# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 10098

**Ana Poloceno,** i ndividually and as n ext f riend of minor , **A.I.,**
Plaintiff

— Appellant **,**

versus
**Dallas Independent School District,**
Defendant

— Appellee

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18

- CV

- 1284

Before **King, Graves,**  and **Willett,** Circuit Judges

**. Per Curiam**  **:** *

Ana Poloceno filed this Title **IX** suit against Dallas Independent School District, alleging that **DISD** intentionally discriminated against her daughter, **A .I.**  , based on her sex

. The district court dismissed Poloceno’s second amended complaint with prejudice for failure to state a claim, and we affirm.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cu**  **it R**  **ule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 10, 2020 Lyle W. Cayce Clerk Case: 20-10098 Document: 00515559383 Page: 1 Date Filed: 09/10/2020No. 20

- 10098

2 **I** In 2016, **A.I.** was a n eleven

- year

- old student at Edward H. Cary Middle School , part of **DISD** , and a student in Keenan Washington ’ s physical education class

. If students did not wear proper gym clothes to class, Washington required the students to do “ ce i ling jumps” as punishment ; both male and female students were required to perform the exact same exercises as punishment

. 1 At the s tart of the school year, Washington required a student to complete 30 ceiling jumps if he or she failed to wear proper gym clothes ; Washington incrementally increased the number of ceiling jumps over the course of the school year. Benjamin Dickerson, the school principal, allegedly observed male and female students performing ceiling jumps in Washington’s gym class. During the school year, five female students allegedly visited the school nurse with complain ts of pain from performin g ceiling jumps. In April 2016 , **A.I.** failed to wear proper gym clothes to Washington’s class

. By this point in the school year, Washington’s punishment had increased to 260 ceiling jumps for failure to dress properly. Washington allegedly required **A.I.** to complete 260 ceiling jumps , after which she became ill and was subsequently hospitalized and diagnosed with rhabdomyolysis, the breakdown of muscle tissue. After this incident, **DISD** investigated Washington ’s treatment of **A.I**

**.** and concluded that Washington had violated **DISD** ’s polic i es regarding student discipline, prohibiting corporal punishment, and promoting student welfare and wellness.

1 A “ceiling jump” involves squatting down, with both hands and hips to ward the floor , then jumping up with hands toward the ceiling. Case: 20-10098 Document: 00515559383 Page: 2 Date Filed: 09/10/2020No. 20

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3 In April 2018, **A.I.** ’s mother, Ana Poloceno , filed suit against **DISD** alleging th ese events violated Tit le **IX** of the Education Amendments of
1972. **DISD** filed a motion to dismiss Poloceno ’s complaint for failure to state a claim for relief

. **F ed**  **. R. Civ. P.** 12(b)(6). While the motion was pending, Poloceno filed an amended complaint. **DISD** filed a motion to dism iss Poloceno’s first amended complaint , which the district court granted without prejudice to afford Poloceno a third opportunity to plead her Title
**IX** sex discrimination claim

. Poloceno filed a second amended complaint (Complaint) , the subject of this appeal, and **DISD** again moved to dismiss

. The district court granted **DISD** ’s motion and dismissed Poloceno ’s second amended complaint with prejudice. Poloceno appealed, and , for the reasons discussed below, we affirm.

**II**

We review a dist rict court’s dismissal under Rule 12(b)(6) de novo

. Cicalese v. Univ. of Tex. Med. Branch , 924 F.3d 762, 765 (5th Cir. 2019). To survive a motion to dismiss, the plaintiff must plead facts that “ 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 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. ” Id. We accept all well

- pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Walker v. Beaumont Indep. Sch. Dist. , 938 F.3d 724, 73 5 (5th Cir. 2019). But a plaintiff’s “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Fernandez

- Montes v. Allied Pilots Ass’n , 987 F.2d 278, 284 (5th Cir. 1993). Case: 20-10098 Document: 00515559383 Page: 3 Date Filed: 09/10/2020No. 20

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4 **III**

“ Title **IX** prohibits sex discrimination by recipients of federal education funding.” Jackson v. Birmingham Bd. of Educ. , 544 U.S. 167, 173 (2005). Its text provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participa tion in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). A plaintiff may enforce Title **IX** through a private right of action for damages. Dav is v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 639 (1999). There

are two avenues for stating a Title **IX** claim . First, a plaintiff can show that the institution has an official policy of sex discrimination. Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 2 7 4, 290 (1998). 2 Or , second, a plaintiff can show

a Title **IX** violation where an “appropriate person” had “ actual knowledge of the discrimination ” and responded with “ deliberate indifference. ” Gebser , 524 U.S. at 290. Poloceno chose the second avenue.

