M.D. v. School Board City of Richmond

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:13-cv-00329-HEH. Copies to all parties and the district court/agency. [999312794]. [13-1813]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1813

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.

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:

January 28, 2014

Before DUNCAN
Circuit Judge.

and

FLOYD,

Decided:

Circuit

Judges,

and

March 11, 2014

DAVIS,

Senior

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instructions by unpublished opinion.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.

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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.

Unpublished opinions are not binding precedent in this circuit.

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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

1

The complaint also named Summer Hill Elementary School
Principal Sheleta Crews and Vice Principal Raymond Bowser as
defendants in the Title VI and Title IX claims.
The district
court dismissed these defendants because Title VI and Title IX
authorize claims only against recipients of federal funds. See
20 U.S.C. § 1681(a); 42 U.S.C. § 2000d.
M.D. does not appeal
these individual dismissals.
He also does not appeal the
district court’s dismissal without prejudice of the complaint’s
state law claims.
See Kendall v. City of Chesapeake, 174 F.3d
437, 444 (4th Cir. 1999).

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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.
addressed

the

viability

of

a

claim

It instead quite properly
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.

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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. 2
During this three-month period, M.D., a six-year old AfricanAmerican 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

the

told

M.D.’s

mother

that

he

spoke

students in response to M.D.’s allegations.

to

offending

M.D.’s mother also

began contacting the School Board directly and received email
responses.

2

We accept as true the well-pleaded facts in M.D.’s
complaint and draw all reasonable inferences in his favor when
reviewing the district court’s dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and 28
U.S.C. § 1915(e)(2)(B)(ii).
See Edwards v. City of Goldsboro,
178 F.3d 231, 244 (4th Cir. 1999).

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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
speaking

discipline
with

in

the

response

offending

because,

student

was

in

her

not

view,

enough.

just
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

monkey.”

to

the

surrounding

students,

“Look

at

my

little

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.
mother

During spring break and the following week, M.D.’s

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.
3

On April 17,

The exact date of this incident is somewhat unclear but
construing the facts most liberally, we assume it occurred prior
to Summer Hill’s spring break.

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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

indifference

Title

to

the

IX

were

violated

student-on-student

by

its

harassment

deliberate
he

endured

based on race and perceived sexual orientation.

She argued that

the

escalate

school

administrators’

decision

not

to

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 raceand 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.
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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

decision

school

discipline

administrators’
during

the

two-month

not

period

to

impose

after

they

greater
received

notice of the harassment was not “clearly unreasonable in light
of

the

known

circumstances.”

Davis

Educ., 526 U.S. 629, 648 (1999).

v.

Monroe

Cnty.

Bd.

of

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
familiar

reviewing

standard

the

governing

district

court’s

dismissals

under

order

under

Federal

Rule

the
of

Civil Procedure 12(b)(6), we must determine whether remand is
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the only appropriate action because M.D., a minor, appeals his
mother’s pro se complaint filed on his behalf.
at 401.

Myers, 418 F.3d

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.

Regarding Title IX, M.D. argues that the

district court erred by failing to recognize that the complaint
alleged harassment based on M.D.’s failure to conform to gender
stereotypes, which in his view is actionable under Title IX.
Under both Title VI and Title IX, M.D. argues that the district
court erred as a matter of law by failing to hold that the
complaint

plausibly

alleges

that

9

the

school

administrators’

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response was clearly unreasonable under Davis. 4

Thus, two of the

requirements

both

to

avoid

remand

are

met

for

of

M.D.’s

statutory claims: he is represented by counsel and steadfastly
urges us to decide this appeal.

As explained below, however, we

reach different conclusions as to whether M.D.’s Title IX and
Title VI claims meet the most significant prerequisite, that the
minor’s legal rights will not be prejudiced on appeal by a nonattorney parent’s pro se representation below.

