Filed: Mar. 11, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1813 M.D., a minor child; MELODIE SHULER, as parent and next friend of M.D., a minor child, Plaintiffs – Appellants, v. SCHOOL BOARD OF THE CITY OF RICHMOND; SHELETA CREWS, Individual and Official Capacities; RAYMOND BOWSER, Individual and Official Capacities, Defendants – Appellees. - GAY, LESBIAN & STRAIGHT EDUCATION NETWORK, Amicus Curiae. Appeal from the United States District Court for the Eastern District of Virginia,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1813 M.D., a minor child; MELODIE SHULER, as parent and next friend of M.D., a minor child, Plaintiffs – Appellants, v. SCHOOL BOARD OF THE CITY OF RICHMOND; SHELETA CREWS, Individual and Official Capacities; RAYMOND BOWSER, Individual and Official Capacities, Defendants – Appellees. - GAY, LESBIAN & STRAIGHT EDUCATION NETWORK, Amicus Curiae. Appeal from the United States District Court for the Eastern District of Virginia, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1813
M.D., a minor child; MELODIE SHULER, as parent and next
friend of M.D., a minor child,
Plaintiffs – Appellants,
v.
SCHOOL BOARD OF THE CITY OF RICHMOND; SHELETA CREWS,
Individual and Official Capacities; RAYMOND BOWSER,
Individual and Official Capacities,
Defendants – Appellees.
-----------------------------------------
GAY, LESBIAN & STRAIGHT EDUCATION NETWORK,
Amicus Curiae.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13-cv-00329-HEH)
Argued: January 28, 2014 Decided: March 11, 2014
Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part and vacated in part, and remanded with
instructions by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Floyd joined. Senior Judge Davis wrote
an opinion concurring in part and dissenting in part.
ARGUED: Peter C. Renn, LAMBDA LEGAL DEFENSE AND EDUCATION FUND,
INC., Los Angeles, California, for Appellants. Jim H. Guynn,
Jr., GUYNN, MEMMER & DILLON, P.C., Salem, Virginia, for
Appellees. ON BRIEF: Tara L. Borelli, Joshua J. Johnson, Los
Angeles, California, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC., Atlanta, Georgia, for Appellants.
Jennifer D. Royer, GUYNN, MEMMER & DILLON, P.C., Salem,
Virginia, for Appellees. George E. Kostel, Erika J.
Karnaszewski, NELSON MULLINS RILEY & SCARBOROUGH, LLP,
Washington, D.C.; Katherine E. Lipper, Steven Y. Winnick,
EDUCATIONCOUNSEL, LLC, Washington, D.C., for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Appellant M.D. appeals the district court’s dismissal for
failure to state a claim upon which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. §
1915(e)(2)(B)(ii) of his mother’s pro se complaint filed on his
behalf against the School Board of the City of Richmond (“School
Board”) alleging violations of his rights under Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. ("Title VI")
and Title IX of the Education Amendments of 1972, 20 U.S.C. §§
1681–1688 ("Title IX"). 1 Although we would generally remand this
appeal in full because non-attorney parents are not authorized
to represent their children pro se in federal court, we are
comfortable affirming the district court’s dismissal of M.D.’s
Title VI claim as a matter of law, precisely as we did in Myers
v. Loudoun County Public Schools, 418 F.3d 395, 401 (4th Cir.
2005). To be clear, we adopt no new rule of antidiscrimination
law nor hold that the use of racial epithets can never give rise
1
The complaint also named Summer Hill Elementary School
Principal Sheleta Crews and Vice Principal Raymond Bowser as
defendants in the Title VI and Title IX claims. The district
court dismissed these defendants because Title VI and Title IX
authorize claims only against recipients of federal funds. See
20 U.S.C. § 1681(a); 42 U.S.C. § 2000d. M.D. does not appeal
these individual dismissals. He also does not appeal the
district court’s dismissal without prejudice of the complaint’s
state law claims. See Kendall v. City of Chesapeake, 174 F.3d
437, 444 (4th Cir. 1999).
3
to liability against a school board for failure to respond to
student-on-student harassment for weeks under Title VI. We are
not presented with those circumstances here.
As to M.D.’s Title IX claim, we conclude that remand for
further proceedings is necessary to ensure his rights are not
prejudiced here by his mother’s pro se representation below.
Id. The district court did not hold, as the dissent
inexplicably contends, that harassment based on sex stereotyping
is not actionable under Title IX. It instead quite properly
addressed the viability of a claim for harassment based on
perceived sexual orientation that was alleged in the complaint.
