Almost five years ago, the Department of Education issued its “Dear Colleague” letter on Title IX and sexual violence. The letter was a not-so-subtle reminder that Title IX requires federally funded educational institutions to prevent sexual harassment and violence. After that, the day-to-day work of many higher education attorneys and student affairs professionals has never been the same.
Are similar changes on the horizon with respect to considerations of race on campus? There are several signs suggesting the answer very well may be yes, making now an opportune time to evaluate how your campus is handling these issues.
An increase in campus activism on issues of race
Last month, both the president of the University of Missouri system and the chancellor of the university were forced to resign amid a controversy over the university’s purported anemic response to complaints of race discrimination on campus. Similar demands for leadership changes have been made at other colleges.
For instance, at Ithaca College in New York, students have been pushing for the removal of Thomas Rochon as president. The protestors have cited what they consider to be his failure to adequately respond to several racially charged incidents and an unwillingness to address an environment where students of color purportedly feel unwelcome. Faculty and students at Ithaca have walked out of class and have submitted no-confidence votes to Ithaca’s board of trustees.
Protests at other universities have become common. Indeed, students at 74 schools nationwide have gone as far as submitting detailed lists of demands primarily centered on campus racial issues to their respective universities.
The federal government weighs in, and a Supreme Court decision awaits
The U.S. Department of Education is closely following these developments. In a November 20, 2015, op-ed in the St. Louis Post-Dispatch, outgoing Education Secretary Arne Duncan noted that the department’s Office for Civil Rights has received more than 1,000 complaints of racial harassment at colleges and universities during his tenure. He also noted that the Department of Education had recently “convened campus leaders from around the country . . . to tackle the issue of racial harassment on campuses and to lay out solutions to foster supportive educational environments.”
Of course, lurking in the background is the Supreme Court’s consideration of affirmative action in the Fisher v. University of Texas case. Oral arguments in that case took place in December 2015, and several signs suggest a sea change may be on the horizon with respect to whether race can be used as a factor in university admissions. A decision in the case is expected by June 2016.
Put simply, all indications suggest that the issue of race on college campuses will continue to have a high profile over the next several years. In addition, significant changes with respect to institutional obligations may be in the offing depending on how the Supreme Court rules in the Fisher case and whether the Department of Education decides to definitively weigh in on the matter of race.
What to do now?
For schools looking to be proactive in this area, here are six practical suggestions:
Considerations of race on campus clearly fit the bill. An approach to addressing racial concerns that involves only senior management at a school will likely be poorly received and may actually escalate problems. Rather, schools looking to tackle racial problems would be well-advised to identify those groups on campus who are interested in the issue and, at the very least, solicit their opinions about how things are and how things can be improved.
Scott Schneider leads the Higher Education Practice Group at Fisher & Phillips, LLP, where he focuses on providing counsel and litigation support on a host of higher education issues, with a particular emphasis on institutional policies and handling allegations of sexual assault and violations of Title IX. A version of this article appeared on HigherEdLawyer.net, and it is reprinted with permission of the author.