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.
*. 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that this opinion should not be published and is not precedent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.
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
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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
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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
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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
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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
6
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 extra-
curricular 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.
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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
8
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
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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.
10
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,
11
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)
12
(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.
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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 extra-
curricular 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.
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