Gordon v. Jordan School District ( 2023 )

Appellate Case: 21-4044 Document: 010110792548 Date Filed: 01/04/2023 Page: 1
FILED
United States Court of
UNITED STATES COURT OF APPEALS Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________
January 4, 2023
Christopher M. Wolpert
BRENT GORDON, as general Clerk of Court
guardian of S.G.; JASON DIXON,
as general guardian of L.D.; LISA
SIMMONS, as general guardian of
B.S.; BARBARA CALCHERA, as
general guardian of M.C.; BRET
ROBISON, as general guardian of
D.R.; MANUEL NOGALES, as
general guardian of I.N.; I. C., a
minor,
Plaintiffs - Appellants,
v. No. 21-4044
(D.C. No. 2:1-CV-00677-HCN)
JORDAN SCHOOL DISTRICT; (D. Utah)
GRANITE SCHOOL DISTRICT;
CANYONS SCHOOL DISTRICT;
UTAH HIGH SCHOOL
ACTIVITIES ASSOCIATION;
MARTIN BATES; ANTHONY
GODFREY, Superintendent of
Jordan School District; RICK L.
ROBINS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 21-4044 Document: 010110792548 Date Filed: 01/04/2023 Page: 2
_________________________________
This case began with an effort to compel the creation of a separate
football league for high-school girls. Local officials declined, stating that
it was enough for the girls to participate on their schools’ coed football
teams. The girls’ parents sued and sought class certification, invoking Title
IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and the
Fourteenth Amendment’s Equal Protection Clause. The district court
certified a class on the equal protection claims and denied certification on
the Title IX claims. On the equal protection claims, the district court
conducted a bench trial and found no constitutional violation. These
rulings led to this appeal.
In deciding the appeal, we address two main issues:
1. Refusal to certify a class on the Title IX claims. In
considering certification of a class on the Title IX claims, the
district court found no commonality because some aspects of
the claims involved individualized inquiries. But the presence
of some individualized inquiries doesn’t prevent a common
question of law or fact. So we conclude that the district court
erred by applying the wrong standard on commonality.
2. Rejection of the equal protection claims based on the trial
evidence. Based on the trial evidence, the district court
rejected the equal protection claims, finding that (1) the policy
of a gender-neutral football team had been facially neutral and
(2) no discriminatory purpose had existed. The allowance of
coed football teams was indeed gender neutral, and the court
didn’t clearly err by finding no discriminatory purpose. So we
uphold the district court’s rejection of the equal protection
claims.
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1. We have appellate jurisdiction.
The threshold question is appellate jurisdiction. When the case began
in district court, all of the girls were minors (under eighteen) and
represented by their parents. By the time that the parents filed the notice of
appeal, however, six of the seven girls had turned eighteen. And all of the
girls have now graduated from high school. These developments trigger
issues involving sufficiency of the notice of appeal, substitution of parties,
and mootness.
A. The notice of appeal on class-related issues is sufficient.
The defendants seek dismissal of the appeal on class-related issues,
arguing that (1) the notice of appeal didn’t identify the daughters as the
appellants and (2) six of the seven parents lacked standing to file the
notice of appeal because their daughters had already turned eighteen.
These arguments don’t merit dismissal of the appeal.
The notice of appeal identified the appellants as “all plaintiffs and
Sam Gordon, both individually and as the representatives of the certified
class.” Appellants’ App’x vol. 2, at 554 (cleaned up). This reference to “all
plaintiffs” would suffice if it named at least one person qualified to appeal
on behalf of the class. Fed. R. App. P. 3(c)(3).
The notice did identify at least one parent with the power to appeal
(Delainee Robison’s father). Though six of the seven girls had already
turned eighteen, one of the girls (Delainee Robison) was still seventeen
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when the parents filed the notice of appeal. So the defendants concede that
Delainee Robison’s father could appeal on behalf of his daughter and the
putative classes that she represented. We agree, concluding that the
father’s authority to file the notice of appeal sufficed for Delainee Robison
and the designated classes that she represented. See Fed. R. App. P.
