United States Court of Appeals

for the Fifth Circuit

No. 18-31086

Jaylon Sewell, 

Plaintiff—Appellant,

versus

Monroe City School Board; Brent Vidrine, 

Superintendent; Roosevelt Rankins, Dean; W R Berkley 

Corporation; Whitney Martin, Individually and as 

Former Principal of Neville High School, incorrectly 

named as Whitney Morton, 

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:17-cv-01466

Before Barksdale, Stewart, and Costa, Circuit Judges.

Gregg Costa, Circuit Judge:

A motion to dismiss for failure to state a claim is not meant to resolve 

disputed facts or test the merits of a lawsuit. It instead must show that, even 

in the plaintiff’s best-case scenario, the complaint does not state a plausible 

case for relief. In this case, the district court dismissed a high school 

student’s claims of discrimination. Mindful of our obligation to accept his 

complaint’s factual allegations as true and assess whether those facts permit 

United States Court of Appeals

Fifth Circuit

FILED

September 10, 2020

Lyle W. Cayce

Clerk

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a reasonable inference that the school board is liable, we affirm in part and 

reverse in part.

I.

Because this case is only at the pleading stage, the following comes

from the plaintiff’s allegations. 

On the first day of school at Monroe’s Neville High School, Dean of 

Students Roosevelt Rankins asked teachers to send students with dyed hair 

to his office. All the students sent to Rankins’s office were African American

males. One was Jaylon Sewell, who wore a “two toned” blonde hairstyle. 

Rankins and Principal Whitney Martin did not let Sewell attend class that day 

because of his hair. 

Monroe City School Board’s dress code prohibited “hair dyed 

outlandish colors.” Still, many students of all races, male and female, wore

dyed hair to school. Students sported blonde, purple, and red colors as well 

as fiery-colored hair tips. Some African American female students wore 

multicolored weaves in their hair. Nevertheless, Neville High did not 

discipline anyone other than Sewell for violating the hair policy during the 

2016–17 school year.

On the second day of school, Sewell’s mother, Bonnie Kirk, met first 

with Martin and then with superintendent Brent Vidrine. Kirk told both that 

she believed school administrators were discriminating against Sewell 

because he is an African American male. 

When Sewell returned to school, Rankins “ridiculed” him “every 

other day” by calling him a “thug” and a “fool.” At one point, Rankins 

asked Sewell if he “was gay with ‘that mess’ in his head.” Rankins also 

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discouraged other students from talking with Sewell.1 Sewell became 

“depressed” and “sad.” 

In November, school officials suspended Sewell. Sewell alleges that 

Rankins “encouraged” a female student to “lie” and accuse him of sexual 

assault. Rankins told Sewell that he “wouldn’t be getting in so much trouble 

if his hair were not that color.” Martin soon recommended Sewell for 

expulsion. When Kirk spoke to Martin about her recommendation, Martin 

mentioned Sewell’s hair too. School officials provided Kirk with 

documentation about the suspension and expulsion just two days before 

Sewell’s expulsion hearing. Kirk filed a complaint with the U.S. Department 

of Education’s Office of Civil Rights. 

After the hearing, the board’s expulsion committee voted not to expel 

Sewell. The committee’s chair explained that it chose not to suspend Sewell 

because the timing of events was suspicious; school officials did not complete 

expulsion documentation until four days after the alleged assault and did not 

deliver the documentation to Kirk until ten days after that. 

In the spring, media reports, including one in the New York Daily 

News, reported on what had happened to Sewell. The media attention led to 

school officials’ “ostracizing” and “ridicul[ing]” him “even more.” Sewell 

was “distraught and traumatized.” 

Kirk filed this lawsuit in November 2017; Sewell has since turned 18 

and has been substituted as the plaintiff. The amended complaint alleges

claims under Title VI, Title IX, section 1983, section 1981, and the Family 

Educational Rights and Privacy Act (FERPA), as well as claims under 

Louisiana law. It names as defendants the Monroe City School Board, 

1 Sewell’s complaint makes conclusory allegations that Martin ridiculed him too. 

Because those allegations lack details, we focus on Rankins’s conduct.

