Title VI and Peer-to-Peer Racial Harassment at School: Federal Appellate Decisions

Title VI and Peer-to-Peer Racial Harassment at School: Federal Appellate Decisions

Legal Sidebari

Title VI and Peer-to-Peer Racial Harassment at
School: Federal Appellate Decisions
December 8, 2023
Section 601 of Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or
national origin in federally funded programs. While that mandate applies broadly to federally funded
programs of various types, one significant area that Title VI covers is schools. All public and most private
colleges and universities receive federal financial assistance, as do all K-12 public school districts.
Individuals subjected to racial discrimination by a recipient of federal funds may sue to enforce Section
601 in federal court. If a federally funded school, public or private, intentionally discriminates against a
student because of their race, color, or national origin, the student may sue the school under Section 601
of Title VI.
Reports of racial harassment at schools raise the question of what responsibilities a school has when
students harass one another based on their race. As explained below, courts have determined that a
school’s inadequate response to peer-to-peer racial harassment can amount to race discrimination in
violation of Title VI. While this Sidebar focuses on judicial enforcement of Title VI in the specific context
of racial harassment, the Department of Education’s Office for Civil Rights (OCR) is also entrusted with
enforcing the statute in federally funded schools. OCR’s administrative role in enforcing Title VI is
explored in other CRS products; as a general matter, OCR’s administrative standards may not always
mirror the judicial standard for holding schools liable.
Title VI Liability: Failing to Respond to Racial
Harassment
Although the text of Title VI does not explicitly address harassment, one potential claim of race
discrimination under Title VI is that a school failed to respond adequately to racial harassment of
students. Courts will sometimes consider a school’s response to such harassment as amounting to race
discrimination in violation of the statute. This basis of liability draws from Supreme Court cases
interpreting another law that applies to certain recipients of federal funds, Title IX of the Education
Amendments of 1972 (Title IX). Title IX bars sex discrimination in federally funded education programs
and was modeled after Title VI. The Supreme Court has reasoned that Congress “passed Title IX with the
explicit understanding that it would be interpreted as Title VI was.” As explained below, lower courts
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have drawn on cases recognizing sexual harassment claims under Title IX to determine liability under
Title VI in the context of racial harassment.
Title IX and Peer-to-Peer Sexual Harassment
The Supreme Court has determined that a school district’s inadequate response to sexual harassment by
peers can constitute sex discrimination in violation of Title IX. In Davis Next Friend LaShonda D. v.
Monroe County Board of Education, for example, the Court held that federally funded school districts
with (1) actual knowledge of sexual harassment of a student by peers can be held liable for (2) a
deliberately indifferent response to the harassment if (3) the harassment is “so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of access to the educational opportunities or
benefits provided by the school.” In crafting this standard for actionable harassment under Title IX, the
Court pointed to its prior decision in the Title VII context, in which the Court recognized a claim for
“hostile environment” sexual harassment in the workplace. A hostile environment claim under Title VII
must show the harassment is “sufficiently severe or pervasive.” The Court explained that determining
whether harassment was actionable under Title IX would often be fact-intensive.
The Court made clear that schools may not be held liable unless the school’s own deliberate indifference
subjects students to harassment. In this peer-to-peer context, harassment thus must take place in situations
in which the school has “substantial control” over the harasser and the context in which the misconduct
occurs. When misconduct occurs on school grounds during school hours, for instance, that would be
satisfied. If “the harasser is under the school’s disciplinary authority,” a recipient may be liable for its
deliberate indifference to sexual harassment; the Court in Davis particularly emphasized the school
board’s authority to take adequate “remedial action” against the harassment in that case. The Court also
explained that the deliberate indifference standard of liability would only be met when a school’s
response is “clearly unreasonable in light of the known circumstances.”
Application of Title IX Deliberate Indifference Standard
to Title VI Harassment Claims
The Supreme Court has not expressly addressed a Title VI racial harassment case or the standards it
would apply to such a claim. However, federal appellate courts have drawn from the standards established
in the Supreme Court’s Title IX sexual harassment cases, notably Davis, to impose liability in Title VI
cases alleging racial harassment between students. In 2003, not long after the Supreme Court’s decision in
Davis, the Tenth Circuit in Bryant v. Independent School District No. I-38 of Garvin County, Oklahoma
reversed a district court ruling that there was no cause of action under Title VI to remedy a racially hostile
education environment. In that case, the appellate court ruled that the plaintiffs had alleged facts that
could support a cause of action for intentional discrimination under Title VI by claiming the school had
“facilitat[ed] and maintain[ed] a racially hostile environment.” The court reasoned that because Congress
based Title IX on Title VI, the Supreme Court’s interpretation “of what constitutes intentional sexual
discrimination under Title IX directly informs our analysis of what constitutes intentional racial
discrimination under Title VI (and vice versa).” The Tenth Circuit instructed the district court on remand
to apply the test from Davis for liability, meaning the plaintiff had to show that the school district had
actual knowledge and was deliberately indifferent to racial harassment that was so severe, pervasive, and
objectively offensive that it deprived students of access to educational benefits or opportunities.

