Amicus Curiae Brief — B. W., a Minor, By Next Friends M. W. and B. W., formerly known herein as Jon AISD Doe, Petitioner v. Austin Independent School District

No. 24–871

In the Supreme Court of the United States

__________

B.W., A MINOR, BY NEXT FRIENDS M.W. AND B.W.,

FORMERLY KNOWN HEREIN AS JON AISD DOE,

Petitioner,

v.

AUSTIN INDEPENDENT SCHOOL DISTRICT,

Respondent.

__________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Fifth Circuit

__________

BRIEF OF THE MANHATTAN INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONER

__________

Susan Jorgensen

LAW OFFICES OF SUSAN Z.

JORGENSEN

1460 NE 57th Ct.

Ft. Lauderdale, FL 33334

(954) 222-5674

Susan@

SusanJorgensenLaw.com

March 17, 2025

Ilya Shapiro

Counsel of Record

Tim Rosenberger

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@

manhattan.institute

i

QUESTION PRESENTED

When Brooks Warden (B.W.) was in middle school

in the Austin Independent School District, he wore a

MAGA hat on a school field trip. This innocent act triggered a years-long campaign of bullying and harassment against him based on his race and political views

by both his classmates and teachers. Brooks is a white,

Christian male whose former school district is predominantly Hispanic. Once his teachers and peers found

out he supported President Trump, he became a target. Brooks sued for racial harassment under Title VI

of the Civil Rights Act of 1964. The district court dismissed the complaint, and a Fifth Circuit panel affirmed because, in its view, Brooks did not plausibly

allege the harassment was due to his race as opposed

to his political views. The Fifth Circuit granted en

banc review, and the full court divided evenly, resulting in affirmance. Judge Richman concluded in a concurrence that Brooks failed to state a Title VI claim

because the “primary impetus” for most of the harassment against him was his political views and not his

race. In separate dissents, Chief Judge Elrod and

Judge Ho concluded the case should proceed because

Brooks plausibly alleged race was one reason for the

harassment, in addition to his political views.

The question presented is:

Whether a plaintiff can state a claim for racial harassment under Title VI even if the “primary impetus”

for the harassment was the plaintiff’s political views.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

LEGAL AND FACTUAL BACKGROUND ................. 1

SUMMARY OF ARGUMENT ..................................... 8

ARGUMENT ................................................................ 9

I. THE DECISION BELOW CREATES

A HEIGHTENED PLEADING

STANDARD FOR WHITES

SEEKING TITLE VI RELIEF .......................... 9

II. THE DECISION BELOW WOULD MAKE

IT IMPOSSIBLE TO SURVIVE A

MOTION TO DISMISS WHERE

PRETEXTS ARE OFFERED FOR BAD

BEHAVIOR OR WHERE THERE ARE

MIXED MOTIVES .......................................... 10

III.THE REPEATED USE OF RACIAL

EPITHETS BY AUTHORITY FIGURES

SHOULD BE SUFFICIENT TO STATE A

PLAUSIBLE CLAIM FOR RELIEF AND

SURVIVE A MOTION TO DISMISS OR A

MOTION FOR SUMMARY JUDGMENT ...... 13

IV. RACISM IS OFTEN INEXTRICABLY

INTERTWINED WITH OTHER

EXPRESSIONS OF ANIMUS ........................ 14

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Demopolis City Sch.,

80 F.4th 1259 (11th Cir. 2023) .............................. 2

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ................................................ 1

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .............................................. 11

Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) .......... 14

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................ 4

Barnes v. Gorman, 536 U.S. 181 (2002) ...................... 2

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........ 4

Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247 (3d Cir. 2014) .................................... 2

Bryant v. Indep. Sch. Dist. No. I-38 of Garvin

Cnty., 334 F.3d 928 (10th Cir. 2003) ..................... 3

Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) ...... 2

Celotex Corp. v. Catrett, 477 U.S. 242 (1986)............ 11

Davis v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629 (1999) ........................................ 2, 3, 4

