Opinion by Judge REINHARDT; Concurrence by Judge BOOCHEVER.
REINHARDT, Circuit Judge:
More and more frequently we are faced with cases in which two fundamental constitutional rights appear to be at odds. At such times, the job of federal judges is particularly difficult. Here, we confront a case presenting some elements of such a clash. The setting is a freshman English class in Tempe, Arizona, and the competing interests are the First Amendment rights of high school students to receive information or ideas — even when contained in literary works that may in today's world appear to have racist overtones — and the rights of those same students to receive a public education that neither fosters nor acquiesces in a racially hostile environment.
Jane Doe was a student in a freshman English class at McClintock High School, which is part of the defendant Tempe Unified Union High School District ("School District"). The class' required reading included two classic literary works — the novel The Adventures of Huckleberry Finn, by Mark Twain, and the short story A Rose for Emily, by William Faulkner. The complaint, brought on Doe's behalf by her mother, Kathy Monteiro, alleged that each of these literary works "contains repeated use of the profane, insulting and racially derogatory term `nigger.'" It also alleged that neither work is a necessary component of a freshman English class and that none of the assignments in the curriculum refers to Caucasians in a derogatory manner.
According to the complaint, Doe and other similarly situated African-American students suffered psychological injuries and lost educational opportunities due to the required reading of the literary works. The complaint alleged that the School District had notice that Doe suffered these injuries but refused to offer a remedy other than to allow her to study alone in the library while the works were being discussed in class. It further alleged that the assignment of the literary works "created and contributed to a racially hostile educational environment," including increased racial harassment by other students. Finally, it alleged that by its conduct the School District intentionally discriminated against Doe.
In her complaint, Monteiro sought a declaratory judgment, urging that the conduct of the School District violated Doe's rights under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. She also requested a temporary and permanent injunction "prohibiting [the defendants] from committing similar unlawful acts in the future." Monteiro did not, however, seek the exclusion of the literary works from a voluntary reading list
Finally, she requested compensatory monetary damages, equitable relief in the form of compensatory education, and attorney fees.
In a memorandum order filed January 2, 1997, the district court dismissed the complaint on the ground that Doe failed to state a claim under either the Equal Protection Clause or Title VI because the complaint did not contain specific allegations of fact necessary to sustain a claim of discriminatory intent. The district court also dismissed as moot Monteiro's request for injunctive relief "regarding removal of the literary works from particular English classes" because Doe was no longer a member of the freshman English class and ruled that the case was not proper for class certification because of the absence of any showing that certification under Fed.R.Civ.P. 23 would be proper.
Monteiro moved for a new trial pursuant to Fed.R.Civ.P. 59(a) on the ground that the dismissal was improper in light of the complaint's good faith allegations that the School District acted with the requisite discriminatory intent. As an exhibit to the motion Monteiro attached a proposed amended complaint (the "amended complaint") in order to set forth her hostile educational environment claim "with more specificity." The memorandum in support of the motion requested that the court "grant plaintiff a new trial by vacating its summary judgment of January 2, 1997, and allowing plaintiff to proceed with her proposed amended complaint."
The amended complaint reiterates the contentions made in the initial complaint and seeks the same relief. It contains additional allegations, however, regarding the hostile racial environment at the school and the notice afforded the District of the complained-of conduct. It alleges with more particularity that Doe and other African-American students were subjected to racial harassment, orally and by the use of graffiti, prior to the time the literary works were introduced into the classroom, and that such harassment increased as a result of the assignment of those works as required reading. In particular, it alleges that African-American students were called "nigger" by their white peers with increased frequency and intensity after the literary works were assigned. Finally, it alleges that the school district, when notified of incidents of racial harassment, refused to accept the complaints or to take any appropriate remedial measures regarding them.
The district court denied the motion. It first noted that the purpose of a motion for reconsideration is to correct "manifest errors of law or fact or to present newly discovered evidence." It then rejected the amended complaint:
Order filed February 4, 1997 (citation omitted).
Monteiro now appeals the orders dismissing the complaint and denying the motion for a new trial. In doing so, she essentially challenges the district court's dismissal of her amended complaint.
