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 to boys.

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 protection clause.

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 23(b)(2).

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.