*. Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20188

Summary Calendar

_____________________

MICHAEL COONTZ; RUTH COONTZ; 

ALLISON COONTZ,

Plaintiffs-Appellants,

versus

KATY INDEPENDENT SCHOOL DISTRICT;

JINX READ; LEONARD MERRELL,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court 

for the Southern District of Texas

(H-96-CV-3413)

_______________________________________________________

September 14, 1998

Before REAVLEY, WIENER and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:*

The district court dismissed with prejudice pursuant to Rule

12(b)(6) section 1983 claims for the violation of privacy and

substantive due process liberties, and Title IX and section 1983

claims for sex-based discrimination. We AFFIRM.
2

BACKGROUND

In February 1995, Allison Coontz, a high school senior in

the Katy Independent School District and the head of the Taylor

High School cheerleading squad, attended a Mardi Gras festival in

Galveston, Texas. Her trip was in no way connected with the

school or her obligations as a cheerleader. While in attendance,

she was cited for the offense of "Minor in Possession" (MIP). 

Apparently, a fellow attendee inaccurately reported to school

officials that Allison had been arrested at the event.

On March 8, 1995, Allison’s citation was dismissed. While

it was pending, however, the head girls’ cheerleading coach, Jinx

Read, questioned Allison about the incident. Read told Allison

that a local police officer had been working at the Mardi Gras

event, had recognized Allison, and that it was he who reported

Allison’s "arrest" to the school. Appellants claim that Read’s

statement was a lie. Read then examined Allison

"inquisitorially" and inquired "about Allison’s communications

with her parents on the matter." Pls.’ First Am. Compl., ¶ 10,

at 5 (R. No. 15).

Following her inquiry, Read instituted various disciplinary

measures against Allison. Read removed Allison from the position

of head cheerleader, temporarily suspended her from the squad,

and substituted her cheerleading duties for those of an "office

assistant." Additionally, Read threatened to expel Allison from

the squad outright if her citation was not dismissed, barred her

from participating in cheerleading tryouts, and refused to allow
3

Allison to speak at the year-end sports banquet. Further, the

school omitted any additional photographs of Allison from the

high school annual other than her class picture and her picture

among the cheerleaders. The Coontzes allege that these sanctions

were materially different from those that male football players

faced when caught cheating and drinking. See Pls.' Second Am.

Compl., ¶¶ 13-15, 17-18, 23-24, at 5-7 (R. No. 21).

The Coontzes contend here that their allegations suffice to

state a claim against the school defendants. They offer three

theories. First, they argue that the school deprived them of

their protected right to privacy. Second, they assert a

constitutional privilege to be free from government harassment

and emotional distress, which they characterize as a substantive

liberty of due process that the school violated. Third, the

Coontzes argue that the school determined Allison’s punishment on

the basis of her sex in violation of her rights under the

Constitution and Title IX. For the following reasons, we reject

each of these theories.

DISCUSSION

I. Standard of Review

Our review of the district court’s Rule 12(b)(6) dismissal

is de novo. See Holmes v. Texas A&M Univ., 145 F.3d 681, 683

(5th Cir. 1998); Piotrowski v. City of Houston, 51 F.3d 512, 514

(5th Cir. 1995). We will affirm the district court’s order "only

if it appears that no relief could be granted under any set of
4

facts that could be proven consistent with the allegations." 

Holmes, 145 F.3d at 683 (citations and internal quotation marks

omitted).

II. Privacy

The Coontzes’ first argue that they have pleaded facts

supporting their claim that Read impermissibly invaded their

family’s right to privacy. We disagree.

The Constitution restricts the ability of the government to

intrude upon the private affairs of its citizens. See Whalen v.

Roe, 429 U.S. 589, 598-602 (1977); Ramie v. City of Hedwig

Village, 765 F.2d 490, 492 (5th Cir. 1985). "The liberty

interest in privacy encompasses two notions: the freedom from

being required to disclose personal matters to the government and

the freedom to make certain kinds of decisions without government

interference." Ramie, 765 F.2d at 492. One strand protects the

confidentiality of private information; the other protects the

autonomy of private action.

a. Autonomy

The autonomy interest protects decisions associated with

"'family relationships[] and child rearing and education.'" See

Whalen, 429 U.S. at 600 n.26 (quoting Paul v. Davis, 424 U.S.