3(c)(3).
B. The girls are entitled to substitution as the appellants.
Because all of the girls are now eighteen, they seek substitution as
the appellants, replacing their parents (who had represented the girls as
guardians). The defendants don’t object, and we grant the motion to
substitute. See Fed. R. App. P. 43(b).
C. The girls’ individual claims are moot.
Though the notice of appeal triggered our jurisdiction on class-
related issues, the defendants argue that the girls’ individual claims
became moot when they graduated high school. The girls declined to
respond in their reply brief, waiving any non-obvious defects in the
defendants’ argument on mootness. See Eaton v. Pacheco, 931 F.3d 1009,
1031 (10th Cir. 2019).
We see no obvious defect in the defendants’ argument. When
students seek to enjoin their high schools and then graduate, there’s no
reasonable basis to expect the alleged injury to recur. Bauchman ex rel.
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Bauchman v. W. High Sch., 132 F.3d 542, 548 (10th Cir. 1997). So the
girls’ individual claims are moot.
2. On the Title IX claims, the district court applied the wrong
standard on commonality.
On the Title IX claims, the girls sought certification of a class. The
court denied certification, reasoning that the girls had failed to show
commonality. Fed. R. Civ. P. 23(a)(2). This showing required
identification of only a single issue shared by members of the class. DG v.
Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010).
We consider whether the district court applied the correct standard
on commonality. For this inquiry, we apply de novo review. Carpenter v.
Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006).
To prevail on the Title IX claims, each class member had to prove a
reasonable expectation of competition for girls’ teams. See Roberts v.
Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993). So each
class member appeared to share this burden.
Despite the apparent sharing of this burden, the district court
reasoned that differences existed on the level of interest at each school.
But these variations would affect a separate inquiry, predominance—not
commonality. See Naylor Farms, Inc. v. Chaparral Energy, LLC, 923 F.3d
779, 789 (10th Cir. 2019) (discussing the predominance inquiry).
Predominance wasn’t required because the girls were seeking certification
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under Fed. R. Civ. P. 23(b)(2). Adamson v. Bowen, 855 F.2d 668, 676 (10th
Cir. 2010).
The district court erred by focusing on differences between schools
rather than the need for all class members to prove a reasonable
expectation of competition within the three districts. The girls argued in
district court and on appeal that competition would be reasonable if the
districts had enough high schools able to participate. According to the
girls, that inquiry involved consideration of the girls’ collective interest
within the three districts.
Neither the district court nor the defendants have addressed the need
to consider the collective interest in girls’ football throughout the three
districts. That consideration would appear to affect the ability of each class
member to prove a reasonable expectation of competition. For example,
even if several high schools could fill rosters for girls-only teams, those
teams needed opponents. To determine the availability of enough
opponents, a court would need to consider the collective interest
throughout the three districts.
On its face, this consideration would appear common to each class
member. The district court overlooked the potential commonality of this
inquiry based on other inquiries that might vary from school to school. The
district court thus erred by applying the wrong standard for commonality.
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The school districts argue that any error in denying certification
would be harmless “because the district court properly ruled against the
[girls] on the merits of the [individual] Title IX claims.” School Districts
Appellees’ Answer Br. at 34. But we can’t consider this argument.
Because the individual Title IX claims are moot, the only remaining
Title IX claims are those asserted by the proposed class. And we can’t
reach the merits of the Title IX claims until the proposed class is certified.
See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400 n.7 (1980) (“A
named plaintiff whose claim expires may not continue to press the appeal
on the merits until a class has been properly certified.”); see also Pederson
v. La. State Univ., 213 F.3d 858, 867, 872 n.14 (5th Cir. 2000); 1 see
generally Gayle v. Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297, 305
(3d Cir. 2016) (“[S]o long as a plaintiff files a motion to certify a class
when he still has a live claim, the mooting of that claim while the motion
is pending precludes the court from reaching the merits but does not
preclude it from deciding the certification motion.”).
