In recent weeks, several colleges and universities have faced a flurry of high-profile race-based harassment incidents, requiring a thoughtful balance of constitutional and fairness questions while ensuring that students feel safe and welcome on campus. Though the infamous videotaped racist chant by a fraternity garnered significant attention, the University of Oklahoma is not alone. Other schools across the country have dealt with incidents such as a photo on social media of a student writing a racial slur on a whiteboard; students voicing support for lynching and using a racial slur during a university’s radio program; nooses hanging in prominent locations on campus; and depictions of swastikas and nooses on the walls of a residence hall.

When confronted with allegations of race-based harassment, negative publicity and even civil action may follow. However, liability may be substantially minimized or prevented if certain critical steps are taken, among them:

• Respond immediately to the incident. Institutions should be prepared to coordinate, within a matter of hours, all integral campus administration constituencies including general counsel, public safety, public affairs, and student services.
• Promptly begin an inquiry or investigation into the incident. Institutions should strive to ensure preservation of evidence and timely witness statements, with an eye toward swift resolution of investigations. Prevention and/or prompt remedy of potential violations of Title VI of the Civil Rights Act of 1964 is also imperative.
• Institutions must also be mindful of First Amendment and academic freedom considerations. Although institutions must address unlawful racial harassment, a slow response or a response that does not consider whether the offensive conduct is protected by the Constitution or institutional policies may have a chilling effect.
• Have in place inclusive policies that encourage diversity and help maintain a safe campus for all students. Policies should clearly outline prohibited conduct, how to report incidents of racial harassment, and set forth meaningful sanctions and remedies for affected individuals. Institutions should be sure to follow applicable institutional policies and procedures should incidents of racial harassment occur.
• While fully preventing incidents of race-based harassment may not always be possible, institutions should ensure that staff, faculty, and students receive regular educational programming on racial harassment and related institutional policies and procedures.