United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED ____________ November 13, 2024 No. 22-50158 Lyle W. Cayce ____________ Clerk B.W., a minor, by next friends M.W. and B.W., formerly known herein as Jon AISD Doe,

Plaintiff—Appellant,

versus Austin Independent School District,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:20-CV-750 ______________________________ Before Elrod, Chief Judge, and King, Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges. Carolyn Dineen King, Circuit Judge, joined by Stewart, Richman, Southwick, Haynes, Graves, Higginson, Douglas, and Ramirez, Circuit Judges: By reason of an equally divided en banc court, the decision of the dis- trict court is AFFIRMED. The panel opinion was vacated by the grant of rehearing en banc. Case: 22-50158 Document: 125-1 Page: 2 Date Filed: 11/13/2024

No. 22-50158

Priscilla Richman, Circuit Judge, joined by Southwick, Douglas, and Ramirez, Circuit Judges, concurring: Accepting B.W.’s allegations as true, AISD students unquestionably bullied him, although the primary impetus of the bullying was, according to B.W., his political beliefs. Faculty also made inappropriate statements and remarks. The Fourth Amended Complaint is also conclusory as to how AISD had notice of harassment or discrimination based on race, though AISD certainly was apprised that B.W. was harassed due to his conservative political views. But assuming that B.W.’s Fourth Amended Complaint does assert that AISD knew he suffered discrimination or harassment based on race and failed to take corrective measures in a timely manner, B.W. does not allege “harassment [] based on [his] ‘race,’” 1 as opposed to political differences, that was “so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to [the] educational opportunities or benefits provided by the school.” 2 Therefore, I would affirm the district court’s dismissal of his case. Title VI claims require that “the harassment was based on the victim’s ‘race, color, or national origin.’” 3 The allegations that pertain to race do not surmount the threshold required in Davis ex rel. LaShonda D. v. Monroe County Board of Education. 4 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

_____________________ 1 Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 n.23 (5th Cir. 2015) (quoting 42 U.S.C. § 2000d). 2 Id. at 408 (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999)). 3 Id. at 409 n.23 (quoting 42 U.S.C. § 2000d). 4 526 U.S. 629, 650 (1999).

2 Case: 22-50158 Document: 125-1 Page: 3 Date Filed: 11/13/2024

No. 22-50158

boys!” A teacher asked him if he “enjoyed his White Gospel Music.” A subs