Question: I have to Discuss the meaning and significance of footnote 13 what I have given below.

Summay:

Background: High-school student brought 1983 action against school

district, claiming it had violated Title IX because it had been

deliberately indifferent to her alleged student-on-student harassment,

had violated the Equal Protection Clause by engaging in a policy or

practice that caused others to harass her sexually, and had retaliated

against her in violation of Title IX for complaining about the

harassment. The United States District Court for the Northern District

of Texas, 2010 WL 445939, Paul D. Stickney, United States Magistrate

Judge, granted summary judgment in favor of the district. Student

appealed.

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that:

1 student failed to establish that another student's alleged

harassment was based on sex;

2 alleged harassment was not severe, pervasive, or objectively unreasonable;

3 school's responses to claims of alleged harassment were not clearly

unreasonable; and

4 principal's failure to notify Title IX coordinator or superintendent

of complaints of alleged sexual harassment was not clearly

unreasonable.

Affirmed.

West Headnotes (19)Collapse West Headnotes

Change View

1Federal CourtsSummary judgment

A court of appeals reviews a summary judgment de novo.

16 Cases that cite this headnote

2Civil RightsSexual harassment; sexually hostile environment

A school district that receives federal funds may be liable for

student-on-student harassment under Title IX if the district (1) had

actual knowledge of the harassment, (2) the harasser was under the

district's control, (3) the harassment was based on the victim's sex,

(4) the harassment was so severe, pervasive, and objectively offensive

that it effectively barred the victim's access to an educational

opportunity or benefit, and (5) the district was deliberately

indifferent to the harassment. Education Amendments of 1972, 901(a),

20 U.S.C.A. 1681(a).

47 Cases that cite this headnote

3Civil RightsSexual harassment; sexually hostile environment

Same-sex sexual harassment is actionable under Title IX; the offensive

behavior, however, must still be based on sex, per the words of Title

IX, and not merely tinged with offensive sexual connotations.

Education Amendments of 1972, 901(a), 20 U.S.C.A. 1681(a).

22 Cases that cite this headnote

4Civil RightsSexual harassment; sexually hostile environment

One female high-school student calling another female high school

student a "ho" did not constitute harassment based on sex, as required

to support a same-sex sexual harassment claim under Title IX, where

the student referred to the other student only once as a "ho" and did

not even make the comment to her directly. Education Amendments of

1972, 901(a), 20 U.S.C.A. 1681(a).

11 Cases that cite this headnote

5Civil RightsSexual harassment; sexually hostile environment

One female high-school student's conduct, in slapping the buttock of

another female student's boyfriend and perhaps starting rumors that

the other student was pregnant and that the other student had a hickey

on her breast, was more properly described as teasing or bullying,

rather than as harassment based on sex, and therefore did not support

a same-sex sexual harassment claim under Title IX. Education

Amendments of 1972, 901(a), 20 U.S.C.A. 1681(a).

19 Cases that cite this headnote

6Civil RightsSexual harassment; sexually hostile environment

Civil RightsEducation

Harassment on the basis of sex is the sine qua non of a Title IX

sexual harassment case, and a failure to plead that element is fatal.

Education Amendments of 1972, 901(a), 20 U.S.C.A. 1681(a).

5 Cases that cite this headnote

7Civil RightsSexual harassment; sexually hostile environment

One female high-school student's alleged harassment of another female

student, which included calling the other student a "ho," slapping the

buttock of the other student's boyfriend, and perhaps starting rumors

that the other student was pregnant and that the other student had a

hickey on her breast, was not severe, pervasive, or objectively

unreasonable, as required to support a same-sex sexual harassment

claim under Title IX; harassing student was acting like a typical

high-school girl whose ex-boyfriend began dating a younger

cheerleader. Education Amendments of 1972, 901(a), 20 U.S.C.A.

1681(a).

10 Cases that cite this headnote

8Civil RightsSexual harassment; sexually hostile environment

Peer harassment is less likely to support liability under Title IX

than is teacher-student harassment. Education Amendments of 1972,

901(a), 20 U.S.C.A. 1681(a).

12 Cases that cite this headnote

9Civil RightsSexual harassment; sexually hostile environment

Whether conduct rises to the level of actionable harassment under

Title IX depends on a constellation of surrounding circumstances,

expectations, and relationships, including, but not limited to, the

ages of the harasser and the victim and the number of individuals

involved. Education Amendments of 1972, 901(a), 20 U.S.C.A.

1681(a).

3 Cases that cite this headnote

10Civil RightsSexual harassment; sexually hostile environment

For a school to be liable under title IX, its response, or lack

thereof, to harassment must be clearly unreasonable in light of the

known circumstances; that is a high bar, and neither negligence nor

mere unreasonableness is enough. Education Amendments of 1972,

901(a), 20 U.S.C.A. 1681(a).

23 Cases that cite this headnote

11Civil RightsSexual harassment; sexually hostile environment

Schools are not required to remedy harassment under Title IX or accede

to a parent's remedial demands, and courts should refrain from

second-guessing the disciplinary decisions made by school

administrators. Education Amendments of 1972, 901(a), 20 U.S.C.A.

1681(a).

3 Cases that cite this headnote

12Federal Civil ProcedureCivil rights cases in general

There is no reason why courts, on a motion for summary judgment in a

Title IX harassment action, could not identify a school's response as

not "clearly unreasonable" as a matter of law. Education Amendments of

1972, 901(a), 20 U.S.C.A. 1681(a).

5 Cases that cite this headnote

13Civil RightsSexual harassment; sexually hostile environment

School district's responses to female high-school student's claims

that another female student called her a "ho," slapped the buttock of

her boyfriend, and perhaps started rumors that she was pregnant and

that she had a hickey on her breast, were not clearly unreasonable, as

required for the district to be liable under Title IX for the alleged

harassment; each time the student lodged a complaint, a school

official took statements from the students, who often gave conflicting

accounts, and, after the "ho" incident, the alleged harasser was

immediately transferred out of one of the complaining student's

classes, and, after investigating the other three incidents, the

school determined that no further action was warranted considering the

non-severity of the allegations and the lack of interaction between

the girls at that time. Education Amendments of 1972, 901(a), 20

U.S.C.A. 1681(a).

