PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1940

PETER VLAMING,

Plaintiff – Appellee,

v.

WEST POINT SCHOOL BOARD; LAURA ABEL, in her official capacity as Division Superintendent; JONATHAN HOCHMAN, in his official capacity as Principal of West Point High School; SUZANNE AUNSPACH, or her Successor in Office, in her official capacity as Assistant Principal of West Point High School,

Defendants – Appellants,

and

JOHN DOE,

Amicus Supporting Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:19-cv-00773-JAG)

Argued: May 7, 2021 Decided: August 20, 2021

Before FLOYD, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson joined and Judge Floyd concurred in the judgment. Judge Floyd wrote a separate concurring opinion. ARGUED: Edward Henderson Williams, II, WILMERHALE LLP, Washington, D.C., for Appellants. Tyson C. Langhofer, ALLIANCE DEFENDING FREEDOM, Ashburn, Virginia, for Appellee. ON BRIEF: Stacy Haney, HANEY PHINYOWATTANACHIP, Richmond, Virginia; Paul R.Q. Wolfson, Bruce M. Berman, Tania Faransso, Washington, D.C., Alan E. Schoenfeld, WILMERHALE LLP, New York, New York, for Appellants. J. Caleb Dalton, Washington, D.C., Ryan Bangert, Scottsdale, Arizona, David A. Cortman, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia; Shawn A. Voyles, MCKENRY DANCIGERS DAWSON, P.C., Virginia Beach, Virginia, for Appellee. Luke Platzer, Washington, D.C., Cayman Mitchelle, New York, New York, Kristen Green, JENNER & BLOCK LLP, Los Angeles, California; Asaf Orr, Shannon Minter, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Amicus Curiae.

2 QUATTLEBAUM, Circuit Judge:

This appeal provides us the rare opportunity to review a remand order. A local

school board fired a teacher for refusing to comply with its policies prohibiting

discrimination and harassment. The teacher brought state causes of action in state court to

challenge his termination. The school board removed the case to federal court, arguing the

court had jurisdiction pursuant to the federal question removal statute,

(c),

and the civil rights removal statute,

(2), because the claims turned on the

school board’s enforcement of Title IX,

. Unconvinced, the district court

remanded the case. Because neither statute provides a basis for removal here, we affirm.

I.

A.

John Doe was a student at West Point High School, a public school in Virginia. At

the start of the school year, Doe and his parent met with the school’s assistant principal,

Suzanne Aunspach, to explain that he had recently undergone a gender transition and had

adopted a preferred name consistent with that transition. They requested that school staff

use male pronouns and refer to Doe by his new name.

Peter Vlaming was Doe’s French teacher. He had taught Doe for two years before

Doe underwent his transition. Shortly after their meeting with Aunspach, Doe, his parents

and the school guidance counselor met with Vlaming to discuss Doe’s new name and

preferred pronouns. After the meeting, Aunspach told Vlaming he was expected to use

Doe’s preferred name and male pronouns.

3 Over the next two months, Vlaming referred to Doe by his new name, but he avoided

the use of pronouns altogether when speaking to Doe directly and on at least one occasion

referred to him using female pronouns in Doe’s absence. Doe and his parents expressed

frustration with Vlaming over this practice. Aunspach met with Vlaming again to reiterate

Doe’s preferences. She told Vlaming that his refusal to use male pronouns potentially

violated both Title IX, which prohibits schools receiving federal funds from discriminating

on the basis of sex, and the West Point School Board’s policies. She provided Vlaming

with written guidance regarding transgender students’ rights. Vlaming told her that using

male pronouns to refer to someone who was born a female violated his religious beliefs

because it was untruthful. Aunspach reiterated that Vlaming should use male pronouns to

refer to Doe and that failure to do so could result in his termination.

Shortly thereafter, the principal, Jonathan Hochman, met with Vlaming. He directed

Vlaming to use male pronouns to refer to the student. The next day, Hochman warned

Vlaming that a refusal to comply with the School Board’s policies would result in a letter

of formal reprimand. That same day, Vlaming, apparently accidentally, used a female

pronoun to refer to Doe during a classroom activity. Afterwards, Vlaming reported the

incident to Principal Hochman. Doe subsequently withdrew from Vlaming’s class, citing

this incident and others. On Hochman’s recommendation, the superintendent placed

Vlaming on administrative leave pending an investigation.

