The opinion
August 06, 2024
In the United States District Court Nathan Ochsner, Clerk
for the Southern District of Texas
GALVESTON DIVISION
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No. 3:24-cv-12
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DARRYL GEORGE, ET AL., PLAINTIFFS,
v.
GREG ABBOTT, ET AL., DEFENDANTS.
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MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
There are three motions before the court: a motion to invoke §
101.106(e) of the Texas Civil Practice and Remedies Code, and two motions
to dismiss. Dkts. 55, 56, 60. The court will grant the motion to invoke §
101.106(e) and one of the motions to dismiss, Dkts. 55, 60, and will grant in
part and deny in part the remaining motion to dismiss, Dkt. 56.
I. Background
Darryl George (“George”) has been in in-school suspension (“ISS”)
since August because his hair violates the school’s dress and grooming policy.
The policy provides, in relevant part:
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Male students’ hair will not extend, at any time, below the
eyebrows, or below the ear lobes when let down. Male students’
hair must not extend below the top of a t-shirt collar or be
gathered or worn in a style that would allow the hair to extend
below the top of a t-shirt collar, below the eyebrows, or below the
ear lobes when let down.
Dkt. 54 ¶ 23. George’s dreadlocks (“locs”), when let down, would extend
“below the top of a t-shirt collar, below the eyebrows, or below the ear lobes.”
George and his mother, Darresha (collectively, “the plaintiffs”), sued
Barbers Hill Independent School District (“BHISD”) and three individuals
employed by BHISD (collectively, “the District”), Governor Greg Abbott, and
Attorney General Ken Paxton. The plaintiffs assert various claims under §
1983, Title VI, Title IX, and state law.1
The District first moved to invoke § 101.106(e) of the Texas Civil
Practice and Remedies Code, Dkt. 55, followed by a motion to dismiss the
plaintiffs’ remaining claims under Rule 12(b)(1) and (6), Dkt. 56. Governor
Abbott and Attorney General Paxton (collectively, “the State Defendants”)
also moved to dismiss the plaintiffs’ claims under Rule 12(b)(1) and (6). Dkt.
60.
1 Darresha George brings only state-law claims. For internal consistency,
however, the court will refer collectively to “the plaintiffs” when discussing all
claims.
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II. Legal Standards
A. 12(b)(1)
A court should grant a motion to dismiss for lack of subject-matter
jurisdiction if the court “lacks the statutory or constitutional power to
adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). “[T]he burden of establishing federal
jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Federal courts have jurisdiction
over a claim between parties only if the plaintiff presents an actual case or
controversy. U.S. Const. art. III, § 2, cl. 1; Okpalobi v. Foster, 244 F.3d 405,
425 (5th Cir. 2001) (en banc). “The many doctrines that have fleshed out that
‘actual controversy’ requirement—standing, mootness, ripeness, political
question, and the like—are ‘founded in concern about the proper—and
properly limited—role of the courts in a democratic society.’” Roark &
Hardee LP v. City of Austin, 522 F.3d 533, 541–42 (5th Cir. 2008) (quoting
Allen v. Wright, 468 U.S. 737, 750 (1984)).
To test whether the party asserting jurisdiction has met its burden, a
court may rely upon: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
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disputed facts.” Barrera–Montenegro v. United States, 74 F.3d 657, 659
(5th Cir. 1996). “When standing is challenged on the basis of the pleadings,
[a court] must accept as true all material allegations of the complaint and
construe the complaint in favor of the complaining party.” Ass’n of Am.
Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550 (5th Cir.
2010) (cleaned up).
B. 12(b)(6)
To survive a motion to dismiss for failure to state a claim, a plaintiff
must plead facts sufficient to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the
pleaded facts allow the court to reasonably infer that the defendant is liable
for the alleged conduct. Id. In reviewing the pleadings, a court accepts all
well-pleaded facts as true, “construing all reasonable inferences in the
complaint in the light most favorable to the plaintiff.” White v. U.S.
Corrections, L.L.C., 996 F.3d 302, 306–07 (5th Cir. 2021). But the court does
not accept “[c]onclusory allegations, unwarranted factual inference, or legal
conclusions” as true. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.
2005).
