Ho Decries White Racism as Court Rejects ‘MAGA’ Bullying Case

An evenly divided en banc Fifth Circuit upheld the dismissal of a student’s claims that his alleged bullying for being white was racial harassment, over strong dissents from the court’s most conservative members.

The split federal appeals court on Wednesday said it would affirm the lower court’s ruling that the complaint from a student, a minor who’s gone by initials B.W. in the case, didn’t reach the legal standard for his claims of race-based harassment.

The student alleged that officials failed to protect him, as he was harassed by both students and teachers at a school district based out of Austin, Texas, in a series of events that began after he wore a “Make America Great Again” hat, a symbol of President-elect Donald Trump and his supporters.

The statement that the court was evenly divided was attributed to Senior Judge Carolyn Dineen King, joined by Judges Carl Stewart, Priscilla Richman, Leslie Southwick, Catharina Haynes, James Graves, Stephen Higginson, Dana Douglas, and Irma Ramirez.

Both a trial judge and a three-judge panel on the Fifth Circuit had found that the facts alleged in the complaint didn’t back a race harassment claim under Title VI of the Civil Rights Act, which protects people from race-based discrimination at programs that receive federal funds.

In a concurrence, Richman—a George W. Bush appointee—said that the race-based harassment allegations didn’t rise to the legal standard to be actionable under Title VI. She was joined by Southwick, Douglas, and Ramirez.

Richman said that while it’s “sickening and reprehensible” that a student would be subject to that level of bullying and that school officials failed to stop it, the lawsuit “makes clear that the impetus for the harassment and bullying was his political beliefs, actions, and expressions and those of his classmates.”

Chief Judge Jennifer Walker Elrod wrote in a dissent joined by several of the court’s conservatives that it’s “unfortunate” that the divided court had to affirm the trial judge’s decision. She said that, at this point in the litigation, the court must take the student’s allegations as true, and weighing whether the harassment was racially or politically based is “inappropriate.”

“When a student is physically attacked because of his race, his attacker brags about it to the whole school, and other students, teachers, and administrators mock him with specific reference to his skin color, it is certainly reasonable to infer that continued harassment of the victim is—at least in part—based on the victim’s race,” wrote Elrod, another George W. Bush appointee.

She was joined by Judges Edith Jones, Jerry Smith, Don Willett, James Ho, Stuart Kyle Duncan, Kurt Engelhardt, Andrew Oldham, and Cory Wilson—all either Trump or Ronald Reagan appointees.

Ho authored another dissent, which Duncan also joined, in which he said that racism against white people is still racism. “It’s racist to characterize whites as racist. Because it’s racist to attach any negative trait to a group of people based on their race. And it’s no less racist just because the victimized racial group is white,” Ho wrote.

He cited instances of “judicial abdication” on antidiscrimination law, such as rulings that permitted racial discrimination on the basis of “separate but equal,” as well as those allowing for affirmative action to be used in admissions programs.

And Ho—a Trump appointee seen as a potential Supreme Court pick—said that “culture today increasingly accepts (if not celebrates) racism against whites.”

“So it’s not surprising that more institutions increasingly believe that they have cultural permission to tolerate (if not encourage) racism against whites, under the guise of promoting diversity,” he wrote. “Racism is now edgy and exciting—so long as it’s against whites.”

The judge said that while it “may be politically correct in certain circles to discriminate against whites,” that doesn’t make it legally correct.

“It’s unlawful under Title VI to discriminate against anyone—anyone—because of their race. So it is the solemn responsibility of the federal judiciary to stop institutions from using ‘diversity . . . as a license to discriminate,’” Ho wrote.

B.W., Appellant v. Austin Independent School District, 5th Cir. en banc, No. 22-50158, 11/13/24