be different with respect to that claim your name is that what is the retaliation you allege occurred was something other than the deprivation of opportunity to be male athletes yes it was your honor there was evidence on the record about a meeting that the water polo parents and athletes had with the principal and the athletic director and eighteen at that meeting the principal an athletic director threat threaten to cancel the water polo program and soon thereafter lost the paperwork for the team in a way that the coast felt was retaliate tory he didn't believe that it was genuine that they had really lost all of their paperwork suddenly then after the lawsuit was filed in december of two thousand and eighteen there was a donor to the water polo program and there's evidence in the record that the school made it very difficult for the water general it may be a common thing against athletes who complain whether they're male or at least admit that it is a common claim in a common injury and then it goes beyond the water polo team for a number of reasons st there were i disagree your honor we presumed dead eight declarations undisputed evidence that of course covered a number of issues that there were very specific allegations of the retaliatory of facts of this action being felt beyond the class so for example the c b c declaration excerpt of record two hundred and forty four to forty five paragraph thirty talked about students and parents who wanted to join the lawsuit but were scared about the repercussions from the school if they did so and one girl who was a star athlete who wanted to win a college scholarship but didn't want to jeopardize her relationship with the school and the athletic department staff and c v concluded given the way the campbell administration has retaliated against the girl's water polo team for speaking up i'm not surprised by her decision to retaliate very actions taken by the principal and by the athletic director those were system beginning in the question i think judge collins is trying to pose is that how could it possibly be as serious and superior way to litigate this case when the numbers are three hundred plus to do it with individual joinder and i've heard of people affected but the district court's order didn't talk about any of that in the the district court's order of knowledge we may be talking about more than three hundred it went off entirely on but it's not impractical round them all up you don't seem to defend and for good reason because i don't think it's particularly defensible so how is it we're supposed to delve into the merits of each individual claim and try to decide at this stage long before proof of injury how many people have been hurt in the class certification comes early and there just seems to be no benefit cited by you so far as to why treating these crimes with individual join of logic behind the allegation that's been offered the fact that there may be variations on a theme i mean you're prepared to litigate on behalf of plaintiffs on different theories and the different theories might result in different numbers but that still doesn't tell me why with the district court not disputing more than three hundred is the number why isn't that the one we should be looking at well because i mean simply we're asking the court to look at alternative grounds for affirming that's what we're doing and you know this kind of a situation is that the st one who raises their head over the crowd gets lopped off and it's like anybody else want to try that that's the theory of retaliation claim why one incident and have a  but i have not seen this argument from them before your honor but i think with respect to numerosity then not that type of claim doesn't necessarily matter they've made arguments about our class definition have tried to say your cost definition is wrong it should be different it should include the theory of liability within it but this is a very typical class definition for these tight only in athletics cases and lose the bet that it was a proper definition that actually applies across all of the three claims with respect to sweetwater we acknowledge it was not squarely a class certification decision although it passed or wasn't he held in the defendant's way of that issue on appeal  the sweetwater opinion just guesses and the footnotes however sweetwater was about more than just a firing of a coach sweetwater involved a parent of a softball girl who spoke to the athletic director about inequality for girls and that brown and in retaliation the school fired the coach and said cover actions against the softball team including not letting parents volunteer including not holding banquets for the girls and giving them their varsity letter so it went way