As Eugene Volokh notes, it’s fairly obvious that a 6th Grade lesson about Hammurabi’s Code as part of a a unit on ancient Mesopotamia does not constitute a violation of Title VI, prohibiting discrimination in education on the basis of race, because it mentioned slaves. Not even if the lesson fell during Black History Month, together with a lesson about Rosa Parks and Martin Luther King.
But the problem is that it this challenge putatively raised due to a poorly framed question at the end of the unit, could put the government in the position of prohibiting schools from teaching words or concepts which, today, could possibly offend someone.
The question giving rise to this issue was both banal and tone deaf.
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.”
Learning about Hammurabi’s Code is a valuable, normal and appropriate part of a basic history education. Is it necessary to ask 6th graders questions to which the answer is kill them? Eugene says no. I’m not as sanguine, but that’s not the crux of the suit.
[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.
Notably, the Davis v. Monroe County Bd. of Ed. test of “severe, pervasive and objectively offensive” is in the process of being changed by DoE OCR back to “severe or pervasive.” But while the judge held that the Hammurabi question didn’t rise to the level of a hostile environment violation, another judge, or jury, could easily have concluded that this was sufficiently severe that, standing alone, the case could go to a jury.
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.”
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.
The judge in this case, Judge James Peterson, Western District of Wisconsin, rejected the plaintiff’s expert’s conclusions. But would another judge more inclined to buy into the “harassed, intimidated and bullied” claim? To be fair Levenberg’s contention, that teachers are authority figures and favored by the “power dynamic” certainly seems to be true, as it should be even if many teachers will argue otherwise these days. But I digress.
Do 6th grade lessons fall within the paradigm of “harassment, intimidation and bullying” because a teacher tells a student to do the lesson? There are no shortage of lessons in history, not to mention math, that could be deemed potentially offensive to a sufficiently sensitive student (or more likely, the student’s parent), to put much of what is considered a basic education at risk.
Even something like requiring homework be done in writing, correctly and turned in on time could be viewed as a lesson in white supremacy. Is this “severe” enough? That’s up to the sensitivity of the judge ruling on the motion to dismiss, and as newer, younger and more socially aware judges are being appointed to the federal courts, there is a good possibility that they will accept the conclusions of an expert like Levenberg that teaching the usual subject matter constitutes “harassment, intimidation and bullying” and creates a hostile environment in violation of law.
Nonetheless, we’re likely to see more such claims about alleged offensive 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.
The outcome in this case, dismissal, certainly seems correct and, dare I say it, obvious. But that was this time, and as Eugene suggests, it’s likely that this is just the start of parents suing school districts because they find some aspect of a lesson offensive. Will schools start curtailing curriculum to avoid any potential controversy? Will teachers have sensitivity readers to parse their test questions for offense? Will every student’s grievance of personal hurt put every school and teacher at risk should the case go before a judge more empathetic toward the student “bullied” by the teacher?
It’s not only possible. It’s likely.
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