With the increasing prominence of the Black Lives Matter movement in the 2020s, many American citizens and institutions have shone a light on racism in the United States. In the summer of 2020, following the death of George Floyd at the hands of a police officer, protests broke out in the streets of cities in the U.S. and around the world. The result was a reckoning that caused the country to reflect on its history and consider how inequalities in the present could be more thoughtfully addressed.
As part of this awareness, many institutions were interested in hearing the voices of people of color and immigrants as they shared their experiences living in the United States. Many people were surprised to learn of the daily indignities that these people suffered. Although many of these experiences did not involve any legal infractions, a number did rise to the level of harassment or other offenses. When this harassment occurs in an institution that receives federal financial assistance, such as a public school, it is regulated by a federal law known as Title VI.
What is Racial and National Origin Harassment?
According to the Office for Civil Rights (OCR), a U.S. Department of Education bureau, racial and national origin harassment is defined as “unwelcome conduct based on a student's actual or perceived race or national origin.”
The Office for Civil Rights definition of racial and national origin harassment covers a broad range of offenses with varying degrees of seriousness. Offenses may include slurs, taunts, stereotyping, or name-calling, all the way up to physical attacks or threats. While this form of harassment does not explicitly address religious discrimination, it does cover offenses in which religious harassment is tied to students' ethnicity or ancestry. According to the OCR, these may include “complaints that students were subjected to ethnic or ancestral slurs; harassed for how they look, dress, or speak in ways linked to ethnicity or ancestry… or stereotyped based on perceived shared ancestral or ethnic characteristics.” The OCR specifically sites Hindu, Jewish, Muslim, and Sikh students as examples of people who may exhibit overlapping ethnic and religious characteristics.
What is Title VI?
In 1964, as the culmination of the Civil Rights Movement, the 88th United States Congress signed the Civil Rights Act into law. This monumental piece of legislation resulted from the longest continuous debate in the history of the U.S. Senate. After the bill passed the House of Representatives in February of that year, it was sent to the upper House. Southern Democrats, who opposed the bill, staged a sixty-day filibuster on the Senate floor before a bipartisan coalition finally had the votes to end the stalemate. After finally being approved and sent back to the House, they passed the bill on July 2nd.
Considered “one of the most significant legislative achievements in American history,” the Civil Rights Act was far-reaching and comprehensive. Comprising 11 sections, known as “Titles,” the Act outlawed discrimination based on race, color, religion, sex, national origin, and later sexual orientation and gender identity. Each title focuses on a different aspect of civil rights and its enforcement.
Title VI of the Act specifically prohibits discrimination based on “race, color, or national origin” in any program or activity that receives federal funding. The title has its broadest application in the world of education. According to the Office for Civil Rights, numerous agencies receive national funding from the U.S. Department of Education and are subject to Title VI regulation. They include state education agencies, their sub-recipients, and vocational rehabilitation agencies; as well education and vocational rehab agencies in the District of Columbia and the territories and possessions of the United States; 17,000 local education systems, 4,700 colleges and universities, 10,000 proprietary institutions; and other institutions, such as libraries and museums. The law covers all public schools and universities and those private institutions that receive federal funding as well.
Title VI upholds non-discrimination in a wide variety of areas within each institution. These include admissions, recruitment, financial aid, academic programs, classroom assignment, grading, athletics, housing, employment, and many other areas. It also protects any individual within the institution who opposed a policy or practice that is unlawful under Title VI from retaliation because of their actions.
Enforcement of Title VI
The Office of Civil Rights is the governmental body responsible for enforcing Title VI for any program and activity funded by the U.S. Department of Education. The OCR's enforcement efforts are most often in response to a complaint made by an individual or individuals at an institution. The individual in question does not need to be the victim of discrimination to file a complaint but may file on another's behalf. The complaint is initially made to the OCR regional office that serves the institution and must be made within 180 days of the discriminatory incident.
When the individual files the complaint, they must include a variety of information, including the full details of the violation and the name, address, and telephone number of both the complainant and the institution. The complainant's identity is kept confidential except as required by law, and the OCR regional office may assist the individual in preparing the complaint.
As a first step, the complainant may wish to use the institution's grievance process to resolve the situation. This is not a required prerequisite for filing a complaint with the OCR, just another option. If the institution's grievance process fails to provide the proper redress, the complainant may then go ahead and file with the OCR. However, it must be filed within 60 days after the completion of the institution's grievance process.
