Since the election, there has been a spike in racist harassment and hate crimes across the county directed at minorities and immigrants. As reflected in data collected by the Southern Poverty Law Center (SPLC), nearly 900 hate incidents were reported in the ten days following November 8. The incidents have ranged from graffiti of swastikas and nooses, rampant use of racial slurs, verbal denigration of minorities and immigrants, and physical harassment, including assaults or attempted assaults. These incidents have been most prevalent at K-12 schools and college campuses and reflect a disturbing deterioration of the educational environment in our schools. These are only the reported incidents to SPLC, a small non-profit located in Alabama; it is most certainly only a fraction of all incidents since the election. While there are sometimes competing concerns between the free speech rights of students and the protection of minority students, the incidents that have been reported thus far include racist threats of violence that goes beyond free speech rights. There is a real concern that the failure to adequately respond and remedy this behavior during students’ formative years in middle and high school will normalize it and cause further spillover onto college campuses.
Minority and immigrant students who are at colleges and universities across the country may be understandably anxious about whether they will have protection against such harassment under the new presidential administration. If campaign rhetoric is to be believed, the Trump Administration intends to gut the Department of Education (DOE). In addition to its responsibilities administering federal funding and enforcing federal education laws, the DOE is the agency charged with enforcing civil rights laws that apply to K-12 schools and colleges, which includes Title VI, the law that protects students at federally-funded schools from discrimination on the basis of race or national origin.
Under Title VI and its implementing regulations, a person who has been discriminated against by a federally-funded institution may file a written complaint with the DOE’s Office of Civil Rights (OCR). A complaint that indicates noncompliance with Title VI is supposed to trigger a prompt investigation. If the investigation reveals a failure to comply with Title VI, the DOE is supposed to take steps to remedy the institution’s compliance, which may include the loss of federal funds. In addition to these administrative remedies, Title VI contains an implied private cause of action for intentional acts of discrimination through which individuals can obtain both injunctive relief and damages.
In the fifty years since Title VI was enacted, schools have enacted internal anti-harassment policies and investigative procedures in order to ensure that students are able to participate in educational opportunities without fear of racial harassment. These policies and procedures have been incorporated into the fabric of many institutions, through their student handbooks, mission statements, diversity policies, and disciplinary procedures. The weaker DOE contemplated by the new administration will not result in immediate changes in individual school policies overnight. Moreover, any changes to the DOE’s enforcement regulations and internal guidance would take years to accomplish. However, if the DOE simply abdicates responsibility by failing to promptly investigate complaints or failing to threaten loss of federal funding, schools may end up relaxing or disregarding their internal enforcement policies.
If the DOE fails to enforce Title VI, an individual can still bring a private cause of action against a college or university for intentional acts of discrimination. A school’s failure to investigate and adequately respond to a racially-hostile environment that involves peer-on-peer harassment can be considered intentional discrimination under Title VI. To hold an institution liable, the plaintiff must establish that (1) the school officials acted with deliberate indifference toward harassment they actually knew about and (2) the harassment was so severe, pervasive, and objectively offensive as to deprive the plaintiff of access to educational opportunities. While, as written, this is an onerous standard which is difficult for plaintiffs to overcome, courts have found sufficient evidence of deliberate indifference when school administrators have failed to remedy complaints of an educational environment marred by racist graffiti, slurs, and other harassment – the very type of conduct we have seen since the election. Students who experience racial harassment can and should pursue their rights under Title VI – with or without the support of the DOE.