Racism is immoral, antidemocratic, harmful to individuals and institutions, and violent. It is also illegal, which is the focus of this column.
1. Individual racism is intentional discrimination based on race. Systemic racism refers to inequities, practices, and policies that may or may not result from discrimination in the past and that have a discriminatory effect today.
2. Individual race discrimination appears on college campuses in the form of employment discrimination and discrimination against students. Title VII prohibits intentional discrimination based on race in employment. Title VI prohibits intentional discrimination based on race against students in an educational program or activity. Institutions should have policies and programs to prevent, identify, and redress individual discrimination.
3. Systemic racism, however, is not always illegal or actionable. Disparities that may stem from historical discrimination may be unfair, but not a violation of Title VI or the Equal Protection Clause. Policies and practices may have a disparate effect but it may not be possible to prove discriminatory intent. Intent as part of historical racism, however, is clear. Who would argue that slavery and segregationist laws were not legally mandated intentional discrimination? Systemic racism includes present-day inequities that are the residual effects of historical intentional racism.
4. Consider the lack of diversity in employment or admissions. Although not a 1-to-1 causal relationship, a lack of diversity represents in part the present-day result of centuries of intentional racism and/or practices and policies that have a systemic discriminatory effect.
5. In claims of individual discrimination, Title VI and Title VII typically do not allow lawsuits based solely on statistical inequities or facially neutral policies that are at the heart of systemic racism. Intent is required. Nevertheless, even in the absence of intent, “disparate impact” theories can be used under Title VII (but not Title IX) to attack the discriminatory effects of policies and practices. Furthermore, colleges and universities can review their own policies to determine if they and/or unconscious bias have a discriminatory effect and contribute to systemic racism.
6. This is particularly true for employment and admissions practices and policies that cause a lack of diversity. The Supreme Court has approved affirmative action in admissions, which can be used to address the consequences of systemic racism. This remedy is less legally supportable for disparities in employment but institutions can still use the goal of diversity to address inequities caused by systemic racism.
7. Another opportunity for colleges and universities to use the law to address racism on campus is to take a fresh look at race discrimination under Title VI and the Equal Protection Clause. Just as the law has expanded Title IX to cover sexual harassment, so too should institutions interpret Title VI to make a broader category of racist conduct illegal. This would have practical consequences for the student conduct code and training on bias, racial harassment, and racial justice.
8. Institutions should also review their policies on the interplay between hate speech and the First Amendment. More expansive definitions of racial harassment and discrimination under Title VI, combined with a fresh analysis of First Amendment exceptions, such as true threats and intentional incitement to violence, might provide institutions with more effective tools to address racism on campus.
9. Colleges and universities should review policing practices and policies and how they affect racial justice. Further, police have an important role in protecting students and others on campus from hate crimes, racist threats, violence incited by outside provocateurs, and other forms of racism. Police should be allies in promoting racial justice.
10. The law has contributed to systemic racism. Through discriminatory language in the Constitution, Supreme Court decisions, Jim Crow laws, unequal criminal justice, and more, the law has helped embed racism in our institutions and society. Colleges and universities should include this history in their educational programming, including for board members and senior leaders. But as noted above, the law and lawyers can also be part of the solution.
Steve Dunham, JD, is the vice president and general counsel for Penn State University.
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