OFFICE OF THE ASSISTANT SECRETARY
Not for Reliance for Certain Purposes. This document expresses policy that is inconsistent in some respects with the Department’s regulations implementing Title IX of the Education Amendments of 1972, as amended in 2020, as well as Executive Orders 13988 (on combating discrimination based on gender identity or sexual orientation) and 14021 (on sex discrimination in educational environments).
hostile environment created by the harassment, address its effects, and
take steps to ensure that harassment does not recur. Put differently, the
unique effects of discriminatory harassment may demand a different response
than would other types of bullying.
Below, I provide hypothetical examples of how a school’s failure to recognize student misconduct as discriminatory harassment violates students’ civil rights.12 In each of the examples, the school was on notice of the harassment because either the school or a responsible employee knew or should have known of misconduct that constituted harassment. The examples describe how the school should have responded in each circumstance.
Title VI: Race, Color, or National Origin Harassment
- Some students anonymously inserted offensive notes into African-American students’ lockers and notebooks, used racial slurs, and threatened African-American students who tried to sit near them in the cafeteria. Some African-American students told school officials that they did not feel safe at school. The school investigated and responded to individual instances of misconduct by assigning detention to the few student perpetrators it could identify. However, racial tensions in the school continued to escalate to the point that several fights broke out between the school’s racial groups.
- In this example, school officials failed to acknowledge the pattern of harassment
as indicative of a racially hostile environment in violation of Title VI.
Misconduct need not be directed at a particular student to constitute discriminatory
harassment and foster a racially hostile environment. Here, the harassing
conduct included overtly racist behavior (e.g., racial slurs) and
also targeted students on the basis of their race (e.g., notes directed
at African-American students). The nature of the harassment, the number of
incidents, and the students’ safety concerns demonstrate that there was a racially
hostile environment that interfered with the students’ ability to participate
in the school’s education programs and activities.
- Had the school recognized that a racially hostile environment had been created,
it would have realized that it needed to do more than just discipline the few
individuals whom it could identify as having been involved. By failing to acknowledge
the racially hostile environment, the school failed to meet its obligation to
implement a more systemic response to address the unique effect that the misconduct
had on the school climate. A more effective response would have included, in
addition to punishing the perpetrators, such steps as reaffirming the school’s
policy against discrimination (including racial harassment), publicizing the
means to report allegations of racial harassment, training faculty on constructive
responses to racial conflict, hosting class discussions about racial harassment
and sensitivity to students of other races, and conducting outreach to involve
parents and students in an effort to identify problems and improve the school
climate. Finally, had school officials responded appropriately
12 Each of these hypothetical examples contains elements taken from actual cases.