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.

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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.

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On May 30, the U.S. District Court for the Southern District of New York granted New York University’s (NYU) motion to dismiss in a lawsuit[1] from a first-year law student claiming that NYU School of Law’s process for selecting students to serve as editors of its Law Review gives preference to women and minorities in violation of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The complaint was dismissed without prejudice on two grounds: 1) lack of subject-matter jurisdiction; and 2) failure to state a claim. This lawsuit is the first legal challenge to a law review diversity policy following the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), which struck down race-based admission processes at colleges and universities.

Factual Background

The complaint filed in October 2023 notes that prior to the Supreme Court’s decision in SFFA, the NYU Law Review would invite 50 students from the rising second-year class to join the academic journal as editors. Twelve of the 50 spots were filled by the Law Review’s Diversity Committee, which required applicants to submit personal statements and gave them the option to submit resumes. The Diversity Committee selected students in consideration of factors that included (but were not limited to) the applicant’s “race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age.”

According to the plaintiff, a student identified as “John Doe,” NYU Law Review changed its website after the SFFA decision by removing any explicit reference to diversity in the membership-selection process, but it is clear “that ‘diversity’ remains a prime consideration in the selection of members.” Doe alleges that the Law Review currently requires applicants to submit a “statement of interest” for consideration by the academic journal’s Selection Committee and gives students the option to also submit a resume.

Doe claims that as a heterosexual white male, the application process will subject him to race and sex discrimination and deny him “an equal opportunity to compete for membership” when he applies for Law Review in the summer of 2024. Specifically, Doe asserts that the Law Review uses statements of interest and resumes to “give preferential treatment to women, non-Asian racial minorities, homosexuals, and transgender people when selecting its members.”

The Court’s Reasoning

First, U.S. District Judge Vernon S. Broderick determined that Doe lacked the necessary standing to bring his lawsuit. The court explained that Doe’s allegations concerning what information students may share with the Law Review in their applications or how that information may be used are speculative and cannot confer standing upon Doe. The court further stated that the complaint is “devoid of any factual support” for Doe’s arguments, as it “does not plead, in other than a conclusory way, how the Law Review is discriminating now or will discriminate in the future.” Doe’s failure to plead factual allegations of a discriminatory selection process implemented by the Law Review established no injury-in-fact, and therefore no basis for standing or the court’s exercise of subject-matter jurisdiction over the case.

Even if Doe had standing to bring his suit, the court held that the complaint would still be dismissed for failure to state a claim under Title VI and Title IX because Doe’s claim lacked “facts supporting his allegation that NYU is giving and intends to give preferential treatment to certain minority groups.” The court added that the Law Review’s commitment to diversity pre-SFFA, and even post-SFFA, is not unlawful:

"Considering the lack of any language in the selection policy demonstrating a preference for students of a protected class and the absence of any allegations supporting the inference that the selection policy would result in preferential treatment of such students, I cannot conclude that the Law Review’s continued commitment to diversity gives rise to a plausible inference of unlawful conduct."

In effect, this SDNY opinion reinforces the holding in the Supreme Court’s decision in SFFA to expressly acknowledge that universities may consider an individual’s lived experiences or socio-economic challenges in its admission processes, as long as it does not do so based on race or any other protected characteristic alone.

As of the date of this memo, it is unclear whether this case will be appealed to a higher court. Bond will continue to closely monitor this and related affirmative action cases for updates and bring them to you in a timely manner.

If you have any questions about the implications this case may have for your institution, please contact any attorney in Bond’s higher education practice or the attorney at the firm with whom you are in regular contact.

*Special thanks to Associate Trainee Camisha Parkins for her assistance in the preparation of this memo. Camisha is not yet admitted to practice law.

[1] John Doe v. New York University, 1:23CV10515-VSB-SN (S.D.N.Y. 2023).

We previously reported here that institutions of higher education (IHE) located in New York State are required to submit a copy of all written rules and procedures necessary to demonstrate compliance with Article 129-A and Article 129-B of the New York State Education Law to the New York State Education Department (NYSED or Department) for review. As promised, NYSED has provided more detailed information on how to submit these materials. All materials must be submitted by July 1, 2024.

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