We discuss each

statutory claim in turn.
A.
We conclude that M.D.’s rights will best be protected by
the

opportunity

to

retain

Title IX claim on remand.

and

have

counsel

file

a

clarified

The district court held as a matter

of law that M.D.’s complaint failed to state a claim under Title
IX

because

it

orientation. 5

alleged

harassment

based

on

perceived

sexual

On appeal, M.D. contends that he actually alleged

4

On appeal, M.D. also argues that the district court should
have held that M.D. stated a claim for relief under the Equal
Protection Clause of the Fourteenth Amendment.
However, the
complaint does not allege that M.D.’s right to equal protection
was violated and therefore the plausibility of this claim is not
before us here. See Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985).
5

As previously noted, the district court did not, as the
dissent contends, hold as a matter of law that harassment based
on sex stereotyping is not actionable under Title IX. Instead,
it read the complaint as alleging harassment based on sexual
orientation.
J.A. 28 (“Here, Plaintiff’s Title IX claim is
(Continued)
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harassment based on a failure to conform to gender stereotypes.
Thus he argues that the district court misunderstood the legal
basis for his claim, and yet still maintains that he would be
better served by a decision on the law here instead of by an
opportunity to clarify his complaint on remand.

We disagree.

Our rule against non-attorney parents representing their minor
children pro se aims to avoid exactly this type of potentially
prejudicial confusion.

We therefore vacate the district court’s

order and remand with instructions to provide M.D. with sixty
days to retain counsel and file an amended Title IX complaint.
Our sixty-day deadline ensures that these further proceedings
will not result in undue delay.

We now address M.D.’s Title VI

claim.
B.
M.D.’s Title VI claim falls into the limited exception to
our remand requirement because it turns on a pure question of
law mitigating any risk of prejudice.

We therefore review de

novo the district court’s dismissal for failure to state a claim
for

relief

under

Federal

Rule

of

Civil

Procedure

12(b)(6).

based on other student’s [sic] incorrect perception of his
sexual orientation, not his gender.”).
In contrast to M.D.’s
Title VI claim, therefore, M.D. contends on appeal that the
district court failed to recognize the correct legal basis for
his Title IX claim below.

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Nemet

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Chevrolet,

Ltd.

v.

Pg: 12 of 20

Consumeraffairs.com,

250, 253 (4th Cir. 2009).

Inc.,

591

F.3d

Although we accept as true all well-

pleaded facts and draw all reasonable inferences in favor of the
plaintiff, a complaint must “‘permit[] [us] to infer more than
the mere possibility of misconduct’ based upon ‘[our] judicial
experience and common sense.’”

Coleman v. Md. Ct. of Appeals,

626 F.3d 187, 189 (4th Cir. 2010) (quoting Ashcroft v. Iqbal,
556

U.S.

662,

679

(2009)).

The

facts

alleged

in

M.D.’s

complaint fail to meet this standard.
A private cause of action for damages under Title VI is
authorized only for intentional discrimination based on race,
color,

or

national

origin.

Franklin

Sch., 503 U.S. 60, 70 (1992).
School

Board

namely

its

accountable

for

administrators’

v.

Gwinnett

Cnty.

Pub.

Here, M.D. seeks to hold the
the

actions

response

harassment based on his race.

to

of

third

parties,

student-on-student

While the school administrators

were on notice that M.D. was being bullied by February 2013, the
complaint only alleges specific facts regarding harassment based
on

race

dissent’s

beginning

at

contention,

the

end

of

therefore,

March.
the

Contrary

complaint

to

the

cannot

be

construed to allege that the school knew M.D. was being harassed
based on a protected characteristic under Title VI until weeks
before his withdrawal from Summer Hill.

As a matter of law,

M.D. cannot plausibly allege the required intent by challenging
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only the timeliness and adequacy of the administrators’ response
under these circumstances.

In fact, Vice Principal Bowser and

Principal Crews were given just days to respond because Summer
Hill’s spring break fell just after M.D.’s mother reported the
first

incident,

and

Vice

Principal

offending student by April 11th.

Bowser

spoke

with

the

By April 15, 2013, M.D.’s

mother received a copy of the school’s bullying policies and two
days later a bullying specialist contacted her.
mother

feels

that

the

school’s

response

was

Although M.D.’s
dilatory

and

inadequate during this two week period and throughout M.D.’s
time at Summer Hill, the complaint does allege that the school
did in fact respond after being informed of the Hispanic male
student’s use of racial epithets.
administrators’ decisions here.

