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Is racism against whites ‘edgy and exciting’? Potential SCOTUS pick pens dissent supporting bullied student

By Debra Cassens Weiss

November 18, 2024, 3:22 pm CST

A Texas high school student who said he was bullied and harassed for being a white Trump supporter won’t be able to pursue his lawsuit under Title VI of the Civil Rights Act as a result of an evenly divided decision by a federal appeals court.

The split Nov. 13 decision of the 5th U.S. Circuit Court of Appeals at New Orleans had the effect of upholding a federal judge’s decision to dismiss the suit, report Bloomberg Law, Reuters and Law360. The plaintiff was a minor referred to as “B.W.”

The 5th Circuit’s decision noted the split, with nine judges on each side of the issue. Four justices explained why they thought that B.W. could not pursue his claim under Title VI, which bans discrimination on the basis of race, color or national origin by recipients of federal funds.

Nine others judges explained why they disagreed, and two of those judges declared in a separate dissent that “our culture today increasingly accepts (if not celebrates) racism against whites.”

The author of the two-judge dissent was Judge James C. Ho, who was joined by Judge Stuart Kyle Duncan. Both have been mentioned as potential U.S. Supreme Court nominees if President-elect Donald Trump gets a chance to appoint a justice during his administration.

“It’s racist to characterize whites as racist,” Ho wrote. “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.”

B.W. had alleged that he was “mocked, physically beaten and verbally abused” while a middle school and high school student at the Austin Independent School District in Texas, according to the nine-judge dissent written by Judge Jennifer Walker Elrod.

One student said he was going to “beat the s- – – out of” B.W. because he was white and then did so, B.W. alleged. A teaching aide referred to B.W. as “Whitey” and belittled him for struggling with lessons, asking, “Can’t figure this one out, Whitey” A teacher allegedly mocked B.W. for listening to “white gospel music,” another expressed concern about the number of white people, and a third objected to a white man talking about gender issues. One student made a meme of B.W. dressed as a Ku Klux Klansman.

The four-judge concurrence, written by Judge Priscilla Richman, said it is “sickening and reprehensible” that a student would have to be subjected to the treatment that B.W. alleged.

But the suit makes clear that B.W. was bullied and harassed because of his political beliefs and the contrary beliefs held by classmates, the concurrence said. Any bullying based on race was not so severe and pervasive that it deprived him of educational opportunities, Richman said.

Elrod’s dissent said the suit should survive because the allegations “plausibly amount to severe, pervasive and objectively offensive racial harassment.”

Ho’s dissent noted that the Supreme Court recently granted cert in Ames v. Ohio Department of Youth Services to decide whether courts may require members of majority groups suing under Title VII of the Civil Rights Act to present special evidence of “background circumstances” to support their claims.

The plaintiff in the Supreme Court case, Mariam Ames, is a straight white woman who alleges that she was demoted from an administrator position that was then filled by a gay man, according to previous coverage by Law.com. She had unsuccessfully sought a promotion for a job later filled by a gay woman.

Federal appeals courts are split on whether majority group members must make a special showing in discrimination cases, Ho wrote in his dissent in the B.W. case.

There should be no dispute that white people are entitled to the same legal protections as any other racial group, Ho said.

Ho said law professors teach that angry white people are fearful of racial diversity, and white evangelicals are waging war on democracy. University students are told that talking to white people can “suck you dry.”

“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,” Ho wrote. “Racism is now edgy and exciting—so long as it’s against whites.”

Martin Cirkiel, a lawyer for the student, told Reuters that he will ask the Supreme Court to hear the case, B.W. v. Austin Independent School District.

Ari Kaplan recently spoke with John Marshall, the CEO, and Dan Quintas, the head of legal solutions at Airia, a generative artificial intelligence platform for law firms and other organizations.

They discussed the hurdles that firms face in adopting AI, their progress, common mistakes that legal teams make when deploying generative AI, and how to keep up with rapid technological changes.

Ari Kaplan: Tell us about your background and the genesis of Airia.

John Marshall: I have been in enterprise software for 30 years, focusing on solutions that serve as the back-end infrastructure solutions to business problems. One example is AirWatch, a mobile device management company where we worked closely with Apple and helped companies roll out mobility at scale. At AirWatch, we enabled technology deployment across firms of all sizes, integrating systems like email, documents and certificates. After selling AirWatch to VMware, I co-founded OneTrust, which focused on enterprise privacy, GDPR compliance and consent management. When AI emerged into the mainstream, I created Airia because I anticipated similar challenges as we saw with mobility in that AI is powerful but needs infrastructure that is secure, integrated and easy for end users to adopt. Our experience uniquely positions us to provide the enabling technology that law firms need to optimally leverage AI.

Ari Kaplan: Tell us about your background and the unique aspects of legal that appeal to Airia.

Dan Quintas: I started my career at AirWatch and later moved to OneTrust. Like other sectors, legal services face a broad AI adoption spectrum driven by the complexity of the use cases. Currently, the focus is on document-driven applications, which is a sweet spot for AI adoption. Document-heavy workflows naturally benefit from AI-driven efficiencies, particularly in discovery and contracts.

Ari Kaplan: What hurdles must law firms and legal organizations overcome to fuel AI adoption?

John Marshall: The first hurdle is getting started. Many firms already use AI without realizing it through tools like Microsoft Copilot or integrated AI features in more extensive legal tech solutions. The following two obstacles are fear and uncertainty associated with security and governance. I recommend starting small with public information use cases, like document comparison or caselaw research. By beginning with low-risk tasks, firms can see the benefits of AI without overwhelming security concerns.

Ari Kaplan: How much progress have law firms made in leveraging generative AI?

Dan Quintas: We are seeing impressive progress, especially among early innovators in the legal space. While some firms are experimenting with AI to gain a competitive advantage, others use tools like Copilot for specific use cases. However, most firms are still in the early majority phase, looking for high-value applications they can confidently roll out to their professionals. This group needs the most guidance in identifying the best use cases and developing a robust AI strategy.

Ari Kaplan: What mistakes are legal teams making in their deployment of generative AI?

John Marshall: I would not call them mistakes. Rather, they are learning opportunities. Firms should avoid putting their heads in the sand and instead take small, calculated steps to experiment and learn. The worst error is inaction. Much like others, the legal industry will see rapid adoption as AI becomes a standard tool. As I often say, you will not lose your job to AI but to a colleague who uses AI.

Ari Kaplan: How can people keep up with the rapid changes in generative AI?

Dan Quintas: It is overwhelming to track all the developments in AI. With new models and updates arriving regularly, businesses must understand how these changes affect them. The key is partnering with the right tools and platforms focusing on AI, combined with a clear strategy from leadership. Our mission at Airia is to make AI accessible to everyone, helping firms stay ahead of these advancements.

Ari Kaplan: How do you see the future of AI evolving in legal?

John Marshall: The legal industry is competitive, and no firm wants to be left behind. AI adoption will increase because of its competitive advantage—from faster processes to more accurate outcomes. We will see the adoption of generative AI start with simple tasks, like discovery or caselaw research, but eventually, tasks will be combined in more complex workflows. Law firms will likely use a variety of domain-specific and regional AI models, tailoring them to their needs, which will lead to an exciting evolution in the ecosystem.

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Listen to the complete interview at Reinventing Professionals.

Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlight transformative change and introduce new technology at his blog and on iTunes.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.