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Civil Rights Act

The US Department of Education's Office of Civil Rights (OCR) has been investigating and resolving complaints against numerous universities for violating Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in programs or other activities that receive federal funding.

Since the 2024 spring semester began, OCR received complaints against numerous universities, including Columbia University, University of Michigan, and the City University of New York, alleging instances of harassment and discrimination against various groups.

OCR Guidance

Marking the 60th anniversary of the Civil Rights Act of 1964, OCR released a new fact sheet aimed to help universities assess its federal civil rights obligations as recipients of federal financial assistance. OCR's guidance is intended to help universities better understand their obligations and provide resources to remedy hostile environments.

According to OCR, harassing conduct based on race, color, or national origin creates a hostile environment that violates Title VI when such conduct, based on the totality of the circumstances, is (1) subjectively and objectively offensive and (2) so severe or pervasive that it limits or denies a person's ability to participate in or benefit from the recipient's education program or activity. OCR assesses an institution's response to such harassment using a hostile environment legal analysis. To establish a Title VI violation, OCR must find that (1) a hostile environment based on race, color, or national origin existed; (2) the college/university had actual or constructive notice - knew or should have known of the hostile environment; and (3) the institution failed to take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.

Resultant Litigation

Various universities, including Harvard University, University of California, Los Angeles (UCLA), and University of Pennsylvania (Penn), have been faced with a wave of litigation from students who allege to have experienced harassment and discrimination on campus. These allegations arose from protests precipitated by Hamas' attacks on Israel on October 7, 2023, and Israel's subsequent response.

A few of these cases are beginning to settle, but the settlement agreements remain confidential.

Actions Taken in an Attempt to Ameliorate the Situation

In response, certain colleges and universities have agreed to create new positions aimed to alleviate the hostility on campus and provide students with increased resources to seek help. For example, Columbia University has established a "safe passage liaison" who will serve as the contact for students with protest-related safety concerns, and New York University created a Title VI Coordinator role who will oversee how the institution responds to complaints of discrimination that violates Title VI.

Some universities have gone the opposite direction. Specifically, Emerson College announced faculty layoffs and decreased enrollment due to the protests. Additional actions taken have included Penn banning encampments and UCLA opting to withhold degrees from graduating students involved in the protests.

Federal Legislation

In addition to the use of Title VI of the Civil Rights Act, new legislation has been introduced attempting to diffuse the friction seen on various campuses.

On May 1, the US House of Representatives passed H.R.6090 on a 320-91 bipartisan vote, which, if enacted, would require OCR to use the International Holocaust Remembrance Alliance's working definition of antisemitism when reviewing or investigating complaints of discrimination based on race, color, or national origin in programs or activities that receive federal financial assistance. Any educational program or activity risks losing its federal funding if it fails to abide by this definition.

However, this Act has drawn criticism from both sides of the aisle, with various politicians raising differing First Amendment concerns. Organizations, such as the American Civil Liberties Union (ACLU), have also voiced apprehensions regarding the impact this Act could specifically have on constitutionally protected speech. This Act has not yet been brought to the Senate floor.

Other similar legislation has been introduced in the House, but no other bill has been passed. Such proposed legislation likely will not be enacted: (1) H.R. 8221, which threatens to revoke student visas from protesters who are charged with a crime related to such demonstrations, and (2) H.R. 8321, which would require a person convicted of unlawful activity at a university campus to provide community service in Gaza for at least six months.

Numerous pieces of legislation have also been introduced in the Senate: (1) S. 4274, which would require the Federal Bureau of Investigation (FBI) to place students who have been disciplined by a university for supporting foreign terrorist organizations or encouraging antisemitic behavior on the "No Fly List", and (2) S. 3887, which would propose a mandatory sentencing for rioting and increase riot sentencing to 10 years.

Much of this proposed legislation conflicts with existing laws and are thus unlikely to be enacted.

Policy Preparation

As previously discussed, the importance of having well-defined policies that are evenly applied cannot be overstated. This remains true for public universities, private universities, law firms, private companies, and nonprofit organizations. Equally important is that those policies must be clear, communicable, and transparent for constituencies both on and off-campus.

As one of the leading national law firms for nonprofits and associations, we can bring the multiple other related areas, such as environmental, social, and governance (ESG) (where the 'G' for governance is too often overlooked), compliance and Government Relations, to help higher education leadership (and others) navigate these and other complex issues.

Additional research and writing from Nicole Kaufman, a 2024 summer associate in ArentFox Schiff's New York office and a law student at the Benjamin N. Cardozo School of Law.

• Les Jacobowitz

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