Appeal from the United States District Courtfor the District of ArizonaStephen N. McNamee, District Judge, PresidingArgued and SubmittedFebruary 11, 1998--San Francisco, CaliforniaFiled October 19, 1998Before: Dorothy W. Nelson, Robert Boochever, andStephen Reinhardt, Circuit Judges.Opinion by Judge Reinhardt;Concurrence by Judge BoocheverSUMMARY
______________________COUNSEL Stephen G. Montoya, Phoenix, Arizona, for the plaintiff-appellant.Allison Lewis, Teilborg, Sanders & Parks, Phoenix, Arizona,for the defendants-appellees.
_____________________________OPINION REINHARDT, Circuit Judge:More and more frequently we are faced with cases in whichtwo fundamental constitutional rights appear to be at odds. Atsuch times, the job of federal judges is particularly difficult.Here, we confront a case presenting some elements of such aclash. The setting is a freshman English class in Tempe, Ari-zona, and the competing interests are the First Amendmentrights of high school students to receive information or ideas-- even when contained in literary works that may in today'sworld appear to have racist overtones -- and the rights ofthose same students to receive a public education that neitherfosters nor acquiesces in a racially hostile environment.Jane Doe was a student in a freshman English class atMcClintock High School, which is part of the defendantTempe Unified Union High School District ("SchoolDistrict"). The class' required reading included two classic lit-erary works -- the novel The Adventures of HuckleberryFinn, by Mark Twain, and the short story A Rose for Emily,by William Faulkner. The complaint, brought on Doe's behalfby her mother, Kathy Monteiro, alleged that each of these lit-erary works "contains repeated use of the profane, insultingand racially derogatory term `nigger.' " It also alleged thatneither work is a necessary component of a freshman Englishclass and that none of the assignments in the curriculum refersto Caucasians in a derogatory manner.According to the complaint, Doe and other similarly situ-ated African-American students suffered psychological inju-ries and lost educational opportunities due to the requiredreading of the literary works. The complaint alleged that theSchool District had notice that Doe suffered these injuries butrefused to offer a remedy other than to allow her to studyalone in the library while the works were being discussed inclass. It further alleged that the assignment of the literaryworks "created and contributed to a racially hostile educa-tional environment," including increased racial harassment byother students. Finally, it alleged that by its conduct theSchool District intentionally discriminated against Doe.In her complaint, Monteiro sought a declaratory judgment,urging that the conduct of the School District violated Doe'srights under the Equal Protection Clause of the FourteenthAmendment and Title VI of the Civil Rights Act of 1964. Shealso requested a temporary and permanent injunction"prohibiting [the defendants] from committing similar unlaw-ful acts in the future." Monteiro did not, however, seek theexclusion of the literary works from a voluntary reading list or from inclusion in classroom discussions in which Jane Doe and other African American students [are] not held as a captive student audience or consigned to a separate and unequal educational environment.Finally, she requested compensatory monetary damages, equi-table relief in the form of compensatory education, and attor-ney fees.In a memorandum order filed January 2, 1997, the districtcourt dismissed the complaint on the ground that Doe failedto state a claim under either the Equal Protection Clause orTitle VI because the complaint did not contain specific allega-tions of fact necessary to sustain a claim of discriminatoryintent. The district court also dismissed as moot Monteiro'srequest for injunctive relief "regarding removal of the literaryworks from particular English classes" because Doe was nolonger a member of the freshman English class and ruled thatthe case was not proper for class certification because of theabsence of any showing that certification under Fed. R. Civ.P. 23 would be proper.1 The order did not specify whether thedismissal was with prejudice. On that same day, however, thedistrict court entered judgment dismissing the complaint andthe action.Monteiro moved for a new trial pursuant to Fed. R. Civ. P.59(a) on the ground that the dismissal was improper in lightof the complaint's good faith allegations that the School Dis-trict acted with the requisite discriminatory intent. As anexhibit to the motion Monteiro attached a proposed amendedcomplaint (the "amended complaint") in order to set forth herhostile educational environment claim "with morespecificity." The memorandum in support of the motionrequested that the court "grant plaintiff a new trial by vacatingits summary judgment of January 2, 1997, and allowing plain-tiff to proceed with her proposed amended complaint."The amended complaint reiterates the contentions made inthe initial complaint and seeks the same relief. It containsadditional allegations, however, regarding the hostile racialenvironment at the school and the notice afforded the Districtof the complained-of conduct. It alleges with more particular-ity that Doe and other African-American students were sub-jected to racial harassment, orally and by the use of graffiti,prior to the time the literary works were introduced into theclassroom, and that such harassment increased as a result ofthe assignment of those works as required reading. In particu-lar, it alleges that African-American students were called"nigger" by their white peers with increased frequency andintensity after the literary works were assigned. Finally, italleges that the school district, when notified of incidents ofracial harassment, refused to accept the complaints or to takeany appropriate remedial measures regarding them.The district court denied the motion. It first noted that thepurpose of a motion for reconsideration is to correct "manifesterrors of law or fact or to present newly discovered evidence."It then rejected the amended complaint: Plaintiff argues that the Court rejected Plaintiff's allegations of discriminatory intent and hostile edu- cational environment. The Court noted in its Order that Plaintiff's Amended Complaint contained numerous legal conclusions. For instance, the Court acknowledged that Plaintiff alleged, in a conclusory fashion, that Defendants acted "with discriminatory intent." Nonetheless, Plaintiff's Amended Complaint alleged no factual allegations which support the proposition that Defendants intentionally discrimi- nated against Plaintiff. Moreover, conclusory allega- tions of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Therefore, accepting Plaintiff's allegations as true, Plaintiff's allegations nevertheless fail as a matter of law.Order filed February 4, 1997 (citation omitted). 