In addition to investigating complaints of Title VI violations, the OCR also conducts compliance reviews of selected recipients. In these instances, the Office undertakes the review on its own initiative and selects the recipients to review by itself. Because the OCR cannot investigate or review every institution receiving federal financial assistance, it also conducts a technical assistance program in which it assists institutions in achieving voluntary compliance. Finally, the Office informs students and other beneficiaries of their rights under Title VI.
Title VI Violations
When the OCR finds an institution to violate Title VI, the institution and the Office will often work together to correct these violations. According to the OCR, “if an investigation reveals that… harassment created a hostile environment, the educational institution must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”
Once an institution is found to be in violation, it may take several measures to achieve these aims. Under the guidance of the OCR, the institution may address the incident in a public and transparent manner, adopt new anti-harassment policies and procedures, train staff and students on appropriate conduct, and take other measures, including disciplining individual offenders. If the institution fails to adequately comply, the OCR may take one of two actions. It can begin administrative proceedings to suspend or terminate financial assistance through the Department of Education. It can also refer the case to the Department of Justice to initiate judicial proceedings against the institution.
First Amendment Issues
Because discriminatory harassment often involves speech, these cases can raise some tricky First Amendment Issues. The First Amendment states that “Congress shall make no law… abridging the freedom of speech.” However, as the amendment has been interpreted over many decades by the Supreme Court, the right to free speech in the United States is not absolute. Among the exceptions to the right to unlimited free speech include defamation, obscenity, speech that incites lawful action, fraud, and genuine threats.
When it comes to questions regarding speech derogatory or offensive to specific groups of people based on their race or national origin, the law becomes especially tricky. While some countries have specific “hate speech” laws, the United States does not recognize the phrase as a legal term. Instead, it has been up to the Supreme Court to adjudicate specific instances of demeaning speech and set precedents as to its legality as it applies to various situations.
Brandenburg v. Ohio
Among the key cases in which the Supreme Court helped establish the current definition of what constitutes outlawed speech is its 1969 decision in Brandenburg v. Ohio. In that case, Clarence Brandenburg, an Ohio Ku Klux Klan leader, staged a televised rally that included inflammatory and explicitly racist speech. The rally contained a speech that advocated the forced expulsion of African Americans and Jewish people from the United States.
Brandenburg was charged with advocating violence under Ohio law and sentenced to one to ten years in prison. Although his appeals were repeatedly rejected, the case was eventually sent to the U.S. Supreme Court. The high court ruled in favor of Brandenburg, finding that the Ohio statute violated the First and Fourteenth Amendments because it too broadly prohibited the advocacy of violence. The Court found that the government can only punish inflammatory speech if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This “imminent danger” test became the standard for determining whether inflammatory speech is illegal and remains the standard today with some minor modifications.
Other Cases
These modifications resulted from several other high-profile cases that the Supreme Court has tried over the last several decades. In 1992, in R.A.V. v. City of St. Paul, the Court struck down a local Crime Ordinance in St. Paul, Minnesota that prohibited symbolic racial expressions such as cross burning because it focused on the content of the expression rather than the mode. In 2003, the Court ruled in Virginia v. Black that another local law that criminalized public cross burning was also unconstitutional.
In Snyder V. Phelps, a 2011 case, the Court ruled in favor of Fred Phelps, the minister of the Westboro Baptist Church, whose organization protested a soldier's funeral with signs that many found to be offensive. Writing for the majority, Chief Justice John Roberts ruled that the First Amendment protected public protestors against claims of emotional distress.
Most recently, the Court heard the case of Matal V. Tam, which concerned the constitutionality of part of the Lanham Act. That piece of legislation, which is the primary statute governing trademark law, prohibited the registration of trademarks that disparage people, institutions, beliefs, or national symbols. The Court ruled in 2017 that this stipulation violated the First Amendment.
Application to Title VI
The Supreme Court has created a reasonably narrow standard for holding individuals liable for inflammatory or discriminatory speech. Nonetheless, there are certain legal limits to speech that clearly violate the law. When it comes to applying Title VI to educational institutions, therefore, a certain balance must be struck between the two poles, which is then considered on a case-by-case basis.
The Office of Civil Rights, when investigating possible Title VI violations, is mindful that it may not restrict “expressive activities or speech protected under the U.S. Constitution’s First Amendment.” The OCR instead encourages schools to live up to their responsibility to protect students from a hostile environment through other methods. For example, although it may not restrict individuals from voicing derogatory opinions about a specific ethnic group, it can vigorously oppose these opinions with its own official statements in favor of diversity and tolerance. It can also establish a respectful and open campus culture that makes all students feel comfortable and helps foster constructive dialogue. Institutions can also conduct campus climate checks to monitor potential harassment. This stringent application of the First Amendment also protects individuals from liability for potentially damaging speech.
