A.W. et al v. Davis School District

Filing 13

MOTION to Certify Class and Memorandum in Support filed by Plaintiffs A.W., C.W.. (Attachments: # 1 Exhibit A)(Farrell, Leah)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
NORTHERN DIVISION
A.W. and C.W., by and through their
mother Tina Weber, individually and
on behalf of others similarly situated,
Plaintiffs,
v.
DAVIS SCHOOL DISTRICT,
Defendant.

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Case No. 1:12-cv-242 EJF

MOTION FOR CLASS CERTIFICATION
AND SUPPORTING
MEMORANDUM OF LAW

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND
SUPPORTING MEMORANCUM OF LAW
Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), plaintiffs A.W. and
C.W., by and through their mother, Tina Weber, ask this Court to certify a class of plaintiffs as
follows: all current and future students in the elementary schools where Davis School District
(the “District”) removed In Our Mothers’ House from library shelves and restricted access to the
book (the “proposed class”). Federal courts routinely grant class certification in cases
challenging the restriction of access to library materials in order to provide classwide relief to all
students affected by the unconstitutional restrictions. See, e.g., Pratt v. Indep. Sch. Dist. No. 831,
Forest Lake, Minn., 670 F.2d 771 (8th Cir. 1982); Salvail v. Nashua Bd. of Ed., 469 F. Supp.
1269 (D.N.H. 1979); Minarcini v. Strongsville City Sch. Dist., 384 F. Supp. 698 (N.D. Ohio
1974), aff’d in part and rev’d in part, 541 F.2d 577 (6th Cir. 1976) (affirming class certification,
reversing on other grounds). For the following reasons, plaintiffs’ motion for class certification
should be granted in this case as well.

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STATEMENT OF PRECISE RELIEF SOUGHT AND GROUNDS FOR RELIEF
Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), plaintiffs ask this Court
to certify a class of current and future students in the elementary schools where Davis School
District removed In Our Mothers’ House from library shelves and restricted access to the book.
On behalf of themselves and the proposed class, plaintiffs seek the following injunctive and
declaratory relief:
A.
A permanent injunction requiring the District to return copies of In Our Mothers’
House to the elementary school library shelves and requiring the District to allow
students to access the book on the same terms and conditions as other books in the library
at a comparable reading level;
B.
A permanent injunction prohibiting the District from removing or restricting
access to additional books in the school libraries based on a purported concern that the
library books contain “homosexual themes” or “advocacy of homosexuality”;
C.
A declaratory judgment finding that the District’s actions violate Plaintiffs’ and
the Class’s First Amendment rights under the United States Constitution, as applied to the
states through the Fourteenth Amendment;
D.
A declaration that the District may not rely upon U.C.A. 1953 § 53A-13-101 to
remove or restrict access to library books that purportedly contain “homosexual themes”
or “advocacy of homosexuality”
(Compl. ¶¶ A-D.) Class certification pursuant to Federal Rule of Procedure 23 is appropriate
because (1) the class is so numerous that joinder of all members is impracticable, there are
questions of law or fact common to the class, the claims or defenses of the representative parties
are typical of the claims or defenses of the class, and the representative parties will fairly and
adequately protect the interests of the class, see Fed. R. Civ. P. 23(a)(1)-(4), and because (2) the
party opposing the class has 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).

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BACKGROUND AND STATEMENT OF FACTS1
In Our Mothers’ House, by Patricia Polacco, is a children’s book about three adopted
children and their two mothers. (Compl. ¶¶ 1, 15.) The librarians for four elementary schools in
the District purchased copies of In Our Mothers’ House for their library collections. Those
elementary schools are: Parkside Elementary School, Snow Horse Elementary School, South
Weber Elementary School, and Windridge Elementary School. (Compl. ¶ 40.) According to the
District’s publicly available enrollment figures, a total of approximately 3,000 students are
currently enrolled in these four elementary schools. See Davis County School District, 2012
District Enrollment Counts Report, attached as Exhibit A. See also (Compl. ¶ 78) (factual
allegations about number of students in each of the four elementary schools).
In response to complaints from a subset of parents that the book “normalizes a lifestyle
we don’t agree with,” the District has instructed its elementary school librarians to remove all
copies of In Our Mothers’ House from the library shelves and place the book behind a counter
where students must have written parental permission to read it. (Compl. ¶¶ 1, 40-59.) The
District does not dispute that it restricted access to In Our Mothers’ House because of the ideas
the book contains; indeed, the District’s primary justification for removing the book from the
shelves is that, by telling the story of children raised by same-sex parents, the book constitutes
“advocacy of homosexuality,” in purported violation of Utah’s sex-education laws. (Compl. ¶¶
1, 54, 61, 65.)
Plaintiffs A.W. and C.W. are students at an elementary school in the Davis School
District (the District) where In Our Mothers’ House was removed from the library shelves.

