The Office for Civil Rights has resolved six investigations into how colleges responded to reports of antisemitism. The findings show how those colleges fell short of federal law and hold lessons for the rest of higher ed. Published by Inside Higher Ed on 9/4/24 Over the course of nearly a decade, Jewish students at the University of Illinois at Urbana-Champaign reported more than 135 incidents of alleged antisemitism. In one, a student was reportedly targeted because he was Jewish, with the alleged attacker later telling him, “I wish my ancestors finished the job on you.” In other incidents, an unidentified person threw a brick through a window of a Jewish fraternity house; another carved a swastika in a campus bathroom. Those are just a few of the incidents that the Education Department’s Office for Civil Rights said Tuesday created a “possible hostile environment” for Jewish students that the university did not take effective action to address. OCR found the university also failed to examine whether a broader problem existed on campus for Jewish students—a key obligation under federal law, and a step that other colleges have also failed to take. OCR says a hostile environment is one that “limits or denies a person’s ability to participate in or benefit from a recipient’s education program or activity.” Determining whether such an environment exists, then taking actions to address it and prevent it from recurring are core obligations for colleges and universities under Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin—and covers discrimination based on shared ancestry, which includes antisemitism and Islamophobia. The University of Illinois isn’t alone in falling short on its Title VI obligations—particularly when it comes to assessing whether a hostile environment exists. Each of the six higher ed antisemitism investigations resolved this summer found universities coming up short on this score. Colleges across the country have faced a reckoning over campus antisemitism in the past academic year as students protested the war in Gaza. Jewish students have reported feeling unsafe, while federal lawmakers and regulators have ratcheted up their scrutiny of institutions. The reckoning and OCR’s focus on Title VI has prompted colleges to improve their processes and policies for handling reports alleging national origin discrimination and for creating new trainings for faculty, students and staff on antisemitism. But those measures are just the starting point if colleges want to avoid federal scrutiny. As they grapple with how to safeguard students’ First Amendment rights and address antisemitism, they also need to ensure they monitor for hostile environments. But how to determine whether one exists is murky. What is clear at this point is that universities will need to take some action after receiving a report of shared ancestry discrimination—and addressing the incidents or reports on a case-by-case basis won’t be good enough. Instead, the hostile environment analysis must take into consideration “the totality of the circumstances.” That means that college officials need to look beyond “the four corners of the report,” said Gina Maisto Smith, who chairs the institutional response group for the law firm Cozen O’Connor. That could include checking with the dean of student affairs or the campus Hillel, for example, to see if there are other incidents that haven’t been reported. They also need to consider any other reports that were made and the context surrounding them. College officials have to do that review even if the alleged conduct in the report wasn’t a policy violation. “It is lowering the threshold for schools to act to a point where they are rolling up their sleeves and investigating every report that comes in,” Smith said, “and they don’t have the resources to do that.” Smith and other lawyers who work with institutions said that meeting this standard will be difficult or nearly impossible for colleges, especially those with limited resources. In guidance released earlier this year, OCR lawyers said a hostile environment can “take the form of a single victim and multiple offenders.” But the harassing conduct doesn’t have to be targeted at anyone in particular. Leslie Gomez, vice chair of the Cozen O’Connor Institutional Response Group, said that colleges should track patterns and trends on campus and understand the broader context of reports in order to “put our finger on the pulse of our culture and climate.” “But to me, that’s very different than determining in every single instance, have we reached the level of potential hostile environment, even where the conduct on its face would not violate policy? And that’s the expanded application of Title VI,” she said. “Essentially what I hear OCR saying in the resolution letters is, even if a school is following all of the steps identified in OCR’s guidance documents, a school’s efforts will be found lacking if acts of antisemitism continue to occur on campus.” Making the hostile environment calculus more difficult is that some of the conduct includes protected speech, such as criticism of Israel, that some consider to be antisemitic. Jewish students have reported protests in