693, 713 (1976)). Although the Coontzes argue that the school's

actions interfered with their right to make independent family

choices about their daughter's behavior and discipline, they
5

pleaded no facts in support of this theory. To state a claim

under the autonomy branch, the school, through the actions of

Read, must have removed an alternative from the Coontzes'

decisionmaking process. See Plante v. Gonzalez, 575 F.2d 1119,

1130 (5th Cir. 1978). Government conduct that merely deters does

not suffice. See id. at 1126 (citing Bullock v. Carter, 405 U.S.

134, 142-43 (1972)). The Coontzes' brief asserts that the

school's "punishment was based on the fact that [the school] felt

that [Allison's] parents' method of addressing the Mardi Gras

situation was insufficient," and that "the school officials

overstepped their authority when they sought to force the Coontz

parents to punish Allison." Appellant Br. at 8-9. The only fact

the Coontzes have alleged that is capable of supporting such a

conclusion, however, is their allegation that "Defendant Read

. . . asked about Allison's communications with her parents on

the matter." Pls.' Second Am. Compl. ¶ 10, at 4 (R. No. 21). 

This does not provide the requisite factual basis for the

Coontzes' autonomy claim. Something more is required to bridge

the gap between this question about Allison's family and a

disciplinary response to Allison's pending citation. 

"[C]onclusory 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). As the Coontzes have twice failed to allege

any intermediate fact that would tend to substantiate their

conclusion, we may assume no such fact exists. We agree with the
6

district court's assessment that the facts supporting a privacy

claim, if they support any privacy claim at all, arise solely

under the confidentiality strand of the privacy right.

b. Confidentiality

The confidentiality strand is "'the individual interest in

avoiding disclosure of personal matters.'" Plante, 575 F.2d at

1132 (quoting Whalen, 429 U.S. at 599). It includes a right to

be free from the government's public disclosure of its citizens'

private facts and also from government inquiry "into matters in

which it does not have a legitimate and proper concern." Ramie,

765 F.2d at 492. No facts alleged in the Coontzes' complaint

suggest that the school publicly disclosed any of the information

it gained about the incident in Galveston, nor do the Coontzes

make the argument on this appeal. Instead, they argue that Read

required Allison to disclose information about which the school

had no business inquiring. Specifically, they claim that Read's

questions invaded the sanctity of "their in[tra]-family

communications." Pls.' Second Am. Compl. at 8 (R. No. 21).

At the outset, we note that the Coontzes complain that Read

questioned Allison about her citation in an "inquisitorial" style

and lied to Allison during the questioning. See id. ¶ 10, at 4. 

Though it may create other remedies, such an allegation does not

state a confidentiality claim. In Ramie v. City of Hedwig

Village, 765 F.2d 490 (5th Cir. 1985), this court found that

abusive and harassing government questioning does not on its own
7

violate an individual's liberty interest in privacy. Id. at 493. 

By the same token, the Coontzes' allegations concerning Read's

disagreeable deportment cannot, standing alone, establish an

invasion of their family's liberty interest in confidentiality. 

Further, even assuming that the school improperly compelled

Allison to divulge information about her family's response to the

incident in Galveston, we nevertheless hold that the dismissal of

the confidentiality claim was appropriate. Although the

government may not invade private matters, whether or not

personal information is private is a matter of reasonable

expectations. See, e.g., Plante, 575 F.2d at 1135. And, even if

a matter is private, whether a requirement that it be disclosed

to the government violates the right of privacy is resolved by

weighing the relative interests of the state and the individual. 

See Ramie, 765 F.2d at 492 ("To determine whether the questioning

amounted to a violaton of Ramie's right to privacy, this court

must decide whether the invasion of privacy . . . outweighs the

government's legitimate interests."). Both determinations

present questions of law which we may dispose of on this appeal. 

See Plante, 575 F.2d at 1137-38.

In Ramie, this Court noted that the Constitution protects

against invasions of privacy involving only "the most intimate

aspects of human affairs." Id. at 492. In the context of extracurricular school activities, the zone of privacy that a student

or her parents may legitimately anticipate is substantially

diminished. In Vernonia School District v. Acton, 115 S. Ct.
8

2386 (1995), the Supreme Court upheld a school drug testing

program directed at student athletes. See id. at 2396. The

Court emphasized its previous holding that the state's power over

public school students "is custodial and tutelary, permitting a

degree of supervision and control that could not be exercised

over free adults." Id. at 2392. As such, students cannot

legitimately expect to be free from school inquiry into the

subject of off-campus consumption of drugs.

In the present case, the Coontzes' have no greater

expectation of privacy than did the Acton family in Vernonia. 

