A divided federal appeals court upheld the dismissal of a Texas student’s lawsuit on Wednesday, rejecting his claims that he faced severe bullying for being white and supporting Republican President-elect Donald Trump. The New Orleans-based 5th U.S. Circuit Court of Appeals split 9-9 on whether to revive the lawsuit against the Austin Independent School District. This tie allowed a previous lower court’s dismissal of the case to stand, effectively stripping B.W. of his pursuit of justice.
In his 2020 lawsuit, B.W., identified only by his initials, recounted harrowing experiences from the 8th to 10th grades. He claimed that his fellow students ostracized and verbally and physically abused him for his political beliefs, his race, and his faith as a Christian. B.W. said that he sometimes wore a “Make America Great Again” hat, which led to accusations of being racist, anti-feminist, and anti-gay—allegations he emphatically denied. He also reported a teacher calling him “Whitey” and described a fellow student creating a meme that portrayed him as a hooded Ku Klux Klansman. Despite the ongoing harassment, B.W. argued that the school district showed deliberate indifference, violating Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in federally funded educational programs.
In January 2023, a three-judge panel from the 5th Circuit initially upheld the lower court’s dismissal, asserting that most of the incidents centered on B.W.’s ideological beliefs, which, they claimed, could not form the basis of a racial discrimination case under Title VI. But the full 5th Circuit—the country’s most conservative court—later agreed to rehear the case. However, the court split evenly, with six judges appointed by Democratic presidents and three judges appointed by Republicans opposing B.W., denying him the chance to present his grievances fully. This decision blocked his attempt to hold the school district accountable.
Nine judges appointed by Republican presidents, including all six of former President Trump’s appointees, stood by B.W., believing his allegations “plausibly amount to severe, pervasive, and objectively offensive racial harassment.” Among these judges was U.S. Circuit Judge James Ho, a prominent Trump appointee and potential future Supreme Court candidate. In a forceful dissent joined by fellow Trump appointee U.S. Circuit Judge Kyle Duncan, Ho argued that B.W. suffered harassment for multiple reasons, “but being white was absolutely one of them.” Ho warned that society increasingly tolerates, and even encourages, “racism against whites” under the guise of promoting diversity.
“Federal laws like Title VI prohibit discrimination on the basis of race,” Ho wrote, condemning any suggestion that targeting someone’s race is acceptable if the individual happens to be white. “Politically correct does not mean legally correct.”
B.W.’s lawyer, Martin Cirkiel, vowed to take the case to the U.S. Supreme Court, emphasizing the need to protect all children at school, “regardless of their race, religion, nationality, or political beliefs.” But with this ruling, B.W. faces a harsh reality: the justice he sought remains denied.
The case is B.W. v. Austin Independent School District, 5th U.S. Circuit Court of Appeals, No. 22-50158.