4 Cases that cite this headnote

14Civil RightsSexual harassment; sexually hostile environment

Ineffective responses to harassment are not necessarily clearly

unreasonable under Title IX. Education Amendments of 1972, 901(a),

20 U.S.C.A. 1681(a).

9 Cases that cite this headnote

15Civil RightsSexual harassment; sexually hostile environment

High-school principal's failure to notify the Title IX coordinator or

superintendent of complaints of alleged sexual harassment, as directed

by the district's harassment policy, was not clearly unreasonable, so

as to constitute deliberate indifference to the alleged harassment

under Title IX; had the principal notified the Title IX coordinator or

superintendent, they would have directed the principal, according to

district policy, to conduct interviews and weigh the merits of the

allegations, which was precisely what the principal did. Education

Amendments of 1972, 901(a), 20 U.S.C.A. 1681(a).

26 Cases that cite this headnote

16Civil RightsSexual harassment; sexually hostile environment

A school district's failure to comply with its regulations does not

establish the requisite deliberate indifference for a Title IX

harassment claim. Education Amendments of 1972, 901(a), 20 U.S.C.A.

1681(a).

27 Cases that cite this headnote

17Civil RightsSex Discrimination

Title IX does not require flawless investigations or perfect

solutions. Education Amendments of 1972, 901(a), 20 U.S.C.A.

1681(a).

7 Cases that cite this headnote

18United States Magistrate JudgesAbuse of discretion review in general

A court of appeals review denials of motions to vacate a reference of

a civil matter to a magistrate judge for abuse of discretion. 28

U.S.C.A. 636(c)(4).

3 Cases that cite this headnote

19United States Magistrate JudgesWithdrawal or vacation

Dissatisfaction with a magistrate judge's decision does not constitute

"extraordinary circumstances" sufficient to warrant vacatur of

reference to the magistrate judge. 28 U.S.C.A. 636(c)(4).

4 Cases that cite this headnote

Attorneys and Law Firms

*159 Harold Dean Jones (argued), Jessica Renee Brown Wilson (argued),

Littler Mendelson, P.C., Dallas, TX, for Plaintiff-Appellant.

Cynthia L. Hill (argued), Henslee Schwartz, L.L.P., Fort Worth, TX,

Donald G. Henslee, Henslee Schwartz, L.L.P., Austin, TX, Meredith

Prykryl Walker, Henslee Schwartz, L.L.P., Dallas, TX, for

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, DeMOSS and OWEN, Circuit Judges.

Opinion

JERRY E. SMITH, Circuit Judge:

Samantha Sanches appeals summary judgment on her claims of sex

discrimination and retaliation under 20 U.S.C. 1681(a) ("title IX")

and 42 U.S.C. 1983. Reduced to its essentials, this is nothing more

than a dispute, fueled by a disgruntled cheerleader mom, over whether

her daughter should have made the squad. It is a petty squabble,

masquerading as a civil rights matter, that has no place in federal

court or any other court. We find no error and affirm.

I.

Sanches was a student, and sometimes a cheerleader, at Creekview High

School ("Creekview"), in the Carrollton-Farmers BranchIndependent

School District, from 2005 to 2009. She alleges that during the spring

of her junior year in 2008, she was sexually harassed by J.H., who was

a Creekview senior and female cheerleader.

J.H. and Sanches's problems began in March 2008, when J.H. was

suspended from cheerleading for one week for posting inappropriate

Facebook photos. J.H. believed that Sanches's mother, Liz Laningham,

had turned over the photos to Creekview administrators, so J.H.

threatened to get back at Sanches. On March 12, Laningham warned Cyndi

Boyd, Creekview's principal, about J.H.'s comments. Boyd directed Lisa

Leadabrand, an assistant principal, to set up a conference with J.H.

and her mother to discuss J.H.'s actions.

The same day that Laningham emailed Boyd and Leadabrand about J.H.'s

threats, Laningham sent three additional emailstwo of which are

germane1describing what she characterized as violations of Sanches's

rights. The first email accused another senior cheerleader, K.O., of

hazing because K.O. had read a letter to the cheer class that

discussed her frustration with the team and some of the cheerleaders'

parents.2 Laningham thought the *160 letter was directed at Sanches

and her. The second email accused three senior cheerleadersK.O.,

M.W., and J.H.of hazing because they announced that they would make

the 2008-09 cheerleader tryouts "as hard as possible so the juniors

won't make it."3 The seniors' plan was not, however, a response to the

March Facebook incident: Laningham complained as early as February

that the seniors were "going to make the dance extremely hard so the

current juniors won't make it."4

On March 26, J.H. saw Sanches walking down the hall with J.H.'s

ex-boyfriend, C.P., and discovered that Sanches had been dating C.P.

since spring break.5 J.H. was upset, and as she walked into the sixth

period class she shared with Sanches, J.H. said loudly to her friends

that she was in the presence of a "ho" and "would beat her ass if it

weren't for cheerleading." Sanches knew that J.H. was referring to

her, and Sanches left sixth period class to call her mother. Laningham

immediately contacted the administration, and within two hours

Leadabrand assured Laningham that she was investigating the incident.

Leadabrand interviewed and took statements from J.H., Sanches, two

students who overheard the comments, and the sixth-period teacher.

They gave conflicting accounts about what was said, but all agreed

that there was visible tension between J.H. and Sanches. Leadabrand

switched J.H. to a different sixth period class within five days.

Laningham was worried that the senior girls would try to disadvantage

her daughter in the upcoming cheerleader tryouts on April 18; she was

upset at what she believed to be the administration's preferential

treatment of the senior cheerleaders over Sanches. As a result,

Laningham's lawyer wrote a six-page letter to the superintendent,

Annette Griffin, complaining of a range of activity: Laningham's

belief that Creekview favored J.H., K.O., and M.W. over Sanches;

problems with the booster club; Laningham's conflict with the

administration over the end-of-year video; and other alleged wrongs.6

*161 In her letter, Laningham spent two sentences discussing the "ho"

incident but consumed four paragraphs complaining about the booster

club's dissolution and a full page discussing her affront at being

asked to turn over production of the end-of-year video to others.

