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, Douglas, and Ramirez, Circuit Judges: Graves, Higginson, 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. 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 boys!” A teacher asked him if he “enjoyed his White Gospel Music.” A substitute teacher told B.W., “I will not have a white man talk to me about gender issues!” A teacher told B.W. that she was “getting concerned about how many white people there are.” A student told B.W., “America is only for white people,” and another student “repeat[ed] the evils of the white race in American history” to B.W. These comments over the course of years do not constitute “severe, pervasive, and objectively offensive”[5] conduct sufficient to give rise to a cause of action for damages. The fact that some of these comments were made by faculty, not students, does not cause the circumstances faced by B.W. to rise to the level of severity or pervasiveness required for racial harassment to be actionable. We have explained that “[i]ntense verbal abuse that comes from an authority figure—like a school administrator—and persists for most of the school year can constitute a hostile educational environment.”[6] In Sewell v. Monroe City School Board,[7] the plaintiff alleged that the Dean of Students “verbally ‘ridiculed’ him ‘every other day’ for much of the school year,” “discouraged other students from talking” to him, and “tried to convince a student to concoct an allegation that [the plaintiff] sexually assaulted her.”[8] B.W. does not allege the same level of “[i]ntense verbal abuse.”[9] B.W. alleged that a student made a meme of him as a KKK member.[10] The pleading standards require that “all reasonable inferences that can be drawn from the pleading are drawn in favor of the pleader.”[11] However, B.W.’s own pleadings, which we “must accept as true,”[12] assert that the meme was motivated by politics and not race. B.W.’s complaint specifically alleges that “D.K. admitted to the school that he made the KKK meme aboutB.W. because D.K.’s father told him not [to] be friends with anyone who was a Conservative.” B.W. alleges that he was called a “racist,” and that during the latter part of the 2019 school year, “other students called him a racist daily, he was ‘flicked off’ daily, and also cussed at daily.” This continued in the 2019 fall semester. Being called a racist is not the equivalent of being harassed based on the harassment victim’s race. Being accused of racism says nothing about the race of the accused. A racist or alleged racist could be a person of virtually any color. The pejorative term is used because of the accused’s own alleged views about race, not because of the accused’s race. The “flicking off” and “cussed at” allegations, read in context, were alleged to have been motivated by B.W.’s “Conservative and Republican political opinions” and his support for Donald Trump. The complaint does not allege they were racially motivated. B.W.’s Fourth Amended Complaint sets forth the intense bullying and even physical assaults that he suffered over a course of years while in Austin public schools. It is sickening and reprehensible that a middle-school and later high-school student would be subjected to what B.W. says he had to endure and that school officials did not act decisively to bring an end to the bullying and harassment. But B.W.’s complaint, thirty-nine pages long, makes clear that the impetus for the harassment and bullying was his political beliefs, actions, and expressions and those of his classmates. The relatively few race-based comments recounted in the operative Complaint are not the sort of harassment that is actionable under Title VI. Harassment based on race, as opposed to political differences, must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to [the] educational opportunities or benefits provided by the school.”[13] That did not happen here. I would affirm the district court’s dismissal of B.W.’s claim. Jennifer Walker Elrod, Chief Judge, joined by Jones, Smith, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges, would reverse the district court’s judgment and remand for the following reasons: B.W. sued Austin Independent School District alleging, inter alia, racial harassment under Title VI of the Civil Rights Act. In his complaint, B.W. avers that his public-school experience was marred by repeated verbal harassment and physical attacks on account of his white race. Because our court is equally divided, we are required to affirm the district court’s judgment. See United States v. Garcia, 604 F.3d 186, 190 n.2 (5th Cir. 2010) (“Decisions by an equally divided en banc court are not binding precedent but only affirm the judgment by operation of law.”). This is most unfortunate. This should be a relatively easy case under Rule 12(b)(6), applying the standards for a well-pleaded complaint. The subject matter of the case should not create confusion as to those standards. Because these factual allegations plausibly amount to severe, pervasive, and objectively offensive racial harassment, we should reverse the district court’s dismissal of his claims and remand for further proceedings. I Before his parents withdrew him, B.W. attended middle school and high school in the Austin Independent School District. B.W. was mocked, physically beaten, and verbally abused throughout his time in the district.11 According to the complaint, one student promised to “beat the s— out of” B.W.