Are they burpees? Ceiling jumps? Squat thrusts? Up’n downs? Whatever you call them, are they legal?

The 5th Circuit has affirmed a ruling in favor of Dallas ISD in a case involving excessive physical punishment.  The mother of an 11-year old girl alleged that her daughter suffered physical injuries after a P.E. coach required the girl to do 260 “ceiling jumps.”  Here’s how the court defined this exercise:

A ceiling jump involves squatting down with both hands and hips to the floor, then jumping up with one’s hands toward the ceiling.

When I was in junior high, the coach called these “squat thrusts.”  Some folks apparently call this form of exercise “burpees.” Whatever you call it, it’s no fun, and doing it 260 times without a break, as a result of failing to “dress out” for P.E. could be classified by some as an “aversive technique” prohibited by Texas law.  But the case in Dallas arose in 2016, before that law was enacted.  The mother sued Dallas ISD, the coach, the principal and a school nurse, alleging that her daughter’s constitutional rights had been violated, and that the district violated Title IX.

The lower court dismissed the suit entirely in two opinions.  In a nutshell, the message from the court was that a suit like this belongs in state court, not federal court.  Did the coach inflict an excessive punishment?  DISD investigators determined that he did.  That could lead to personal liability for the coach in state court.  But his actions did not violate any constitutional rights. Nor did the district engage in intentional sex discrimination in violation of Title IX

The only issue appealed to the Circuit Court was about sex discrimination under Title IX.  But the allegations in the case expressly said that the teacher treated the boys and the girls the same.  So how could treating the kids the same be discriminatory?  The court tells us that the Petition:

alleged that [the teacher] treated boys and girls the same even though professional standards of care required him to treat them differently.  She asserted that [the teacher’s] P.E. program violated Title IX because it did not consider the physical and metabolic differences between boys and girls.

Give us our due—we lawyers are a clever bunch.  Only a clever lawyer can take a statute that requires equal treatment of boys and girls and then assert that a teacher who treats the boys and girls the same has violated the statute.  Clever. But clever does not mean correct.

The lower court held that this argument “is just another way of alleging disparate impact” which is a theory of liability that Title IX does not permit.  The district was not liable because the district did not intentionally violate Title IX. The 5th Circuit affirmed that reasoning and that result.

The lower court’s first decision was on June 21, 2019 and can be found at 2019 WL 2568681.  It’s in the Daily Dawg on September 16, 2019.  Its second decision came out on December 30, 2019, and is at 2019 WL 7305216.  That one was reported in the Daily Dawg on February 24, 2020.  The 5th Circuit decision was issued on September 10, 2020. The 5th Circuit opinion is “unpublished” which means it will not show up in the official reports, and is not to be cited as precedent. But it sure makes for interesting reading.  All three opinions are styled Poloceno v. Dallas ISD, 2020 WL 5494511. 


Tomorrow: a major decision from the 5th Circuit