Laningham asked for the following relief: (1) that the current junior

cheerleaders, including Sanches, be permitted to skip tryouts and

automatically be placed on the varsity squad; (2) that Boyd,

Leadabrand, and McAtee "be held accountable for their actions and

inaction"; and (3) legal costs. Laningham did not ask for any remedy

for harassment, nor did she describe the "ho" incident as sexual

harassment.

The school district responded to Laningham's letter on April 17, the

day before tryouts, through its attorney. The letter noted that "[t]he

District takes all such allegations seriously, and, with advice and

assistance from this firm, intends in due course to fully and

thoroughly review such matters and the requested categories of

relief." Preliminarily, however, it notified Laningham that the

tryouts would proceed as scheduled. The district believed that the

process was fair and impartial: Unbiased judges unaffiliated with

Creekview scored the participants, and even if the routine was

excessively difficult, it was equally difficult for all the girls.

Before the district sent that response, however, Creekview made

changes to the cheerleader tryouts of its own accord. The week of

April 14-18 consisted of a clinic at which the students who wanted to

try out for the squad learned the routines and practiced with the

guidance of the seniors and coaches. On Monday night, after the first

night of the clinic, J.H., K.O., and M.W. drove by Sanches's house

intending to run up to the front door, ring the doorbell, and run

away. But as the girls sat in their car parked outside the house,

Laningham saw the girls and chased them away.

The girls voluntarily told Leadabrand what they had done, and

Leadabrand in turn reported their actions to Boyd. After investigating

the incident further, Boyd notified the girls and their parents on

Wednesday, April 16, that they would not be allowed to participate in

the clinic for the rest of the week. Boyd explained that such action

was necessary "to protect the cheer process, make it equitable to all,

and remove any possible threat of perceived intimidation." In response

to that punishment, nine of the ten varsity cheerleaders quit the

team.

Ultimately, Sanches did not make the varsity squad. She argues that

her scores were suspiciously lower than prior years' tryouts, but she

has not pointed to any evidence that the outside judges were partial

*162 in any way. There is also no evidence that any senior cheerleader

was present during tryouts.

Sanches was allegedly devastated by not making the squad. It was at

that point that Laningham began to escalate her complaints against

J.H. On April 23, Laningham sent three emails to Boyd complaining of

sexual harassment against Sanches.

She claimed (1) that on April 11, J.H. had overheard Sanches in the

locker room discussing a rash on Sanches's breast, then J.H. started a

rumor that Sanches "had a hickey on her boob"; (2) that on April 15,

J.H. "cornered" Sanches in the hallway during a passing period, "told

[her] that she [J.H.] was having sex with [C.P.]," and "physically

touched her by wiping the tears from [Sanches's] eyes"; and (3) that

on April 22, J.H. slapped C.P.'s buttock as she walked by Sanches and

C.P. and stated that "your ass is so cute and you and [Sanches] are so

cute!" Laningham made sure to point out in her emails that the first

incident occurred on "the last school day prior to tryout week," the

second on "the second day of tryout week."

Boyd investigated all three incidents and took statements from the

parties involved. She discovered that J.H. was not in the locker room

when Sanches discussed the mark on her breast, so J.H. could not have

overheard Sanches. J.H. also completely denied the allegation.

Further, Sanches was the one who began openly discussing the rash in

front of many girls. Regarding the hallway incident, J.H. admitted to

talking to Sanches and wiping away her tears but said she was doing so

to comfort Sanches because she understood that C.P. was "playing" both

of them. Regarding the butt-slap incident, J.H. again admitted to her

actions, but C.P. did not find the slap offensive, so no action was

taken.

On April 29, while Creekview was investigating Laningham's three

complaints, J.H.'s parents wrote Boyd a letter describing their

"formal complaint for harassment of [their] daughter" by Laningham and

Sanches for bringing unsubstantiated and frivolous complaints against

J.H. They stated that the administration was unfairly "allow[ing] one

parent to drive an entire program and influence decision making," and

they believed that removing J.H. from the tryout process was

unreasonable. Further, they noted that J.H. was taking anti-anxiety

medication because of Laningham's actions and because of false rumors

in the student body that J.H. had vandalized the Laninghams' home.

They requested that the administration uphold its "obligation to

protect all students" equally.

After completing the investigation, Creekview decided not to take

further action against Sanches or J.H. The administration was

receiving conflicting reports about the incidents from both girls and

their parents, and by that point in the school year, J.H. had quit

cheerleading and thus was no longer in any of Sanches's classes or

extracurricular activities.

Unhappy that their daughter had not made the varsity squad, Sanches's

parents filed a grievance with the district on May 1 for "failure to

provide an equal opportunity tryout for Varsity Cheer" and "failure to

ensure that all candidates were eligible to tryout." The Laninghams

mentioned the hickey incident and the hallway incident in which J.H.

wiped Sanches's tears, but only in the context of alleging that those

incidents created sufficient stress on Sanches that she was at an

unfair disadvantage for tryouts. The remainder of the ten-page

grievance discussed other complaints the Laninghams had with the

fairness of Creekview's tryouts. The "only" relief they sought was for

the district to place *163 Sanches on the varsity cheer squad

immediately.

On May 9, J.H.'s mother emailed Boyd, Leadabrand, and another

assistant principal, Phyllis Reed, to complain that Sanches had

harassed J.H. The mother accused Sanches of besmirching J.H.'s

reputation by telling another student in her sixth period that J.H.

was pregnant with C.P.'s baby. Reed took statements from two students

in that class on May 12, and Leadabrand took Sanches's statement on

May 14. The same day that Leadabrand spoke to Sanches, Laningham

emailed Boyd to report that it was J.H. who had allegedly harassed

Sanches by spreading the same pregnancy rumor. Laningham asserted that

J.H. had started the rumor to upset Sanches, but J.H. adamantly denied

that allegation, and there is no evidence in the record to support

Laningham's conclusional accusations based on hearsay.

