The Volokh Conspiracy
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6th-Grade Lesson About Hammurabi with "How Will You Punish This Slave?" Question Not Illegal "Harassment"
From Judge James Peterson's decision Friday in Ervins v. Sun Prairie Area School Dist. (W.D. Wis.):
February 1 was the first day of Black History Month, so Black history was part of the curriculum at the time [at a Sun Prairie middle school]. Sixth graders were also beginning a unit on ancient Mesopotamia. Because of the COVID-19 pandemic, classes at Patrick Marsh were taught remotely that semester. Students were sent a slide deck with lessons and activities to read and complete at home each day….
The February 1 slide deck in … included a Black History Month slide featuring Black leaders, including Barack Obama, Rosa Parks, and Martin Luther King, Jr. The rest of the deck was about the geography, religion, and politics of ancient Mesopotamia. The deck contained several slides about Hammurabi, a Mesopotamian king who created an early set of laws known as Hammurabi's Code.
At the end of the slide deck, there was an interactive assignment, titled "Hammurabi's Code—Your Turn to be the Judge," that asked students to apply Hammurabi's Code to three scenarios. One scenario stated:
A slave stands before you. This slave has disrespected his master by telling him "You are not my master!" How will you punish this slave?
The students were supposed to type in their answers and the correct answer would be revealed. The correct answer was "put to death."
The plaintiffs, parents of black students in the class, sued under Title VI (and brought related claims under the Equal Protection Clause), but the court rejected the claims:
To establish a hostile educational environment claim [under Title VI or Title IX], a plaintiff must show that: (1) the student participated in a federally funded program; (2) the alleged hostile environment was so severe, pervasive, and objectively offensive that it deprived the student of access to educational benefits; and (3) the school district had actual knowledge of and was deliberately indifferent toward the conduct in question….
[A] reasonable jury certainly could find that [the] content and timing [of] {the Mesopotamia materials and the question about slavery} were offensive, insensitive, and justifiably upset students and their families. But a hostile environment claim requires much more than a single upsetting episode…. [C]ourts have required consistent and or severe misconduct, such as physical threats, the use of racial epithets, violence, or sexual contact and abuse at school to establish a hostile environment claim. See, e.g., Doe I v. Bd. of Educ. of City of Chicago (N.D. Ill. 2019) (school employee who made sexually explicit comments to students, walked into locker room while students were changing, sexually touched students, slapped them, and committed battery against students created a hostile educational environment); Qualls v. Cunningham (7th Cir. 2006) (threats, racial slurs, and unfounded attempts by campus police to detain plaintiff would constitute a hostile educational environment); C.S. v. Couch (N.D. Ind. 2011) (racial epithets, threats, throwing a student into a bathroom stall, and punching him in the face constituted hostile racial environment); Doe v. Galster (7th Cir. 2014) (student-on-student harassment involving multiple serious violent physical attacks created a hostile learning environment). Even when a school authority figure is responsible for the offensive conduct, a hostile environment claim requires more than isolated episodes. See Adusumilli v. Illinois Inst. of Tech. (N.D. Ill. 1998).
Plaintiffs cite no legal authority that would support the idea that the Mesopotamia materials and the defiant slave question would meet the hostile environment standard. The materials did not condone slavery or depict slaves. The materials did not contain explicit racial slurs or racially charged images. To the contrary, the slide deck included a slide that honored Black leaders. And immediately after the slave question came to light, … administrators barred the use of the materials, acknowledged that they were hurtful, and apologized.
According to [plaintiffs' expert Bruce] Levenberg, … "students were harassed, intimidated, and bullied into assuming the role of 'Slave Master' and thus were consequently bullied into identifying as bully aggressors themselves." But this claim utterly lacks factual grounding: there is no evidence that any students were actually harassed, intimidated, or bullied. And the assignment asks student to assume the role of judge, not slave master. Levenberg says that because the assignment came from school authority figures, it carried "great force and credibility" to students. Levenberg did not interview students … about how they felt about the assignment or otherwise explain how the materials harassed and intimidated them. Without meaningful factual support or analyses, the expert declarations are merely Levenberg's ipse dixit, which the court will not consider.
