Hostile College Campuses: What Does the Law Do to Protect Students in 2023?
Recently, college students from Cornell and Yale have spoken out about hostile environments on college campuses?
Federal Civil Rights Laws
Title VI of the Civil Rights Act deals with cases of national-origin or religious discrimination. In one case, the Equal Employment Opportunity Commission found that a professor may have a claim under this title for being discriminated and retaliated against because of his religion, in the context of the college failing to take “corrective action” after incidents of hostility on campus.
Title VI protects students from discrimination, including harassment, based on their actual or perceived race, color or national origin. For these purposes, race or color may include “shared ancestry or ethnic characteristics; or … citizenship or residency in a country with a dominant religion or distinct religious identity.” Title VI provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Similarly, Title IX of the Civil Rights Act relates to whether a student – on the basis of sex or gender identity – has trouble enrolling in a class, gaining a spot in a college or university, playing an intercollegiate sport, enjoying other college or university extracurricular activities, or otherwise experiencing the benefits and experiences associated with a college or university that admits students who need federal student aid. Although it refers to discrimination or retaliation, it has been read more broadly to cover intimidation or verbal or nonverbal hostility on campus.
Other federal civil rights laws come into play in a variety of situations. 42 U.S.C. § 1981 bans discrimination on the basis of racial identity in the making and enforcing of contracts. For federal purposes, “race” may cover ethnic identity and family ancestry in terms of background, as well as skin color. Section 1981 also bans reverse discrimination (discrimination against whites). There is some overlap between Section 1981 and the Civil Rights Act (Title VI and VII).
Title VII bans discrimination on the basis of sex, creed or color and not just race, ethnicity, or ancestry. It is particularly relevant for faculty and staff who are employed on college campuses.
Some employees may suffer a “constructive discharge.” That happens when an employee is forced to quit or miss enough shifts to be fired because the employer sanctioned poor working conditions brought about by supervisors or coworkers. Such an employee may have been the victim of conditions “so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”
Students sometimes file legal claims alleging that they were forced to discontinue their studies or transfer schools because of hostility on campus. Where a public college or university is at issue, a student may be able to allege that the institution selectively enforced its policies on the basis of race, alienage, national origin, gender, or retaliation for exercise of a constitutional right. Under section 1981, even private schools may be held liable in certain circumstances involving selective enforcement of university policies depending on the races or ethnicities of the students involved, which may be established by direct evidence or through circumstantial evidence. Circumstantial evidence may include statistical comparisons in how policies are being enforced.
Courts often state that racial or ethnic discrimination can be perpetrated by members of any race or ethnicity, and against customers, students, or employees of any race or ethnic group.
New York Law
New York State Human Rights Law bans racial or ethnic discrimination, as well as discrimination based on color, national origin, religion, or sex, or on citizenship or immigration status, disability, familial status, marital status, sexual orientation, gender identity or expression, status as a victim of domestic violence, military status, age, or certain genetic characteristics. A labor union may commit unlawful discrimination under it, such as a faculty or staff union. It also prohibits harassment because of a protected identity or because a person filed a complaint, testified or assisted in any proceeding relating to discrimination or harassment.
While New York law may not apply to people who do all their work or study outside the state of New York, it may apply to employees who do some of their labor in New York, or who study remotely while located in New York at a university located exclusively outside of New York. There is a presumption that New York law does not apply outside of the state’s boundaries, but interstate or cross-state trade and commerce presents tricky questions for which there may not be bright-line answers. One issue is where an employee works, for example, or where the labor is done – and not simply where the employer is based. On the student side, while an isolated telephone call or email into New York on the part of an out-of-state university may not be enough to give New York jurisdiction, regular or systematic contacts with New York may be.
It is important to know your rights when it comes to harassment, discrimination, and retaliation for making complaints. A free consultation can help you understand your rights and take action to protect them.
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