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“[P]recedent is clear that at the class certification stage a district court must generally accept the
substantive, non-conclusory allegations of the complaint as true.” Vallario v. Vandehey, 554
F.3d 1259, 1265 (10th Cir. 2009). 


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(Compl. ¶ 4.) By and through their mother, Tina Weber, plaintiffs have filed a class action
complaint alleging that the restrictions placed on In Our Mothers’ House violate their First
Amendment rights to access ideas in a school library without viewpoint discrimination.
Plaintiffs seek nominal damages and prospective relief under 42 U.S.C. § 1983, including an
injunction requiring the District to return copies of In Our Mothers’ House to elementary school
library shelves and make them available to students on the same terms as other books at a
comparable reading level. (Compl. ¶¶ A-E.)
Because the District’s decision to restrict access to In Our Mothers’ House applies
generally and on equal terms to all students enrolled in the four elementary schools where In Our
Mothers’ House was previously available, plaintiffs seek to bring this action on behalf of a class
of current and future students in District elementary schools where In Our Mothers’ House was
removed from the shelves Plaintiffs are represented by counsel at the American Civil Liberties
Union and the ACLU of Utah, who are experienced in civil rights and class-action litigation and
who will adequately represent the interests of the proposed class. See, e.g., Parents, Families, &
Friends of Lesbians & Gays, Inc. (“PFLAG”) v. Camdenton R-III Sch. Dist., No. 2:11–CV–
04212 (W.D. Mo.) (plaintiff and proposed class in school library censorship case represented by
Joshua Block and Leslie Cooper from ACLU); Collins v. United States, No. 10–778C (Ct. Cl.)
(plaintiff and certified class represented by Joshua Block and Leslie Cooper from ACLU); and
Utah Coalition of La Raza v. Herbert, 2:11-cv-401 (D. Utah) (class action suit brought by ACLU
of Utah and others challenging Utah immigration statute).

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ARGUMENT AND SUPPORTING AUTHORITY
I.

All Current and Future Students Attending Elementary Schools Where In Our
Mothers’ House Was Restricted Have Standing to Challenge the Restrictions.
Under Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S.

853 (1982), the First Amendment does not require public schools to purchase particular books
for their libraries, but it does prohibit schools from removing books that are already on the
library shelves based on the viewpoints the books contain. Id. at 871-72 (plurality); see
Cummins v. Campbell, 44 F.3d 847, 853 n.4 (10th Cir. 1994); Parents, Families, & Friends of
Lesbians & Gays, Inc. (“PFLAG”) v. Camdenton R-III Sch. Dist., 853 F. Supp. 2d 888, 901
(W.D. Mo. 2012). The injury caused by unconstitutional book restrictions is not merely the
limitation on access to the book, but also the stigmatizing effect of the restriction, which can chill
students from seeking to access the book in the first place. See PFLAG, 853 F. Supp. 2d at 897;
Pratt, 670 F.2d at 779; Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996, 999 (W.D. Ark.
2003).
Students have standing to challenge unconstitutional restrictions on school library
materials if they are enrolled at a school where library materials were restricted. See Case v.
Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1251 (10th Cir. 1998) (noting,
in decision affirming award of attorney’s fees in library book censorship case, that “the plaintiffs
with standing were intuitively those who use a school library and, thus, could allege an injury:
students and teachers”). It does not matter whether the student ever sought access to the book
before it was restricted, and it does not matter whether the student has parental permission and
can therefore access the book despite the restrictions that have been put in place. See Counts,
295 F. Supp. 2d at 999-1000 (finding standing to challenge requirement that students have
parental permission to check out Harry Potter books even though plaintiff had parental
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permission); Case v. Unified Sch. Dist. No. 233, 908 F. Supp. 864, 867 (D. Kan. 1995) (finding
standing even though “[t]he evidence does not show that anyone checked out or read the
District’s copies of [the book] prior to the dispute involved in this case”); Right To Read Def.
Comm. of Chelsea v. Sch. Comm. of City of Chelsea, 454 F. Supp. 703, 715 n.19 (D. Mass. 1978)
(finding First Amendment violation even though defendant’s argued that “plaintiffs did not prove
that a single living person has ever exhibited an interest in reading this material and has been
prevented from doing so by the actions of the Chelsea School Committee”).
Because the constitutional violation does not depend on the specific factual
circumstances of individual students, courts have repeatedly certified class actions in book
censorship cases on behalf of all students at the institution where the censorship or restriction
occurred. See, e.g., Pratt, 670 F.2d at 771, 773 (complaint brought on behalf of three students
and all those similarly situated); Salvail, 469 F. Supp. at 1272 (class of all students at Nashua
High School); Minarcini, 384 F. Supp. at 707-08 (class of “all students enrolled in the schools
operated and maintained by the Strongsville City School District”). As discussed below, there is
no reason why class certification should not be granted in this case as well.
II.

