[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5531]
[[Page Unknown]]
[Federal Register: March 10, 1994]
BILLING CODE 4163-70-P
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Part X
Department of Education
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Racial Incidents and Harassment Against Students at Educational
Institutions; Investigative Guidance; Notice
DEPARTMENT OF EDUCATION
Racial Incidents and Harassment Against Students at Educational
Institutions; Investigative Guidance
ACTION: Notice of investigative guidance.
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SUMMARY: The Assistant Secretary for Civil Rights announces
investigative guidance, under title VI of the Civil Rights Act of 1964,
that has been provided to the Office for Civil Rights (OCR) Regional
Directors on the procedures and analysis that OCR staff will follow
when investigating issues of racial incidents and harassment against
students at educational institutions. The investigative guidance
incorporates and applies existing legal standards and clarifies OCR's
investigative approach in cases involving racial incidents and
harassment.
EFFECTIVE DATE: March 10, 1994.
FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, U.S. Department of
Education, 400 Maryland Avenue, SW., room 5036 Switzer Building,
Washington, DC 20202-1174. Telephone: (202) 205-8635. Individuals who
use a telecommunications device for the deaf (TDD) may call the TDD
number at (202) 205-9683 or 1-800-421-3481.
SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964
(title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the
basis of race, color, or national origin in any program or activity
receiving Federal financial assistance. The Department of Education
(Department) has promulgated regulations in 34 CFR part 100 to
effectuate the provisions of title VI with regard to programs and
activities receiving funding from the Department. The regulations in 34
CFR 100.7(c) provide that OCR will investigate whenever a compliance
review, report, complaint, or any other information indicates a
possible failure to comply with title VI and the Department's
implementing regulations. The Department has interpreted title VI as
prohibiting racial harassment.
The existence of racial incidents and harassment on the basis of
race, color, or national origin against students is disturbing and of
major concern to the Department. Racial harassment denies students the
right to an education free of discrimination. To enable OCR to
investigate those incidents more effectively and efficiently, a
memorandum of investigative guidance has been distributed to OCR staff.
The substance of this memorandum and the accompanying legal compendium
are being published today with this notice to apprise recipients and
students of the legal standards, rights, and responsibilities under
title VI with regard to this issue.
The guidance outlines the procedures and analysis that OCR will
follow when investigating possible violations of title VI based upon
racial incidents and harassment. The guidance relies upon current legal
standards.
Dated: March 7, 1994.
Norma V. Cantu,
Assistant Secretary for Civil Rights.
Investigative Guidance on Racial Incidents and Harassment Against
Students
This notice discusses the investigative approach and analysis that
the Office for Civil Rights (OCR) staff will follow when investigating
issues of discrimination against students based on alleged racial
incidents--including incidents involving allegations of harassment on
the basis of race--that occur at educational institutions.\1\ This
guidance is supplemented by a corresponding compendium of legal
resources for detailed legal citations and examples.
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\1\This investigative guidance is directed at conduct that
constitutes race discrimination under title VI of the Civil Rights
Act of 1964, 42 U.S.C. 2000d et seq. (title VI), and its
implementing regulations at 34 CFR Part 100, and not at the content
of speech. In cases in which verbal statements or other forms of
expression are involved, consideration will be given to any
implications of the First Amendment to the United States
Constitution. In such cases, regional staff will consult with
headquarters.
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Under title VI of the Civil Rights Act of 1964 (title VI) and its
implementing regulations, no individual may be excluded from
participation in, be denied the benefits of, or otherwise be subjected
to discrimination on the ground of race, color or national origin under
any program or activity that receives Federal funds. Racially based
conduct that has such an effect and that consists of different
treatment of students on the basis of race by recipients' agents or
employees, acting within the scope of their official duties, violates
title VI. In addition, the existence of a racially hostile environment
that is created, encouraged, accepted, tolerated or left uncorrected by
a recipient also constitutes different treatment on the basis of race
in violation of title VI. These forms of race discrimination are
discussed further below.\2\
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\2\For the sake of simplicity and clarity, the term ``race''
shall be used throughout this guidance to refer to all forms of
discrimination prohibited by title VI--i.e., race, color, and
national origin.
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Jurisdiction
In all cases, OCR must first decide whether it has jurisdiction
over claims involving racial incidents or harassment. Under the Civil
Rights Restoration Act of 1987,\3\ OCR generally has institution-wide
jurisdiction over a recipient of Federal funds.
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\3\See 42 U.S.C. 2000d-4 (1988) (amending title VI).
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If an institution receives Federal funds, title VI requirements
apply to all of the academic, athletic, and extracurricular programs of
the institution, whether conducted in facilities of the recipient or
elsewhere. Title VI covers all of the uses of property that the
recipient owns and all of the activities that the recipient sponsors.
Title VI covers all of these operations, whether the individuals
involved in a given activity are students, faculty, employees, or other
participants or outsiders.
