Vlaming v. W. Point Sch. Bd.

• Decision Date: 20 August 2021
• Docket Number: No. 20-1940,20-1940
• Citation: 10 F.4th 300
• Parties: Peter VLAMING, Plaintiff – Appellee, v. WEST POINT SCHOOL BOARD ; Laura Abel, in her official capacity as Division Superintendent; Jonathan Hochman, in his Official Capacity as Principal of West Point High School; Suzanne Aunspach, or Her Successor in Office, in her official capacity as Assistant Principal of West Point High School, Defendants – Appellants, and John Doe, Amicus Supporting Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

10 F.4th 300

Peter VLAMING, Plaintiff – Appellee,

v. WEST POINT SCHOOL BOARD ; Laura Abel, in her official capacity as Division Superintendent; Jonathan Hochman, in his Official Capacity as Principal of West Point High School; Suzanne Aunspach, or Her Successor in Office, in her official capacity as Assistant Principal of West Point High School, Defendants – Appellants,andJohn Doe, Amicus Supporting Appellants.

No. 20-1940

United States Court of Appeals, Fourth Circuit.

Argued: May 7, 2021

Decided: August 20, 2021

ARGUED: Edward Henderson Williams, II, WILMERHALE LLP, Washington, D.C., for Appellants. Tyson C. Langhofer, ALLIANCE DEFENDING FREEDOM, Ashburn, Virginia, for Appellee. ON BRIEF: Stacy Haney, HANEY PHINYOWATTANACHIP, Richmond, Virginia; Paul R.Q. Wolfson, Bruce M. Berman, Tania Faransso, Washington, D.C., Alan E. Schoenfeld, WILMERHALE LLP, New York, New York, for Appellants. J. Caleb Dalton, Washington, D.C., Ryan Bangert, Scottsdale, Arizona, David A. Cortman, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia; Shawn A. Voyles, MCKENRY DANCIGERS DAWSON, P.C., Virginia Beach, Virginia, for Appellee. Luke Platzer, Washington, D.C., Cayman Mitchelle, New York, New York, Kristen Green, JENNER & BLOCK LLP, Los Angeles, California; Asaf Orr, Shannon Minter, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Amicus Curiae.

Before FLOYD, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson joined and Judge Floyd concurred in the judgment. Judge Floyd wrote a separate concurring opinion.

QUATTLEBAUM, Circuit Judge:

This appeal provides us the rare opportunity to review a remand order. A local school board fired a teacher for refusing to comply with its policies prohibiting discrimination and harassment. The teacher brought state causes of action in state court to challenge his termination. The school board removed the case to federal court, arguing the court had jurisdiction pursuant to the federal question removal statute, 28 U.S.C. § 1441(c), and the civil rights removal statute, 28 U.S.C. § 1443(2), because the claims turned on the school board's enforcement of Title IX, 20 U.S.C. § 1681. Unconvinced, the district court remanded the case. Because neither statute provides a basis for removal here, we affirm.

I.

A.

John Doe was a student at West Point High School, a public school in Virginia. At the start of the school year, Doe and his parent met with the school's assistant principal, Suzanne Aunspach, to explain that he had recently undergone a gender transition and had adopted a preferred name consistent with that transition. They requested that school staff use male pronouns and refer to Doe by his new name.

Peter Vlaming was Doe's French teacher. He had taught Doe for two years before Doe underwent his transition

. Shortly after their meeting with Aunspach, Doe, his parents and the school guidance counselor met with Vlaming to discuss Doe's new name and preferred pronouns. After the meeting, Aunspach told Vlaming he was expected to use Doe's preferred name and male pronouns.

Over the next two months, Vlaming referred to Doe by his new name, but he avoided the use of pronouns altogether when speaking to Doe directly and on at least one occasion referred to him using female pronouns in Doe's absence. Doe and his parents expressed frustration with Vlaming over this practice. Aunspach met with Vlaming again to reiterate Doe's preferences. She told Vlaming that his refusal to use male pronouns potentially violated both Title IX, which prohibits schools receiving federal funds from discriminating on the basis of sex, and the West Point School Board's policies. She provided Vlaming with written guidance regarding transgender students’ rights. Vlaming told her that using male pronouns to refer to someone who was born a female violated his religious beliefs because it was untruthful. Aunspach reiterated that Vlaming should use male pronouns to refer to Doe and that failure to do so could result in his termination.