Dugandzic v. Nike, Inc.,

807 Fed. Appx. 971 (11th Cir. 2020) .................... 16

Elliott v. Delaware State Univ.,

879 F.Supp.2d 438 (D. Del. 2012) .......................... 3

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) ................................................ 3

iv

Fennell v. Marion Indep. Sch. Dist.,

804 F.3d 398 (5th Cir. 2015) .................................. 3

Freeman v. Dal-Tile Corp.,

750 F.3d 413 (4th Cir. 2014) .......................... 11–12

Gaston v. Bd. of Educ. of City of Chicago,

2019 WL 398688 (N.D. Ill. Jan. 31, 2019) ..... 14–15

Gates v. Bd. of Educ. of the City of Chicago,

916 F.3d 631 (7th Cir. 2019) ................................ 13

Hayut v. State Univ. of N.Y.,

352 F.3d 733 (2d Cir. 2003) .................................. 13

Hendrichsen v. Ball State Univ.,

107 Fed. Appx. 680 (7th Cir. 2004) ........................ 3

Hirabayashi v. U.S., 320 U.S. 81 (1943) ..................... 1

Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116 (9th Cir. 2008) .............................. 12

Jones v. UPS Ground Freight,

683 F.3d 1283 (11th Cir. 2012) ...................... 16–17

Kortan v. Cal. Youth Auth.,

217 F.3d 1104 (9th Cir. 2000) ................................ 3

Lam v. Univ. of Hawai’i,

40 F.3d 1551 (9th Cir. 1994) .................................. 4

Lloyd v. Holder,

2013 WL 6667531 (S.D.N.Y. Dec. 17, 2013) ........ 15

Monteiro v. Tempe Union High Sch. Dist., 158

F.3d 1022 (9th Cir. 1998) ....................................... 3

Ricketts v. Wake Cnty. Pub. Sch. Sys.,

767 F.3d 247 (4th Cir. 2025) .................................. 2

v

Sewell v. Monroe City Sch. Bd.,

974 F.3d 577 (5th Cir. 2020) .................... 13, 14, 17

Shaw v. Reno, 509 U.S. 630 (1993) ............................. 1

Smith v. Wilson, 2011 WL 1704269

(W.D. Wisc. Apr. 27, 2011) ................................... 11

Smith v. Wilson, 705 F. 3d 674 (7th Cir. 2013) ........ 11

Swierkiewicz v. Soreman N.A.,

534 U.S. 506 (2002) ............................................... 9

Turner v. Baylor Richardson Med. Ctr.,

476 F.3d 337 (5th Cir. 2007) ................................ 14

Zeno v. Pine Plains Cent. Sch. Dist.,

702 F.3d 655 (2d Cir. 2012) .................................... 3

Statutes and Regulations

34 C.F.R. § 100.13 (2000)............................................. 2

42 U.S.C. § 2000d......................................................... 2

Other Authorities

Anthony S. Wohl, Racism and Anti-Irish Prejudice in Victorian England, The Victorian Web ... 16

Christopher F. Rufo, Buffalo Students Told ‘All

White People Play a Part in Perpetuating Systemic Racism,’ N.Y. Post, Feb. 24, 2021 .............. 19

Daniel Robinson Hundley, Social Relations in

Our Southern States (1860) ........................... 15–16

Desert Sands Unified School Dist., English 1

Honors—Week 14(1), SCRIBD ............................ 18

Elizabeth Nolan Brown, ‘Karens for Kamala?’ Inside the White Women Zoom Call for Harris,

Reason, July 26, 2024........................................... 18

vi

Erica Etelson, What’s—Still—The Matter with

Kansas?, The Nation, Nov. 27, 2024 ...................... 4

John Sudworth, Searching for Truth in China’s

Uighur ‘Re-Education’ Camps,

BBC, June 20, 2019 .............................................. 18

Nicholas Jones et al., 2020 Census Illuminates

Racial and Ethnic Composition of the Country,

U.S. Census Bureau, Aug. 12, 2021 ..................... 10

Who Are the Uyghurs and Why Is China Being

Accused of Genocide, BBC, May 24, 2022 ...... 18–19

1

INTEREST OF AMICUS CURIAE1

The Manhattan Institute (MI) is a nonprofit policy

research foundation whose mission is to develop and

disseminate ideas that foster individual responsibility

and agency across multiple dimensions. MI has sponsored scholarship and filed briefs advancing educational opportunity, opposing government interference

with constitutionally protected liberties, and supporting America’s promise of colorblind meritocracy.

This case interests MI because the decision below

misapplies this Court’s precedent regarding harassment claims in educational settings and, if allowed to

stand, would promote racial balkanization.

LEGAL AND FACTUAL BACKGROUND

Racial classifications imposed by federal, state or

local governmental entities are subject to strict scrutiny review and must be narrowly tailored to meet a

compelling government interest. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Strict scrutiny is applied because “[c]lassifications of citizens

solely on the basis of race ‘are by their very nature odious to a free people whose institutions are founded

upon the doctrine of equality.’” Shaw v. Reno, 509 U.S.