2Monteiro now appeals the orders dismissing the complaintand denying the motion for a new trial. In doing so, she essen-tially challenges the district court's dismissal of her amendedcomplaint.I.[1] We first resolve several procedural issues pertaining tothe judge's dismissal of the original complaint and to his entryof judgment dismissing the action. The district court enteredjudgment the very same day that it granted the District'smotion to dismiss the original complaint. Fed. R. Civ. P. 15,however, provides that "[a] party may amend the party'spleading once as a matter of course at any time before aresponsive pleading is served." Because Monteiro had not yetamended her complaint, and because there had been noanswer filed, the district court erred when it did not give Mon-teiro the opportunity to file an amendment but instead enteredjudgment dismissing the action.[2] Instead of amending her complaint, as would have beenthe appropriate course of action under ordinary circumstances,Monteiro attached the amended complaint to her motion forreconsideration and sought to have her action reinstated inlight of its contents. The district court denied her motion onthe ground that the amended complaint failed to state a claimas a matter of law. Because under Fed. R. Civ. P. 15, Mon-teiro should have been permitted to file an amended com-plaint and because the district court determined that theamended complaint could not survive a motion to dismiss,and on that basis refused to reinstate her action, we will con-sider on the merits the district court's ruling that the amendedcomplaint failed to state a claim.II.[3] Monteiro's amended complaint alleges violations of theEqual Protection clause and Title VI of the Civil Rights Actof 1964.3 We have held that S 1983 claims based on EqualProtection violations must plead intentional unlawful discrim-ination or allege facts that are at least susceptible of an infer-ence of discriminatory intent. See De La Cruz v. Tormey, 582F.2d 45, 58 (9th Cir. 1978), cert. denied,
441 U.S. 965
(1979);see also Washington v. Davis,
426 U.S. 229
(1976) (requiringshowing of intentional discrimination). Under Title VI, how-ever, we have required only that the complaint allege that thedefendant is engaging in discrimination, although a showingof intent is necessary at trial. Fobbs v. Holy Cross HealthSys., 29 F.3d 1439, 1447 (9th Cir. 1994), cert. denied, 513U.S. 1127 (1995). Because Monteiro pled intent as to EqualProtection and did not need to do so as to Title VI, it waserror for the district court to dismiss for failure to plead intent.We nevertheless consider whether any other ground exists onwhich the district court's action should be affirmed.4The amended complaint requests relief on the basis of twodistinct acts, or rather failures to act, on the part of the Dis-trict. The first involves the District's assignment of the twodisputed literary works as mandatory reading, and its subse-quent refusal to remove them from that part of the curriculum.The second involves the District's refusal to take action inresponse to complaints by Doe and other African-Americanstudents regarding incidents of racial harassment at theschool. Each incorporates the facts that underlie the other. Wewill address the two distinct claims in turn.A. Assignment of and Failure to Removethe Literary WorksA significant portion of the amended complaint, like theoriginal, is based on the District's assignment of HuckleberryFinn and A Rose for Emily as required reading and its subse-quent refusal to remove them from the mandatory curriculum.In addition to seeking removal, Monteiro's amended com-plaint seeks monetary damages as a result of the past assign-ment of the literary works and an injunction preventing theschool from "committing similar unlawful acts in the future."We consider here whether the District's conduct, the require-ment that students read books that were determined by theappropriate school authorities to have educational value, andthe refusal to remove those books from a mandatory curricu-lum, can form the basis for a complaint alleging discrimina-tory conduct under the Equal Protection Clause and Title VI.[4] We approach this question in light of a number of con-siderations. The first is the threat to First Amendment free-doms posed by efforts to prevent school boards fromassigning the reading of literary works on the ground thatindividuals or groups may find the contents injurious or offen-sive. The second is the broad discretion afforded schoolboards to establish curricula they believe to be appropriate tothe educational needs of their students. The third is the aware-ness that words can hurt, particularly in the case of children,and that words of a racist nature can hurt especially severely.The fourth is the knowledge that the historic prejudice againstAfrican-Americans that has existed in this nation since itsinception has not yet been eradicated -- by any means. Thefifth is the requirement that young African-Americans, like allstudents, be afforded a public education free from racially dis-criminatory conduct on the part of educational authorities.[5] The Supreme Court has addressed on a number of occa-sions the balancing of a school's discretion in determiningeducational matters with a students' First Amendment rights.See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260