Standard Different Treatment by Agents or Employees
As with other types of discrimination claims, OCR will first apply
a standard different treatment analysis to allegations involving racial
incidents perpetrated by representatives of recipients. Under this
analysis, a recipient violates title VI if one of its agents or
employees, acting within the scope of his or her official duties, has
treated a student differently on the basis of race, color, or national
origin in the context of an educational program or activity without a
legitimate, nondiscriminatory reason so as to interfere with or limit
the ability of the student to participate in or benefit from the
services, activities or privileges provided by the recipient.4 In
applying this standard different treatment analysis, OCR staff will
address the following questions--
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\4\Note that such incidents can constitute violations of title
VI even if they do not constitute ``harassment,'' so long as they do
constitute direct different treatment by agents or employees, as
defined in this section, that interferes with or limits the ability
of a student to participate in or benefit from the recipient's
programs or activities.
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(1) Did an official or representative (agent or employee) of a
recipient treat someone differently in a way that interfered with or
limited the ability of a student to participate in or benefit from a
program or activity of the recipient?
(2) Did the different treatment occur in the course of authorized
or assigned duties or responsibilities of the agent or employee?5
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\5\As used throughout this investigative guidance, the
determination as to whether an agent or employee of a recipient is
acting within the scope of his or her official duties or employment
must be made on a case-by-case basis, taking into account such
factors as the relationship between the parties and the time,
location and context of the alleged harassment.
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(3) Was the different treatment based on race, color, or national
origin?
(4) Did the context or circumstances of the incident provide a
legitimate, nondiscriminatory, nonpretextual basis for the different
treatment?
Where, based on the evidence obtained in the investigation,
questions 1-3 are answered ``yes'' and question 4 is answered ``no,''
OCR will conclude that there was discrimination in violation of title
VI under this standard different treatment analysis. If questions 1, 2
or 3 are answered ``no,'' or if questions 1 through 4 are answered
``yes,'' OCR will find no violation under this theory. If warranted by
the nature and scope of the allegations or evidence, OCR will proceed
to determine whether the agent's or employee's actions established or
contributed to a racially hostile environment as described below. OCR
also will conduct a ``hostile environment'' analysis where actions by
individuals other than agents or employees are involved.
Hostile Environment Analysis
A violation of title VI may also be found if a recipient has
created or is responsible for a racially hostile environment--i.e.,
harassing conduct (e.g., physical, verbal, graphic, or written) that is
sufficiently 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 a recipient. A
recipient has subjected an individual to different treatment on the
basis of race if it has effectively caused, encouraged, accepted,
tolerated or failed to correct a racially hostile environment of which
it has actual or constructive notice (as discussed below).
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
nondiscriminatory educational environment.
To establish a violation of title VI under the hostile environment
theory, OCR must find that: (1) A racially hostile environment existed;
(2) the recipient had actual or constructive notice of the racially
hostile environment; and (3) the recipient failed to respond adequately
to redress the racially hostile environment. Whether conduct
constitutes a hostile environment must be determined from the totality
of the circumstances, with particular attention paid to the factors
discussed below.
Severe, Pervasive or Persistent Standard
To determine whether a racially hostile environment exists, it must
be determined if the racial harassment is severe, pervasive or
persistent. OCR will examine the context, nature, scope, frequency,
duration, and location of racial incidents, as well as the identity,
number, and relationships of the persons involved. The harassment must
in most cases consist of more than casual or isolated racial incidents
to establish a title VI violation. Generally, the severity of the
incidents needed to establish a racially hostile environment under
title VI varies inversely with their pervasiveness or persistence.
First of all, when OCR evaluates the severity of racial harassment,
the unique setting and mission of an educational institution must be
taken into account. An educational institution has a duty to provide a
nondiscriminatory environment that is conducive to learning. In
addition to the curriculum, students learn about many different aspects
of human life and interaction from school. The type of environment that
is tolerated or encouraged by or at a school can therefore send a
particularly strong signal to, and serve as an influential lesson for,
its students.
This is especially true for younger, less mature children, who are
generally more impressionable than older students or adults. Thus, an
incident that might not be considered extremely harmful to an older
student might nevertheless be found severe and harmful to a younger
student. For example, 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 have on an adult. Particularly for young children in their
formative years of development, therefore, the severe, pervasive or
persistent standard must be understood in light of the age and
impressionability of the students involved and with the special nature
and purposes of the educational setting in mind.
As with other forms of harassment, OCR must take into account the
relevant particularized characteristics and circumstances of the
victim--especially the victim's race and age--when evaluating the
severity of racial incidents at an educational institution. If OCR
determines that the harassment was sufficiently severe that it would
have adversely affected the enjoyment of some aspect of the recipient's
educational program by a reasonable person, of the same age and race as
the victim, under similar circumstances, OCR will find that a hostile
environment existed. The perspective of a person of the same race as
the victim is necessary because race is the immutable characteristic
upon which the harassment is based. The reasonable person standard as
applied to a child must incorporate the age, intelligence and
experience of a person under like circumstances to take into account
the developmental differences in maturity and perception due to age.