At some point in May, the district informed Laningham that it would

not place Sanches on the cheerleading squad. On June 4, Laningham

appealed that decision, noting that in the first grievance procedure,

the overseeing administrator had characterized the alleged harm as

"that [Sanches] did not make varsity cheer." Laningham stressed that

in addition to that harm, she was alleging that Sanches

suffered irreparable harm from April 11-18 at the hands of Creekview

cheerleaders, Creekview students, Creekview teachers, Creekview

administrators and CFBISD administrators, which included acts of

trespassing, hazing, harassment, sexual harassment, mental abuse,

deliberate neglect, and failure of school officials to act upon these

transgressions resulting in the infliction of undue emotional distress

and mental anguish upon our daughter and a tainted and unfair

cheerleader tryout.

Despite what appear to be very serious allegations, Laningham's

requested relief did not address the alleged student-on-student

harassment in any way other than asking that "each coach, teacher and

administrator who failed in their duties ... be held accountable by

the District." In addition, Laningham asked that Sanches be placed on

the varsity squad, that all cheerleader activities for the upcoming

year be done anew (including "the selection of big sis/lil sis cheer

families"), that the district reimburse the Laninghams for their legal

fees, and that the district and Creekview read an apology to the

Laninghams in front of the cheerleading organization.

The district denied Laningham's appeal, but Laningham appealed that

denial on July 4 to the district's board of trustees. In her final

grievance filing, Laningham made a larger issue of the alleged

harassment than in her past filings. In the last paragraph, she

asserted that the district had been indifferent to the "emotional

distress and mental anguish our daughter continues to suffer" and

reasserted her concern that Sanches was not "provided a fair and

equitable tryout." The Board denied Laningham's final appeal.

On August 14, Boyd sent Laningham a formal report outlining

Creekview's investigations of and responses to five of Laningham's

allegations of harassment: the "ho" incident, the hickey incident, the

hallway incident, the butt-slap incident, and the pregnancy

rumor.7Boyd's findings, in addition to noting that J.H. had already

graduated, are summarized as follows:

*164 The "ho" incident: There was apparent tension between Sanches

and J.H., so J.H. was removed from Sanches's sixth-period class;

The hickey incident: There was no evidence that J.H. had spread the

rumor, and Sanches had openly discussed the mark on her breast in the

locker room in front of many girls;

The hallway incident: Sanches and J.H. stated that J.H. was only

trying to comfort a visibly upset Sanches, so no harassment had

occurred;

The butt-slap incident: The school reviewed a video recording of the

incident and, after speaking with C.P., Sanches, and J.H., determined

that no harassment had occurred, yet still verbally warned J.H.;

The pregnancy rumor: Boyd did not believe that the rumor constituted

sexual harassment, and because of the conflicting allegations of J.H.

and Sanches, and the fact that Sanches had admitted to spreading the

rumor as well, the school did not punish anyone.

Over the summer, Sanches began seeing a psychiatrist, who diagnosed

her with depression and prescribed medication. Sanches claims that she

did not want to go back to school and took a course over the summer so

she could graduate a semester early. Her grades fell from a 3.0

average her sophomore year to 2.71 her junior year, then rose to 2.86

her senior year.8 She did not want to participate in senior

activities, cried often, and had passive suicidal thoughts (although

she admitted that she never tried and never would try to kill

herself). In her brief and affidavit, Sanches claims that the alleged

harassment caused her emotional distress, but when asked during her

deposition to describe instances at school when she became emotional,

she described breakdowns that resulted from not having made the

cheerleading squad.

II.

Sanches sued the district in September 2008, claiming it had violated

title IX because it had been deliberately indifferent to her alleged

harassment. She also claimed, under 1983, that the district had

violated the Equal Protection Clause by engaging in a policy or

practice that caused others to harass her sexually. Finally, she

claimed that the district retaliated against her in violation of title

IX and 1983 for complaining about the harassment.

The magistrate judge, to whom this matter was referred by consent,

granted the district summary judgment on only the harassment claims

under title IX and 1983 but issued an amended opinion and order that

also granted the district summary judgment on both retaliation claims.

Sanches filed a motion with a district judge to vacate the magistrate

judge's opinion and order, but the district judge denied it. Sanches

appeals summary judgment on all four claims and the district judge's

decision not to vacate the magistrate judge's ruling.

III.

1"We review [a] summary judgment de novo." Dunn-McCampbell Royalty

Interest, Inc. v. Nat'l Park Serv., 630 F.3d 431, 435 (5thCir.2011).

Summary judgment is appropriate if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter

of law. FED.R.CIV.P. 56(a); *165 Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant has

the burden of showing that summary judgment is appropriate, Celotex

Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986), and we view the evidence in the light most favorable to the

non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the

moving party has carried its burden, the non-movant must come forward

with specific facts showing a genuine factual issue for trial. Id.

Conclusional allegations and denials, speculation, and unsupported

assertions are insufficient to avoid summary judgment. SEC v. Recile,

10 F.3d 1093, 1097 (5th Cir.1993).

A. Title IX.

2Title IX states: "No 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).

A school district that receives federal funds may be liable for

student-on-student harassment if the district (1) had actual knowledge

of the harassment, (2) the harasser was under the district's control,

(3) the harassment was based on the victim's sex, (4) the harassment

was "so severe, pervasive, and objectively offensive that it

effectively bar[red] the victim's access to an educational opportunity

or benefit," and (5) the district was deliberately indifferent to the

harassment. See Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of

Educ., 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). As a

matter of law, J.H.'s conduct was not sexual harassment, it was not

severe, pervasive, or objectively unreasonable, and the school

district was not deliberately indifferent.

1.

34Same-sex sexual harassment is actionable under title IX. Doe ex rel.

Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5thCir.1998). The

offensive behavior, however, must still be based on sex, per the words

of title IX, and "not merely tinged with offensive sexual

connotations." Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st

Cir.2002). Sanches cites only two cases to support her claim that

J.H.'s calling Sanches a "ho" was based on her sex. In the first, Doe

v. East Haven Board of Education, 200 Fed.Appx. 46 (2d Cir.2006), a

girl who was raped off-campus endured daily verbal harassment for five

weeks following the rape, including being called a "slut," "liar,"

"bitch," and "whore." In the second case, Riccio v. New Haven Board of

Education, 467 F.Supp.2d 219 (D.Conn.2006), the victim was called a

variety of pejorative epithets daily, including "bitch," "dyke," and

"freak," taunted as the "lesbian lover" of another female student, and

threatened with physical harm constantly. J.H. referred to Sanches

only once as a "ho" and did not even make the comment to her directly.