The Proposed Class Satisfies All Rule 23(a) Requirements for Class Certification.
Federal Rule of Civil Procedure Rule 23(a) establishes four criteria that must be satisfied

when a plaintiff seeks class certification:
(1) numerosity (a “class [so large] that joinder of all members is impracticable”);
(2) commonality (“questions of law or fact common to the class”);
(3) typicality (named parties’ claims or defenses “are typical ... of the class”); and
(4) adequacy of representation (representatives “will fairly and adequately protect
the interests of the class”).

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Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997); see also Shook v. El Paso County,
386 F.3d 963, 971 (10th Cir. 2004). The proposed class of students meets all four requirements
in this case.
A.

The Number of Current and Future Students in the Proposed Class Satisfies
the Numerosity Requirement Under Rule 23(a)(1).

There is “no set formula” to determine whether Rule 23(a)(1)’s numerosity requirement
is satisfied.” Rex v. Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir.1978). Rather, class
certification should be granted where the number of class members is large enough to make
joinder “impracticable.” Fed. R. Civ. P. 23(a)(1). See also 1 Newberg on Class Actions § 3:14
(5th ed.) (noting that plaintiffs need only to demonstrate that it would be “extremely difficult” to
join all class members); Pueblo of Zuni v. United States, 243 F.R.D. 436, 444 (D.N.M. 2007)
(stating that party seeking class certification “need not show that joinder of all members is
impossible, only that it is impracticable” and adding that plaintiffs need not “identify the exact
number of class members involved”).
The number of current and future students in the proposed class easily satisfies the
numerosity requirement. Cf. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982) (a class of
current and future students in a single school satisfied the numerosity requirement).
Approximately 3,000 students are currently enrolled in the four elementary schools where the
District removed In Our Mothers’ House from library shelves. See Davis County School
District, 2012 District Enrollment Counts Report, attached as Exhibit 1. It would certainly be
“impracticable” to join all 3,000 students as separate plaintiffs in this litigation.
Joinder is also impracticable here because the proposed class includes future students
who will enroll in the four elementary schools and become subject to the book restriction. As a
general rule, “[n]umerosity is met where . . . the class includes individuals who will become
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members in the future. As members in futuro, they are necessarily unidentifiable, and therefore
joinder is clearly impracticable.” Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002). See
also Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981) (holding
numerosity requirement clearly met when “the alleged class includes future and deterred
applicants, necessarily unidentifiable . . . . joinder of unknown individuals is certainly
impracticable”) (citation and internal quotation marks omitted).
Because the class contains 3,000 current students and an unidentifiable number of future
students, the proposed class satisfies the numerosity requirement of Rule 23(a)(1).
B.

The Proposed Class Shares Common Questions of Law and Fact Under Rule
23(a)(2).

The proposed class also shares common questions of fact and law, satisfying Rule
23(a)(2)’s requirement of at least “a single question of law or fact common to the entire class.”
DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010) (citation omitted); see
also JB ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999). “[E]very member of the
class need not be in a situation identical to that of the named plaintiff” to satisfy commonality.
Stricklin, 594 F.3d at 1195.
Without question, the proposed class shares a common question of law: Did the
District’s decision to restrict access to In Our Mothers’ House violate the First Amendment?
The class also shares common questions of fact, including: the District’s motivation and
justification for restricting access to the book and the objective burdens that the District’s
restriction places on students’ ability to access the book.
These common questions of fact and law are more than sufficient to satisfy the
commonality requirement of Rule 23(a)(2).

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C.

Plaintiffs’ Claims Are Typical of the Claims of the Class.

