General resolution search

U Mich resolution letter

• Link to resolution agreement

• Written by Brian Gnandt, Regional Program Manager

  • “This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such.”

• “Before OCR completed its investigation, the University expressed an interest in resolving the complaints pursuant to Section 302 of OCR’s Case Processing Manual.”

• “The regulation implementing Title VI, at 34 C.F.R. § 100.3, provides that no person shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program to which Title VI applies.”

• “To establish a violation of Title VI under the hostile environment theory, OCR must find that: (1) a hostile environment based on race, color, or national origin existed; (2) the recipient had actual or constructive notice of the hostile environment; and (3) the recipient failed to take prompt and effective action to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.”

• Actual v. constructive notice

  • “A recipient is charged with constructive notice of a hostile environment if, upon reasonably diligent inquiry in the exercise of reasonable care, it should have known of the discrimination.”

  • “In other words, if the recipient could have found out about the harassment had it made a proper inquiry, and if the recipient should have made such an inquiry, knowledge of the harassment will be imputed to the recipient.”

• Response

  • “Once a recipient has actual or constructive notice of a hostile environment, the recipient has a legal duty to take reasonable steps to eliminate it. OCR evaluates the appropriateness of the responsive action by assessing whether it was reasonable, timely, and effective.”

A Hostile Environment

• “The existence of a hostile environment based on national origin that is created, encouraged, accepted, tolerated, or left uncorrected by a recipient constitutes discrimination on the basis of national origin in violation of Title VI.”

  • Two scenarios

    • One where you have what looks like protected speech, that is pervasive and made “in bad faith,” yet is written off by the administration as protected

    • Another where you have clear incidents of Title VI violations (that may or may not be addressed through legal or policy channels) that are not addressed with respect to campus climate

• “OCR interprets Title VI to mean that the following type of harassment creates a hostile environment: unwelcome conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from a recipient’s education program or activity.”

  • Key words: “based on the totality of the circumstances”

    • “OCR will examine the context, nature, scope, frequency, duration, and location of the harassment, as well as the identity, number, and relationships of the persons involved. If OCR determines that the harassment was sufficiently severe or pervasive that it would have limited the ability of a reasonable person, of the same age and national origin as the victim, under the same circumstances, from participating in or benefiting from some aspect of the recipient’s education program or activity, OCR will find that a hostile environment existed.”

    • Case 1: Israel should not exist because it rightfully belongs to the indigenous of historic Palestine, protected

    • Case 2: Israel should not exist because Jews don’t deserve a home, unprotected

• “University’s Reporting Process and Policies”

  • “The Student Policies and Procedures define harassment as “harassing or bullying another person—physically, verbally, or through other means,” and “physically harming and/or directly threatening harm of any other person or group in a manner which would cause a reasonable person to fear for physical safety.” The Student Policy further states that where bias or prejudice motivate the underlying misconduct, there is a separate conduct violation. This includes behavior motivated by any identity protected by the University’s Nondiscrimination Policy. It states that sanctions may be enhanced when it is determined that actions were motived by bias, and that such violation “will be evaluated under current legal standards.””

    • key words: “further states that where bias or prejudice motivate the underlying misconduct”

Example Reports

• Targeting

  • “[Redacted content] OSCR received a request for services from a student regarding a comment that was made on social media by a GSI. According to the student, he viewed the GSI’s Instagram story, which included a discussion of pro-Palestinian topics. The GSI then screenshotted that the student had viewed [redacted content] story and posted a new story with a comment along the lines of “Did you like my educational talk,” tagging the student in the post and showing that he had an Israeli flag in his bio. [Redacted sentences]. OSCR said to a student “your interest for resolution in this situation was in a more formal conflict resolution pathway. This pathway requires a violation of the Statement of Student Rights and Responsibilities, and evidence to substantiate that violation. I have been able to review [redacted content], and formal conflict resolution is not a path forward at this time. Using social media to communicate, regardless of the content being communicated, is largely going to be protected as free speech, unless there is a clear and direct threat. . . . As we discussed Friday, we do have many conflict resolution pathways available that do not require policy violations. The main goal for these pathways is in sharing perspective and repairing harm.””

• Totality of the circumstances, motivated by bias?

  • “On November [redacted content], 2023, a [redacted content] reported to ECRT, “[redacted content] posted hate speech on their Instagram and Facebook accounts.” The report was regarding the phrase “from the river to the sea” which the [redacted content] said the anti-defamation league has determined to be antisemitic hate speech. The reporter said: “I asked them to take it down and they didn’t – this organization represents [redacted content], how is it ok for them to post hate speech against Jews? It is extremely upsetting for me as [redacted content], can you imagine how Jewish undergrad students feel?” ECRT told the [redacted content] they were not taking any action as this was a free speech issue; they said that the [redacted content] could make a report to CCS; the complainant responded that she had already contacted CCS and that they never responded.”