During this leave, Principal Hochman gave Vlaming a final warning, which

explained that his refusal to use Doe’s preferred pronouns violated two school board

4 policies that prohibited discrimination and harassment based on gender identity. 1 The

superintendent also ordered Vlaming to refer to Doe using only male pronouns and warned

him that if he treated Doe differently than other male students, he would be terminated.

Vlaming refused to comply with these directives. The superintendent therefore

recommended his dismissal to the School Board. After a hearing, the Board dismissed

Vlaming. In a letter explaining its rationale, the Board stated that Vlaming had failed to

comply with his superiors’ directives and had violated the Board’s policies prohibiting

discrimination and harassment because his actions singled out Doe in a way that was

noticed by Doe and his peers.

B.

Vlaming sued the School Board, and several school officials in their official

capacity (collectively the “Board”), alleging that their decision to terminate his

1 The nondiscrimination policy states: The West Point School Board is committed to nondiscrimination with regard to race, color, religion, national origin, ancestry, political affiliation, sex, sexual orientation, gender, gender identity, age, marital status, genetic information or disability as defined by law. This commitment will prevail in all division policies and practices concerning staff, students, educational programs and services, and with individuals/entities whom the Board does business. J.A. 85.

The nonharassment policy states: It is a violation of this policy for any student or school personnel to harass a student or school personnel based on . . . sex, sexual orientation, gender, gender identity . . . as defined by law, or based on a belief that such characteristic exists at school or any school sponsored activity. J.A. 87. 5 employment violated state statutory and constitutional protections. Specifically, he claimed

the Board’s termination after his refusal to use Doe’s preferred pronouns violated his due

process, free speech and free exercise rights under the Virginia Constitution and Virginia

statutory free exercise protections. He also claimed that the Board violated Virginia’s

Dillon Rule 2 by adopting nondiscrimination policies more stringent than the laws of

Virginia. 3 He also brought a breach of contract claim.

The Board removed the case to federal court, but Vlaming moved to remand. In

response, the Board argued the district court had removal jurisdiction under both

(c) and 1443(2). They argued the district court had federal question jurisdiction,

allowing for removal under § 1441(c), because Vlaming’s claims necessarily raise a

disputed and substantial federal question—whether Title IX prohibits discrimination on the

basis of gender identity. In addition, they argued, because Virginia interprets its due

process, free speech and free exercise provisions as co-extensive with its federal

counterparts, those claims also raised substantial federal questions. As to the civil rights

2 The Dillon Rule provides that local governments “have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.” Bd. of Zoning Appeals v. Bd. of Supervisors,

(Va. 2008). 3 Specifically, Vlaming argued the Board’s nondiscrimination policy violated Virginia Code § 15.2-965 (2019), which at the time provided that “[a]ny locality may enact an ordinance, not inconsistent with nor more stringent than any applicable state law, prohibiting discrimination in . . . education on the basis of race, color, religion, sex, pregnancy, childbirth or related medical conditions, national origin, age, marital status, or disability.” That provision has since been amended to include gender identity among the list of characteristics protected from discrimination from which localities may pass ordinances. See 2020 Va. Laws 1140 (S.B. 868). 6 removal statute, the defendants argued that because Title IX was a “law providing for equal

rights,” §1443(2) authorized removal.

(2).

The district court granted Vlaming’s motion. As to federal question jurisdiction, the

district court reasoned that Vlaming’s Dillon Rule claim dealt with the scope of state law,

not Title IX. And to the extent Title IX was relevant to the breach of contract claim, it was

a defense, not a necessary element of the claim. In addition, Vlaming’s state constitutional

claims did not provide federal question jurisdiction either, even though those constitutional

provisions are coextensive with their federal counterparts. The district court reasoned that

although the state court had the ability to use federal law to resolve the state constitutional

claim, it did not have to, and it declined to “speculate that a state court will rely on federal

law to resolve this lawsuit.” J.A. 112.

