Racial Incidents and Harassment Against Students (2022)

[OCR-000015]

Federal Register / Vol. 59, No. 47 / Thursday, March 10, 1994 / Notice

DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS

RACIAL INCIDENTS AND HARASSMENT
AGAINST STUDENTS AT EDUCATIONAL
INSTITUTIONS; INVESTIGATIVE GUIDANCE

ACTION: Notice of investigative guidance.

SUMMARY: The Assistant Secretary for Civil Rights announcesinvestigative guidance, under title VI of the Civil Rights Act of1964, that has been provided to the Office for Civil Rights (OCR)Regional Directors on the procedures and analysis that OCR staffwill follow when investigating issues of racial incidents andharassment against students at educational institutions. Theinvestigative guidance incorporates and applies existing legalstandards and clarifies OCR's investigative approach in casesinvolving racial incidents and harassment.

EFFECTIVE DATE: March 10,1994.

FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, U.S. Departmentof Education, 400 Maryland Avenue, SW., Room 5036 SwitzerBuilding, 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 1-800421-3481.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of1964 (title VI), 42 U.S.C.2000d et seq., prohibits discriminationon the basis of race, color, or national origin in any program oractivity receiving Federal financial assistance. The Departmentof Education (Department) has promulgated regulations in 34 CFRpart 100 to effectuate the provisions of title VI with regard toprograms and activities receiving funding from the Department.The regulations in 34 CFR 100.7(c) provide that OCR willinvestigate whenever a compliance review, report, complaint, orany other information indicates a possible failure to comply withtitle VI and the Department's implementing regulations. TheDepartment has interpreted title VI as prohibiting racialharassment.

The existence of racial incidents and harassment on thebasis of race, color, or national origin against students isdisturbing and of major concern to the Department. Racialharassment denies students the right to an education free ofdiscrimination. To enable OCR to investigate those incidents moreeffectively and efficiently, a memorandum of investigativeguidance has been distributed to OCR staff. The substance of thismemorandum and the accompanying legal compendium are beingpublished today with this notice to apprise recipients andstudents of the legal standards, rights, and responsibilitiesunder title VI with regard to this issue.

The guidance outlines the procedures and analysis that OCRwill follow when investigating possible violations of title VIbased upon racial incidents and harassment. The guidance reliesupon current legal standards.

Dated: March 7,1994.

Norma V. Cantu,
Assistant Secretary for Civil Rights.

Investigative Guidance on Racial Incidents and Harassment AgainstStudents

This notice discusses the investigative approach andanalysis that the Office for Civil Rights (OCR) staff will followwhen investigating issues of discrimination against studentsbased on alleged racial incidents including incidents involvingallegations of harassment on the basis of race that occur ateducational institutions. This guidance is supplemented by acorresponding compendium of legal resources for detailed legalcitations and examples.

Under title VI of the Civil Rights Act of 1964 (title VI)and its implementing regulations, no individual may be excludedfrom participation in, be denied the benefits of, or otherwise besubjected to discrimination on the ground of race, color ornational origin under any program or activity that receivesFederal funds. Racially based conduct that has such an effect andthat consists of different treatment of students on the basis ofrace by recipients' agents or employees, acting within the scopeof their official duties, violates title VI. In addition, theexistence of a racially hostile environment that is created,encouraged, accepted, tolerated or left uncorrected by arecipient also constitutes different treatment on the basis ofrace in violation of title VI. These forms of race discriminationare discussed further below.

Jurisdiction

In all cases, OCR must first decide whether it hasjurisdiction over claims involving racial incidents orharassment. Under the Civil Rights Restoration Act of 1987, OCRgenerally has institution-wide jurisdiction over a recipient ofFederal funds.

If an institution receives Federal funds, title VIrequirements apply to all of the academic, athletic, andextracurricular programs of the institution, whether conducted infacilities of the recipient or elsewhere. Title VI covers all ofthe uses of property that the recipient owns and all of theactivities that the recipient sponsors. Title VI covers all ofthese operations, whether the individuals involved in a givenactivity are students, faculty, employees, or other participantsor outsiders.

