The Office of Civil Rights (OCR) of the United States Department of Education, by virtue of its special place within the US Department of Education (ED), is the enforcer ensuring that hate has no place on college and university campuses.  OCR applies a series of laws to protect all students from discrimination on, among other things, the basis of race, ethnicity, religion, color, national origin, ancestry, sex (including pregnancy, childbirth or related medical condition), age, disability, medical condition, marital status, genetic information, sexual orientation, gender, gender identity, and gender expression. When it comes to religion, OCR derives authority from Title VI of the Civil Rights Act of 1964 (Title VI) which protects students of any religion from discrimination, including harassment, based on a student’s actual or perceived, “shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity.”  

The regulation implementing Title VI, at 34 C.F.R. § 100.3, provides that no person shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program to which Title VI applies.

Since the events of October 7, 2023, and the ensuing maelstrom that has occurred, OCR has been busy addressing allegations of antisemitism, anti-Muslim and anti-Palestinian incidents on campuses across the country.  Beginning in late spring and continuing through the summer, news of settlements of investigations have taken over the headlines. OCR has announced resolution agreements with the City University of New York (CUNY), the University of Michigan, Brown University, and Lafayette College. With over 40 other colleges and universities under OCR investigation related to the institution’s response to alleged harassment involving national origin, it is likely that OCR will continue to play a role in the response to discrimination.

Campuses must also be mindful that it is not just OCR that is investigating how campuses handle complaints involving religious discrimination. Private actions have been instituted as well.  Multiple institutions have recently been named in lawsuits alleging discrimination and harassment. In July 2024, New York University (NYU) announced a settlement of a lawsuit  in Inger, et. al. v NYU, with NYU agreeing to take certain steps to address antisemitism on campus. As part of that agreement, NYU announced that it is creating a Title VI Coordinator position, similar to a Title IX Coordinator, to oversee Title VI compliance and the implementation of OCR regulations and guidance. NYU will also implement mandatory antisemitism training for all students and staff, among other terms of the agreement. It is also worthy of note that the wave of litigation is not solely focused on the colleges and universities themselves – OCR itself has been sued for dismissing a complaint against the University of Pennsylvania.   See Brandeis Center sues OCR (insidehighered.com)).

In light of incidents of alleged discrimination and harassment reported throughout the country and these recent OCR agreements, Chief Academic Officers must review their own policies and procedures to ensure their compliance with Title VI.  More importantly, they must maintain a welcoming campus for all.

Each of the OCR settlement agreements affords a “lessons learned.” Below are some, though not all, of the common issues gleaned following the settlements:

Reassess and strengthen antidiscrimination and harassment policies and procedures:  In each of the four resolution agreements for the above- mentioned, the first action item is a review of the policies related to Title VI obligations. While the policies and procedures at each campus will vary, all schools may benefit from a comprehensive review of their own policies and procedures to ensure their compliance with Title VI. Policies should include clear statements of the antidiscrimination policies, contact information for the individual who receives and investigates discrimination and retaliation reports, clear details about how to report discrimination and retaliation, and the procedures used to investigate and resolve those complaints. Campus policies should also be clear about the intersection of Title VI and academic freedom, policies related to protest and demonstrations, and the investigation of incidents occurring on social media.

Incidents that occur on social media: Several incidents described involved allegations of harassment occurring on social media. Campuses must pay careful consideration to the intersection of free speech and responsibilities under Title VI, particularly in terms of investigating and addressing a hostile environment.  In the University of Michigan letter, OCR described that:

[w]hile the University may not discipline speakers for protected speech, the University retains a Title VI legal obligation to take other steps as necessary to ensure that no hostile environment based on shared ancestry persists. At minimum, therefore, the University has an obligation to evaluate whether any incidents of harassment of which it has notice rise to the level that they create a hostile environment to which the University must respond promptly and effectively.

Similarly, OCR noted that Lafayette College’s approach to social media was noncompliant with Title VI obligations where the College: 

appears to have operated a categorical policy not to address allegations of harassment on private social media – as distinct from social media of a College-recognized student group as [described in one incident] – unless the harassment constituted a direct threat. This practice does not satisfy the Title VI obligation to take prompt and effective steps to redress a hostile environment about which the College knows; that requirement is not limited to conduct that occurs on campus or outside social media. 

OCR noted Lafayette’s inconsistent responses to two matters, one involving a student protester on campus with a phrase on a sign, and the other to the same phrase used on social media. The school’s response to the occurrence on campus indicated that Lafayette was concerned about a potential hostile environment, but they took no action and gave no consideration to a potential hostile environment when it occurred online. Campuses must ensure that they meet their Title VI obligations and address a hostile environment if created either on campus or on social media. In short, all campuses may benefit from a review of their own policies and procedures involving social media.

Training: Each resolution agreement, generally speaking, involves a commitment to train students and/or employees on topics related to Title VI. While the details vary by the needs of each institution, this may include annual nondiscrimination training for employees and students and training for those who investigate complaints, including on how to identify relevant witness and how to conduct interviews about harassment. With fall semester orientation quickly approaching, now is a prime time to consider developing and incorporating further training for employees and students.

Review of administrative structure: Recent lawsuits and OCR investigations highlight the complexities of maintaining federal compliance. In January 2024, while the OCR investigation was still pending, Brown University announced the creation of a new Office of Equity and Compliance and Reporting to oversee federal compliance, including with Title VI, Title VII, Title IX, and the ADA/504. Furthermore, as part of NYU’s lawsuit settlement announced in July 2024, noted above, NYU intends to create a Title VI Coordinator position to oversee Title VI compliance and the University’s response to allegations of discrimination and harassment. While each campus’s structure and needs are unique, others may also take a careful look at their own administrative offices and determine what new or updated supports are needed at this time.

Chief Academic Officers and Provosts should work with their Office of Compliance and other relevant administrative units to ensure a review of policies and necessary revisions thereto in light of the lessons learned during the last academic year.  There is a line between free speech and hate speech and the OCR is actively reminding colleges and universities of our responsibility to provide campuses free of discrimination and hate. A careful review of the settlement agreements provides an excellent starting point to develop a checklist for policies and procedures regarding the responsibilities of institutions of higher education so that no one intentionally runs afoul of Title VI obligations and thereby jeopardizing the ability to participate in federal financial aid programs for our students.

Written by

Patricia E. Salkin, J.D., Ph.D. Senior Vice President for Academic Affairs and Provost of the Graduate and Professional Divisions, Touro University

Gabrielle Rosenblum, J.D., Special Assistant to the Provost, Touro University