What is Title VI, and How Does it Apply to Free Speech Rights on Campus?
| | Student Rights, Title VI
Schools, particularly colleges and universities, are designed to be places of learning where students acquire knowledge and develop their capacity for critical thinking. However, they are also supposed to be welcoming and safe environments where all students are respected. Numerous laws are in place to protect the safety and well-being of students, faculty, and staff on campus.
These two attributes often conflict, particularly in the context of political issues. Students want to exercise their right to express themselves, but at some point, those expressions run the risk of infringing on the rights of others. Schools often try to balance these competing rights through the rules they establish in their codes of conduct. Balance is tricky to achieve, and even more difficult to maintain.
When students express their opinions or protest the actions of others and are accused of violating their school’s code of conduct, they often do not realize that the consequences can be quite serious. While schools cannot issue criminal sanctions, the penalties they are empowered to impose often have permanent effects on a student’s academic and professional career. For that reason, it is a good idea to consult a student defense attorney for advice and assistance anytime a student is accused of violating conduct rules.
Title VI is often cited as a justification for actions involving protests and speech rights on campus, so it is essential to understand how this law has been applied in cases and what this application could mean in future legal actions.
What is Title VI?
Title VI of the Civil Rights Act of 1964 prohibits any program and activity that receives federal funding, which includes virtually all colleges and universities, from discriminating against, denying benefits to, or excluding anyone “on the ground of race, color, or national origin.” Individuals who believe their Title VI rights have been denied by an institution have the right to either file a complaint with the federal agency that funds the institution or file a lawsuit in federal court. While Title VI prohibits intentional discrimination, the federal regulations implementing the statute also frequently prohibit practices that have the practical effect of resulting in discrimination on the grounds of race, color, or national origin.
The specific text of Title VI hasn’t changed in over half a century, but over time, the regulations interpreting statutory requirements have expanded, and agency guidelines for applying the regulations often change depending on political priorities.
How Title VI Has Been Used on Campuses
Originally, Title VI was used as a tool to put a stop to segregation and other forms of discrimination in schools. In recent times, however, the statute is being used increasingly by educational institutions as a justification for actions that some believe repress students’ rights to free speech and expression. These actions include dispersing protests, suspending certain student groups, canceling presentations and film screenings, limiting speakers’ access to campus, and other restrictive measures.
These moves have been made, at least ostensibly, to protect students who could potentially be threatened by the protests and counter-protests, particularly those regarding attacks in Israel and Gaza. And many students have filed complaints alleging that schools have not responded properly to protect them from discrimination based on their national origin or shared ancestry.
The Department of Education (DOE) issued guidance indicating that schools might need to consider prioritizing Title VI protection efforts over First Amendment free speech rights. Earlier, the DOE Office for Civil Rights had issued guidance to “remind” schools of the Title VI obligations and order them to take “immediate and effective action to respond to harassment that creates a hostile environment.” The OCR clarified that a hostile environment is created by “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.”
Balancing Rights
The Supreme Court has stated that administrative agencies like the DOE violate the First Amendment when they use guidance or threats of sanctions as a means to pressure institutions to distance themselves from speakers spreading a message that the agency disagrees with. There is concern that the DOE is doing just that when it tells schools they need to take decisive action against protesters. In private meetings, the DOE is supposed to have told school leaders that slogans supporting Palestinian freedom may have created a hostile environment for Jewish students. Yet these slogans, when used as part of a political protest, are considered by many to constitute speech protected by the First Amendment.
When balancing rights (i.e., the Title VI rights of students to be free from a hostile environment against the First Amendment rights of students to express their political beliefs), there is usually plenty of room for persuasive, well-crafted arguments on both sides of the issue. That means that if a student is subjected to disciplinary action because of their participation in a protest or other activity that should arguably have been protected by the First Amendment, it is in the student’s interests to make those arguments in a timely fashion.
Legal Advice and Advocacy are Vital When a School Alleges Misconduct
School disciplinary matters move at a fast pace. Students can be accused of a violation and pestered into giving up rights before they even have a chance to understand what their rights are in a given situation. Frequently, statements they make are taken out of context and used against them, and they are found “responsible” for a violation that can lead to serious sanctions.
Having even a minor disciplinary sanction on a student’s record can interfere with their ability to move forward with their education or prevent them from reaching career goals.
When a student is accused of violating the school’s code of conduct, they need advice and assistance from an experienced student defense attorney as quickly as possible. At Nesenoff & Miltenberg, we have been protecting the rights of students in campus proceedings all around the country for decades. We understand what’s at stake, and we work quickly and effectively to protect an accused student’s reputation and future opportunities.
To learn more about the assistance we can provide with a code of conduct issue anywhere in the U.S., schedule a confidential consultation today by calling 212-736-4500 or contacting us online.