Opinion

George v. Abbott

Court
District Court, S.D. Texas
Filed
Aug 6, 2024
Cited by
0 cases
Authority
More cited than 32.0%

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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