Standard Different Treatment by Agents or Employees

As with other types of discrimination claims, OCR will firstapply a standard different treatment analysis to allegationsinvolving racial incidents perpetrated by representatives ofrecipients. Under this analysis, a recipient violates title VI ifone of its agents or employees, acting within the scope of his orher official duties, has treated a student differently on thebasis of race, color, or national origin in the context of aneducational program or activity without a legitimate,nondiscriminatory reason so as to interfere with or limit theability of the student to participate in or benefit from theservices, activities or privileges provided by the recipient. Inapplying this standard different treatment analysis, OCR staffwill address the following questions

  1. Did an official or representative (agent or employee) ofa recipient treat someone differently in a way that interferedwith or limited the ability of a student to participate in orbenefit from a program or activity of the recipient?
  2. Did the different treatment occur in the course ofauthorized or assigned duties or responsibilities of the agent oremployee?
  3. Was the different treatment based on race color, ornational origin?
  4. Did the context or circumstances of the incident providea legitimate, non-discriminatory, non-pretextual basis for thedifferent 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 oftitle VI under this standard different treatment analysis. Ifquestions 1,2 or 3 are answered "no," or if questions 1 through 4are answered "yes," OCR will find no violation under this theory.If warranted by the nature and scope of the allegations orevidence, OCR will proceed to determine whether the agent's oremployee's actions established or contributed to a raciallyhostile environment as described below. OCR also will conduct a"hostile environment" analysis where actions by individuals otherthan agents or employees are involved.

Hostile Environment Analysis

A violation of title VI may also be found if a recipient hascreated or is responsible for a racially hostileenvironment i.e., harassing conduct (e.g., physical, verbal,graphic, or written) that is sufficiently severe, pervasive orpersistent so as to interfere with or limit the ability of anindividual to participate in or benefit from the services,activities or privileges provided by a recipient. A recipient hassubjected an individual to different treatment on the basis ofrace if it has effectively caused, encouraged accepted, toleratedor failed to correct a racially hostile environment of which ithas actual or constructive notice (as discussed below).

Under this analysis, an alleged harasser need not be anagent or employee of the recipient, because this theory ofliability under title VI is premised on a recipient's generalduty to provide a nondiscriminatory educational environment.

To establish a violation of title VI under the hostileenvironment theory, OCR must find that: (1) A racially hostileenvironment existed; (2) the recipient had actual or constructivenotice of the racially hostile environment; and (3) the recipientfailed to respond adequately to redress the racially hostileenvironment. Whether conduct constitutes a hostile environmentmust be determined from the totality of the circumstances, withparticular 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, aswell as the identity, number, and relationships of the personsinvolved. The harassment must in most cases consist of more thancasual or isolated racial incidents to establish a title VIviolation. Generally, the severity of the incidents needed toestablish a racially hostile environment under title V variesinversely with their pervasiveness or persistence.

First of all, when OCR evaluates the severity of racialharassment, the unique setting and mission of an educationalinstitution must be taken into account. An educationalinstitution has a duty to provide a nondiscriminatory environmentthat is conducive to learning. In addition to the curriculum,students learn about many different aspects of human life andinteraction from school. The type of environment that istolerated or encouraged by or at a school can therefore send aparticularly strong signal to, and serve as an influential lessonfor, its students.

This is especially true for younger, less mature children,who are generally more impressionable than older students oradults. Thus, an incident that might not be considered extremelyharmful to an older student might nevertheless be found severeand harmful to a younger student. For example, verbal harassmentof a young child by fellow students that is tolerated or condonedin any way by adult authority figures is likely to have a fargreater impact than similar behavior would have on an adult.Particularly for young children in their formative years ofdevelopment, therefore, the severe, pervasive or persistentstandard must be understood in light of the age andimpressionability of the students involved and with the specialnature and purposes of the educational setting in mind

As with other forms of harassment, OCR must take intoaccount the relevant particularized characteristics andcircumstances of the victim especial] the victim's race andage when evaluating the severity of racial incidents at aneducational institution If OCR determines that the harassment wassufficiently severe that it would have adversely affected theenjoyment of some aspect of the recipient's educational programby a reasonable person, of the same age and race as the victim,under similar circumstances, OCR will find that a hostileenvironment existed. The perspective of a person of the same raceas the victim is necessary because race is the immutablecharacteristic upon which the harassment is based. The reasonableperson standard as applied to a child must incorporate the age,intelligence and experience of a person under like circumstancesto take into account the developmental differences in maturityand perception due to age.

