Title VI: What Board Members Need to Know

Introduction:
Welcome to the Trusteeship Podcast from AGB, the Association of Governing Boards of Universities and Colleges. Today we’re talking about Title VI, which prohibits discrimination on the basis of race, color, and national origin. AGB’s Senior Director of Institution and System Programs, Jackie Gardina speaks with Beth Gellman-Beer, an attorney with two decades of experience in education law and civil rights enforcement at the U.S. Department of Education Office for Civil Rights about the rapidly evolving enforcement of Title VI on college campuses. Their conversation offers trustees and campus leaders practical guidance for navigating compliance while supporting a safe and inclusive campus climate. Let’s get started, Jackie?

Jackie Gardina:
Thank you for joining us. I am Jackie Gardina AGB’s director of institution and system programs, and I’m joined today by Beth Gellman-Beer, an attorney with two decades of experience in the Department of Education’s Office of Civil Rights and the co-founder of Evergreen Education Solutions. Today we’re going to try to provide an overview of Title VI, a federal civil rights statute that has been at the center of the Trump administration’s engagement with colleges and universities for alleged acts of discrimination, including maintaining diversity, equity, and inclusion initiatives. Approximately 60 institutions are under investigation or have entered settlement agreements with the administration. Most recently, the University of Virginia. Beth, until recently you worked for the Department of Education’s Office of Civil Rights ensuring colleges and universities complied with anti-discrimination laws. Let’s just start with a basic question. What is Title VI?

Beth Gellman-Beer:
That’s a really great question, and I feel like Title VI up until very recently was the ignored stepchild of all of the non-discrimination statutes that apply to recipients of federal funding from the U.S. Department of Education. So, Title VI was enacted as part of the Civil Rights Act of 1964. There is a very specific regulation where you can look up the language of Title VI and that can be found at 34 CFR part 100. If you take a look at that, you’ll see that it’s pretty brief. It’s a very small paragraph describing how Title VI prohibits discrimination on the basis of race, color, and national origin. For those who are familiar with the Title IX space, if you compare it to Title IX, you’ll see that it is really, really brief compared to the extensive specificity of Title IX and how schools are supposed to respond to Title IX incidents.

It has gained quite a bit of interest in the last couple of years because following October 7th, there were a number of incidents that occurred on college campuses that fell within Title VI. I don’t know that everyone understood why it fell under Title VI, because Title VI does not prohibit religious discrimination, but the way that Title VI comes into play for these incidents is in 2004, OCR from the Department of Education issued a dear colleague letter that clarified that discrimination and harassment on the basis of shared ancestry and ethnic characteristics falls under the national origin component of Title VI. So, anything like anti-Semitism, Islamophobia, that all falls within the ambit of shared ancestry discrimination and ethnic characteristics.

Jackie Gardina:
So, who enforces Title VI or how is it enforced?

Beth Gellman-Beer:
I think there’s a lot of confusion out there about who enforces Title VI. For a very long time the agency that was making the headlines since October 7th was the U.S. Department of Education’s Office for Civil Rights, which is where I work. OCR through the Department of Education has enforcement authority over Title VI, but there are a lot of other entities and agencies that also have enforcement over Title VI and what we have seen more recently under this administration, which I think is intentional. I think that the administration is phasing out the Department of Education OCR and moving those enforcement capabilities to other agencies like the Department of Justice, maybe Human and Health Services, department of Agriculture. There are a lot of different Office for Civil rights in many different agencies that do have authority over Title VI, how these agencies enforce Title VI. I can speak about the Department of Education, which is similar to the Department of Justice approach, which is up until recently, the enforcement was really reactive.

The bulk of what we did was responding to complaints that were filed by students, by parents, by organizations like the ADL, Care, other non-profit entities. And so OCR received the complaints, we would evaluate them for jurisdiction, open them and investigate them, and if we identify concerns, we would negotiate a resolution agreement with the school. Now it’s really focused mostly on directed investigations, which was always something that we could do at OCR through the Department of Education. It was just a last resort option, but that seems to be the dominant approach now under this administration is rather than responding to complaints received, the administration is just opening directed investigations based on information that’s out in the press.

Jackie Gardina:
Just to focus in on directed investigations. A lot of the administration’s directed investigations that have emerged seem to have come from a dear colleague letter that the Department of Education issued. So, what is a dear colleague letter and does it have the force of law?

