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Court revives student’s suit alleging ‘gay’ taunts

A six-year-old African-American boy who said schoolmates’ taunts that he was “gay” and physical harassment required him to change schools gets another chance to sue school officials, a federal appeals court has held.

During the spring of 2013, the boy was the target of verbal and physical assaults and thefts by his peers, and was mocked for failing to fight back and repeatedly cursed at and called “gay” and racist names, according to his complaint. His parents protested to officials at Summer Hill Elementary School, but the complaint described an ineffective response from the defendants.

The boy and his mother went to court without a lawyer, claiming that repeated appeals to school officials brought no change in the antagonists’ behavior and no relief for the targeted child. Richmond U.S. District Judge Henry Hudson dismissed their Title VI and Title IX claims against the city of Richmond school board and school administrators.

Non-attorney parents are not authorized to represent their children in federal court, the 4th U.S. Circuit Court of Appeals said in its March 11 unpublished opinion in M.D. v. School Board of the City of Richmond. The panel affirmed dismissal of the Title VI claim because the complaint did not allege the required intentional discrimination based on race, color or national origin.

The appellate panel said the court was not adopting any “new rule of antidiscrimination law,” nor was it holding that “the use of racial epithets can never give rise to liability against a school board for failure to respond to student-on-student harassment for weeks under Title VI.”

“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,” wrote Judge Allyson K. Duncan for the panel majority.

The panel said it had to remand the child’s Title IX claim to ensure that his rights are not prejudiced by his mother’s pro se representation in the trial court. The district court said alleged harassment based on perceived sexual orientation does not state a claim under Title IX, but it did not say, according to the panel majority, that a plaintiff could not sue for alleged harassment based on sex stereotyping.

On remand, the plaintiff will have 60 days to retain counsel and file an amended Title IX claim.

Judge Andre M. Davis said he agreed with remanding the Title IX claim, but said the court was “carving the case in half” by not remanding the Title VI claim as well.

Calling it a “startling new rule of antidiscrimination law,” Davis said the “majority opinion codifies as law the belief that no jury may find a school board liable under 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’,” Davis wrote.

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