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Superintendent Vidrine, Dean Rankins, Principal Martin, and the school 

board’s insurer. Attached and incorporated by reference is the Department 

of Education report detailing its investigation of Kirk’s complaint. See Ferrer 

v. Chevron Corp., 484 F.3d 776, 778 (5th Cir. 2007) (recognizing that a 

complaint can incorporate exhibits by reference (citing Fed. R. Civ. P.

10(c)).

The defendants responded with a motion to dismiss for failure to state 

a claim. The district court, adopting a recommendation of the magistrate 

judge, granted the motion on all claims. 

II.

A motion to dismiss for failure to state a claim concerns the “formal 

sufficiency of the statement of the claim for relief,” not a lawsuit’s merits. 

Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), vacated 

on other grounds, 113 F.3d 1412 (5th Cir. 1997). So when reviewing such a 

motion, we assume that the facts the complaint alleges are true and view 

those facts in the light most favorable to the plaintiff. Id. The complaint 

survivesif it “contain[s] sufficient factual matter . . . 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)). Although this 

framework is one-sided, the issue “is not whether a plaintiff will ultimately 

prevail but whether he is entitled to offer evidence to support his claims.” 

Doe, 81 F.3d at 1401. The other side will have its say later. 

III.

While there were numerous claims before the district court, this 

appeal concerns just a few. Sewell does not appeal the dismissal of his 

FERPA and Louisiana state law claims. And although his briefs mention the

claims under sections 1981 and 1983, the barebones page of his opening brief 

devoted to those claims is not enough to prosecute an appeal. United States 

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v. Green, 964 F.2d 365, 371 (5th Cir. 1992). In addition, Sewell appeals the 

dismissal of his Title VI and IX claims only as to the Monroe City School 

Board. That makes sense as claims under those statutes may be brought only 

against the institution receiving federal funds, not employees of those 

institutions. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 

(2009). 

Title VI and Title IX seek to stamp out discrimination in programs 

receiving federal funds and ensure that federal resources do not support 

discriminatory practices. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 

286 (1998). Part of the Civil Rights Act of 1964, Title VI prohibits race 

discrimination in all programs receiving federal funds. 42 U.S.C. § 2000d. 

Enacted eight years later, Title IX was modeled after Title VI and bans sex

discrimination in educational programs receiving federal funds. 20 U.S.C. 

§ 1681(a). We interpret these kindred statutes in the same fashion. See 

Cannon v. Univ. of Chi., 441 U.S. 677, 696 (1979). 

Sewell brings claims under both statutes because he thinks school 

officials mistreated him not just because he is African American or male, but 

because he is both. The district court interpreted his complaint to raise three 

theories of liability: intentional discrimination, harassment or hostile 

environment discrimination, and retaliation. Because the school board does 

not contest that characterization of Sewell’s claims, we follow the district 

court’s lead. 

A.

We start with intentional discrimination. This classic claim is the 

most straightforward: the school board, as a federal funding recipient, cannot 

intentionally treat students differently on the basis of race or sex. Sewell’s 

claim is of the selective enforcement variety. See Plummer v. Univ. of Houston, 

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860 F.3d 767, 777 (5th Cir. 2017). He says he was punished for dying his hair 

while female students and students of other races were not. 

A threshold issue stops his claim in its tracks—it was untimely. Title 

VI and Title IX are subject to state statutes of limitations for personal injury 

actions. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 

2015); Griffin v. Round Rock Indep. Sch. Dist., 82 F.3d 414, 1996 WL 166999, 

at *1 (5th Cir. 1996) (unpublished per curiam). In Louisiana, the relevant 

prescription period is one year. See La. Civ. Code Ann. art. 3492; cf. 

Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 

739 (5th Cir. 2017) (applying the Louisiana law to section 1983 claim). 