We first resolve several procedural issues pertaining to the judge's dismissal of the original complaint and to his entry of judgment dismissing the action. The district court entered judgment the very same day that it granted the District's motion to dismiss the original complaint. Fed.R.Civ.P. 15, however, provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." Because Monteiro had not yet amended her complaint, and because there had been no answer filed, the district court erred when it did not give Monteiro the opportunity to file an amendment but instead entered judgment dismissing the action.
Instead of amending her complaint, as would have been the appropriate course of action under ordinary circumstances, Monteiro attached the amended complaint to her motion for reconsideration and sought to
Monteiro's amended complaint alleges violations of the Equal Protection clause and Title VI of the Civil Rights Act of 1964.
The amended complaint requests relief on the basis of two distinct acts, or rather failures to act, on the part of the District. The first involves the District's assignment of the two disputed literary works as mandatory reading, and its subsequent refusal to remove them from that part of the curriculum. The second involves the District's refusal to take action in response to complaints by Doe and other African-American students regarding incidents of racial harassment at the school. Each incorporates the facts that underlie the other. We will address the two distinct claims in turn.
A. Assignment of and Failure to Remove the Literary Works
A significant portion of the amended complaint, like the original, is based on the District's assignment of Huckleberry Finn and A Rose for Emily as required reading and its subsequent refusal to remove them from the mandatory curriculum. In addition to seeking removal, Monteiro's amended complaint seeks monetary damages as a result of the past assignment of the literary works and an injunction preventing the school from "committing similar unlawful acts in the future." We consider here whether the District's conduct, the requirement that students read books that were determined by the appropriate school authorities to have educational value, and the refusal to remove those books from a mandatory curriculum, can form the basis for a complaint alleging discriminatory conduct under the Equal Protection Clause and Title VI.
We approach this question in light of a number of considerations. The first is the threat to First Amendment freedoms posed by efforts to prevent school boards from assigning the reading of literary works on the ground that individuals or groups may find the contents injurious or offensive. The second is the broad discretion afforded school boards to establish curricula they believe to be appropriate to the educational needs of their students. The third is the awareness
The Supreme Court has addressed on a number of occasions the balancing of a school's discretion in determining educational matters with a students' First Amendment rights. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 268-69, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (holding that school board regulation of curriculum-related speech does not raise First Amendment concerns if regulation is "reasonably related to legitimate pedagogical concerns"); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (holding that punishment of student's "lewd speech" at assembly does not constitute violation); Board of Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 866, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) (plurality opinion) (holding that students' First Amendment right of access to information is violated when schools remove books from library in content-based manner).
Unlike the cases cited above, the case before us does not involve an action taken by a school board that arguably abridges the First Amendment rights of its students. Instead, it is a third party, a parent or a class of parents, that seeks to limit the educational
To begin with, Monteiro's amended complaint — and other lawsuits threatening to attach civil liability on the basis of the assignment of a book — would severely restrict a student's right to receive material that his school board or other educational authority determines to be of legitimate educational value. The amended complaint requests, under the threat of civil liability, that the school remove the literary works from the classroom.
There is an even more serious consequence for McClintock High School, as well as for all schools, that would flow from allowing the judicial system to process complaints that seek to enjoin or attach civil liability to a school district's assignment of a book. As the Supreme Court has recognized, at least since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), complaints based on speech protected by the First Amendment have far-ranging and deleterious effects, and the mere threat of civil liability can cause potential defendants to "`steer far wider of the unlawful zone.'" 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)).
It is not surprising that this conflict arises over Huckleberry Finn. According to the American Library Association, Twain's slim volume describing the effects of racism and slavery in antebellum society is the most frequently banned book in the United States, as well as one of the nation's most respected literary works. Black parents all over the country have asserted, as does Monteiro, that the book's use of the word "nigger" some 215 times "has a negative effect on the self-esteem of young black students" and that it therefore "has no place in the classroom." See Dan Cryer, Why Is Huck So Controversial?, Newsday, Oct. 15, 1996, at A33. Recent years have seen efforts to remove the work from libraries and reading lists in school districts in a number of states, including Pennsylvania, Ohio, and California, as well as Arizona. Although some districts voted to retain the book, many others have removed it
There is, of course, an extremely wide — if not unlimited — range of literary products that might be considered injurious or offensive, particularly when one considers that high school students frequently take Advanced Placement courses that are equivalent to college-level courses.
