A minor who was allegedly bullied for being white and supporting President-elect Donald Trump did not show he was harassed over his race, a divided federal appeals court ruled on Nov. 14 with several dissents.
The Texas boy, identified in court filings as Jon Doe or B.W., said that he was bullied by fellow students and teachers from October 2017, when he wore a “Make America Great Again” hat on a field trip, until the spring of 2020.
The bullying included an incident in which he was beaten repeatedly, according to a complaint filed against the Austin Independent School District by the boy and his parents.
“B.W.’s computer has Trump stickers on the casing. Another student, I.L., started tracing a swastika on the student’s back and then walked to B.W. and stated, ‘I’m going to beat the [expletive] out of you’—and the next thing B.W. remembers is being on the ground, bleeding,” the complaint stated.
“B.W. does not remember how many times he was struck but he knows it was repeated. He remembers having to check his mouth to check to see if he lost any teeth because he was punched so many times.”
Requests for help from school officials yielded no relief, prompting the boy’s parents to remove him from the district.
A U.S. district judge in 2022 dismissed the complaint, finding that there were no constitutional violations because no formal policies or regulations contributed to the situation.
Nine judges on the U.S. Court of Appeals for the Fifth Circuit on Thursday upheld the decision. Some of those judges did not outline their rationale.
B.W.’s complaint “sets forth the intense bullying and even physical assaults that he suffered over a course of years while in Austin public schools.”
“It is sickening and reprehensible that a middle-school and later high-school student would be subjected to what B.W. says he had to endure and that school officials did not act decisively to bring an end to the bullying and harassment,” U.S. Circuit Judge Priscilla Richman wrote in a concurring opinion joined by U.S. Circuit Judges Leslie H. Southwick, Dana M. Douglas, and Irma Carrillo Ramirez.
“But B.W.’s complaint, thirty-nine pages long, makes clear that the impetus for the harassment and bullying was his political beliefs, actions, and expressions and those of his classmates. The relatively few race-based comments recounted in the operative Complaint are not the sort of harassment that is actionable under Title VI,” a federal civil rights law.
According to the complaint, B.W. frequently suffered racial animus at school. It said that an aide in math class repeatedly called B.W. “whitey;” a substitute teacher told him, “I will not have a white man talk to me about gender issues”; a teacher told him she was “getting concerned about how many white people there are”; a student beat him up over his race; another student said, “America is only for white people”; and a third student made a meme depicting the boy as a member of the Ku Klux Klan, a white supremacist group.
The pattern, Richman said, quoting from a different ruling, shows that the harassment was primarily based on politics and does not rise to the “severe, pervasive, and objectively offensive’ conduct sufficient to give rise to a cause of action for damages.”
A panel of three judges of the appeals court had previously upheld the district court decision, but the full court agreed to consider the case.
Another nine judges dissented, saying they would have reversed the district court ruling.
“The panel opinion and Judge Richman’s en banc concurrence fail to draw all plausible inferences in B.W.’s favor. B.W.’s allegations of daily bullying—taken in context—plausibly amount to racial harassment,” U.S. Circuit Judge Jennifer Walker Elrod wrote in a dissent, joined by U.S. Circuit Judges Edith H. Jones, Jerry E. Smith, Don R. Willett, James C. Ho, Stuart Kyle Duncan, Kurt D. Engelhardt, Andrew S. Oldham, and Cory T. Wilson.
“When a student is physically attacked because of his race, his attacker brags about it to the whole school, and other students, teachers, and administrators mock him with specific reference to his skin color, it is certainly reasonable to infer that continued harassment of the victim is—at least in part—based on the victim’s race,” she said, adding that B.W. clearly alleged facts that meet the bar of “severe, pervasive, and objectively offensive” conduct.
Ho said in a separate dissent that B.W. was harassed for both racial and political reasons, for being white, Christian, and a supporter of Trump.
“It’s racist to characterize whites as racist. Because it’s racist to attach any negative trait to a group of people based on their race,” Ho said. “And it’s no less racist just because the victimized racial group is white.”
Share your thoughts by scrolling down to leave a comment.
