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College Racial Discrimination & Harassment

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College Racial Discrimination & Harassment Lawyers

Students at nearly all colleges and universities in the U.S. are bound by codes of conduct. Most college codes of conduct include prohibitions against certain forms of bias-motivated behavior, including racial discrimination and harassment. When it comes to racial discrimination and harassment, most college codes of conduct have language that clarifies actions and behavior that violate university policy. It is important for potential complainants and respondents to understand how these codes of conduct function and what they prohibit, and to know what to do if you are the target of racial discrimination or are accused of racial discrimination.

Bias-Motivated Conduct Concerning Race on College Campuses

Bias-motivated conduct is prohibited on college campuses through codes of conduct. In a code of conduct, a college or university will clarify what types of behavior are expected of students, and what kinds of behavior are unacceptable. Bias-motivated conduct is typically any kind of behavior that is motivated by an existing prejudice or even an implicit bias against a specific person or a group that is protected against discrimination on the basis of race, national origin, disability, sex, sexual orientation or gender identity, or religion.

Typically, college codes of conduct make behavior actionable when it is both motivated by bias and intended to cause any type of harm. As such, language or actions that arise out of implicit biases may not violate a code of conduct. The ability of a college or university to limit certain types of speech or behavior depend on a variety of factors, including whether the institution is private or public. Some codes of conduct contain more prohibitions against discrimination on the basis of race and other protected categories than others.

Bias-motivated conduct when it comes to race can affect students in classrooms, residence halls, athletic fields, university-sponsored activities, and other parts of campus life.

Complainant Issues in Bias-Motivated Conduct

Complainant issues in bias-motivated conduct may include but are not limited to:

  • Personal safety concerns and fears of bodily injury
  • Concerns about the safety of others on the college campus
  • Fears about the college or university’s position when it comes to protecting students of color on campus
  • Worries about retaliation for filing a complaint
  • Questions about whether the issue should also be reported to local law enforcement
  • Options for reducing contact with the alleged perpetrator

Respondent Issues in Bias-Motivated Conduct

Respondent issues in bias-motivated conduct may include but are not limited to:

  • Freedom of speech concerns
  • Academic freedom concerns
  • Fears about being suspended or expelled from the college or university
  • Reputation with faculty, staff, and other students in the college community
  • Worries about issues of defamation, or slander or libel, on the college campus and the larger community
  • Possibility of facing criminal charges

Examples of College Policies Concerning Bias-Motivated Conduct on Campus

Each college and university campus has its own code of conduct that outlines prohibited behavior and community standards on campus. When it comes to racial discrimination and harassment, many codes of conduct use language that mirrors certain federal laws that prohibit discrimination on the basis of race, including the Civil Rights Act of 1964. For example, Hampshire College has a code of conduct that says it “prohibits discrimination on the basis of race, color, religion, creed, sex, age, marital status, national origin, mental or physical disability, political belief or affiliation, veteran status, sexual orientation, gender, gender identity, gender expression, genetic information and any other class or individuals protected from discrimination under state or federal law.”

In terms of prohibitions against harassment, colleges and universities take different approaches. Some outline prohibitions against bias-motivated speech and conduct, while others give broad allowances to First Amendment free speech guarantees. For instance, Texas A&M University’s conduct code says it “respects the right of free speech guaranteed by the First Amendment of the Constitution and of academic freedom,” but it clarifies that “threatening or harassing speech” is excluded. The university’s code of conduct further clarifies that it prohibits “racial and ethnic harassment,” which it defines as “discrimination on race, color, or national origin and involves behavior that is so severe and pervasive and objective offensive so as to interfere with or limit the ability of a student to participate in or benefit from the services, activities, or privileges provided by Texas A&M University.”

In defining racial harassment, Texas A&M, as an example, makes clear that, “to rise to the level of racial and ethnic harassment, behaviors must include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive.” Further, the code of conduct explains, “the conduct must also be sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program and/or experience.”  The U.S. Department of Education provides additional information about determining whether unlawful racial harassment has occurred based on both a “hostile environment analysis” and a “severe, pervasive or persistent standard.”

Examples of Offending Behaviors

The following are examples of recent offending behaviors at a variety of U.S. colleges and universities:

  • Racist stickers posted around the campus at Iowa State University
  • Student government advisor at Iowa State University in “blackface”
  • Racist graffiti at Syracuse University, including language derogatory to African Americans, Native Americans, and students of Asian descent
  • Syracuse University students participating in a bias-motivated verbal assault against an African American student
  • Students at University of Wisconsin-Eau Claire posting a series of racist social media posts from Snapchat
  • Noose in a residence hall at Auburn University
  • Colorado State University students appearing in “blackface” on a social media post

Depending upon the code of conduct, “blackface” may be a violation at some institutions, while it might fall under free speech provisions at other institutions. In many situations, unlike social media posts or other forms of speech, can be interpreted as a threat and may even violate certain hate crime laws.

Indeed, in some cases, bias-motivated behavior could rise to the level of hate crime allegations under state law. Currently, 46 states and the District of Columbia have state laws that criminalize certain forms of bias-motivated behavior. As the U.S. Department of Justice explains, “different jurisdictions define hate crimes to include different bias motivations.” There are also a handful of federal hate crime laws, and certain bias-motivated incidents can be prosecuted federally under the Civil Rights Act of 1968. Generally speaking, most hate crime laws require a knowing attempt to cause bodily injury to a person on the basis of race or another protected category. Most of the incidents described above likely would not be classified as hate crimes, but it is important to know the specific state law where the college or university is located.

Contact a National College Code of Conduct Lawyer for Assistance

At Nesenoff & Miltenberg, LLP, we know that bias-motivated conduct cases can be particularly contentious and can raise a variety of issues for all parties involved in the matter. Whether you are facing allegations of bias-motivated conduct or have filed a complaint concerning bias-motivated conduct on your college campus, we know how difficult and complicated this process can be. Given that we routinely represent both complainants and respondents in bias-motivated conduct violations and other code of conduct issues on college campuses nationwide, we are familiar with both sides of the process. Regardless of whether you are a complainant or a respondent, it is extremely important to take allegations of bias-motivated conduct seriously and to work with an experienced college code of conduct lawyer on your case. Contact Nesenoff & Miltenberg, LLP online or call us at 212-736-4500 to set up a consultation.