The district court decided the merits of the Title IX claims by the
girls individually but not by the proposed class. And we can’t reach the
1
There a group of female college students sued under Title IX,
seeking an injunction. But they graduated during the course of the
litigation. They appealed, but the Fifth Circuit concluded that (1) the
individual claims had become moot when the students graduated college
and (2) the appeals court could consider the denial of class certification
but not the merits. Pederson, 213 F.3d at 867, 872 n.14.
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merits of the proposed class’s claims until a Title IX class is certified.
Because no class has been certified, we can’t find the error harmless based
on the merits of the underlying Title IX claims.
The Supreme Court addressed a similar issue in U.S. Parole
Commission v. Geraghty, 445 U.S. 388 (1980). There a federal prisoner
sued individually and on behalf of a proposed class, challenging the
validity of federal parole guidelines. Id. at 393. The district court denied
class certification and granted summary judgment to the defendants. Id.After the appeal was filed, the prisoner completed his sentence, rendering
his individual claims moot. Id. at 394. But the issue on class certification
remained. The Court of Appeals held that the district court had erred in
denying certification and considered the merits to avoid “improvidently
dissipat[ing] judicial effort.” Id. at 394–95 (quoting U.S. Parole Comm’n
v. Geraghty, 579 F.2d 238, 254 (3d Cir. 1978)).
The Supreme Court concluded that
 the Court of Appeals had obtained jurisdiction only on the
challenge involving denial of class certification and
 consideration of the merits would be “inappropriate.”
Id. at 404, 408. For these conclusions, the Supreme Court explained that if
the Court of Appeals were to uphold the denial of certification, “the
controversy on the merits [would] be moot.” Id. at 408; see also id. at 404(stating that if the court determines that class certification was properly
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denied, “the claim on the merits must be dismissed as moot”). As a result,
the Supreme Court cautioned that the Court of Appeals couldn’t consider
the merits of the proposed class’s claims until the district court had an
opportunity to revisit certification. Id. at 404.
Given the Supreme Court’s caution about considering the merits of
the proposed class’s claims prior to certification, we must confine our
review to the denial of class certification. That ruling rested on the wrong
standard, so we must reverse and remand for reconsideration of class
certification on the Title IX claims.
3. The district court didn’t err by finding that the defendants’ coed
football program had satisfied the Equal Protection Clause.
The district court certified a class on the equal protection claims and
conducted a bench trial. After the evidence closed, the court found that
 the defendants’ football program was facially neutral and
 the defendants had no discriminatory purpose.
We uphold these findings.
The level of scrutiny varies based on the nature of the disputed
policy. When the policy is facially neutral, courts consider only the
existence of a rational basis; when the policy bears facial classifications
based on gender, courts require an “exceedingly persuasive justification.”
See Price-Cornelison v. Brooks, 524 F.3d 1103, 1110 (10th Cir. 2008)
(applying the test for a rational basis when the policy is facially neutral);
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Kirchberg v. Feenstra, 450 U.S. 455, 461 (1982) (stating that an
“exceedingly persuasive justification” is required for a program that
discriminated based on gender).
To determine whether the policy was facially neutral, we consider the
policy’s treatment of gender. The policy drew no distinction based on
gender, allowing girls and boys to play on the same football teams. So the
district court properly concluded that the policies were facially neutral.
The girls insist that
 they received less playing time on the coed teams than they
would have had on an all-girls team and
 with more playing time, the girls could have developed
valuable skills.
But the advantages of a girls-only league wouldn’t cast doubt on the facial
neutrality of coed teams.