As to the civil rights removal statute, the district court concluded that § 1443(2) did

not apply to Title IX. It pointed to the Supreme Court’s limitation of § 1443(1) to laws

addressing racial equality in Georgia v. Rachel,

(1966), and after noting

that the Fourth Circuit has yet to decide whether the reasoning of that case applies to

§ 1443(2), it pointed to an older Fourth Circuit case and recent district court opinions to

conclude that the same limitation applies to § 1443(2). Consequently, the district court

remanded the case to state court.

The Board timely appealed pursuant to

(d), which allows appellate

review for “an order remanding a case to the State court from which it was removed

pursuant to section 1442 or 1443 . . . .”

7 II.

We review issues of subject matter jurisdiction, including removal, de novo.

Common Cause v. Lewis,

(4th Cir. 2020). Ordinarily, however, a remand

order is not reviewable. See

(d). But when a defendant removes a case to

federal court pursuant to the civil rights removal statute, Ҥ 1447(d) permits appellate

review of the district court’s remand order—without any further qualification.” BP P.L.C.

v. Mayor & City Council of Baltimore,

(2021). Therefore, we have

jurisdiction to review the entire remand order and can consider all of the Board’s arguments

supporting jurisdiction that were addressed in that order.

III.

We begin with asking whether federal question jurisdiction provides a basis for

removal under § 1441(c) before analyzing the civil rights removal statute, § 1443(2).

A.

Federal courts have jurisdiction over “all civil actions arising under the Constitution,

laws, or treaties of the United States.”

. Most cases that obtain federal

jurisdiction under this statute do so when federal law creates the cause of action. In a “slim

category” of cases, Gunn v. Minton,

(2013), however, federal courts

have jurisdiction over state law causes of action when “the plaintiff’s right to relief

necessarily depends on resolution of a substantial question of federal law.” Franchise Tax

Bd. v. Constr. Laborers Vacation Tr.,

(1983). The Board argues this is one

of those cases. We disagree.

8 The “mere presence of a federal issue in a state cause of action” is not, by itself,

enough to confer federal question jurisdiction. Merrell Dow Pharm., Inc. v. Thompson,

(1986). Instead, a federal issue in a state law claim must be “(1) necessarily

raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court

without disrupting the federal-state balance approved by Congress.” Gunn,

.

That first requirement is the most relevant to our analysis. To necessarily raise a federal

issue, a state law claim must hinge on the determination of a federal issue. The federal issue

must be “essential to resolving a state-law claim, meaning that ‘every legal theory

supporting the claim requires the resolution of a federal issue.’” Burrell v. Bayer Corp.,

(4th Cir. 2019) (quoting Dixon v. Coburg Dairy, Inc.,

(4th Cir. 2004)). If, on the other hand, the plaintiff “can establish all the necessary elements

entirely independently of federal law,” a federal issue is not necessarily raised. Id. at 382.

Vlaming does not assert any federal causes of action. He brought nine claims—three

based on the Virginia Constitution’s free speech protections, two based on free exercise

protections in the Virginia Constitution and state law, one based on the due process

requirements in the Virginia Constitution, one based on a Virginia Constitution non-

discrimination provision, one that alleges violation of Virginia’s Dillon Rule and Code

§ 15.2-965, and one breach of contract claim. None of those claims contain any federal

cause of action, removing this case from prototypical § 1331 jurisdiction.

Nor does this case fall into the “narrow class of state-law actions” that necessarily

raise substantial federal questions. The Board argues that Vlaming’s statutory and breach

of contract claims turn on whether Title IX prohibits discrimination based on gender

9 identity. But Vlaming can establish all of his state law claims without resolving any federal

questions; it is the defense that may hinge on the Title IX issue. “A federal question is

‘necessarily raised’ for purposes of § 1331 only if it is a ‘necessary element of one of the

well-pleaded state claims.’” Burrell,

(quoting Franchise Tax Bd.,

). While the Board may invoke Title IX as a defense to some of Vlaming’s claims,

that alone cannot establish jurisdiction.

(“It is not enough that federal law becomes

relevant by virtue of a ‘defense . . . anticipated in the plaintiff’s complaint.’” (quoting

Franchise Tax Bd.,

)). We consider each of Vlaming’s claims in turn.

