Fifth Circuit Tells MAGA Hat-Wearing Student That Counterspeech Isn’t ‘Racial Harassment’

It should be clear by now that being a fan of one particular politician doesn’t make you a member of a “protected” group. It’s just a stupid as cops claiming they should be given more rights and protections because people just don’t seem to be showering them with unconditional love in recent years. Wearing clothing that you’re hoping will provoke a response (either supportive or otherwise) doesn’t make you a victim of actionable harassment just because it didn’t trigger the responses you hoped it would.

Triggered MAGA fan B.W. (a minor, hence the initials) sued the Austin, Texas Independent School District (AISD) after his MAGA gear provoked completely expected responses, like other students (and even some faculty members) calling him a bigot and a racist and suggesting he might be a fan of the KKK. B.W.’s parents ultimately pulled him from the school after belatedly discovering that their son’s attempted owning of the libs had backfired.

The lawsuit was brought under Title VI, a legal authority that forbids “harassment based on the victim’s race, color, or national origin.” The complaint (now in its fourth amended version) tried to claim B.W. was being “harassed” because he was white, rather than because of his repeated displays of support for Donald Trump.

This obviously wasn’t pleasant for B.W., but one can assume he hoped to trigger some libs, and the libs were indeed triggered, leading to this sort of thing. From the decision [PDF], which is written by Judge Priscilla Richman, whose judicial record would seem to indicate people might have expected her to come down on the other side of this issue.

B.W.’s operative Complaint alleged that a math class aide “repeatedly called B.W. ‘Whitey,’” and a group of students shouted at him and other Cross Country teammates, “here are all the white boys!” A teacher asked him if he “enjoyed his White Gospel Music.” A substitute teacher told B.W., “I will not have a white man talk to me about gender issues!” A teacher told B.W. that she was “getting concerned about how many white people there are.” A student told B.W., “America is only for white people,” and another student “repeat[ed] the evils of the white race in American history” to B.W.

While this probably wasn’t pleasant for B.W., it really doesn’t sound like the sort of harassment that would result in a lawsuit. This is actually pretty mild, at least in terms of what’s recounted at the beginning of the decision. (There’s more in the lengthy dissent, which involves the back nine (judges) participating in this en banc hearing, who disagreed with the majority decision written by Richman.) It doesn’t matter that one student created a meme that made B.W. look like a KKK member. Nor does it matter that B.W. was regularly called a “racist” by other students (who also allegedly repeatedly “flicked him off” and “cussed at him).

What matters here is what the law says, in terms of harassment under Title VI. And B.W.’s attempt to secure a victory under this legal statute was immediately undercut by his own lawsuit. (Emphasis in the original.)

B.W.’s own pleadings, which we “must accept as true,” assert that the meme was motivated by politics and not race. B.W.’s complaint specifically alleges that “D.K. admitted to the school that he made the KKK meme about B.W. because D.K.’s father told him not [to] be friends with anyone who was a Conservative.”

[…]

Being called a racist is not the equivalent of being harassed based on the harassment victim’s race. Being accused of racism says nothing about the race of the accused. A racist or alleged racist could be a person of virtually any color. The pejorative term is used because of the accused’s own alleged views about race, not because of the accused’s race. The “flicking off” and “cussed at” allegations, read in context, were alleged to have been motivated by B.W.’s “Conservative and Republican political opinions” and his support for Donald Trump. The complaint does not allege they were racially motivated.

As awful as this is (I mean, at least in terms of faculty members participating in the dogpiling), this simply isn’t actionable. MAGA is not a race, color, or religion, even though it definitely draws more people of one specific race and color and whose acolytes often act as though supporting Donald Trump is an expression of Christian faith.

The majority opinion affirming the lower court’s dismissal of the suit is five pages. The dissents are nearly five times a long (24 pages). And even if I don’t agree harassing someone over their MAGA gear is actionable under Title VI, the dissenting opinions make some decent points about how MAGA could be a stand-in for “white,” especially when applied in this fashion to other races and competing political beliefs.

First, the dissent says there’s at least some evidence hateful acts were directed at B.K. because of his race, especially when his pleadings are “accepted as true” during this stage of the legal proceedings.

In his complaint, B.W. includes recurrent incidents of harassment that explicitly reference his race. He alleges that students repeatedly recited the “evils of the white race” to B.W.; that students ran into the locker room and proclaimed (with B.W. present) “here are all the white boys!”; and that students daily abused B.W. both physically and verbally. Worst of all, B.W. alleges that another student beat him bloody and then bragged to the school that he had done so “because B.W. was white.” B.W. alleges that he was subjected to daily harassment from his classmates following that public pronouncement of racial animus. Adding insult to B.W.’s obvious physical injuries, much of the harassment came from school teachers.

Then there’s the KKK meme, which likely would not have been created if B.K. was not white. And that’s problematic, because it seems the majority might have sided with B.K. if he hadn’t been white and subject to similar harassment due to perceived race.

The KKK meme is further evidence of race-based harassment. Groups like the KKK and the Nazis are white-supremacist organizations that generally have a racial association tied to membership. Thus, a meme depicting B.W. as a member of the KKK has a racial component, particularly in the context of the other overtly race-based harassment that B.W. alleges occurred here. When an individual is accused of membership in a politically odious organization associated with that individual’s protected characteristic, such an accusation amounts to stereotyping based on that protected characteristic. Suppose instead that a student made a meme of an Afghan classmate as a member of the Taliban or Al Qaeda. Such a meme obviously implicates the student’s protected characteristics.

But, ultimately, there’s another factor in play here — elements admitted in B.K.’s own pleadings: he wore MAGA gear, something that closely aligned him with the views expressed by MAGA figureheads, many of which are racists, bigots, and — in far too many cases — closely aligned with white nationalists. In my opinion, that’s the wild card. It would be far easier to prove the harassment was solely linked to B.K. being white if he hadn’t chose to repeatedly wear shirts and hats that linked him with a bunch of other (similarly white) bigots. If the harassment had occurred without this factor in play, it would clearly have been solely racially-motivated. But B.K. wore stuff he knew would inevitably provoke negative responses. And then he sued when this gambit paid off.

It is inexcusable that staff members participated in the alleged bullying, and perhaps there’s still something under state law that might earn B.K. a win, but under Title VI, it’s just not going to work because the plaintiff’s admitted “political beliefs” don’t make him part of a protected group.