Cases & Developments

Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Emory University resolving a complaint that the latter responded inadequately to discrimination based on shared Palestinian, Muslim, and/or Arab ancestry and/or race. The associated Resolution Letter noted that OCR joined the University’s President in expressing concern with the “gratuitous violence of … law enforcement” seen through publicized videos of arrests during the April 2024 protests, which may have created a hostile environment for Palestinian, Arab, or Muslim university members. OCR expressed concerns regarding potential ambiguity in the University’s publicly available policies and procedures on reporting discrimination and noted that clarification could support compliance with the requirements of Title VI. The Agreement sets forth the University’s commitment to: (1) revise its nondiscrimination policies and procedures; (2) conduct annual training for all students, employees, investigators, and campus law enforcement; (3) engage in file reviews; (4) administer a climate survey; and (5) report out regarding training, assessment, and reviews. 

Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and the University of Cincinnati resolving a complaint that the latter responded inadequately to alleged discrimination based on shared Jewish and Palestinian ancestry. The associated Resolution Letter noted that the University had notice of approximately two dozen reports of alleged harassment based on Jewish or Palestinian ancestry, during the 2023-2024 academic year. OCR’s investigation found that the University was under responsive to reports of shared ancestry harassment it received, in that if the underlying speech was protected no further action was taken to remediate potential harm occasioned by the speech. OCR reiterated institutional obligations to address alleged harassment even if a complaint could not identify a perpetrator by name; the conduct was not directed at a specific individual; the conduct involved multiple perpetrators or a registered student organization; or the conduct occurred off campus. The Agreement sets forth the University’s commitment to: (1) provide training to investigators, staff, officers, and students, (2) conduct a climate assessment, (3) engage in file reviews, (4) revise University policies and procedures, and (5) report out regarding training, assessment, and reviews. 

Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Rutgers University resolving a complaint that the latter responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted OCR’s compliance concerns regarding both potential different treatment of students based on their shared ancestry, as well as the University’s response to reports of alleged harassment and possible hostile environments for students based on their national origins (including shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry). OCR’s investigation considered over 100 reports from students, employees, and members of the public alleging Jewish/Israeli-based discrimination and/or harassment during academic years 2022-2023 and 2023-2024. OCR’s investigation also surfaced concerns as to if the University adequately evaluated whether reported or investigated harassment created a hostile environment for students, potentially permitting a hostile environment to persist unmitigated. OCR found that the University responded to reported incidents individually but was less effective in considering putative cumulative, hostile effects on the environment and remediating those effects on impacted students. Lastly, OCR expressed concerns for consistent treatment of students based on their national origin with respect to implementation of University policies and procedures governing student conduct and events on campus, such as doxxing. The Agreement sets forth the University’s commitment to: (1) provide training to investigators, staff, students, and officers, (2) conduct a climate assessment, (3) engage in file reviews, (4) issue a statement to all University students and employees that the University does not tolerate acts of discrimination, including harassment, on the basis of national origin, including shared ancestry and ethnic characteristics, (5) conduct listening sessions between relevant University administrators and representatives from relevant affinity groups, and (6) report out regarding training, assessment, and reviews.  

Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and John Hopkins University resolving a complaint that the latter responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted that OCR considered documentation of 99 incidents of alleged harassment on the basis of shared ancestry that were reported to the University from October 2023 through May 2023. OCR further reviewed the University’s Policy and Procedures, correspondence to the University community, and recognized the University’s proactive response to some incidents that could contribute to a hostile environment for students, while also identifying potential concerns regarding the University’s fulfillment of its Title VI obligations responsive to alleged discriminatory conduct. The Agreement sets forth the University’s commitment to: (1) provide training to investigators, staff, and students, (2) conduct a climate assessment, (3) engage in file reviews, and (4) report out regarding training, assessment, and reviews. 

The U.S. Department of Education’s Office for Civil Rights (OCR) published a new resource titled “Resolving a Hostile Environment Under Title VI: Discrimination Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics.” The Resource is intended to help school communities in understanding their obligations under Title VI, explores considerations for schools to take into account when taking action to resolve a hostile environment, and provides numerous examples of former Resolution Letters and Resolution Agreements.  

Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Temple University resolving a complaint that the latter responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted that OCR considered reports concerning alleged harassment and/or discrimination based on shared Jewish ancestry related to October 12, 2023, off-campus and October 25, 2023, on-campus protests along with “50 incidents of alleged harassment … during the 2023-2024 school year.” The Letter “recognize[d] the University’s responsiveness to notice it received regarding some incidents that could contribute to a hostile environment” while identifying “concerns” pertaining to potential gaps “in steps [to] consistently to assess whether the incidents about which it had notice individually or cumulatively created a hostile environment” for campus constituents. The Agreement sets forth the University’s commitment to (1) provide training to investigators, staff, and students, (2) conduct a climate assessment, (3) engage in file reviews, and (4) report out regarding the training, assessment, and reviews.  

Memorandum and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiffs, the Louis D. Brandeis Center, Inc., a Jewish legal advocacy non-profit, and Jewish Americans for Fairness in Education, (JAFE) brought a putative class action against Harvard College alleging it allowed Jewish and Israeli students to be “subjected to cruel antisemitic bullying, harassment, and discrimination.” Plaintiffs brought claims of direct discrimination; hostile educational environment; and retaliation under Title VI, and allege numerous examples of purportedly Antisemitic behavior, including that a professor required students to abandon a project based on their Israeli and Jewish identity and compared their use of the words “Jewish State” to advocating for America to become a country of “White supremacy.” An external investigation found the professor’s treatment of plaintiffs “ran counter to the College’s free speech and anti-bias policies, and that the professor created a hostile learning environment and subjected students to bias. Following this finding, plaintiffs claim the College failed to take remedial action. Plaintiffs further allege that this differed from when pro-Palestinian protestors shoved a keffiyeh in a Jewish student’s face while he was filming a protest and told him to “get out” and that after he refused other protestors joined in and pushed him, resulting in criminal charges for assault and battery. In that instance, plaintiffs claim the College declined to take further action citing the charged criminal action, choosing to rely upon the criminal charges as sufficient. Finally, a JAFE member allegedly emailed the College seeking help getting to her lab due to fear of protesters who they claimed were “celebrating the terrorist attack and referring to it as an act of ‘justified resistance.’” but received no response from the College, and when she tried to file a formal complaint, it would not let her proceed anonymously so she dropped her complaint in fear. The court dismissed the direct discrimination claim, finding plaintiffs failed to sufficiently establish evidence beyond a reasonable inference of bias that the College treated non-Jewish and non-Israeli comparators similarly. In allowing plaintiffs’ deliberate indifference claim to proceed, the court was persuaded by the allegation that the College failed to commence an investigation for a prolonged period of several months. The court dismissed the retaliation claims absent allegations that the College took any material adverse action against plaintiffs.