M.D. argues here that he in fact alleged harassment based on sex
stereotyping. This confusion requires us to remand to provide
M.D. with the opportunity to retain counsel to file a clarified
Title IX complaint.
We therefore affirm the district court’s order in part,
vacate the order in part, and remand with instructions to
provide to M.D. sixty days to retain counsel and file an amended
Title IX claim. If M.D. fails to meet this deadline, we will
affirm the district court’s order in full.
I.
A.
4
M.D.’s complaint alleges that the School Board is liable
under Title VI and Title IX for its administrators’ response to
alleged race- and gender-based student-on-student harassment
M.D. endured while enrolled at Summer Hill Elementary School
(“Summer Hill”) from January 8, 2013, through April 15, 2013. 2
During this three-month period, M.D., a six-year old African-
American male, was a target of verbal and physical assaults and
theft by his peers. He was mocked for failing to fight back and
repeatedly called “gay.” M.D. became increasingly emotionally
distressed and feigned illness to avoid school.
By February 2013, M.D.’s parents were in regular contact
with Summer Hill. They notified Principal Sheleta Crews and
Vice Principal Raymond Bowser about the harassment M.D. reported
and requested, but did not immediately receive, information
about the school’s bullying-prevention policies. Vice Principal
Bowser told M.D.’s mother that he spoke to the offending
students in response to M.D.’s allegations. M.D.’s mother also
began contacting the School Board directly and received email
responses.
2
We accept as true the well-pleaded facts in M.D.’s
complaint and draw all reasonable inferences in his favor when
reviewing the district court’s dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B)(ii). See Edwards v. City of Goldsboro,
178 F.3d 231, 244 (4th Cir. 1999).
5
Just prior to Summer Hill’s spring break, from March 29,
2013, through April 8, 2013, one Hispanic male student called
M.D. “nigger,” “bitch,” and “motherfucker.” 3 M.D.’s mother told
Vice Principal Bowser about the incident and urged him to impose
greater discipline in response because, in her view, just
speaking with the offending student was not enough. Vice
Principal Bowser disagreed and said he was doing all that he
could within the bounds of his authority. On April 10th, the
Hispanic male student again called M.D. “nigger” and pointed to
him calling to the surrounding students, “Look at my little
monkey.” When M.D.'s mother informed Vice Principal Bowser and
Principal Crews about the incident, Principal Crews promised to
investigate later that day. On April 11th, Vice Principal
Bowser told M.D.’s mother that he had spoken with the Hispanic
male student, but Principal Crews did not begin an investigation
that week. During spring break and the following week, M.D.’s
mother also called the Richmond City Public School
Administrative Offices repeatedly but received no response.
M.D.'s mother decided to withdraw her son from Summer Hill
on April 15, 2013. That same day, she received a copy of the
school's bullying policies from Principal Crews. On April 17,
3
The exact date of this incident is somewhat unclear but
construing the facts most liberally, we assume it occurred prior
to Summer Hill’s spring break.
6
2013, a bullying specialist called M.D.'s mother and stated that
he should have been called in sooner. Ultimately, M.D.'s mother
decided to enroll her son at a new school, Bellevue Elementary,
where he started on April 29, 2013.
II.
A.
On May 22, 2013, M.D.'s mother filed a pro se complaint
against the School Board alleging that her son’s rights under
Title VI and Title IX were violated by its deliberate
indifference to the student-on-student harassment he endured
based on race and perceived sexual orientation. She argued that
the school administrators’ decision not to escalate their
response beyond speaking to the students was legally inadequate.
She contended further that the School Board failed to
appropriately train its administrators in responding to race-
and gender-based harassment.
M.D. moved to proceed in forma pauperis, triggering the
district court’s review of the merits of the complaint under 28
U.S.C. § 1915(e). The district court held that M.D.'s complaint
failed to state a claim upon which relief could be granted and
dismissed the action pursuant to Federal Rule of Civil Procedure
12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii).
B.
7
Regarding M.D.'s Title IX claim, the district court held
that harassment based on perceived sexual orientation is not
actionable under Title IX. It also held that the complaint
failed to sufficiently allege intentional discrimination by the
School Board and therefore could not state a claim for relief
under Title VI or Title IX. The district court concluded that
the school administrators’ decision not to impose greater
discipline during the two-month period after they received
notice of the harassment was not “clearly unreasonable in light
of the known circumstances.” Davis v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 648 (1999). It noted that by April 15,
2013, Principal Crews had given M.D.’s mother a copy of the
school’s bullying policies and two days later a bullying
specialist contacted her but at that point, M.D.'s mother had
withdrawn her son from Summer Hill. After the district court
issued a final order denying M.D.'s motion for reconsideration
based on the reasoning in its initial order, M.D. filed the
present appeal. We have jurisdiction pursuant to 28 U.S.C. §
1291.