Plaintiffs’ claims are typical of the proposed class’s claims because their claims are all
based on the same legal theory and set of facts. For all members of the class, the claim identical:
that the District’s restriction of In Our Mothers’ House is a violation of the students’ First
Amendment rights. See Milonas, 691 F.2d at 938 (finding typicality where the claims of the
named plaintiffs and the class were based on the same legal theory that defendants’ practices
violated class members’ constitutional rights).
Defendant may argue that plaintiffs’ claims are not typical of the class because the
plaintiffs obtained parental permission to the book while other students have not done so.
Where, however, “the claims of the plaintiffs and the other class members are based on the same
legal or remedial theory,” factual differences between class members do not defeat typicality.
Penn v. San Juan Hosp., Inc., 528 F.2d 11814, 1189 (10th Cir. 1975); see also Anderson v.
Albuquerque, 690 F.2d 796, 800 (10th Cir. 1982). Here, the constitutionality of the District’s
actions turns on the validity of the District’s motivations and justifications. As discussed above
in connection with the standing of class members, the individual circumstances of students,
including whether they have accessed or want to access the book, are not relevant in resolving
this issue. Typicality is therefore met in this case. 2
D.

Plaintiffs Are Adequate Class Representatives Under Fed. R. Civ. P. 23(a)(4).

In order to satisfy the adequacy requirements of Rule 23(a)(4), “[a] class representative
must be part of the class and possess the same interest and suffer the same injury as the class
members.” Amchem Prods., 521 U.S. at 625-26 (internal quotation marks and citation omitted).

2

As discussed below in the context of the “adequacy” requirement, plaintiffs do not have to
show that all other class members oppose the restrictions placed on In Our Mothers’ House
because the question for class certification is whether all the class members suffered a common
injury, not whether all the class members wish to have that injury remedied.
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As students in one of the elementary schools where copies of In Our Mothers’ House were
removed from the shelves, Plaintiffs easily meet this standard. Plaintiffs’ interests are aligned
with the rest of class members because all current and future students at elementary schools
where copies of In Our Mother’s House were removed suffered the same constitutional injury.
To be sure, some students may not oppose the District’s decision to restrict access to the
book. When plaintiffs are otherwise adequate representatives to vindicate constitutional claims,
however, class certification should still be granted even “if some members of the class might
prefer not to have violations of their rights remedied.” Lanner v. Wimmer, 662 F.2d 1349, 1357
(10th Cir. 1981) (upholding class certification in First Amendment challenge to school policy
even though some parents supported time-release program); see also Salvail., 469 F. Supp. at
1272 (certifying a class of students to challenge school board’s removal of a magazine from a
school library, despite publicized disagreement about whether the magazine should be removed).
As the district court explained when certifying a class of students challenging the book
restrictions in Minarcini:
Intervenors contend that plaintiffs’ class designation is improper pursuant to Rule
23 for the reason that a majority of Strongsville students and parents thereof are
not in sympathy with plaintiffs’ views, and are, therefore, not ‘similarly situated’.
Intervenor’s argument is without merit. All members of the purported class are
affected by actions taken by the Board of Education of the Strongsville City
School District. The Court need not speculate how many students therein may
need or desire to invoke First Amendment protection against such action; the
ultimate fact that each student is subject thereto is sufficient.
Minarcini, 384 F. Supp. at 707-08. The same is true here. All members of the proposed class
have been subjected to the same unconstitutional restrictions on accessing In Our Mothers’
House even if all members of the class do not necessarily seek to vindicate their First
Amendment rights that protect them from these unconstitutional restrictions.

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Plaintiffs’ counsel has extensive experience in class actions and First Amendment issues,
as set out in plaintiffs’ motion, and there are no conflicts of interest between plaintiffs and the
proposed class members. Plaintiffs and their counsel therefore satisfy Rule 23(a)(4)’s
requirement that the named plaintiff will adequately represent the proposed class.
III.

The Proposed Class Satisfies All Rule 23(b)(2) Requirements.
Under Rule 23(b)(2), if a proposed class satisfies the prerequisites for Rule 23(a), the

Court should grant class certification for injunctive and declaratory relief where “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate for the class as a whole.”
Fed. R. Civ. P. 23(b)(2). Because the proposed class meets all of the Rule 23(b)(2),
requirements, class certification should be granted.
a. The Proposed Class Is Cohesive.
The Tenth Circuit has distilled Rule 23(b)(2) into a requirement that a proposed class
must be “cohesive.”
Rule 23(b)(2) imposes two independent, but related requirements upon those
seeking class certification. First, plaintiffs must demonstrate defendants’ actions
or inactions are based on grounds generally applicable to all class members.
Second, plaintiffs must also establish the injunctive relief they have requested is
appropriate for the class as a whole. Together these requirements demand
cohesiveness among class members with respect to their injuries.
Stricklin, 594 F.3d at 1200 (internal quotation marks, citations, and ellipses omitted).
This cohesiveness, in turn, has two elements. First, plaintiffs must illustrate the
class is sufficiently cohesive that any classwide injunctive relief satisfies Rule
65(d)’s requirement that every injunction “state its terms specifically; and
describe in reasonable detail the act or acts restrained or required.” Second,
cohesiveness also requires that class members’ injuries are sufficiently similar
that they can be remedied in a single injunction without differentiating between
class members.

