Earlier this month, The CABE Journal (see page 11) published a portion of an article by our own Zach Schurin entitled “Native American Mascots: An Emerging Legal Landscape” that examines the legal issues that Connecticut schools with Native American team names and mascots should consider.
This is Part 2 of the article. Part 1 can be found here.
Title VI of the Civil Rights Act of 1964
The Civil Rights Act of 1964 was the cornerstone of President Lyndon Johnson’s historic civil rights efforts. While Title VII prohibits discrimination in employment and is perhaps the most familiar part of the law, Title VI of the Act applies to programs and activities that receive federal financial assistance and therefore applies to virtually every public school in the country. By its text, Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
On the basis of this language courts have held that Title VI and its implementing regulations entitle students to “an academic environment free from racial hostility,” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 666 (2d Cir. 2012), but what this means in context is not always clear.
In several cases challenging school mascots on discrimination grounds, the U.S. Department of Education’s Office of Civil Rights (“OCR”) has refused to find violations of Title VI on the basis of an allegedly racist mascot or team name alone. First, in a series of complaints from the mid-1990s concerning the University of Illinois’ former mascot “Chief Illiniwek,” OCR found that isolated incidents of harassment allegedly connected with the University’s use of the mascot were not sufficient to create a racially hostile learning environment in violation of Title VI. In so doing, OCR also acknowledged that “’[o]ffensiveness’ in and of itself, is not dispositive in assessing a claim under Title VI, particularly in light of the First Amendment to the United States Constitution.”
More recently in 2015, OCR similarly dismissed a complaint brought by the Michigan Department of Civil Rights (“MDCR”) — the Michigan equivalent of our Connecticut Commission on Human Rights and Opportunities (“CHRO”) – that sought an order prohibiting 35 Michigan school districts from continuing to use American Indian mascots, nicknames, slogans, chants and imagery on the grounds that their continued use created a hostile educational environment for Native American students. In support of its complaint, the MDCR cited a “growing and unrebutted” body of scientific evidence suggesting that the use Native American team names and mascots had a negative psychological impact on students of Native American descent and argued that this fact alone was sufficient for OCR to find a violation of Title VI.
As in its University of Illinois’ decisions however, OCR once again refused to find a violation of Title VI in the absence of any evidence of harm to specific students. Accordingly, per the OCR’s decisions in these cases, an offensive team name or mascot by itself without any evidence of harm to a specific student appears to be insufficient to violate Title VI.
State Non-Discrimination Laws
Title VI is not the end of the story when it comes to the legality of Native American school mascots. State non-discrimination statutes and constitutional provisions, particularly laws that prohibit discrimination in schools and/or in places of public accommodation, have served as the legal basis of several attempts to forcibly retire team names and mascots. In these cases, opponents argue that Native American names and imagery act to deny all students – not just students of Native American descent — the right to equal educational opportunities.
While most of these cases have proven unsuccessful, in one recent case – Pennsylvania Human Rights Commission v. Neshaminy, PHRC Case # 20150136 (2019) – the Pennsylvania Human Rights Commission (“PHRC”) (the Pennsylvania equivalent of our CHRO) ordered the Neshaminy regional school district to cease and desist using logos that depict Native Americans in a negative light.
The facts of the Neshaminy decision are unique but nonetheless instructive. Since the 1930s Neshaminy High School had used the name “Redskins” for its sports teams and yearbook. The High School’s “Redskins” logo depicted a Native American “warrior” in full head-dress; an image typically associated with Great Plains’ area American Indian tribes rather than the Lenni Lenape tribe that was actually indigenous to the Bucks County, Pennsylvania area where Neshaminy is located.
In 2013, the mother of a Neshaminy student of Native American descent filed a complaint with the PHRC that alleged that her son had experienced ancestry-based harassment as a result of the pervasive use of the word “Redskin” in the school environment. The mother dropped her complaint before the case was heard by the PHRC, but the PHRC then took the matter up on its own initiative and argued that Neshaminy’s use of the “Redskins” name and logo subjected students to a hostile learning environment and denied all students – not just students of Native American-ancestry – equal educational opportunities.
The hearing officer assigned to hear the case, rejected the claim that Neshaminy’s team name and mascot subjected students to a hostile learning environment because no evidence was presented at the hearing to suggest that any individual students of Native American descent subjectively experienced a hostile learning environment. However, the hearing officer did find that the district’s use of stereotypical logos and imagery that depicted Native Americans in a negative light denied non-Native American students equal educational opportunities in violation of Pennsylvania law prohibiting ancestry-based discrimination in places of public accommodation. In particular, the hearing officer found that:
Looking at the entirety of the circumstances of this case, we conclude that the District, aware of the existence of numerous stereotypes of Native Americans displayed at the Neshaminy High School, failed to provide non-Native American students, with the information necessary to prevent the formation of the idea that specifically stereotyping Native Americans is acceptable and, by extension, generally, the idea that stereotyping other minorities is also acceptable. Such a learning environment is unacceptable.
Notwithstanding this finding, the hearing officer then went on to reach the somewhat curious conclusion that while Neshaminy’s team logo was illegal and thus had to be retired, the “Redskins” team name could remain so long as the district provided “the requisite educational information . . . to ensure that students do not form the idea that it is acceptable to stereotype any group.” Neshaminy has appealed this decision to Pennsylvania state court so it is likely that another decision in this case will be issued sometime in 2021.