To determine severity, the nature of the incidents must also be
considered. Evidence may reflect whether the conduct was verbal or
physical and the extent of hostility characteristic of the incident. In
some cases, a racially hostile environment requiring appropriate
responsive action may result from a single incident that is
sufficiently severe. Such incidents may include, for example, injury to
persons or property or conduct threatening injury to persons or
property.
The size of the recipient and the location of the incidents also
will be important. Less severe or fewer incidents may more readily
create racial hostility in a smaller environment, such as an elementary
school, than in a larger environment, such as a college campus. The
effect of a racial incident in the private and personal environment of
an individual's dormitory room may differ from the effect of the same
incident in a student center or dormitory lounge.
The identity, number, and relationships of the individuals involved
will also be considered on a case-by-case basis. For example, racially
based conduct by a teacher, even an ``off-duty'' teacher, may have a
greater impact on a student than the same conduct by a school
maintenance worker or another student. The effect of conduct may be
greater if perpetrated by a group of students rather than by an
individual student.
In determining whether a hostile environment exists, OCR
investigators will also be alert to the possible existence at the
recipient institution of racial incidents other than those alleged in
the complaint and will obtain evidence about them to determine whether
they contributed to a racially hostile environment or corroborate the
allegations.
Finally, racial acts need not be targeted at the complainant in
order to create a racially hostile environment. The acts may be
directed at anyone. The harassment need not be based on the ground of
the victim's or complainant's race, so long as it is racially motivated
(e.g., it might be based on the race of a friend or associate of the
victim). Additionally, the harassment need not result in tangible
injury or detriment to the victims of the harassment.
If OCR finds that a hostile environment existed under these
standards, then it will proceed to determine whether the recipient
received notice of the harassment, and whether the recipient took
reasonable steps to respond to the harassment.
Notice
Though the recipient may not be responsible directly for all
harassing conduct, the recipient does have a responsibility to provide
a nondiscriminatory educational environment. If discriminatory conduct
causes a racially hostile environment to develop that affects the
enjoyment of the educational program for the student(s) being harassed,
and if the recipient has actual or constructive notice of the hostile
environment, the recipient is required to take appropriate responsive
action. This is the case regardless of the identity of the person(s)
committing the harassment--a teacher, a student, the grounds crew, a
cafeteria worker, neighborhood teenagers, a visiting baseball team, a
guest speaker, parents, or others. This is also true regardless of how
the recipient received notice. So long as an agent or responsible
employee of the recipient received notice, that notice will be imputed
to the recipient.
A recipient can receive notice in many different ways. For example,
a student may have filed a grievance or complained to a teacher about
fellow students racially harassing him or her. A student, parent, or
other individual may have contacted other appropriate personnel, such
as a principal, campus security, an affirmative action officer, or
staff in the office of student affairs. An agent or responsible
employee of the institution may have witnessed the harassment. The
recipient may have received notice in an indirect manner, from sources
such as a member of the school staff, a member of the educational or
local community, or the media. The recipient also may have received
notice from flyers about the incident(s) posted around the school.
In cases where the recipient did not have actual notice, the
recipient may have had constructive notice. A recipient is charged with
constructive notice of a hostile environment if, upon reasonably
diligent inquiry in the exercise of reasonable care, it should have
known of the discrimination. In other words, if the recipient could
have found out about the harassment had it made a proper inquiry, and
if the recipient should have made such an inquiry, knowledge of the
harassment will be imputed to the recipient. A recipient also may be
charged with constructive notice if it has notice of some, but not all,
of the incidents involved in a particular complaint.
In some cases, the pervasiveness, persistence, or severity of the
racial harassment may be enough to infer that the recipient had notice
of the hostile environment (e.g., a racially motivated assault on a
group of students). A finding that a recipient had constructive notice
of a hostile environment meets the notice requirement of the analysis.
If the alleged harasser is an agent or employee of a recipient,
acting within the scope of his or her official duties (i.e., such that
the individual has actual or apparent authority over the students
involved), then the individual will be considered to be acting in an
agency capacity and the recipient will be deemed to have constructive
notice of the harassment. If the recipient does not have a policy that
prohibits the conduct of racial harassment, or does not have an
accessible procedure by which victims of harassment can make their
complaints known to appropriate officials, agency capacity--and thus
constructive notice--is established.