The Dillon Rule claim does not necessarily raise a federal question. The Dillon Rule

provides that local governments “have only those powers that are expressly granted, those

necessarily or fairly implied from expressly granted powers, and those that are essential

and indispensable.” Bd. of Zoning Appeals v. Bd. of Supervisors,

(Va.

2008). Vlaming alleges that the Board violated this rule as applied to Va. Code § 15.2-965

(2019), which provided that “[a]ny locality may enact an ordinance, not inconsistent with

nor more stringent than any applicable state law, prohibiting discrimination in . . . education

on the basis of race, color, religion, sex, pregnancy, childbirth or related medical

conditions, national origin, age, marital status, or disability.” Vlaming argues that because

Va. Code § 15.2-965 did not specify gender identity as a protected class, the Board acted

beyond its authority to include gender identity as a protected characteristic in its

nondiscrimination policy. Regardless of the Board’s reasoning or justifications for

including this characteristic in its non-discrimination policy, Title IX is irrelevant to the

analysis of this claim. The analysis depends on whether the Board exceeded its authority

10 under state law. See Va. Code § 15.2-965 (asking whether the ordinance is more stringent

than “applicable state law” (emphasis added)). While Title IX could potentially be used as

a defense if Vlaming were to succeed on this claim, resolution of the Title IX question is

not “a necessary element” of the claim, and, therefore, no federal question is “necessarily

raised.” Burrell,

(internal citation and quotation marks omitted).

Similarly, Vlaming’s breach of contract claim does not necessarily raise a federal

question. “The elements of a breach of contract action are (1) a legally enforceable

obligation of a defendant to a plaintiff; (2) the defendant’s violation or breach of that

obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation.”

Filak v. George,

(Va. 2004). The Board argues that Title IX compels

them to fire Vlaming because he was discriminating against Doe based on sex. But, once

again, that is a defense to the breach of contract, not a necessary element of the claim.

Therefore, federal question jurisdiction cannot be established on this basis. Burrell,

.

Finally, Vlaming’s state constitutional claims do not necessarily raise a federal

question either. The Board argues they do because Virginia’s free speech and due process

clauses are coextensive with their analogous federal constitutional provisions. See Shivaee

v. Commonwealth,

(Va. 2005); Elliott v. Commonwealth,

(Va. 2004). Thus, they point out, courts generally apply the same analysis to both

federal and Virginia constitutional claims even though they arise under different sources

of law. See Elliott,

. While the Board is correct in those positions, they

are insufficient to confer federal question jurisdiction. Although Virginia courts may rely

11 on federal law to decide a state constitutional question, there is no requirement that they

must. Nothing prevents Vlaming from prevailing on his state constitutional claims on

exclusively state grounds. We cannot speculate how the state court may resolve the state

constitutional claim. As the state is not required to rely on federal law, no federal question

is necessarily raised. See Rossello-Gonzalez v. Calderon-Serra,

, 13 (1st Cir.

2004).

Undeterred, the Board offers a twist to its argument for jurisdiction based on

Vlaming’s Virginia constitutional claims. It argues the interpretation of the federal

constitution compels, rather than merely guides, the interpretation of the Virginia

constitutional provisions. In support of this argument, the Board points to the United States

Supreme Court’s appellate jurisdiction under

, which extends to state

court cases “where the validity of a treaty or statute of the United States is drawn in

question or where the validity of a statute of any State is drawn in question on the ground

of its being repugnant to the Constitution, treaties, or laws of the United States . . . .” The

Supreme Court has interpreted that statute to confer jurisdiction over state supreme court

decisions that “apply the same analysis” in considering analogous state and federal

constitutional claims. Fitzgerald v. Racing Ass’n of Central Iowa,

(2003). In other words, even if a decision rests nominally on a state constitutional

provision, it necessarily presents a federal question sufficient to support Supreme Court

review when the interpretation of federal law compels the result. The Board argues when

a state court interprets state and federal constitutional protections identically—like Virginia

12 does here—a decision nominally on a state constitutional provision necessarily rests on

federal grounds.

As the district court explained, however, that is a retrospective analysis, because

when the Supreme Court is deciding whether to take a case under § 1257, it already knows

whether the state has used the federal constitution in its analysis. Here, we must deal with

a prospective analysis, and there is no reason that the state court could not decide this case

on purely state law grounds and even deviate from the federal constitution if it wished.