Sewell’s mother filed suit on his behalf on November 8, 2017. So his 

action was timely for claims that accrued on or after November 8, 2016. A 

claim accrues when the plaintiff knows or has reason to know of the injury 

giving rise to the claim. King-White, 803 F.3d at 762. Sewell’s complaint 

alleges three injuries: missing class on the first day of school, suffering verbal 

abuse from Rankins throughout the school year, and getting suspended. The 

second injury goes to his harassment claim. The third, he says, was 

retaliation for complaining about school officials’ discriminatory conduct. 

Only the first represents the kind of discrete adverse action characteristic of 

an intentional discrimination claim. Because that injury occurred on August 

15, 2016, it lies outside the prescription period. Sewell’s intentional 

discrimination claim cannot make it out of the starting gate.

B.

By contrast, Sewell’s harassment claim has some legs. As the district 

court recognized, it does not trip over a statute-of-limitations problem. That 

is because of the continuing violation doctrine. Whereas an intentional 

discrimination claim focuses on a specific discriminatory act, a hostile 

environment claim arises from the “cumulative effect of individual acts,” 

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some of which “may not be actionable on [their] own.” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 115 (2002). That means that “the filing clock 

cannot begin running with the first act, because at that point the plaintiff has 

no claim; nor can a claim expire as to that first act, because the full course of 

conduct is the actionable infringement.” Heath, 850 F.3d at 737 (citation 

omitted). If “an act contributing to the claim occurs within the filing period, 

the entire time period of the hostile environment may be considered by a 

court for the purposes of determining liability.” Morgan, 536 U.S. at 117. 

The doctrine applies here.2 Sewell’s complaint alleges a pattern of 

verbal abuse beginning the first day of school and continuing at least through 

March 2017, when news media began covering his story. Because some acts 

contributing to a hostile environment allegedly took place within the 

prescription period, Sewell’s harassment claim was timely. 

In addition to the claim being timely, Sewell’s claim must be plausible

to get past Rule 12. Rankins harassed Sewell if his verbal abuse was based on 

Sewell’s sex and/or race and was “so severe, pervasive, and objectively 

offensive” that it deprived Sewell of an educational benefit. Davis Next 

Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999). 

The school board is liable for that harassment if it knew about the abuse and 

2 The continuing violations doctrine is primarily associated with Title VII

harassment claims. See Morgan, 536 U.S. at 115–17. Titles VI and IX rely on Title VII 

hostile environment caselaw. Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 (5th 

Cir. 2015) (applying Title VII caselaw to Title VI hostile environment claim); Carder v. 

Cont’l Airlines, Inc., 636 F.3d 172, 180 (5th Cir. 2011) (recognizing that Title IX borrows on 

Title VII principles). And the continuing violations doctrine is an accrual principle of 

federal law that applies based on the cumulative nature of a hostile environment claim. 

Heath, 850 F.3d at 740 (applying the doctrine to such claims brought under section 1983); 

see also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011)

(applying the doctrine to Title IX).

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was deliberately indifferent. Gebser, 524 U.S. at 290–91. Assuming what 

Sewell alleges is true, he has stated a claim.

First, it is plausible that Rankins’s harassment of Sewell stemmed 

from a discriminatory view that African American males should not have 

two-toned blonde hair. Most obviously, Rankins treated Sewell differently

from students who were not black males. On the first day of school, only 

African American male students were sent to Rankins’s office. And even 

though white students and black female students wore a variety of dyed 

hairstyles, Sewell was the only student punished during the school year for 

violating the hair policy.3

 Rankins’s verbal abuse also tied Sewell’s hair to 

his race and sex. Rankins asked if Sewell “was gay with ‘that mess’ in his 

head,” which could imply animus toward males who do not conform to 

stereotypical notions of masculinity. See E.E.O.C. v. Boh Bros. Constr. Co., 

731 F.3d 444, 456–60 (5th Cir. 2013) (en banc) (explaining that epithets 

targeting homosexuals can support inference of gender-based stereotyping). 

