On July 8, 2024, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that it had reached a resolution agreement with Brown University. This action followed an investigation concluding that Brown University had failed to comply with Title VI of the Civil Rights Act of 1964 regarding 75 reported antisemitic and Islamophobic incidents between October 2023 and March 2024 despite the University’s “notable proactive steps to support a nondiscriminatory campus environment, including updating its relevant policies and procedures in February 2024.”

Title VI Requirements and OCR Findings

Title VI mandates that institutions receiving federal funding must protect students from discrimination based on race, national origin, or shared ancestry. Colleges and Universities are required to take measures to end, eliminate, and prevent discrimination and harassment upon receiving reports. Recently, OCR has asserted that compliance with Title VI requires a more vigorous and methodical approach and many institutions previously employed.

In an outcome letter accompanying the resolution agreement, OCR expressed concerns highlighting what it described as the University’s inadequate response to some discriminatory incidents. Specifically, OCR concluded that offices involved in handling complaints had inconsistent responses and that some responsive processes were terminated if a reporting party did not reply to an initial outreach email. OCR found that this was inconsistent with the University’s obligation to assess whether a hostile environment exists independently of a complainant’s continued involvement.

Furthermore, despite commending Brown’s efforts, OCR criticized the revised policies and procedures for their lack of clarity in addressing and resolving antisemitic or other ancestry-based discrimination. OCR also questioned whether the University had reassessed Fall 2023 reports of antisemitism and other shared ancestry discrimination predating the policy revisions to determine whether further actions were required to comply with Title VI.

Resolution Agreement and Action Items

The University and OCR agreed on a Resolution Agreement outlining five “Action Items”:

Policy Revisions: The University must further revise its policies and procedures to enhance and ensure consistency in responses to discrimination allegations and clearly communicate these responses to students and faculty.

Annual Training: Brown will conduct annual nondiscrimination training for all employees and students. This training will include a specific section addressing discrimination and harassment based on national origin, with concrete examples.

Detailed Recordkeeping: The University is required to maintain detailed records of all complaints alleging discrimination, including harassment based on national origin.

Review: The University will conduct a review of its response to complaints and reports of antisemitic and other shared ancestry discrimination during the 2023–2024 and 2024–2025 academic years, and take remedial actions if required.

Climate Assessment and Action: Brown will analyze the results of any Title VI assessments conducted and, by the end of the Fall 2024 semester, identify and implement actions to improve the overall campus climate.

Readers who have been following OCR’s recent Title VI enforcement actions will find all of these requirements familiar and all institutions should consider implementing similar measures in order to reduce risk and bolster Title VI compliance. 

Conclusion

The resolution with Brown University is the fourth such agreement OCR has reached regarding allegations of shared ancestry violations of Title VI since the onset of the Israel-Hamas conflict. Similar complaints have led to OCR resolutions with City University of New York, University of Michigan, and Lafayette College. These agreements, alongside recent OCR guidance—including a Dear Colleague Letter and Fact Sheet—underscore OCR’s amplified commitment to enforcing Title VI compliance.

Educational institutions should take note of the detailed requirements outlined in these settlements, including robust complaint response, comprehensive training, meticulous recordkeeping, and proactive climate assessments.

For any questions on how this information may affect your institution, please contact Seth Gilbertson, any attorney in Bond’s higher education practice or the Bond attorney with whom you regularly work.

*Special thanks to Summer Law Clerk Grant Haffenden for his assistance in the preparation of this memo.

On July 2, 2024, the U.S. Department of Education’s Office for Civil Rights (OCR) released a new Fact Sheet. This document aims to help faculty, staff, students and families understand their rights and obligations under Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race, color or national origin, including shared ancestry or ethnic characteristics. Nearly all public elementary and secondary schools, as well as public and most private colleges and universities (IHE), are subject to Title VI due to their acceptance of federal financial assistance, such as federal financial aid.

Harassing Conduct and Hostile Environments

OCR determines that a hostile environment exists when harassing conduct is both subjectively and objectively offensive, and so severe and pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity. Harassing conduct can include verbal abuse, physical assault, graphic or written statements, or other conduct that is threatening, harmful or humiliating. Such conduct can occur in various places beyond the classroom, including residence halls, athletic fields, locker rooms or online.

Establishing a Title VI Violation

For a Title VI violation to be established, OCR must find that:

1. A hostile environment based on race, color or national origin existed.
2. The IHE had actual or constructive knowledge (knew or should have known) of the hostile environment. IHE officials can become aware of harassing conduct through formal complaints, observations by employees, or awareness shared by community members or the media.
3. The IHE failed to take prompt, effective, and reasonably calculated steps to end the harassment, eliminate the hostile environment and its effects, and prevent recurring harassment. OCR assesses the reasonableness, timeliness, and effectiveness of a IHE’s response, emphasizing that an appropriate response must fully address the specific problems caused by the harassment.

Examples of Harassing Conduct

OCR provides additional hypothetical examples[1] of situations where an investigation could be initiated for IHE receiving federal financial assistance:

1. Students repeatedly using racial slurs, mocking Black power, and creating the "Kool Kids Klub" (KKK) with a displayed confederate flag. The IHE, after interviewing the students involved, takes no further steps and advises the reporting students that there is no concern.
2. A Lebanese student files a harassment complaint alleging discriminatory treatment in a clinical placement. The IHE does not investigate, claiming it is out of their hands since the incidents occurred at the clinic.
3. An indigenous student on a football team is mocked as "the Redskin" with videos posted involving a fake ritualistic Native chant. The student informs the principal, but the only action taken is a warning to the football coach to control his players.

Conclusion

The Fact Sheet clarifies for IHE officials what constitutes harassing conduct and how the OCR assesses Title VI violations. It is crucial for IHE officials to take appropriate steps when aware of harassing conduct, either through formal complaints or other means. Failure to act can lead to further OCR involvement and potentially result in the loss of financial assistance from the Department of Education.

For any questions on how this information may affect your institution, please contact any attorney in Bond’s higher education practice or the Bond attorney with whom you regularly work.

*Special thanks to Summer Law Clerk Grant Haffenden for his assistance in the preparation of this memo. 

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[1] The Department released a Dear Colleague Letter in May 2024 that also contains hypothetical examples.