Further, any school board attempting to remove books from its curriculum on the ground that the works might offend would likely be vulnerable to First Amendment actions brought by students desiring to study those books, and possibly teachers, as well.
The number and range of books that might become the subject of litigation must be considered in light of the fact that the literary works at issue here contained only one offensive term, albeit a most injurious one. Moreover, the term is one that was widely used in an earlier era, and that might well appear in any work of fiction attempting to portray life in those times with any accuracy. The amended complaint does not allege that the two literary works are otherwise offensive or that they in any other way convey racist or offensive messages. Nor does it contend that the curriculum itself was racist or that the manner in which the assigned books, or any other books, were taught caused injury to African-American students. To put it in the most elementary terms, it is the literary works, and only the literary works, that Monteiro seeks to put on trial in the principal portion of her complaint — and it is solely because of the recitation in those works of a once commonly used racial epithet that she seeks to do so. Monteiro's complaint indeed raises most serious First Amendment concerns.
Nevertheless, as we said at the outset, there are important countervailing considerations that also must be weighed. We are aware that books can hurt, and that words can hurt — particularly racist epithets. It is now uncontroversial to observe that some of the most lauded works of literature convey, explicitly or in a more subtle manner, messages of racism and sexism, or other ideas that if accepted blindly would serve to maintain or promote the invidious inequalities that exist in our world today. We also recognize that the younger a person is, the more likely it is that those messages will help form that person's thinking, and that the feelings of minority students, especially younger ones, are extremely vulnerable when it comes to books that are racist or have racist overtones. In addition, we acknowledge that we have all too often failed to afford our African-American citizens the equal treatment that the Fourteenth Amendment requires, particularly in the area of public education. Nevertheless, for our courts or even our school boards to prohibit the assignment of literary works that may in some respects be racially offensive is simply not the proper solution.
First, the fact that a student is required to read a book does not mean that he is being asked to agree with what is in it. It cannot be disputed that a necessary component of any education is learning to think critically about offensive ideas — without that ability one can do little to respond to them. Second, it is important for young people to learn about the past — and to discover both the good and the bad in our history.
We do not, of course, suggest that racist actions on the part of teachers implementing a curriculum could not comprise discriminatory conduct for the purposes of Title VI or the Fourteenth Amendment. Nor do we preclude the prosecution of actions alleging that schools have pursued policies that serve to promote racist attitudes among their students, or have sought to indoctrinate their young charges with racist concepts. We conclude only that allegations that a school required that a book be read, and then refused to remove it from the curriculum, fails to provide the basis for a claim of discrimination under the Equal Protection Clause or Title VI, even when the school district is also accused of a failure to take steps to remedy a hostile racial environment. It is simply not the role of courts to serve as literary censors or to make judgments as to whether reading particular books does students more harm than good.
We close this part of our discussion with two observations. First, we view with considerable skepticism charges that reading books causes evil conduct. It is all too easy to allege cause-and-effect when one event follows another. Here, for example, Monteiro alleges that racial harassment, including verbal insults, increased "as a result of" the assignment of Huckleberry Finn and A Rose for Emily. The "as a result" link is wholly unsupported by any factual allegations. If racial harassment indeed increased during the school term, there are many other more likely causes that all of the interested parties might do well to explore. Second, the function of books and other literary materials, as well as of education itself, is to stimulate thought, to explore ideas, to engender intellectual exchanges. Bad ideas should be countered with good ones, not banned by the courts. One of the roles of teachers is to guide students through the difficult process of becoming educated, to help them learn how to discriminate between good concepts and bad, to benefit from the errors society has made in the past, to improve their minds and characters. Those who choose the books and literature that will influence the minds and hearts of our nation's youth and those who teach young people in our schools bear an awesome responsibility. We can only encourage them to exercise their authority wisely and well, and to be sensitive to the needs and concerns of all of their students.