Types of Discrimination and Harassment
Title VI covers a wide variety of discriminatory practices that may occur in the realm of public education. These include bullying, discriminatory discipline, retaliation, equal opportunity for English learners, and religious discrimination. Below, we will take a closer look at these specific issues.
Bullying and Harassment
Racially-based bullying and harassment is a common problem in U.S. public schools. According to the Committee for Children, a global nonprofit organization devoted to the safety and well-being of children, “bias-based harassment—when the underlying cause or motivation is prejudice—causes specific, increased harm,” as compared to other forms of bullying and harassment.
Students of color, particularly African American kids, are more likely to experience bullying than their white counterparts. In the 2015-2016 school year, for example, African American children comprised 15 percent of the U.S. public school population but accounted for 35.5 percent of students who reported being bullied or harassed on the basis of race, color, or national origin. American Indian and Alaska Native students are among the other groups disproportionately affected by this type of harassment.
Bullying and harassment is a wide-ranging umbrella term that contains a whole range of behaviors. These may include simple verbal acts, such as name-calling, or graphic and written statements, including sending abusive or discriminatory texts or posting similar statements online. On the far end of the spectrum, bullying and harassment may become physically threatening or actual physical abuse. The behavior does not have to be intended to cause harm or to have a specific target to qualify as harassment. A casual and generalized racially biased statement offered by an individual may be enough to constitute harassment.
When the harassment is severe or persistent enough to prevent students from adequately benefiting from the services provided by the institution, it constitutes a hostile environment and becomes subject to regulation by the Office of Civil Rights. Although the ultimate responsibility in addressing harassment lies with the school or other institution, the individual committing harassment may also be subject to civil or criminal penalties.
If the incidents are known to the institution or should reasonably have been known, the school is considered responsible. It must then take immediate and appropriate action to investigate what has occurred. If the institution finds that discriminatory harassment has indeed happened, it is required to take steps to end the harassment, lessen its effects, and prevent it from recurring. Steps the school may take include separating the harasser and the target, counseling either or both parties, and taking disciplinary action against the harasser. The target must not be burdened or penalized by the procedures. In addition, the institution may need to provide training for all those involved in the community, not only the students and staff but also potentially the families and other stakeholders that may be affected by the violations. The institution must also take steps to stop further harassment and protect the victim or other complainant from retaliation.
Discriminatory Discipline
According to the Office for Civil Rights, “In many educational institutions, students of color are disciplined more harshly and more frequently than other students, resulting in serious, negative educational consequences, particularly when such students are excluded from school.” The national statistics bear out this conclusion. For example, during the 2013-2014 school year, African American students made up 16 percent of all enrolled students but accounted for 40 percent of suspensions nationally.
While disparities in discipline rates in an individual institution may result from a variety of factors, the disproportionate numbers across the board are statistically significant. They cannot simply be explained away as the result of more frequent misbehavior by students of color. Instead, research has revealed that in many institutions, explicit racial discrimination is to blame. The OCR has uncovered numerous cases where African American students received harsher discipline than their white counterparts who exhibited similar behaviors. In such cases, the institutions may be subject to an investigation to see whether they have violated Title VI.
The most damaging part of discriminatory discipline is the instructional time that the affected students may miss. When students are subject to such disciplinary actions as in- or out-of-school suspensions or expulsions, it cuts into valuable learning time and often leaves students behind in their studies.
Whatever the form that exclusionary discipline may take, it has been shown to have a long-lasting negative impact on student's lives. Among the negative results seen in studies include diminished educational engagement, decreased academic achievement, increased likelihood of dropping out, increased behavioral problems, substance abuse, and involvement with juvenile justice systems.
Retaliation
Title VI prohibits any institution from retaliating against an individual who has voiced opposition to a discriminatory practice. According to the Office for Civil Rights, “The ability of individuals to oppose discriminatory practices, and to participate in OCR investigations and other proceedings, is critical to ensuring equal educational opportunity in accordance with Federal civil rights laws.”
These civil rights laws protect complainants in several different situations. It is a violation of the law for a school or other institution to retaliate against an individual who brings possible violations to its attention. It is similarly unlawful for the institution to retaliate against an individual who registers a complaint with the OCR or otherwise participates in an OCR investigation.