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C. Section 1983
42 U.S.C. § 1983 provides a private right of action for the deprivation
of rights, privileges, and immunities secured by the constitution or laws of
the United States. “To state a claim under § 1983, a plaintiff must (1) allege a
violation of rights secured by the Constitution or laws of the United States
and (2) demonstrate that the alleged deprivation was committed by a person
acting under color of state law.” Piotrowski v. City of Houston, 51 F.3d 512,
515 (5th Cir. 1995). A complaint under Section 1983 must also allege that the
constitutional or statutory deprivation was intentional or due to deliberate
indifference and not the result of mere negligence. Farmer v. Brennan, 511
U.S. 825, 826 (1994). A claim under Section 1983 may be brought against
government employees in their individual or official capacities or against a
governmental entity. Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.
2009) (citing Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403 (1997)).
1. Monell Liability
Establishing municipal liability under Section 1983, commonly called
Monell liability, requires proof of three elements: (1) an official policy or
custom (2) that a municipal policymaker promulgated (3) and that was the
“moving force” behind the violation of a constitutional right. Webb v. Town
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of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019); Piotrowski v. City of
Houston (“Piotrowski II”), 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell
v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). Monell liability cannot
be predicated on respondeat superior. Piotrowski II, 237 F.3d at 578.
Instead, “it is when the execution of a government’s policy or
custom . . . inflicts the injury that the government as an entity is responsible
under § 1983.” Monell, 436 U.S. at 694. Therefore, “isolated unconstitutional
actions by municipal employees will almost never trigger [Monell] liability.”
Piotrowski II, 237 F.3d at 578 (citing Bennett v. City of Slidell, 728 F.2d 762,
768 n.3 (5th Cir. 1984)); McKee v. City of Rockwall, 877 F.2d 409, 415 (5th
Cir. 1989).
III. Analysis
A. Motion to Invoke § 101.106(e)
The District first moves to dismiss the plaintiffs’ state law tort claims
against the individual employees—Greg Poole (superintendent of the
District), Lance Murphy (principal of Barbers Hill High School), and Ryan
Rodriguez (assistant principal of Barbers Hill High School)—pursuant to the
Election of Remedies provision of the Texas Tort Claims Act (“TTCA”). Dkt.
55. The court will grant the motion.
The provision’s relevant sections provide:
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(a) The filing of a suit under this chapter against a governmental
unit constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff
against any individual employee of the governmental unit
regarding the same subject matter.
(e) If a suit is filed under this chapter against both a
governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the
governmental unit.
Tex. Civ. Prac. & Rem. Code § 101.106(a), (e).
Because the plaintiffs elected to sue the District and the individual
employees for the same subject matter, the court dismisses the plaintiffs’
state law tort claims against the individual employees.
B. The State Defendants’ Motion to Dismiss
The State Defendants move to dismiss the plaintiffs’ claims for a
variety of reasons: (1) the plaintiffs lack standing to sue; (2) the plaintiffs’
federal claims against the State Defendants in their official capacities are
barred by the doctrine of sovereign immunity; (3) the plaintiffs’ federal
claims against the State Defendants in their individual capacities are barred
by the doctrine of qualified immunity; and (4) the plaintiffs’ state law claims
are barred by the TTCA. Dkt. 60 at 7–8.
“When a Rule 12(b)(1) motion is filed in conjunction with other Rule
12 motions,” as is the case here, “the court should consider the Rule 12(b)(1)
jurisdictional challenge before addressing any attack on the merits” of the
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case. Willoughby v. U.S. ex rel. U.S. Dep’t of the Army, 730 F.3d 476, 479
(5th Cir. 2013). Therefore, the court begins its analysis with standing.
The “irreducible constitutional minimum of standing contains three
elements”: (1) “the plaintiff must have suffered an injury in fact—an invasion
of a legally protected interest which is (a) concrete and particularized . . . and
(b) actual or imminent, not conjectural or hypothetical”; (2) “there must be
a causal connection between the injury and the conduct complained of—the
injury has to be fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third
party not before the court”; and (3) “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation
marks and citations omitted) (alterations in original).
The State Defendants argue: (1) the plaintiffs do not plausibly allege an
injury-in-fact traceable to any allegedly unlawful act by Governor Abbott or
General Paxton and (2) the plaintiffs’ alleged injuries will not and cannot be
redressed by the State Defendants upon a favorable decision by this court.
Dkt. 60 at 7–8. The court agrees. The plaintiffs’ alleged injuries result
entirely from the actions of the District. In fact, the plaintiffs “have wholly
failed to establish that Governor Abbott and General Paxton were even aware
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of [the p]laintiffs’ existence prior to the filing of the present lawsuit.” Id. at
18. No injunctive relief against the State Defendants would redress any of the
alleged injuries.
Because the court finds that the plaintiffs lack standing for these
claims, the court does not need to analyze the State Defendants’ other
reasons for dismissal. The plaintiffs’ claims against the State Defendants are
dismissed.
