M.D. v. School Board of City of Richmond, 031114 FED4, 13-1813

Docket Nº:13-1813
Opinion Judge:DUNCAN, Circuit Judge
Party Name: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.
Attorney: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. Tara L. Borelli, Joshua J. Johnson, Los Angeles, California, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATIO...
Judge Panel:Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. DAVIS, Senior Circuit Judge, concurring in part and dissenting in part:
Case Date:March 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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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.

No. 13-1813

United States Court of Appeals, Fourth Circuit

March 11, 2014

UNPUBLISHED

Argued: January 28, 2014

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:

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.

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Affirmed in part and vacated in part, and remanded with instructions by unpublished opinion.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.

Unpublished opinions are not binding precedent in this circuit.

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 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.

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, 2013.2During 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.

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, 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.

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 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....

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