,268-69 (1988) (holding that school board regulation ofcurriculum-related speech does not raise First Amendmentconcerns if regulation is "reasonably related to legitimate ped-agogical concerns"); Bethel Sch. Dist. No. 403 v. Fraser, 478U.S. 675 (1986) (holding that punishment of student's "lewdspeech" at assembly does not constitute violation); Board ofEduc., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S.853, 866 (1982) (plurality opinion) (holding that students'First Amendment right of access to information is violatedwhen schools remove books from library in content-basedmanner).5 In doing so, the Court has recognized that schoolboards generally retain a broad discretion in managing schoolaffairs, Kuhlmeier,
484 U.S. at 272
; Pico,
457 U.S. at 864
(agreeing with proposition that local school boards may estab-lish and apply their curricula such a way as to transmit com-munity values); see also Virgil v. School Bd. of ColumbiaCounty, Florida, 862 F.2d 1517, 1520 (11th Cir. 1989)(reviewing cases), but it has also consistently noted that theschool board's discretion "in matters of education must beexercised in a manner that comports with the transcendentimperatives of the First Amendment." Pico,
457 U.S. at 864
(discussing West Virginia Bd. of Educ. v. Barnette, 319 U.S.624 (1943) (compelling students to salute flag violates FirstAmendment) and Epperson v. Arkansas,
393 U.S. 97
(1968)(striking down state law prohibiting teaching of evolution)).See generally Tinker v. Des Moines Indep. Community Sch.Dist.,
393 U.S. 503, 506
(1969) (finding that students do not"shed their constitutional rights to freedom of speech orexpression at the schoolhouse gate").[6] Unlike the cases cited above, the case before us doesnot involve an action taken by a school board that arguablyabridges the First Amendment rights of its students. Instead,it is a third party, a parent or a class of parents, that seeks tolimit the educational materials the school officials may fur-nish to the students -- and require them to read. Here we con-sider whether the school board's interest in exercising itsbroad discretion in assigning the literary works in questionand the students' First Amendment interest in reading thoseworks are collectively outweighed by the constitutional andstatutory interests of students who assert that they are injuredby the mandatory assignments. To resolve this controversy,we must consider whether the assignment of material deemedto have educational value by school authorities may in itselfserve as the basis for an injunction by a court or an award ofdamages, when the challenge to the material is founded on itsmessage or the language it employs.6 In other words, maycourts ban books or other literary works from school curriculaon the basis of their content? We answer that question in thenegative, even when the works are accused of being racist inwhole or in part.[7] To begin with, Monteiro's amended complaint -- andother lawsuits threatening to attach civil liability on the basisof the assignment of a book -- would severely restrict a stu-dent's right to receive material that his school board or othereducational authority determines to be of legitimate educa-tional value. The amended complaint requests, under thethreat of civil liability, that the school remove the literaryworks from the classroom.7 Certainly when a school boardidentifies information that it believes to be a useful part of astudent's education, that student has the right to receive theinformation. Indeed, the Eighth Circuit has concluded that aschool board's removal of material from the classroom curric-ulum solely on the basis of its message has a powerful sym-bolic effect on a student or teacher's First Amendment rights-- despite the material's availability in the library -- and is,therefore, unconstitutional. See Pratt v. Independent Sch. Dist.No. 831, Forest Lake, Minn., 670 F.2d 771, 773 (8th Cir.1982) (finding removal of a film, Shirley Jackson's The Lot-tery, constitutionally impermissible when action was prem-ised on "assumption that scenes offensive to the majority ofthe board and some parents had no place . . . in the schoolsystem").8 Because ours is not a case in which a school boardhas decided on the basis of its own evaluations to remove lit-erary materials, we need not now decide the question resolvedby the Eighth Circuit. We have no hesitation in concluding,however, that a student's First Amendment rights areinfringed when books that have been determined by theschool district to have legitimate educational value areremoved from a mandatory reading list because of threats ofdamages, lawsuits, or other forms of retaliation. In this case,the relief that Monteiro's complaint seeks, injunctive relief aswell as monetary damages, would unquestionably restrict thestudents' First Amendment freedoms and significantly inter-fere with the District's discretion to determine the composi-tion of its curriculum.There is an even more serious consequence for McClintockHigh School, as well as for all schools, that would flow fromallowing the judicial system to process complaints that seekto enjoin or attach civil liability to a school district's assign-ment of a book. As the Supreme Court has recognized, at leastsince New York Times Co. v. Sullivan,
376 U.S. 254
(1964),complaints based on speech protected by the First Amend-ment have far-ranging and deleterious effects, and the merethreat of civil liability can cause potential defendants to" `steer far wider of the unlawful zone.' "
376 U.S. 254
, 279(1964) (quoting Speiser v. Randall,
357 U.S. 513, 526