support of Palestinian people and the use of phrases such as “From the river to the sea, Palestine will be free,” which some consider antisemitic, to their universities. Historically, some colleges have declined to act on students’ complaints because the speech was protected by the First Amendment. OCR made clear this summer that colleges are required to respond to harassing speech whether it’s in person or online. However, colleges have limited tools to address the hostile environment created by protected speech. If they can’t discipline the student whose conduct prompted the complaint, how can institutions eliminate the hostile environment, several lawyers asked. OCR said in guidance that institutions have tools to respond to a hostile environment that don’t restrict First Amendment rights, such as communicating “opposition to stereotypical, derogatory opinions” or providing counseling to students affected by the harassment. Complying with Title VI shouldn’t mean infringing on student’s First Amendment rights, according to OCR. But legal experts are worried about its guidance encouraging colleges to crack down on protests—a persistent concern since demonstrations broke out on campuses in the spring. Robert Shibley, special counsel for campus advocacy at the Foundation for Individual Rights and Expression, said OCR has been sending “mixed messages.” He thinks it’s impossible to discern what standard OCR is holding colleges to. “At what point would an environment become hostile as opposed to politically charged?” he asked. “If they are going to require this of schools, OCR needs to provide a clearer yardstick for when speech crosses the line.” “The ultimate effect is that schools will err on the side of chilling and punishing protected speech, and that’s not acceptable with the First Amendment,” he added. ‘Useful Signal’ Kenneth Marcus, founder of the Louis D. Brandeis Center for Human Rights Under Law, who led OCR during the Trump administration, said the resolution agreements are sending a “useful signal” to colleges about their Title VI responsibilities. Administrators, he said, are “realizing that these campus disputes need to be viewed as civil rights matters and not merely as political controversies.” The Brandeis Center has filed several complaints with the Education Department over antisemitism. In the past, he said, too many college administrators didn’t ask whether there was a hostile environment. “When Jewish students are harmed by antisemitism,” he said, “there is always something that the university can do.” Marcus said that if colleges find the “appearance of a developing hostile environment,” they should consider three questions: “First, are there conduct code or criminal law violations that need to be investigated? Second, does the climate on campus need to be addressed, whether through training and orientation, educational activities, climate surveys, or the creation of new programs? Third, does the affected community require some form of support?” At the very least, he said, college administrators should “avoid sitting back and doing nothing.” To comply, colleges likely need to approach Title VI the way they handle Title IX, the federal gender-equity law whose regulations dictate how colleges respond to sexual harassment and misconduct, said Seth Gilbertson, a lawyer at Bond, Schoeneck & King who works with colleges. But unlike with Title IX, the federal government hasn’t issued regulations detailing how colleges can follow the law. Gilbertson recommends that colleges create a committee to review reports and determine whether a hostile environment exists when they receive Title VI complaints. “You are trying to make an objective decision on something that, at this point especially, is subjective in nature for a lot of people,” he said. Institutions, he expects, are more ready for Title VI complaints this academic year, “instead of being sort of totally blindsided as we were last fall.” Over the past year, colleges have created or updated policies to ensure there is a process to review and respond to reports of shared ancestry discrimination and harassment. Several institutions have also enacted stricter rules for campus demonstrations, such as restrictions on amplification of sound and masking. “Smart administrators are doing a lot right now to put themselves in a better position if protests get ugly in the fall,” said Marcus. At this point, OCR’s resolution documents have focused on whether colleges checked to see if a hostile environment existed, so the agency hasn’t detailed what types of actions to address a hostile environment and prevent one from recurring would pass muster. Gilbertson said that he doesn’t see OCR second-guessing how institutions respond to a hostile environment—at least for now. What’s more important is whether the college took any action. “I would be more concerned about showing OCR that the institution was responsive and thoughtful and understood the gravity of what is going on rather than the specific response,” he said. Still, he does think that colleges can clear OCR’s standard. “It’s difficult but not impossible,” he said. “Look at how far we’ve come on Title IX—but that’s taken a long time.”