We will not second guess the
See Davis, 526 U.S. at 648.

Our reticence is particularly critical because a school must
balance the rights of other students when shaping its response
to reported bullying.

We hold therefore that M.D.’s complaint

fails to state a claim for relief under Title VI against the
Richmond School Board. 6
6

M.D.’s additional contention that the School Board should
have been on notice that Summer Hill was a racially hostile
environment and responded with greater education and prevention
efforts is unsupported by any factual allegations. It therefore
fails to “nudge[] [his] claim[] across the line from conceivable
to plausible.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560
(2007).

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IV.
With sympathy for M.D.’s plight based on the allegations in
his complaint and for his mother’s attempts to ensure her son’s
well-being, we are nevertheless constrained to hold that his
claim against the School Board for intentional discrimination
under Title VI fails as a matter of law.

For the reasons above,

we direct the district court to provide to M.D. sixty days to
retain counsel and file an amended Title IX complaint.

The

district court’s order is therefore

AFFIRMED IN PART AND VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS.

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DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
“[N]on-attorney

parents

generally

may

not

litigate

claims of their minor children in federal court.”
Public

Schools,

418

F.3d

395,

the

Myers v.

Loudoun

County

401

(4th

Cir.

2005).

As counsel for the school board aptly conceded at oral

argument, Myers instructs this Court to apply the non-attorney
parent litigation rule to this entire case and remand it to the
district court.
“comfortable,”

Yet instead, the majority states that it is
maj.

op.

at

3,

carving

the

case

in

half

by

applying Myers’ non-attorney parent litigation rule to M.D.’s
Title IX claim but not to his Title VI claim.

I can discern no

basis in law, fact, or logic for that distinction.

Accordingly,

although I concur in the vacatur and remand of the Title IX
claim, I am constrained to dissent from the affirmance of the
dismissal of the Title VI claim.
The majority offers two reasons for distinguishing between
the

Title

attorney

VI

and

parent

Title

IX

litigation

claims
rule:

for
first,

purposes
it

of

states

the

non-

that

the

former claim “turns on a pure question of law mitigating any
risk of prejudice [to M.D.],” maj. op. at 10, and therefore
falls into an exception to the Myers rule; second, it states
that,

as

a

matter

of

law,

M.D.

cannot

meet

the

intent

requirement of Title VI “by challenging only the timeliness and

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adequacy of the administrators’ response because the alleged use
of racial epithets began just weeks before M.D.’s withdrawal
from Summer Hill,” maj. op. at 11.
Each of the proffered reasons puzzles me.
With
claim

respect

turns

on

to
a

whether

question

our
of

resolution

law,

the

of

the

Title

majority’s

VI

argument

conveniently ignores that the Title IX claim also turns on a
pure question of law: whether Title IX permits sex-stereotyping
claims when the victim and harasser are both of the same sex.
The district court answered “no,” ruling that such harassment
constitutes sexual orientation discrimination and therefore is
not actionable under Title IX.

M.D. appealed, arguing that his

claim fits under Title IX’s prohibition on sex discrimination on
a gender stereotyping theory.

If anything, the Title IX issue

is a more neatly-presented question of law for our resolution.
All of us agree that under the rule of Myers, the district court
should not have resolved that issue in the absence of counsel
for

the

minor

plaintiff.

Manifestly,

that

is

a

correct

is

even

analysis.
The

majority’s

second

proffered

reason

more

puzzling: it states that there is no set of facts that M.D.
could plead that would satisfy the intent requirement of Title
VI, and to make its point it focuses on the amount of time that

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the school board had to respond to M.D.’s victimization on the
basis of racialized bullying.
Even if we could permissibly decide this case on the basis
of a complaint filed by a non-attorney parent (which we cannot
under Myers), this argument is refuted by the allegations in the
prolix

complaint

states

that

in

only

the

a

few

record.
weeks

Specifically,

passed

between

the

majority

M.D.’s

parents’

report of the bullying to the school and M.D.’s withdrawal from
the school, but that assertion is expressly contradicted in the
complaint:

“[f]rom

February

of

2013

to

April

of

2013,

the

Plaintiffs’ mother and father” visited the school to state their
concerns about the racialized bullying of M.D. J.A. 6 (emphasis
added).