(1958)).9Were the plaintiff to succeed in this litigation or even to suc-ceed in forcing the defendants to engage in a trial over suchwell-established literary works, the threat of future litigationwould inevitably lead many school districts to "buy theirpeace" by avoiding the use of books or other materials thatexpress messages -- or simply use terms -- that could beargued to cause harm to a group of students.It is not surprising that this conflict arises over HuckleberryFinn. According to the American Library Association,Twain's slim volume describing the effects of racism andslavery in antebellum society is the most frequently bannedbook in the United States, as well as one of the nation's mostrespected literary works. Black parents all over the countryhave asserted, as does Monteiro, that the book's use of theword "nigger" some 215 times "has a negative effect on theself-esteem of young black students" and that it therefore "hasno place in the classroom." See Dan Cryer, Why Is Huck SoControversial?, Newsday, Oct. 15, 1996, at A33. Recentyears have seen efforts to remove the work from libraries andreading lists in school districts in a number of states, includ-ing Pennsylvania, Ohio, and California, as well as Arizona.Although some districts voted to retain the book, many othershave removed it from the curriculum due to concerns aboutthe use of racial stereotypes and epithets.[8] There is, of course, an extremely wide -- if not unlim-ited -- range of literary products that might be consideredinjurious or offensive, particularly when one considers thathigh school students frequently take Advanced Placementcourses that are equivalent to college-level courses.10 Whiteplaintiffs could seek to remove books by Toni Morrison,Maya Angelou, and other prominent Black authors on theground that they portray Caucasians in a derogatory fashion;11Jews might try to impose civil liability for the teachings ofShakespeare and of more modern English poets where writ-ings exhibit a similar anti-Semitic strain. Female studentscould attempt to make a case for damages for the assignmentof some of the works of Tennessee Williams, Hemingway, orFreud, and male students for the writings of Andrea Dworkinor Margaret Atwood.12 The number of potential lawsuits thatcould arise from the highly varied educational curriculathroughout the nation might well be unlimited and unpredict-able. Many school districts would undoubtedly prefer to"steer far" from any controversial book and instead substitute"safe" ones in order to reduce the possibility of civil liabilityand the expensive and time-consuming burdens of a lawsuit-- even one having but a slight chance of success. In short,permitting lawsuits against school districts on the basis of thecontent of literary works to proceed past the complaint stagecould have a significant chilling effect on a school district'swillingness to assign books with themes, characters, snippetsof dialogue, or words that might offend the sensibilities of anynumber of persons or groups.[9] Further, any school board attempting to remove booksfrom its curriculum on the ground that the works might offendwould likely be vulnerable to First Amendment actionsbrought by students desiring to study those books, and possi-bly teachers, as well.13 Schools could be caught between thoseseeking to remove Huckleberry Finn and those seeking tostudy it. It would clearly not be in the best interests of ourpublic education system and its students to have such compet-ing lawsuits become a part of our legal landscape.The number and range of books that might become the sub-ject of litigation must be considered in light of the fact that theliterary works at issue here contained only one offensive term,albeit a most injurious one. Moreover, the term is one thatwas widely used in an earlier era, and that might well appearin any work of fiction attempting to portray life in those timeswith any accuracy. The amended complaint does not allegethat the two literary works are otherwise offensive or that theyin any other way convey racist or offensive messages. Nordoes it contend that the curriculum itself was racist or that themanner in which the assigned books, or any other books, weretaught caused injury to African-American students. To put itin the most elementary terms, it is the literary works, and onlythe literary works, that Monteiro seeks to put on trial in theprincipal portion of her complaint -- and it is solely becauseof the recitation in those works of a once commonly usedracial epithet that she seeks to do so. Monteiro's complaintindeed raises most serious First Amendment concerns.[10] Nevertheless, as we said at the outset, there are impor-tant 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 toobserve that some of the most lauded works of literature con-vey, explicitly or in a more subtle manner, messages of racismand sexism, or other ideas that if accepted blindly would serveto maintain or promote the invidious inequalities that exist inour world today. We also recognize that the younger a personis, the more likely it is that those messages will help form thatperson's thinking, and that the feelings of minority students,especially younger ones, are extremely vulnerable when itcomes to books that are racist or have racist overtones. Inaddition, we acknowledge that we have all too often failed toafford our African-American citizens the equal treatment thatthe Fourteenth Amendment requires, particularly in the areaof public education. Nevertheless, for our courts or even ourschool boards to prohibit the assignment of literary works thatmay in some respects be racially offensive is simply not theproper solution.[11] First, the fact that a student is required to read a bookdoes not mean that he is being asked to agree with what is init. It cannot be disputed that a necessary component of anyeducation 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 thepast -- and to discover both the good and the bad in our history.14Third, if all books with messages that might be deemed harm-ful were removed, the number of "acceptable" works might behighly limited. Because sexism and racism, and other formsof inequality, exist in almost every culture -- and because ourvalues tend to change and are not immutable -- and becausethe dispute over what ideas are proper or improper willalways be a matter of intense controversy -- it would be follyto think that there is a certain "safe" set of books written byparticular authors that all will find acceptable. Next, we rejectthe notion that putting books on trial in our courts is theproper way to determine the appropriateness of their use inthe classroom. Such judgments are ordinarily best left toschool boards and educational officials charged with educat-ing young people and determining which education materialsare appropriate for which students, and under what circum-stances. Therefore, although we recognize that books -- andwords -- are powerful tools that can convey extremely injuri-ous messages, we conclude that the assignment of a literarywork determined to have intrinsic educational value by theduly authorized school authorities cannot constitute the typeof discriminatory conduct prohibited by the FourteenthAmendment and Title VI, regardless of the fact that the workmay be deemed to contain racist ideas or language.