The existence of both a policy and grievance procedure applicable
to racial harassment (depending upon their scope, accessibility and
clarity, and upon the acts of harassment) is relevant in the
determination of agency capacity. A policy or grievance procedure
applicable to harassment must be clear in the types of conduct
prohibited in order for students to know and understand their rights
and responsibilities. As discussed above, in the education context, the
person from whose perspective the apparent authority of an agent or
employee of a recipient must be evaluated is a reasonable student of
the same age, intelligence and experience as the alleged victim of the
harassment.
Finally, in order to find that the recipient had a duty to respond
to notice of a racially hostile environment, OCR must examine the facts
and circumstances to establish that the recipient knew or should have
known that the conduct was of a racial nature or had sufficient
information to conclude that it may have been racially based. OCR will
consider whether the incident involved explicitly racial conduct or
whether the circumstances indicate that, through symbols or other
persuasive factors, the recipient should have recognized that the
conduct was in fact, or was reasonably likely to have been, racial
(e.g., the hanging of nooses, random violence against minorities,
etc.).
Recipient's Response
Once a recipient has notice of a racially hostile environment, the
recipient has a legal duty to take reasonable steps to eliminate
it.6 Thus, if OCR finds that the recipient took responsive action,
OCR will evaluate the appropriateness of the responsive action by
examining reasonableness, timeliness, and effectiveness. The
appropriate response to a racially hostile environment must be tailored
to redress fully the specific problems experienced at the institution
as a result of the harassment. In addition, the responsive action must
be reasonably calculated to prevent recurrence and ensure that
participants are not restricted in their participation or benefits as a
result of a racially hostile environment created by students or
nonemployees.
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\6\Of course, a recipient can and should investigate and respond
to individual racial incidents if and as they arise--regardless of
whether any particular incident is severe enough by itself to
establish a racially hostile environment under Title VI. By doing so
in a timely and thorough manner, the recipient might prevent the
development of a racially hostile environment.
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In evaluating a recipient's response to a racially hostile
environment, OCR will examine disciplinary policies, grievance
policies, and any applicable anti-harassment policies.7 OCR also
will determine whether the responsive action was consistent with any
established institutional policies or with responsive action taken with
respect to similar incidents.
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\7\Of course, OCR cannot endorse or prescribe speech or conduct
codes or other campus policies to the extent that they violate the
First Amendment to the United States Constitution.
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Examples of possible elements of appropriate responsive action
include imposition of disciplinary measures, development and
dissemination of a policy prohibiting racial harassment, provision of
grievance or complaint procedures, implementation of racial awareness
training, and provision of counseling for the victims of racial
harassment.
Conclusion
OCR will investigate allegations of racial incidents where the
incidents fall within its jurisdiction. Based on the facts and
circumstances of each case, OCR will use either or both the standard
different treatment analysis and the hostile environment analysis to
determine whether title VI has been violated.
If OCR determines that an agent or employee, acting within the
scope of his or her employment, treated someone differently on the
basis of race, color, or national origin without a legitimate,
nondiscriminatory reason for the treatment (i.e., direct different
treatment), then OCR will conclude that Title VI was violated. If OCR
determines that a racially hostile environment exists at a recipient,
the recipient had notice of it, and the recipient failed to take
adequate action in response to the hostile environment, OCR will also
find a violation. If OCR determines that a hostile environment was not
established, or that a hostile environment was established but that the
recipient either (1) did not have notice of it; or (2) had notice of it
and took adequate action in response, OCR will find no violation.
Appendix--Racial Incidents and Harassment Against Students--Compendium
of Legal Resources
This compendium provides an outline summarizing key legal resources
(including statutes, regulations, cases, and letters of findings) to
serve as a reference for the Office for Civil Rights (OCR) staff in
investigating possible discrimination against students based on racial
incidents--including incidents involving allegations of harassment on
the basis of race--that occur at educational institutions. It is
intended to be used in conjunction with the investigative guidance on
racial incidents and harassment, and follows the same general outline
as that guidance.1
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\1\The investigation guidance is directed at conduct that
constitutes race discrimination under Title VI of the Civil Rights
Act of 1964, 42 U.S.C. Sec. 2000d et seq., (Title VI), and not at
the content of speech. In cases in which verbal statements or other
forms of expression are involved, consideration will be given to any
implication of the First Amendment to the United States
Constitution. In such cases, regional staff will consult with
headquarters.
The term ``race'' shall be used throughout this compendium to
refer to all forms of discrimination prohibited by Title VI--i.e.,
race, color, and national origin.
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The investigation and analysis of cases under title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, (title VI) relies, to a large
extent, on case law developed under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e, which prohibits discrimination on the basis
of race, color, national origin, sex, and religion in employment.2
See Dillon County District No. 1 and South Carolina State Department of
Education, No. 84-VI-16 (Civil Rights Reviewing Auth. 1987); United
States v. LULAC, 793 F.2d 636, 648-49 (5th Cir. 1986); Georgia State
Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th
Cir. 1985); and NAACP v. Medical Center, Inc., 657 F.2d 1322 (3d Cir.
