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KATHY MONTEIRO, individually, as
the legal guardian of her minor
daughter JANE DOE, and on behalf
of all other similarly situated
individuals,
Plaintiff-Appellant,

v.
No. 97-15511

THE TEMPE UNION HIGH SCHOOL
D.C. No.
DISTRICT, a political subdivision of
CV-96-01236-SMM
the State of Arizona, and DANIEL
OPINION
PERKINS, RANDY CLAWSON, RICHARD
FOREMAN and STEVEN RICH,
individually and in their official
capacities as members of the
Governing Board of the Tempe
Union High School District,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen N. McNamee, District Judge, Presiding

Argued and Submitted
February 11, 1998--San Francisco, California

Filed October 19, 1998

Before: Dorothy W. Nelson, Robert Boochever, and
Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;
Concurrence by Judge Boochever
SUMMARY 

_________________________________________________________________

_________________________________________________________________

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 which
two fundamental constitutional rights appear to be at odds. At
such times, the job of federal judges is particularly difficult.
Here, we confront a case presenting some elements of such a
clash. The setting is a freshman English class in Tempe, Ari-
zona, and the competing interests are the First Amendment
rights of high school students to receive information or ideas
-- even when contained in literary works that may in today's
world appear to have racist overtones -- and the rights of
those same students to receive a public education that neither
fosters nor acquiesces in a racially hostile environment.

Jane Doe was a student in a freshman English class at
McClintock High School, which is part of the defendant
Tempe Unified Union High School District ("School
District"). The class' required reading included two classic lit-
erary works -- the novel The Adventures of Huckleberry
Finn, by Mark Twain, and the short story A Rose for Emily,
by William Faulkner. The complaint, brought on Doe's behalf
by her mother, Kathy Monteiro, alleged that each of these lit-
erary works "contains repeated use of the profane, insulting
and racially derogatory term `nigger.' " It also alleged that
neither work is a necessary component of a freshman English
class and that none of the assignments in the curriculum refers
to 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 required
reading of the literary works. The complaint alleged that the
School District had notice that Doe suffered these injuries but
refused to offer a remedy other than to allow her to study
alone in the library while the works were being discussed in
class. It further alleged that the assignment of the literary
works "created and contributed to a racially hostile educa-
tional environment," including increased racial harassment by
other students. Finally, it alleged that by its conduct the
School District intentionally discriminated against Doe.

In her complaint, Monteiro sought a declaratory judgment,
urging that the conduct of the School District violated Doe's
rights under the Equal Protection Clause of the Fourteenth
Amendment and Title VI of the Civil Rights Act of 1964. She
also requested a temporary and permanent injunction
"prohibiting [the defendants] from committing similar unlaw-
ful acts in the future." Monteiro did not, however, seek the
exclusion 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 district
court dismissed the complaint on the ground that Doe failed
to state a claim under either the Equal Protection Clause or
Title VI because the complaint did not contain specific allega-
tions of fact necessary to sustain a claim of discriminatory
intent. The district court also dismissed as moot Monteiro's
request for injunctive relief "regarding removal of the literary
works from particular English classes" because Doe was no
longer a member of the freshman English class and ruled that
the case was not proper for class certification because of the
absence of any showing that certification under Fed. R. Civ.
P. 23 would be proper.1 The order did not specify whether the
dismissal was with prejudice. On that same day, however, the
district court entered judgment dismissing the complaint and
the action.

Monteiro moved for a new trial pursuant to Fed. R. Civ. P.
59(a) on the ground that the dismissal was improper in light
of the complaint's good faith allegations that the School Dis-
trict acted with the requisite discriminatory intent. As an
exhibit to the motion Monteiro attached a proposed amended
complaint (the "amended complaint") in order to set forth her
hostile educational environment claim "with more
specificity." The memorandum in support of the motion
requested that the court "grant plaintiff a new trial by vacating
its summary judgment of January 2, 1997, and allowing plain-
tiff to proceed with her proposed amended complaint."