And he called Sewell a “thug,” a term that could be race-neutral or racially 

charged, depending on context. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 

456 (2006) (recognizing that the word “boy” may not always be benign 

depending on “context, inflection, tone of voice, local custom, and historical 

usage”); Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 

2007) (describing use of phrase “ghetto children” as “perhaps racially 

inappropriate”); Gaston v. Bd. of Educ. of City of Chi., 2019 WL 398688, at *6 

3 In concluding that this differential treatment was not discriminatory, the 

magistrate’s report relied on the burden-shifting framework of McDonnel Douglas Corp. v.

Green, 411 U.S. 792 (1973). But that is an evidentiary framework for viewing evidence at 

the summary judgment stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); 

Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019). It does not apply 

at the pleading stage, which asks only whether the allegation of discrimination is plausible. 

Id.

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(N.D. Ill. Jan. 31, 2019) (noting that a “[school principal] called another 

teacher a ‘thug,’ which of course is a racially-charged word”); Lloyd v. 

Holder, 2013 WL 6667531, at *9 (S.D.N.Y. Dec. 17, 2013) (listing “thug” as 

example of “facially non-discriminatory terms [that] can invoke racist 

concepts . . . already planted in the public consciousness”). At the pleading 

stage, Sewell is entitled to the latter characterization. In addition, the 

Department of Education interviewed school officials about the first-day-ofschool incident and observed that “the District did not advance a legitimate, 

non-discriminatory reason for its different treatment of” Sewell. It 

concluded that the evidence established violations of Title VI and Title IX. 

A federal agency’s finding of discrimination may not be definitive on the 

subject, but it certainly supports the plausibility of Sewell’s claims. See 

Johnson v. Halstead, 916 F.3d 410, 418–19 (5th Cir. 2019) (recognizing that 

the findings of an investigative report can support the plausibility of a hostile 

environment claim). 

Second, the harassment may well have been so severe, pervasive, and 

offensive that it denied Sewell an educational benefit. To satisfy this 

requirement, the harassment must have had a “concrete, negative effect” on 

Sewell’s education. Fennell, 804 F.3d at 410 (citations omitted). According 

to Sewell, Rankins verbally “ridiculed” him “every other day” for much of 

the school year. Rankins also discouraged other students from talking to 

Sewell. And he tried to convince a student to concoct an allegation that 

Sewell sexually assaulted her. The abuse left Sewell “depressed,” “sad,” 

“isolated,” “distraught,” and “traumatized.” On at least one occasion, he 

called his mother from school, crying. Cf. id. (explaining that plaintiff who 

“suffered from anxiety and required alternative study arrangements” was 

deprived of an educational benefit). Intense verbal abuse that comes from an 

authority figure—like a school administrator—and persists for most of the 

school year can constitute a hostile educational environment. See Hayut v. 

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State Univ. of N.Y., 352 F.3d 733, 748–49 (2d Cir. 2003) (finding triable issue

when student was humiliated, had difficulty concentrating, and could not 

sleep as a result of in-class sexual harassment from professor, even though 

her academic performance did not suffer); see also Sanches v. CarrolltonFarmers Branch Indep. Sch. Dist., 647 F.3d 156, 166 (5th Cir. 2011) (“Peer 

harassment is less likely to support liability than is teacher-student 

harassment.”). 

Third, it is plausible that the school board knew about the harassment. 

The school board had knowledge if a district official with authority to address 

the discrimination did. Gebser, 524 U.S. at 290. Superintendent Vidrine fits 

the bill (if not others as well). After stating that Sewell “was subject to 

repetitive harassment, intimidation and bullying,” the complaint alleges that

Kirk “complained” to several school district officials, including Vidrine. It 

also alleges that Kirk filed a grievance with the school board. Viewing these 

allegations in the light most favorable to Sewell, Vidrine knew about the 

harassment. 