Becaus e **DISD** receives federal financial assistance, it is subject to Title **IX**

. U nder Title **IX** , “ schools are liable only for intentional sex discrimination.” Doe v. Edgewood Indep

. Sch

. Dist

. , 964 F.3d 351, 358 (5th Cir. 2020) (citing Gebser , 524 U.S. at 290). An d it is not easy to prove intentional violations : on top of showing intentional discrimination, Poloceno must show (1) actual knowledge of the intentional discrimination by an “appropriate person” and (2) “an opportunity for voluntary compliance.” Gebser , 524 U.S. at 289

– 90

.

2 Poloceno has failed to show that **DISD** had an official policy of sex discrimination. To the extent that Poloceno alleges **DISD** failed to have a policy in place, that allegation “does not constitute ‘discrimination’ under Title **IX** .” Gebser , 524 U.S. at 29 2

. In fact, Poloceno’s admits that **DISD** ’s failure to have an effective policy in place d oes not, by itself, violate Title **IX**

. Case: 20-10098 Document: 00515559383 Page: 4 Date Filed: 09/10/2020No. 20

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5 Poloceno’s C omplaint fail s to allege facts that would show intentional discrimination. Poloceno asserts that **DISD** violated **A.I.** ’s rights under Title **I X**  by having “a physical exercise program that did not consider the physical and metabolic differences between boys and girls

. ” But Poloceno’s C omplaint fails to allege facts to support a claim that **DISD** intentionally discriminated against **A.I.** Specifically , Poloceno pleads no facts that would show **DISD** singled out females for disparate treatment or that **A.I.** received treatment different from th at received by similarly situated male students in Washington’s gym class. In fact, Poloceno’s C omplaint even states that

“ **A.I.** and a number of female students were treated the same as male students in [Washington’s] gym class ” and that “Washington gave the boys and girls the exact same exercises and punishments.” Poloceno also fails to plead any fac ts that give rise to a reasonable inference that Washington or any other **DISD** employee acted

— or failed to act

— because of a discriminatory motive. Instead, Poloceno’s C omplaint attempts to allege disparate impact : that Washington’s punishment of his studen ts was facially neutral but had a disparate impact on female students in his gym class

. But o nly intentional discrimination, not disparate impact , is actionable under Title **IX**

. On appeal, Poloceno argues that the district court erred in dismissing her C omp laint because it found that her disparate

- impact claim was not actionable under Title **IX**

. The district court based its dismissal on the Supreme Court’s decision in Alexander v. Sandoval , which held there is no private right of action to enfor c e disparat e

- impact claims under Title VII, on which Title **IX** is patterned. 532 U.S. 275, 280

– 81 (2001). Poloceno argues that Sandoval only applies when a plaintiff bases her Title **IX** disparate

- impact claim upon Title **IX** regulations. Because her disparate

- impact claim is not based on Title
**IX** regulations, Poloceno argues that Sandoval does not control. Case: 20-10098 Document: 00515559383 Page: 5 Date Filed: 09/10/2020No. 20

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6 But Sandoval stands for a broader proposition: A plaintiff’s Title **IX** claim must be based on intentional discri mination, not disparate impact. 3 And the Supreme Court’s Title **IX** cases have emphasized that Title **IX** prohibits intentional discrimination, not disparate impact. Gebser , 524 U.S. at 290; see also Chance v. Rice Univ. , 984 F. 2 d 151, 153 (5th Cir. 1993) (concluding that a showing of intentional discrimination is required for recovery under Title **IX** ). 4 Because Poloceno plea ds no facts that **DISD** or its employees intentionally discriminated against **A.I.** , the district court properly dismissed her Title **IX** claim. Poloceno next argues that she has an actionable Title **IX** claim under a “heightened risk” analysis and that the district court erred by recharacterizing her “heightened risk” analysis as a disparate