The amended complaint reiterates the contentions made in
the initial complaint and seeks the same relief. It contains
additional allegations, however, regarding the hostile racial
environment at the school and the notice afforded the District
of 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 the
classroom, and that such harassment increased as a result of
the 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 and
intensity after the literary works were assigned. Finally, it
alleges that the school district, when notified of incidents of
racial harassment, refused to accept the complaints or to take
any appropriate remedial measures regarding them.

The district court denied the motion. It first noted that the
purpose of a motion for reconsideration is to correct "manifest
errors 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). 2

Monteiro now appeals the orders dismissing the complaint
and denying the motion for a new trial. In doing so, she essen-
tially challenges the district court's dismissal of her amended
complaint.

I.

[1] We first resolve several procedural issues pertaining to
the judge's dismissal of the original complaint and to his entry
of judgment dismissing the action. The district court entered
judgment the very same day that it granted the District's
motion to dismiss the original complaint. Fed. R. Civ. P. 15,
however, provides that "[a] party may amend the party's
pleading once as a matter of course at any time before a
responsive pleading is served." Because Monteiro had not yet
amended her complaint, and because there had been no
answer filed, the district court erred when it did not give Mon-
teiro the opportunity to file an amendment but instead entered
judgment dismissing the action.

[2] Instead of amending her complaint, as would have been
the appropriate course of action under ordinary circumstances,
Monteiro attached the amended complaint to her motion for
reconsideration and sought to have her action reinstated in
light of its contents. The district court denied her motion on
the ground that the amended complaint failed to state a claim
as 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 the
amended 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 amended
complaint failed to state a claim.

II.

[3] Monteiro's amended complaint alleges violations of the
Equal Protection clause and Title VI of the Civil Rights Act
of 1964.3 We have held that S 1983 claims based on Equal
Protection 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, 582
F.2d 45, 58 (9th Cir. 1978), cert. denied, 
441 U.S. 965
 (1979);
see also Washington v. Davis, 
426 U.S. 229
 (1976) (requiring
showing of intentional discrimination). Under Title VI, how-
ever, we have required only that the complaint allege that the
defendant is engaging in discrimination, although a showing
of intent is necessary at trial. Fobbs v. Holy Cross Health
Sys., 29 F.3d 1439, 1447 (9th Cir. 1994), cert. denied, 513
U.S. 1127 (1995). Because Monteiro pled intent as to Equal
Protection and did not need to do so as to Title VI, it was
error for the district court to dismiss for failure to plead intent.
We nevertheless consider whether any other ground exists on
which the district court's action should be affirmed.4

The amended complaint requests relief on the basis of two
distinct acts, or rather failures to act, on the part of the Dis-
trict. The first involves the District's assignment of the two
disputed 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 in
response to complaints by Doe and other African-American
students regarding incidents of racial harassment at the
school. Each incorporates the facts that underlie the other. We
will address the two distinct claims in turn.

A. Assignment of and Failure to Remove
the Literary Works

A significant portion of the amended complaint, like the
original, is based on the District's assignment of Huckleberry
Finn 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 the
school 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 the
appropriate school authorities to have educational value, and
the 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 from
assigning the reading of literary works on the ground that
individuals or groups may find the contents injurious or offen-
sive. The second is the broad discretion afforded school
boards to establish curricula they believe to be appropriate to
the 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 against
African-Americans that has existed in this nation since its
inception has not yet been eradicated -- by any means. The
fifth is the requirement that young African-Americans, like all
students, 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 determining
educational 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 of
curriculum-related speech does not raise First Amendment
concerns if regulation is "reasonably related to legitimate ped-
agogical concerns"); Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675 (1986) (holding that punishment of student's "lewd
speech" at assembly does not constitute violation); Board of
Educ., 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 violated
when schools remove books from library in content-based
manner).5 In doing so, the Court has recognized that school
boards generally retain a broad discretion in managing school
affairs, 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 Columbia
County, Florida, 862 F.2d 1517, 1520 (11th Cir. 1989)
(reviewing cases), but it has also consistently noted that the
school board's discretion "in matters of education must be
exercised in a manner that comports with the transcendent
imperatives 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 First
Amendment) 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 or
expression at the schoolhouse gate").