C. The District’s Motion to Dismiss
The District moves to dismiss the plaintiffs’ claims in their entirety.
The court will address each claim in turn.
1. Individual Employees
The court begins with the claims against the individual employees—
Poole, Murphy, and Rodriguez. The District argues that qualified immunity
bars these claims. Dkt. 56 at 36–37. The court agrees.
“The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been
believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011).
“This immunity protects all but the plainly incompetent or those who
knowingly violate the law, so we do not deny immunity unless existing
precedent must have placed the statutory or constitutional question beyond
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debate.” Id. at 371 (internal quotation marks and citations omitted). A
“plaintiff seeking to defeat qualified immunity must show: (1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.” Id. (internal quotation
marks and citations omitted).
To show that the right was “clearly established” at the time of the
challenged conduct, the plaintiffs assert that “discrimination laws are well-
settled.” Dkt. 62 at 22–23. This conclusory statement is not enough. The
plaintiffs fail to cite to any Fifth Circuit or Supreme Court authority that
clearly establishes that George has a legal right to wear his hair in a particular
style or that the District’s policy undoubtedly violates an anti-discrimination
law. Further, the plaintiffs make no effort to distinguish the individual
defendants’ alleged unconstitutional conduct from the behavior of the other
defendants. The plaintiffs merely respond by alleging that “the facts tell you
exactly who did what and exactly what they did.” Id. at 22.
Because the court finds that the individual employees are entitled to
qualified immunity as to all federal claims, these claims are dismissed.2
2 The plaintiffs’ state-law claims against the individual defendants are also
dismissed pursuant to the District’s invocation of § 101.106(e) of the Texas Civil
Practice and Remedies Code. See III.A supra.
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2. Equal Protection
The plaintiffs allege two Equal Protection claims: (1) sex
discrimination and (2) race discrimination.
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction the
equal protection of the laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202,
216 (1982)). “To establish an equal protection claim, [the plaintiff] must first
show that ‘two or more classifications of similarly situated persons were
treated differently.’” Duarte v. City of Lewisville, Texas, 858 F.3d 348, 353
(5th Cir. 2017) (quoting Gallegos-Hernandez v. United States, 688 F.3d 190,
195 (5th Cir. 2012)). “Once that threshold element is established, the court
then determines the appropriate level of scrutiny to apply.” Id.
a. Sex Discrimination
The pivotal question underlying the plaintiffs’ sex-discrimination
claim is the application of a 1972 Fifth Circuit opinion, Karr v. Schmidt, and
Karr’s influence on the appropriate level of scrutiny to apply. 460 F.2d 609
(5th Cir. 1972). The District argues that Karr forecloses this court’s review
and dictates that the claim need only survive rational-basis review. Dkt. 56
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at 19–20. The plaintiffs, on the other hand, argue that Karr is not applicable
and that the claim should be analyzed under intermediate scrutiny. Dkt. 62
at 8–9.
In Karr, the Fifth Circuit examined whether there is “a constitutionally
protected right to wear one’s hair in a public high school in the length and
style that suits the wearer” and concluded that there is “no such right [] to be
found within the plain meaning of the Constitution.” 460 F.2d at 613. The
court reasoned that because the classification was “not based on the ‘suspect’
criterion of race or wealth which would require application of the ‘rigorous’
standard of equal protection scrutiny,” the classification met the rational-
basis standard of review and was valid. Id. at 616. Based on “the very minimal
standard of judicial review to which these [hair-length] regulations are
properly subject in the federal forum,” the court “announce[d] a per se rule
that such regulations are constitutionally valid.” Id. at 617.
Admittedly, the facts of this case are similar to those in Karr. But the
court agrees with the plaintiffs: Karr does not foreclose this court’s review.
First, Karr did not involve a constitutional sex-discrimination claim or any
other claim requiring heightened scrutiny; the court, therefore, applied
rational-basis review. While the low threshold of review lent itself well to the
court’s establishment of its per se rule in that case, Karr’s per se rule is
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inapplicable here precisely because this case involves a constitutional sex-
discrimination claim that requires a heightened standard of review.
In fact, Karr addressed this exact difference. Karr distinguished a
Seventh Circuit case where the court held that hair regulations specific to
male students “are violative of the Equal Protection clause because they
apply solely to male students and not to female students” and stated that
“under the rule we announce today, federal courts would still be permitted
to entertain an action alleging discriminatory enforcement of a grooming
code.” Id. at 616, 617 n.26. That distinction is exactly what the plaintiffs
allege in this case.
