Jaylon Sewell alleges that he was harassed all year by the dean of students, starting on the first day of school. That day the dean asked teachers to send any student to the office who had dyed hair. The dress code prohibited “hair dyed with outlandish colors.” The student claims that the hair at Neville High School replicated the rainbow, that all sorts of kids, white and black, boy and girl, had dyed hair of “outlandish” colors. Jaylon’s hair was described as “two-toned blonde.” I have never thought of blonde as an “outlandish” color, but apparently someone did. Jaylon was sent to the office.
It turns out that the only students who were sent to the office that day were kids like Jaylon--African-American males, and Jaylon was the only one actually disciplined for violating the dress code. He was suspended on day one.
Jaylon’s mom was quick to complain of discrimination, meeting on the next day with the principal and the superintendent. Jaylon returned to school, where he claims that the dean of students began a campaign of verbal abuse, calling him a “thug” and a “fool.” Jaylon alleges that the man asked him if he “was gay with that ‘mess’ in his head.’”
The school suspended the student and recommended his expulsion in November. Jaylon alleges that was all based on phony charges cooked up by the dean of students. The school board voted not to expel, finding the timing of events suspicious. This all hit the media in the spring semester. As a result, Jaylon alleges that the harassment picked up steam, leading him to be distraught and traumatized.
Those are the allegations in the lawsuit. They have not been determined to be true. No testimony has been taken, and no one has been subject to cross-examination. But the court was ruling on the school’s Motion to Dismiss for Failure to State a Claim. In that situation the court is required to assume that all of the allegations are true, and to make all reasonable inferences from those allegations that would support the case. Courts are not going to toss a case out at an early stage unless they are sure that the allegations cannot plausibly add up to a legitimate claim.
The court concluded that Jaylon’s allegations plausibly make a case of racial discrimination in violation of Title VI and sex discrimination in violation of Title IX. How did the court come to that conclusion?
WAS IT ABOUT RACE? As to the racial angle, the court said:
First, it is plausible that [the dean’s] harassment of [the student] stemmed from a discriminatory view that African-American males should not have two-toned blonde hair. Most obviously, [the dean] treated [the student] differently from students who were not black males.
And he called [the student] a “thug,” a term that could be race-neutral or racially charged, depending on context….At the pleading stage, [the student] is entitled to the latter characterization.
WAS IT ABOUT SEX? There were sufficient allegations to sustain that charge also:
[The dean] asked if [the student] “was gay with ‘that mess’ in his head,” which could imply animus toward males who do not conform to stereotypical notions of masculinity.
HOW BAD WAS IT? This was a “hostile environment” case. To prevail on that theory you have to allege that the harassment was really bad. The legal verbiage is “severe, pervasive, and objectively offensive.” The court said that Jaylon passed that test:
Intense verbal abuse that comes from an authority figure—like a school administrator—and persists for most of the school year can constitute a hostile environment.
DID THE SCHOOL KNOW ABOUT IT? The superintendent knew about Jaylon’s allegations and that was enough to put the district on notice. The mom had spoken directly to the superintendent, and filed a grievance with the board, which the superintendent knew about. Not only did the superintendent have information about the dean’s alleged harassment of the student, he was in a position to put a stop to it. Thus an “appropriate person” allegedly knew what was happening and could have done something about it.
WAS THERE “DELIBERATE INDIFFERENCE”? This is where most “hostile environment” cases fall short. The court noted that “Deliberate indifference is a tall hurdle.” But at this early stage, the allegations are that the district did nothing after being put on notice. That’s enough to keep the case alive. Key Quote:
Doing nothing is the classic case of indifference.
Lessons? Harassment based on the failure to conform to gender stereotypes is the same as any other kind of sexual harassment. “Thug” may be viewed by a court as a racially-charged word. Verbal abuse by an administrator is a serious thing. The case is Sewell v. Monroe City School Board, decided by the 5th Circuit on September 10, 2020. We found it at 2020 WL 5416305.
And if anyone knows if Neville High School is named for Aaron Neville, please let me know. I did some Google research but did not find the answer.
DAWG BONE: MAYBE IT’S NOT SUCH A GREAT IDEA TO BAN “OUTLANDISH” COLORS OF HAIR.
Tomorrow: One for the Dawg’s Sheesh-O-Meter!