[12] We do not, of course, suggest that racist actions on thepart of teachers implementing a curriculum could not com-prise discriminatory conduct for the purposes of Title VI orthe Fourteenth Amendment. Nor do we preclude the prosecu-tion of actions alleging that schools have pursued policies thatserve to promote racist attitudes among their students, or havesought to indoctrinate their young charges with racist con-cepts. We conclude only that allegations that a schoolrequired that a book be read, and then refused to remove itfrom the curriculum, fails to provide the basis for a claim ofdiscrimination under the Equal Protection Clause or Title VI,even when the school district is also accused of a failure totake steps to remedy a hostile racial environment. It is simplynot the role of courts to serve as literary censors or to makejudgments as to whether reading particular books does stu-dents more harm than good.We close this part of our discussion with two observations.First, we view with considerable skepticism charges that read-ing books causes evil conduct. It is all too easy to allegecause-and-effect when one event follows another. Here, forexample, Monteiro alleges that racial harassment, includingverbal insults, increased "as a result of" the assignment ofHuckleberry Finn and A Rose for Emily. The "as a result" linkis wholly unsupported by any factual allegations. If racialharassment indeed increased during the school term, there aremany other more likely causes that all of the interested partiesmight do well to explore. Second, the function of books andother literary materials, as well as of education itself, is tostimulate thought, to explore ideas, to engender intellectualexchanges. Bad ideas should be countered with good ones,not banned by the courts. One of the roles of teachers is toguide students through the difficult process of becoming edu-cated, to help them learn how to discriminate between goodconcepts and bad, to benefit from the errors society has madein the past, to improve their minds and characters. Those whochoose the books and literature that will influence the mindsand hearts of our nation's youth and those who teach youngpeople in our schools bear an awesome responsibility. We canonly encourage them to exercise their authority wisely andwell, and to be sensitive to the needs and concerns of all oftheir students.[13] In light of the above, we affirm the district court'srejection of the amended complaint as it relates to the Dis-trict's assignment of and refusal to remove the two literaryworks in question.B. Hostile Racial Educational Environment[14] The district court dismissed not only the claims relat-ing to Huckleberry Finn and A Rose for Emily, but also Mon-teiro's claim that her daughter and others were subjected to ahostile racial educational environment because they wererepeatedly called "nigger" and other racial slurs by white stu-dents. In addition, these insults were scrawled about theschool in the form of graffiti. Monteiro further alleged in heramended complaint that her child as well as other studentsand parents complained to the appropriate authorities atMcClintock High School and the school district but that thedistrict refused to accept the complaints and furthermorerefused 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 findthat the complaint sufficiently alleges a violation of Title VI,we reverse.[15] We are aware of no reported decision addressing thecircumstances under which a school district's failure torespond to racial harassment of one or more pupils by otherstudents constitutes a violation of Title VI. However, theDepartment of Education in 1994 interpreted Title VI as pro-hibiting student-to-student racial harassment and set out thecriteria by which such claims are to be evaluated. Racial Inci-dents and Harassment Against Students at Educational Insti-tutions; Investigative Guidance, 59 Fed. Reg. 11448 (March10, 1994).[16] The Department of Education is the agency charged byCongress with enforcing Title VI. As such, its interpretationis entitled to a high degree of deference by the courts so longas it does not conflict with a clearly expressed congressionalintent and it is reasonable. Chevron v. National ResourcesDefense Council,
467 U.S. 837
, 844-45; Williams v. Babbit,115 F.3d 657, 660 n.3 (9th Cir. 1996) (noting that Chevrondeference is owed to agency interpretations made in adjudica-tive as well as regulatory context), cert. denied, 118 S. Ct.1795 (1998); Wilshire Westwood Assoc. v. Atlantic RichfieldCorp., 881 F.2d 801, 810 (9th Cir. 1989) (deferring to agencyinterpretation contained in memoranda published in the Fed-eral Register and rejecting argument that Chevron appliesonly to regulations). Congress in drafting Title VI broadlyproscribed racial discrimination in programs receiving federalmonies. The term "discrimination" as used in Title VI is, ofcourse, notoriously ambiguous, generating more than thirtyyears of litigation over its precise meaning. See GuardiansAss'n v. Civil Serv. Comm'n of the City of New York, 463 U.S.582, 593 (1983) (opinion of White, J., for the Court) ("Thelanguage of Title VI on its face is ambiguous; the word dis-crimination is inherently so."). Given this ambiguity, theDepartment of Education's interpretation is owed substantialdeference. Moreover, the Investigative Guidance is consistentwith analogous cases decided both in this circuit and othersunder Title VII and Title IX. See, e.g., Oona R.-S. v. McCaf-frey, 1998 WL 216944, at *4 (9th Cir. 1998) (holding thatallegations of student to student sexual harassment state aclaim 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).[17] According to the Department of Education, a schooldistrict violates Title VI when (1) there is a racially hostileenvironment; (2) the district had notice of the problem; and(3) it "failed to respond adequately to redress the racially hos-tile environment." 