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“Severe, Pervasive, and Objectively Offensive” Standard
Other federal appellate courts have similarly drawn from Davis to recognize Title VI liability for a
school’s inadequate response to racial harassment between students. One important analytical factor under
Davis is whether harassment is so “severe, pervasive, and objectively offensive” that it deprives students
of equal educational opportunities. As in Title IX sex harassment cases, precisely when the standard is
met in the context of Title VI harassment claims often turns on the specific facts at issue.
It appears that racial harassment that includes repeated violent attacks against a student can satisfy the
severe, pervasive, and objectively offensive standard. In Zeno v. Pine Plains Central School District, the
Second Circuit affirmed a jury verdict for the plaintiff in a Title VI racial harassment case, finding the
harassment met the requisite standard. In addition to being subjected to continuous racial slurs nearly
every day and explicit and implicit threats such as references to lynching, the student endured physical
attacks that required police attention, including punching and choking. These acts persisted for over three-
and-a-half years. The Second Circuit found that this harassment deprived the student of educational
benefits, as it prevented the student from having a supportive educational environment free of harassment
and resulted in the student graduating early with a limited diploma instead of staying to fully complete
their studies.
Likewise, in Doe v. Galster, the Seventh Circuit ruled that a jury could find that repeated violent attacks
amounted to severe harassment that deprived a student of educational opportunities. In that case, which
included both Title IX and Title VI claims for peer harassment, the student was subjected to multiple
physical attacks, including being punched, struck with metal track spikes, and hit with sticks by multiple
assailants. These attacks drove the student out of the school district. The Seventh Circuit distinguished
these attacks from earlier name-calling and scuffles, which the court did not appear to view as amounting
to severe harassment.
Repeated violent attacks are not necessarily required for actionable harassment under this standard,
however. In Fennel v. Marion Independent School District, the Fifth Circuit ruled that plaintiffs
established a genuine dispute that a racially hostile environment existed where students were subjected to
repeated racial slurs and threats. Quoting a pre-Davis Ninth Circuit Title VI case, the Fifth Circuit
reasoned that it was undeniable that “repeatedly ‘being referred to by one’s peers by the most noxious
racial epithet in the contemporary American lexicon, [and] being shamed and humiliated on the basis of
one's race’ is harassment far beyond normal schoolyard teasing and bullying.” Further, a noose along with
a note full of racial epithets was placed by a student’s car, which “underscore[d]” the severity of the
harassment. This environment, the court held, deprived students of educational opportunities, as two
students withdrew and moved to another district and another suffered anxiety and needed alternative
study arrangements.
Similarly, in the Tenth Circuit Bryant case discussed above, the court concluded that the plaintiffs alleged
sufficient facts to support a racially hostile environment claim under Title VI. In that case, the plaintiffs
claimed that the school permitted the use of racial slurs and epithets, as well as “the letters ‘KKK’
inscribed in school furniture and in notes” placed in the lockers and notebooks of Black students. Further,
plaintiffs claimed students were permitted to wear confederate flags, swastikas, and KKK symbols on
their shirts, as well as to display nooses on “their person and their vehicles.”
Deliberate Indifference
Even when harassment is shown to meet the “severe, pervasive, and objectively offensive” standard, a
school will not be liable unless it responds with deliberate indifference. This is a “high bar” that will not
be met simply by showing that a school was negligent. The Court in Davis made clear that a plaintiff must
show that a school’s response was “clearly unreasonable in light of the known circumstances.” The

