Client Alert: Summary of OCR Title VI Guidance on Response to Campus Protests and Antisemitism

This summer, in the wake of campus protests throughout the country, the U.S. Department of Education’s Office of Civil Rights issued a number of letters of findings and resolution agreements resolving Title VI investigations at certain colleges and universities: University of Michigan, City University of New York, Lafayette College, Brown University, and Drexel University. OCR also issued a fact sheet providing questions, answers, and examples clarifying school’s obligations to prevent and address hostile environments that violate Title VI.

The guidance provided by these findings letters and fact sheet is summarized below. Please reach out to Hailyn Chen and Bryan Heckenlively to learn more.

1. Overview of Title VI obligation

• Rule. A school with actual or constructive notice of a hostile environment based on race, color, or national origin must take prompt and effective steps reasonably calculated to:
  • End the harassment,
  • Eliminate any hostile environment and its effects, and
  • Prevent the harassment from recurring.
• A school’s response must be reasonable, timely, and effective. The response must be designed to redress fully the specific problems experienced as a result of the harassment.
• OCR has explained that school communications condemning the harassing conduct and/or providing supportive measures are insufficient responses to allegations of a hostile environment. OCR expects schools to conduct investigations into allegedly harassing conduct and to assess whether affected students need additional support.

2. When a school must initiate investigation or inquiry

• Rule. A school must initiate an investigation or inquiry when the school receives actual or constructive notice of allegations of harassing conduct affecting students that could constitute a hostile environment.
  • Constructive notice. OCR has explained, that if a school could have found out about the harassing conduct if it had made a reasonably diligent inquiry, and if the school should have made such an inquiry, knowledge of the harassing conduct will be imputed to the school. A school may be found to have had constructive notice if it has notice of some, but not all, of the incidents involved. If the alleged harasser is an agent or employee of the school, acting within the scope of their official duties (where the individual has actual or apparent authority over the students involved), then the school will be deemed to have constructive notice of the harassing conduct.
• Where such conduct occurs. The school’s obligation is triggered by actual or constructive notice of such harassing conduct affecting students, regardless of whether the conduct occurs on campus, off campus, in-person, or online, including on private social media accounts. Schools may not categorically decline to investigate allegations of harassment that occurs online or on private social media accounts.
• Who engages in such conduct. The school’s obligation is triggered by actual or constructive notice of such harassing conduct affecting students, regardless of who engages in the conduct. The offending actor need not have any affiliation with the school. OCR has made clear that schools have an obligation to act regardless of whether the school can invoke a formal disciplinary process.
• Who is targeted by the harassing conduct. A hostile environment can exist even if the harassing conduct was not targeted at a particular person or at the person or group of people experiencing a hostile environment.
• A school cannot close an investigation solely for the following reasons related to a complainant’s response. OCR’s recent findings letters have made clear that an investigation cannot be closed solely because:
  • The complainant fails to respond to the school’s outreach or declines the school’s supportive measures. The school cannot condition its response on the responsiveness of the complainant, and the school itself may proceed as a complainant.
  • The complainant wishes to stay anonymous. Again, the school itself may proceed as a complainant.
  • The complainant does not file a formal complaint. The school’s obligation is triggered upon actual or constructive notice.

3. Supportive measures for affected students

• Must be offered to all affected students. A school must offer supportive measures to all affected students, not just to the complainant. Some investigation may be needed to determine who is affected.

4. Assessing whether a hostile environment exists

• Rule. Unwelcome conduct based on race, color, national origin, or shared ancestry creates a hostile environment under Title VI when, based on a totality of the circumstances, it is: (1) subjectively and objectively offensive; and (2) so severe or pervasive that it (3) limits or denies a person’s ability to participate in or benefit from the school’s education program or activity.
• A school must interview relevant witnesses. Even if a complainant or complaining witnesses fails to respond or declines to participate, a school with actual or constructive notice of harassing conduct that creates a hostile environment must interview relevant witnesses. A school’s response is insufficient in these circumstances if it focuses solely on the complainant or complaining witnesses.
• A school must look at the totality of the circumstances. The totality of the circumstances includes the cumulative effect of individual incidents. A school must assess whether incidents have the cumulative effect of creating a hostile environment.
• Documentation of investigation. The school should document the steps it took to investigate the allegations.

5. Student conduct or other disciplinary proceedings

• A school that is prohibited by the First Amendment or other policies from punishing the exercise of free speech rights should still pursue its investigation and adjudication process for an alleged violation of school policy. A school that has actual or constructive notice of conduct creating a hostile environment still must investigate, even if the school ultimately cannot formally sanction the individuals who engaged in the conduct. That investigation could help determine, for example, whether a hostile environment existed, what harassing conduct actually occurred, and the universe of students affected by the hostile environment.
  • OCR has not provided clear guidance on the appropriate disposition when conduct is protected by the First Amendment. We see three possible options: (1) a school could investigate the facts without reaching a conclusion on whether policy was violated; (2) a school could find that the conduct violates school policy but that discipline cannot be imposed because such conduct was an exercise of free speech rights; or (3) a school could find that the conduct was not a violation of school policy because school policy provides that an exercise of free speech cannot constitute a violation of policy.
• A school must address allegations that decisionmakers are biased. When complainants or witnesses express concern regarding bias, those concerns should at least be explore further and addressed – and if not addressed, the reasons for not taking any action should be documented.

6. Documentation and centralized oversight

• A school should centralize its documentation of how it responded to allegations of hostile environments. Even if the school’s responses to different incidents are handled by different departments, documentation should be maintained in one centralized location.
• A school must ensure that its responses are evenhanded. OCR has explained that, especially where the school’s responses to different incidents are handled by different departments, the responses must be consistent.

7. Communication to complainant

• A school must explain to a complainant why it concluded that conduct did not rise to the level of a policy violation. If a school determines that conduct does not amount to a policy violation, it must give the complainant an explanation.