On November 16, the Office of Civil Rights (OCR) of the U.S. Department of Education announced that it is investigating Cornell and six other schools. Five of the schools are being investigated for anti-semitism, and two are for Islamophobia. The complaints are being brought for violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination “based on race, color, or national origin.”
Although Title VI does not address discrimination based upon religion, on December 11, 2019, President Trump signed an Executive Order applying Title VI to anti-semitism. The Executive Order used an expansive definition of anti-semitism that included attacking people because they support Israel.
On November 7, 2023, Catherine E. Lhamon, Assistant Secretary for Civil Rights, issued a “Dear Colleague Letter” announcing that OCR believes that Title VI outlaws discrimination based upon “shared ancestry or ethnic characteristics.” This includes discrimination against students and others “who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian.” As with Lhamon’s past actions, this change is being implemented through a guidance document rather than congressional amendment of Title VI or an agency rulemaking.
“Hate has no place in our schools, period. When students are targeted because they are—or are perceived to be—Jewish, Muslim, Arab, Sikh, or any other ethnicity or shared ancestry, schools must act to ensure safe and inclusive educational environments where everyone is free to learn,” said U.S. Secretary of Education Miguel Cardona in announcing the decision.
Cornell has refused to comment on the investigation, and the Department of Education has not stated whether the investigation was prompted by a Cornellian complaint or by some other source.
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Cornell implements Title VI with its Policy 6.4. Cornell never updated Policy 6.4 to include either of the anti-semitism initiatives of the Trump and Biden Administrations.
Typically, such investigations are resolved by the school entering into a consent order agreeing to take steps to address the bias. Ultimately, if the Department is able to prove a violation, a school could lose all federal funding.
First Amendment
The Dear Colleague Letter states,
“OCR interprets its regulations consistent with the requirements of the First Amendment to the U.S. Constitution, and all actions taken by OCR must comport with First Amendment principles. No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment or to require recipients to enact or enforce codes that punish the exercise of such rights.”
However, instead of basing the complaints on a school actively discriminating against a student, the focus is on whether other students at the school created a “hostile environment” via anti-semitism or Islamophobia.
It may be that the only way that the school could prevent that would be by curtailing speech protected by the First Amendment. The Supreme Court addressed this tension in the context of Title IX in the 1999 Davis v. Monroe County Board of Education case. It held that a school could only be held liable for student-on-student harassment “only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education….”
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It is clear that OCR cannot order Cornell to curtail First Amendment activities such as speech, protest or demonstrations on the basis of anti-semitic or Islamophobic content. OCR might try to extract that from Cornell when it settles the investigation, but no court is likely to allow such a result.
