Penn Creates New Title VI Center. Will Other Colleges Follow?

As colleges grapple with how to respond to reports of antisemitism and Islamophobia on campuses and heightened federal scrutiny, the University of Pennsylvania said last week it will open a new center to ensure that it fulfills its obligations under federal law to protect students from discrimination and harassment.

The Education Department’s Office for Civil Rights released several letters over the summer, outlining how certain colleges failed to comply with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin. It also covers discrimination based on shared ancestry, which includes antisemitism and Islamophobia. OCR dinged colleges for not having clear processes and policies in place to respond specifically to reports of shared ancestry discrimination and to assess whether students were experiencing a hostile environment, among other issues.

(Penn is not one of the universities currently under federal investigation, though a group of Jewish students sued the university last year, alleging civil rights violations related to Title VI.)

The new Penn center, officially titled the Office of Religious and Ethnic Inclusion, will be the “critical center point of contact” for Title VI compliance and training related to religion, shared national ancestry and ethnicity, according to the university’s statement. Because of the heightened focus on this area of federal law, experts believe other universities may decide to start similar offices as they rethink their approach to Title VI compliance.

“Over the past year, our campus and our country witnessed a disquieting surge in antisemitism, Islamophobia, and other forms of religious and ethnic intolerance. This type of prejudice is simply unacceptable, and has no place at Penn,” the university’s interim president, J. Larry Jameson, wrote in a statement announcing the center last week. The institution came under fire from all sides for its handling of protests related to the Israel-Hamas war last academic year, leading former president Liz Magill to resign in December days after failing to explicitly condemn calls for genocide during a House hearing.

Penn’s center, which the university claims is the first of its kind in the nation, is just one example of how institutions are scrambling to adjust their Title VI policies—a process that experts say mimics the way colleges overhauled their approach to handling sexual harassment and misconduct reports under Title IX of the Education Amendments of 1972 in the early 2010s. Back then, as now, the shift was driven largely by increased OCR scrutiny and enforcement, as well as a surge in complaints and litigation surrounding colleges’ handling of complaints, according to experts in nondiscrimination and higher education law.

“It’s the same perfect storm,” said Brett Sokolow, chair of the crisis management consulting and law firm TNG Consulting and former executive director of the Association of Title IX Administrators, including soaring numbers of Title VI cases, OCR complaints and litigation. “Hopefully the light bulb goes off and a lot of [institutions] find out, ‘We’re going to do something similar to what we’re doing for Title IX.’”

The Penn center will be temporarily spearheaded by Majid Alsayegh, CEO of the project management firm Alta Management, LLC, who is also involved in several organizations centered on diversity and civic dialogue, and Steve Ginsburg, a bias and extremism expert who previously worked at the Anti-Defamation League. The university, which plans to open the center later this semester, is looking for permanent leaders.

The new office, Jameson wrote, aims to confront the “troubling” rise in intolerance and “to serve as a stand-alone center for education and complaint resolution.”

Lynn Pasquerella, the president of the American Association of Colleges and Universities, said she wasn’t surprised a university would take such a strong step to comply with Title VI, considering “the level of governmental overreach on the part of the [House] Committee on Education and the Workforce and the high-profile investigations into places like Penn and Harvard and MIT,” she said.

“In this liability-driven climate, knowing that the burgeoning politicization of higher education is leading to these types of investigations, it is, of course, no surprise that this happened,” she added.

Sokolow noted that while it is novel to have offices solely dedicated to Title VI issues, responding to bias incidents has long been a central responsibility of diversity, equity and inclusion divisions. But as higher education goes through a Title VI revolution, universities need to be more purposeful—and more transparent—in their handling of race-based discrimination, similar to their approaches to Title IX compliance.

Is Title VI the New Title IX?

Experts say that treating Title VI similarly to Title IX is a good step for universities to take to ensure that complaints of discrimination are handled fairly and with the weight they deserve.

“I don’t know if you could get a consensus from folks who have been through the Title IX process in all of its various iterations … that it’s a positive experience or that it’s a perfect process, but it’s a process that takes allegations very seriously,” said Brigid Harrington, a partner at Bowditch & Dewey specializing in Title IX and Title VI. “It’s probably one of the most robust processes that a school has to address student misconduct.”

But that doesn’t necessarily mean universities need to develop Title VI offices, as Penn has done, in order to fulfill their obligations under federal law. Not every university has the resources to create entire new offices, so Title IX or equity offices will likely have to handle Title VI complaints as well—if they’re not already doing so, Harrington said.

“Look at what you already have and use what works,” she advised. “Think about why you would be treating race discrimination differently than gender discrimination, and if you don’t have an answer for that, maybe you should change how you treat race discrimination” to come in line with the institution’s Title IX policies.

Some distinctions exist between the two federal laws. For example, the Department of Education has not released regulations outlining how colleges can comply with Title VI the way it has for Title IX. Regulations specific to Title VI’s shared ancestry protections are expected by the end of the year, though the Biden administration has delayed them several times. That means that whoever oversees an institution’s Title VI response will have to make some potentially difficult decisions about what qualifies as a hostile environment—a distinction that OCR, in its recent antisemitism investigations, said universities failed to address appropriately—as well as where to draw the line between students’ free speech and their right to feel safe and comfortable on campus.

Tom Ginsburg, a law professor at the University of Chicago and faculty director of the university’s Forum for Free Inquiry and Expression—and no relation to the Penn center’s interim leader—said that he expects that new centers and other initiatives to formalize Title VI compliance on campus may influence what that guidance ends up looking like.

“Penn’s office and, of course, the other implementers of Title VI will collectively have an impact on the development of the law by virtue of, what are the standards they apply? … And how those things play out in court if there are challenges,” he said.

He also noted that the role of these “implementers” must include not only addressing violations when they occur but also cultivating a campus environment where those violations don’t occur.

Penn’s statement indicated that that was part of the mandate of the new Office of Religious and Ethnic Inclusion, noting that it “will assist in identifying and supplementing the development of new programs and strategies to support an educated, respectful, diverse community on our campus.”

To Tom Ginsburg, this means that the office and others like it must play a role in creating a pluralistic campus where all voices are welcomed and respected.

“My punch line would be, ‘The ideal Title VI office would put itself out of work,’” he said.