• No action to address the effects on students

  • “On [redacted content], 2023, a report was made to OSCR regarding an incident a few weeks earlier involving [redacted content] who “had a negative and harmful interaction with a student protester related to the conflict in the Middle East.” The student was participating in a pro-Palestine protest, and [redacted content] yelled at the student that she was supporting rape and murder, and that she has terrorist friends. The report stated [redacted content] was quite distraught and it was clear that the incident impacted [redacted content] greatly. [Redacted sentence]. The case was closed after OSCR held restorative circles for staff, faculty, and students.”

Recent Events

• Training, is it mandatory?

  • “OCR also reviewed training materials the University submitted on the topics of Title VI discrimination and harassment delivered during the fall of the 2023-2024 school year. None included reference to shared ancestry or ethnic characteristics as a basis or as an example of Title VI discrimination. OCR found that the trainings were inconsistent with regard to where and how discrimination could be reported.”

• Post university report of revision of the complaints processing system, “Publicly available information indicates the existence of ongoing incidents of harassing conduct; because these reported incidents postdate the University document production to date, OCR does not have information from the University regarding any relevant University evaluation or response.”

  • “The University put out a statement the same day stating “the tactics used today represent a significant and dangerous escalation in the protests that have been occurring on campus. Going to an individual’s private residence is intimidating behavior and, in this instance, illegal trespassing. This kind of conduct is not protected speech; it’s dangerous and unacceptable.”” Intimidating behavior and targeting

  • “Reportedly, police asked protesters to leave voluntarily before clearing the encampment. Students reported to news outlets that police in riot gear used pepper spray during the process of removing the encampment. It is not clear whether anyone was affected by the spray, however four people were arrested for resisting and obstructing.” Police misconduct

Legal Analysis

• Evaluation of whether a “hostile environment” was created by incidents

  • “In none of the reports summarized above did OCR identify any information in the documentation provided by the University that the University assessed whether a hostile environment was created for students, faculty, or staff.”

  • “It appears that in some incidents the University took no steps to respond aside from referring the reporting student to CSS, on the basis of a University determination that the incident involved protected speech and did not involve a direct threat.””

  • “While the University may not discipline speakers for protected speech, the University retains a Title VI legal obligation to take other steps as necessary to ensure that no hostile environment based on shared ancestry persists.”

  • “At minimum, therefore, the University has an obligation to evaluate whether any incidents of harassment of which it has notice rise to the level that they create a hostile environment to which the University must respond promptly and effectively.”

  • “For example, when protesters shouted on the central campus “Fuck education, Nazi liberation,” University records reflect that the University forwarded the reports to public affairs for response and do not identify any other steps taken to assess the existence of or redress any resulting hostile environment from the conduct. Likewise, after a student reported to the University that [redacted content] yelled at an accusation at her that she had “terrorist” friends because she participated in a pro-Palestinian protest, the University reported that it held restorative circles to address the incident, but took no further action, including taking no action to address effects on students from the widely reported incident.”

University obligation to comply with Title VI

• “The information provided by the University to date in this investigation also raises concerns that diffuse University policies leave students, faculty, and staff unclear as to how the University will respond to alleged discrimination.”

• “In addition, the policies contain different definitions of harassment for faculty/staff than for students, and the Student Policy and Procedures does not accurately capture harassment that violates Title VI as opposed to harassment or bullying generally.”

• “Although the University’s ECRT, by policy, is responsible for ensuring compliance with federal antidiscrimination laws, the ECRT does not appear to evaluate reports or oversee responses to determine compliance with University policy or Title VI.”

• “OCR notes that the University represented to OCR that it is evaluating and taking steps to change its decentralized way of receiving and responding to reports of Title VI harassment and discrimination from students and employees and revising its policies and procedures.”

Resolution agreement

• How is Title VI monitored by the OCR? With respect to reporting in general? How does it differ from Title IX? It is hopefully not the case that the only monitoring is via filed complaints, investigations and resolution agreements?

• “Under Section 302 of OCR’s Case Processing Manual, allegations under investigation may be resolved at any time when, prior to the conclusion of the investigation, the recipient expresses an interest in resolving the allegations and OCR determines that it is appropriate to resolve them because OCR’s investigation has identified concerns that can be addressed through a resolution agreement.”

• “In this case, the University expressed an interest in resolving the allegations prior to the conclusion of OCR’s investigation and OCR determined resolution was appropriate.”

• “The University signed the enclosed Resolution Agreement, which, when fully implemented, will address all of the allegations in the complaints. OCR will monitor the implementation of the Resolution Agreement.”

• “Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request.”

• “OCR looks forward to receiving the University’s first monitoring report. For questions about implementation of the Agreement, please contact Kimberly Kilby, Senior Attorney,”

U Mich resolution agreement