IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30269

REBEKKA ARCENEAUX, 

 Plaintiff - Appellant

v.

ASSUMPTION PARISH SCHOOL BOARD; NILES RICHE, 

 Defendants - Appellees

Appeal from the United States District Court 

 for the Eastern District of Louisiana 

 USDC No. 2:16-CV-6554

ON PETITION FOR REHEARING

Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.

PER CURIAM:*

IT IS ORDERED that the petition for panel rehearing is DENIED. The 

court’s prior panel opinion is WITHDRAWN, and the following opinion is 

SUBSTITUTED therefor.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 17, 2018

Lyle W. Cayce

Clerk

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Rebekka Arceneaux1 brought claims of gender discrimination under 

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and 42 

U.S.C. § 1983 against her former principal Niles Riche and the Assumption 

Parish School Board (“APSB”). After determining that Arceneaux failed to 

present evidence that could establish a prima facie claim of gender 

discrimination, the district court granted summary judgment for Defendants. 

For the following reasons, we AFFIRM.

I. BACKGROUND

Arceneaux was a member of the Assumption High School (“AHS”) varsity 

cheerleading team her freshman, sophomore, and junior years. After a photo 

of her with her uniform skirt raised appeared on a publicly viewable Snapchat

account,2 Arceneaux was punished with in-school suspension and dismissed 

from the cheerleading team for the remainder of her high school term because 

she exhibited “unacceptable behavior while in uniform” in violation of the AHS 

Cheerleaders/Mascot Discipline System (“Cheer Discipline Policy”).3

Arceneaux’s parents appealed her suspension. They claimed that, 

pursuant to the AHS Student Athlete Handbook (“Handbook”),4 Arceneaux 

 

1 Rebekka Arceneaux’s parents, Brian and Collette Arceneaux, first brought the claim 

on her behalf because she was a minor. When she reached the age of legal majority she was 

substituted as the plaintiff.

2 Snapchat is a social media platform that allows users to post items that are no longer 

viewable after twenty-four hours and send messages that are generally not viewable after 

initially opened. Snapchat, Snapchat Support, https://support.snapchat.com/en-US/a/whenare-snaps-chats-deleted (last visited Feb. 15, 2018). 

3 Relevant to this case, the Cheer Discipline Policy dismisses a cheerleader for one 

suspension or “any unacceptable behavior while in uniform or at a school function.” It further 

states that students who are dismissed from the team for disciplinary reasons “WILL NOT 

be allowed to try out for the next year’s squad.”

4 According to the Handbook, a student athlete is only prohibited from participating 

in an athletic event that occurs during the term of a first suspension. Whether a suspension 

results in dismissal from the team is “at the discretion of the coach, athletic director, and/or 

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could not be prohibited from trying out for the cheerleading team for the 

upcoming school year because she had only one suspension during her time at 

AHS. After being told that the appeal would not be considered, the Arceneauxs 

filed a formal grievance with APSB. APSB responded that Arceneaux’s conduct 

violated the Cheer Discipline Policy and the discipline was warranted. 

On May 19, 2016, Arceneaux’s parents filed this suit on her behalf 

alleging that the imposed discipline constituted gender discrimination under 

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and the Equal 

Protection Clause of the Fourteenth Amendment to the United States 

Constitution, which is actionable under 42 U.S.C. § 1983. Arceneaux argued

the policies regarding suspensions outlined in the Handbook are more lenient 

than those contained in the Cheer Discipline Policy. This discrepancy, 

Arceneaux claimed, resulted in her punishment being harsher than that 

received by male student athletes for the same or similar behavior, and 

amounted to gender discrimination.5 APSB argued that Arceneaux could not 

prevail on her claims because she could not point to an adequate comparator 

who was treated more favorably than she was. Instead of addressing that 

argument, the district court evaluated Arceneaux’s Title IX and Equal 

Protection claims using Title VII jurisprudence and the framework established 

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973), and granted 

 

principal.” However, a second suspension would render a student athlete “ineligible to 

participate in any sport for the remainder of that school year.” The Handbook expressly 

allows athletes who were dismissed from a sports team to participate in “any type of spring 

training or tryout sessions for the following school year.” The Handbook provides that “[e]ach 

head coach is responsible for compiling a set of eligibility rules and polices for his or her 

particular sport.” Varsity cheer sponsor, Lynn Daigle, satisfied this responsibility by creating 

the Cheer Discipline Policy. 

