School liability for racially hostile environment widened by Ninth Circuit.

School officials who ignore students' complaints about racial slurs made by other students may now be held liable under Title VI of the Civil Rights Act of 1964. The Ninth Circuit Court of Appeals found that a school may be 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." (Monteiro v. Tempe High, No. 97-15511, 1998 WL 727338 (9th Cir. Oct. 19, 1998).)

Although schools have been held liable for sexual harassment of students, Phoenix attorney Stephen Montoya, who represented plaintiff Kathy Monteiro, the mother of the student in the case, said the case is the first to hold a public school liable for a racially hostile environment. "The case is also the first to apply the existing legal model of a sexually hostile working environment under Title VII to a racially hostile educational environment under Title VI," he said.

Monteiro's daughter was one of two African American students in a freshman English class at the local high school. Monteiro alleged that the school all but ignored her daughter's complaints that others in the class used racial epithets and graffiti to harass her daughter and the other African American student in the class.

Monteiro also alleged that the school made a bad situation worse by requiring the class to read Mark Twain's novel The Adventures of Huckleberry Finn and William Faulkner's short story "A Rose for Emily." According to Monteiro, those literary works portrayed African Americans negatively by using racially derogatory terms.

In her complaint, Monteiro said the school district knew that her daughter suffered psychological injuries and lost educational opportunities by having to read the two literary works. But the school refused to remedy the situation except to allow the daughter to study alone in the library while the works were being discussed in class. The complaint also said that assigning those works "created and contributed to a racially hostile educational environment," including increased racial harassment by other students. Finally, the complaint alleged that by its conduct, the school district intentionally discriminated against Monteiro's daughter.

The district court dismissed the complaint because Monteiro failed to show that school officials had acted "with discriminatory intent," which is required under Title VI to prevail.

The Ninth Circuit reversed. It found that Monteiro's complaint satisfied the three-pronged test for a violation of Title VI based on a hostile racial environment.

"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," the appeals court wrote.

"It goes without saying that being called `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."

However, the appellate court affirmed the lower court's dismissal of Monteiro's assertion that the school was liable for failing to remove the Twain novel and the Faulkner short story from the mandatory reading list.

"We conclude only that allegations that a school required that a book be read, and then refused to remove it from the curriculum, fail 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," the court wrote. "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."

The appellate court remanded the part of the amended complaint relating to the incidents of racial harassment.