Not only did Vidrine know about the harassment, but he also could 

have done something about it. For an official’s knowledge to be imputable to 

a school board, he must be vested with power to supervise the harassing 

employee and to take action that would end the harassment. Rosa H. v. San 

Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir. 1997). Louisiana law 

gives superintendents administrative authority over school personnel, 

including the power to hire, place, and dismiss staff, La. Stat. Ann.

§ 17:81(A)(2)–(4), (6); discipline teachers, id. § 17:443; and direct school 

principals, id. § 17:414.1. Vidrine could have stopped Rankins by directing 

Martin, disciplining Rankins, or dismissing Rankins. His knowledge was thus 

the school board’s knowledge. 

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Finally, the allegation is that despite knowing of the harassment, the

board did little to ensure Sewell was safe. A funding recipient’s response to 

known acts of discrimination is deliberately indifferent when it is “clearly 

unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. 

Deliberate indifference is a tall hurdle: if the recipient responds reasonably to 

a risk of harm, it will not be liable—even if harm ultimately comes to pass. 

Fennell, 804 F.3d at 410. According to Sewell’s complaint, however, the 

board did nothing after Vidrine promised to “talk with” Rankins and Martin 

when Kirk complained to him on the second day of school. It offered no 

response to the verbal abuse that continued and intensified throughout the 

school year, much less a reasonable one. See Vance v. Spencer Cty. Pub. Sch. 

Dist., 231 F.3d 253, 262 (6th Cir. 2000) (affirming Title IX verdict when

defendants presented “no evidence” of remedial measures other than 

district officials “talking to” harassing student). Doing nothing is the classic 

case of indifference.

Sewell’s harassment claims under Title VI and Title IX thus survive 

the pleading stage. Of course, the evidentiary support for these claims may 

be challenged at summary judgment, and if it can pass that hurdle, at trial. 

Cicalese, 924 F.3d at 766–67. For now we have only the complaint, and we 

assume the factual allegations in it to be true. Under that assumption, Sewell 

has “alleged sufficient facts to ‘nudge[] [his] claims across the line from 

conceivable to plausible.’” Id. at 768 (first alteration in original) (quoting 

Twombly, 550 U.S. at 547). 

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C.

Sewell’s retaliation claims do not fare so well.4 A retaliation plaintiff 

must show that the funding recipient or its representatives took an adverse 

action against him because he complained of discrimination. Sanches, 647 

F.3d at 170. That typically means the funding recipient itself signed off on 

the adverse action. E.g. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 

171–72 (2005) (school board terminated teacher’s coaching duties after he 

complained about unequal treatment of girls’ basketball team). But Sewell’s 

claim is different. He says that Rankins—not the school board—retaliated 

against him for complaining about the verbal abuse by trumping up the sexual 

assault charge that got him suspended and recommended for expulsion. 

When a case does not involve the funding recipient’s “official policy,” Title 

VI and Title IX require deliberate indifference. Gebser, 524 U.S. at 290; see 

also Feminist Majority Found. v. Hurley, 911 F.3d 674, 695–96 (4th Cir. 2018) 

(recognizing claim of deliberate indifference to student-on-student 

retaliatory harassment).

Sewell has not pleaded deliberate indifference to Rankins’s retaliatory 

conduct. On the contrary, once board officials became aware of the 

questionable circumstances surrounding Sewell’s suspension and 

recommended expulsion, they rejected it. The decision was not deliberately 

indifferent to possible retaliation; it helped put a stop to it. We affirm the 

dismissal of Sewell’s retaliation claim. 

4 Title IX encompasses retaliation claims. Jackson v. Birmingham Bd. of Educ., 544 

U.S. 167, 171 (2005). So we assume without deciding that Title VI does too. See Bhombal 

v. Irving Indep. Sch. Dist., 809 F. App’x 233, 238 (5th Cir. 2020) (unpublished per curiam).

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* * *

The dismissal of Sewell’s harassment claims under Title VI and Title 

IX against Monroe City School Board is REVERSED. The district court’s 

judgment is AFFIRMED in all other respects. 

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