III.
Before reviewing the district court’s order under the
familiar standard governing dismissals under Federal Rule of
Civil Procedure 12(b)(6), we must determine whether remand is
8
the only appropriate action because M.D., a minor, appeals his
mother’s pro se complaint filed on his behalf. Myers, 418 F.3d
at 401. To ensure minors’ rights are vigorously and competently
protected, we have squarely held that non-attorney parents are
barred from representing their children in federal court.
Id.
Generally, therefore, we would simply remand here for further
proceedings.
We have, however, recognized a limited exception to the
remand requirement if the minor is represented by counsel on
appeal and asks us to decide a pure question of law mitigating
any risk of prejudice. Id. Surprisingly, it is the government,
not M.D., that urges us to remand. Now represented on appeal,
M.D. contends that he is challenging the district court’s legal
conclusions which, he argues, are erroneous and will not change
even if he files an amended complaint clarifying the basis of
his federal claims. Regarding Title IX, M.D. argues that the
district court erred by failing to recognize that the complaint
alleged harassment based on M.D.’s failure to conform to gender
stereotypes, which in his view is actionable under Title IX.
Under both Title VI and Title IX, M.D. argues that the district
court erred as a matter of law by failing to hold that the
complaint plausibly alleges that the school administrators’
9
response was clearly unreasonable under Davis. 4 Thus, two of the
requirements to avoid remand are met for both of M.D.’s
statutory claims: he is represented by counsel and steadfastly
urges us to decide this appeal. As explained below, however, we
reach different conclusions as to whether M.D.’s Title IX and
Title VI claims meet the most significant prerequisite, that the
minor’s legal rights will not be prejudiced on appeal by a non-
attorney parent’s pro se representation below. We discuss each
statutory claim in turn.
A.
We conclude that M.D.’s rights will best be protected by
the opportunity to retain and have counsel file a clarified
Title IX claim on remand. The district court held as a matter
of law that M.D.’s complaint failed to state a claim under Title
IX because it alleged harassment based on perceived sexual
orientation. 5 On appeal, M.D. contends that he actually alleged
4
On appeal, M.D. also argues that the district court should
have held that M.D. stated a claim for relief under the Equal
Protection Clause of the Fourteenth Amendment. However, the
complaint does not allege that M.D.’s right to equal protection
was violated and therefore the plausibility of this claim is not
before us here. See Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985).
5
As previously noted, the district court did not, as the
dissent contends, hold as a matter of law that harassment based
on sex stereotyping is not actionable under Title IX. Instead,
it read the complaint as alleging harassment based on sexual
orientation. J.A. 28 (“Here, Plaintiff’s Title IX claim is
(Continued)
10
harassment based on a failure to conform to gender stereotypes.
Thus he argues that the district court misunderstood the legal
basis for his claim, and yet still maintains that he would be
better served by a decision on the law here instead of by an
opportunity to clarify his complaint on remand. We disagree.
Our rule against non-attorney parents representing their minor
children pro se aims to avoid exactly this type of potentially
prejudicial confusion. We therefore vacate the district court’s
order and remand with instructions to provide M.D. with sixty
days to retain counsel and file an amended Title IX complaint.
Our sixty-day deadline ensures that these further proceedings
will not result in undue delay. We now address M.D.’s Title VI
claim.
B.
M.D.’s Title VI claim falls into the limited exception to
our remand requirement because it turns on a pure question of
law mitigating any risk of prejudice. We therefore review de
novo the district court’s dismissal for failure to state a claim
for relief under Federal Rule of Civil Procedure 12(b)(6).
based on other student’s [sic] incorrect perception of his
sexual orientation, not his gender.”). In contrast to M.D.’s
Title VI claim, therefore, M.D. contends on appeal that the
district court failed to recognize the correct legal basis for
his Title IX claim below.
11
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009). Although we accept as true all well-
pleaded facts and draw all reasonable inferences in favor of the
plaintiff, a complaint must “‘permit[] [us] to infer more than
the mere possibility of misconduct’ based upon ‘[our] judicial
experience and common sense.’” Coleman v. Md. Ct. of Appeals,
626 F.3d 187, 189 (4th Cir. 2010) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)). The facts alleged in M.D.’s
complaint fail to meet this standard.
