On Jan. 4, 2023, the 10th U.S. Circuit Court of Appeals made two important
findings in a class-action case seeking to compel the creation of a
girls-only football team for high-school girls.
First, the 10th Circuit reversed the district court’s denial of class
certification as to alleged violations of Title IX of the Education
Amendments of 1972, finding that the district court applied the wrong
standard for commonality of interest.
Second, the 10th Circuit affirmed the district court’s finding that the policy
supporting the existing co-ed program was not, on its face, discriminatory,
because the girls were not deprived of an opportunity otherwise available
This case — Gordon v. Jordan School District, et al.,
No. 21-4044, 2023 WL 34105 (10th Cir. Jan. 4, 2023) — concerned alleged
violations of Title IX, 20 U.S.C. § 1681(a), and the 14th Amendment’s equal
Concerning the issue of class certification for the Title IX claims, upon
review of the district court’s rulings, the 10th Circuit held that class
certification under Rule 23(b)(2) is appropriate when the proposed class
shares a commonality of interest. A sufficient showing of commonality
requires “identification of only a single issue shared by members of the
class.” The proposed class shared a commonality of interest because all the
proposed members had an interest in proving a reasonable expectation of
competition for girls’ teams.
The 10th Circuit held that when the district court focused on the
differences in level of interest across schools, the district court was
conducting a predominance inquiry — not a commonality inquiry. A
predominance inquiry is not required for class certification under Rule
Additionally, in response to the school districts’ claim that any error in
the district court’s ruling was harmless, the 10th Circuit held that it was
confining its review to the issue of denial of class certification. As
support, the 10th Circuit cited U.S. Parole Commission v. Geraghty, in which the U.S. Supreme Court held that it would be improper for an
appellate court to consider “the merits of the proposed class’s claims
until the district court had an opportunity to revisit certification.”
On the other hand, the district court had certified a class for the equal
protection claim. In upholding the district court’s finding that the co-ed
program did not violate the equal protection clause, the 10th Circuit
analyzed whether the policy was facially neutral, because “when a policy is
facially neutral, courts only consider the existence of rational basis.”
The 10th Circuit held that the co-ed program was facially neutral because
the school drew no distinction based on gender — both girls and boys were
allowed to play on the same football team.
While an all-girls team might be advantageous because it would afford girls
more playing time, the fact that girls were not discouraged from joining
the co-ed team supported the district court’s finding that the policy was
not discriminatory. The 10th Circuit noted that there was evidence to
support a finding of discriminatory purpose: Girls participated in football
less frequently than boys, the schools had discriminated against girls in
the past, and the schools offered a separate girls’ team in other sports.
However, the district court did not clearly err because it had reasonable
evidentiary basis to reject the allegation of discriminatory purpose.
This case is an important reminder of the gravity of precisely applying the
standard of commonality of interest when seeking class certification,
particularly when pursuing class certification under Rule 23(b)(2).
Further, this case shows that a mere showing of advantage based on gender
may be insufficient to support a claim of gender discrimination.
The class action team and education industry team at McGuireWoods will continue to monitor updates on class action lawsuits concerning Title IX. Please contact any of the authors of this article if you have any questions or for assistance.