The Coontz family could not legitimately expect their daughter to

participate in a school-sponsored, extra-curricular activity like

cheerleading free from the possibility that she would be

questioned and disciplined if reports -- however inaccurate --

that she had been involved in the off-campus consumption of

alcohol were to reach the cheerleading coach.

The Coontz family first attempts to distinguish Vernonia on

the basis that its holding is derived from Fourth Amendment

jurisprudence, while they allege a violation of their privacy

under the First and Fourteenth Amendments. See Appellant Br. at

10-11. For purposes of our present analysis, we reject this

distinction. The Vernonia Court determined that the mandatory

urinalysis program was reasonable only after first evaluating the

privacy interests that the testing program invaded. See

Vernonia, 115 S. Ct. at 2391 ("The first factor to be considered

is the nature of the privacy interest . . . ."). The Supreme
9

Court found it of "[c]entral" importance that its examination of

the privacy interest, like ours, arose in the context of

"children in school." Id. at 2391-92. The Court further noted

that "Fourth Amendment rights, no less than First and Fourteenth

Amendment rights, are different in public schools than elsewhere;

the 'reasonableness' inquiry cannot disregard the schools'

custodial and tutelary responsibility for children." Id. at 2392

(emphasis added). Hence, the Supreme Court's writing in Vernonia

controls our analysis of what constitutes a private matter among

participants in extra-curricular school activities. We hold that

the school did not intrude into any matter that was, in a

constitutional sense, private, at least not to such an extent

that the school's interest does not justify it.

The Coontzes also argue that Vernonia can be distinguished

because the interest of the public schools in addressing drug and

alcohol abuse among student athletes is more weighty than is

their interest in confronting the problem among student

cheerleaders. See Appellant Br. at 11. Although the Court in

Vernonia justified its holding in part on the concern that

student athletes, because of their athletic endeavors, expose

themselves to specialized harms from drug use that the student

population as a whole might not face, see Vernonia, 115 S. Ct. at

2395, we think it clear that the same generalized concern applies

to the athletes that populate modern high school cheerleading

squads. Nor can the fact that Vernonia involved a urinalysis

test for drug use distinguish it in any material sense from the
10

present case involving a school's inquiry into alleged alcohol

consumption.

III. Substantive Due Process

The Coontzes next argue that their substantive due process

claim should not have been dismissed. The district court held

that "Plaintiffs cite no legal authority to support their

argument that there is a constitutional right to be free from

humiliation and mental anguish." Coontz v. Katy Indep. Sch.

Dist., No. H-96-3413, slip. op. at 3 (S.D. Tex. Sept. 30, 1997)

(R. No. 24) (hereinafter "Coontz II"). The Coontzes argue that

Spacek v. Charles, 928 S.W.2d 88 (Tex. App.--Houston [14th Dist.]

1996, writ dism'd w.o.j.), announced a substantive due process

right to be free from such "unseen harms" as humiliation and

mental anguish. See Appellant Br. at 14-15. The district court

twice ruled -- after dismissing the Coontzes' first and second

amended complaints -- that Spacek involved the application of

Texas's qualified immunity law and is therefore inapposite to the

substantive due process question stated here. See Coontz II, at

3. Although we agree with the district court that the Coontzes

have failed to state a valid claim, we believe it unnecessary to

decide the application of Spacek. Rather, having examined the

conduct of the school against substantive due process precedents,

we find that the Coontzes' complaint, as a matter of law, does

not rise to the level of a constitutional violation.
11

In Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988), Judge

Gee described the substantive aspects of due process:

The strands of "substantive" due process can be conceptually

distinguished but they are intertwined. Every action by

government must be rationally related to its end, and ends

that "shock the conscience" or otherwise violate the norms

"implicit in the concept of ordered liberty" are

illegitimate. Even arguably legitimate state ends can be

met only by means that do not impinge on certain individual

rights deemed "fundamental" by the federal judiciary, and

thus certain legitimate state ends cannot be reached in

accordance with "the concept of ordered liberty."

Id. at 1256. Hence, if the Coontzes' factual pleadings support a

claim that the school (1) deprived the Coontzes of a fundamental

right in a manner that does not survive strict scrutiny, (2)

conducted itself so contrary to contemporary standards as to

"shock the conscience," or (3) acted arbitrarily or according to

illegitimate ends, then the Coontzes' substantive due process

claim should not have been dismissed under Rule 12(b)(6). We

hold that the Coontzes' complaint satisfies none of these

standards.