If OCR determines that an institution has retaliated against an individual, it will work with the institution to adopt a resolution agreement. The resolution agreement will ensure both that the person that was retaliated against will receive redress and that the institution will not retaliate against anyone in the future. Some measures and remedies that might form part of the resolution agreement include monetary relief, employee training, adopting a communications strategy to ensure an informed workplace, and implementing a public outreach strategy. If the institution refuses to live up to the resolution agreement, OCR may take further action, such as terminating the institution's federal funding or referring the case to the U.S. Justice Department.
Equal Opportunity for English Learners
With an increasingly diverse national population, the number of public school students who are English language learners continues to rise. While the percentage of public school students for whom English is not their primary language stood at 9.2 percent in 2010, it rose to 10.2 percent by 2018, for a total of 5 million students nationwide.
Under Title VI, schools, districts, and state education agencies that are receiving national funding must actively address language barriers to ensure equal educational opportunities for E.L.L. students. School districts are required to have procedures in place to identify potential E.L.L. students and determine if these students meet the criteria. They must then provide appropriate language assistance services to allow them to become proficient in English. Other requirements incumbent on the institution include providing language assistance to E.L.L. students, providing meaningful access to all curricular and extracurricular programs, avoiding unnecessary segregation of E.L.L. students, and evaluating the effectiveness of the district's E.L.L. program. Title VI also requires the institution to adequately communicate with limited English proficient parents in languages they understand.
Religious Discrimination
As mentioned above, Title VI does not explicitly address issues of religious discrimination. However, because of the overlap between religion and ethnicity, the law may protect against discrimination and harassment in two specific areas. First, an individual is protected if the discrimination is based on their actual or perceived “shared ancestry or ethnic characteristics.” They are also protected against discrimination based on their actual or perceived “citizenship or residency in a country with a dominant religion or distinct religious identity.” Examples of behaviors that may violate Title VI include ethnic or ancestral slurs; harassment based on skin color, religious attire, or language spoken; and stereotypes based on shared ancestral or ethnic characteristics.
In recent years, with the Syrian refugee crisis, OCR has seen an uptick in investigations along religious discrimination lines. Nonetheless, while most such cases may target Hindu, Jewish, Muslim, or Sikh students as individuals seen to exhibit both ethnic and religious characteristics, the law is by no means limited to these groups. The OCR has also investigated discrimination against white Christian students. Whatever the offense, the Office is committed to “aggressively prosecut[ing] harassment of religious students who are targeted on the basis of race or gender, as well as racial or gender harassment of students who are targeted on the basis of religion.”
Individual Responsibility
While the Office of Civil Rights is primarily concerned with investigating institutions that may be in violation of Title VI, individuals within those institutions may also be held responsible for discriminatory action. The individuals in question may be students, teachers, administrators, or other staff. If they are found in violation of the law or the institution's policies, they may be subject to a variety of disciplinary actions. These may include suspension or expulsion for students, firing for staff, or more serious legal action.
In public schools and other public institutions, the rights of students and other individuals are protected by both federal and state law. These laws dictate the institution's code of conduct which guide the institution's policy. In public institutions, students and staff are protected by due process in both civil and criminal issues. Due process requires that legal matters be resolved based on established rules and principles for the enforcement of individual rights. The Fifth Amendment protects due process against actions by the federal government, and the Fourteenth Amendment protects due process against actions by the state government. Because charter schools receive public funding, they are subject to the same disciplinary regulations as public schools.
Private Institutions
Although some private institutions receive public funding and are thus subject to federal and state laws, most of these institutions are not. This means that the Office of Civil Rights does not regulate the institution and that there is less protection for individuals at the institution accused of wrongdoing. Private schools set their own code of conduct, and they can dismiss a student or staff member who violates its terms without providing the individual with due process. These institutions may issue disciplinary action without an appeals process and accuse an individual of a violation without informing that person. In a private institution, accused individuals are not guaranteed the right to defend themselves, and the institution is not required to conduct any kind of investigation.
Experienced Attorney to Protect Your Rights
If you or your child has been the victim of any form of racial, ethnic, or national origin discrimination, you must speak with an attorney experienced in holding schools accountable for these illegal practices—experience matters in these cases. A qualified legal expert will protect your rights and develop a tailored, strategic plan for receiving justice from the violating institution.
Attorney Joseph D. Lento and the Lento Law Firm have extensive experience helping high school and college students bring discrimination and harassment charges against schools and other educational institutions. Attorney Lento has handled hundreds of racial and national origin discrimination cases across the nation, providing compassionate counsel to students and their parents and working tirelessly on their behalf to achieve the best possible outcome in each situation. Don't miss out on your chance to receive justice; call the Lento Law Firm today at 888-535-3686 or contact us online to arrange for a confidential consultation.