Second, because Karr was decided in 1972, it predates the long-
standing precedent that all sex-based classifications are afforded heightened
scrutiny. At best, Karr was decided at a time when determining whether to
treat sex as a quasi-suspect class was in flux. While “case law evolving since
1971 reveals a strong presumption that gender classifications are invalid,”
United States v. Virginia, 518 U.S. 515, 532 (1996) (internal quotation marks
and citations omitted), the Supreme Court remarked that it was not until
1976, in Craig v. Boren, when it “announced that ‘[t]o withstand
constitutional challenge, . . . classifications by gender must serve important
governmental objectives and must be substantially related to achievement of
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those objectives.’” Id. at 558 (Rehnquist, C.J., concurring) (quoting Craig v.
Boren, 429 U.S. 190, 197 (1976)). The Court “ha[s] adhered to that standard
of scrutiny ever since.” Id. That pronouncement came four years after Karr
was decided.
The court acknowledges the District’s argument that “[c]onstitutional
jurisprudence is very different in the school context.” Dkt. 74 at 17, lines 13–
19 (Hearing Transcript). But there is nothing to suggest that this unique
context changes the applicable standard. To the contrary, the Supreme Court
recently reiterated that “heightened scrutiny . . . attends ‘all gender-based
classifications’”—not merely classifications outside of the school context.
Sessions v. Morales-Santana, 582 U.S. 47, 57 (2017) (quoting J.E.B. v.
Alabama ex rel. T. B., 511 U.S. 127, 136 (1994) (emphasis added)).
Because the court finds that Karr does not foreclose judicial review and
that intermediate scrutiny is the appropriate standard to apply, it now turns
to the District’s stated rationales for the policy. The District argues that “even
if a heightened standard of review did apply, [it] easily meets it,” because its
“dress code—which includes the hair-length restriction for male students—
is established to teach grooming and hygiene, instill discipline, maintain a
safe and positive learning environment, prevent disruption, avoid safety
hazards, and teach respect for authority.” Dkt. 56 at 20 (internal quotation
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marks and citations omitted). While those reasons may provide insight for
the District’s motivation to have a dress code, they provide no support for the
narrower question that forms the basis of this claim: what is the rationale for
the dress code’s distinction between male and female students?
Because the District does not provide any reason for the sex-based
distinctions in its dress code, the claim survives this initial stage.
b. Race Discrimination
The District argues that this claim must be dismissed because the
plaintiffs (1) fail to establish that George’s constitutional right to be free from
racial discrimination was violated by an official policy and (2) “fail[] to
attribute any of the actions he complains of to any Board member.” Dkt. 56
at 22.
In the briefing, the plaintiffs concede that the District’s hair-length
restriction is facially race-neutral.3 Dkt. 62 at 11. Therefore, to prevail on this
3 At the hearing, however, counsel for the plaintiffs argued that the court is
“looking at a case where [it] ha[s] a grooming and dress code that is not facially
neutral. [The District] argue[s] it’s facially neutral. It appears to be
facially neutral. . . . It’s couched as facially neutral; but if you get up in there, it’s
not. . . . When we start talking about the length requirement we’re not on the right
track. . . . It’s not facially neutral. And that’s an argument for another day, but
legally [the court] can decide that.” Dkt. 74 at 22, lines 1–6; 23, lines 20–25; 24,
lines 10–12 (Hearing Transcript). The plaintiffs’ counsel continues that “[i]t’s not
facially neutral” but “[i]t does take a little bit of application. . . . We do need to look
at . . . how they apply it.” Id. at 24, lines 10–14. If the court needs to look at the
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claim, they must plead that the policy is being applied in a disparate manner.
To meet this pleading requirement, the plaintiffs must establish Monell
liability and “show that his constitutional rights were violated as a result of
the [District]’s official policy.” Johnson v. Moore, 958 F.2d 92, 93 (5th Cir.
1992). The plaintiffs have not done so.
“Official policy is ordinarily contained in duly promulgated policy
statements, ordinances[,] or regulations. But a policy may also be evidenced
by custom” which is shown by “a persistent, widespread practice of [District]
officials or employees, which, although not authorized by officially adopted
and promulgated policy, is so common and well-settled as to constitute a
custom that fairly represents [District] policy.” Piotrowski II, 237 F.3d 567,
579 (5th Cir. 2001) (quoting Webster v. City of Houston, 735 F.2d 838, 841
(5th Cir. 1984)). The pattern of prior incidents “must have occurred for so
long or so frequently that the course of conduct warrants the attribution to
[the Board] of knowledge that the objectionable conduct is the expected,
accepted practice of [District employees].” Peterson v. City of Fort Worth,
588 F.3d 838, 851 (5th Cir. 2009) (quoting Webster, 735 F.2d at 842).
policy’s application—in other words, as applied—it is—by definition—facially
neutral.