The girls point to cases where institutions discriminated against
female or Black applicants by relegating them to inferior institutions. See
United States v. Virginia, 518 U.S. 515, 520–21 (1996) (excluding women
from a prestigious state military institution but admitting them to an
institution that did not provide the same rigorous educational
environment); Sweatt v. Painter, 329 U.S. 629, 634–35 (1950) (excluding
Black applicants from a law school but permitting them to apply to a law
school that did not provide the same quality of education or career
prospects). But the defendants haven’t excluded the girls; they can play
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alongside boys on the same teams. Given the ability of girls and boys to
play on the same teams, the district court didn’t err in regarding the policy
as facially neutral.
The girls point out that the Constitution sometimes permits separate
programs for girls and boys. Certainly the Constitution doesn’t bar
separation of all athletic programs for girls and boys. But just because the
Constitution permits separate teams for girls and boys doesn’t mean that
the Constitution requires separate teams. The question here is not whether
the Constitution would have permitted a girls-only team, but whether a
program is facially neutral when it allows girls and boys to participate on
the same team. That program is facially neutral even if the defendants
could have separated the football programs for girls and boys.
Though the policy itself was facially neutral, we’d intensify our
scrutiny if the policy had masked a discriminatory purpose. Vill. of
Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266–68
(1977). Alleging such a purpose, the plaintiffs point to evidence that
 girls participated in football less frequently than boys,
 the defendants had discriminated against girls in the past, and
 the defendants had offered girls’ teams in other sports.
Though boys showed greater interest in football than girls, the
district court found no policy or practice discouraging girls from playing
football. Some girls explained that they hadn’t played football because
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they were too small and could have obtained injuries, pointing out that
more girls might play if they were to compete against girls-only teams. But
the court could reasonably question the number of girls that would play
even when competing against girls-only teams.
The girls also refer to the availability of girls’ teams in other sports.
According to the girls, the defendants’ discriminatory purpose is reflected
in the availability of girls-only teams in other sports. The defendants
countered with evidence of limited resources. For example, some evidence
suggested that the creation of girls-only teams would require schools to
take fields away from other sports. That evidence allowed a reasonable
factfinder to reject a discriminatory purpose.
The girls also argue that the district court’s explanation itself
improperly relied on gendered stereotypes about “cultural attitudes.”
Appellants’ App’x vol. 2, at 529. The district court did not define “cultural
attitudes,” and the girls characterize this term as a stereotype about girls’
disinterest in sports.
The girls’ characterization rests on speculation. The court more
likely was referring to the evidence that boys had shown greater interest in
playing football than girls. The court’s reliance on this evidence didn’t
suggest an improper stereotype.
The district court could have relied more heavily on the girls’
evidence of a discriminatory purpose. But we consider only whether the
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district court clearly erred. Curtis v. Okla. City Pub. Schs. Bd. of Educ.,
147 F.3d 1200, 1217 (10th Cir. 1998). In our view, the district court didn’t
clearly err. Even if the district court could have found a discriminatory
purpose, a contrary finding was at least permissible. The high schools
allowed every girl to play alongside boys on the football teams. Even
though the girls might have benefited from having their own teams, the
district court had a reasonable evidentiary basis to reject the allegation of
a discriminatory purpose.
4. Conclusion
Because the girls have turned eighteen, we substitute them for their
parents. The girls’ individual claims became moot when they graduated
high school. But we still have jurisdiction to address the class-related
claims.
On the Title IX claims, the district court erred by denying class
certification. In denying certification, the court relied on variations
between schools. But the element at issue—commonality—required the
presence of only a single legal or factual issue in common among members
of the class. And here, each class member shared a factual issue involving
the reasonableness of an expectation of competition. So we reverse and
remand the Title IX claims for reconsideration of commonality and the
other requirements for class certification.
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On the equal protection claims, we affirm the judgment for the
defendants. The district court didn’t err in finding a facially neutral policy
and rejecting the allegation of a discriminatory purpose. Girls could play
alongside boys, and the coed programs didn’t deprive the girls of an
opportunity otherwise available to boys.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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