To determine severity, the nature of the incidents must alsobe considered. Evidence may reflect whether the conduct wasverbal or physical and the extent of hostility characteristic ofthe incident. In some cases, a racially hostile environmentrequiring appropriate responsive action may result from a singleincident that is sufficiently severe. Such incidents may include,for example, injury to persons or property or conduct threateninginjury to persons or property.

The size of the recipient and the location of the incidentsalso will be important. Less severe or fewer incidents may morereadily create racial hostility in a smaller environment, such asan elementary school, than in a larger environment, such as acollege campus. The effect of a racial incident in the privateand personal environment of an individual's dormitory room maydiffer from the effect of the same incident in a student centeror dormitory lounge.

The identity, number, and relationships of the individualsinvolved will also be considered on a case-by-case basis. Forexample, racially based conduct by a teacher even an "off-duty"teacher, may have a greater impact on a student than the sameconduct by a school maintenance worker or another student. Theeffect of conduct may be greater if perpetrated by a group ofstudents rather than by an individual student.

In determining whether a hostile environment exists, OCRinvestigators will also be alert to the possible existence at therecipient institution of racial incidents other than thosealleged in the complaint and will obtain evidence about them todetermine whether they contributed to a racially hostileenvironment or corroborate the allegations.

Finally, racial acts need not be targeted at the complainantin order to create a racially hostile environment. The acts maybe directed at anyone. The harassment need not be based on theground of the victim's or complainant's race, so long as it isracially motivated (e.g., it might be based on the race of afriend or associate of the victim). Additionally, the harassmentneed not result in tangible injury or detriment to the victims ofthe harassment.

If OCR finds that a hostile environment existed under thesestandards, then it will proceed to determine whether therecipient received notice of the harassment, and whether therecipient took reasonable steps to respond to the harassment.

Notice

Though the recipient may not be responsible directly for allharassing conduct, the recipient does have a responsibility toprovide a nondiscriminatory educational environment. Ifdiscriminatory conduct causes a racially hostile environment todevelop that affects the enjoyment of the educational program forthe student(s) being harassed, and if the recipient has actual orconstructive notice of the hostile environment, the recipient isrequired to take appropriate responsive action. This is the caseregardless of the identity of the person(s) committing theharassment a teacher, a student, the grounds crew, a cafeteriaworker, neighborhood teenagers, a visiting baseball team, a guestspeaker, parents, or others. This is also true regardless of howthe recipient received notice. So long as an agent or responsibleemployee of the recipient received notice, that notice will beimputed to the recipient.

A recipient can receive notice in many different ways. Forexample, a student may have filed a grievance or complained to ateacher about fellow students racially harassing him or her. Astudent, parent, or other individual may have contacted otherappropriate personnel, such as a principal, campus security, anaffirmative action officer, or staff in the office of studentaffairs. An agent or responsible employee of the institution mayhave witnessed the harassment. The recipient may have receivednotice in an indirect manner, from sources such as a member ofthe school staff, a member of the educational or local community,or the media. The recipient also may have received notice fromflyers about the incident(s) posted around the school.

In cases where the recipient did not have actual notice, therecipient may have had constructive notice. A recipient ischarged with constructive notice of a hostile environment if,upon reasonably diligent inquiry in the exercise of reasonablecare, it should have known of the discrimination. In other words,if the recipient could have found out about the harassment had itmade a proper inquiry, and if the recipient should have made suchan inquiry, knowledge of the harassment will be imputed to therecipient. A recipient also may be charged with constructivenotice if it has notice of some, but not all, of the incidentsinvolved in a particular complaint.

In some cases, the pervasiveness, persistence, or severityof the racial harassment may be enough to infer that therecipient had notice of the hostile environment (e.g., a raciallymotivated assault on a group of students). A finding that arecipient had constructive notice of a hostile environment meetsthe notice requirement of the analysis.