That is hardly comparable to the harassment suffered by the students

in Frazier and East Haven, and it by no means qualifies as harassment

at all.

56Nor does the rest of J.H.'s conduct appear to be based on Sanches's

sex, and Sanches does not cite a single case for support. J.H. was

upset with Sanches because Sanches was dating J.H.'s ex-boyfriend and

because J.H. believed Laningham had gotten her in trouble with the

school. There is nothing in the record to suggest that J.H. was

motivated by anything other than personal animus. Her conductslapping

C.P.'s buttock and perhaps starting rumors that she was pregnant and

that Sanches had a hickey on her breastis more properly described as

*166 teasing or bullying than as sexual harassment. Because harassment

"on the basis of sex is the sine qua non of a Title IX sexual

harassment case, and a failure to plead that element is fatal,"

Frazier, 276 F.3d at 66, the district is entitled to summary judgment

on the title IX claim.

2.

7Even if J.H.'s alleged harassment was based on sex, it was not

severe, pervasive, or objectively unreasonable. Sanches cites several

cases and argues that the alleged harassment she suffered was just as

severe as or worse than what those victims endured. All of those

cases, however, involve conduct much more severe, pervasive, or

objectively unreasonable than what Sanches claims she was subjected

to.

8First, she cites Hayut v. State University of New York, 352 F.3d 733

(2d Cir.2003), in which during every biweekly class, for the entire

semester, a male professor called a female student "Monica" because he

thought she looked like Monica Lewinsky. When the student spoke to

other students during class, the professor said, "Be quiet, Monica. I

will give you a cigar later." Id. at 739. At the first class after

almost every weekend, the professor would ask her, "How was your

weekend with Bill?" Id. The professor also made negative comments

about women's proper social status and exhibited a general hostility

toward females. Id. at 748. In Hayut, the victim and harasser were a

student and professora much more formal relationship that

"necessarily affects the extent to which the misconduct can be said to

breach" title IX. See Davis, 526 U.S. at 653, 119 S.Ct. 1661. Peer

harassment is less likely to support liability than is teacher-student

harassment. Id.

Next, Sanches cites East Haven, which, as discussed above, involved

the daily mocking, for five weeks, of a student who had been raped.

Being constantly called a "liar" and a "slut" after having been raped

is undoubtedly more severe than being called a "ho" once for nabbing

one's friend's ex-boyfriend.

Third, Sanches relies on Roe ex rel. Callahan v. Gustine Unified

School District, 678 F.Supp.2d 1008 (E.D.Cal.2009), in which a

ninth-grade boy was physically, sexually, and verbally assaulted at

football camp. The upperclassmen held him down, shoved an air pump up

his rectum, and turned it on. He was sexually assaulted in the shower

and hit in the head with a pillowcase filled with heavy objects. One

boy even smacked the victim across the face with his penis. J.H.'s

wiping Sanches's tears off her face in a facetious manner and slapping

C.P.'s buttock while Sanches held his hand is much less offensive than

the abuse the victim in Roe suffered. Sanches's description of that

victim as having been "rough-housed and exposed during football

practice and called a 'fag' and a 'homo' " is a profound

mischaracterization and understatement of the sexual harassment that

boy suffered.

Finally, Sanches cites Doe ex rel. Pahssen v. Merrill Community School

District, 610 F.Supp.2d 789, 808-09 (E.D.Mich.2009), in which a boy

threw a girl against her locker, told her he wanted her to perform

oral sex on him, made sexual gestures toward her, and ultimately raped

her. The court did not consider the rape in determining the harm that

resulted from the district's inactions, but it did consider the rape

in determining the severity of the harassment.9 Even though *167

Sanches claims that she "is not arguing that her experience at the

District compares with cases of sexual assault," she goes on to say

that "her junior year was a nightmare of gender-based bullying and

harassment." She asserts that "[a]nalogies will never be perfect, but

the case law is illustrative." But the caselaw she refers to

illustrates only that the conduct she alleges is nothing like what was

perpetrated against the plaintiffs in the cases cited.

9In addition to the fact that Sanches has not cited any precedent that

supports her arguments, looking at J.H.'s conduct against the Supreme

Court's strenuous standard leaves little doubt that the treatment of

Sancheseven if it was harassment at allwas not severe, pervasive, or

objectively unreasonable. Whether conduct rises to the level of

actionable harassment "depends on a constellation of surrounding

circumstances, expectations, and relationships, including, but not

limited to, the ages of the harasser and the victim and the number of

individuals involved." Davis, 526 U.S. at 651, 119 S.Ct. 1661

(internal citations and quotation marks omitted).

In distinguishing actionable harassment under title VII from that

under title IX, the Davis Court explained that courts "must bear in

mind that schools are unlike the adult workplace and that children may

regularly interact in a manner that would be unacceptable among

adults." Id."[E]arly on, students are still learning how to interact

appropriately with their peers. It is thus understandable that, in the

school setting, students often engage in insults, banter, teasing,

shoving, pushing, and gender-specific conduct that is upsetting to the

students subjected to it." Id. at 651-52, 119 S.Ct. 1661. Thus, to be

actionable, the harassment must be more than the sort of teasing and

bullying that generally takes place in schools; it must be "severe,

pervasive, and objectively unreasonable." Id. at 652, 119 S.Ct. 1661.

The Court further warned, in response to the concern that a school

might be liable for any negative student interactions, that courts

should not be "mislead ... to impose more sweeping liability than"

what title IX requires. Id.

Were we to find that Sanches's alleged harassment was severe,

pervasive, and objectively unreasonable, no conduct would be beyond

the reach of title IX. Dating and relationships are an inescapable

part of high school, as is the resulting stress. It is a trying time

for young people, who experience a wide range of emotions and often

lack the skills to control them. J.H. was acting like a typical

high-school girl whose ex-boyfriend began dating a younger

cheerleader. That is the sort of unpleasant conflict that takes place

every day in high schools, and it is not the proper stuff of a federal

harassment claim.

