United States District Court, N.D. Texas, Dallas Division
ANA POLOCENO, individually and as next friend of A.I., a Minor, Plaintiff,
DALLAS INDEPENDENT SCHOOL DISTRICT and KEENAN WASHINGTON, Defendants.
MEMORANDUM OPINION AND ORDER
BROWN UNITED STATES DISTRICT JUDGE
the Court are Defendant Dallas Independent School
District's and Defendant Keenan Washington's Motions
to Dismiss Plaintiff's Second Amended Complaint (Docs. 60
and 61). For reasons that follow, the Motions are granted and
Plaintiff's claims are dismissed with prejudice.
Ana Poloceno brings this suit individually and on behalf of
her minor daughter, A.I. This case was transferred to Judge
Ada Brown on September 18, 2019. On June 21, 2019, the
previous judge granted the Defendants' Motions to Dismiss
Plaintiff's First Amended Complaint. Plaintiff was
granted leave to replead certain claims and filed a Second
Amended Complaint. In her Second Amended Complaint, Plaintiff
alleges that A.I. was a student at a middle school in the
Dallas Independent School District (DISD) and Washington was
her physical education teacher. If students did not wear gym
clothes for P.E., they had to do “ceiling jumps”
as punishment. A “ceiling jump” is when a person
squats down with both hands and hips to the floor and then
jumps up with hands to the ceiling. As the school year
progressed, the number of ceiling jumps given as punishment
increased. In the first six weeks of the school year, the
number of jumps required was 30. In April 2016, a student who
did not dress properly for P.E. had to do 260 ceiling jumps.
On about April 15, 2016, A.I. failed to wear the appropriate
clothes to P.E. class. As punishment, Defendant Washington
forced A.I. to do about 260 ceiling jumps without taking a
break. It was only the second time that school year that A.I.
failed to wear gym clothes to P.E., and she did not have the
endurance of others who regularly did not dress appropriately
for P.E. Washington knew this, and knew at least five female
students had recently gone to the school nurse complaining of
pain from the jumps, but proceeded with the punishment. A.I.
was bedridden for a few days after the incident. Her
condition grew worse, and she was hospitalized for almost a
week and diagnosed with rhabdomyolysis, breakdown of muscle
tissue. Child Protective Services and DISD conducted
investigations of Washington for the discipline imposed on
A.I. The DISD investigator found “violations for
student discipline, corporal punishment, and student welfare
and wellness against Defendant Washington.”
asserts two claims in her Second Amended Petition. She
alleges DISD violated Title IX of the Education Amendments of
1972 and contends Washington is liable pursuant to Section
22.0511 of the Texas Education Code. Both defendants have
moved to dismiss Plaintiff's claim for failure to state a
claim upon which relief can be granted.
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). If a plaintiff fails to satisfy Rule
8(a), the defendant may move to dismiss the plaintiff's
claims for “failure to state a claim upon which relief
may be granted.” Id. 12(b)(6). To survive such
a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, 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 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. In reviewing a motion to dismiss under Rule
12(b)(6), the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable
to plaintiff. Walker v. Beaumont Indep. Sch. Dist.,
938 F.3d 724, 735 (5th Cir. 2019).
IX Claim Against DISD
IX prohibits sex discrimination by recipients of federal
education funding. Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 173 (2005). The statute provides
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). Title IX is
enforceable through an individual's private right of
action and allows for the recovery of damages. Davis v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999).
Because Title IX was enacted under the Spending Clause,
private damages actions are available only where recipients
of federal funding had adequate notice that they could be
liable for the conduct at issue. Id. at 640.
plaintiff can bring a Title IX claim when there is an
official policy of intentional discrimination by an
institution. See Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290 (1998). A plaintiff can also
bring a Title IX claim when an institution itself
intentionally acted in clear violation of Title IX by
remaining deliberately indifferent to acts of discrimination
of which it had actual knowledge. Davis, 526 U.S. at
642; see Jackson, 544 U.S. at 182 (deliberate
indifference to sexual harassment constitutes intentional
discrimination on basis of sex); Gebser, 524 U.S. at
290 (requirements of actual notice and deliberate
indifference are restricted to cases that do not involve
entity's official policy). To violate Title IX, a funding
recipient need not have intended to violate Title IX, but
need only have intended to treat women differently.
Pederson v. La. State Univ., 213 F.3d 858, 881 (5th
First Amended Petition, Plaintiff alleged that Washington
treated boys and girls the same even though professional
standards of care required him to treat them differently. She
asserted that Washington's P.E. program violated Title IX
because it did not consider the physical and metabolic
differences between boys and girls. Plaintiff alleged DISD
was liable under Title IX because A.I.'s school principal
and nurse both knew that female students were more likely
than males to be injured by Washington's punishment.
previous judge granted DISD's motion to dismiss the Title
IX claim in Plaintiff's First Amended Petition for
multiple reasons. First, Plaintiff did not allege facts
showing intentional discrimination. Her allegations that boys
and girls were treated the same supported only a potential
disparate impact claim, and Title IX does not provide a
remedy for a disparate impact claim. In addition, even if
Plaintiff's disparate impact claim was viable under Title
IX, to establish DISD's liability, Plaintiff was required
to allege that an appropriate person had actual knowledge of
the alleged discrimination and responded with deliberate
indifference. Plaintiff did not allege facts showing actual
knowledge of an appropriate person or deliberate
indifference. Plaintiff did not provide factual allegations
to support her conclusory assertion about the principal's
knowledge. As for the existence of deliberate indifference,
Plaintiff did not allege how DISD handled the first five
injuries, and there was no evidence DISD was aware of them.
Also, DISD investigated the incident involving A.I.
Plaintiff's Second Amended Petition, Plaintiff asserts
that Washington treated A.I. and other female students the
same as the male students in physical education class when
A.I. should have been treated “substantially
different.” Plaintiff again alleges DISD violated
A.I.'s rights pursuant to Title IX by having “a
physical exercise program that did not consider the physical
and metabolic differences between boys and girls.” The
paragraph in which she sets out a claim for violations of
Title IX (paragraph VIII), is identical to the Title IX
paragraph in her First Amended Complaint. She alleges the
elements of a Title IX claim, including that the defendant
entity must be on notice of the mistreatment and be
deliberately indifferent to the mistreatment. Plaintiff also
alleges that DISD's failure “to have effective
policies, procedures, practices, customs and professional
training programs in place to insure A.I. was not a victim of
discrimination” violated her rights under Title IX.
Motion to Dismiss the Second Amended Complaint, DISD contends
Plaintiff has not cured the deficiencies in the pleadings.
DISD argues Plaintiff's Second Amended Complaint does not
identify an official policy of sex discrimination. DISD also
argues that Plaintiff has again failed to state facts showing
DISD had actual knowledge of discrimination and acted with
has not alleged facts amounting to an official policy of
discrimination. To the extent she alleges DISD
failed to have a policy in place, the failure to
promulgate a policy does not constitute discrimination under
Title IX. Gebser, 524 U.S. at 292.
response to DISD's motion to dismiss, Plaintiff asserts
that her Title IX claim is viable pursuant to a
“heightened risk analysis.” The phrase
“heightened risk analysis” does not appear in the
Second Amended Complaint. Plaintiff argues in her response
that the discrimination at issue is her heightened risk that
the exercise regimen would injure female students. She
further argues that the heightened risk was known by a staff
member with authority to change the ...