If the alleged harasser is an agent or employee of arecipient, acting within the scope of his or her official duties(i.e., such that the individual has actual or apparent authorityover the students involved), then the individual will beconsidered to be acting in an agency capacity and the recipientwill be deemed to have constructive notice of the harassment. Ifthe recipient does not have a policy that prohibits the conductof racial harassment, or does not have an accessible procedure bywhich victims of harassment can make their complaints known toappropriate officials, agency capacity and thus constructivenotice is established.

The existence of both a policy and grievance procedureapplicable to racial harassment (depending upon their scope,accessibility and clarity, and upon the acts of harassment) isrelevant in the determination of agency capacity. A policy orgrievance procedure applicable to harassment must be clear in thetypes of conduct prohibited in order for students to know andunderstand their rights and responsibilities. As discussed above,in the education context, the person from whose perspective theapparent authority of an agent or employee of a recipient must beevaluated is a reasonable student of the same age, intelligenceand experience as the alleged victim of the harassment.

Finally, in order to find that the recipient had a duty torespond to notice of a racially hostile environment, OCR mustexamine the facts and circumstances to establish that therecipient knew or should have known that the conduct was of aracial nature or had sufficient information to conclude that itmay have been racially based. OCR will consider whether theincident involved explicitly racial conduct or whether thecircumstances indicate that, through symbols or other persuasivefactors, the recipient should have recognized that the conductwas 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 hostileenvironment, the recipient has a legal duty to take reasonablesteps to eliminate it. Thus, if OCR finds that the recipienttook responsive action, OCR will evaluate the appropriateness ofthe responsive action by examining reasonableness, timeliness,and effectiveness. The appropriate response to a racially hostileenvironment must be tailored to redress fully the specificproblems experienced at the institution as a result of theharassment. In addition, the responsive action must be reasonablycalculated to prevent recurrence and ensure that participants arenot restricted in their participation or benefits as a result ofa racially hostile environment created by students ornon-employees.

In evaluating a recipient's response to a racially hostileenvironment, OCR will examine disciplinary policies, grievancepolicies, and any applicable anti-harassment policies. OCR alsowill determine whether the responsive action was consistent withany established institutional policies or with responsive actiontaken with respect to similar incidents.

Examples of possible elements of appropriate responsiveaction include imposition of disciplinary measures, developmentand dissemination of a policy prohibiting racial harassment,provision of grievance or complaint procedures, implementation ofracial awareness training, and provision of counseling for thevictims of racial harassment.

Conclusion

OCR will investigate allegations of racial incidents wherethe incidents fall within its jurisdiction. Based on the factsand circumstances of each case OCR will use either or both thestandard different treatment analysis and the hostile environmentanalysis to determine whether title Vt has been violated.

If OCR determines that an agent or employee, acting withinthe scope of his or her employment, treated someone differentlyon the basis of race, color, or national origin without alegitimate, nondiscriminatory reason for the treatment (i.e.,direct different treatment), then OCR will conclude that Title Vtwas violated. If OCR determines that a racially hostileenvironment exists at a recipient, the recipient had notice ofit, and the recipient failed to take adequate action in responseto the hostile environment, OCR will also find a violation. IfOCR determines that a hostile environment was not established, orthat a hostile environment was established but that the recipienteither (1) did not have notice of it; or (2) had notice of it andtook 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 legalresources (including statutes, regulations, cases, and letters offindings) to serve as a reference for the Office for Civil Rights(OCR) staff in investigating possible discrimination againststudents based on racial incidents including incidentsinvolving allegations of harassment on the basis of race thatoccur at educational institutions. It is intended to be used inconjunction with the investigative guidance on racial incidentsand harassment, and follows the same general outline as thatguidance.

The investigation and analysis of cases under title Vt ofthe Civil Rights Act of 1964, 42 U.S.C. 2000d, (title Vt) relies,to a large extent, on case law developed under Title VII of theCivil Rights Act of 1964,42 U.S.C. 2000e, which prohibitsdiscrimination on the basis of race, color, national origin, sex,and religion in employment. See Dillon County District No. Iand South Carolina State Department of Education, No. 84-VI-16(Civil Rights Reviewing Auth.1987); United States v. LULAC, 793F.2d 636, 648-49 (5th Cir. 1986); Georgia State Conference ofBranches of NAACP v. Georgia, 775 F.2d 1403,1417 (11th Cir.1985); and NAACP v. Medical Center, Inc. 657 F.2d 1322 (3dCir.1981). See also, generally, EEOC Revised Enforcement Guidanceon Recent Developments in Disparate Treatment Theory, No. N-915.002 (July 14,1992).