Shortly thereafter, the principal, Jonathan Hochman, met with Vlaming. He directed Vlaming to use male pronouns to refer to the student. The next day, Hochman warned Vlaming that a refusal to comply with the School Board's policies would result in a letter of formal reprimand. That same day, Vlaming, apparently accidentally, used a female pronoun to refer to Doe during a classroom activity. Afterwards, Vlaming reported the incident to Principal Hochman. Doe subsequently withdrew from Vlaming's class, citing this incident and others. On Hochman's recommendation, the superintendent placed Vlaming on administrative leave pending an investigation.

During this leave, Principal Hochman gave Vlaming a final warning, which explained that his refusal to use Doe's preferred pronouns violated two school board policies that prohibited discrimination and harassment based on gender identity.¹ The superintendent also ordered Vlaming to refer to Doe using only male pronouns and warned him that if he treated Doe differently than other male students, he would be terminated.

Vlaming refused to comply with these directives. The superintendent therefore recommended his dismissal to the School Board. After a hearing, the Board dismissed Vlaming. In a letter explaining its rationale, the Board stated that Vlaming had failed to comply with his superiors’ directives and had violated the Board's policies prohibiting discrimination and harassment because his actions singled out Doe in a way that was noticed by Doe and his peers.

B.

Vlaming sued the School Board, and several school officials in their official capacity (collectively the "Board"), alleging that their decision to terminate his employment violated state statutory and constitutional protections. Specifically, he claimed the Board's termination after his refusal to use Doe's preferred pronouns violated his due process, free speech and free exercise rights under the Virginia Constitution and Virginia statutory free exercise protections. He also claimed that the Board violated Virginia's Dillon Rule² by adopting nondiscrimination policies more stringent than the laws of Virginia.³ He also brought a breach of contract claim.

The Board removed the case to federal court, but Vlaming moved to remand. In response, the Board argued the district court had removal jurisdiction under both 28 U.S.C. §§ 1441(c) and 1443(2). They argued the district court had federal question jurisdiction, allowing for removal under § 1441(c), because Vlaming's claims necessarily raise a disputed and substantial federal question—whether Title IX prohibits discrimination on the basis of gender identity. In addition, they argued, because Virginia interprets its due process, free speech and free exercise provisions as co-extensive with its federal counterparts, those claims also raised substantial federal questions. As to the civil rights removal statute, the defendants argued that because Title IX was a "law providing for equal rights," § 1443(2) authorized removal. 28 U.S.C. § 1443(2).

The district court granted Vlaming's motion. As to federal question jurisdiction, the district court reasoned that Vlaming's Dillon Rule claim dealt with the scope of state law, not Title IX. And to the extent Title IX was relevant to the breach of contract claim, it was a defense, not a necessary element of the claim. In addition, Vlaming's state constitutional claims did not provide federal question jurisdiction either, even though those constitutional provisions are coextensive with their federal counterparts. The district court reasoned that although the state court had the ability to use federal law to resolve the state constitutional claim, it did not have to, and it declined to "speculate that a state court will rely on federal law to resolve this lawsuit." J.A. 112.

As to the civil rights removal statute, the district court concluded that § 1443(2) did not apply to Title IX. It pointed to the Supreme Court's limitation of § 1443(1) to laws addressing racial equality in Georgia v. Rachel , 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and after noting that the Fourth Circuit has yet to decide whether the reasoning of that case applies to § 1443(2), it pointed to an older Fourth Circuit case and recent district court opinions to conclude that the same limitation applies to § 1443(2). Consequently, the district court remanded the case to state court.

The Board timely appealed pursuant to 28 U.S.C. § 1447(d), which allows appellate review for "an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 ...."

II.

We review issues of subject matter jurisdiction, including removal, de novo. Common Cause v. Lewis , 956 F.3d 246, 252 (4th Cir. 2020). Ordinarily, however, a remand order is not reviewable. See 28 U.S.C. § 1447(d). But when a defendant removes a case to federal court pursuant to the civil rights removal statute, " § 1447(d) permits appellate review of the district court's remand order—without any further qualification." BP P.L.C. v. Mayor & City Council of Baltimore , ––– U.S. ––––, 141 S.Ct. 1532, 1538, 209 L.Ed.2d 631 (2021). Therefore, we have jurisdiction to review the entire remand order and can consider all of the Board's arguments supporting jurisdiction that were addressed in that order. Id.

III.

We begin with asking whether federal question jurisdiction provides a basis for removal under § 1441(c) before analyzing the civil rights removal statute, § 1443(2).

A.

Federal courts have jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Most cases that obtain federal jurisdiction under this statute do so when federal law creates the cause of action. In a "slim category" of cases, Gunn v. Minton , 568 U.S. 251, 258, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013), however, federal courts have...