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The court agrees with the District—the plaintiffs have not shown a
persistent, widespread practice of disparate, race-based enforcement of the
policy at issue.4 At most, the plaintiffs allege only two instances: the
allegations underlying George’s case and those underlying the Arnold case
also pending in this court. Arnold v. Barbers Hill Indep. Sch. Dist., [4:20-cv-
1802] (Hanks, J.). But these two instances alone are insufficient to establish
a pattern of conduct going on “for so long or so frequently” that it evinces a
“persistent, widespread practice.” Piotrowski II, 237 F.3d at 579.
The plaintiffs state in their response that the “inequitable enforcement
of the policy against those with protective styles is direct insight to the fact
that BHISD means to racially discriminate against those who [don]
protective styles.” Dkt. 62 at 11 (emphasis in original). But without more,
such an allegation is inadequate. The only alleged evidence of disparate,
race-based treatment comes from a series of conclusory statements,
including that: (1) George was singled out for his locs, “despite the hair[-
4 In their response, the plaintiffs argue that “it is not until the summary[-
]judgment stage,” after discovery, “that [they] must show a substantial pattern of
incidents” and state that the court must wait until after discovery to determine if
the plaintiffs can prove their claims. Dkt. 62 at 19. This is incorrect. While the
plaintiffs are not required to prove their claims at this stage, they must still plead
facts sufficient to meet all the required elements—one of which is a course of
conduct demonstrating an expected, accepted practice.
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]length requirement being [the District’s] pretextual reason,” for putting him
in ISS; (2) the District has “only enacted and[/]or applied [its] hair[-]length
grooming policy to black males and/or black males with locs, braids, twists,
or protective hairstyles” because its “policy was only made to discriminate
and/or be applied to black males and/or black males with locs, braids,
twists[,] and protective hairstyles;” and (3) “several non-black male students
have come forward and have been seen with hair that is against the dress and
grooming code and these males have not been disciplined or accosted” by the
District. Dkt. 54 ¶¶ 25, 33. These conclusory allegations are insufficient to
support a claim of intentional race discrimination.5
The plaintiffs have failed to establish Monell liability. As the District
points out, the plaintiffs’ response is devoid of any argument responding to
the lack of Monell analysis—specifically, that George’s constitutional right to
be free from racial discrimination was violated by an official policy directly
5 Again, the plaintiffs allege in their response that the court “must wait until
discovery before being able to determine whether or not” this is a viable claim. Dkt.
62 at 18. They continue: “The statistics surrounding the punishment of students as
it relates to the hair[-]length policy and staggering effect of the implementation of
the hair[-]length policy has on blacks will prove the discrimination; but [the
p]laintiff[s] only needed to plead it and do[] not need to prove it yet.” Id. The
plaintiffs are correct that the facts do not need to be proven yet. But to obtain
further discovery, the plaintiffs must get past this initial stage which requires the
pleading of facts sufficient to state a plausible claim—not just conclusions.
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attributable to the District’s Board of Trustees and not mere actions by
individual employees.6 Dkt. 64 at 16. That is fatal to the plaintiffs’
racial-discrimination claim. The plaintiffs focus only on the actions of
individual BHISD employees—which is the kind of respondeat superior
liability that Monell explicitly prohibits: “Liability under 42 U.S.C. § 1983
may not be imposed on a government entity on a theory of respondeat
superior for the actions of government employees.” Johnson, 958 F.2d at 93
(citing Monell, 436 U.S. at 690–94).
For these reasons, the plaintiffs’ Equal Protection race-discrimination
claim is dismissed.
6 The plaintiffs attempt to respond, stating that they “clearly ple[a]d[ed] that
the dress and grooming code was an official policy of [the District] and do[] not
need to plead anything regarding ‘the board of trustees.’” Dkt. 62 at 18. But this is
incorrect. “[T]o sustain liability under § 1983, the [plaintiffs] must point to more
than the actions of a [B]HISD employee, they must identify a policymaker with
final policymaking authority and a policy that is the ‘moving force’ behind the
alleged constitutional violation.” Rivera v. Houston Indep. Sch. Dist., 349 F.3d
244, 247 (5th Cir. 2003). “Texas law unequivocally delegates to the Board ‘the
exclusive power and duty to govern and oversee the management of the public
schools of the district.’” Id. (citing Tex. Educ. Code § 11.151(b)). The only facts that
the plaintiffs assert against the Board are that it enacted a facially race-neutral
policy. The District is right—“the existence of a facially race-neutral policy simply
cannot be the moving force of a constitutional inquiry.” Dkt. 56 at 23.