630, 643 (1993) (quoting Hirabayashi v. U.S., 320 U.S.

81, 100 (1943)).

Title VI of the Civil Rights Act of 1964 provides:

“[n]o person in the United States shall, on the ground

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission. Counsel for all parties received

timely notice of amicus’s intention to file this brief.

2

of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. §

2000d. Public educational institutions that receive federal funds are subject to this mandate. See 34 C.F.R. §

100.13(i) (2000); see also § 100.13(g)(2)(ii).

The interpretation of Title VI informs the interpretation of Title IX, and vice versa. See Barnes v. Gorman, 536 U.S. 181, 185 (2002). This is so because Title

IX and Title VI:

sought to accomplish two related . . . objectives.

First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices.

Both of these purposes were repeatedly identified in the debates on the two statutes.

Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).

In Davis v. Monroe County Board of Education, the

Supreme Court held that a plaintiff may state a claim

for damages under the Civil Rights Act against a

school board even where school employees do not participate in the harassment, where “the funding recipient acts with deliberate indifference to known acts of

harassment in its programs or activities.” 526 U.S.

629, 633 (1999); see also Adams v. Demopolis City Sch.,

80 F.4th 1259, 1273 (11th Cir. 2023) (holding deliberate indifference to known acts of student-on-student

racial harassment” is intentional discrimination); see

also Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,

272 (3d Cir. 2014) (same); Ricketts v. Wake Cnty. Pub.

Sch. Sys., 125 F.4th 507, 521 (4th Cir. 2025) (same);

3

Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408

(5th Cir. 2015) (same); Bryant v. Indep. Sch. Dist. No.

I-38 of Garvin Cnty., 334 F.3d 928, 934 (10th Cir. 2003)

(same); Monteiro v. Tempe Union High Sch. Dist., 158

F.3d 1022, 1033 (9th Cir. 1998) (finding that school

district may violate Title VI if there is a racially hostile

environment, the district had notice of the problem,

and it failed to respond adequately).

Moreover, school officials must have had “actual

knowledge” of harassment “so severe, pervasive, and

objectively offensive that it can be said to deprive the

victims of access to the educational opportunities or

benefits provided by the school.” Davis, 526 U.S. at

650. Courts have applied the analytic criteria for Title

IX and Title VII cases to Title VI cases alleging a hostile learning environment. See, e.g., Zeno v. Pine Plains

Cent. Sch. Dist., 702 F.3d 655, 664–65 (2d Cir. 2012);

see also Elliott v. Delaware State Univ., 879 F.Supp.2d

438 (D. Del. 2012) (citing Hendrichsen v. Ball State

Univ., 107 Fed. Appx. 680, 684 (7th Cir. 2004)). Thus,

the plaintiff must establish: (1) substantial control, (2)

severe and discriminatory harassment, (3) actual

knowledge, and (4) deliberate indifference. Davis, 526

U.S. at 643–50.

In analyzing the severity of the harassment courts

look to “the totality of the circumstances,” including:

(1) the frequency and severity of the conduct, (2)

whether it is physically threatening or humiliating, or

a mere offensive utterance; and (3) whether it interferes with the student’s education opportunities. Elliott, 879 F. Supp. 2d at 446; see also Kortan v. Cal.

Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 78788 (1998)).

4

Harassment by faculty or administrators (as opposed to fellow students) is more likely “to breach the

guarantee of equal access to educational benefits and

to have a systemic effect on a program or activity.” Davis, 526 U.S. at 653.

When reviewing a motion to dismiss, the complaint

survives if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is plausible where its “factual

content . . . allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a

sheer possibility.” Id.

“On summary judgment, the existence of a discriminatory motive . . . will generally be the principal question. To survive [a] . . . summary judgment motion, only a genuine factual issue with regard to discriminatory intent need be shown.” Lam v. Univ. of

Hawai’i, 40 F.3d 1551, 1559 (9th Cir. 1994), as

amended (Nov. 21, 1994), as amended (Dec. 14, 1994).