1. Jurisdiction

OCR must first decide whether it has jurisdiction over aclaim involving racial incidents or harassment. OCR hasjurisdiction if the complaint alleges that the racially basedconduct occurred in the context of an operation of an elementary,secondary, or postsecondary school or institution, or otherentity that is a recipient of Federal funds.

A. Title Vt Prohibits Race Discrimination in Federally FundedPrograms and Activities

Title Vt prohibits race discrimination in programs andactivities that receive Federal financial assistance. See also 34CFR part 100 (regulations effectuating provisions of title Vt).

B. OCR Has Institution-Wide Jurisdiction

Under the Civil Rights Restoration Act of 1987, OCRgenerally has institution-wide jurisdiction over a recipient ofFederal funds.

C. Allegation Must Relate to an Operation of Recipient

Discrimination must be alleged in an "operation" of arecipient. See 42 U.S.C. 2000d-4a.

D. Specific Discriminatory Actions Prohibited

The regulations implementing Title Vt include provisionsprohibiting discrimination based on race in terms of:

  1. Services: Provision of services or other benefits. 34CFR 100.3(b)(1)(iii).
  2. Privileges: Restriction of an individual's enjoyment ofan advantage or privilege enjoyed by others.34 CFR100.3(b)(1)(iv).
  3. Participation: Opportunities to participate. 34 CFR100.3(b)(1)(vi).

The regulations also include a general, catchall provisionprohibiting 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) treatmentanalysis to allegations involving racial incidents perpetrated byrepresentatives of recipients. In doing so, OCR must determinewhether a student was treated differently than other students onthe basis of race without a legitimate, nondiscriminatory,non-pretextual reason.

The basic elements of a different treatment case were setout by the U.S. Supreme Court in McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973) (focusing on indirect evidence of suchtreatment), a Title VII employment case. See also United StatesPostal 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 complainantbelongs for purposes of differential treatment analysis.
  2. Determine whether the complainant was treateddifferently than similarly situated members of other racialgroups with regard to a service, benefit, privilege, etc., fromthe recipient. See, e.g., University of Pittsburgh, OCR Case No.03-89-2035 (campus police treated black students more severelythan white students); Roosevelt Warm Springs Institute forRehabilitation, OCR Case No. 04-893003 (similar).

B. Rebuttal of Prima Facie Case by Showing Legitimate,Nondiscriminatory Reason for Treatment

After a prima facie case of race discrimination has beenestablished against the recipient, OCR must then determinewhether the recipient had a legitimate, nondiscriminatory reasonfor its action(s) which would rebut the prima facie case againstit.

C. Recipient s Rebuttal Overcome With Showing of Pretext

If the prima facie case of discrimination is rebutted, OCRmust next determine whether the recipient's asserted reason forits action(s) is a mere pretext for discrimination. Ultimatelyhowever, the weight of the evidence must convince OCR that actualdiscrimination occurred. See St. Mary's Honor Center v. Hicks,113 S.Ct. 2742 (1993) (under title VII disparate treatmentanalysis, ultimate burden of persuasion regarding intentionaldiscrimination remains at all times with plaintiff) .

III. Hostile Environment Analysis

A violation of Title Vt may be found if racial harassment issevere, pervasive, or persistent so as to constitute a hostile orabusive educational environment. See Meritor Savings Bank v.Vinson, 477 U.S. 57 (1986) (sets similar standard for sexualharassment under title IX) (relying on Rogers v. EEOC, 454 F.2d234, 238 (5th Cir. 1971) (race discrimination can consist of an"environment heavily charged with ethnic or racialdiscrimination"), cert. denied,406 U.S. 957 (1972)); Harris v.Forklift Systems, Inc., 114 S.Ct. 367 (1993) (reiterating Meritorstandard). Accord, Hicks v. Gates Rubber Co., 833 F.2d 1406,1412(10th Cir.1987); Snell v. Suffolk County, 782 F.2d 1094,1102 (2dCir. 1986); Grayv. Greyhound Lines, East, 545 F.2d 169,176 (D.C.Cir. 1976) (noting with approval that EEOC has consistently heldthat title VII gives employee right to " 'a working environmentfree of racial intimidation' "). See also, e.g., DefianceCollege, OCR Case No. 05-9>2024 (violation where college wasaware of "repeated" and "patently offensive" verbal and physicalracial harassment committed by students).

