The U.S. Department of Education’s Office for Civil Rights (OCR) issued a statement yesterday reminding schools, colleges, and universities of their responsibilities to address discrimination and harassment based on race and national origin during the outbreak of coronavirus, or COVID-19. Schools should go back to basics when faced with complaints of race-based discrimination and harassment and take, as OCR describes it, “prompt and forceful measures” to investigate and appropriately respond to incidents to avoid OCR scrutiny.
The OCR statement refers to “an increasing number of news reports regarding stereotyping, harassment, and bullying directed at persons perceived to be of Chinese American or, more generally, Asian descent, including students.” We previously reported on these concerns and the need for educational institutions to respond to and quell any discrimination or harassment based on race or national origin in an earlier Franczek alert. What does such a response look like?
To avoid discrimination, OCR suggests that schools, colleges, and universities hew closely to recommendations from the Department of Education and the CDC when making decisions on how to respond to COVID-19. We agree with this advice, as it can prevent decision makers from even subconsciously relying on racial or ethnic stereotypes in formulating responses, which can lead to claims of bias or discrimination based on race or national origin.
OCR’s letter explains further that if an institution receives a report of “verbal abuse or physical attacks based on race, ancestry, or misunderstandings about cultural traditions,” it must respond to address the complaint. Title VI of the Civil Rights Act of 1965 (Title VI), which prohibits discrimination based on race, color, and national origins in schools, is not as prescriptive regarding procedures to be followed in making such a response as other federal laws, such as Title IX of the Education Amendments of 1972. If, however, an educational institution has a policy or procedure on the books for responding to such complaints, it must strictly follow them to be found in compliance by OCR. Accordingly, schools, colleges, and universities should check off all requirements in any written policies or procedures addressing race-based harassment when responding to complaints.
If an investigation shows harassment occurred, OCR explains that the institution must “take reasonable steps to end unlawful harassment, eliminate hostile environments, prevent the harassment from recurring, and, as appropriate, remedy its effects.” Remember, if steps to end harassment do not at first succeed, institutions must modify their responses until the harassment ends. Reporting students should be reminded, preferably in writing, of protections against retaliation, and any reports of retaliation should be treated as a new complaint.
Although the OCR letter ends with an invitation for educational institutions to reach out to the agency for help on any concerns, as we explained in our Title IX Insights blog there are risks to opening your doors to OCR at this time. It is not clear what OCR’s new take on “technical assistance” entails or whether there are limitations on what OCR does with any information it receives. To avoid inadvertently opening your institution to negative scrutiny by OCR, we recommend that educational institutions continue to rely on their trusted legal counsel for assistance in navigating these challenging issues at this time.