[6] Unlike the cases cited above, the case before us does
not involve an action taken by a school board that arguably
abridges the First Amendment rights of its students. Instead,
it is a third party, a parent or a class of parents, that seeks to
limit 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 its
broad discretion in assigning the literary works in question
and the students' First Amendment interest in reading those
works are collectively outweighed by the constitutional and
statutory interests of students who assert that they are injured
by the mandatory assignments. To resolve this controversy,
we must consider whether the assignment of material deemed
to have educational value by school authorities may in itself
serve as the basis for an injunction by a court or an award of
damages, when the challenge to the material is founded on its
message or the language it employs.6 In other words, may
courts ban books or other literary works from school curricula
on the basis of their content? We answer that question in the
negative, even when the works are accused of being racist in
whole or in part.

[7] To begin with, Monteiro's amended complaint -- and
other lawsuits threatening to attach civil liability on the basis
of the assignment of a book -- would severely restrict a stu-
dent's right to receive material that his school board or other
educational authority determines to be of legitimate educa-
tional value. The amended complaint requests, under the
threat of civil liability, that the school remove the literary
works from the classroom.7 Certainly when a school board
identifies information that it believes to be a useful part of a
student's education, that student has the right to receive the
information. Indeed, the Eighth Circuit has concluded that a
school 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 of
the board and some parents had no place . . . in the school
system").8 Because ours is not a case in which a school board
has decided on the basis of its own evaluations to remove lit-
erary materials, we need not now decide the question resolved
by the Eighth Circuit. We have no hesitation in concluding,
however, that a student's First Amendment rights are
infringed when books that have been determined by the
school district to have legitimate educational value are
removed from a mandatory reading list because of threats of
damages, lawsuits, or other forms of retaliation. In this case,
the relief that Monteiro's complaint seeks, injunctive relief as
well as monetary damages, would unquestionably restrict the
students' 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 McClintock
High School, as well as for all schools, that would flow from
allowing the judicial system to process complaints that seek
to enjoin or attach civil liability to a school district's assign-
ment of a book. As the Supreme Court has recognized, at least
since 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 mere
threat 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)).9
Were the plaintiff to succeed in this litigation or even to suc-
ceed in forcing the defendants to engage in a trial over such
well-established literary works, the threat of future litigation
would inevitably lead many school districts to "buy their
peace" by avoiding the use of books or other materials that
express messages -- or simply use terms -- that could be
argued to cause harm to a group of students.

It is not surprising that this conflict arises over Huckleberry
Finn. According to the American Library Association,
Twain's slim volume describing the effects of racism and
slavery in antebellum society is the most frequently banned
book in the United States, as well as one of the nation's most
respected literary works. Black parents all over the country
have asserted, as does Monteiro, that the book's use of the
word "nigger" some 215 times "has a negative effect on the
self-esteem of young black students" and that it therefore "has
no place in the classroom." See Dan Cryer, Why Is Huck So
Controversial?, Newsday, Oct. 15, 1996, at A33. Recent
years have seen efforts to remove the work from libraries and
reading 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 others
have removed it from the curriculum due to concerns about
the 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 considered
injurious or offensive, particularly when one considers that
high school students frequently take Advanced Placement
courses that are equivalent to college-level courses.10 White
plaintiffs could seek to remove books by Toni Morrison,
Maya Angelou, and other prominent Black authors on the
ground that they portray Caucasians in a derogatory fashion;11
Jews might try to impose civil liability for the teachings of
Shakespeare and of more modern English poets where writ-
ings exhibit a similar anti-Semitic strain. Female students
could attempt to make a case for damages for the assignment
of some of the works of Tennessee Williams, Hemingway, or
Freud, and male students for the writings of Andrea Dworkin
or Margaret Atwood.12 The number of potential lawsuits that
could arise from the highly varied educational curricula
throughout 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 liability
and 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 the
content of literary works to proceed past the complaint stage
could have a significant chilling effect on a school district's
willingness to assign books with themes, characters, snippets
of dialogue, or words that might offend the sensibilities of any
number of persons or groups.