—and then did so—because B.W. was white. A teaching aide pejoratively referred to B.W. as “Whitey” and repeatedly belittled him for struggling with class material: “Can’t figure this one out Whitey?”; “Need help Whitey?” Students repeatedly recited the “evils of the white race” to B.W. in class. A teacher mocked B.W. for listening to what she called “White Gospel Music.” Another teacher told B.W. that she was “concerned about how many white people there are.” A third teacher told B.W. that “I will not have a white man talk to me about gender issues!” In another incident, a student went so far as to make a meme of B.W. dressed as a hooded Ku Klux Klansman and circulate it to the whole school. All the while, Austin ISD administrators stood by and took no significant action to stop the bullying.2 Shockingly, some of the administrators joined in the harassment. B.W.’s middle school principal, for instance, “yanked” B.W.’s ear bud out of his ear, retorted sarcastically “Are you listening to Dixie?”, and then walked away, laughing to herself. Further, B.W. avers that he was subjected to daily name-calling, tripping, and obscene gestures from his classmates. He alleges that these and other similar instances occurred time and again over the course of two-and-a-half years. The complaint also alleges that B.W. faced discrimination because of his political beliefs. Among other things, B.W. avers that he was attacked and insulted by students for wearing a shirt supporting Texas Senator Ted Cruz. He also alleges that one student threatened him because of his stated support for former President Donald Trump: “Oh my F—ing G-d, I’m going to kill all Trump supporters, I don’t give a s— who hears it. I want to kill all of them.” B.W. asserts in his complaint that he “was not only ostracized for being a Republican, but a broader stereotype about being a Trump supporter, Caucasian, and a Christian emerged. For example, he was soon harassed for being a racist, and anti-feminist and anti-gay when he and his family are absolutely not.” The district court dismissed B.W.’s complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The panel opinion affirmed that decision, thus denying B.W. the opportunity to proceed to discovery. It ignored the vast majority of the allegations in B.W.’s complaint because, in its view, “the bulk of the Complaint’s allegations do not mention B.W.’s race at all.” B.W. ex rel. M.W. v. Austin Indep. Sch. Dist., No. 22- 50158, 2023 WL 128948, at *5 (5th Cir. Jan. 9, 2023), reh’g en banc granted, vacated, 72 F.4th 93 (5th Cir. 2023). The panel opinion held that B.W.’s claim was a “flawed attempt[] to conflate political with racial animus.” Id. at *6. That holding departs from well-settled principles of both civil procedure and antidiscrimination law. II When reviewing a district court’s dismissal of the complaint for failure to state a claim, we are required to: (1) construe the complaint “in the light most favorable to the plaintiff”; (2) take all non-conclusory allegations as true; and (3) make all reasonable inferences that can be drawn from the complaint in favor of the plaintiff. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (4th ed. 2024) (“Federal pleading standards . . . dictate that . . . all reasonable inferences that can be drawn from the pleading are drawn in favor of the pleader.”); Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019); Franklin v. United States, 49 F.4th 429, 435 (5th Cir. 2022) (“We review a district court’s ruling on a motion to dismiss de novo, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs.” (internal quotation marks omitted)); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” (emphasis added) (internal citations omitted)); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002) (“Because we review here a decision granting [Defendant's] motion to dismiss, we must accept as true all of the factual allegations contained in the complaint.”). At the 12(b)(6) stage, we are not permitted to ask what the “more reasonable” interpretation of the complaint is. We merely ask whether B.W.’s allegations, taken as true, plausibly state a claim for relief—even if ultimate success seems unlikely. Twombly, 550 U.S. at 556 (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations . . . .” (first alteration in original) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989))); id. (“[A] well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely ‘” (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))). As a result, facts supporting harassment of other kinds do not render facts alleging racial harassment untrue at the motion-to-dismiss stage. See Wilson v. Birnberg, 667 F.3d 591, 600 (5th Cir. 2012) (“The plausibility standard [for a complaint] is not akin to a probability requirement ” (alterations in original) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))). However, the panel opinion and Judge Richman’s en banc concurrence both improperly weigh the allegations and base their decisions off what they thought was the most likely motive behind the harassment directed at B.W., political animus. This is inappropriate at the 12(b)(6) stage. That a plaintiff alleges facts consistent with other theories “does not mean that the mere existence of an alternative explanation entitles a defendant to dismissal.” Wright & Miller, supra, § 1357. Rule 12(b)(6) only requires courts to ask if the plaintiff’s allegations, taken as true, plausibly state a claim for relief. See Iqbal, 556 U.S. at 678–79; Wright & Miller, supra, § 1357 (“[T]here must be a factual context that supports an inference of liability as one plausible explanation for what has been alleged.”). Accordingly, whether B.W.’s harassers were more likely to have been motivated by political animus as opposed to racial animus is irrelevant to proper 12(b)(6) analysis. Birnberg, 667 F.3d at 600; see also Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767–68 (5th Cir. 2019). This principle extends to incidents that “could be race-neutral or racially charged, depending on context.” Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 584 (5th Cir. 2020). “At the pleading stage, [B.W.] is entitled to the latter characterization.” Id. at 585; see Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 402 (5th Cir. 2021) (determining that, at summary judgment, the court was required to draw the inference that the word “mijo” was used offensively, even though it often is a term of endearment). Simply put, the fact that B.W. was bullied in part based on other characteristics in addition to his race does not eliminate the race-based nature of the harassment. See Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1049 (10th Cir. 2020); see also Sewell, 974 F.3d at 584 (Title VI claim plausible even though the verbal abuse implicated both race and sex); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 456–60 (5th Cir. 2013) (en banc). The panel opinion and Judge Richman’s en banc concurrence fail to draw all plausible inferences in B.W.’s favor. B.W.’s allegations of daily bullying—taken in context—plausibly amount to racial harassment. Recall that B.W. alleges that another student (I.L.) threatened to “beat the s— out of [B.W.].” I.L. then followed through on that threat by repeatedly punching B.W. until B.W. was lying on the floor bleeding. Afterwards, B.W. found out that I.L. told other students that he assaulted B.W. because B.W. was white. B.W. then heard that I.L.’s friends were out to get him because he reported the assault. For the remainder of his time at Austin ISD, B.W. experienced repeated harassment from students calling him a racist, tripping him, swearing at him, and giving him the middle finger. 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. Sewell, 974 F.3d at 584 (holding that the plaintiff was entitled to a characterization of the word “thug” as racially charged at the pleading stage, despite that word being “race-neutral” in some contexts); see Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (explaining that use of the term “boy” could be evidence of discriminatory animus based on contextual factors); Johnson, 7 F.4th at 403 (noting that when “further evidence of mistreatment” was considered “in the context of [a fellow employee's] verbal harassment, it could be inferred that these actions were likewise motivated by racial animus”). Further, it is reasonable to infer that the verbal abuse from students, such as calling B.W. a racist, was at least partly based on B.W.’s race because he alleges that he was subject to a “broader stereotype” that included his race. At this stage, B.W. is entitled to those inferences. See White v. U.S. Corr., L.L.C., 996 F.3d 302, 306–07 (5th Cir. 2021) (requiring review of a 12(b)(6) dismissal to “accept all well- pled facts as true, construing all reasonable inferences in the complaint in the light most favorable to the plaintiff”); Bellow v. LeBlanc, 550 F. App’x 181, 183 (5th Cir. 2013) (citing Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013)) (same). III To prevail against a school district on a claim for racial harassment under Title VI of the Civil Rights Act, the plaintiff must establish four conditions: (1) [T]he harassment was “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school” . . . , and the district (2) had actual knowledge, (3) had “control over the harasser and the environment in which the harassment occurs,” and (4) was deliberately indifferent. Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015) (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644, 650 (1999)). At this stage of the proceedings, Austin ISD does not contest prongs two, three, or four, which require, on the part of the school district, actual knowledge, control over the harasser, and deliberate indifference. Indeed, in both its panel and en banc briefing, Austin ISD has stated that “the district agrees that at least in this case as pled, the issue of ‘deliberate indifference’ was probably not amenable to resolution on a Rule 12(b)(6) motion.” Mr. Gilbert (Austin ISD’s attorney) reiterated this point at oral argument: “One thing I think it’s important to remember in this case is we did not move to dismiss on the grounds of deliberate indifference.”3 The only contested condition is prong one, which asks whether the complaint plausibly alleges racial harassment that is sufficiently “severe, pervasive, and objectively offensive.” To satisfy these conditions, “the harassment must have had a ‘concrete, negative effect’” on the plaintiff’s education. Sewell, 974 F.3d at 585 (quoting Fennell, 804 F.3d at 410). In examining that question, courts consider “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes” with the student’s education. See Shepherd v. Comptroller of Pub. Accts., 168 F.3d 871, 874 (5th Cir. 1999) (Title VII). To be sure, “the harassment must be more than the sort of teasing and bullying that generally takes place in schools.” Fennell, 804 F.3d at 409 (quoting Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011)). But at bottom, all that is required is that the harassment “detracts from the victims’ educational experience, [such] that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 651. B.W. clearly alleges facts that meet this prong. In his complaint, B.W. includes