Vlaming, as master of his complaint, elected not to bring any federal constitutional

claims. This is unlike all the cases the Board cites to support removal, where the plaintiffs

brought both state and federal constitutional claims. Considering those important

differences, those cases do not seem instructive, nor does § 1257.

For those reasons, none of Vlaming’s state law claims necessarily raise a federal

issue. Therefore, federal question jurisdiction is lacking, and § 1441(c) does not provide a

basis for removal.

B.

We now turn to

, the civil rights removal statute. Section 1443(2)

provides for removal of a civil action or criminal prosecution commenced in state court

“[f]or any act under color of authority derived from any law providing for equal rights, or

for refusing to do any act on the ground that it would be inconsistent with such law.” The

Board argues that either operative phrase provides them with the ability to remove—they

either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming

to discriminate, or to grant him an exception to their policies because of his religious

13 beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent,

however, precludes Title IX from being the type of “law providing for equal rights”

referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights”

in § 1443 to only those concerning racial equality. In Georgia v. Rachel,

(1966), the Court addressed whether the defendants could remove their criminal

prosecutions to federal court under § 1443(1) by invoking the First Amendment and the

Due Process Clause of the Fourteenth Amendment. In answering no, the Court recounted

the history of the statute and the context in which it was passed. While noting that

“Congress’ choice of the open-ended phrase ‘any law providing for . . . equal civil rights’”

clearly indicated an intent to include cases involving rights under “both existing and future

statutes that provided for equal civil rights,” Rachel,

, the Court explained

that the phrase “must be construed to mean any law providing for specific civil rights stated

in terms of racial equality.”

. The Court reached that conclusion “[o]n the basis

of the historical material” available to it.

Because the First Amendment and the Due

Process Clause were “phrased in terms of general application available to all persons or

citizens, rather than in the specific language of racial equality that § 1443 demands,”

removal was not proper based on that statute. Id.

The Board contends that Rachel does not control here because its holding only

addressed whether broad constitutional provisions, like the First Amendment and Due

Process Clause, were included in the removal statute. It argues that Rachel did not address

whether laws providing for sex equality were laws “providing for . . . equal civil rights” in

14 § 1443(1). To read Rachel’s holding so narrowly, we would have to ignore the Supreme

Court’s reasoning and repeated explicit mention of racial equality as the sole subject of that

statutory phrase. The Supreme Court’s reference to racial equality as the limits of that

phrase was not in passing. It was the centerpiece of its reasoning. The Court traced the

phrase back to its legislative origins in the Revised Statutes of 1874, when the removal

provision was separated from the substantive provisions of the Civil Rights Act of 1866.

Rachel,

. The Court reasoned that “[i]n spite of the potential breadth of the

phrase . . . it seems clear that . . . Congress intended in that phrase only to include laws

comparable in nature to the Civil Rights Act of 1866.”

at 789–90. “The legislative

history of the 1866 Act clearly indicates that Congress intended to protect a limited

category of rights, specifically defined in terms of racial equality.”

; see also

(Congress specifically added the phrase “as is enjoyed by white citizens” to the Civil Rights

Act of 1866 “to emphasize the racial character of the rights being protected.”). Therefore,

the Court concluded, “[o]n the basis of the historical material that is available . . . ‘any law

providing for . . . equal civil rights’ must be construed to mean any law providing for

specific civil rights stated in terms of racial equality.”

; see also

(“[T]he

guarantees of [the First Amendment and Due Process Clause] are phrased in terms of

general application available to all persons or citizens, rather than in the specific language

15 of racial equality that § 1443 demands.”); id. (“[The Civil Rights Act of 1964] is clearly a

law conferring a specific right of racial equality . . . .”). 4

Also, even following Title IX’s enactment, the Court repeated this understanding of

§ 1443. See Johnson v. Mississippi,

(1975) (“Claims that prosecution

and conviction will violate rights . . . under statutes not protecting against racial

discrimination[] will not suffice.”); see also Chapman v. Houston Welfare Rights Org.,

, 622–23 n.41 (1979). We must take the Supreme Court at its word and faithfully

apply its precedent—“any law providing for . . . equal civil rights” as referenced in

§ 1443(1) only includes those addressing racial equality. 5

We agree with the Board that the plain text of the statute suggests a broader

interpretation of “equal civil rights.”