Whether conduct constitutes a hostile environment must bedetermined 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 ofdiscriminatory conduct, whether it is physically threatening orhumiliating or merely offensive, and whether it interferes withwork performance; psychological harm is not required but may betaken into account like any other relevant factor); Johnson v.Bunny Bread, 646 F.2d 1250,1257 (8th Cir.1981) (court examinednature, frequency, and content of racial harassment, as well asidentities of perpetrators and victims). See also Snell, 782 F.2dat 1103 (citing Henson v. City of Dundee, 682 F.2d 897,904 (11thCir. 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 mustconsist of more than casual or isolated racial incidents tocreate a racially hostile environment. Compare Trenton JuniorCollege, OCR Case No. 07-87-6006 (title Vt violated where collegefailed to provide adequate security for black basketball playerswho were subjected to a break-in, cross-burning, and placement ofraccoon skins at their campus residences) with University ofCalifornia, Santa Cruz, OCR Case No. 09-91-6002 (no finding ofracial harassment where OCR found only isolated individualincidents over three year period). See also, e.g., Snell, 782F.2d at 1103 ("To establish a hostile atmosphere, * * *plaintiffs must prove more than a few isolated incidents ofracial enmity * * *. Casual comments, or accidental or sporadicconversation will not trigger equitable relief"); Gates RubberCo., 833 F.2d 1406; Powell v. Missouri State Highway andTransportation Department, 822 F.2d 798 (8th Cir.1986); Moylan v.Maries County, 792 F.2d 746 (8th Cir. 1986); Henson, 682 F.2d at904 (quoting Rogers, 454 F.2d at 238).

OCR and Federal courts have found a hostile environmentwhere there was a pattern or practice of harassment, or where theharassment was sustained and nontrivial. See, e.g., Wapato SchoolDistrict No. 207, OCR Case No. 10-821039 (Title Vt violated whereteacher repeatedly treated minority students in raciallyderogatory manner). Compare Walker v. Ford Motor Co., 684 F.2d1355 (11th Cir. 1982) (hostile environment where use ofderogatory terms was "repeated, continuous, and prolonged") withGilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983)(hostile environment not created by isolated and allegedlyunrelated racial slurs), cert. denied.466 U.S. 972 (1984).

2. Severe

The severity of individual incidents must also beconsidered. See, e.g., Vance v. Southern Bell Telephone andTelegraph Co., 863 F.2d 1503,1510-11 (11th Cir. 1989)(determination whether conduct is "severe and pervasive" does notturn solely on number of incidents; fact-finder must examinegravity as well as frequency) (decided under 42 U.S.C. 1981);Carrero v. New York City Housing Authority, 890 F.2d 569,578 (2dCir. 1989) ("It is not how long the * * * obnoxious course ofconduct lasts. The offensiveness of the individual actions* * is also a factor to be considered.").

Generally, the severity of the incidents needed to establisha racially hostile environment varies inversely with theirpervasiveness or persistence. See EEOC Policy Guidance on CurrentIssues of Sexual Harassment, No. N915.050 (Mar. 19,1990) ("themore severe the harassment, the less need to show a repetitiveseries of incidents").

a. Special mission and duties of educational institutions.The unique setting and mission of an educational institution mustbe taken into account when OCR evaluates the severity of racialharassment under title Vt. School officials have a duty toprovide a nondiscriminatory environment conducive to learning.See generally 34 CFR part 100 (regulations prohibiting any formof race discrimination which interferes with educational programsor activities under title Vt).

b. Characteristics and circumstances of victim especiallyrace and age. OCR must take into account the characteristics andcircumstances of the victim on a case-by-case basis particularlythe victim's race and age when evaluating the severity of racialincidents 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 environmentracial harassment case is that of a 'reasonable black person' ").See also, e.g., Ellison v. Brady, 924 F.2d 872 (5th Cir. 1991)(discussing differences in perspectives of men and women towardsexual harassment, and need to examine harassment fromperspective of reasonable victim with characteristic upon whichharassment was based).

