                                UNPUBLISHED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                    Decided:     March 11, 2014


Before DUNCAN    and   FLOYD,    Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.


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instructions by unpublished opinion.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.
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Unpublished opinions are not binding precedent in this circuit.




                                 2
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).



                                    3
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.                  It instead quite properly

addressed      the   viability   of   a    claim     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.



                                          4
      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 African-

American 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    told     M.D.’s   mother      that   he   spoke   to   the    offending

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



                                          5
      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    discipline         in    response      because,    in     her    view,    just

speaking   with        the    offending    student     was    not     enough.        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     to    the    surrounding     students,      “Look    at    my     little

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

mother     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.                           On April 17,

      3
       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.



                                           6
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    Title     IX     were       violated     by   its   deliberate

indifference       to   the     student-on-student         harassment       he   endured

based on race and perceived sexual orientation.                       She argued that

the     school    administrators’         decision        not    to   escalate     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 race-

and 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.

                                               7
       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     school    administrators’       decision       not    to     impose       greater

discipline       during    the    two-month     period       after    they       received

notice of the harassment was not “clearly unreasonable in light

of    the   known   circumstances.”           Davis    v.    Monroe   Cnty.       Bd.    of

Educ., 526 U.S. 629, 648 (1999).                 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    reviewing       the   district       court’s      order       under    the

familiar     standard      governing    dismissals      under      Federal       Rule    of

Civil Procedure 12(b)(6), we must determine whether remand is

                                          8
the only appropriate action because M.D., a minor, appeals his

mother’s pro se complaint filed on his behalf.            Myers, 418 F.3d

at 401.     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   the   school   administrators’




                                     9
response was clearly unreasonable under Davis. 4                 Thus, two of the

requirements     to     avoid   remand     are     met    for    both       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 non-

attorney 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   and   have    counsel      file    a    clarified

Title IX claim on remand.            The district court held as a matter

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

IX    because   it    alleged   harassment        based   on    perceived        sexual

orientation. 5       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)
                                         10
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.



                                    11
Nemet    Chevrolet,    Ltd.      v.    Consumeraffairs.com,              Inc.,    591       F.3d

250, 253 (4th Cir. 2009).              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         v.    Gwinnett   Cnty.         Pub.

Sch., 503 U.S. 60, 70 (1992).                    Here, M.D. seeks to hold the

School    Board    accountable        for    the       actions      of   third        parties,

namely       its   administrators’          response          to     student-on-student

harassment based on his race.                 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    beginning     at   the    end      of     March.        Contrary         to    the

dissent’s      contention,       therefore,            the     complaint      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

                                            12
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    Bowser     spoke    with   the

offending student by April 11th.              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.                 Although M.D.’s

mother    feels   that     the   school’s    response     was    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.           We will not second guess the

administrators’ decisions here.             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).


                                      13
                               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.




                               14
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:

      “[N]on-attorney          parents      generally         may    not    litigate          the

claims of their minor children in federal court.”                                  Myers v.

Loudoun    County       Public    Schools,        418   F.3d    395,       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.            Yet instead, the majority states that it is

“comfortable,”        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     VI   and     Title    IX   claims       for   purposes       of    the    non-

attorney       parent    litigation        rule:    first,      it    states       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


                                             15
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    respect       to   whether    our    resolution    of    the       Title   VI

claim    turns   on     a    question      of    law,   the   majority’s         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

analysis.

      The     majority’s         second    proffered     reason       is     even    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



                                            16
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      in     the    record.        Specifically,         the    majority

states     that    only     a   few    weeks       passed     between      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   the    light    most       favorable       to    M.D.     (if    we    are     going    to

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

school     board    in    the    face    of    these        allegations      of   racialized

bullying.     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

                                               17
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-on-

student 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.                      Myers, 418 F.3d at 401.

Such   danger     can     arise    as    readily      from   an   inartfully       pled

                                           18
complaint as it might from the service of garbled interrogatory

responses,   a      fumbling       cross-examination          at    trial,     or     an

incoherent   closing           argument.         If    M.D.’s      interests        were

prejudiced   as     to    one     count      because     of   poor       pleading     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
absence of counsel for the minor plaintiff.   Indeed, the answer

is that there is no cognizable distinction.    Myers must apply

with equal force to both counts.    Accordingly, I respectfully

dissent from so much of the majority opinion as affirms any

portion of the judgment.




                              20