In light of the above, we affirm the district court's rejection of the amended complaint as it relates to the District's assignment of and refusal to remove the two literary works in question.
B. Hostile Racial Educational Environment
The district court dismissed not only the claims relating to Huckleberry Finn and A Rose for Emily, but also Monteiro's claim that her daughter and others were subjected to a hostile racial educational environment because they were repeatedly called "nigger" and other racial slurs by white students. In addition, these insults were scrawled about the school in the form of graffiti. Monteiro further alleged in her amended complaint that her child as well as other students and parents complained to the appropriate authorities at McClintock High School and the school district but that the district refused to accept the complaints and furthermore refused to make any effort to halt the racist conduct. Ms. Monteiro asserts that this ordeal has "significantly hindered" her daughter's education and achievement. Because we find that the complaint sufficiently alleges a violation of Title VI, we reverse.
We are aware of no reported decision addressing the circumstances under which a school district's failure to respond to racial harassment of one or more pupils by other students constitutes a violation of Title VI. However, the Department of Education in 1994 interpreted Title VI as prohibiting student-to-student
The Department of Education is the agency charged by Congress with enforcing Title VI. As such, its interpretation is entitled to a high degree of deference by the courts so long as it does not conflict with a clearly expressed congressional intent and it is reasonable. Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 81 L.Ed.2d 694; Williams v. Babbitt, 115 F.3d 657, 660 n. 3 (9th Cir. 1997) (noting that Chevron deference is owed to agency interpretations made in adjudicative as well as regulatory context), cert. denied, ___ U.S. ___, 118 S.Ct. 1795, 140 L.Ed.2d 936 (1998); Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 810 (9th Cir.1989) (deferring to agency interpretation contained in memoranda published in the Federal Register and rejecting argument that Chevron applies only to regulations). Congress in drafting Title VI broadly proscribed racial discrimination in programs receiving federal monies. The term "discrimination" as used in Title VI is, of course, notoriously ambiguous, generating more than thirty years of litigation over its precise meaning. See Guardians Ass'n v. Civil Serv. Comm'n of the City of New York, 463 U.S. 582, 593, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (opinion of White, J., for the Court) ("The language of Title VI on its face is ambiguous; the word discrimination is inherently so."). Given this ambiguity, the Department of Education's interpretation is owed substantial deference. Moreover, the Investigative Guidance is consistent with analogous cases decided both in this circuit and others under Title VII and Title IX. See, e.g., Oona R.-S. v. McCaffrey, 1998 WL 216944, at *4 (9th Cir.1998) (holding that allegations of student to student sexual harassment state a claim for violation of Title IX based on hostile environment), pet. for cert. filed, 67 U.S.L.W. 3083 (U.S. June 19, 1998) (No. 98-101).
According to the Department of Education, a school district violates Title VI when (1) there is a racially hostile environment; (2) the district had notice of the problem; and (3) it "failed to respond adequately to redress the racially hostile environment." 59 Fed. Reg. at 11449. The agency's publication expressly states that a hostile environment can be caused by the conduct of peers. "Under this analysis, an alleged harasser need not be an agent or employee of the recipient because this theory of liability under Title VI is premised on a recipient's general duty to provide a nondiscriminatory educational environment." Id. We take the three-part test set out by the Department of Education in its Interpretive Guidance as our framework for evaluating whether the district court erred in dismissing that part of Monteiro's amended complaint that relates to the hostile racial environment.