It makes no difference to our analysis that Sanches was sincerely

upset, and we assume that she was. The standard is not subjective;

instead it is whether the harassment was severe, pervasive, and

objectively unreasonable. J.H.'s conduct may have been inappropriate

and immature and may have hurt Sanches's feelings and embarrassed her,

but it was not severe, pervasive, and objectively unreasonable.

Summary judgment is appropriate.

3.

101112The school district was not deliberately indifferent to the

alleged harassment. For a school to be liable under title IX, its

response, or lack thereof, to the harassment must be "clearly

unreasonable in light of the known circumstances." Id. at 648, 119

S.Ct. 1661.That is a high bar, and neither negligence nor mere

unreasonableness is enough. Id. at 642, 648, 119 S.Ct. 1661. Schools

are not required to *168 remedy the harassment or accede to a parent's

remedial demands, id. at 648, 119 S.Ct. 1661, and "courts should

refrain from second-guessing the disciplinary decisions made by school

administrators," id. "[T]here is no reason why courts, on a motion ...

for summary judgment ... could not identify a response as not 'clearly

unreasonable' as a matter of law." Id. at 649, 119 S.Ct. 1661.

Sanches has put forth two arguments why the school's response was

clearly unreasonable: first, that the administration conducted sham

investigations that did not remedy the harassment; and second, that

Creekview did not follow the district's procedures for reporting

sexual harassment, thus making any action Creekview took clearly

unreasonable. Neither argument is convincing.

a.

13Sanches asserts that school officials unfairly dismissed her

allegations without investigating the incidents. She acknowledges that

Creekview took statements after each reported event, spoke to J.H.

about her conduct, and removed J.H. from her sixth-period class and

cheerleading tryouts, but that those responses were ineffective, so

the school's investigations were shams.

14Ineffective responses, however, are not necessarily clearly

unreasonable. In Doe ex rel. Doe v. Dallas Independent School

District,220 F.3d 380 (5th Cir.2000), a student reported that a

teacher had sexually assaulted him. The principal interviewed the

student, the student's mother, and the teacher. The principal

concluded, erroneously, that the assault had not taken place, yet

warned the teacher "that he would be 'dealt with' if the accusations

were founded [and] that he should avoid acting in a way that could be

misconstrued." Id. at 388.The teacher had actually molested several

boys and was ultimately convicted of sexual assault and indecency with

a child. We stated that as tragic as the consequences were, the

principal's actions, although ineffective, were not clearly

unreasonable. Id.

Similarly, the district's responses here were not clearly unreasonable

merely because the actions continued or because Laningham was unhappy

that the district did not remove J.H. from cheerleading or force-place

Sanches onto the squad. Each time Laningham lodged a complaint, a

school official took statements from the students, who often gave

conflicting accounts. After the "ho" incident, J.H. was immediately

transferred out of Sanches's class. That the school left them together

in their fourth-period cheerleading class is not clearly unreasonable.

Considering J.H.'s actions up until that point, we will not

second-guess the school's belief that minimizing the number of

interactions between the girls might alleviate their tension and that

removing one of them from the squad was itself an unreasonable step in

light of the circumstances.

It was only after Sanches failed to make the squad that Laningham

began her barrage of accusations against J.H. It is true that the

hickey, hallway, and butt-slap incidents occurred during tryout week

and may have caused Sanches stress, but Creekview was not notified of

those occurrences until after tryouts were over. By that point, Boyd's

banning of the senior cheerleaders from tryouts had induced all the

senior girls, except one, to quit, so Sanches no longer had any

classes or extracurricular activities with J.H. Creekview's

investigations of those three incidents led to conflicting statements

from the girls, and so it determined that no further action was

warranted considering the non-severity of the allegations and the *169

lack of interaction between the girls by that time.

Laningham demanded, because of what she believed to be the

impartiality of tryouts and the undue stress that Sanches suffered,

that the school immediately force-place Sanches on the varsity squad.

Officials at Creekview and the district investigated her concern, and

all reached the same conclusion: There was no evidence that other

girls received preferential treatment during tryouts; the difficult

routine did not place Sanches at an unfair disadvantage; and impartial

judges had scored the girls. We emphatically decline to say that the

district's decision not to place Sanches on the cheerleading squadthe

very source of her troublesconstitutes deliberate indifference to any

harassment.

The district's actions also stand in sharp contrast to those in other

cases in which school officials were deliberately indifferent.10 J.H.

threatened to "get back" at Sanches for turning in the Facebook

photos, so the school held a conference with J.H. and her mother to

address the threats. J.H. called Sanches a "ho," so the school

transferred her out of that class. J.H. may have started the hickey

rumor, wiped away Sanches's tears in a facetious manner, and slapped

C.P.'s buttock as he walked down the hall with Sanches, but by then

J.H. had already been banned from cheerleading tryouts and had quit

the squad. The last incidentthe pregnancy rumorwas actually first

reported by J.H.'s mother in an effort to stop Sanches from spreading

the story. That the district's response was to take no further action,

when both girls claimed they did not want the rumor spread any

further, is not clearly unreasonable.

b.

15Sanches claims the district was deliberately indifferent because it

failed to follow its own procedures regarding sexual-harassment

complaints. Sanches states that the harassment policy directs a

principal to contact the district's title IX coordinator or the

superintendent immediately following any allegation of harassment, and

Boyd's failure to do so is evidence of deliberate indifference.

16But just because Boyd allegedly failed to follow district policy

does not mean that her actions were clearly unreasonable. A district's

"failure to comply with [its] regulations ... does not establish the

requisite ... deliberate indifference." Gebser v. Lago Vista Indep.

Sch. Dist.,524 U.S. 274, 291-92, 118 S.Ct. 1989, 141 L.Ed.2d 277

(1998). In Gebser, the Court noted that it has never held "that the

implied private right of action under Title IX allows recovery in

damages for violation of those sorts of administrative requirements."

Id. at 292, 118 S.Ct. 1989.

17Even if Boyd had reported the conduct to the title IX coordinator or

the superintendent, Creekview's administrators took precisely the

action that the policy required.