1981). See also, generally, EEOC Revised Enforcement Guidance on Recent
Developments in Disparate Treatment Theory, No. N-915.002 (July 14,
1992).3
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\2\Note that in addition to racial incidents/harassment cases,
many sexual harassment cases are cited throughout this compendium--
because the legal standards and theories applicable to these two
different types of discrimination are similar. See Drinkwater v.
Union Carbide Corp., 904 F.2d 853, 859-60 (3d Cir. 1990) (both
racial and sexual harassment are actionable based on right to
nondiscriminatory environment).
\3\Of course, OCR will consider the differences between the
contexts of employment and education.
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I. Jurisdiction
OCR must first decide whether it has jurisdiction over a claim
involving racial incidents or harassment. OCR has jurisdiction if the
complaint alleges that the racially based conduct occurred in the
context of an operation of an elementary, secondary, or postsecondary
school or institution, or other entity that is a recipient of Federal
funds.
A. Title VI Prohibits Race Discrimination in Federally Funded Programs
and Activities
Title VI prohibits race discrimination in programs and activities
that receive Federal financial assistance. See also 34 CFR part 100
(regulations effectuating provisions of title VI).
B. OCR Has Institution-Wide Jurisdiction
Under the Civil Rights Restoration Act of 1987,4 OCR generally
has institution-wide jurisdiction over a recipient of Federal
funds.5
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\4\See 42 U.S.C. 2000d-4 (1988) (the section which amends Title
VI).
\5\Note, however, that the Waggoner Amendment, 20 U.S.C.
1144(b), prohibits Federal agencies from directing or controlling
the membership activities or internal operations of privately funded
fraternities and sororities whose facilities are not owned by the
recipient. This provision does not bar OCR from regulating
recipients with respect to other activities of these groups.
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C. Allegation Must Relate to an ``Operation'' of Recipient
Discrimination must be alleged in an ``operation'' of a recipient.
See 42 U.S.C. 2000d-4a.
D. Specific Discriminatory Actions Prohibited
The regulations implementing Title VI include provisions
prohibiting discrimination based on race in terms of:
(1) Services: Provision of services or other benefits. 34 CFR
100.3(b)(1)(iii).
(2) Privileges: Restriction of an individual's enjoyment of an
advantage or privilege enjoyed by others. 34 CFR 100.3(b)(1)(iv).
(3) Participation: Opportunities to participate. 34 CFR
100.3(b)(1)(vi).
The regulations also include a general, catchall provision
prohibiting race discrimination. See 34 CFR 100.3(b)(5).
II. Standard Different Treatment by Agents or Employees
As with other claims of race discrimination under Title VI, OCR
should first apply a standard different (disparate) treatment analysis
to allegations involving racial incidents perpetrated by
representatives of recipients. In doing so, OCR must determine whether
a student was treated differently than other students on the basis of
race without a legitimate, nondiscriminatory, nonpretextual reason.
The basic elements of a different treatment case were set out by
the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973) (focusing on indirect evidence of such treatment), a Title
VII employment case. See also United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711 (1983); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981).
A. Prima Facie Case
(1) Identify the racial group to which the complainant belongs for
purposes of differential treatment analysis.
(2) Determine whether the complainant was treated differently than
similarly situated members of other racial groups with regard to a
service, benefit, privilege, etc., from the recipient. See, e.g.,
University of Pittsburgh, OCR Case No. 03-89-2035 (campus police
treated black students more severely than white students); Roosevelt
Warm Springs Institute for Rehabilitation, OCR Case No. 04-89-3003
(similar).
B. Rebuttal of Prima Facie Case by Showing Legitimate,
Nondiscriminatory Reason for Treatment
After a prima facie case of race discrimination has been
established against the recipient, OCR must then determine whether the
recipient had a legitimate, nondiscriminatory reason for its action(s)
which would rebut the prima facie case against it.
C. Recipient's Rebuttal Overcome With Showing of Pretext
If the prima facie case of discrimination is rebutted, OCR must
next determine whether the recipient's asserted reason for its
action(s) is a mere pretext for discrimination. Ultimately, however,
the weight of the evidence must convince OCR that actual discrimination
occurred. See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993)
(under title VII disparate treatment analysis, ultimate burden of
persuasion regarding intentional discrimination remains at all times
with plaintiff).
III. Hostile Environment Analysis
A violation of Title VI may be found if racial harassment is
severe, pervasive, or persistent so as to constitute a hostile or
abusive educational environment. See Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986) (sets similar standard for sexual harassment under
title VII) (relying on Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.
1971) (race discrimination can consist of an ``environment heavily
charged with ethnic or racial discrimination''), cert. denied, 406 U.S.