- impact claim

. Essentially , Poloceno claims that **DISD** must protect students from a heightened risk of being “disproportionately injured.” We have never recognized or adopted a Title **IX** theory of liability based on a general “heightened risk” of sex discrimination, and we decline to do so. Moreover, the cases from our sister circuits that recognize the “heightened risk” analysis limit this theory of liability to contexts in which students committed sexual assault on other students, circumstances not present here. 5 Even if we

3 See, e.g., Manley v. Tex. Southern Univ. , 107 F. Supp. 3d 712, 726 (S.D. Tex. 2015) (discussing cases that have interpreted Sandoval as “(1) requiring intentional discrimination for a claim under Title **IX** ” and “(2) p recluding a private right of action based on regulations” under Title **IX** ).

4 Although we have not squarely considered a disparate

- impact claim under Title **IX** since Sandoval , our prior holdings are consistent with Sandoval

. See Manley , 107 F. Supp. 3d at 72 6

.

5 See Simpson v. Univ

. of Colo

. at Boulder , 500 F.3d 1170 (10th Cir. 2007 ) (applying this liability theory in a student

- on

- student sexual harassment case); Karasek v. Regents of Univ. of Cal. , 956 F.3d 1093, 1112 (9th Cir. 2020) (articulating a four

- element test for a plaintiff’s heightened risk theory in cases of sexual misconduct and sexual harassment). Case: 20-10098 Document: 00515559383 Page: 6 Date Filed: 09/10/2020No. 20

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7 were to apply a “heightened risk” analysis to this case, Poloceno’s “heightened risk” claim merely repackag es her disparate

- impact claim. Therefore, the district court did not err in dismissing her claim. Even assuming Poloceno’s claim was acti onable under Title **IX** , Poloceno fails to plead facts satisfying the Gebser framework to show that **DISD** intentionally violated Title **IX** . First, Poloceno failed to show that an

“ appropriate person” had actual knowledge of the alleged discrimination. Gebser , 524 U.S. at 290. The “appropriate person” here is Principal Dickerson, the **DISD** official “with authority to take corrective action to end the discrimination

. ” Id. To show Dickerson had actual knowledge that Washington was discriminating against female students, Poloceno alleges Dickerson saw students in Washington’s class doing ceiling jumps , knew of the ceiling

- jump practice and its effects , and knew of the injuri es of the five female students who went to the school nurse

. But these conclusory allegations do not plausibly show that Dickerson had actual knowledge that Washington was engaging in any intentional discrimination toward female students , nor do they suppo rt a reasonable inference of actual knowledge. Second, even if Poloceno had alleged facts showing Dickerson had actual knowledge , she fails to show that **DISD** acted with deliberate indifference. Deliberate indifference is a challenging standard that requir es a showing that **DISD** ’s “response to the [discrimination] or lack thereof is clearly unreasonable in light of the known circumstances.” Davis , 526 U.S.
at 648. But Poloceno alleges no facts showing or supporting a reasonable inference that **DISD** responded unreasonably: She alleges that **DISD** conducted an investigation and found that Washington violated **DISD** Case: 20-10098 Document: 00515559383 Page: 7 Date Filed: 09/10/2020No. 20

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8 policies. Thus, Poloceno has failed to show that **DISD** was deliberately indifferent . Poloceno’s Title **IX** claim fails. 6 For all these reasons, we **AFFIRM** the district court’s dismiss al

.

6 On appeal, Poloceno for the first time asserts that “[a]side from the investigation,” **DISD** “did nothing” and claims that **DIS D**  failed to have in place training programs for gym teachers like Washington. But this failure

- to

- train allegation does not support the element of deliberate indifference. Case: 20-10098 Document: 00515559383 Page: 8 Date Filed: 09/10/2020