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clearest case of deliberate indifference is a complete failure to act or respond to known harassment. When
a school does respond in some manner, whether a court will find deliberate indifference turns on the
specific facts at issue.
Courts will sometimes find a school’s response to be adequate, and thus not violate Title VI, when it
intervenes or addresses misconduct and modifies or escalates its responses according to the seriousness of
the situation. For instance, in the Fifth Circuit Fennel case discussed above, the court found that the
plaintiffs sufficiently alleged a racially hostile environment where they endured repeated racial slurs and a
noose placed by their car accompanied by a note with racial epithets. The court nonetheless concluded
that the school district was not deliberately indifferent and thus not liable under Title VI. The court
reasoned that the school district “took some action in response to almost all of the incidents,” and took
“relatively strong action to address the most egregious incidents.” After the noose incident, the district
provided the students various accommodations, including allowing one student to park in the teacher’s lot
and do school work in the counselor’s office, and providing an aide to walk another student to school. In
addition, some students were suspended for using racial slurs.
By contrast, the Second Circuit in the Zeno case affirmed a jury verdict finding a school district
deliberately indifferent to racial harassment in violation of Title VI. The court in that case rejected the
school district’s argument that its response was adequate because it immediately suspended nearly every
student harassing the plaintiff, contacted parents, and withdrew school privileges. The Second Circuit
reasoned that while prompt disciplinary action can sometimes be sufficient, a school’s response must
nonetheless be considered according to the circumstances; when circumstances change, a school’s
response may need to adapt. In the Zeno case, the school’s disciplinary measures did not stop others from
harassment, which grew increasingly severe; the measures had little if any effect on “taunting and other
hallway harassment.” The court ruled that the jury could have found the school’s response deliberately
indifferent in three ways. First, the district took a year or more to implement any nondisciplinary remedial
action. The panel reasoned that the district’s failure to do more facilitated further harassment. Second, the
jury reasonably could have found that the additional actions the district did take “were little more than
half-hearted measures.” Finally, a jury could have reasonably found that the school district “ignored the
many signals that greater, more directed action was needed.”
Considerations for Congress
The test that federal courts apply under Title VI for claims of racial harassment between students is
judicially constructed and derived from standards the Supreme Court set out for evaluating Title IX sexual
harassment claims. Congress can choose to leave development of these issues to the courts, but it has a
number of available options if it wants to alter the applicable legal requirements. As an initial matter,
Congress can amend Title IX and alter the standards applicable for sexual harassment under that law.
Congress may also amend Title VI to include text that addresses harassment, such as defining what
harassing conduct is, setting the threshold for when harassment requires a school to respond, or codifying,
rejecting, or altering the current standard of deliberate indifference applied by lower federal courts.
Another option for Congress is altering the current enforcement scheme. While Title VI is currently
enforced by private plaintiffs in court through an implied private right of action and by agencies through
the administrative process, Congress could, for instance, decide to eliminate one method of enforcement.
For example, if legislators believe school districts are overburdened by litigation, Congress could
eliminate the ability to sue in court. Conversely, Congress could cabin enforcement by administrative
agencies and rely primarily on judicial enforcement of the law.
Further, Title VI claims address discrimination based on race, color, and national origin. Congress could
also pass legislation that adds additional protected classes to the law, consistent with constitutional
limitations. Congress could also amend the law to require alignment of the standards applied by courts

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and OCR, or establish explicit standards specific to each context. In either case, Congress could require
agencies, such as the Department of Education, to promulgate new regulations consistent with the revised
law. Finally, beyond the harassment context, Congress can refine through legislation what conduct
amounts to race discrimination under the statute.

Author Information

Jared P. Cole

Legislative Attorney

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