(CN) - Segregating classrooms by sex and bullying an 11-year-old boy over his gender could be "constitutionally impermissible," parents of the boy argued to a 10th Circuit panel Wednesday.

Amber and Jonathon Stepp - parents suing the Talihina Public School District, its administrators and board members, along with a teacher, Kevin McClain - emphasized violations of due process under the 14th Amendment, as well as First Amendment retaliation and conspiracy.

"In 2022, no reasonable state actor would doubt that the Constitution prohibits the segregation of public school classrooms by sex, a teacher's aggressive sexual harassment and gender bullying of an 11-year-old boy or a campaign of retaliation against parents who filed a Title IX complaint," attorney J. Blake Johnson said. 

The parents accuse the school system of an unconstitutional policy of separating middle school classrooms by sex during the 2023-2024 school year, and claim McClain verbally abused a minor plaintiff identified as J.S. The Stepp plaintiffs also sued over the school's handling of a subsequent Title IX complaint.

The school district maintains the classroom segregation was temporary and aimed at addressing "issues related to proper conduct" and allowing "frank conversations" that might not occur in mixed settings.

During oral arguments before a three-judge panel, Adam S. Breipohl, representing all school district defendants except McClain, stressed the need for individualized analysis, arguing that "not every individual defendant in this case is alleged to have been involved in the same way or to the same degree every step along the way."

U.S. District Judge Jason A. Robertson previously denied the defendants' motions to dismiss in June 2025, ruling against qualified immunity - which shields government employees from suits unless they violate clearly established law - for the school district defendants.

"The qualified immunity doctrine exists to protect errors in judgment by good faith state actors," Johnson said. "What we're alleging here is that these actors did, or should have known that segregating classrooms, harassing students is wrong."

According to the plaintiffs, McClain created a hostile environment in the boys' classroom by verbally abusing J.S. with derogatory gender-based remarks. McClain's actions are said to have included "aggressive sexual harassment and gender bullying," such as calling J.S. names that belittled his masculinity and encouraging classmates to mock him, leading J.S. to break down in tears repeatedly. This conduct, the plaintiffs argue, interfered with the student's education and was severe and pervasive.

After the complaint was filed, J.S. was initially sent home with minimal work, then confined to the library for about six weeks with only one hour of daily instruction, depriving him of a full education without due process, the plaintiffs claim.

U.S. Circuit Judge Gregory Alan Phillips, a Barack Obama appointee, pressed Breipohl on the procedural due process claim, asking why the school system thinks the complaint didn't adequately claim a deprivation of the student's interest in public education due to the segregation and subsequent changes.

While students have an interest in education, Breipohl said, "the case law doesn't go as far as saying that every aspect of the way that an education is provided falls within the protected property interest."

He cited a prior 10th Circuit case where a student reassigned to an alternative school without sports wasn't deemed a constitutional deprivation because education was still provided.

In response to questions about J.S.'s accommodations following the complaint, Breipohl confirmed there was an initial remote setup followed by a hybrid with some in-person instruction, but argued it wasn't equivalent to a suspension triggering full due process.

U.S. Circuit Judge Scott Matheson, another Obama appointee, questioned the quality of education a student would receive under such a scenario. 

"In the second phase, you get one hour of language arts, and otherwise it sounds like this kid is sort of parked in the library ... Did they have any one-on-one instruction all day long?" Matheson asked. 

Breipohl maintained that J.S. continued receiving work and grades, but conceded the key issue was whether the changes violated clearly established law.

"If you look at the district court's order, the issue of clearly established law really is not specifically addressed on most of the claims," he said, urging reversal for that reason.

U.S. Circuit Judge Veronica S. Rossman, a Joe Biden appointee, also asked if board members were liable for implementing the classroom policy.

"Absolutely," Johnson replied. "We allege they were personally and directly involved themselves in the adoption, approval and ratification of the policy itself."

For his part, McClain has claimed his actions do not meet the high "shocks the conscience" standard for substantive due process claims.

Representing McClain, attorney Jason L. Callaway cited the 10th Circuit's Abeyta v. Chama Valley Independent School District decision from 1996, saying verbal abuse alone must be "equivalent to forced stomach pumping" to qualify. 

"We view the facts of this case ... no worse than what was alleged in Abeyta," Callaway said, adding courts have rarely found verbal abuse conscience-shocking in educational settings, so it couldn't be clearly established.

Addressing whether J.S.'s initial lack of understanding of some slurs made the harassment "unwelcome," Johnson called it "a novel argument" out of step with equal protection.

"It would be a peculiar interpretation of equal protection if ... the state actor was able to essentially insulate himself by using more syllables than his 11-year-old-victim," he said.

Phillips asked about reliance on Abeyta for clearly established law, given no violation was found there. Johnson conceded reliance on Abeyta might not suffice but argued the totality of circumstances - J.S.'s young age and the intentional bullying - made the conduct obviously unconstitutional.

The panel took the case under advisement. If affirmed, the case returns to federal court for further proceedings; reversal could grant immunity, potentially ending claims against the individuals.

Source: Courthouse News Service