59 Fed. Reg. at 11449. The agency's publi-cation expressly states that a hostile environment can becaused by the conduct of peers. "Under this analysis, analleged harasser need not be an agent or employee of therecipient because this theory of liability under Title VI ispremised on a recipient's general duty to provide a nondis-criminatory educational environment." Id. We take the three-part test set out by the Department of Education in itsInterpretive Guidance as our framework for evaluatingwhether the district court erred in dismissing that part of Mon-teiro's amended complaint that relates to the hostile racialenviornment.1. Hostile Environment[18] The Department of Education defines a "racially hos-tile environment" as one in which racial harassment is"severe, pervasive or persistent so as to interfere with or limitthe ability of an individual to participate in or benefit from theservices, activities or privileges provided by the recipient." Id.at 11449. Whether a hostile educational environment exists isa question of fact, determined with reference to the totality ofthe circumstances, including the victim's race and age. Racialharassment creates a hostile environment if it is sufficientlysevere that it would interfere with the educational program ofa reasonable person of the same age and race as the victim.59 Fed. Reg. 11449; see Ellison v. Brady, 924 F.2d 872 (9thCir. 1991) (holding that "reasonable person" in sexual harass-ment case brought by female plaintiff is a reasonable woman).Moreover, racist attacks need not be directed at the complain-ant in order to create a hostile educational environment. 59Fed. Reg. 11449-50. See also Patterson v. McLean CreditUnion,
491 U.S. 164, 180
(1989) (holding that racial harass-ment in the workplace is actionable under Title VII); Waltmanv. International Paper Co., 875 F.2d 468, 477 (5th Cir. 1989)(sexual graffiti not directed at plaintiff relevant to show hos-tile work environment under Title VII); Walker v. Ford MotorCo., 684 F.2d 1355 (11th Cir. 1982) (evidence of racialharassment directed at others relevant to establish hostilework environment under Title VII).[19] In her amended complaint, Monteiro alleged that herninth-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 writtenon the walls of the buildings in which they were supposed tolearn civics and social studies. It does not take an educationalpsychologist to conclude that being referred to by one's peersby the most noxious racial epithet in the contemporary Ameri-can lexicon, being shamed and humiliated on the basis ofone's race, and having the school authorities ignore or rejectone's complaints would adversely affect a Black child's abil-ity to obtain the same benefit from schooling as her whitecounterparts.[20] This is especially so when we also consider, in accor-dance with the agency's interpretation, the victim's age. Ninthgrade is a sensitive time in a child's life. It is the beginningof high school, when a young adolescent is highly impression-able and is making decisions about education that will affectthe course of her life. It is when college plans are often eitherbegun or abandoned. As the Investigative Guidance notes,"verbal harassment of a young child by fellow students thatis tolerated or condoned in any way by adult authority figuresis likely to have a far greater impact than similar behaviorwould on an adult." 59 Fed. Reg. 11449. A school where thissort of conduct occurs unchecked is utterly failing in its man-date to provide a nondiscriminatory educational environment.Accordingly, we find that the complaint sets forth allegationsthat satisfy the first factor of the test for a Title VI violation.2. Notice[21] The second part of our inquiry focuses on whether thedistrict had sufficient notice of the racially hostile environ-ment at McClintock High. The Department of Education'sinterpretation provides that a district may have either actual orconstructive notice of racial harassment. 59 Fed. Reg. 11450-51. Actual notice may occur, as in this case, when a studentor parent makes a complaint about racially demeaning inci-dents to the appropriate educational authorities. Monteiroalleged that her daughter and other African-American chil-dren experienced a pattern of racial abuse at McClintockHigh, and that students and parents complained about it toadministrators at the school and the district. We conclude,therefore, that the complaint sufficiently alleges that the dis-trict had notice of discrimination.3. The School's Response[22] Finally, we consider Monteiro's allegation that districtofficials refused to accept the complaints regarding racialproblems at McClintock High School or to put a stop to thestudents' racist conduct. Once on notice of the problem, aschool district "has a legal duty to take reasonable steps toeliminate" 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 dis-crimination, it is liable for damages under Title VI. Gebser v.Lago Vista Indep. Sch. Dist., 118 S.Ct. 1989, 1999 (1998)(citing City of Canton, Ohio v. Harris,
489 U.S. 378
, 388-92(1989)). Under this standard, the district is liable for its failureto act if the need for intervention was so obvious, or if inac-tion was so likely to result in discrimination, that "it can besaid to have been deliberately indifferent to the need."Canton,
489 U.S. at 390
. There can be no doubt that Ms.Monteiro's amended complaint alleges a pattern of egregiouspublic racial harassment including the use of the epithet"nigger," that Black students and their parents complained butwere rebuffed, and that nothing was ever done about the prob-lem. It goes without saying that being called a "nigger" byyour white peers (or hearing that term applied to your Blackclassmates) exposes Black children to a "risk ofdiscrimination" that is so substantial and obvious that a failureto act can only be the result of deliberate indifference.[23] We conclude that the amended complaint sets forthallegations that satisfy all three parts of the test for a violationof Title VI based upon a hostile racial environment. In lightof the holding set forth in part A, however, we reverse onlyas to those portions of the amended complaint relating to theincidents of racial harassment and not as to those portionsrelating to the assignment of Huckleberry Finn and A Rose forEmily or the refusal to remove those literary works from themandatory assignment list.15AFFIRMED IN PART, REVERSED IN PART, ANDREMANDED for further proceedings consistent with thisopinion.