The complaint cites numerous instances where

school officials displayed shocking deliberate indifference to the harassment of B.W.:

•

•

Luke Borders, a teacher, encouraged students

to bully B.W. (¶ 60);

A “Stay Away Agreement” and a meeting between school staff and D.K.’s parents were ineffective, and only increased D.K.’s hostility towards B.W. (¶¶ 69, 72, 73);

5

•

•

•

•

•

After a teacher’s assignment of a paper on “what

matters to us,” B.W. asked if he could write on

the Second Amendment and was met with

taunts from other students, which the teacher,

Mr. Meadows, did not try to stop. (¶ 78);2

The second formal grievance filed by B.W., specifically citing constitutional violations, was not

forwarded by school administrators to either the

district superintendent or the Title VI coordinator, contrary to school board policies and procedures. (¶ 90);

After B.W. was beaten unconscious in a classroom by another student, he and his family

asked the school for a safety plan, making

school officials aware that a previous safety

plan had been ineffective. (¶¶ 93, 94). No safety

plan was given until 20 days after the attack,

after there had been additional incidents. (¶ 99);

An additional grievance filed by B.W. and his

family after an attack by another student was

not reported to the school district superintendent or the Title VI coordinator, contrary to

board policies and procedures. (¶¶ 94-95);

Despite a March 1, 2019, email from B.W.’s parents, advising the school principal of a backlash

against whites’ expressing conservative views,

no action was taken and students and teachers

continued to harass B.W. (¶¶ 100-102);

2 See discussion of “white trash” as inferior to other whites,

infra; See also Erica Etelson, What’s—Still—The Matter with

Kansas?,

The

Nation,

Nov.

27,

2024,

https://tinyurl.com/492a9paw (describing another author’s characterization of “white trash” as “gun-toting bigots whose problems are attributable to their own backwardness.”).

6

•

•

•

•

Despite B.W.’s having been beaten by another

student, I.L., the assistant principal issued findings that B.W. was not the victim of bullying or

harassment at I.L.’s hands. (¶ 98);

The assistant principal promised to change

I.L.’s schedule so he would not attend the same

class as B.W. but did not follow through. (¶ 98);

In September 2019, at a meeting to discuss

B.W.’s third grievance filing, B.W.’s representative went over the many incidents of harassment and B.W.’s unsuccessful attempts to have

these problems addressed. He further pointed

out that harassment continued, and that retaliation had occurred. The school board’s attorney

blamed B.W. and his parents for the harassment and advised them to stop complaining, offering no intervention. (¶¶ 105-110);

Administrators took no action in response to a

death threat made by a fellow student against

B.W. based on race. (¶¶ 117-18, 120, 122).

The B.W. complaint contains numerous examples

of both teachers and students using direct racial references towards B.W., as well as contextual racial references. For example:

•

•

•

In band class, two students regularly harassed

B.W. for being white and preached the evils of

the white race. (¶ 41);

A teacher, Ms. Morgan, approached B.W. and

stated loudly “Man, I’m getting concerned about

how many white people there are.” (¶ 44);

A teacher’s aide in B.W.’s math class repeatedly

called B.W. “Whitey” and used demeaning

phrases such as “You need help Whitey?” and

“Can’t figure this one out Whitey?” (¶ 46);

7

•

•

•

•

A substitute teacher, overhearing B.W. conversing with other students about a girlfriend,

stated to B.W. “I will not have a white man talk

to me about gender issues!” (¶ 87);

A student told B.W. that “America is only for

white people” when B.W. was the only student

who stood for the Pledge of Allegiance. (¶ 88);

A student who had physically assaulted B.W.

told other students that he did so because B.W.

is white (¶ 96);

When B.W. was in the locker room after running

practice, a number of black students came in

and said, “here are all the white boys!” (¶ 114).

The complaint also alleges that teachers and students used veiled references which, when taken in context, were racially charged references to the “white

trash” stereotype. For example:

•

•

•

•

•

The school principal yanked earbuds out of

B.W.’s ears and said, “Are you listening to

Dixie?” (¶ 42);

B.W.’s English teacher asked him if he “enjoyed

his White Gospel music.” (¶ 113);

KKK and/or Nazi memes were made with B.W.’s

face on them, a swastika was traced on B.W.’s

back, and B.W. was physically assaulted. (¶ 92);

Another teacher, Mr. Mathey, perpetuated the

“white trash” stereotype by loudly announcing

in front of class, on B.W.’s birthday, that he

“[w]oke up . . . to see all the stupid things Trump

had done.” (¶ 76);

Ms. Mosher, a substitute teacher, referred to

the “white trash” stereotype by commenting

that B.W.’s political views are conservative be-

8

•

cause he was not thinking for himself. She subsequently made him go outside and stand in the

cold, and repeatedly verbally harassed him in

front of his classmates. (¶ 89);

Ms. Cooney got visibly angry and yelled at B.W.

for bringing a poster of Justice Scalia to debate

class, where a poster of Justice Ginsburg was

already displayed. (¶ 75, 101).