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Id. (internal quotation marks, citations, and ellipses omitted). The proposed class easily satisfies
the requirements of cohesiveness.
The proposed class is cohesive because restricting In Our Mothers’ House and other
books containing “homosexual themes” affects each member of the proposed class by making it
more difficult to access such books and by placing a stigma on the books and on students who
read them. In addition, classwide injunctive relief would describe in reasonable detail the act or
acts restrained or required and would not require the court to differentiate between class
members. Plaintiffs seek:
A. A permanent injunction requiring the District to return copies of In Our Mothers’
House to the elementary school library shelves and requiring the District to allow
students to access the book on the same terms and conditions as other books in the
library at a comparable reading level;
B. A permanent injunction prohibiting the District from removing or restricting access to
additional books in the school libraries based on a purported concern that the library
books contain “homosexual themes” or “advocacy of homosexuality”;
C. A declaratory judgment finding that the District’s actions violate Plaintiffs’ and the
Class’s First Amendment rights under the United States Constitution, as applied to
the states through the Fourteenth Amendment;
D. A declaration that the District may not rely upon U.C.A. 1953 § 53A-13-101 to
remove or restrict access to library books that purportedly contain “homosexual
themes” or “advocacy of homosexuality”
(Compl. ¶¶ A-D.) This injunctive and declaratory relief would address the entire proposed
class’s injuries without any need for differentiation between class members.
As demonstrated by other cases in which courts granted classwide injunctive and
declaratory relief to remedy unconstitutional library book restrictions, see, e.g., Salvail, 469 F.
Supp. at 1272, the proposed class in sufficiently cohesive to provide injunctive and declaratory
relief under Rule 23(b).
b. Class Certification Is Necessary to Prevent Mootness.
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Although Rule 23 does not explicitly require that class certification must be “necessary”
in order to grant meaningful relief, some courts have declined to certify a class where the
plaintiff could obtain classwide relief without certification. See Kan. Health Care Ass’n, Inc. v.
Kan. Dep’t of Social & Rehabilitation Servs., 31 F.3d 1536, 1548 (10th Cir. 1994) (recognizing a
line of authority indicating that class certification is sometimes unnecessary if all the class
members will benefit from an injunction issued on behalf of the named plaintiff). But See 2
Newberg on Class Actions § 4:35 (criticizing courts’ addition of a “necessity” requirement and
arguing that such a requirement is inconsistent with the underlying premise of Rule 23(b)(2)).
Plaintiffs contend that Rule 23(b) does not impose a “necessity” requirement. But even if a
“necessity” requirement did exist, class certification would still be necessary in this case to avoid
the possibility of mootness.
Federal courts – including the Supreme Court – have recognized that class certification is
necessary in student-rights litigation to avoid the possibility that claims will become moot in the
event that a plaintiff graduates. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 268 (2003) (noting
that “class-action treatment was particularly important in this case because ‘the claims of the
individual students run the risk of becoming moot’”); Bd. of Sch. Com’rs of City of Indianapolis
v. Jacobs, 420 U.S. 128, 129 (1975) (holding that unless the action had been “duly certified” as a
class action, the case against a school system was moot once the named plaintiffs had graduated);
Clay v. Pelle, No. 10-CV-01840, 2011 WL 843920, at *1, *7 (D. Colo. Mar. 8, 2011) (holding
that class certification for prisoners challenging a jail policy was appropriate in light of the
danger of mootness from prisoners being transferred or released from the jail). Because of the
potential risk of dismissal for mootness – particularly in light of the frequency of students
graduating or relocating from schools – class certification is essential to ensure that the claims do

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not become moot. Moreover, because the District’s unconstitutional restrictions have inflicted
only nominal damages and because only an injunction can restore access to the restricted library
books for all class members, classwide injunctive and declaratory relief is the only remedy
capable of fully protecting the rights of current and future students.
Because class certification is necessary to protect against mootness and provide
meaningful classwide relief, certification should be granted even if a “necessity” requirement
exists under Rule 23(b).
CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that this Court grant their motion
for class certification.
Dated: December 10, 2012

Respectfully Submitted,

Joshua A. Block
Leslie Cooper
ACLU FOUNDATION, INC.
125 Broad Street, Floor 18
New York, New York 10004
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

/s/ John Mejia
John Mejia (USB No. 13965)
Leah Farrell (USB No. 13696)
ACLU OF UTAH FOUNDATION, INC.
355 North 300 West
Salt Lake City, Utah 84103
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiffs

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