A private cause of action for damages under Title VI is
authorized only for intentional discrimination based on race,
color, or national origin. Franklin v. Gwinnett Cnty. Pub.
Sch., 503 U.S. 60, 70 (1992). Here, M.D. seeks to hold the
School Board accountable for the actions of third parties,
namely its administrators’ response to student-on-student
harassment based on his race. While the school administrators
were on notice that M.D. was being bullied by February 2013, the
complaint only alleges specific facts regarding harassment based
on race beginning at the end of March. Contrary to the
dissent’s contention, therefore, the complaint cannot be
construed to allege that the school knew M.D. was being harassed
based on a protected characteristic under Title VI until weeks
before his withdrawal from Summer Hill. As a matter of law,
M.D. cannot plausibly allege the required intent by challenging
12
only the timeliness and adequacy of the administrators’ response
under these circumstances. In fact, Vice Principal Bowser and
Principal Crews were given just days to respond because Summer
Hill’s spring break fell just after M.D.’s mother reported the
first incident, and Vice Principal Bowser spoke with the
offending student by April 11th. By April 15, 2013, M.D.’s
mother received a copy of the school’s bullying policies and two
days later a bullying specialist contacted her. Although M.D.’s
mother feels that the school’s response was dilatory and
inadequate during this two week period and throughout M.D.’s
time at Summer Hill, the complaint does allege that the school
did in fact respond after being informed of the Hispanic male
student’s use of racial epithets. We will not second guess the
administrators’ decisions here. See Davis, 526 U.S. at 648.
Our reticence is particularly critical because a school must
balance the rights of other students when shaping its response
to reported bullying. We hold therefore that M.D.’s complaint
fails to state a claim for relief under Title VI against the
Richmond School Board. 6
6
M.D.’s additional contention that the School Board should
have been on notice that Summer Hill was a racially hostile
environment and responded with greater education and prevention
efforts is unsupported by any factual allegations. It therefore
fails to “nudge[] [his] claim[] across the line from conceivable
to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560
(2007).
13
IV.
With sympathy for M.D.’s plight based on the allegations in
his complaint and for his mother’s attempts to ensure her son’s
well-being, we are nevertheless constrained to hold that his
claim against the School Board for intentional discrimination
under Title VI fails as a matter of law. For the reasons above,
we direct the district court to provide to M.D. sixty days to
retain counsel and file an amended Title IX complaint. The
district court’s order is therefore
AFFIRMED IN PART AND VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS.
14
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
“[N]on-attorney parents generally may not litigate the
claims of their minor children in federal court.” Myers v.
Loudoun County Public Schools, 418 F.3d 395, 401 (4th Cir.
2005). As counsel for the school board aptly conceded at oral
argument, Myers instructs this Court to apply the non-attorney
parent litigation rule to this entire case and remand it to the
district court. Yet instead, the majority states that it is
“comfortable,” maj. op. at 3, carving the case in half by
applying Myers’ non-attorney parent litigation rule to M.D.’s
Title IX claim but not to his Title VI claim. I can discern no
basis in law, fact, or logic for that distinction. Accordingly,
although I concur in the vacatur and remand of the Title IX
claim, I am constrained to dissent from the affirmance of the
dismissal of the Title VI claim.
The majority offers two reasons for distinguishing between
the Title VI and Title IX claims for purposes of the non-
attorney parent litigation rule: first, it states that the
former claim “turns on a pure question of law mitigating any
risk of prejudice [to M.D.],” maj. op. at 10, and therefore
falls into an exception to the Myers rule; second, it states
that, as a matter of law, M.D. cannot meet the intent
requirement of Title VI “by challenging only the timeliness and
15
adequacy of the administrators’ response because the alleged use
of racial epithets began just weeks before M.D.’s withdrawal
from Summer Hill,” maj. op. at 11.
Each of the proffered reasons puzzles me.
With respect to whether our resolution of the Title VI
claim turns on a question of law, the majority’s argument
conveniently ignores that the Title IX claim also turns on a
pure question of law: whether Title IX permits sex-stereotyping
claims when the victim and harasser are both of the same sex.
The district court answered “no,” ruling that such harassment
constitutes sexual orientation discrimination and therefore is
not actionable under Title IX. M.D. appealed, arguing that his
claim fits under Title IX’s prohibition on sex discrimination on
a gender stereotyping theory. If anything, the Title IX issue
is a more neatly-presented question of law for our resolution.