957 (1972)); Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993)
(reiterating Meritor standard). Accord, Hicks v. Gates Rubber Co., 833
F.2d 1406, 1412 (10th Cir. 1987); Snell v. Suffolk County, 782 F.2d
1094, 1102 (2d Cir. 1986); Gray v. Greyhound Lines, East, 545 F.2d 169,
176 (D.C. Cir. 1976) (noting with approval that EEOC has consistently
held that title VII gives employee right to ```a working environment
free of racial intimidation'''). See also, e.g., Defiance College, OCR
Case No. 05-90-2024 (violation where college was aware of ``repeated''
and ``patently offensive'' verbal and physical racial harassment
committed by students).
Whether conduct constitutes a hostile environment must be
determined from the totality of the circumstances. See Harris v.
Forklift Systems, Inc., 114 S.Ct. 367 (1993) (under title VII, factors
to consider may include frequency and severity of discriminatory
conduct, whether it is physically threatening or humiliating or merely
offensive, and whether it interferes with work performance;
psychological harm is not required but may be taken into account like
any other relevant factor); Johnson v. Bunny Bread, 646 F.2d 1250, 1257
(8th Cir. 1981) (court examined nature, frequency, and content of
racial harassment, as well as identities of perpetrators and victims).
See also Snell, 782 F.2d at 1103 (citing Henson v. City of Dundee, 682
F.2d 897, 904 (11th Cir. 1982)) (same standard for sexual harassment).
A. Harassment Must Be Severe, Pervasive or Persistent
1. Pervasive or Persistent
Where the harassment is not sufficiently severe, it must consist of
more than casual or isolated racial incidents to create a racially
hostile environment. Compare Trenton Junior College, OCR Case No. 07-
87-6006 (title VI violated where college failed to provide adequate
security for black basketball players who were subjected to a break-in,
cross-burning, and placement of raccoon skins at their campus
residences) with University of California, Santa Cruz, OCR Case No. 09-
91-6002 (no finding of racial harassment where OCR found only isolated
individual incidents over three-year period). See also, e.g., Snell,
782 F.2d at 1103 (``To establish a hostile atmosphere, * * * plaintiffs
must prove more than a few isolated incidents of racial enmity * * *.
Casual comments, or accidental or sporadic conversation, will not
trigger equitable relief''); Gates Rubber Co., 833 F.2d 1406; Powell v.
Missouri State Highway and Transportation Department, 822 F.2d 798 (8th
Cir. 1986); Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986);
Henson, 682 F.2d at 904 (quoting Rogers, 454 F.2d at 238).
OCR and Federal courts have found a hostile environment where there
was a pattern or practice of harassment, or where the harassment was
sustained and nontrivial. See, e.g., Wapato School District No. 207,
OCR Case No. 10-82-1039 (Title VI violated where teacher repeatedly
treated minority students in racially derogatory manner). Compare
Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982) (hostile
environment where use of derogatory terms was ``repeated, continuous,
and prolonged'') with Gilbert v. City of Little Rock, 722 F.2d 1390
(8th Cir. 1983) (hostile environment not created by isolated and
allegedly unrelated racial slurs), cert. denied, 466 U.S. 972 (1984).
2. Severe
The severity of individual incidents must also be considered. See,
e.g., Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d
1503, 1510-11 (11th Cir. 1989) (determination whether conduct is
``severe and pervasive'' does not turn solely on number of incidents;
fact-finder must examine gravity as well as frequency) (decided under
42 U.S.C. 1981); Carrero v. New York City Housing Authority, 890 F.2d
569, 578 (2d Cir. 1989) (``It is not how long the * * * obnoxious
course of conduct lasts. The offensiveness of the individual actions *
* * is also a factor to be considered.'').
Generally, the severity of the incidents needed to establish a
racially hostile environment varies inversely with their pervasiveness
or persistence. See EEOC Policy Guidance on Current Issues of Sexual
Harassment, No. N-915.050 (Mar. 19, 1990) (``the more severe the
harassment, the less need to show a repetitive series of incidents'').
a. Special mission and duties of educational institutions. The
unique setting and mission of an educational institution must be taken
into account when OCR evaluates the severity of racial harassment under
title VI. School officials have a duty to provide a nondiscriminatory
environment conducive to learning. See generally 34 CFR part 100
(regulations prohibiting any form of race discrimination which
interferes with educational programs or activities under title VI).
b. Characteristics and circumstances of victim--especially race and
age. OCR must take into account the characteristics and circumstances
of the victim on a case-by-case basis--particularly the victim's race
and age--when evaluating the severity of racial incidents at an
educational institution. See Harris v. International Paper Co., 765 F.
Supp. 1509, 1515-16 (D. Me. 1991) (the appropriate standard to apply in
a ``hostile environment racial harassment case is that of a `reasonable
black person'''). See also, e.g., Ellison v. Brady, 924 F.2d 872 (9th
Cir. 1991) (discussing differences in perspectives of men and women
toward sexual harassment, and need to examine harassment from
perspective of reasonable victim with characteristic upon which
harassment was based).