5 Arceneaux also brought a Title IX retaliation claim alleging that, in April 2016, the 

school retaliated against her by selecting her for a random drug test. The district court 

granted Defendants’ motion for summary judgment because Arceneaux was not tested.

Arceneaux does not challenge the retaliation decision on appeal, so it is waived. See Mapes v. 

Bishop, 541 F.3d 582, 584 (5th Cir. 2008).

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Defendants’ motion for summary judgment because the evidence that 

Arceneaux purported to be direct evidence of discrimination failed to carry her 

burden. Arceneaux timely filed this appeal.

II. STANDARD OF REVIEW

We review the district court’s order granting a summary judgment 

motion de novo. Haire v. Bd. of Supervisors of La. State Univ., 719 F.3d 356, 

362 (5th Cir. 2013). Summary judgment is appropriate where “there is no 

genuine dispute as to any material fact” and the evidence, taken in the light 

most favorable to the nonmoving party, establishes “the movant is entitled to 

judgment as a matter of law.” FED. R. CIV. P. 56(a); Haire, 719 F.3d at 362. “We 

may affirm summary judgment on any legal ground raised below, even if it was 

not the basis for the district court’s decision.” Performance Autoplex II Ltd. v. 

Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2015).

III. DISCUSSION

Title IX establishes that “[n]o 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.” 20 U.S.C. § 1681(a). AHS is a high school under 

the jurisdiction of the APSB, an entity that receives federal funding for the 

operation and benefit of AHS. Arceneaux alleges that APSB subjected her to 

intentional discrimination when its representatives removed her from the 

cheerleading team and excluded her from participation the following year 

pursuant to a discriminatory policy that punished female students more 

harshly than male students for the same or similar conduct.

Intentional discrimination may be proven through direct or 

circumstantial evidence. “If . . . the plaintiff presents direct evidence of 

discrimination, the burden of proof shifts to the employer to establish by a 

preponderance of the evidence that the same decision would have been made 

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regardless of the forbidden factor.” Etienne v. Spanish Lake Truck & Casino 

Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir. 2015) (citing Brown v. E. Miss. Elec. 

Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)). Understanding the difficulty 

in obtaining direct evidence of an individual’s mindset, the Supreme Court 

established a framework in McDonnell Douglas to prove intentional 

discrimination through the use of circumstantial evidence in Title VII claims.

411 U.S. at 803; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) 

(O’Connor, J., concurring) (“[T]he entire purpose of the McDonnell Douglas

prima facie case is to compensate for the fact that direct evidence of intentional 

discrimination is hard to come by.”).

Notably, the McDonnell Douglas framework’s applicability to Title IX 

claims is unsettled in this circuit. However, neither party on appeal contests 

the district court’s use of Title VII jurisprudence. The dispute in this case 

focuses on whether Arceneaux can establish a prima facie claim. So we assume, 

without deciding, that the Title VII framework is applicable. 

“The burden of establishing a prima facie case of disparate treatment is 

not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 

Yet still, viewing the record as a whole, Arceneaux failed to present direct or 

circumstantial evidence that, if believed, “would give rise to an inference of 

unlawful discrimination.” Id. To prevail, Arceneaux must prove that she was 

excluded from the team on account of her being a female student. She cannot 

do so. According to the record, Arceneaux was not excluded from participating 

in cheerleading because she was a female student. She was removed from the 

team because she posed for a photograph, raising her cheerleading uniform 

skirt, and that photo was posted to the internet. This discipline was pursuant 

to AHS’s Cheer Discipline Policy. The Cheer Discipline Policy documents did 

not contain language that could be construed as only applying to female 

cheerleaders. It is not facially discriminatory. Therefore, Arceneaux failed to 

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prove that she was excluded on the basis of sex, and her claims were properly 

dismissed.6 

IV. CONCLUSION

For the aforementioned reasons, we AFFIRM.

 

6 The parties acknowledged that the district court did not rule on Principal 

Arceneaux’s qualified immunity claim. Because the district court granted APSB’s motion for 

summary judgment in its entirety and dismissed Arceneaux’s claims with prejudice, it was 

not necessary for the court to conduct a qualified immunity analysis.

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