Beth Gellman-Beer:
That’s really excellent question, and I have seen out in the ether that there’s some dispute amongst people about whether or not it is the force of law. It is not. It is a guidance document. A dear colleague letter is that agency’s interpretation of statutes over which they have enforcement authority. So, these statutes, as we know, were written decades ago. Title VI was written in the 1960s. Title IX was written decades ago, but we have engaged in rule making and clarification has been provided directly into the plain language of the statute in 2020, and an attempt was made again in 2024. But dear colleague letters are issued when that statute has not been revised and we’re dealing with a statute that was written 50, 60 years ago and what was written 50, 60 years ago. It does not necessarily apply to current events. So, for example, when Title VI was written, I don’t think anybody who wrote it could have ever imagined what happened on October 7th and the ensuing disruptions on campus after October 7th.

So, after October 7th and we started seeing some of these activities on campus, that’s when OCR kind of met the moment and issued a series of dear colleague letters to interpret Title VI and its application to these incidents that were occurring on campus. It’s very helpful. It’s very instructive for schools to understand how to apply this really nebulous, vaguely written statute to current events on campus. But it’s not a law, it’s not the force of law. And what we see very often is that a new administration comes in, it rescinds or it revokes prior dear colleague letters. It’s happened nearly every administration that I have worked through, which just further shows and proves it is not force of law, it is not a legal document. It is an agency interpretation of the law that could be challenged in court certainly and has also been challenged by subsequent administration.

Jackie Gardina:
So, I’m subject, I’m a trustee or an administrator at a college or university, and I’m now been notified that I am under investigation for a potential Title VI violation. What can I expect during that investigation and what questions should I be asking of whatever agency might be doing the investigation?

Beth Gellman-Beer:
I think the first really most important step in all of this is to identify what is the agency that has opened this investigation against you? Because every agency is handling these complaints a little differently, and once you’ve identified the agency that is investigating you, before you even go to your questions for that agency, my number one recommendation is you go back and look at what has been published by that agency on Title VI since January 20th. There have been very few guidance documents, but there are many violation letters and resolution agreements that have been published by the Department of Education, Health and Human Services and the Department of Justice.

And those are going to give you some insight into how that agency is looking at that particular issue, what their expectations are in terms of your response, what their expectations are in terms of the steps they’re going to ask you to take through that resolution agreement. If I were a board member, I would, A, identify with the agency and then B, I would ask that agency, what are the rules at play here? So, for example, if the U.S. Department of Education Office for Civil Rights, there’s something called the case processing manual. We used to refer to it as the Bible of OCR because it would give the entire roadmap of how OCR conducts its investigative and resolution activities. It provides real specificity about what it’s going to collect as part as the investigation. What are the timeframes? What are the timeframes for negotiating a resolution agreement?

What are the terms that can be in the resolution agreement? The case processing manual is very clear that the terms had to align with the allegations and that’s it. I’m not familiar with Health and Human Services and the Department of Justice and what their rule book is, so to speak. So, that would be my first question as a school, as a board member, is to go back to the agency and ask, “What are the policies and procedures that you’re applying here? What is the investigation going to entail? What are the timeframes that we have for negotiating an agreement?” Ask all of those kind of questions so that you establish some guidelines on how that investigation is going to take place.

Jackie Gardina:
So, you raised an interesting point in that response, which is that under the what you call the OCR Bible, the penalties or consequences for any found violation of Title VI needed to align with what the allegations were and what was found. So, what are the potential consequences if the government does determine that the institution violated Title VI?

Beth Gellman-Beer:
Also a great question and I’ll walk through some of that, but again, a really fantastic resource for schools is what’s been published by Department of Education OCR, HHS OCR and the Department of Justice on their press release web pages. Go take a look at the resolution agreement that this administration has negotiated or has asked to negotiate with schools since January 20th. That will show you exactly what this administration is looking for in terms of remedies and steps in response to a violation finding. There were two different ways that we would resolve a case. One is to ask for the schools to revise their Title VI policies and procedures. Some schools even to this day, don’t have policies addressing race, color, national origin discrimination, but even more important than that, your Title VI policies and procedures should specifically address shared ancestry discrimination and harassment and provide examples of what that looks like so that your campus community understands what shared ancestry discrimination and harassment is.

They understand how the school will respond, how they will investigate, how they will resolve, and even more importantly for students and for staff, understand where and how to submit complaints alleging shared ancestry discrimination and harassment. Other things that we would ask for are revisions to other kinds of policies like your free speech policy. An area of real focus under this administration is time, manner, and place restriction policies. Do you have a policy addressing time, manner and place restrictions? If not, do that yesterday. Another area that we would focus on was requiring that the school have somebody who’s coordinating responses to Title VI complaints.

It doesn’t have to be a “Title VI coordinator,” but has to be somebody who has oversight over these complaints in the school’s response to these complaints. What we have seen more recently is that there is legislation popping up where schools are required to hire Title VI coordinators. For example, New York the governor just signed legislation requiring it. It’s not in every state, but that was something that you did start to see in some of the agreements from the last administration. Another item that we often would require from schools was documentation regarding the school’s investigation of the specific incident that was part of the complaint, but also documentation of the school’s response to all other incidents of shared ancestry and harassment for a two-year period, so we could see if there were any patterns or problems moving forward in the school’s response to these incidents.

