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

                                                                            FILED
                                                                        December 20, 2007

                                     No. 07-20348                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


Rose Cooke Meyers,
individually and as next friend of
Janell L. Meyers

                                                  Plaintiff-Appellant,
v.

La Porte Independent School District

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  No. H-05-1097


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
       Plaintiff-appellant Rose Cooks Meyers (“Meyers”) appeals the district
court’s grant of defendant-appellee La Porte Independent School District’s
(“LPISD”) motion for summary judgment on the 42 U.S.C. §§ 1981 and 1983



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
claims Meyers filed on behalf of her daughter, Jannell Meyers (“Jannell”).
Finding no error, we AFFIRM.
                                   I. BACKGROUND
      In January 2005, Meyers filed a lawsuit in Texas state court alleging that
LPISD denied Jannell the “opportunity to participate and to perform at the level
at which she was capable” on its varsity and junior varsity softball teams in
violation of 42 U.S.C. § 1983, 42 U.S.C. § 1981, 20 U.S.C. § 1681 (“Title IX”), and
the Fourteenth Amendment’s Equal Protection Clause.1 Between 2000 and
2003, Jannell played on the LPISD junior varsity softball team. She played on
the varsity team during the 2003-04 school year. Meyers alleged that the teams’
coaches discriminated against Jannell and denied her playing time on the basis
of her race.       As a result, Jannell allegedly lost scholarships and other
opportunities to play softball at the collegiate level.
      LPISD removed the case to federal court and later moved for summary
judgment, which the district court granted in April 2007. Meyers filed a timely
notice of appeal and challenges only the district court’s disposition of her section
1981 and 1983 claims.
                                   II. DISCUSSION
A.    Standard of Review
      Meyers argues the district court erred in granting summary judgment
because she presented prima facie evidence of racial discrimination by Jannell’s
coaches. We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. MacLachlan v. ExxonMobil
Corp., 350 F.3d 472, 478 (5th Cir. 2003). A court should grant summary
judgment when “the pleadings, depositions, answers to interrogatories, and


      1
          Meyers also asserted various state law tort claims against LPISD.

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admissions on file, together with the affidavits, if any, show that there is no
genuine issue at to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
see also Fed. R. Civ. P. 56(c). Facts are material only if they “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
B.    Section 1983
      Title 42 U.S.C. § 1983 provides in relevant part:
            Every person who, under color of any statute,
            ordinance, regulation, custom, or usage, of any State or
            Territory or the District of Columbia, subjects, or
            causes to be subjected, any citizen of the United States
            or other person within the jurisdiction thereof to the
            deprivation of any rights, privileges, or immunities
            secured by the Constitution and laws, shall be liable to
            the party injured in an action at law, suit in equity, or
            other proper proceeding for redress.

A local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents. Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983. Monell v. Dep’t of Social
Servs. of New York, 436 U.S. 658, 694 (1978); see also Jett v. Dallas Indep. Sch.
Dist., 7 F.3d 1241 (5th Cir. 1993) (holding that a school district was not
vicariously liable for the unlawful actions of its superintendent). The plaintiff
must identify the specific policy or custom, and show that the final policy maker,
through its “deliberate conduct,” was the “moving force” behind the violation.
Bryan County v. Brown, 520 U.S. 397, 405 (1997). Under Texas law, final



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policymaking authority in an independent school district rests with the district’s
board of trustees. Jett, 7 F.3d at 1245.
      Although Meyers produced some evidence that Jannell was subject to
racial discrimination by her coaches, even assuming that evidence is true Meyers
did not identify any official policy or established custom that was the source of
the discrimination, nor did she produce any evidence that LPISD was the
“moving force” behind the coaches’ decision to limit Jannell’s playing time. See
Brown, 520 U.S. at 405. Additionally, Meyers produced no evidence that LPISD
knew about or had constructive knowledge of any potential discrimination by the
coaches. See Pineda v. City of Houston, 291 F.3d 325, 330 (5th Cir. 2002)
(stating that plaintiff must show that policymaker knew about repeated
violations in order for the violations to become a “custom”). On this record, the
district court did not err by granting summary judgment to LPISD on Meyers’
§ 1983 claim.
C.    Section 1981
      Section 1981 ensures that all persons in the United States have the same
right to make and enforce contracts and prevents impairment of those rights by
government and non-government actors. See 42 U.S.C. § 1981. But § 1981 does
not provide an independent cause of action. Oden v. Oktibbeha County, 246 F.3d
458, 462-63 (5th Cir. 2001). In order to remedy violations of § 1981, a plaintiff
must assert a cause of action under § 1983. Id. Meyers’s independent § 1981
claim—not brought through § 1983—against LPISD is contrary to Jett v. Dallas
Indep. Sch. Dist.: “[T]he express ‘action at law’ provided by § 1983 for the
‘deprivation of any rights, privileges, or immunities secured by the Constitution
and laws,’ provides the exclusive federal damages remedy for the violation of the
rights guaranteed by § 1981 when the claim is pressed against a state actor.”


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491 U.S. 701, 735 (1989); see also Felton v. Polles, 315 F.3d 470, 482 (5th Cir.
2002). This requirement “is not a mere pleading formality.” Felton, 315 F.3d at
482   Because Meyers brought her § 1981 claim independently of her § 1983
claim, the district court did not err by granting summary judgment to LPISD.
      We observe that even if Meyers had pleaded her § 1981 claim correctly,
Meyers was required to show that LPISD’s conduct interfered with an actual
contractual relationship, not a speculative or prospective one. Morris v. Dillard
Dep’t Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). But Meyers alleged only
that LPISD’s conduct, that is, the coaches’ conduct, prevented Jannell from
potential “opportunit[ies]” to play collegiate softball. Therefore, because she did
not allege or show the existence of an actual contractual relationship, or even
some kind of offer from a college or university, she failed to state a claim upon
which relief could be granted. Morris, 277 F.3d at 751.
      The judgment of the district court is AFFIRMED.




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