The reasonable person standard as applied to children is"that of a reasonable person of like age, intelligence, andexperience under like circumstances." Restatement (2d), TortsSection 283A (1965) (Comment b: "The special standard to beapplied in the case of children arises out of the public interestin 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, 278S.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) shouldalso be considered. See, e.g., Vance v. Southern Bell Telephoneand Telegraph Co., 863 F.2d at 1506-10 (hostile environmentcreated 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 establisha racially hostile environment. See EEOC Policy Guidance onCurrent Issues of Sexual Harassment, No. N-915.050 (Mar.19 1990)and cases cited therein, Barrett y. 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 ofthe recipient and the location of the incidents also may beimportant.

e. Identity of individuals involved. The identity, number,and relationships of the individuals involved will also beconsidered on a case-by-case basis. See, e.g., Wapato SchoolDistrict No. 207, OCR Case No.10-82-1039 (racial harassment ofstudents by teacher was particularly opprobrious).

f. Other incidents at the recipient. OCR will also considerother racial incidents at the institution. See, e.g. MidwestCity-Del City Public Schools OCR Case No. 06-92-1012 (finding ofracially hostile environment based in part on several racialincidents at school which occurred shortly before incidents incomplaint).

g. Harassment need not be directed specifically atcomplainant or tangibly harm complainant or victim. Theregulations implementing Title Vt provide that a complaint may befiled by i'[a)ny person who believes himself or any specificclass of individuals to be subjected to discrimination prohibitedby this part." 34 CFR 100.7(b). Thus, in hostile environmentcases, the harassment need not be targeted specifically at theindividual 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'sclaim); Hall v. Gus Construction Co., 842 F.2d 1010, 1015 (8thCir. 1988) (evidence of sexual harassment directed at others isrelevant to show hostile environment); Gates Rubber Co., 833 F.2dat 1415 ("one of the critical inquiries in a hostile environmentclaim must be the environment" as a whole) (emphasis inoriginal); Walker v. Ford Motor Co., 684 F.2d 1355,1358-59 (11thCir. 1982) hostile environment established where racialharassment made plaintiff" feel unwanted and uncomfortable in hissurroundings," even though it was not directed at him).

The harassment need not be based on the ground of thecomplainant's or victim's race, so long as it is raciallymotivated. See, e.g., Center Grove Community School, OCR CaseNo.1591-1168 (title VI violated where white girl was forced towithdraw from all white school, as result of harassment byclassmates which included note criticizing her association withblack student at another school).

To establish a hostile environment harassment need notresult in a tangible injury or detriment to the complainant orthe victim of the harassment. Vinson 477 U.S. at 64. See also,e.g., Harris v. Forklift Systems, Inc., 114 S.Ct. at 371 (undertitle VII several factors are considered including whetherbehaviors interfere with work performance psychological harm isnot required but may be taken into account like any otherrelevant factor); Gilbert, 722 F.2d at 1394 (environment "whichsignificantly and adversely affects the psychological well-beingof an employee because of his or her race" is enough toconstitute title VII violation); Bundy v. Jackson, 641 F.2d 934,943-45 (D.C. Cir.1981) (protection against race and sexdiscrimination extends to "psychological and emotional workenvironment").

B. Notice

A recipient has a duty to provide a nondiscriminatoryeducational environment, but it must somehow receive notice ofracial harassment in order to be found responsible for it. SeeVinson, 477 U.S. at 72; see also Steele v. Offshore Shipbuilding,Inc., 867 F.2d 1311 (11th Cir. 1989); Lipsett v. University ofPuerto Rico, 864 F.2d 881 (1st Cir.1988).

1. Actual Notice

A recipient may be found liable for racial harassment if ithas actual knowledge of the racially offensive behavior oractions. See, e.g., Hunter v. Allis-Chalmers Corp., 797 F.2d 1417(7th Cir. 1986) (liability exists if management-level employeeswere aware of barrage of offensive conduct) Katz v. Dole, 709F.2d 251 (4th Cir. 1983) (actual knowledge where victim complainsof harassment to appropriate authorities); Henson v. City ofDundee, 682 F.2d 897, 904 (11th Cir. 1982).