[9] Further, any school board attempting to remove books
from its curriculum on the ground that the works might offend
would likely be vulnerable to First Amendment actions
brought by students desiring to study those books, and possi-
bly teachers, as well.13 Schools could be caught between those
seeking to remove Huckleberry Finn and those seeking to
study it. It would clearly not be in the best interests of our
public 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 the
literary works at issue here contained only one offensive term,
albeit a most injurious one. Moreover, the term is one that
was widely used in an earlier era, and that might well appear
in any work of fiction attempting to portray life in those times
with any accuracy. The amended complaint does not allege
that the two literary works are otherwise offensive or that they
in any other way convey racist or offensive messages. Nor
does it contend that the curriculum itself was racist or that the
manner in which the assigned books, or any other books, were
taught caused injury to African-American students. To put it
in the most elementary terms, it is the literary works, and only
the literary works, that Monteiro seeks to put on trial in the
principal portion of her complaint -- and it is solely because
of the recitation in those works of a once commonly used
racial epithet that she seeks to do so. Monteiro's complaint
indeed 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 to
observe that some of the most lauded works of literature con-
vey, explicitly or in a more subtle manner, messages of racism
and sexism, or other ideas that if accepted blindly would serve
to maintain or promote the invidious inequalities that exist in
our world today. We also recognize that the younger a person
is, the more likely it is that those messages will help form that
person's thinking, and that the feelings of minority students,
especially younger ones, are extremely vulnerable when it
comes to books that are racist or have racist overtones. In
addition, we acknowledge that we have all too often failed to
afford our African-American citizens the equal treatment that
the Fourteenth Amendment requires, particularly in the area
of public education. Nevertheless, for our courts or even our
school boards to prohibit the assignment of literary works that
may in some respects be racially offensive is simply not the
proper solution.

[11] First, the fact that a student is required to read a book
does not mean that he is being asked to agree with what is in
it. It cannot be disputed that a necessary component of any
education 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 the
past -- and to discover both the good and the bad in our history.14
Third, if all books with messages that might be deemed harm-
ful were removed, the number of "acceptable" works might be
highly limited. Because sexism and racism, and other forms
of inequality, exist in almost every culture -- and because our
values tend to change and are not immutable -- and because
the dispute over what ideas are proper or improper will
always be a matter of intense controversy -- it would be folly
to think that there is a certain "safe" set of books written by
particular authors that all will find acceptable. Next, we reject
the notion that putting books on trial in our courts is the
proper way to determine the appropriateness of their use in
the classroom. Such judgments are ordinarily best left to
school boards and educational officials charged with educat-
ing young people and determining which education materials
are appropriate for which students, and under what circum-
stances. Therefore, although we recognize that books -- and
words -- are powerful tools that can convey extremely injuri-
ous messages, we conclude that the assignment of a literary
work determined to have intrinsic educational value by the
duly authorized school authorities cannot constitute the type
of discriminatory conduct prohibited by the Fourteenth
Amendment and Title VI, regardless of the fact that the work
may be deemed to contain racist ideas or language.