11 In Rost ex rel. K.C. v. *170 Steamboat Springs RE-2 School

District, 511 F.3d 1114 (10th Cir.2008), a district failed to follow

its own policy that an administrator should interview the alleged

offender and victim to determine whether the harassment had occurred.

Instead, the administrator relied on law enforcement's investigations

of the incident. "Perhaps the district should have independently

interviewed the boys involved instead of relying on Officer Patrick's

investigation and periodic reports, but such an allegation would sound

in negligence, not deliberate indifference." Id. at 1122. Title IX

does not require flawless investigations or perfect solutions. Id.

(citing Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 129 S.Ct.

788, 172 L.Ed.2d 582 (2009)).

If Boyd had notified the title IX coordinator or superintendent of

Laningham's complaints, they would have directed her, according to

district policy, to conduct interviews and weigh the merits of the

allegations, which is precisely what Boyd did. Her failure immediately

to report Laningham's numerous complaints is therefore not clearly

unreasonable, so the district was not deliberately indifferent to

Sanches's alleged harassment. Because the supposed harassment was not

based on sex, it was not severe, pervasive, or objectively

unreasonable, and the district was not deliberately indifferent to it,

we affirm summary judgment on the title IX claim.

B. Title IX Retaliation.

Sanches claims that she received no notice that the magistrate judge

would be addressing her title IX retaliation claim, so there was a

violation of the ten-day notice requirement of Federal Rule of Civil

Procedure 56. That is incorrect. Although the district did not

explicitly state in its initial brief that it sought summary judgment

as to both Sanches's title IX harassment and retaliation claims, it

did clarify its motion to seek summary judgment for both in its reply

brief. The magistrate judge did not mention Sanches's title IX claim

in his initial order of summary judgment, but that does not negate the

fact that the district's reply brief put Sanches on notice.

Sanches's substantive argument regarding the retaliation claim is also

unconvincing. To establish title IX retaliation, Sanches must show

that the district or its representatives took an adverse action

against her because she complained of harassment. Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 174, 125 S.Ct. 1497, 161

L.Ed.2d 361 (2005). Sanches asserts that Leadabrand "joined forces"

with J.H. "while posing as the one 'investigating' Sanches's

complaints." Sanches argues that Leadabrand's behavior empowered J.H.

and gave her "free reign to sexually harass, intimidate, and try to

mentally destroy Sanches, to teach Sanches a lesson for reporting

sexual harassment."

Those conclusional statement are not supported by the record: J.H. was

removed from Sanches's class, Leadabrand reported J.H. to Boyd after

the drive-by incident that led to J.H.'s ban from the clinic, and by

the time the administration had heard about the hickey, hallway,

and*171 butt-slap incidents, J.H. had already quit cheerleading. There

is no support in the record for Sanches's flimsy arguments, so we

affirm summary judgment on her title IX retaliation claim.

C. Section 1983 Claim.

To state a claim under 1983 for a violation of the Equal Protection

Clause, Sanches must show that her sexual harassment was the result of

a policy or practice of the district. Fitzgerald, 129 S.Ct. at 797.

Sanches argues that the harassment of her was caused by the district's

"practice of deliberate indifference to allegations of harassment." As

discussed above, however, (1) any harassment was not based on her sex,

so there is no constitutional violation; and (2) there is no evidence

that the district was ever deliberately indifferent, so we affirm

summary judgment for the district.

D. Section 1983 Retaliation Claim.

To overcome summary judgment on her 1983 retaliation claim, Sanches

must present some evidence that the district retaliated against her

because she complained of sex discrimination. Cf. Jackson, 544 U.S. at

184, 125 S.Ct. 1497 (stating the standard in the similar title IX

context). Sanches asserts that the district did so by "sponsoring

students reading defamatory letters in class relating to Sanches,"

departing from district policy regarding sexual harassment complaints,

and "creating blockades and consistent difficulties for Sanches."

Those assertions, however, are unsupported by the record. First, after

Laningham informed Boyd of the letter that K.O. had read to the

cheerleading class, Boyd reprimanded McAtee and told him she was even

considering removing him from his coaching position for the following

year. Second, as mentioned above, Boyd's failure to notify the title

IX administrator was not clearly unreasonable. And finally, the

"blockades and consistent difficulties" that Sanches refers to are the

district's multiple denials, through the grievance process, to

reinstate her on the cheerleading squad, because it believed that

there was no evidence that the tryouts had been conducted unfairly.

Because Sanches has failed to point to any evidence that the district

retaliated against her, we affirm summary judgment on this claim.

IV.

This matter was referred for final decision to Magistrate Judge Paul

Stickney by mutual consent of the parties pursuant to 28 U.S.C.

636(c). After Judge Stickney had issued his amended opinion and order,

Sanches filed a motion with the district court to vacate the summary

judgment under 28 U.S.C. 636(c)(4), which provides that a district

"court may, for good cause shown on its own motion, or under

extraordinary circumstances shown by any party, vacate a reference of

a civil matter to a magistrate under this subsection." The district

court denied the motion, and Sanches appeals.

1819We review denials of motions to vacate under 636(c)(4) for abuse

of discretion. See Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283

F.3d 282, 292 (5th Cir.2002). Sanches argues that extraordinary

circumstances exist because Judge Stickney applied improper legal

standards and dismissed her 1983 claims without analysis or review.

She cites only one case in support, but it is completely irrelevant.12

All parties gave consent here, and *172 the district court applied the

correct legal standard on all issues. Dissatisfaction with a

magistrate judge's decision does not constitute "extraordinary

circumstances."

Not content to raise this issue of law in a professional manner,

Sanches and her attorneys launched an unjustified attack on Magistrate

Judge Stickney. The main portion of the argument on this point,

contained in Sanches's opening brief, reads verbatim as follows:

The Magistrate's egregious errors in its [sic] failure to utilize or

apply the law constitute extraordinary circumstances, justifying

vacateur [sic] of the assignment to [sic] Magistrate. Specifically,

the Magistrate applied improper legal standards in deciding the Title

IX elements of loss of educational opportunities and deliberate

indifference, ignoring precedent. Further, the Court failed to

consider Sanches' Section 1983 claims and summarily dismissed them

without analysis or review. Because a magistrate is not an Article III

judge, his incompetence in applying general principals [sic] of law

are [sic] extraordinary.

