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What Do Colleges and Universities Need to Know About the Executive Order and Title VI?

On Dec. 11, 2019 President Trump issued an Executive Order (EO) stating that, “It shall be the policy of the executive branch to enforce Title VI [of the Civil Rights Act of 1964] against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.”

This has created a good bit of confusion, with media outlets reporting that the EO “redefines” Judaism as a nationality or ethnicity. Not so. So what does the EO do? What, if anything, is new about it? And how will it affect U.S. colleges and universities that receive federal funding?

Title VI prohibits discrimination on the basis of race, color and national origin in programs and activities that receive federal funding. Applying Title VI to Jewish students is not new. National origin discrimination has been interpreted for years to include discrimination against those who have shared ancestry or ethnicity, to protect religious groups such as Jews, Sikhs and Muslims. 

What is new is that the EO directs executive branch agencies and departments charged with enforcing Title VI to consider the International Holocaust Remembrance Alliance’s (IHRA) definition of anti-Semitism when investigating allegations of anti-Jewish discrimination (i.e., when they review an Office of Civil Rights (OCR) complaint).

The IHRA definition, which has been adopted by the U.S. State Department, provides that:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities[.]

The definition includes a list of non-exhaustive examples of anti-Semitism, which the EO also directs agencies to consider. For example: “[m]aking mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective—such as . . . the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.” 

Examples also include discrimination against Jewish individuals who support Israel, e.g., “[a]ccusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations” or “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor[.]” 

In other words, discriminatory conduct directed at Jewish students who support Israel may constitute anti-Semitism. 

Some argue the EO conflicts with the First Amendment, although the EO expressly states that agencies “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.” Simply put, neither Title VI nor the EO limits speech (or even hate speech); it limits conduct. The perpetrator’s speech may be used as evidence of discriminatory intent.

Universities and colleges will need to carefully consider the impact of the EO in reviewing student complaints.  

© 2020 BARNES & THORNBURG LLP

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About this Author

L Rachel Lerman, Barnes Thornburg Law Firm, Los Angeles, Finance Law Attorney
Partner

L. Rachel Lerman is a partner in Barnes & Thornburg LLP’s Los Angeles office and a member of the firm’s Litigation Department. Formerly a partner at Akin Gump Strauss Hauer & Feld LLP, she focuses on appellate practice and trial strategy in complex civil cases. She has handled writs and appeals in commercial, bankruptcy, patent, trade mark, trade secret, labor, insurance defense, white collar, and family law cases in state and federal courts nationwide. She works regularly with trial counsel on law and motion and trial strategy.

310-284-3871
Janilyn Brouwer Daub Labor & Employment Attorney
Partner

Janilyn Daub defends employers in labor and employment litigation in federal and state courts, as well as before various governmental agencies, such as the OFCCP, EEOC and NLRB. She is dedicated to helping her clients with the legal issues that arise when managing a workforce, navigating them through the challenges they face while seeking to mitigate future problems and liability.

With a practice that is national in scope, Janilyn frequently advises clients on issues related to affirmative action plans, including plan preparation and defense of Office of Federal Contract Compliance Programs (OFCCP) audits, as well as conducting compensation analyses. Janilyn offers extensive experience helping clients prepare employee handbooks and policies and advising them on issues such as the Family and Medical Leave Act, the Americans with Disabilities Act, wage and hour laws, and in preventing and dealing with harassment. She frequently provides training sessions to clients and presents seminars on these topics.

Janilyn is at her best when partnering with clients to address, manage and overcome their organizational “people problems” by providing tangible solutions that actually make a difference.

Notably, Janilyn also represents educational institutions, including clients involved in higher education and K-12. She works with colleges, universities and other educational facilities to comply with Title IX issues related to race, gender and the like, as well as assists them through and beyond student challenges such as myriad disability accommodation matters. She also advocates her client’s position before the Department of Education’s Office for Civil Rights, helps create and implement policies and procedures specific to educational institutions, and addresses Family Educational Rights and Privacy Act (FERPA) issues that protect the confidentiality of student records.

Simply, Janilyn is valued for her ability to render consistently valued advice and practical solutions to the employee-related challenges her clients face daily. She is appreciated for her straightforward approach to problem-solving and for her genuine commitment to meeting each client’s needs in a pragmatic and business oriented manner. A dutiful liaison and trusted adviser, clients and colleagues alike know they can count on Janilyn to render proactive, productive and actionable counsel that actually solves their problems and positions them favorably going forward.

Janilyn frequently presents on employment law topics at Society for Human Resource Management (SHRM) and Michiana Human Resource Association (MHRA) events.

574-237-1139