And yet, the Fifth Circuit found that B.W. didn’t

state a case under the law.

SUMMARY OF ARGUMENT

The Fifth Circuit below raised several questions of

first impression that will undoubtedly arise again. The

lower court’s decision will create new law under Title

VI and lead to discrepancies in its application. The ruling carves out a new pleading standard that is not

based on legislation or case precedent. This separate

pleading standard, even if theoretically acceptable,

would be impossible to apply.

In other words, the Fifth Circuit has allowed racial

aggression to be protected where aggressors provide a

thinly veiled alternate rationale. Contrary to case law,

it ignores allegations of direct use of racial epithets

and violence in the complaint. It fails to acknowledge

that certain phrases or words which are facially neutral may be racial when taken in context, and that racism against whites is often inextricably intertwined

with political viewpoints. It directly contradicts this

Court’s jurisprudence on pleading standards and warrants review.

9

ARGUMENT

I. THE DECISION BELOW CREATES A

HEIGHTENED PLEADING STANDARD FOR

WHITES SEEKING TITLE VI RELIEF

In Swierkiewicz v. Sorema N.A., this Court considered the issue of whether a racial discrimination suit

against an employer was subject to an enhanced pleading standard and concluded that it was not. 534 U.S.

506, 515 (2002). The Court explained that

Rule 8(a)’s simplified pleading standard applies

to all civil actions, with limited exceptions. Rule

9(b), for example, provides for greater particularity in all averments of fraud or mistake. This

Court, however, has declined to extend such exceptions to other contexts. . . .

A requirement of greater specificity for particular claims is a result that “must be obtained by

the process of amending the Federal Rules, and

not by judicial interpretation.” Furthermore,

Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the

merits. “Indeed, it may appear on the face of the

pleadings that a recovery is very remote and unlikely but that is not the test.”

Id. at 513-15 (internal citations omitted).

Thus, the district court exceeded its authority in

applying a more stringent pleading standard here, and

the Fifth Circuit failed to correct that overstep.

In addition, the application of a different pleading

standard to plaintiffs based on race is impracticable.

People in the United States are increasingly of mixed

10

racial and ethnic heritage. According to the 2020 Census, those identifying as two or more races increased

by 276% over the previous census. Nicholas Jones et.

al., 2020 Census Illuminates Racial and Ethnic Composition of the Country, U.S. Census Bureau, Aug. 12,

2021, https://tinyurl.com/yc2wyrzm.

What pleading standard would be required of a person of mixed race? What about a person who appears

to be of one race but is genetically less than half the

race he or she is assumed to be? Would an individual

of mixed race who appears light-skinned have no recourse in a school where his or her peers are darkskinned, and mistake him or her as being 100% white?

Here, the plaintiff is a Catholic with Jewish heritage who had relatives who died in the Holocaust.

Should B.W.’s pleading standard be somewhere between that required of a plaintiff wholly descended

from African slaves and that required of a plaintiff

wholly descended from Mayflower passengers?

II. THE DECISION BELOW WOULD MAKE IT

IMPOSSIBLE TO SURVIVE A MOTION TO

DISMISS

WHERE

PRETEXTS

ARE

OFFERED FOR BAD BEHAVIOR OR

WHERE THERE ARE MIXED MOTIVES

Title VI does not require the plaintiff to prove, at

the dismissal or summary judgment stage, that the adverse action was motivated solely by racial animus.

Dismissing on this basis thus creates new law. Tats is

particularly true where, as here, racial epithets were

used by both administrators and students, and the individual who physically battered the plaintiff bragged

that his actions were race-motivated.

11

Even if the defendants here maintain that the hostility directed at B.W. was politically—not racially—

based, their claim indicates that there are disputed issues of material fact as to the motivations behind the

treatment of B.W. Regardless, dismissal was improper, and summary judgment would also be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (“Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge.”)

In Smith v. Wilson, the district court denied the

plaintiff’s motion for summary judgment where there

was competing evidence as to the motivation behind a

sheriff’s denial of a city towing contract. 2011 WL

1704269 (W.D. Wisc. Apr. 27, 2011). In denying the

motion, the court found that “there is sufficient counter-evidence to require a jury to decide the ultimate

fact question of motivation.” Id. at *8. The court also

determined that the evidence of racist comments in the

record “would obviously have been more than sufficient for plaintiffs to withstand defendants’ motion for

summary judgment had they been foolish enough to

bring one.” Id. at *11. Ultimately, the jury found in favor of the defendant and the Seventh Circuit affirmed.

