     Case: 17-30269      Document: 00514476951         Page: 1    Date Filed: 05/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 17-30269
                                                                                FILED
                                                                            May 17, 2018
                                                                           Lyle W. Cayce
REBEKKA ARCENEAUX,                                                              Clerk

              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court’s prior panel opinion is WITHDRAWN, and the following opinion is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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 17-30269
       Rebekka Arceneaux 1 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/when-
are-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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                                       No. 17-30269
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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                                 No. 17-30269
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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                                  No. 17-30269
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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                                     No. 17-30269
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.
                                            6
