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6th grade lesson on Hammurabi: “How would you punish this slave?” The question is not illegal “harassment”

From Judge James Peterson’s ruling on Friday Ervins v. Sun Prairie Area School Dist. (WD Wis.):

February 1st 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 also began a unit on ancient Mesopotamia. Due to the COVID-19 pandemic, Patrick Marsh’s classes were taught remotely during that semester. Students were sent a slide deck with lessons and activities to read and complete at home each day….

The February 1 slide cover included a Black History Month slide featuring black leaders including Barack Obama, Rosa Parks and Martin Luther King. The rest of the cover dealt with the geography, religion and politics of ancient Mesopotamia. The cover featured several slides of Hammurabi, the Mesopotamian king who created an early set of laws known as Hammurabi’s Code.

At the end of the slide deck was an interactive activity called “Hammurabi’s Code – Your Turn to Judge”, where students were asked to apply Hammurabi’s Code to three scenarios. One scenario said:

A slave stands before you. This slave has disrespected his master by telling him, “You are not my master!” How would you punish this slave?

Students had to write their answers and the correct answer was revealed. The correct answer was “death”.

The plaintiffs, the parents of the black students in the class, sued under Title VI (and filed related claims under the Equality Clause), but the court dismissed the claims:

Establish a claim of a hostile educational environment [under Title VI or Title IX], the claimant must show that: (1) the student participated in a federally funded program; (2) the allegedly hostile environment was so severe, pervasive, and objectively offensive that it denied the student access to educational benefits; and (3) the school district had actual knowledge of and was deliberately indifferent to the conduct in question….

[A] a reasonable jury could certainly find it [the] content and timing [of] {The Mesopotamian materials and the issue of slavery} were offensive, unfamiliar and rightfully upsetting the students and their families. But a hostile environment claim requires much more than one shocking episode…. [C]We have required consistent and/or serious misconduct such as physical intimidation, use of racial epithets, violence or sexual contact and abuse at school to support a claim of a hostile environment. See e.g. Is me against Bd. of Educ. from the city of Chicago (ND Ill. 2019) (school employee who made sexual comments to students, walked into locker room while students were dressing, sexually touched students, hit and abused students, created hostile educational environment); Qualls v. Cunningham (7th Cir. 2006) (threats, racial slurs, and unjustified attempts by campus police to arrest plaintiff constituted a hostile educational environment); CS v. couch (ND Ind. 2011) (racial epithets, threats, student being thrown into a bathroom stall and punched in the face constituted a racially hostile environment); Doe v. Galster (7th Cir. 2014) (harassment between students involving multiple serious violent physical attacks created a hostile learning environment). Although school authority is responsible for offensive behavior, a hostile environment claim requires more than isolated episodes. Look Adusumilli v. Illinois Inst. of Tech. (ND Ill. 1998).

Plaintiffs cite no legal authority to support the notion that Mesopotamian materials and the defiant slave issue meet the hostile environment standard. The materials do not condone slavery or depict slaves. The materials did not contain clear racial slurs or racial images. On the contrary, the slide deck had a slide honoring black leaders. And immediately after the slave issue came to light, … the administrators banned the use of the materials, admitted they were offensive, and apologized.

By [plaintiffs’ expert Bruce] Levenberg, … “students were bullied, intimidated and bullied into taking on the role of ‘slave master’ and thus bullied into identifying themselves as bullies as aggressors.” But this claim is completely lacking in factual basis: there is no evidence that any student was actually harassed, intimidated or bullied. And the assignment asks the student to take on the role of a judge, not a slave master. Levenberg says that because the assignment came from school authorities, it carried “great power and credibility” for the students. Levenberg did not interview the students… about their reaction to the assignment or otherwise explain how the material disturbed and frightened them. Without meaningful factual support or analysis, the expert opinions are Levenberg’s only ipse Dixitwhich the court will not consider.

Plaintiffs have presented no evidence on which a reasonable jury could find a racially hostile learning environment. The Court grants defendants summary judgment on the Title VI claims based on the Mesopotamian material.

The Court held that a similar analysis applied in the context of the Fourteenth Amendment, adding this from the Establishment Clause:

The parties assume that the standard is Lemon v. Kurtzman (1971) applies to Establishment Clause requirements, but the validity of the Lemon labeling test is questionable. Kennedy v. Bremerton Sch. District (June 27, 2022). But whatever Lemon the court must first determine whether the disputed practice is religious in nature….

Plaintiffs’ Establishment Clause claims fail for the commonsense reason that teaching the Code of Hammurabi was not religious instruction, it was a history lesson. The Code is widely understood to be an ancient statute, and Plaintiffs present no evidence to the contrary. Neither the school district nor the teachers who used the Mesopotamian materials promoted or supported Hammurabi’s code as a viable moral code or religious way of life. No reasonable jury could accept the plaintiff’s claim that the district forced the students to “exercise religion” by asking them to answer in the first person how they would punish a slave.

Plaintiffs again rely on Levenberg’s view that “the Code of Hammurabi is theological.” But… even if the entire Mesopotamian culture was theologically based, the teaching of that historical period would not imply government approval of Mesopotamian theology. Plaintiffs argue [the parent-plaintiffs’] statements that they interpreted the code as religious guidelines because, like religion, it provided principles by which to live. But the plaintiffs’ subjective beliefs are irrelevant in determining whether the teaching of Hammurabi’s Code constitutes the establishment of a government or the acceptance of a religion….

Plaintiffs’ theory that the teaching of the Code of Hammurabi is an unconstitutional basis of religion cannot be accepted. Lemon or any other articles of incorporation standard. The Court grants defendants summary judgment on this claim.

The court also rejected a separate allegation that one of the children had been widely bullied by classmates in matters unrelated to Hammurabi’s lesson based on his race and learning disability; for more information on the topic, see the opinion.

A few thoughts:

[1.] This is clearly the correct result.

[2.] I doubt it’s a good idea for sixth graders to answer questions with the answer “I should kill this person” – completely regardless of whether that person is a slave, a political opponent, an enemy soldier, or whoever. elsewhere – even if it’s clear they’re answering as someone else. But I don’t think there’s anything illegal about such class assignments.

[3.] It is unfortunate that the vague “severe, pervasive, and objectively offensive” standard (which the Biden administration is trying to replace with the “severe or pervasive” standard) applies to curricular choices under federal law. This is especially because the same rules apply not only to a public school, but to any school (or university) that receives federal funds. In fact, similar rules apply in many states to private schools more generally; if a state prohibits discrimination in admissions to such schools, as many states do, it will bring with it similar restrictions on speech that create a “hostile environment” (which would likely violate the First Amendment when applied to the 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 that, either directly or as a condition of federal subsidies, especially since that standard would inevitably be applied on a perspective basis. And that’s especially important because, as this case shows, people can make “hostile environment” claims even for material that doesn’t mention race.

[4.] Regardless, we’re likely to see more such claims of alleged offense based on race, gender, religion, sexual orientation, and the like, whether it’s curricular decisions related to slavery (including non-racial slavery); about “anti-racism” training that some claim is offensive to whites, men or others; of lessons about Israel that some consider anti-Semitic; of history lessons that are considered to portray Catholicism or Islam or Hinduism or other religions in an unfairly bad light; and more.

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