What’s New
College leaders who’re wondering whether chaotic protests on their campuses could trigger federal investigations now have a more explicit answer.
On Tuesday, the Education Department’s Office for Civil Rights released a “Dear Colleague” letter that spelled out in greater detail what sorts of episodes could trigger investigations into alleged discrimination “based on race, color, or national origin.”
The list of Title VI investigations has steadily grown in the aftermath of Hamas’s October 7 attack on Israel and Israel’s subsequent war in Gaza. Colleges have been criticized for becoming sites of antisemitic and other discriminatory rhetoric.
Tuesday’s letter, penned by Catherine E. Lhamon, assistant secretary of civil rights, may serve to remind colleges of the consequences of inaction. “OCR is letting schools and the public know that they’re watching,” said Howard Kallem, a former chief regional attorney for the OCR.
The Details
The examples the letter features as possible triggers for an investigation closely mirror some widely reported episodes that have transpired on college campuses.
In one hypothetical example, a college student, who is Israeli, decides to file a complaint with the OCR alleging that he was subjected to a hostile environment after a professor stated, during office hours, that “Israelis don’t even deserve to live.” Afterward, both the professor and other students make similar comments in class.
(Several instructors have faced discipline for online and classroom rhetoric. Last year, a Stanford University lecturer reportedly told students to move to the back of the class and compared the treatment to how Israel treats Palestinians.)
In another example, a pro-Palestinian demonstration attracts counterprotesters who shout “terrorist” at the demonstrators and even physically attack some students. Some of the demonstrators file complaints to the administration but are told no action is warranted “because it seems that most of the counterprotesters are not students.”
(At the University of California at Los Angeles, counterprotesters attacked demonstrators as security officials watched. The campus has pledged an investigation.)
In both examples, if the OCR receives a complaint from a student, it “would have reason to open an investigation,” the letter said.
The Backdrop
College leaders have struggled to respond to encampments that have sprung up on their campuses. One factor in their decision-making is the legal risks associated with allowing continued protests that violate campus rules. Tuesday’s letter could underline those legal risks further.
Critics of colleges that have taken a hard line against encampments allege that doing so stifles speech protected by the First Amendment.
In the letter, Lhamon wrote that colleges could respond to discrimination in ways that do not restrict free-speech rights, like forcefully condemning hate speech, offering counseling, or starting other programs.
But it’s clear from the letter’s examples that protected speech can be the spark that leads to the creation of a hostile environment. That may represent a change, said Kallem, the former OCR official. Speech-based incidents have historically not been penalized by the office. “Here, they’re going further than that, and possibly even reversing their position,” he said.
What to Watch For
As the Gaza War continues, colleges have faced not just legal peril but public pressure to fight back against antisemitism. Politicians are continuing to spotlight the issue, including at a congressional hearing planned for later this month. The presidents of Yale, Rutgers, and Northwestern Universities, as well as the Universities of California at Los Angeles and Michigan at Ann Arbor have been invited to participate.
What the leaders say may offer clues on how presidents will continue to handle the unfolding crisis.
