[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