The U.S. Department of Education and its Office for Civil Rights announced more resolutions of complaints about “shared ancestry” against schools and districts under Title VI of the 1964 Civil Rights Act in the past month than it did in the prior six months.
Even when taking into account that it sometimes resolved multiple allegations in the same announcement, the federal government resolved two-thirds as many Title VI complaints for bias, including Jew-hatred, since Dec. 19 as it had done from June 17 to Dec. 18.
Experts told JNS that the Biden administration sought both to rush “wins” in its 11th hour and to protect schools and districts from what they perceived as harsher investigations under the new Trump administration.
Lori Lowenthal Marcus, legal director of the Deborah Project, a public interest law firm that focuses on Jew-hatred on campus, told JNS that there is no question that schools are going to try to use the agreements “as a shield.”
“They are going to make their best arguments, and anyone representing a plaintiff during the next administration is going to make their best argument,” she said. “It just depends on whether a court will say, ‘The agreement either is insufficient or it doesn’t address these particular issues that you’ve raised in court.’”
Lowenthal Marcus thinks that the Biden administration has issued so many agreements of late “because the Department of Education under this administration is trying to have as much control as it can or reach as widely as it can, because it has a particular ideological viewpoint, and the next administration has a very different one.”
If a defendant could prove in court that a university or school district had violated an agreement with the federal government, that “would be powerful,” according to Lowenthal Marcus. “But the defendant university would argue that it hadn’t violated the agreement, and the court would have to examine the facts to make a determination.”
“The incoming administration is widely anticipated to be far more demanding of defendant universities to be responsive to complainants, such as most of the Jewish students and teachers who have brought claims over the past 15 months,” she said.
By entering an agreement with the federal government, a school or district essentially admits that it failed to take certain steps, according to Lowenthal Marcus. (The agreements that the federal government has announced note that schools haven’t admitted to wrongdoing in curbing Jew-hatred.)
“The ultimate weapon the Education Department has is to revoke federal funding, and that is hugely meaningful to most universities,” she said. “While federal funding has never been revoked, it is a sword of Damocles—ever present.”
If a school reneges on its commitments under an agreement, affected students could sue in court, “and such a violation would have a significant impact on any judge, who is asked to decide whether the university displayed ‘deliberate indifference’ to the plaintiffs, who are seeking redress,” Lowenthal Marcus said.
The extent to which an agreement is likely to lead to significant change depends on the specifics of the case, according to Lowenthal Marcus.
“You have to look to see whether there are specific benchmarks in the agreement that must be met, or dates by which certain steps need to be taken. The fewer specifics, the less likely the agreements will lead to meaningful changes,” she said. “Defendants would rather go before the Education Department’s Office for Civil Rights than a judge because the Education Department is motivated to arrive at a resolution between the parties, whereas in court cases, the complaining party is motivated by the harm experienced by it and is not necessarily interested in ‘negotiating’ for a resolution.”
Plaintiffs are also entitled to “robust discovery” in court cases but not in those filed with the Education Department.
“Discovery is something every defendant views with dread,” Lowenthal Marcus said.
Although the Trump administration isn’t likely to reverse agreements its predecessor made, it could issue different standards or definitions that would govern future complaints, including those that “would have a lower bar to reach a finding of liability in similar circumstances,” she said.
‘No due process’
The Education Department announced on Jan. 16 that it was settling complaints of alleged anti-Muslim bias with Emory University and Jew-hatred with Howard County Public Schools in Maryland. The prior day, it announced that it was settling complaints of both Jew-hatred and anti-Muslim bias with the University of Washington.
Earlier in January, the federal government found no discrimination based on “shared ancestry,” including Jew-hatred, in a probe of the University of California, Los Angeles (Jan. 13) and resolved alleged instances of Jew-hatred with Lehigh University (Jan. 13), Johns Hopkins University (Jan. 7) and Rutgers University (Jan. 2).
The Education Department resolved complaints of anti-Native American bias with the Fall River Joint Unified School District in California (Dec. 20), and of Jew-hatred and anti-Muslim sentiment (Dec. 20) at five University of California campuses and the School District of Philadelphia. (As of Jan. 20, Inauguration Day of President-elect Donald Trump, the press release section of the Education Department returned no releases.)
Prior to announcing those 11 agreements in the last month, the department reached nine resolutions in “shared ancestry” probes—mostly for Jew-hatred—in six months, including with Temple University (Dec. 2), Occidental College (Nov. 26), Jefferson County Public Schools in Kentucky (Sept. 26), the University of Illinois-Urbana Champaign (Sept. 3), Drexel University (Aug. 2), Carmel Unified School District in California (July 26), Brown University (July 8), Lafayette College (June 21), City University of New York, (June 17) and the University of Michigan (June 17).
The Louis D. Brandeis Center For Human Rights Under Law filed the Title VI complaint against the University of Washington, which the federal government resolved on Jan. 15.
Denise Katz-Prober, director of legal initiatives at the Brandeis Center, told JNS that resolution agreements can “help effectuate meaningful changes and improvements for students on campus if they are specific and forceful enough, and if they truly address the root causes of antisemitic bias and discrimination in the campus context.”
“Universities have an interest in entering into resolution agreements because they don’t want to lose federal funding if they are found to have violated Title VI,” Katz-Prober said. “Even the prospect of being found in noncompliance with federal anti-discrimination law is often enough to motivate universities to resolve pending complaints.”
The agreements into which schools enter with the government are enforceable, and the Education Department can refer noncompliance to the Justice Department for prosecution, according to Katz-Prober.
The Brandeis Center is challenging the Biden administration’s decision to “inappropriately” eliminate appeals from its investigative process.
“Currently, there is no due process for someone whose claims were mishandled in any way for any reason,” she said. “The Brandeis Center is challenging this illegality in our pending lawsuit against the Education Department. This is one of the issues now before the incoming administration.”
“We expect that President Trump’s administration will reinstitute the appeals process, which was unlawfully eliminated by the previous administration and, in doing so, they will have discretion regarding the sorts of appeals that will be allowed,” she said.
Katz-Prober told JNS that the agreements, which the Education Department has announced, have the potential to have an impact, “though not as much as the gravity of the cases merited.”
The University of Washington committed to “some improvements,” but the Brandeis Center “would have expected the agreement to be far more forceful given the severity and endemic nature of the antisemitism problem plaguing University of Washington’s campus,” she said.
“Unfortunately, several of the recent resolution agreements issued by the Office for Civil Rights, including in the University of Washington’s case, do not rise to the occasion in addressing the gravity of the antisemitism problem on those campuses,” she said.
“Requiring a university to revise its policies in a broad sense to ensure compliance with Title VI prohibitions on national origin discrimination, and to provide anti-discrimination training to the university community, are a promising start,” she added. “But such broad changes won’t be as useful or effective in a practical sense when the university needs to actually enforce its policies.”
Among the specific things that she said training ought to address are “concrete examples of what kinds of behaviors constitute anti-Zionist harassment and discrimination based on Jewish shared ancestry” and explaining that “using the term ‘Zionist’ as a code for ‘Jew’ to mask unlawful harassment and mistreatment of Jewish students is still antisemitic and can violate university policy.”
School policies should also require the International Holocaust Remembrance Alliance’s working definition of Jew-hatred and its contemporary examples when evaluating complaints of antisemitism, she said. “These are just some of the ways that resolution agreements could be more effective and impactful.”