Legal Commentary

Racial Harassment Lawsuit Based on Teacher?s Reading Out Loud a Book About Slavery That Contained the Word ?Nigger?

By Eugene Volokh

The Detroit News reports:

The family of a former Warren Consolidated Schools fifth-grader is suing the district, claiming the African-American girl was the victim of racial discrimination when excerpts from a book about slavery [?From Slave Ship to Freedom Road? by Julius Lester] containing ?outrageous statements? ? including the N-word ? were read aloud in class.... [The passages that were read included]: ?Step right up! New shipment of n??s just in.? And, ?Nine months after you buy one of these n??s, you will have a plantation full of n?-r babies,? according to the lawsuit.

Novi-based attorney Scott E. Combs, who is representing the family, says the incident violates Michigan?s Elliott-Larsen Civil Rights Act, which bars employers ? and schools ? from discriminating on the basis of factors such as religion, color, age, height and weight. The family is seeking damages exceeding $25,000.

Note that the Act applies to private schools as well as to public schools; as applied to education, it is not just the government?s attempt to control what is taught in its own schools.

I doubt that the lawsuit will succeed, since I suspect that Michigan courts will not find the material to be ?severe or pervasive? enough to create a racially offensive educational environment for the plaintiff and for a reasonable person. This would be especially so if they required the environment to be ?severe and pervasive? enough to be actionable (an emerging rule used in some recent educational harassment cases, though workplace harassment cases generally require only that the speech or conduct be ?severe or pervasive?). But it?s hard to tell for sure, given the vagueness of the terms ?severe,? ?pervasive,? and ?racially offensive educational environment? (even when limited to what a ?reasonable person? would find to be such an environment).

Full post as published by The Volokh Conspiracy on November 11, 2010 (boomark / email).