Plaintiffs have not adduced evidence from which a reasonable jury could find a racially hostile learning environment. The court will grant summary judgment to defendants on the Title VI claims based on the Mesopotamia materials.
The court held that a similar analysis applied under the Fourteenth Amendment, and added this about the Establishment Clause:
The parties assume that standard in Lemon v. Kurtzman (1971) applies to Establishment Clause claims, but the continuing validity of the Lemon endorsement test is doubtful. Kennedy v. Bremerton Sch. Dist. (June 27, 2022). But even if Lemon applied, the court must determine first whether the challenged practice is religious in nature….
Plaintiffs' Establishment Clause claims fail, for the common-sense reason that teaching Hammurabi's Code was not religious education, it was a history lesson. The code is widely understood to be an ancient legal code, and plaintiffs adduce no evidence to the contrary. Neither the school district nor the teachers who used the Mesopotamia materials promoted or endorsed Hammurabi's Code as a viable moral code or a religious way of life. No reasonable jury could accept plaintiff's contention that the district forced students to "engage in religion" by asking them to answer in the first person how they would punish a slave.
Plaintiffs again rely on Levenberg's opinion that "the Code of Hammurabi is theologically based." But … even if all of Mesopotamian culture was theologically based, the teaching of that historical period would not constitute a governmental endorsement of Mesopotamian theology. Plaintiffs adduce [the parent-plaintiffs'] statements that they interpreted the code to have religious undertones because, like religion, it offered principles to live by. But plaintiffs' subjective beliefs are not relevant to determining whether teaching about Hammurabi's Code amounts to governmental establishment or endorsement of religion….
Plaintiffs' theory that the teaching of Hammurabi's Code is an unconstitutional establishment of religion cannot be squared with Lemon or any other Establishment Clause standard. The court will grant summary judgment to defendants on this claim.
The court also rejected a separate argument that one of the children had been pervasively bullied, in matters unrelated to the Hammurabi lesson, by classmates based on his race and learning disability; for more on that, see the opinion.
Some thoughts:
[1.] This is clearly the right result.
[2.] I doubt that it's a good idea to have sixth-grade children have to answer questions to which the answer is "I should kill this person"—entirely apart from whether that person is a slave, a political opponent, an enemy soldier, or whoever else—even if it's clear that they're answering as someone else. But I don't think there's anything illegal about such class assignments.
[3.] It's unfortunate that the vague "severe, pervasive, and objectively offensive" standard (which the Biden Administration is trying to have replaced with a "severe or pervasive" standard) is being applied as a matter of federal law to curriculum choices. That is especially since the same rules would apply not just to public school but to any school (or university) that gets federal funds. Indeed, similar rules apply in many states to private schools more generally; if a state bans discrimination in admission by such schools, which many states do, that brings with it similar restrictions on speech that creates a "hostile environment" (which would likely violate the First Amendment when applied to curriculum, see Runyon v. McCrary(1976)).
Public K-12 school systems and state legislatures have the power to define their curriculum and can block such lesson plans; but I don't think the federal government should do so, whether directly or as a condition of federal subsidies, especially since this standard would inevitably end up applying based on viewpoint. And this is especially so given that, as this case makes clear, people may raise "hostile environment" claims even to material that doesn't mention race.
[4.] Nonetheless, we're likely to see more such claims about allegedly offensive material based on race, sex, religion, sexual orientation, and the like, whether on curriculum decisions related to slavery (including non-race-based slavery); about "anti-racism" training that some argue is offensive to whites or males or others; about lessons related to Israel that some view as anti-Semitic; about history lessons that are seen as unfairly portraying Catholicism or Islam or Hinduism or other religions in a bad light; and more.
