In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court. The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:
28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... 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 ... 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 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....
Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]