[12] We do not, of course, suggest that racist actions on the
part of teachers implementing a curriculum could not com-
prise discriminatory conduct for the purposes of Title VI or
the Fourteenth Amendment. Nor do we preclude the prosecu-
tion of actions alleging that schools have pursued policies that
serve to promote racist attitudes among their students, or have
sought to indoctrinate their young charges with racist con-
cepts. We conclude only that allegations that a school
required that a book be read, and then refused to remove it
from the curriculum, fails 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. It is simply
not the role of courts to serve as literary censors or to make
judgments 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 allege
cause-and-effect when one event follows another. Here, for
example, Monteiro alleges that racial harassment, including
verbal insults, increased "as a result of" the assignment of
Huckleberry Finn and A Rose for Emily. The "as a result" link
is wholly unsupported by any factual allegations. If racial
harassment indeed increased during the school term, there are
many other more likely causes that all of the interested parties
might do well to explore. Second, the function of books and
other literary materials, as well as of education itself, is to
stimulate thought, to explore ideas, to engender intellectual
exchanges. Bad ideas should be countered with good ones,
not banned by the courts. One of the roles of teachers is to
guide students through the difficult process of becoming edu-
cated, to help them learn how to discriminate between good
concepts and bad, to benefit from the errors society has made
in the past, to improve their minds and characters. Those who
choose the books and literature that will influence the minds
and hearts of our nation's youth and those who teach young
people in our schools bear an awesome responsibility. We can
only encourage them to exercise their authority wisely and
well, and to be sensitive to the needs and concerns of all of
their students.

[13] In light of the above, we affirm the district court's
rejection of the amended complaint as it relates to the Dis-
trict's assignment of and refusal to remove the two literary
works 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 a
hostile racial educational environment because they were
repeatedly called "nigger" and other racial slurs by white stu-
dents. In addition, these insults were scrawled about the
school in the form of graffiti. Monteiro further alleged in her
amended complaint that her child as well as other students
and parents complained to the appropriate authorities at
McClintock High School and the school district but that the
district refused to accept the complaints and furthermore
refused 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 find
that the complaint sufficiently alleges a violation of Title VI,
we reverse.

[15] We are aware of no reported decision addressing the
circumstances under which a school district's failure to
respond to racial harassment of one or more pupils by other
students constitutes a violation of Title VI. However, the
Department of Education in 1994 interpreted Title VI as pro-
hibiting student-to-student racial harassment and set out the
criteria 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 (March
10, 1994).

[16] The Department of Education is the agency charged by
Congress with enforcing Title VI. As such, its interpretation
is entitled to a high degree of deference by the courts so long
as it does not conflict with a clearly expressed congressional
intent and it is reasonable. Chevron v. National Resources
Defense Council, 
467 U.S. 837
, 844-45; Williams v. Babbit,
115 F.3d 657, 660 n.3 (9th Cir. 1996) (noting that Chevron
deference 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 Richfield
Corp., 881 F.2d 801, 810 (9th Cir. 1989) (deferring to agency
interpretation contained in memoranda published in the Fed-
eral Register and rejecting argument that Chevron applies
only to regulations). Congress in drafting Title VI broadly
proscribed racial discrimination in programs receiving federal
monies. The term "discrimination" as used in Title VI is, of
course, notoriously ambiguous, generating more than thirty
years of litigation over its precise meaning. See Guardians
Ass'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) ("The
language of Title VI on its face is ambiguous; the word dis-
crimination is inherently so."). Given this ambiguity, the
Department of Education's interpretation is owed substantial
deference. Moreover, the Investigative Guidance is consistent
with analogous cases decided both in this circuit and others
under Title VII and Title IX. See, e.g., Oona R.-S. v. McCaf-
frey, 1998 WL 216944, at *4 (9th Cir. 1998) (holding that
allegations of student to student sexual harassment state a
claim 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 school
district violates Title VI when (1) there is a racially hostile
environment; (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 be
caused by the conduct of peers. "Under this analysis, an
alleged harasser need not be an agent or employee of the
recipient because this theory of liability under Title VI is
premised 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 its
Interpretive Guidance as our framework for evaluating
whether the district court erred in dismissing that part of Mon-
teiro's amended complaint that relates to the hostile racial
enviornment.

