(CN) — A Texas school district’s lawyer said a student who opted for homeschool after he endured abuse from classmates and staff for wearing a MAGA hat, a Ted Cruz shirt and bringing a poster of the late conservative Supreme Court Justice Antonin Scalia to debate class has no viable racial discrimination claim.
B.W. says in October 2017, his eighth-grade year at O. Henry Middle School in Austin, he went from well-liked to a pariah because he wore one of Trump’s Make America Great Again hats on a field trip.
With classmates heckling him about his political beliefs, his parents met with Principal Marlo Malott the next month, and she said she would stop the harassment, according to B.W. and his parents.
But they say Malott did nothing to help him. Instead, they say she joined in the abuse.
As B.W. sat in class in February 2018 listening to music, Malott pulled one of his earbuds out and asked him in front of his classmates “Are you listening to Dixie?” then walked away laughing.
In the same semester, B.W. says he broke down in tears when he saw a meme the class president and his former friend D.K. had made of him as a hooded Ku Klux Klansman.
Unbowed, B.W. wore his MAGA hat that May while receiving his diploma at his graduation.
B.W. says in his first two years at Austin High School his classmates constantly called him racist and teachers and other staffers treated him with contempt.
He wore a Ted Cruz shirt, expressing his affinity for Texas' junior U.S. senator, and got insulted and kicked by one of his peers. He brought a poster of the late conservative Supreme Court Justice Antonin Scalia to his debate class and the teacher told him “You’re pissing me off!” in front of the whole class.
Once, when he raised his hand in math class, an aide sneered “You need help Whitey?”
In February 2019, B.W. recounts, he had his Trump sticker-adorned laptop out and was helping a classmate with an assignment when another student told him “I’m going to beat the shit out of you,” before attacking him and leaving him on the floor dazed and bleeding.
B.W. and his parents reported the incident to the school district’s police department, but they say nothing was done about it and B.W. later heard a rumor that the bully said he had assaulted him because he is white.
B.W.’s parents filed two grievances with the high school’s officials over the bullying. In response, administrators let him use a “safe bathroom,” leave class if he felt unsafe and see the school counselor.
His parents also suggested, without success, that the high school convene an assembly on “diversity of thought.”
Four months after the Covid-19 pandemic shut down the district’s schools in March 2020, B.W. sued Austin ISD in federal court, claiming violations of his First Amendment free expression rights and his 14th Amendment due process and equal protection rights, and seeking monetary damages.
He never returned to Austin ISD and was homeschooled for his junior and senior years.
In the meantime, his legal team kept amending his lawsuit and he switched counsel midstream. His new attorney, Martin Cirkiel of Austin, chose a new strategy. He shed all claims save discrimination and retaliation under Title VI of the Civil Rights Act of 1964.
U.S. District Judge Lee Yeakel, a George W. Bush appointee, dismissed the lawsuit in February 2022, agreeing with a magistrate judge who screened the case that B.W. had not proven the harassment was based on race.
B.W. appealed to the Fifth Circuit and a three-judge panel affirmed dismissal in January 2023. But the appellate court revived the case in June, vacating the panel opinion and scheduling a rehearing before all its 17 active judges.
At Tuesday’s en banc hearing, Cirkiel said they had dropped all causes of action save a Title VI racial discrimination claim. But he contended the litigation has implications beyond his client.
“This case is important not just for B.W. because he’s a Republican, because he’s a Trump supporter. It’s important because we want all our kids to be safe when they go to school,” he said.
U.S. Circuit Judge Catharina Haynes, who was on the panel that rejected B.W.’s initial appeal, told Cirkiel she believes the case is about “political hurt,” not racial discrimination.
“Your own complaint said the first time he had a problem was when he wore the MAGA hat, which is not a racial matter,” Haynes said. “And I’m not saying people should discriminate against someone who supports Trump or who supports Biden or who supports anyone else. But that is not a Title VI violation.”
Plowing ahead, Cirkiel said B.W. had been harassed daily over the course of more than two years by several students and 11 educators. He appeared to win over U.S. Circuit Judge Jennifer Walker Elrod, another George W. Bush appointee.
She stated the lower court had erred in dismissing the case because even one instance of racial discrimination should be actionable, regardless if most of the bullying incidents B.W. suffered were based on his politics — a position backed by her colleague, U.S. Circuit Judge James Ho.
Ho, a Trump appointee, said he had tallied eight separate incidents in the lawsuit that involve a reference to B.W.’s race.
The school district’s counsel, Christopher Gilbert, disputed that take.
“You don’t have to trust me that it wasn’t about race,” he said. “The parents themselves and the student complained a lot to the school district, they never complained about racism.”
He argued that although B.W. said he was harassed daily, most of that was other students calling him a racist. But Gilbert said “being called a racist is not itself race discrimination against that person.”
Gilbert, a partner in the Houston office of Thompson & Horton, acknowledged that Austin ISD regrets what happened to B.W.
“But it wasn’t race discrimination, it wasn’t racial harassment,” he stressed. “And after abandoning the First Amendment claim … I don’t think there are any grounds for liability on the part of the school district.”
The judges, including six Trump appointees, did not say when they would rule on the appeal.
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