2. Constructive Notice

A recipient may be found liable where it reasonably shouldhave known of the harassment e.g., because the harassment was sopervasive that its awareness may be inferred. See Paroline v.Unisys Corp., 879 F.2d 100 (4th Cir. 1989) (liability may beimputed where employer knew or should have known about priorconduct of harasser toward other women), vacated in part on othergrounds, goo F.2d 27 (4th Cir. 1990): Yates v. Avco Corp., 819F.2d 630 (6th Cir. 1987) (constructive notice where employeeharassed women on a daily basis); Waltman, 875 F.2d 468(possibility of constructive notice where sexual graffiti existedin numerous locations); Vance v. Southern Bell Telephone andTelegraph Co., 863 F.2d at 1510-11; Swentekv. USAir, Inc., 830F.2d 552 (4th Cir. 1987).

If the alleged harasser is an agent or employee of arecipient, acting within the scope of his or her official duties(i.e., such that the individual has actual or apparent authorityover the students involved), then the individual will beconsidered to be acting in an agency capacity and the recipientwill 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 forholding employers liable for supervisory harassment is based ontraditional agency principles, such as when and where harassmenttook place, and whether it was foreseeable), cert. denied, 113S.Ct. 831 (1992). See also EEOC Policy Guidance on Current Issuesof Sexual Harassment, N-915.050 (Mar. 19, lgg0) (apparentauthority exists where third parties reasonably believe thatactions of supervisor represent exercise of authority possessedby virtue of employer's conduct).

In evaluating whether constructive notice should be imputedto a recipient, the availability, coverage and publicdissemination of anti-discrimination policies and grievanceprocedures for students will be considered in determining whetherthe recipient has made a sufficient effort to become aware ofracial incidents if and when they occur. See Meritor SavingsBank, 477 U.S. at 72-73 (existence of uninvoked grievanceprocedures and policies against discrimination is relevant toissue of employer liability for sexual harassment, but notdispositive].

C. Recipient's Response

1. Duty to Take Reasonable Steps to End Harassment

Once a recipient has notice of a racially hostileenvironment, it has a duty to take reasonable steps to eliminateit. 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 nowritten grievance procedure and failed to interview most of theindividuals involved); Township High School District No. 214, OCRCase No' 05-82-1097 (OCR found violation where school districtfailed to take adequate steps to correct repeated racialharassment 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 workenvironment, and resources available); HaZl v. Gus ConstructionCo., Inc., 842 F.2d 1010 (8th Cir. 1988) (employer will be liablefor failing to discover what is going on and to take remedialsteps when actions are so numerous, egregious, and concentratedas 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 environmentshould be tailored to redress the specific problems experiencedat the institution. See, e.g., Trenton Junior College, OCR CaseNo. 07-87-6006 (region developed remedial plan with college thatincluded staff training on racial harassment, payment ofcompensation to harassed students and individuals who assistedthe students in arranging for their safety, implementation ofspecial efforts including financial aid to recruit blackstudents, and development of plan for handling future harassmentcomplaints).

3. Response Must Reasonably Attempt to Prevent Recurrence

The responsive action taken by a recipient must bereasonably calculated to prevent recurrence and ensure thatindividuals are not restricted in their participation or benefitsas a result of a racially hostile environment created by studentsor non-employees. See, e.g., Brooms v. Regal Tube Co., 881 F.2d412 (7th Cir. 1989) (response must be reasonably calculated toprevent further harassment under particular facts andcircumstances of case at time allegations are made; courts shouldnot focus solely on whether remedial activity ultimatelysucceeded, but should determine whether total response wasreasonable); Waltman v. International Paper Co., 875 F.2d 468,476(5th Cir.1989) (response must be reasonably calculated to haltharassment); Bundy v. Jackson, 641 F.2 934 (D.C. Cir. 1981)(employer liable where supervisor had full notice of harassmentand did nothing to stop or investigate practice; employer musttake all necessary steps to investigate and correctharassment including warnings, appropriate discipline, and othermeans of preventing harassment).

[FR Doc. 94-5531 Filed 3-9-94; 8:45 am]
BILLING CODE 4000-01-P

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