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Increase in Bias-Related Incidents on Campus — Protect Your Legal Rights

The latest rounds of violence in the Middle East have ramped up political and religious tension on many college campuses. Some analysts suggest that campuses might be headed toward the level of violence experienced in the late 1960s when campus protests often turned to aggressive episodes that resulted in property damage and injuries.

However, colleges and universities in the current environment are responding in a much different fashion than they did to the protests in the 1960s. They often hire staff specifically tasked with managing a response to bias-related incidents in a way that quiets unrest while minimizing the potential for negative press. These bias response teams have come under fire from critics on either end of the spectrum, some alleging that they do not do enough to protect students at risk while others allege that they quell free speech and unfairly infringe on students’ rights.

Students caught up in one of the current protests or acts of violence on campus are often not certain how to act. They may witness events or language and wonder if it should be reported and to whom. They may be accused of participating in a bias-related incident because they happened to be in the wrong place at the wrong time. Or they might find themselves facing disciplinary action for what they believed to be a valid exercise of their free speech rights. An experienced student rights attorney could provide guidance in these situations, but here are some general factors to keep in mind.

Campus Violence in the Headlines

Not surprisingly, bias-related incidents on campus tend to increase in response in times of national and international conflict. Allegations of bias-related incidents that are severe enough to be penalized as hate crimes have recently flooded the news with the current Middle East war heightening tension between those who support different sides.

Reported incidents on campuses include:

  • A student alleged to have punched a Jewish student and spit on an Israeli flag at the University of Massachusetts at Amherst
  • An unknown driver who yelled obscenities directed at “your people” to an Arab-Muslim student while hitting and injuring the student at Stanford University
  • A student at Cornell University who was arrested after allegedly posting threats on an online forum involving an intent to rape, injure, and kill Jewish students
  • An investigation by St. John’s University of an incident in which someone posted a flyer of a hostage held by Hamas outside the university’s Muslim Prayer Room

The last incident is an example of a bias-related action that would not appear to rise to the level of a hate crime but that could trigger future violence. Schools are coming under increasing pressure to respond to these incidents in a manner that satisfies critics. They need to balance the students’ need for safety with the rights of expression, and sometimes their approach weighs too heavily to one side.

What is a Bias-Related Incident?

Bias response teams are intended to develop some sort of positive reaction to a bias-related incident when it occurs on campus, but what exactly constitutes a bias-related incident? The definition varies depending on the language in the school’s student code of conduct. Many definitions coordinate with the language used in civil rights legislation. For instance, the definition in use at the University of Rochester describes a bias-related incident as a behavior or act that is directed against or targets someone based on characteristics such as “race, color, religious belief, sex, marital status, sexual orientation, gender identity or expression, national or ethnic origin, disability, veteran status, or age.”

Some schools’ definitions are broader. Pacific University describes a bias incident as behavior or expression that reveals “conscious or unconscious bias.” This would seem to indicate that a student could violate the policy without being aware of it.

Other definitions prohibit bias expressed against more categories of individuals or groups. At Goucher College, for instance, bias incidents also include conduct directed against someone based on socioeconomic status, weight, homelessness, citizenship status, and ancestry. The Goucher College definition also specifies that an incident can be intentional or unintentional. However, the provisions defining bias incidents also explain that not all bias incidents are considered crimes or violations of the code of conduct.  

In fact, many of the definitions simply state that a bias incident may violate the school’s code of conduct. However, a bias incident generally always triggers an official response when it is reported. 

Bias may be very evident based on statements made as part of the incident. The examples above indicate pretty clearly that bias was a motivating factor behind the actions on campus. But as the codes of conduct seem to indicate, sometimes bias may be inferred, especially if it is unconscious or unintentional.

Title VI Obligations

In response to what the Biden Administration referred to as “the alarming rise in reports of antisemitic, Islamophobic, and other hate-based or bias-based incidents at schools and on college campuses,” the U.S. Department of Education issued a new Dear Colleague guidance letter to schools regarding their legal obligations under Title VI of the Civil Rights Act of 1964 to provide students a school environment where students are not discriminated against on the basis of race, color, or national origin, including shared ancestry or ethnic characteristics.

The Department explained that under their interpretation of Title VI, harassment creates a hostile environment on campus when it consists of “unwelcome conduct based on shared ancestry or ethnic characteristics that, based on the totality of circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” When harassment creates a hostile environment, the Department notes that “[s]chools must take immediate and effective action to respond.” 

With regard to what would constitute an appropriately “immediate and effective” response, the Department refers schools to a Fact Sheet issued in January and a Dear Colleague guidance letter issued in May of this year. The Fact Sheet notes that discrimination based purely on religion is not covered by Title VI. It is only when religious issues are coupled with appearance issues or characteristics associated with ethnic identity, such as name or speech accent, that schools have Title VI obligations.

The May guidance letter informs schools that if they knew or should have known about a hostile environment, they must take action “reasonably calculated” to stop harassment, eliminate the hostile environment and the effects of that environment, and prevent renewal of the hostile environment. However, neither that letter nor the Fact Sheet specifies particular measures schools must take to satisfy their Title VI obligations.

Filing a Title VI Complaint

If someone believes that a school has discriminated against a student on the basis of race, color, or national origin, they can file a discrimination complaint with the Department of Education’s Office for Civil Rights. Presumably, if an individual believes the educational institution has allowed a hostile environment to exist and failed to take adequate steps to address the issue, that would provide grounds for a Title VI complaint against the school. The person who files the complaint does not need to be the person who experienced harassment, but he or she could be a member of staff, a family member or anyone who has become aware of the acts of discrimination.

In response to recent campus incidents, the Department has issued an updated Title VI complaint form. The new form clearly specifies that the protection provided by Title VI for discrimination based on race, color, or national origin extends to students perceived to be Jewish, Muslim, Hindu, or Sikh. It also includes antisemitic or anti-Muslim harassment as examples of ethnic slurs that constitute discrimination.

Students Caught in the Middle

During these tense times on campus, students are often caught in the middle of administrative wrangling just as they can be caught up in violent incidents themselves. It is important for students to understand that they have the right to an environment free from unlawful discrimination and that if they do not, there are legal options to address the issues. At the same time, students who have been accused of bias-related conduct and penalized without a fair opportunity to address accusations also have legal options to protect their rights and educational opportunities.

If a school is not doing enough to protect students, an attorney can assist with filing a Title VI complaint or pursuing action in court. Students who feel that they have been wrongfully accused of bias-related conduct could benefit from legal advice and representation early on to assist with campus proceedings as well as further legal action as warranted.

Student Rights Lawyers Work to Protect Students in Challenging Situations

Experienced student rights lawyers understand how to protect students who are threatened by a discriminatory environment as well as those who face excessive retaliation or discipline without a fair opportunity for defense. Schools have an obligation to respect and balance the rights of students, and they don’t always honor that obligation the way they should.

The dedicated team at Nesenoff & Miltenberg, LLP is ready to protect and defend student rights in bias-related situations on campus anywhere in the country. Contact us for a confidential consultation to discuss how we could assist.