As states roll back DEI efforts, U.S. ratchets up anti-discrimination pressure
The roiling campus protests over the Israel-Hamas war these past few weeks has supercharged a debate over campus leaders’ ability or willingness to control antisemitism.
Last week, Catherine E. Lhamon, assistant secretary of the Department of Education’s Office of Civil Rights, issued a “Dear Colleague” letter reminding college leaders that speech that leads to a hostile environment for students can result in a Title VI investigation into alleged discrimination based on “race, color, or national origin.”
From The Chronicle’s Michael Vasquez:
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 (Howard Kallem, a former chief regional attorney for the OCR) .... 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.
Meanwhile, President Biden last month unveiled his plan to overhaul Title IX.
The Chronicle’s Kate Hidalgo Bellows and Sarah Brown broke down the key provisions of Biden’s new Title IX rule.
In short, Biden’s new Title IX rule:
- Cements legal protections for LGBTQ and pregnant students
- Expands the Title IX definition of sexual harassment from behavior that is “severe, pervasive, and objectively offensive” to “unwelcome sex-based conduct”
- Removes live-hearing and cross-examination requirements (see below for further explanation)
- Specifies the protections that students and employees have against retaliation from their institution, and clarifies that institutions must protect their students against peer retaliation
- Requires colleges to use the “preponderance of the evidence” standard to decide whether an accused student or employee is responsible for violating campus policies — unless institutions use the “clear and convincing evidence” standard, a higher bar, in all other disciplinary processes for alleged discrimination
- Mandates that colleges investigate allegations of off-campus misconduct that results in a “hostile environment” on campus
- Requires employees with teaching or advising responsibilities to report instances of sex discrimination that involve students to the institution’s Title IX office — enshrining the mandatory-reporting policies that most colleges already have
In a recent Review essay, Louis H. Guard and Joyce P. Jacobsen pointed out the dramatic increase in discrimination lawsuits in the last half century:
Title IX has accounted for much of the campus-news headlines over the past 10 to 15 years, and it continues as an area where the general counsel expends significant time and effort. In addition to policy changes spurred by oft-changing regulations, the general counsel may also give process advice in individual cases. Title IX litigation has also evolved significantly, with courts disagreeing over key aspects of the legal standards related to lawsuits under the statute.
Enforcement of Title VI is an evolving area that has recently been punctuated, sadly, by a nationwide rise in both antisemitism and Islamophobia. A Department of Education investigation at the University of Vermont is an example: A complaint alleged that a campus group sought to exclude Jewish students, and that Jewish students faced online harassment from a teaching assistant — as a part of the resolution the university agreed to revise its policies and issued a statement. Actions under the Americans With Disabilities Act have also increased on campuses in recent years, affecting a wide range of issues including service animals, academic accommodations, physical campus accessibility, and faculty and staff layoffs and firings.
It’s not difficult to see the squeeze that evolving federal and state discrimination policies have placed on colleges.
In some states, Republicans have told colleges that their diversity, equity, and inclusion efforts, purported to reduce discriminatory practices, are in fact discriminatory against certain groups of people and can violate free-speech principles.
As of this week, we’ve tracked 153 college campuses in 20 states that in the last year have made significant changes to their DEI efforts.
This pressure will force colleges to fight actual and perceived acts of discrimination in an identity-blind way under the heavy scrutiny of state lawmakers.
What I’m reading ...
- In advance of President Biden’s speech at Morehouse College’s commencement, The New York Times asked why there have been so few Israel-Hamas war protests on HBCU campuses.
- Shenandoah County’s school board reversed its 2020 decision — which came after the killing of George Floyd by police — to remove Confederate officers’ names from three of its schools.
- Florida A&M University has hit pause on a $237-million gift presented to administrators at its commencement. Jerell Blakeley asks if the administrators were fooled.