(1). The statute does not specify

“racial equality;” it includes “any law providing for . . . equal civil rights.”

But it is the

Supreme Court’s decision, not ours, as to whether the interpretation in Rachel is worth

revisiting. 6 We are bound to follow it.

4 The Civil Rights Act of 1964 was passed after the Court granted certiorari in Rachel but before the case was decided. The Court held that this statute, because of its racial equality protections, but not the First Amendment or Due Process Clause, could serve as a basis of removal for criminal prosecutions of sit-ins.

. 5 This is not the first time we have read Rachel as limiting § 1443 to laws concerning racial equality. Even in the context of removal premised upon sex discrimination, we have already applied Rachel in this manner. See Wilkins v. Rogers,

(4th Cir. 1978); Delavigne v. Delavigne,

, 600–01 (4th Cir. 1976). 6 Our concurring colleague concludes Rachel can be avoided because it was decided before Title IX’s enactment. But nothing in Title IX suggests any intent to override Supreme Court precedent concerning removal jurisdiction in § 1443. And as our colleague

16 The Board makes a final attempt to escape Rachel’s reach. It argues that Rachel

interpreted paragraph (1) of § 1443, not paragraph (2), and thus we should interpret the

phrase “any law providing for equal rights” in § 1443(2) differently. But there are two

problems with this argument. First, the text just does not support a different interpretation.

To be sure, there is a small difference between the relevant phrases in paragraphs (1) and

(2). Section 1443(1) describes “any law providing for the equal civil rights,” (emphasis

added) whereas § 1443(2) describes “any law providing for equal rights.” Even so, to make

an interpretive distinction between those phrases would make a mountain out of a molehill.

Second, paragraph (2) of §1443 was derived from the same civil rights statute as

paragraph (1), and it was from that civil rights statute that the Supreme Court concluded in

Rachel that paragraph (1) was limited to racial inequities. The Supreme Court, the same

day it decided Rachel, explained in its companion case that “[t]he progenitor of § 1443(2)

was [Section] 3 of the Civil Rights Act of 1866 . . . .” City of Greenwood v. Peacock,

(1966). And we previously reached the same conclusion shortly before

Rachel was decided. See Baines v. City of Danville,

(4th Cir. 1966), cert.

granted, judgment aff’d,

(1966) (per curiam) (explaining that the refusal

clause in § 1443(2) “was intended to enable state officers who refused to enforce

discriminatory state laws in conflict with Section 1 of the Civil Rights Act of 1866” to

remove their prosecutions to federal court). In other words, § 1443(2) directly relates back

to the same civil rights statute on which the Court premised its holding in Rachel. Because

concedes, both “original legislative intent” and Rachel clearly limit § 1443 to laws dealing with racial equality. 17 both paragraphs relate back to that same statute, we see no reason the Supreme Court’s

limitation of paragraph (1) to laws concerning racial equality would not apply to paragraph

(2).

To be clear, we do not endorse Rachel’s reasoning or conclusion. But we are bound

to apply it. Therefore, we are compelled to reach the same conclusion as the district court—

§ 1443, including paragraph (2), only pertains to laws dealing with racial equality, which

is not the case here.

IV.

Neither § 1441 nor § 1443 provides a basis for removal here. Therefore, the district

court’s remand order is

AFFIRMED.

18 FLOYD, Circuit Judge, concurring in the judgment:

I agree that the district court correctly remanded this case for lack of jurisdiction

under either

(c) or

(2). I write separately solely to

address the majority’s position that Title IX is not a “law providing for equal rights” within

the meaning of § 1443(2).

As the majority describes, sixty years ago in Georgia v. Rachel, the Supreme Court

limited the phrase “any law providing for . . . equal civil rights” in § 1443(1) to mean “any

law providing for specific civil rights stated in terms of racial equality.”

(1966). And I agree with the majority that we should interpret the language in § 1443(2)

in keeping with that of § 1443(2). Thus, read alone, Rachel would be determinative of the

instant issue. After all, Title IX is not a law providing for racial equality.