In other words, construing the complaint – as we must -

in

light

the

most

favorable

to

M.D.

(if

we

are

going

to

“construe” it at all), there were months of inactivity by the
school

board

bullying.

in

the

face

of

these

allegations

of

racialized

The majority’s parsing of the complaint to select a

timeline of events justifying affirmance of the district court
is in vain and demonstrates exactly why we should not decide
appeals

from

the

grant

of

Rule

12(b)(6)

motions

dismissing

complaints filed by non-attorney parents.
Nor is it likely that the majority’s argument enjoys any
substantial foundation in law.

The majority opinion codifies as

law the belief that no jury may find a school board liable under
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Title VI for failing to act for weeks after a six-year old and
his parents reported that he was repeatedly called a “nigger”
and a “little monkey.” J.A. 5.

Besides being a startling new

rule of antidiscrimination law, the majority’s holding flatly
contradicts our prior case law: given that the use of these
racial epithets has been held to radically change the dynamics
of even an adult workplace environment, Spriggs v. Diamond Auto
Glass,

242

F.3d

179,

185

(4th

Cir.

2001),

it

seems

quite

fantastic to hold that the same epithets used against a highly
impressionable six-year old boy at school (where he has no easy
way of evading his harassers) cannot ever give rise to liability
against

school

administrators

for

their

failure

to

act

for

weeks.

I would be troubled by this holding in any other case,

see Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033
(9th

Cir.

1998)

(holding

that

school

districts

may

be

held

liable under Title VI for deliberate indifference to student-onstudent racial harassment); I am disturbed that we embrace it in
this improperly pled case brought by a non-attorney parent.
Lacking a foundation in fact or law, the majority’s opinion
is left begging the question posed by the non-attorney parent
litigation

rule.

The

rule

is

child-protective:

it

prevents

well-intentioned but legally inept parents from endangering the
interests of their minor children.
Such

danger

can

arise

as

readily
18

Myers, 418 F.3d at 401.
from

an

inartfully

pled

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complaint as it might from the service of garbled interrogatory
responses,

a

fumbling

incoherent

closing

prejudiced

as

to

cross-examination

argument.
one

If

count

because

at

M.D.’s
of

trial,

or

interests

poor

pleading

an
were
or

inadequate parental representation or “potentially prejudicial
confusion,” maj. op. at 10, then his right not to be similarly
prejudiced as to the other count in the same complaint should
obtain as well. *
No

litigant

has

asked

us

to

recognize

the

distinction

embraced by the majority; the district court did not make that
distinction, or even pay heed to its duty, unmistakably imposed
by Myers, to decline to adjudicate the claims at all in the
*

Albeit only implicitly, concerns over judicial integrity
and public confidence in the adversarial process also undergird
the rule of Myers, for it is a truism that
Our adversary system for the resolution of
disputes rests on the unshakable foundation that truth
is the object of the system’s process which is
designed for the purpose of dispensing justice.
However, because no one has an exclusive insight into
truth,
the
process
depends
on
the
adversarial
presentation of evidence, precedent and custom, and
argument to reasoned conclusions--all directed with
unwavering effort to what, in good faith, is believed
to be true on matters material to the disposition . .
. . [I]t is important to reaffirm . . . the principle
that lawyers, who serve as officers of the court, have
the first line task of assuring the integrity of the
process.
United States v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th
Cir. 1993).

19

Appeal: 13-1813

Doc: 45

Filed: 03/11/2014

Pg: 20 of 20

absence of counsel for the minor plaintiff.
is that there is no cognizable distinction.
with equal force to both counts.

Indeed, the answer
Myers must apply

Accordingly, I respectfully

dissent from so much of the majority opinion as affirms any
portion of the judgment.

20