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 limit
the ability of an individual to participate in or benefit from the
services, activities or privileges provided by the recipient." Id.
at 11449. Whether a hostile educational environment exists is
a question of fact, determined with reference to the totality of
the circumstances, including the victim's race and age. Racial
harassment creates a hostile environment if it is sufficiently
severe that it would interfere with the educational program of
a reasonable person of the same age and race as the victim.
59 Fed. Reg. 11449; see Ellison v. Brady, 924 F.2d 872 (9th
Cir. 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. 59
Fed. Reg. 11449-50. See also Patterson v. McLean Credit
Union, 
491 U.S. 164, 180
  (1989) (holding that racial harass-
ment in the workplace is actionable under Title VII); Waltman
v. 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 Motor
Co., 684 F.2d 1355 (11th Cir. 1982) (evidence of racial
harassment directed at others relevant to establish hostile
work environment under Title VII).

[19] In her amended complaint, Monteiro alleged that her
ninth-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 written
on the walls of the buildings in which they were supposed to
learn civics and social studies. It does not take an educational
psychologist to conclude that being referred to by one's peers
by the most noxious racial epithet in the contemporary Ameri-
can lexicon, being shamed and humiliated on the basis of
one's race, and having the school authorities ignore or reject
one's complaints would adversely affect a Black child's abil-
ity to obtain the same benefit from schooling as her white
counterparts.

[20] This is especially so when we also consider, in accor-
dance with the agency's interpretation, the victim's age. Ninth
grade is a sensitive time in a child's life. It is the beginning
of high school, when a young adolescent is highly impression-
able and is making decisions about education that will affect
the course of her life. It is when college plans are often either
begun or abandoned. As the Investigative Guidance notes,
"verbal harassment of a young child by fellow students that
is tolerated or condoned in any way by adult authority figures
is likely to have a far greater impact than similar behavior
would on an adult." 59 Fed. Reg. 11449. A school where this
sort 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 allegations
that satisfy the first factor of the test for a Title VI violation.

2. Notice

[21] The second part of our inquiry focuses on whether the
district had sufficient notice of the racially hostile environ-
ment at McClintock High. The Department of Education's
interpretation provides that a district may have either actual or
constructive notice of racial harassment. 59 Fed. Reg. 11450-
51. Actual notice may occur, as in this case, when a student
or parent makes a complaint about racially demeaning inci-
dents to the appropriate educational authorities. Monteiro
alleged that her daughter and other African-American chil-
dren experienced a pattern of racial abuse at McClintock
High, and that students and parents complained about it to
administrators 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 district
officials refused to accept the complaints regarding racial
problems at McClintock High School or to put a stop to the
students' racist conduct. Once on notice of the problem, a
school district "has a legal duty to take reasonable steps to
eliminate" 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 failure
to act if the need for intervention was so obvious, or if inac-
tion was so likely to result in discrimination, that "it can be
said 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 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 prob-
lem. It goes without saying that being called a "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.

[23] We conclude that the amended complaint sets forth
allegations that satisfy all three parts of the test for a violation
of Title VI based upon a hostile racial environment. In light
of the holding set forth in part A, however, we reverse only
as to those portions of the amended complaint relating to the
incidents of racial harassment and not as to those portions
relating to the assignment of Huckleberry Finn and A Rose for
Emily or the refusal to remove those literary works from the
mandatory assignment list.15

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED for further proceedings consistent with this
opinion.

