On Aug. 14, 2023, the Office for Civil Rights of the United States Department of Education and the United States Department of Justice issued joint guidance to institutions of higher education with respect to the Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The guidance, in the form of a Dear Colleague Letter and a Q&A document, clarifies the Departments’ position as to practices that are and are not permissible in the wake of the decision, and encourages institutions’ continued use of lawful means to enroll and support a diverse student body. For example:
As part of the NCAA’s efforts to promote diversity and gender equity in intercollegiate athletics, NCAA Bylaw 18.104.22.168 requires that all Division I athletic departments perform a diversity, equity and inclusion (DEI) assessment and file an attestation of completion of the review with the NCAA by November 3, 2023.
BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon.
On May 25, 2023, the United States Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL) “as part of the Department’s launch of an Antisemitism Awareness Campaign” described in the Biden-Harris Administration’s U.S. National Strategy to Counter Antisemitism dated the same day. The DCL specifically notes the “nationwide rise in reports of antisemitic harassment, including in schools,” and reiterates the applicability of Title VI in this context. Title VI prohibits discrimination based upon race, color, or national origin by higher education institutions (IHEs) receiving federal financial assistance, and this protection from discrimination extends to students who experience discrimination, including harassment, based upon their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Therefore, students who are or are perceived to be Jewish are protected under this basis, and the DCL cautions that IHEs and K-12 “[s]chools must take immediate and appropriate action to respond to harassment that creates a hostile environment for these students.”
The United States Department of Education announced today a delay in the anticipated date for release of its Final Rule setting forth revised Title IX regulations. The Department had previously advised that the Final Rule would be released during the month of May, but now anticipates publication in October.
In the past six months, the federal courts have addressed some novel issues about what is a “sport” under Title IX, as well as questions of standing, retaliation, financial aid, class certification and Title IX’s equitable opportunities and benefits requirements. These cases reflect that the landscape of Title IX continues to change and requires careful attention to ensure that your school or institution does not inadvertently drift into Title IX violation.
Although transgender athletes have been competing for many years – recall Renee Richards playing professional women’s tennis in the 1970’s – the participation of trans-female athletes has recently resurfaced as a sensational headline topic. The Trump and Biden administrations took polar opposite positions and federal courts have issued conflicting rulings on this issue, which appears headed to the U.S. Supreme Court.
It is a common practice in collegiate athletics to separate teams in two or more “tiers” of “major” and “minor” or “revenue” and “non-revenue” sports. Tiering may not be explicitly intended by administrators, but informal tiering is relatively common by virtue of emphasizing some teams over others. While tiering is not per se a violation of Title IX, it must be organized properly to avoid violations.
In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards.
On Jan. 31, 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a new fact sheet interpreting Title VI of the Civil Rights Act of 1964, which prohibits discrimination in federally assisted programs and activities based upon race, color or national origin. OCR is charged with enforcement of Title VI in educational settings.
Two cases were decided at the end of November 2022 concerning institutions of higher education disciplining students for alleged misconduct.
In Matter of Mozdziak v. SUNY Maritime, 2022 NY Slip Op 06759 (Nov. 29, 2022), the New York State Appellate Division, First Department overruled the State University of New York Maritime College’s determination, which had affirmed its disciplinary hearing board’s expulsion of a student upon findings that he engaged in misconduct. The student was alleged to have carved a racial epithet into a dormitory elevator door. Two students made a joint, unsworn written statement alleging that they had witnessed the student engage in this misconduct. Notwithstanding that these two students who wrote the statement did not testify at the hearing, their two-sentence statement was credited over actual alibi witnesses who testified that the student was elsewhere when the claimed misconduct occurred.
This is an update to our prior information memo, which you can read here.
On Sept. 14, 2022, the U.S. Supreme Court denied Yeshiva University’s application for a stay pending appeal of the permanent injunction issued by a New York State trial court in June. Accordingly, the University must now “immediately grant [ ] YU Pride Alliance the full and equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva University,” as directed by the trial court. The Supreme Court’s September 14 decision vacated the temporary stay previously granted to Yeshiva just days earlier by Justice Sotomayor.