The reasonable person standard as applied to children is ``that of
a reasonable person of like age, intelligence, and experience under
like circumstances.'' Restatement (2d), Torts, Section 283A (1965)
(Comment b: ``The special standard to be applied in the case of
children arises out of the public interest in their welfare and
protection * * * ''). See also, e.g., Honeycutt v. City of Wichita, 247
Kan. 250, 796 P.2d 549 (Kan. 1990) (adopting Restatement standard);
Standard v. Shine, 278 S.C. 337, 295 S.E.2d 786 (S.C. 1982) (same);
Camerlinck v. Thomas, 209 Neb. 843, 312 N.W.2d 260 (Neb. 1981) (same).
c. Nature of incident. The nature of the incident(s) should also be
considered. See, e.g., Vance v. Southern Bell Telephone and Telegraph
Co., 863 F.2d at 1506-10 (hostile environment created where noose was
hung twice at employee's workstation); Watts v. New York City Police
Department, 724 F. Supp. 99, 105 (S.D.N.Y. 1989) (same, based on two
sexual assaults).
A single incident that is sufficiently severe may establish a
racially hostile environment. See EEOC Policy Guidance on Current
Issues of Sexual Harassment, No. N-915.050 (Mar. 19, 1990) and cases
cited therein; Barrett v. Omaha National Bank, 584 F. Supp. 22 (D. Neb.
1983), aff'd, 726 F.2d 424 (8th Cir. 1984) (sexually hostile
environment established by sexual assault).
d. Size of recipient and location of incidents. The size of the
recipient and the location of the incidents also may be important.
e. Identity of individuals involved. The identity, number, and
relationships of the individuals involved will also be considered on a
case-by-case basis. See, e.g., Wapato School District No. 207, OCR Case
No. 10-82-1039 (racial harassment of students by teacher was
particularly opprobrious).
f. Other incidents at the recipient. OCR will also consider other
racial incidents at the institution. See, e.g., Midwest City-Del City
Public Schools, OCR Case No. 06-92-1012 (finding of racially hostile
environment based in part on several racial incidents at school which
occurred shortly before incidents in complaint).
g. Harassment need not be directed specifically at complainant or
tangibly harm complainant or victim. The regulations implementing Title
VI provide that a complaint may be filed by ``[a]ny person who believes
himself or any specific class of individuals to be subjected to
discrimination prohibited by this part.'' 34 CFR 100.7(b). Thus, in
hostile environment cases, the harassment need not be targeted
specifically at the individual complainant. See Waltman v.
International Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (all sexual
graffiti in office, not just that directed at plaintiff, was relevant
to plaintiff's claim); Hall v. Gus Construction Co., 842 F.2d 1010,
1015 (8th Cir. 1988) (evidence of sexual harassment directed at others
is relevant to show hostile environment); Gates Rubber Co., 833 F.2d at
1415 (``one of the critical inquiries in a hostile environment claim
must be the environment'' as a whole) (emphasis in original); Walker v.
Ford Motor Co., 684 F.2d 1355, 1358-59 (11th Cir. 1982) hostile
environment established where racial harassment made plaintiff ``feel
unwanted and uncomfortable in his surroundings,'' even though it was
not directed at him).
The harassment need not be based on the ground of the complainant's
or victim's race, so long as it is racially motivated. See, e.g.,
Center Grove Community School, OCR Case No. 15-91-1168 (title VI
violated where white girl was forced to withdraw from all-white school,
as result of harassment by classmates which included note criticizing
her association with black student at another school).
To establish a hostile environment, harassment need not result in a
tangible injury or detriment to the complainant or the victim of the
harassment. Vinson, 477 U.S. at 64. See also, e.g., Harris v. Forklift
Systems, Inc., 114 S.Ct. at 371 (under title VII several factors are
considered including whether behaviors interfere with work performance;
psychological harm is not required but may be taken into account like
any other relevant factor); Gilbert, 722 F.2d at 1394 (environment
``which significantly and adversely affects the psychological well-
being of an employee because of his or her race'' is enough to
constitute title VII violation); Bundy v. Jackson, 641 F.2d 934, 943-45
(D.C. Cir. 1981) (protection against race and sex discrimination
extends to ``psychological and emotional work environment'').
B. Notice
A recipient has a duty to provide a nondiscriminatory educational
environment, but it must somehow receive notice of racial harassment in
order to be found responsible for it. See Vinson, 477 U.S. at 72; see
also Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir.
1989); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.
1988).
1. Actual Notice
A recipient may be found liable for racial harassment if it has
actual knowledge of the racially offensive behavior or actions. See,
e.g., Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986)
(liability exists if management-level employees were aware of barrage
of offensive conduct); Katz v. Dole, 709 F.2d 251 (4th Cir. 1983)
(actual knowledge where victim complains of harassment to appropriate
authorities); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.