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3. Due Process
The plaintiffs allege a due-process claim in relation to three events: (1)
George’s removal to ISS, or other alternative learning placement; (2) the
District’s alleged “stalling” in providing him a Level III grievance appeal; and
(3) the District’s failure to timely process his requests for educational
records. Dkt. 54 ¶¶ 32, 35–37, 46.
“To state a cause of action under § 1983 for violation of the Due Process
Clause, plaintiffs must show that they have asserted a recognized liberty or
property interest within the purview of the Fourteenth Amendment, and that
they were intentionally or recklessly deprived on that interest, even
temporarily, under color of state law.” Doe v. Taylor Indep. Sch. Dist., 15
F.3d 443, 450 (5th Cir. 1994) (internal quotation marks and citation
omitted).
The plaintiffs have not made such a showing. Transferring a student to
an alternative learning placement, including ISS or the District’s Alternative
Education Program, does not deprive George of any property or liberty
interest. Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26–
27 (5th Cir. 1997). Similarly, the due-process claim premised on the District’s
alleged “stalling” in providing George a Level III grievance appeal fails for
the same reason—there is no substantive or procedural due-process right to
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such a hearing.7 Finally, the due-process claim based on the District’s alleged
“stalling and refus[al] to issue a date for [George’s] educational records
challenge hearing,” Dkt. 54 ¶ 37, fails for multiple reasons. First, the
plaintiffs do not identify what is being challenged in George’s educational
records. Second—and perhaps more importantly—the Federal Educational
Rights and Privacy Act, which governs educational records, does not create
a private right of action.8 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
As a result, the plaintiffs’ due-process claim fails as to all three alleged
events.
4. Federal Abridgment of Bodily Integrity
The District argues that no such claim exists. Dkt. 56 at 28. The
plaintiffs do not provide any response or clarification.9 A failure to respond
7 The plaintiffs do not substantively respond to this argument. They simply
state that the District “den[ied George] due process because [it] refuse[d] to allow
him an exemption for race in the same way that [it] allow[s] exemptions for
religion.” Dkt. 62 at 20. Confusingly, the plaintiffs go on to state: “[t]o date, [the
d]efendant has not been given a level three grievance hearing. That is why he
complains.” Id. The court assumes that “the [d]efendant” is actually a reference to
the plaintiff—George. But even making that leap, however, does not save this claim
from the plaintiffs’ conclusory argument.
8 The plaintiffs fail to provide any response to this argument.
9 In fact, if anything, the plaintiffs create further confusion. In the complaint,
the plaintiffs allege this claim under the Fourteenth Amendment. Dkt. 54 ¶ 51.
However, in their response, the plaintiffs lump this claim in with their First
Amendment claim, titling the section: “1st Amendment Claim/Federal Abridgment
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will be taken as a representation of no opposition. S.D. Tex. Local R. 7.4. The
court dismisses this claim.
5. First Amendment
The District moves to dismiss this claim, arguing that “[h]air length
and style don’t objectively communicate any message enjoying First
Amendment protection.” Dkt. 56 at 29. Tellingly, when the court directly
asked the plaintiffs’ counsel to “point . . . to any case law holding that . . . hair
length is protected as expressive conduct under the First Amendment,” she
replied: “I cannot.” Dkt. 74 at 26, lines 18–25 (Hearing Transcript).
Instead, counsel argued that this is a “case of first precedence with
respect to this” and asked the court to “reassess it and to look at it and to see
if it will apply in this particular instance.”10 Id. at 27, lines 2–9, 13–14. While
the court appreciates counsel’s candor, it declines to do so in this case. The
court acknowledges that the plaintiffs pleaded that George’s locs are “an
outward expression of his Black identity and culture.” Dkt. 54 ¶ 32. But as
the Supreme Court advised: “[w]e cannot accept the view that an apparently
Claim.” Dkt. 62 at 20. Apart from mentioning the name of this novel claim in a
title, however, the plaintiffs do not provide any discussion or reference to this
claim.
10 In the briefing, the plaintiffs request the court to wait until after discovery
to dismiss this claim. Dkt. 62 at 21. The court declines that request.
