Recent resolution agreements between the U.S. Department of Education’s Office for Civil Rights (OCR) and the University of Michigan (U-M) and the City University of New York (CUNY) offer valuable lessons for colleges and universities nationwide. These agreements, addressing complaints of discrimination based on shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry and/or the association with these national origins/ancestries, reflect OCR’s evolving standards for compliance with Title VI of the Civil Rights Act of 1964. Higher education institutions should heed these lessons to avoid and/or neutralize regulatory scrutiny.
In the midst of antiwar protests and a rise in antisemitic incidents at institutions of higher education (IHE) across the country, the Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) on May 7, 2024 reiterating its commitment to enforcing Title VI of the Civil Rights Act of 1964.
After an extensive period of public commentary and deliberation, the U.S. Department of Education (ED) announced significant updates to its Title IX regulations on April 18, 2023. The changes are largely designed to overhaul how institutions of higher education (IHE) consider and address cases of sexual harassment, sexual assault, LGBTQI+ discrimination, and other forms of sex-based mistreatment, with the goal of ensuring gender equity in education.
On Aug. 14, 2023, the Office for Civil Rights of the United States Department of Education and the United States Department of Justice issued joint guidance to institutions of higher education with respect to the Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The guidance, in the form of a Dear Colleague Letter and a Q&A document, clarifies the Departments’ position as to practices that are and are not permissible in the wake of the decision, and encourages institutions’ continued use of lawful means to enroll and support a diverse student body. For example:
As part of the NCAA’s efforts to promote diversity and gender equity in intercollegiate athletics, NCAA Bylaw 20.2.4.3 requires that all Division I athletic departments perform a diversity, equity and inclusion (DEI) assessment and file an attestation of completion of the review with the NCAA by November 3, 2023.
BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon.
On May 25, 2023, the United States Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL) “as part of the Department’s launch of an Antisemitism Awareness Campaign” described in the Biden-Harris Administration’s U.S. National Strategy to Counter Antisemitism dated the same day. The DCL specifically notes the “nationwide rise in reports of antisemitic harassment, including in schools,” and reiterates the applicability of Title VI in this context. Title VI prohibits discrimination based upon race, color, or national origin by higher education institutions (IHEs) receiving federal financial assistance, and this protection from discrimination extends to students who experience discrimination, including harassment, based upon their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Therefore, students who are or are perceived to be Jewish are protected under this basis, and the DCL cautions that IHEs and K-12 “[s]chools must take immediate and appropriate action to respond to harassment that creates a hostile environment for these students.”
The United States Department of Education announced today a delay in the anticipated date for release of its Final Rule setting forth revised Title IX regulations. The Department had previously advised that the Final Rule would be released during the month of May, but now anticipates publication in October.
In the past six months, the federal courts have addressed some novel issues about what is a “sport” under Title IX, as well as questions of standing, retaliation, financial aid, class certification and Title IX’s equitable opportunities and benefits requirements. These cases reflect that the landscape of Title IX continues to change and requires careful attention to ensure that your school or institution does not inadvertently drift into Title IX violation.
Although transgender athletes have been competing for many years – recall Renee Richards playing professional women’s tennis in the 1970’s – the participation of trans-female athletes has recently resurfaced as a sensational headline topic. The Trump and Biden administrations took polar opposite positions and federal courts have issued conflicting rulings on this issue, which appears headed to the U.S. Supreme Court.
It is a common practice in collegiate athletics to separate teams in two or more “tiers” of “major” and “minor” or “revenue” and “non-revenue” sports. Tiering may not be explicitly intended by administrators, but informal tiering is relatively common by virtue of emphasizing some teams over others. While tiering is not per se a violation of Title IX, it must be organized properly to avoid violations.
In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards.