1982).
2. Constructive Notice
A recipient may be found liable where it reasonably should have
known of the harassment--e.g., because the harassment was so pervasive
that its awareness may be inferred. See Paroline v. Unisys Corp., 879
F.2d 100 (4th Cir. 1989) (liability may be imputed where employer knew
or should have known about prior conduct of harasser toward other
women), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990);
Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) (constructive notice
where employee harassed women on a daily basis); Waltman, 875 F.2d 468
(possibility of constructive notice where sexual graffiti existed in
numerous locations); Vance v. Southern Bell Telephone and Telegraph
Co., 863 F.2d at 1510-11; Swentek v. USAir, Inc., 830 F.2d 552 (4th
Cir. 1987).
If the alleged harasser is an agent or employee of a recipient,
acting within the scope of his or her official duties (i.e., such that
the individual has actual or apparent authority over the students
involved), then the individual will be considered to be acting in an
agency capacity and the recipient will be deemed to have constructive
notice of the harassment. See, e.g., Kauffman v. Allied Signal, Inc.,
Autolite Division, 970 F.2d 178 (6th Cir.) (``scope of employment''
standard for holding employers liable for supervisory harassment is
based on traditional agency principles, such as when and where
harassment took place, and whether it was foreseeable), cert. denied,
113 S.Ct. 831 (1992). See also EEOC Policy Guidance on Current Issues
of Sexual Harassment, N-915.050 (Mar. 19, 1990) (apparent authority
exists where third parties reasonably believe that actions of
supervisor represent exercise of authority possessed by virtue of
employer's conduct).\6\
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\6\As discussed supra, in the education context, the person from
whose perspective the apparent authority of an agent or employee of
a recipient must be evaluated is a reasonable student of the same
age, intelligence and experience as the alleged victim of the
harassment.
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In evaluating whether constructive notice should be imputed to a
recipient, the availability, coverage and public dissemination of
antidiscrimination policies and grievance procedures for students will
be considered in determining whether the recipient has made a
sufficient effort to become aware of racial incidents if and when they
occur. See Meritor Savings Bank, 477 U.S. at 72-73 (existence of
uninvoked grievance procedures and policies against discrimination is
relevant to issue of employer liability for sexual harassment, but not
dispositive).
C. Recipient's Response
1. Duty to Take Reasonable Steps to End Harassment
Once a recipient has notice of a racially hostile environment, it
has a duty to take reasonable steps to eliminate it. If it fails to
respond adequately to the hostile environment, then the recipient may
be found to have violated title VI. See, e.g., California State
University, Chico, OCR Case No. 09-89-2106 (inadequate response to
racial harassment where university had no written grievance procedure
and failed to interview most of the individuals involved); Township
High School District No. 214, OCR Case No. 05-82-1097 (OCR found
violation where school district failed to take adequate steps to
correct repeated racial harassment by students, of which employees were
aware). See also, e.g., Snell v. Suffolk County, 782 F.2d 1094 (2d Cir.
1986) (responsibility depends on gravity of harm, nature of work
environment, and resources available); Hall v. Gus Construction Co.,
Inc., 842 F.2d 1010 (8th Cir. 1988) (employer will be liable for
failing to discover what is going on and to take remedial steps when
actions are so numerous, egregious, and concentrated as to add up to
campaign of harassment); Paroline, 879 F.2d 100 (4th Cir. 1989); Henson
v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982).
2. Response or Remedy Should Redress Actual Problems
The appropriate response or remedy for a hostile environment should
be tailored to redress the specific problems experienced at the
institution. See, e.g., Trenton Junior College, OCR Case No. 07-87-6006
(region developed remedial plan with college that included staff
training on racial harassment, payment of compensation to harassed
students and individuals who assisted the students in arranging for
their safety, implementation of special efforts--including financial
aid--to recruit black students, and development of plan for handling
future harassment complaints).
3. Response Must Reasonably Attempt to Prevent Recurrence
The responsive action taken by a recipient must be reasonably
calculated to prevent recurrence and ensure that individuals are not
restricted in their participation or benefits as a result of a racially
hostile environment created by students or non-employees. See, e.g.,
Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989) (response must
be reasonably calculated to prevent further harassment under particular
facts and circumstances of case at time allegations are made; courts
should not focus solely on whether remedial activity ultimately
succeeded, but should determine whether total response was reasonable);
Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir. 1989)
(response must be reasonably calculated to halt harassment); Bundy v.
Jackson, 641 F.2d 934 (D.C. Cir. 1981) (employer liable where
supervisor had full notice of harassment and did nothing to stop or
investigate practice; employer must take all necessary steps to
investigate and correct harassment--including warnings, appropriate
discipline, and other means of preventing harassment).
[FR Doc. 94-5531 Filed 3-9-94; 8:45 am]
BILLING CODE 4000-01-P