The Coontzes have claimed that the school disrupted their

ability to raise Allison as they wished. The interest of the

family in rearing its children without government interference is

a fundamental one. See Qutb v. Strauss, 11 F.3d 488, 495 (5th

Cir. 1993). However, we have already determined that the school

did not invade this interest by questioning and disciplining

Allison when we held that the Coontzes failed to state facts

supporting their autonomy claim. The same determination answers

the present question. If the family interest is not involved,
12

then only Allison's right to participate in school-sponsored

extra-curricular activities remains, which is not fundamental. 

See Vernonia, 115 S. Ct. at 2393.

Furthermore, the school's actions in this case do not

"'shock the conscience' of federal judges." Collins v. City of

Harker Heights, 503 U.S. 115, 126 (1992). In making this

determination, we note that,

[a]s a general matter, the Court has always been reluctant

to expand the concept of substantive due process because

guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended. The doctrine of

judicial self-restraint requires us to exercise the utmost

care whenever we are asked to break new ground in this

field.

Id. at 125 (citation omitted). The Coontzes complain that the

school removed Allison from her position as head cheerleader,

omitted additional photographs of Allison from the high school

annual, suspended her from participation on the cheerleading

squad for several weeks, denied her the opportunity to speak at

the sports banquet, and threatened to expel her from the squad

outright were she convicted of the MIP charge. See Pls.' Second

Am. Compl., ¶¶ 13-15, 18, at 5-6 (R. No. 21). These actions do

not reach the level of a constitutional deprivation, as the

district court noted in its opinion: "To treat plaintiff's

complaints as asserting constitutional violations 'would tend to

trivialize the Fourteenth Amendment by making it a magnet for all

claims involving personal information, state officers, and

unfortunate indignities.'" Coontz v. Katy Ind. Sch. Dist., No.

H-96-3413, slip op. at 7 (S.D. Tex. June 23, 1997) (R. No. 19)
13

(citation omitted). And, although Texas may provide a state tort

remedy for intentional infliction of emotional distress, this

does not transform the Coontzes' claim into a constitutional tort

to be free from state-caused humiliation or mental anguish,

unless the actions of the state that caused the distress are

brutal and shocking. Thus, the Coontzes cannot convert their

failed tort claim into a section 1983 constitutional claim. See,

e.g., Collins, 503 U.S. at 128; F.M. Prop. Operating Co. v. City

of Austin, 93 F.3d 167, 174 (5th Cir. 1996).

Finally, the school's response to Allison's Mardi Gras

incident must have been rationally related to some legitimate end

or else the school overstepped its authority. It is clear by now

that a school may legitimately address the problem of off-campus

drinking and drug use among the school-aged children in its

charge. The Supreme Court's opinion in Vernonia makes this

apparent. See Vernonia, 115 S. Ct. at 2394-96. The question,

then, is whether the penalties Read administered to Allison were

rationally related to that legitimate purpose. See Collins, 503

U.S. at 1070 ("The Due Process Clause is not a guarantee against

incorrect or ill-advised . . . decisions."). A reasonable fit

will be adequate. See Reno v. Flores, 507 U.S. 292, 305 (1993). 

The Plaintiff argues they were not. See Pls.' Second Am. Compl.,

¶ 16, at 5 (R. No. 21). We think it apparent that all of the

disciplinary measures Read chose are at least reasonably related

to the school's legitimate goal of deterring off-campus alcohol

consumption among its student body.
14

IV. Sex-Based Discrimination

Title IX and the Equal Protection Clause both protect

individuals from invidious government decisionmaking based on the

characteristic of sex. See 20 U.S.C. § 1681 (1994). As support

for their claim that Allison's punishment was due to her sex, the

Coontzes point to lesser sanctions applied to football players,

who were male. Assuming, as the Coontzes allege, that the

football players were treated differently, we find the Coontzes'

argument unavailing. Although football players and cheerleaders

are both athletes and participants in school-sponsored extracurricular activities for purposes of our reading of Vernonia,

above, football players and cheerleaders need not follow

identical codes of conduct for purposes of an Equal Protection

Clause analysis. The Coontzes must make a showing that the

groups are situated similarly, or that the difference in

treatment between football players and cheerleaders is traceable

to the sex that predominates among the members and not to other

differences between the groups. We hold that the Coontzes have

failed to provide any factual support for their sex-based

discrimination claims, and AFFIRM the district court's order

dismissing them.

AFFIRMED.