(Footnote omitted.)

These sentences are so poorly written that it is difficult to decipher

what the attorneys mean, but any plausible reading is troubling, and

the quoted passage is an unjustified and most unprofessional and

disrespectful attack on the judicial process in general and the

magistrate judge assignment here in particular. This may be a

suggestion that Magistrate Judge Stickney is incompetent. It might be

an assertion that all federal magistrate judges are incompetent. It

could be an allegation that only Article III judges are competent. Or

it may only mean that Magistrate Judge Stickney's decisions in this

case are incompetent, a proposition that is absurd in light of the

correctness of his impressive rulings. Under any of these possible

readings, the attorneys' attack on Magistrate Judge Stickney's

decisionmaking is reprehensible.13

Footnotes

1

The third email accused the junior varsity cheer coach, Tim McAtee, of

shoving Sanches onto the court before the start of a basketball game

where Sanches was cheering. McAtee told the administration that

Sanches and another cheerleader were late because they were talking to

some boys during the National Anthem, so he grabbed them by the arm

and told them to get out onto the court.

2

Boyd spoke with McAtee, the coach in charge of Sanches's cheerleading

class, and notified him that she was considering removing him as a

cheerleading coach for the following year because he had allowed K.O.

to read the letter.

3

The senior cheerleaders choreograph the tryout routine each year.

4

Laningham then suggested many ways in which Creekview could change the

tryout process.

5

C.P. and J.H. dated for three years and broke up at the beginning of

their senior year.

6

Laningham has a long history of complaining about Creekview's

cheerleading program in general and Sanches's treatment in particular.

The following is a non-exhaustive list of Laningham's actions in this

regard:

Oct. 2005: Asked for the freshman squad captain to be removed from

her position as captain because she kissed Sanches's then-boyfriend

and told Sanches about it.

Aug. 2006-Jan. 2007: Complained about the booster club's gifts to

Coach Westby (the booster club threw her a baby shower), alleging that

the gifts were in violation of state interscholastic rules. She also

complained about the booster club's methods of amending the bylaws.

The booster club voluntarily dissolved in the spring of 2007 because

of Laningham's complaints.

May 2007: Asked Boyd to switch Sanches out of her cheerleading stunt

group because she believed it was unsafe. The cheerleading coach

informed Boyd that the stunt group was, in her professional opinion,

perfectly safe.

Sept. 2007: Complained that the end-of-year banquet was scheduled at

a time that did not work for three cheerleaders, including Sanches,

and argued that the seniors should not be allowed to dictate a date

that was not convenient for the entire team.

Oct. 2007: Complained about the way the squad chose who would be

doing jump sequences at homecoming.

Jan. 2008: Laningham and her husband, Sanches's stepfather, wrote

several emails demanding to know which cheerleaders' parents did not

want Laningham compiling the end-of-year video. The administration

finally caved and allowed Laningham to produce the video. After

completing it, she did not return pictures submitted by other parents

until their lawyer threatened suit.

Feb. 2008: Emailed Creekview's athletic director, Renee Putter,

regarding what Laningham believed to be infractions of the Cheerleader

Constitution by senior cheerleaders J.H., K.O., and M.W. She described

sixteen separate infractions and noted the demerits that she believed

each called for. Laningham complained about the favoritism she

believed the coaches and administration showed toward those

cheerleaders, because they had not been punished. She requested that

J.H. be removed from the squad and that K.O. and M.W. be benched for

three weeks.

Mar. 2008: Complained that McAtee had "publicly humiliated and

degraded Sami and the juniors twice at banquet" and that J.H. had

"publicly humiliated Samantha and our family at banquet." Apparently,

by leaving "the juniors out on multiple occasions in several speeches"

at the banquet, McAtee had left "the juniors humiliated and in tears."

According to Laningham, J.H. publicly humiliated Sanches and her

family by wearing a chef's hat similar to the one in her inappropriate

Facebook photos.

7

Boyd noted that Laningham had voiced many other complaints in the

preceding months, but those actions were not addressed in the report,

because they were not covered by the district policy pertaining to

discrimination, harassment, and retaliation.

8

Sanches also argues that she was denied admission to Texas Tech

University, her top choice, because she did not have a B(3.0) average.

9

As soon as the district learned of the rape, it expelled the boy, and

thus, as the plaintiffs appeared to concede, the district's response

to the rape was not deliberately indifferent and so could not form the

basis for liability. Merrill, 610 F.Supp.2d at 809.

10

See Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248 (11th Cir.2010)

(in which a teacher sexually assaulted several students, many students

reported the assaults, but the teacher was suspended for only a short

time, then was allowed to resume teaching); Patterson v. Hudson Area

Schs., 551 F.3d 438 (6th Cir.2009) (in which the sexual assaults of a

student increased in severity over a period of five years, but the

school took no action to deter the harassers and tried to separate the

victim using an alternative teaching method that it knew did not

work); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 259 (6th

Cir.2000) (in which a student was physically and sexually assaulted,

and the school did not conduct any investigations or discipline any

students).

11

The policy states: "Upon receipt or notification of a report, the

District official shall determine whether the allegations, if proven,

would constitute sexual harassment or other prohibited harassment as

defined by District policy. If so, the District official shall

immediately authorize or undertake an investigation.... The

investigation may be conducted by the District official or a designee,

such as the campus principal.... The investigation may consist of

personal interviews with the person making the report, the person

against whom the report is filed, and others with knowledge of the

circumstances surrounding the allegations. The investigation may also

include analysis of other information or documents related to the

allegations."

12.SeeMurret v. City of Kenner,894 F.2d 693, 694-95 (5thCir.1990)(upholding a district court's decision to vacate a jury trial conducted by a magistrate because not all parties had consented to the referral).

13

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word "principals" should have been "principles." The word "vacatur" is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject ("incompetence") and a plural verb ("are"). Magistrate Judge Stickney is referred to as "it" instead of "he" and is called a "magistrate" instead of a "magistrate judge." And finally, the sentence containing the word "incompetence" makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term "incompetence" is used here, because the only thing that is incompetent is the passage itself.