Smith v. Wilson, 705 F.3d 674, 677–78 (7th Cir. 2013).

In another example, Freeman v. Dal-Tile Corp., an

employee sued for racial and sexual harassment where

an independent sales representative for her employer

used racial and sexual epithets in bragging about his

exploits. 750 F.3d 413 (4th Cir. 2014). Although there

were no physical threats or incidents, and the behavior

was not directed at the plaintiff, the court found that

12

the question of whether repeated sexual and racial epithets were objectively severe and pervasive created a

material factual dispute that precluded summary

judgment. Id. at 421-22 (‟[W]e cannot ignore . . . the

habitual use of epithets here or view the conduct without an eye for its cumulative effect.”) (cleaned up).

The same principle should apply here. Indeed,

there is no set number of times that race must be directly referenced for a fact pattern to successfully state

a claim for relief for a racially hostile environment.

Here, B.W. has more than sufficiently alleged that (1)

there were numerous incidents of harassment (2) over

an extended period, (3) that the environment was hostile, and (4) that it interfered with his enjoyment of

federally funded educational opportunities.

In Johnson v. Riverside Healthcare System, LP, the

Ninth Circuit similarly found that a hostile work environment claim survived a motion to dismiss where the

plaintiff’s facts established: (1) one direct use of a racial slur by a colleague to the plaintiff; (2) the use of

racially offensive remarks by a committee when the

plaintiff was not present; and (3) a subordinate’s repeated use of a code phrase (asking the plaintiff to take

out the trash in the surgical room). 534 F.3d 1116 (9th

Cir. 2008). Here, B.W. has alleged at least eight instances—not just one—of direct uses of racial references by students, teachers, and administrators, and

at least eight instances of pretexts or code phrases

which, taken in context, are racially motivated. The

defendants dispute his allegations, as is their right,

but that’s not an issue for the motion-to-dismiss stage.

13

III. THE

REPEATED

USE

OF

RACIAL

EPITHETS BY AUTHORITY FIGURES

SHOULD BE SUFFICIENT TO STATE A

PLAUSIBLE CLAIM FOR RELIEF AND

SURVIVE EITHER A MOTION TO DISMISS

OR A MOTION FOR SUMMARY JUDGMENT

In Gates v. Board of Education of the City of Chicago, the Seventh Circuit considered whether the

number of instances (three) where a plaintiff’s supervisor used racial epithets was sufficient to survive

summary judgment in a Title VII case. 916 F.3d 631

(7th Cir. 2019). The court noted that a hostile remark

incorporating a direct reference to race from a person

in a position of power had a much greater impact than

such a remark from a colleague. Id. at 638. Such a remark by a person of authority is hurtful when spoken

directly to the plaintiff, but even if heard secondhand

such remarks contribute to a hostile environment. Id.

Notably, in Gates, unlike here, instances of racial slurs

were not even cited in the complaint, but came out in

discovery. Id. at 635. And yet, the case survived a motion for summary judgment.

Similarly in Sewell, the Fifth Circuit, citing a Second Circuit case, held that “[i]ntense verbal abuse that

comes from an administrator—and persists for most of

the school year can constitute a hostile education environment.” 974 F.3d 577, 585 (5th Cir. 2020) (citing

Hayut v. State Univ. of N.Y., 352 F.3d 733, 748-49 (2d

Cir. 2003). Here, the harassment of B.W. lasted several years, and numerous teachers and administrators

participated.

The dismissal of B.W.’s case thus creates an inconsistency that this Court should address.

14

IV. RACISM

IS

OFTEN

INEXTRICABLY

INTERTWINED

WITH

OTHER

EXPRESSIONS OF ANIMUS

Racism is often inextricably intertwined with other

expressions of animus, such as negative generalizations about a targeted race’s political, cultural, or religious views and customs (e.g., the drunken Irish that

breed like rabbits due to their Catholic faith, the

greedy Jew whose faith does not require tithes, the violent Arab who adopts polygamy and abuses women).

In addition, racial and political hostilities are all

too often inextricably intertwined. Race-laden terms

such as “white trash” or “hillbilly” are commonplace

today, often accepted as justified, and usually applied

to white conservatives with the same connotation as in

the past: that they are ignorant, in-bred, and stupid

(for if they were not stupid, they would not be conservative). This is a racist classification.

Indeed, it is well established that certain phrases,

names or words which might otherwise be neutral,

may confer racial animus, depending on the context,

and that alternate reasons for harassment, other than

a protected category, may be a pretext. See, e.g., Ash v.

Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (“The

speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom,

and historical usage.”); Sewell, 974 F.3d at 585 (allowing a racial-discrimination claim to proceed where different interpretations of the allegations are possible);

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,

348 (5th Cir. 2007) (describing use of phrase “ghetto

children” as “perhaps racially inappropriate”); Gaston

v. Bd. of Educ. of City of Chi., 2019 WL 398688, at *6

15

(N.D. Ill. Jan. 31, 2019) (noting that a “[school principal] called another teacher a ‘thug,’ which of course is

a racially-charged word”); Lloyd v. Holder, 2013 WL

6667531, at *9 (S.D.N.Y. Dec. 17, 2013) (listing “thug”

as example of “facially non-discriminatory terms [that]

can invoke racist concepts . . . already planted in the

public consciousness”).

Many of the comments by B.W.’s antagonists,

taken in context, referred to the “white trash” stereotype (e.g., listening to “Dixie” or “white gospel music,”

and stereotypes of stupidity). Historically, various ethnic groups we now broadly view as “white” were regarded as being genetically inferior to Anglo Saxons.

For example, a New York attorney, in an antebellum

monograph, explained that “white trash” were a genetically distinct race descended from criminals and indentured servants, including “Huguenots,” “Irish,”

and “Scottish” who were characterized by stupidity, laziness, drunkenness, short-sightedness and a lack of

ambition. Daniel Robinson Hundley, Social Relations

in Our Southern States (1860), available at https://tinyurl.com/5xhd4rzb. The “chief” genetic characteristic

of these

Rag Tag and Bobtail [white trash], . . . is laziness. They are about the laziest two-legged animals that walk erect on the face of the Earth.

Even their motions are slow, and their speech is

a sickening drawl . . . . All they seem to care for,

is, to live from hand to mouth; to get drunk, provided they can do so without having to trudge too

far after their liquor . . . . We do not believe the

worthless ragamuffins would put themselves to

much extra locomotion to get out of a shower of

rain; and we know they would shiver all day with

16

cold, with wood all around them, before they

would trouble themselves to pick it up and build

a fire . . . .

Id. at 259. These people, Hundley mused, were genetically inferior to other individuals who appeared

white, and were possibly genetically inferior to blacks.

As explained by Professor Anthony Wohl, polygenists in the 1800s believed that there had been several creations of man which developed separately, and

some were inferior to others. Anthony S. Wohl, Racism

and Anti-Irish Prejudice in Victorian England, The

Victorian Web, https://tinyurl.com/s982hzdn (last visited Mar. 15, 2025). For instance, the Celt was seen as

separate from and inferior to the Anglo Saxon and

closer in lineage to the apes—indeed, a “’human chimpanzee’”—and “linked . . . to the ‘Africanoid.’” Id. (internal citations omitted).

In Dugandzic v. Nike, Inc., the Eleventh Circuit reversed summary judgment in favor of the employer/defendant in a Title VII claim. 807 Fed. Appx. 971 (11th

Cir. 2020). The court held that, considering all relevant evidence and the totality of the circumstances, “it

is a permissible view of the evidence that his supervisor’s other allegedly harassing conduct [in addition to

mocking the plaintiff’s accent] was also motivated by

his national origin”, even though other alleged harassment “was not facially based on [the plaintiff]’s national origin.” Id. at 975-76.

In Jones v. UPS Ground Freight, the Eleventh Circuit held that the “use of epithets associated with a different ethnic or racial minority than the plaintiff,”

paired with other alleged harassment, was sufficient

to present a jury question as to whether the plaintiff

17

endured a hostile work environment. 683 F.3d 1283,

1299, 1304 (11th Cir. 2012).

In Sewell, the Fifth Circuit found that the plaintiff,

a black male student with two-tone dyed blond hair,

had stated a claim sufficient to survive a motion to dismiss. 974 F.3d at 577. Although school officials maintained that their actions were due to the plaintiff’s violation of the school’s dress code, the Fifth Circuit held

that “it is plausible that [the administrator]’s harassment of [the plaintiff] stemmed from a discriminatory

view that African American males should not have

two-toned blonde hair.” Id. at 585. Here, the treatment

of B.W. could stem from the discriminatory view that

white males’ political views are illegitimate.

In addition, in Sewell one school administrator

called the plaintiff a “thug,” which was “a term that

could be race-neutral or racially charged, depending on

context.” Id. at 585. The Fifth Circuit noted that at the

pleading stage the plaintiff was entitled to the assumption that the term was race-based. Id. at 585.