All of us agree that under the rule of Myers, the district court
should not have resolved that issue in the absence of counsel
for the minor plaintiff. Manifestly, that is a correct
analysis.
The majority’s second proffered reason is even more
puzzling: it states that there is no set of facts that M.D.
could plead that would satisfy the intent requirement of Title
VI, and to make its point it focuses on the amount of time that
16
the school board had to respond to M.D.’s victimization on the
basis of racialized bullying.
Even if we could permissibly decide this case on the basis
of a complaint filed by a non-attorney parent (which we cannot
under Myers), this argument is refuted by the allegations in the
prolix complaint in the record. Specifically, the majority
states that only a few weeks passed between M.D.’s parents’
report of the bullying to the school and M.D.’s withdrawal from
the school, but that assertion is expressly contradicted in the
complaint: “[f]rom February of 2013 to April of 2013, the
Plaintiffs’ mother and father” visited the school to state their
concerns about the racialized bullying of M.D. J.A. 6 (emphasis
added). In other words, construing the complaint – as we must -
in the light most favorable to M.D. (if we are going to
“construe” it at all), there were months of inactivity by the
school board in the face of these allegations of racialized
bullying. The majority’s parsing of the complaint to select a
timeline of events justifying affirmance of the district court
is in vain and demonstrates exactly why we should not decide
appeals from the grant of Rule 12(b)(6) motions dismissing
complaints filed by non-attorney parents.
Nor is it likely that the majority’s argument enjoys any
substantial foundation in law. The majority opinion codifies as
law the belief that no jury may find a school board liable under
17
Title VI for failing to act for weeks after a six-year old and
his parents reported that he was repeatedly called a “nigger”
and a “little monkey.” J.A. 5. Besides being a startling new
rule of antidiscrimination law, the majority’s holding flatly
contradicts our prior case law: given that the use of these
racial epithets has been held to radically change the dynamics
of even an adult workplace environment, Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 185 (4th Cir. 2001), it seems quite
fantastic to hold that the same epithets used against a highly
impressionable six-year old boy at school (where he has no easy
way of evading his harassers) cannot ever give rise to liability
against school administrators for their failure to act for
weeks. I would be troubled by this holding in any other case,
see Monteiro v. Tempe Union High Sch. Dist.,
158 F.3d 1022, 1033
(9th Cir. 1998) (holding that school districts may be held
liable under Title VI for deliberate indifference to student-on-
student racial harassment); I am disturbed that we embrace it in
this improperly pled case brought by a non-attorney parent.
Lacking a foundation in fact or law, the majority’s opinion
is left begging the question posed by the non-attorney parent
litigation rule. The rule is child-protective: it prevents
well-intentioned but legally inept parents from endangering the
interests of their minor children. Myers, 418 F.3d at 401.
Such danger can arise as readily from an inartfully pled
18
complaint as it might from the service of garbled interrogatory
responses, a fumbling cross-examination at trial, or an
incoherent closing argument. If M.D.’s interests were
prejudiced as to one count because of poor pleading or
inadequate parental representation or “potentially prejudicial
confusion,” maj. op. at 10, then his right not to be similarly
prejudiced as to the other count in the same complaint should
obtain as well. *
No litigant has asked us to recognize the distinction
embraced by the majority; the district court did not make that
distinction, or even pay heed to its duty, unmistakably imposed
by Myers, to decline to adjudicate the claims at all in the
*
Albeit only implicitly, concerns over judicial integrity
and public confidence in the adversarial process also undergird
the rule of Myers, for it is a truism that
Our adversary system for the resolution of
disputes rests on the unshakable foundation that truth
is the object of the system’s process which is
designed for the purpose of dispensing justice.
However, because no one has an exclusive insight into
truth, the process depends on the adversarial
presentation of evidence, precedent and custom, and
argument to reasoned conclusions--all directed with
unwavering effort to what, in good faith, is believed
to be true on matters material to the disposition . .
. . [I]t is important to reaffirm . . . the principle
that lawyers, who serve as officers of the court, have
the first line task of assuring the integrity of the
process.
United States v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th
Cir. 1993).
19
absence of counsel for the minor plaintiff. Indeed, the answer
is that there is no cognizable distinction. Myers must apply
with equal force to both counts. Accordingly, I respectfully
dissent from so much of the majority opinion as affirms any
portion of the judgment.
20