1. Hostile Environment
The Department of Education defines a "racially hostile environment" as one in which racial harassment is "severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by the recipient." Id. at 11449. Whether a hostile educational environment exists is a question of fact, determined with reference to the totality of the circumstances, including the victim's race and age. Racial harassment creates a hostile environment if it is sufficiently severe that it would interfere with the educational program of a reasonable person of the same age and race as the victim. 59 Fed.Reg. 11449; see Ellison v. Brady, 924 F.2d 872 (9th Cir.1991) (holding that "reasonable person" in sexual harassment case brought by female plaintiff is a reasonable woman). Moreover, racist attacks need not be directed at the complainant in order to create a hostile educational environment. 59 Fed.Reg. 11449-50. See also Patterson v. McLean Credit Union, 491 U.S. 164, 180, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (holding that racial harassment in the workplace is actionable under Title VII); Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir.1989) (sexual graffiti not directed at plaintiff relevant to show
In her amended complaint, Monteiro alleged that her ninth-grade daughter and other similarly situated African-American students attended a school where they were called "niggers" by white children, and where that term was written on the walls of the buildings in which they were supposed to learn civics and social studies. It does not take an educational psychologist to conclude that being referred to by one's peers by the most noxious racial epithet in the contemporary American lexicon, being shamed and humiliated on the basis of one's race, and having the school authorities ignore or reject one's complaints would adversely affect a Black child's ability to obtain the same benefit from schooling as her white counterparts.
This is especially so when we also consider, in accordance with the agency's interpretation, the victim's age. Ninth grade is a sensitive time in a child's life. It is the beginning of high school, when a young adolescent is highly impressionable and is making decisions about education that will affect the course of her life. It is when college plans are often either begun or abandoned. As the Investigative Guidance notes, "verbal harassment of a young child by fellow students that is tolerated or condoned in any way by adult authority figures is likely to have a far greater impact than similar behavior would on an adult." 59 Fed.Reg. 11449. A school where this sort of conduct occurs unchecked is utterly failing in its mandate to provide a nondiscriminatory educational environment. Accordingly, we find that the complaint sets forth allegations that satisfy the first factor of the test for a Title VI violation.
The second part of our inquiry focuses on whether the district had sufficient notice of the racially hostile environment at McClintock High. The Department of Education's interpretation provides that a district may have either actual or constructive notice of racial harassment. 59 Fed.Reg. 11450-51. Actual notice may occur, as in this case, when a student or parent makes a complaint about racially demeaning incidents to the appropriate educational authorities. Monteiro alleged that her daughter and other African-American children experienced a pattern of racial abuse at McClintock High, and that students and parents complained about it to administrators at the school and the district. We conclude, therefore, that the complaint sufficiently alleges that the district had notice of discrimination.
3. The School's Response
Finally, we consider Monteiro's allegation that district officials refused to accept the complaints regarding racial problems at McClintock High School or to put a stop to the students' racist conduct. Once on notice of the problem, a school district "has a legal duty to take reasonable steps to eliminate" a racially hostile environment. 59 Fed.Reg. 11450. When a district is "deliberately indifferent" to its students' right to a learning environment free of racial hostility and discrimination, it is liable for damages under Title VI. Gebser v. Lago Vista Indep. Sch. Dist., ___ U.S. ___, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277 (1998) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Under this standard, the district is liable for its failure to act if the need for intervention was so obvious, or if inaction was so likely to result in discrimination, that "it can be said to have been deliberately indifferent to the need." Canton, 489 U.S. at 390, 109 S.Ct. 1197. There can be no doubt that Ms. Monteiro's amended complaint alleges a pattern of egregious public racial harassment including the use of the epithet "nigger," that Black students and their parents complained but were rebuffed, and that nothing was ever done about the problem. It goes without saying that being called a "nigger" by your white peers (or hearing that term applied to your Black classmates) exposes Black children to a "risk of discrimination" that is so substantial and obvious that a failure to act can only be the result of deliberate indifference.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings consistent with this opinion.
BOOCHEVER, Circuit Judge, concurring.
I concur in the majority's opinion. I write separately, however, to emphasize that this case does not call upon us to evaluate a complaint alleging that a school board assigned as required reading books with overt messages of racial hatred, such as those promoting the views of the Aryan Nation, the Ku Klux Klan, or similar hate groups, and that teachers did not discuss the books. A complaint alleging that the adoption of such texts violated Title VI may well present different issues which we need not consider in this case.
42 U.S.C. § 2000d.
Pratt was decided prior to the Supreme Court's decision in Pico, although it does refer to the lower court decision. Its reasoning, however, is consistent with that of the Pico plurality.
People of Illinois ex rel. McCollum v. Board of Educ. of Sch. Dist. No. 71, Champaign County, Illinois, 333 U.S. 203, 205, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (Jackson, J., concurring).