B.W. is entitled to the same assumption and has provided detailed context upon which that assumption

may be based. The complaint states that B.W.’s race

was directly referenced on numerous occasions, and on

other occasions reference was made to him being stupid and “listening to Dixie”, and KKK and/or Nazi

memes were created with B.W.’s likeness. All may be

recognized as historically racist references to genetically inferior “white trash,” see supra, who could be

found primarily in the South and the mountains, and

whose traits were laziness and stupidity.

Indeed, critical race theory, which holds that white

people are inherently racist and privileged, teaches

partial rehabilitation of whites if they accept certain

18

political views and embrace left-wing ideology; they

may be acceptable in society only to the extent that

they recognize these “facts” and self-flagellate. See,

e.g., Elizabeth Nolan Brown, ‘Karens for Kamala?’ Inside the White Women Zoom Call for Harris, Reason,

July 26, 2024, https://tinyurl.com/5ye74hfy (noting the

belief that only white supremacists would decline to

monetarily support and vote for Kamala Harris). The

theory holds that a white person may be somewhat redeemed if he atones for his privilege by embracing leftwing ideology. For example, an Honors English class

curriculum in a public school in California teaches that

to be white is to be undeservedly privileged. Desert

Sands Unified School Dist., English 1 Honors—Week

14(1), SCRIBD, https://tinyurl.com/yc2ertf5.

However, re-education and “civilization” of a dangerous ethnic group was a rationalization of colonizers.

Re-education of a race or ethnicity based on historical

wrongs and thus inherent guilt of that race is also a

theme commonly seen in Communist and fascist dictatorships throughout history and in the present day.

For example, parallels may be drawn to the controversial re-education system forced on the majority of

the population of Xinjiang province in China, which is

made up of traditionally Muslim Turkic groups, of

which the Uighurs are the most well-known to international media. See John Sudworth, Searching for

Truth in China’s Uighur ‘Re-Education’ Camps, BBC,

Jun. 20, 2019, https://tinyurl.com/bdefsrfm. In the

1990s to early 2000s there was a surge of anti-Han3

movement in Xinjiang, which had been independent

prior to being absorbed by the Chinese Communist

Party in 1949. See Who Are the Uyghurs and Why Is

3 The Han are the majority ethnic group in China.

19

China Being Accused of Genocide, BBC, May 24, 2022,

https://tinyurl.com/jnhw36aw. The response of China’s

leadership has been to try to eradicate the Uighur ethnicity (and other Turkic Muslim groups in the region)

by moving them into “re-education” camps, forcing labor, sterilizing the population, and attempting to dilute their percentage of the population though a massive relocation of Han Chinese to Xinjiang. Id.

The parallels to critical race theory and rationalizing racial bias against whites are obvious. For example, a public school in Buffalo, New York teaches that

“the solution [to inherent racism] is to ‘be woke, which

is basically critically conscious,’ . . . a pedagogical concept developed by Marxist theoretician Paolo Freire

holding that students must be trained to identify and

eventually overthrow their oppressors.” Christopher

F. Rufo, Buffalo Students Told ‘All White People Play

a Part in Perpetuating Systemic Racism,’ N.Y. Post,

Feb. 24, 2021, https://tinyurl.com/4n2sw88y.

In short, the refusal of B.W. to be re-educated and

“woke” means that his whiteness will not be tolerated.

Any way you slice it, B.W. has stated a plausible claim.

CONCLUSION

If the Civil Rights Act is not uniformly applied, racial hatred will only grow. The escalation of events depicted in the complaint here is proof enough of that.

The decision below: (1) fails to recognize that racist

and political ideology are often intertwined, (2) fails to

consider case law finding that code words and phrases,

taken in context, may be racist, (3) sets a higher pleading standard for plaintiffs viewed as white, (4) rubberstamps government funding of programs which are racially hostile to white conservatives, who are seen as

20

inferior “white trash,” and (5) requires the plaintiff to

prove his case at the pleading stage.

This Court should grant cert. and clarify for lower

courts whether these new legal precepts will be allowed to stand.

Respectfully submitted,

Susan Jorgensen

LAW OFFICES OF SUSAN Z.

JORGENSEN

1460 NE 57th Ct.

Ft. Lauderdale, FL 33334

(954) 222-5674

Susan@

SusanJorgensenLaw.com

March 17, 2025

Ilya Shapiro

Counsel of Record

Tim Rosenberger

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@

manhattan.institute