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limitless variety of conduct can be labeled ‘speech’ whenever the person
engaging in the conduct intends thereby to express an idea.” United States v.
O’Brian, 391 U.S. 367, 376 (1968).
Further, this claim fails for an alternative reason: yet again, the
plaintiffs fail to establish Monell liability. In its motion to dismiss, the
District argues that the plaintiffs fail to plead that the Board had actual or
constructive knowledge of any policy or pattern of similar violations of
“highly similar violations of Black students’ constitutional rights to express
themselves through the length or style of their hair.” Dkt. 56 at 30. The
plaintiffs do not address this argument in their response. And again, a failure
to respond will be taken as a representation of no opposition. S.D. Tex. Local
R. 7.4. The First Amendment claim is dismissed.
6. Statutory Claims
The plaintiffs also bring claims under Title VI and Title IX requesting
compensatory damages and injunctive and declaratory relief. Dkt. 54 at 13–
14. These claims fail.
Title VI provides: “No person in the United States shall, on the ground
of race, color, or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42 U.S.C § 2000d. Title IX
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provides: “No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance.”11 20 U.S.C. § 1681(a).
First, mental-anguish damages are not recoverable under statutes that
were enacted pursuant to the Spending Clause—such as Title VI or Title IX.
Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 217–30 (2022).
Therefore, to the extent that the plaintiffs bring claims for mental-anguish
damages under these two statutes, such relief is not permitted.
Second, to receive compensatory damages with respect to the Title VI
claim, the plaintiffs needed to plead conduct indicative of intentional racial
discrimination.12 Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 397 (5th
11 The District also argues that Title IX does not protect or apply to hair
length. Dkt. 56 at 33. As the District notes in its reply, the plaintiffs fail to
substantively respond to this argument. Dkt. 64 at 15–16.
12 The plaintiffs also attempt to bring a Title VI claim on a theory of disparate
impact, alleging that the defendants’ “conduct as alleged . . . constitute[s] the
promotion of disparate impact (also called adverse impact) discrimination under
Title VI” because the District “adopted a procedure or engaged in a practice that
has a disproportionate, adverse impact on individuals who are distinguishable
based on their race[] and sex—even if [the District] did not intend to discriminate.”
Dkt. 54 ¶ 43. That claim fails as a matter of law. “[T]o receive compensatory
damages, a Title VI plaintiff must prove discriminatory intent,” not mere impact.
Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015) (emphasis
added).
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Cir. 1996). They did not do so. The plaintiffs pleaded only conclusory
allegations and the existence of a facially race-neutral policy. In fact, they
affirmatively pleaded that the District may not have intended to
discriminate, stating the District “adopted a procedure or engaged in a
practice that has a disproportionate, adverse impact on individuals who are
distinguishable based on their race[] and sex—even if [the District] did not
intend to discriminate.” Dkt. 54 ¶ 43 (emphasis added). This statement
negates any assertion of intentional race discrimination.
Finally, the plaintiffs’ request for injunctive and declaratory relief
under Title VI or Title IX fails for the reasons discussed below. See III.C.8
infra. The court dismisses these statutory claims.
7. State-Law Claims
The District argues that it is immune from the plaintiffs’ state-law
claims because of governmental immunity. Dkt. 56 at 39–42. The court
agrees.
As a matter of law, a Texas independent school district is a local
government entity. Tex. Educ. Code §§ 11.051–11.152. “To assert a state[-]law
claim against a governmental entity, a plaintiff bears the burden to plead and
affirmatively demonstrate the court’s subject[-]matter jurisdiction by
alleging a valid waiver of governmental immunity.” Dkt. 56 at 39 (citing Tex.
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Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). “The party suing
the governmental entity must establish the state's consent, which may be
alleged either by reference to a statute or to express legislative permission.”
Jones, 8 S.W.3d at 638.
a. Tort Claims
As to the plaintiffs’ state law tort claims, including breach of fiduciary
duty, harassment, intentional infliction of emotional distress, and
“bystander liability/failure to intervene,” the only waiver of immunity comes
from the TTCA. Tex. Civ. Prac. & Rem. Code § 101. The TTCA’s narrow waiver
provides that a school district can be held liable only for personal injury,
death, and property damage when (1) the injuries or damages are caused by
the negligence of a school district employee while acting within the scope of
his employment, and (2) the injury or damages arise from the operation or
use of a motor vehicle. Tex. Civ. Prac. & Rem. Code §§101.021, 101.051.