_________________________________________________________________

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 as
required reading books with overt messages of racial hatred,
such as those promoting the views of the Aryan Nation, the
Ku Klux Klan, or similar hate groups, and that teachers did
not discuss the books. A complaint alleging that the adoption
of such texts violated Title VI may well present different
issues 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 "Amended
Complaint" it is discussing its order dismissing the initial complaint, and
that the word "Amended" is included by mistake. The second time the
court refers to the "Amended Complaint," however, it appears to do so
correctly 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 parties
thoroughly 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 narrowly
partisan or political manner." 
457 U.S. at 870
-71. It based its decision on
two 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 the
right to receive information is an inherent corollary of the rights of free
speech and press, because the right to distribute information necessarily
protects the right to receive it. 
457 U.S. at 866
; see Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 
425 U.S. 748
, 756
(1976) ("Freedom of speech presupposes a willing speaker. But where a
speaker 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 range
of information so that they can freely form their own thoughts: "[m]ore
importantly, the right to receive ideas is a necessary predicate to the
recipient's meaningful exercise of his own rights of speech, press, and
political freedom." 
457 U.S. at 867
 (emphasis added). The Supreme Court
has long recognized that the freedom to receive ideas, and its relation to
the 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 subject
to the prohibitions of the Religion Clauses of the First Amendment. Those
clauses have a long, checkered, and unique history in the evolution of our
constitutional doctrine. Over the years, the courts have developed a set of
principles designed especially to enforce the prohibition against state-
established religion and to ensure the freedom of religious thought and
expression 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 Establishment
Clause); Brown v. Woodland Joint Unified Sch. Dist., 27 F.2d 1373 (9th
Cir. 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 Tree
not to violate Free Exercise or Establishment Clauses). The principles
developed for purposes of the Establishment and Free Exercise Clauses
are peculiarly suited to the particular problems they address and are not
readily 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 the
rules 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 the
Religion 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 school
practice either advanced or disapproved of a religion, school curricula
would be reduced to the lowest common denominator, permitting each
student to become a `curriculum review committee.' "); Grove, 753 F.2d
at 1543 (Canby, J., concurring) ("In short, distinctions must be drawn
between 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 the
removal of the works "from classroom discussions in which Jane Doe and
other 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 implied
exception as a feasible alternative. First, due to the practical burdens,
schools would be unlikely to choose to teach alternate works separately to
students objecting to a portion of the curriculum. Instead, they would
probably simply remove books that they believed to be educationally valu-
able, but that might be controversial, or offensive to some. Even more
important, the proposed alternative of creating a separate but equal"educational environment" for African-American students would amount
to de facto segregation that runs contrary to the dictates of Brown v. Board
of Educ. Thus, we view Monteiro's request for relief, regardless of its
asserted qualification, as calling for the removal of the challenged literary
works 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 library
and 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 exposed
to controversial ideas -- a fundamental First Amendment right. If these
films can be banned by those opposed to their ideological theme, then a
precedent 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 of
attaching civil liability to conduct that comes within First Amendment
protection. 
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 and
timidity imposed upon those who would give voice to public criticism is
an atmosphere in which the First Amendment freedoms cannot survive."
Id. at 278. The Court soon imposed the heightened proof requirement it
imposed in Sullivan in other actions that also raised First Amendment con-
cerns. See Time, Inc. v. Hill, 
385 U.S. 374
 (1967) (applying standard of
reckless or knowing falsehood to state law right-of-privacy action).
10 The difficulty of finding educational material that is not offensive to
a given group has also been recognized in the context of Free Exercise
challenges:

       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 remove
Angelou work from library). Other works by Black authors have been the
target of such efforts. See, e.g., Rebecca Sausner, Burlington Board
Removes 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 Morning
Call, September 30, 1996, at 1, available in 1996 WL 10449017 (Native
Son by Richard Wright and The Color Purple by Alice Walker); Bonnie
Henry & Roderick Gary, Students Place Language Into Historical Con-
text, Arizona Daily Star, July 21, 1995, at 1A (The Ways of White Folks
by Langston Hughes).
12 By giving these examples, we do not imply that the writings of these
authors (with the possible exception of The Merchant of Venice) have ever
given offense to the same degree as the epithet set forth in Monteiro's
amended complaint. We recognize that the term "nigger", as applied to
blacks, is uniquely provocative and demeaning and that there is probably
no word or phrase that could be directed at any other group that could
cause comparable injury. At the pleading stage, however, it would be quite
simple for a group or individual to claim that a particular term or idea is
profane, 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 teachers
in 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, could
have 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 50
years."); Keyishian v. Board of Regents of Univ. of State of New York, 385
U.S. 589, 683 (1967) (finding that freedom of expression of teachers was
a "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 closing
your 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. That
order was based upon allegations made in the original (rather than in the
amended) complaint. We instruct the district court to determine whether
class certification is appropriate under the amended complaint at the
appropriate time. the end