But we must read Rachel within its historical context. To do so, we must first

understand the Court’s logic in Rachel. The Court based its holding on the legislative

history of § 1443. See id. at 786. Section 1443 originated as part of the Civil Rights Act

of 1866. Id. The original provision in the Civil Rights Act of 1866—the precursor to

§ 1443—did not contain the phrase “law providing for . . . equal civil rights.” Id. at 788

(quoting § 1443(1)). Instead, the provision relied on internal cross-reference by allowing

removal in cases involving “rights secured . . . by the first section of this act.” Id. at 788–

89 (quoting Civil Rights Act of 1866, ch. 31, § 3,

(current version at § 1443)).

When Congress enacted the Revised Statutes of 1874, however, it carried forward

the substantive provisions of the Civil Rights Act of 1866 into various sections. Id. at 789.

As such, the removal provision could no longer cross-reference to “rights secured . . . by

19 the first section of this act.” Id. (quoting Civil Rights Act of 1866 § 3). Instead, Congress

added the “open-ended phrase ‘any law providing for . . . equal civil rights.’” Id. (quoting

Rev. Stat. § 641 (1875)). In choosing this open-ended language, Congress did not “intend[]

to expand the kinds of ‘law’ to which the removal section referred.” Id. at 789. Rather,

Congress intended § 1443 to allow removal only in cases involving “existing and future

statutes” that are “comparable in nature to the Civil Rights Act of 1866.” Id. at 789–90. 1

At the time that Congress added this language, the only statutes that were “comparable in

nature to the Civil Rights Act of 1866” were those statutes stated in terms of racial equality.

Naturally, then, this legislative history indeed establishes that Congress originally intended

§ 1443 to apply only to laws protecting racial equality. See id. at 791.

But original legislative intent carries us only so far when we have intervening

legislative authority. Six years after the Supreme Court decided Rachel, Congress enacted

Title IX of the Education Amendment of 1972,

(a). Congress patterned

Title IX directly after Title VI of the Civil Rights Act of 1964. 2 Cannon v. Univ. of Chi.,

, 694–96 (1979); Gebser v. Lago Vista Indep. Sch. Dist.,

, 286

1 Our pre-Rachel decision in Baines v. City of Danville,

(4th Cir.), aff’d,

(1966), also emphasized the broad, prospective language of § 1443. We noted that this language recognized “that the laws were not static and that the Congress in the future might enact additional legislation similar to the Civil Rights Acts of 1866 and 1870, with an intention to expand the removal rights.” Id. at 764. 2 Courts have concluded that Title VI, of course, serves as a proper basis for removal under § 1443(2). See, e.g., Bohlander v. Indep. Sch. Dist. No. 1,

(10th Cir. 1969) (per curiam) (finding removal proper under § 1443(2) in a Title VI case); Burns v. Bd. of Sch. Comm’rs,

(S.D. Ind. 1969) (same), aff’d,

(7th Cir. 1971) (per curiam); Linker v. Unified Sch. Dist. No. 259,

(D. Kan. 1972) (same). 20 (1998) (“Title VI . . . is parallel to Title IX except that it prohibits race discrimination, not

sex discrimination, and applies in all programs receiving federal funds, not only in

education programs.” (citations omitted)). The Supreme Court has since explained that

“[t]he drafters of Title IX explicitly assumed that it would be interpreted and applied as

Title VI had been during the preceding eight years.” Cannon,

. The Court

in Rachel could not have considered whether Title IX was “a law providing for equal

rights” within the meaning of § 1443 because Title IX did not yet exist. Had the Court

been faced with that issue, I believe it would have concluded that Title IX is indeed

“comparable in nature to the Civil Rights Act of 1866” because Title IX was explicitly

based upon Title VI, which is itself comparable in nature to the Civil Rights Act of 1866.

I cannot fault the majority for its strict adherence to precedent. But I write separately

because I believe such precedent cannot be strictly applied when viewed in context.