Because none of the plaintiffs’ claims relate to the operation or use of a motor
vehicle, the tort claims against the District are barred by governmental
immunity.
b. Breach-of-Contract Claim
As to the breach-of-contract claim, the plaintiffs argue that “the district
entered into a contract with their rules and regulations [and] student code of
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conduct” and the District’s “failure to abide by that contract avails them to
liability.” Dkt. 62 at 24. The court disagrees.
The plaintiffs have not alleged anything to show that the relationship
between a public school district and its students is contractual in nature. In
fact, as the District points out, the student handbook expressly denies such a
relationship, providing: “the Student Handbook may refer to rights
established through law or district policy,” but “[i]t does not, nor is it
intended to, represent a contract between any parent or student and the
district.” Dkt. 56 at 41–42 (quoting Barbers Hill ISD Student Handbook,
https://resources.finalsite.net/images/v1690925359/bhisd/icmlj9jpauwzw
kznqohu/StudentHandbook-BHISD.pdf (last visited Aug. 5, 2024)). Even if
the plaintiffs had established a contractual relationship, however, they
nonetheless fail to plead any waiver of immunity.
For the reasons stated above, the court dismisses the plaintiffs’ state-
law claims against the District.
8. Declaratory and Injunctive Relief
“When considering a declaratory judgment action, a district court must
engage in a three-step inquiry. First, the court must determine whether the
declaratory action is justiciable.” Orix Credit All., Inc. v. Wolfe, 212 F.3d 891,
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895 (5th Cir. 2000). “Typically, this becomes a question of whether an ‘actual
controversy’ exists between the parties to the action.” Id.
The District argues that the plaintiffs have failed to establish an “actual
controversy” as to their federal- and state-law claims. Dkt. 56 at 42. The
plaintiffs provide no meaningful response, instead referring to other parties
in other cases in a nonsensical manner. Dkt. 62 at 25–26 (discussing a
“temporary restraining order signed by the trial court” that “grants J.C. all
the relief he has requested” and an individual named “Meroney” who is
“seeking to enjoin allegedly unauthorized actions of a [c]ity official”).
Without any other bases on which to determine an actual controversy,
the court denies the plaintiffs’ request for declaratory and injunctive relief.
9. Punitive Damages
The District argues that as a matter of law, punitive damages are not
recoverable from governmental entities. Dkt. 56 at 42 (citing City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)). The plaintiffs do
not respond to this argument. The request for punitive damages is denied.
IV. Amendment
Finally, in their response to the State Defendants’ motion to dismiss,
the plaintiffs “move the court to be able to amend their pleadings.” Dkt. 65
at 2. The court denies that request.
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Leave to amend shall be freely granted when justice so requires. Fed.
R. Civ. P. 15(a)(2). The Fifth Circuit has held that courts should generally give
a plaintiff at least one chance to amend under Rule 15(a) before dismissing
the action with prejudice, unless it is clear that to do so would be futile. Great
Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th
Cir. 2002). “[T]the decision to grant or to deny a motion for leave to amend
lies within the sound discretion of the trial court.” Addington v. Farmer’s
Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). And in exercising
that discretion, “the trial court may consider such factors as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, (and) futility of the
amendment.” Id. (internal quotation marks and citations omitted)
(alteration in original).
The plaintiffs have had several chances to amend their complaint—five
to be exact. Because of their “repeated failure to cure deficiencies,” the court
declines the plaintiffs’ request to file a sixth amended complaint.
* * *
As the district court in Karr concluded: “the presence and enforcement
of the hair-cut rule causes far more disruption of the classroom instructional
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process than the hair it seeks to prohibit.” Karr, 460 F.2d at 613. Regrettably,
so too here. “Justice Scalia once said that he wished all federal judges were
given a stamp that read ‘stupid but constitutional.’ As he was implying, not
everything that is undesirable, annoying, or even harmful amounts to a
violation of the law, much less a constitutional problem.” Brown v. Chi. Bd.
of Educ., 824 F.3d 713, 714 (7th Cir. 2016) (citation omitted). Like the
Seventh Circuit concluded in Brown, “[t]oday’s case provides another
illustration of that fact.” Id.
For the foregoing reasons, the court grants the District’s motion to
invoke § 101.106(e) and the State Defendants’ motion to dismiss. Dkts. 55,
60. The court denies the District’s motion to dismiss as to the plaintiffs’
Equal Protection sex-discrimination claim, but grants the motion with
respect to all other claims. Dkt. 56.
Signed on Galveston Island this 6th day of August, 2024.
___________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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