_____________________________BOOCHEVER, C.J., concurring.I concur in the majority's opinion. I write separately, how-ever, to emphasize that this case does not call upon us to eval-uate a complaint alleging that a school board assigned asrequired reading books with overt messages of racial hatred,such as those promoting the views of the Aryan Nation, theKu Klux Klan, or similar hate groups, and that teachers didnot discuss the books. A complaint alleging that the adoptionof such texts violated Title VI may well present differentissues which we need not consider in this case.
___________________________FOOTNOTES 1 Monteiro, however, had not yet moved for class certification.2 It appears that the first time the district court uses the term "AmendedComplaint" it is discussing its order dismissing the initial complaint, andthat the word "Amended" is included by mistake. The second time thecourt refers to the "Amended Complaint," however, it appears to do socorrectly and to intend to hold that the amended complaint is inadequate.3 Title VI provides in relevant part: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under and pro- gram or activity receiving Federal financial assistance.42 U.S.C. S 2000d.4 We hasten to add that the ground we consider is one that the partiesthoroughly briefed and argued.5 We find Pico to be particularly helpful in identifying the First Amend-ment interests that are involved in this case. Pico held that a school boardcould not remove books from a school library if it did so "in a narrowlypartisan or political manner."
457 U.S. at 870
-71. It based its decision ontwo First Amendment principles that we find are also relevant in the con-text of a school curriculum. The first is the well-established rule that theright to receive information is an inherent corollary of the rights of freespeech and press, because the right to distribute information necessarilyprotects the right to receive it.
457 U.S. at 866
; see Virginia State Bd. ofPharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748
, 756(1976) ("Freedom of speech presupposes a willing speaker. But where aspeaker exists, as is the case here, the protection afforded is to the commu-nication, to its source and to its recipients both.") (right to receive adver-tising). The second involves the students' rights to receive a broad rangeof information so that they can freely form their own thoughts: "[m]oreimportantly, the right to receive ideas is a necessary predicate to therecipient's meaningful exercise of his own rights of speech, press, andpolitical freedom."
457 U.S. at 867
(emphasis added). The Supreme Courthas long recognized that the freedom to receive ideas, and its relation tothe freedom of expression, is particularly relevant in the classroom setting: The classroom is peculiarly "the marketplace of ideas." The Nation's future depends upon leaders trained through wide expo- sure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection."Keyishian v. Board of Regents of Univ. of State of N.Y.,
385 U.S. 589
, 603(1967) (quoting United States v. Associated Press, 52 F. Supp. 362, 372(S.D.N.Y. 1943)).6 We exclude from our holding and analysis educational material subjectto the prohibitions of the Religion Clauses of the First Amendment. Thoseclauses have a long, checkered, and unique history in the evolution of ourconstitutional doctrine. Over the years, the courts have developed a set ofprinciples designed especially to enforce the prohibition against state-established religion and to ensure the freedom of religious thought andexpression of all individuals, including students in a public-school setting.See School Dist. of Abington Township, Penn. v. Schempp,
374 U.S. 203
(1963) (finding daily readings from Bible to violate EstablishmentClause); Brown v. Woodland Joint Unified Sch. Dist., 27 F.2d 1373 (9thCir. 1994) (finding use of books discussing witches and magic not to con-stitute Establishment Clause violation); Grove v. Mead Sch. Dist. No. 354,753 F.2d 1528 (9th Cir. 1985) (finding assignment of The Learning Treenot to violate Free Exercise or Establishment Clauses). The principlesdeveloped for purposes of the Establishment and Free Exercise Clausesare peculiarly suited to the particular problems they address and are notreadily transferrable to other categories of problems, including the at-least-as important but substantially different problems that arise under the Four-teenth Amendment. Thus we neither borrow from nor seek to affect therules and doctrines that courts have developed to deal with school materi-als alleged to be in violation of either of the Religion Clauses. We do note,however, that our reasoning is in large measure consistent with that in theReligion Clause cases. See, e.g., Brown, 27 F.3d at 1379 ("If an Establish-ment Clause violation arose each time a student believed that a schoolpractice either advanced or disapproved of a religion, school curriculawould be reduced to the lowest common denominator, permitting eachstudent to become a `curriculum review committee.' "); Grove, 753 F.2dat 1543 (Canby, J., concurring) ("In short, distinctions must be drawnbetween those governmental actions that actually interfere with the exer-cise of religion, and those that merely require or result in exposure to atti-tudes and outlooks at odds with perspective prompted by religion.").7 The amended complaint alleges that Monteiro does not seek theremoval of the works "from classroom discussions in which Jane Doe andother African American students were not held as a captive student audi-ence or consigned to a separate and unequal educational environment."The purported qualification does little to lessen the constitutional con-cerns. Indeed, it exacerbates them. Thus, we do not accept the impliedexception as a feasible alternative. First, due to the practical burdens,schools would be unlikely to choose to teach alternate works separately tostudents objecting to a portion of the curriculum. Instead, they wouldprobably simply remove books that they believed to be educationally valu-able, but that might be controversial, or offensive to some. Even moreimportant, the proposed alternative of creating a separate but equal"educational environment" for African-American students would amountto de facto segregation that runs contrary to the dictates of Brown v. Boardof Educ. Thus, we view Monteiro's request for relief, regardless of itsasserted qualification, as calling for the removal of the challenged literaryworks from the classroom.8 Pratt noted that the flow of information to students through the curric-ulum is far more direct than through the placing of materials in a libraryand that accordingly the First Amendment harms stemming from curricu-lum censorship are by far the more serious injury. It recognized that"[w]hat is at stake is the right to receive information and to be exposedto controversial ideas -- a fundamental First Amendment right. If thesefilms can be banned by those opposed to their ideological theme, then aprecedent is set for the removal of any such work. " 670 F.2d at 779.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.9 In Sullivan, the Supreme Court recognized the inherent dangers ofattaching civil liability to conduct that comes within First Amendmentprotection.