Although the legislative history of § 1443 indicates Congress intended for it to apply to

laws providing for racial equality, Congress also allowed for the possibility that § 1443

would apply to statutes “comparable” to the Civil Rights Act of 1866. Congress enacted

just such a “comparable” statute in Title IX by patterning it directly upon Title IV. 3

3 We have previously applied Rachel to hold that allegations of unconstitutional sexual discrimination are not cognizable under § 1443(1). See Wilkins v. Rogers,

, 402–03 (4th Cir. 1978) (per curiam) (finding removal was not authorized under § 1443(1) for suit alleging unconstitutional sexual discrimination); Delavigne v. Delavigne,

, 600–01 (4th Cir. 1976) (same). This comports with Rachel’s precise holding that broad constitutional claims cannot support removal under § 1443. Rachel,

. Notably, we deal here not with a constitutional claim, but with a statutory Title IX claim. 21 This conclusion would not change the ultimate disposition of the instant case. The

Board fails to meet the other requirements of § 1443(2) regardless. Removal under the

statute is proper under either of the two clauses: (1) for claims “[f]or any act under color

of authority derived from any law providing for equal rights” or (2) for claims that arise

from “refusing to do any act on the ground that it would be inconsistent with such law.”

§ 1443(2). The Board’s arguments fail under both clauses.

The first clause of § 1443(2) is available only to federal officers or agents acting

under federal officers. The Board argues that in terminating Vlaming for discriminating

against Doe, the Board acted under federal officers by complying with Title IX. But the

Supreme Court has clarified that “the help or assistance necessary to bring a private person

within the scope of the statute does not include simply complying with the law.” Watson

v. Philip Morris Cos.,

(2007).

Nor does the Board meet the requirements of the second clause of § 1443(2), also

known as the refusal clause. The refusal clause allows state officers to remove claims “for

refusing to do any act on the ground that it would be inconsistent with [any law providing

for equal rights].” § 1443(2); see also White v. Wellington,

(2d Cir.

1980) (explaining that the legislative history of § 1443(2) indicates that the phrase “state

officers” includes local and municipal officials). This Court has repeatedly emphasized

that the refusal clause is available only to state officers who refuse to enforce

discriminatory state law. See Common Cause v. Lewis,

(4th Cir. 2020)

(“[T]he Supreme Court, in reviewing the Refusal clause, explained that it is ‘clear that

removal . . . is available only to state officers,’ with the legislative history indicating that

22 this clause applies to officers ‘who shall refuse to enforce State laws.’” (quoting City of

Greenwood v. Peacock,

, 824 n.22 (1966))); Baines,

(“The

refusal language . . . was intended to enable state officers who refused to

enforce discriminatory state laws . . . .” (emphasis added)).

The Board claims that in firing Vlaming, it was refusing to enforce the Virginia

Religious Freedom Restoration Act (VRFRA), Va. Code Ann. § 57–1, as conflicting with

Title IX. The Board explains that if Vlaming’s interpretation of VRFRA is correct and the

Board violated VRFRA by firing Vlaming, then the Board necessarily refused to enforce

VRFRA in favor of upholding Title IX. But this logic does not follow. An act does not

constitute a refusal to enforce a state law any time the act merely allegedly violates that

state law. Such an assumption would amount to a massive expansion of the refusal clause.

Rather, the legislative history of the refusal clause indicates that it was “intended to

enable State officers, who shall refuse to enforce [discriminatory] State laws . . . to remove

their cases to the United States courts when prosecuted for refusing to enforce those laws.”

Peacock,

n.22 (quoting Cong. Globe, 39th Cong., 1st Sess. 1367 (1866)).

This denotes some affirmative rejection of state law in favor of federal law. See, e.g.,

White, 627 F.2d at 586–87 (“[T]he ‘jurisdictional touchstone’ [is] ‘a colorable conflict

between state and federal law’ leading to the removing defendant’s refusal to follow

plaintiff's interpretation of state law because of a good faith belief that to do so would

violate federal law.” (emphasis added) (quoting White,

(Meskill, J.,

dissenting))). Here, nowhere does either party indicate that the Board refused to enforce

23 VRFRA on any ground, much less on Title IX grounds. It is not sufficient that the parties

retrospectively allege a conceivable conflict between VRFRA and Title IX.

Accordingly, although I believe that Title IX is properly a “law providing for equal

rights” within the meaning of § 1443(2), I agree with the majority’s conclusion that the

Board has failed to show this case qualifies for removal under § 1443(2). For these reasons,

I respectfully concur in the judgment.

24