The facts alleged in B.W. v. Austin ISD would probably not occur in most of Texas. The plaintiff alleges longstanding harassment and bullying because of his vocal support for former President Trump. He wore the hat, had Trumpian stickers on his laptop, and wore a Ted Cruz shirt. He alleges that this produced a cascade of bullying and harassment that was open for all to see. He alleged that teachers were part of this, failing to take any corrective action and sometimes joining in the harassment. He was accused of being a racist, anti-gay, anti-feminist. He says he was criticized for being a Christian, a Republican and a white person. He claims to have been the only kid who stood when the Pledge of Allegiance was broadcast on the loud speaker and that his patriotic gesture was greeted with “America is only for white people,” spoken by another student.
He lost his case. The basic problem comes under the “barking up the wrong tree” category. He alleged racial harassment but the court found it all to be more political than racial. The suit alleged that the plaintiff was called a Nazi and KKK member, but the court noted that “this is just one of his many flawed attempts to conflate political with racial animus.” Key Quote:
The Complaint is replete with examples demonstrating that most of the incidents B.W. experienced were due to his ideological beliefs. B.W. fails to connect this political animus to the racial animus that he must show for his Title VI claim.
After all, Title VI is not about politics. It’s about race.
The case reminded me of Justice Scalia’s famous remark that all federal judges should have a big red stamp reading: STUPID, BUT CONSTITUTIONAL. This case suggests that there is another stamp they should have: APPALLING BEHAVIOR THAT MIGHT VIOLATE SOME LAW, BUT NOT THE ONE YOU THINK IT DOES.
The behavior alleged by students and faculty in this case is appalling to anyone of any political persuasion. It’s important to point out that the court’s opinion assumes the truth of the student’s allegations, which the court must do when considering a Motion to Dismiss. I hope the allegations in the case are not true. But true or not, they do not amount to harassment based on race.
What about bullying? Wasn’t this bullying? Yes it was. But again, the suit alleged racial discrimination. Key Quote:
The bullying alleged in this case is a cause for concern. But while we do not condone bullying in any form, Title VI does not support a claim for bullying generally. A plaintiff like B.W. must allege that he was harassed because of his race, color, or national origin. B.W. has failed to do so.
It’s B.W. v. Austin ISD, decided by the 5th Circuit in an “unpublished” opinion issued January 9, 2023, and cited at 2023 WL 128948.
DAWG BONE: OK, BUT LET’S SEE IF WE CAN PREVENT ALL KINDS OF BULLYING. HOW ABOUT THAT?
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.