376 U.S. 254
. In holding that proof of actual malice was neces-sary in a state law libel action, the Court stated that, "the pall of fear andtimidity imposed upon those who would give voice to public criticism isan atmosphere in which the First Amendment freedoms cannot survive."Id. at 278. The Court soon imposed the heightened proof requirement itimposed in Sullivan in other actions that also raised First Amendment con-cerns. See Time, Inc. v. Hill,
385 U.S. 374
(1967) (applying standard ofreckless or knowing falsehood to state law right-of-privacy action).10 The difficulty of finding educational material that is not offensive toa given group has also been recognized in the context of Free Exercisechallenges: Authorities list 256 separate and substantial religious bodies to exist . . . in the United States . . . . If we are to eliminate every- thing that is objectionable to any of these warring sects or incon- sistent with any of their doctrines, we will leave public education in shreds. Nothing but educational confusion and a discrediting of the public school system can result . . . .McCollum v. Board of Educ. of Sch. Dist. No. 71, Champaign County, Illi-nois,
333 U.S. 203, 205
(1948) (Jackson, J., concurring).11 See Maryland Schools Remove 2 Black-Authored Books, L.A. Times,Jan. 11, 1998, at A6 (discussing removal of Toni Morrison's Song of Solo-mon and Maya Angelou's I Know Why the Caged Bird Sings due to paren-tal complaints that they were "trash" and "anti-white"); Jaime Marernee,Board to Take `Bird' Off List, St. Petersburg Times, June 2, 1998, at 1,available in 1998 WL 4266235 (reporting on parent effort to removeAngelou work from library). Other works by Black authors have been thetarget of such efforts. See, e.g., Rebecca Sausner, Burlington BoardRemoves Book on Apartheid, Hartford Courant, Jan. 14, 1997, at A8 (Kaf-fir Boy by Mark Mathabane); Tim Blangger, To Read or Not to Read,Book Battles Occur More in Schools Than Libraries, Allentown MorningCall, September 30, 1996, at 1, available in 1996 WL 10449017 (NativeSon by Richard Wright and The Color Purple by Alice Walker); BonnieHenry & Roderick Gary, Students Place Language Into Historical Con-text, Arizona Daily Star, July 21, 1995, at 1A (The Ways of White Folksby Langston Hughes).12 By giving these examples, we do not imply that the writings of theseauthors (with the possible exception of The Merchant of Venice) have evergiven offense to the same degree as the epithet set forth in Monteiro'samended complaint. We recognize that the term "nigger", as applied toblacks, is uniquely provocative and demeaning and that there is probablyno word or phrase that could be directed at any other group that couldcause comparable injury. At the pleading stage, however, it would be quitesimple for a group or individual to claim that a particular term or idea isprofane, insulting, and derogatory, or otherwise highly offensive or injuri-ous, and to seek to proceed to trial on that basis.13 Although the complaint does not refer to the involvement of teachersin the teaching of the literary works at issue or in the formation of the cur-riculum, it is likely that claims such as these, and their outcomes, couldhave significant effect on the First Amendment rights of teachers. See Tin-ker v. Des Moines Indep. Community Sch. Dist.,
393 U.S. 503, 506
(1969)("It can hardly be argued that either students or teachers shed their consti-tutional rights to freedom of speech or expression at the schoolhouse gate.This has been the unmistakable holding of this Court for almost 50years."); Keyishian v. Board of Regents of Univ. of State of New York, 385U.S. 589, 683 (1967) (finding that freedom of expression of teachers wasa "special concern of the First Amendment"); see also Boring v. Bun-combe County Bd. of Educ., 136 F.3d 364, 379 (4th Cir. 1998) (Motz, J.,dissenting) (noting that teachers enjoy limited First Amendment protec-tions in the classroom).14 J. Whyatt Mondesire, president of the Philadelphia N.A.A.C.P.opposed his group's challenge to Huck Finn, because "[i]t's part of Ameri-can folklore and history . . . You're not going to learn anything by closingyour eyes and not reading." Robert Moran & Connie Langland,Pennsylvania NAACP Opposes `Huck Finn' Requirement, Buffalo News,Feb. 2, 1998, at A7.15 We do not address the district court's denial of class certification. Thatorder was based upon allegations made in the original (rather than in theamended) complaint. We instruct the district court to determine whetherclass certification is appropriate under the amended complaint at theappropriate time. the end