For the first time, the Education Department’s office for civil rights has issued guidelines for the agency’s investigations of racial-harassment complaints.
The guidelines, which were published in the March 10 Federal Register, are not formal regulations subject to a public comment period, and thus are now in effect.
They will serve to make the department’s regional civil-rights offices “uniform in their approach’’ to racial-harassment investigations, according to Jeanette J. Lim, the director of the O.C.R.'s policy, enforcement, and program service.
In addition, Ms. Lim said, publication of the guidelines in the Federal Register puts schools and higher-education institutions on notice.
“A success for us would be a diminution of the number of complaints we get,’' she said.
Title VI of the Civil Rights Act of 1964 bars recipients of federal funds from discriminating on the basis of race, color, or national origin.
A 1984 U.S. Supreme Court decision had narrowed the O.C.R.'s jurisdiction to discrimination related to federally funded activities. But the Civil Rights Restoration Act of 1987 restored broader investigative authority, and discrimination need not occur in programs directly supported by the federal government for an institution to be found in violation of Title VI.
The new guidelines set out two types of circumstances under which schools, colleges, or other recipients of federal education aid can be held liable for racial harassment.
One applies to incidents where individuals are treated differently because of their race by employees or representatives of an institution.
‘A Subjective Area’
In addition, a school or college can be held in violation if the O.C.R. finds that it “has created or is responsible for a racially hostile environment,’' a situation that may not be the result of employees’ actions.
Under this analysis, an aid recipient is accountable for discriminatory treatment “if it has effectively caused, encouraged, accepted, tolerated, or failed to correct a racially hostile environment of which it has actual or constructive notice,’' the policy says. The racial harassment must be “severe, pervasive, or persistent.’'
Ms. Lim acknowledged that the guidelines, while established to provide uniformity in investigations, must be flexible.
“We are dealing in a subjective area,’' she said. “We are very aware of that.’'
The department has been operating under these principles for several years, Ms. Lim said. She said an attempt to establish investigative guidelines began under the Bush Administration, after the number of racial-harassment complaints rose in the 1980’s.
Last week, the department settled a harassment case that dates to April 1993, when members of a Purdue University fraternity allegedly hit, kicked, and hurled racial slurs at a black student.
The O.C.R. found that university officials knew racial harassment had occurred but did not take adequate steps “to effectively remedy the discriminatory effects,’' according to a letter of finding issued in the case. Purdue agreed to adopt new anti-harassment policies.