recurrent incidents of harassment that explicitly reference his race. He alleges that students repeatedly recited the “evils of the white race” to B.W.; that students ran into the locker room and proclaimed (with B.W. present) “here are all the white boys!”; and that students daily abused B.W. both physically and verbally. Worst of all, B.W. alleges that another student beat him bloody and then bragged to the school that he had done so “because B.W. was white.” B.W. alleges that he was subjected to daily harassment from his classmates following that public pronouncement of racial animus. Adding insult to B.W.’s obvious physical injuries, much of the harassment came from school teachers.4 B.W. avers that teachers and administrators continually made derogatory racial comments toward him. Finally, and most importantly, the harassment plainly affected B.W.’s education. B.W. was forced to withdraw from Austin ISD. These allegations satisfy the requirement that the harassment “detract[] from the victim[']s educational experience.” Davis, 526 U.S. at 651; see also Sewell, 974 F.3d at 585 (requiring that the harassment have a “concrete, negative effect” on the plaintiff’s education). The KKK meme is further evidence of race-based harassment. Groups like the KKK and the Nazis are white-supremacist organizations that generally have a racial association tied to membership. Thus, a meme depicting B.W. as a member of the KKK has a racial component, particularly in the context of the other overtly race-based harassment that B.W. alleges occurred here. When an individual is accused of membership in a politically odious organization associated with that individual’s protected characteristic, such an accusation amounts to stereotyping based on that protected characteristic. Suppose instead that a student made a meme of an Afghan classmate as a member of the Taliban or Al Qaeda. Such a meme obviously implicates the student’s protected characteristics. The perpetrator’s statement that he made the meme because his “father told him not to be friends with anyone who was a Conservative” does not eliminate the KKK meme’s racial aspects, especially when B.W. alleges that his harassment was based on a “broader stereotype” that encompassed both his race and his political beliefs. Taunting an individual as being a member of a loathsome group based upon that individual’s race is race-based harassment, even if additional motivations are present. Austin ISD and Judge Richman’s en banc concurrence contend that there are not enough incidents for the harassment to be considered “pervasive” over a two-and-a-half-year period. On the contrary, B.W. specifically alleges that he suffered repeated physical and verbal abuse. B.W. alleges that many of the incidents of racial harassment—such as a teaching aide pejoratively calling B.W. “Whitey”—were recurring incidents. In addition, B.W. alleges daily instances of name-calling, tripping, and vulgar language. Where a student alleges harassment explicitly referencing his race along with more generic instances of bullying, especially when those instances follow harassment expressly because of the student’s race, it is reasonable to infer at the 12(b)(6) stage that the generic harassment is also motivated by racial animus. Sewell, 974 F.3d at 584 (at the pleading stage, plaintiff is entitled to racially charged characterization of a word that is race- neutral in some contexts); Toy, 714 F.3d at 883 (“We review dismissal under Rule 12(b)(6) de novo, ‘accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.’” (quoting Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010)). Cicalese v. University of Texas Medical Branch is instructive. 924 F.3d 762 (5th Cir. 2019). There, in the analogous Title VII context, we rejected the district court’s 12(b)(6) dismissal of the complaint. Id. at 766, 768. The district court dismissed the case because it did not think that some of the plaintiffs’ co-workers were “similarly situated” and because it thought that the alleged derogatory statements amounted to “stray remarks.” Id. at 768. Our court held that such “rigorous factual or evidentiary analysis” “was more suited to the summary judgment phase.” Id. at 767–68. Therefore “[t]he district court erred by holding [Plaintiffs] to a heightened pleading standard.” Id. at 768. So too here. * * * Taking the allegations in the complaint as true, B.W. was physically attacked and verbally abused because of his race. On top of this, B.W. was the victim of daily name-calling, tripping, and harassment that was, at least in part, based on race. At this stage, the allegations in B.W.’s complaint plausibly state a Title VI claim for race-based harassment. In ruling otherwise, half of our court would force B.W. to meet a higher pleading standard than any other litigant. See id. (“The district court erred by holding Appellants to a heightened pleading standard.”). Instead, we should uphold long-settled precedent establishing that where the plaintiff pleads facts that even plausibly amount to a viable claim, he is permitted to continue his case and obtain discovery. For these reasons, I would reverse the dismissal of B.W.’s complaint for failure to state a claim and remand for further proceedings consistent with this opinion. As we must affirm the judgment because we are equally divided, I respectfully dissent from that affirmance. No. 22-50158 APPENDIX Summary of Incidents
DateEventCitation 1.Oct. 2017B.W. and classmates attend field trip to Enchanted Rock. B.W. wears a “MAGA” hat. Faculty and stu- dents begin to treat B.W. “poorly.”Fourth Am. Compl.