An area that I really liked was training, and I think that’s probably the most critical area, and that’s still part of agreements under this administration, and it’s not one size fits all training, Title VI training, depending on the group, students are going to require Title VI training just so they know what Title VI is, what their rights are, where to file, training for your staff, faculty, administrators, so they understand what their obligations are in response to Title VI incidents and also so they understand what Title VI incidents look like, so they recognize it when they see it. And then training for your investigators and your decision makers so they understand what’s the legal standard that they apply when making determinations about these incidents because the legal standard is changing literally every single day with every new letter that’s released by this administration.

And then last but not least, my favorite provision that we always included in agreements still showing up is a climate survey, and that’s where you’re going to ask questions of your campus community about what’s going on with Title VI. And I’ve often seen climate surveys where they’re not asking the right questions so you’re not getting the right information. So, I’ll see climate surveys where the questions will be, do you feel safe? Do you feel respected? Great question. It’s going to tell you absolutely nothing about your Title VI climate on campus. So, it’s really important that you have the right questions in that survey. And then also to create some kind of committee to sit down, review the survey results, identify areas of concern, develop an action plan, and then part of the agreements we’re typically report on your implementation of that action plan.

Jackie Gardina:
Beth, you’ve talked a lot about free speech, time, place and manner restrictions on speech on campus and Title VI. How should institutions think about balancing obligations to in public universities cases, free speech rights and their obligations under Title VI?

Beth Gellman-Beer:
That’s a really fantastic question, and the truth is that under the last administration, there were a few guidance documents that were published at the end of that administration that are still on the website, but they have been revoked. But I think there’s still very instructive and you can find them. Obviously, a lot of these incidents that are occurring under Title VI on college campuses also interplay with free speech. We have seen that in a number of occasions at a number of schools. The area of concern and the key takeaway and what we identified is a really significant concern under the last administration. And if you look at the new letters, Columbia, Harvard, and some of the other letters out of this new administration, it’s a continuing theme is that schools often make the mistake that if an incident invokes free speech, they can’t do anything in response and their obligation ends there.

And that is a false interpretation of Title VI and its interplay with free speech. The key is that if you have an incident that invokes free speech, you do have limitations. You can’t discipline individuals for engaging in free speech, but even where free speech is implicated, Title VI mandates that you still have to conduct an assessment as to whether or not that incident, even if it’s free speech, even if it occurs off campus, even if it’s social media posts, you still have to assess whether that incident has contributed to or created a hostile environment on your campus. And if so, take steps absent discipline to address that hostile environment. I talked about those steps. You can have an anti-harassment statement on your website. Your college president can issue a statement condemning the incident or the behavior. You can engage in training of your campus community.

You can conduct the climate survey. You can provide support, counseling, academic services to the victims. There are so many steps that you can take aside from discipline. And the truth of the matter is that discipline alone rarely ends harassment. So, even if you can’t discipline, there are other steps that you can take. And so that really falls under the training component that your staff who are responsible for responding to Title VI incidents need to understand that. They need to understand that they still have an obligation to assess hostile environment even where free speech is implicated, and they need to be trained on that, and they need to be trained on what’s the appropriate legal standard to apply.

Jackie Gardina:
You’re really talking about the experience that you had as an attorney at the Department of Education OCR. How has the Trump administration approach the enforcement of Title VI differently than what your experience has been with past administrations?

Beth Gellman-Beer:
It’s night and day. It was hammered into us at OCR through the Department of Education that the agreements that we negotiated with schools had to address before corners of the concerns we identified. That the provisions in the agreement had to directly tie to the allegations and what we identified as concerns. So, for example, sometimes we would receive a complaint alleging let’s say sexual harassment, and during the course of the investigation, we would identify other concerns about the school’s handling of racial harassment incidents. Because we identified that as a concern in our investigation, the agreement would reflect both sexual harassment and racial harassment concerns because it’s tied to the evidence we obtained and the concerns we identified. That’s not what I’m seeing in this administration. Also, under the last administration, we conducted robust investigations.

Probably one of the biggest complaints against OCR in the past was the amount of time it would take for us to complete an investigation for harassment complaint. That’s because those investigations were incredibly robust. We would look at thousands and thousands and thousands of pages of documents. I’m not seeing that under the new administration. Some of the letters show some investigations, some letters show no investigative activities and just reliance entirely on the university’s task report or task force report that they’ve drafted and some press release or some information that came from the press. So, that’s one significant change that it doesn’t appear that they’re conducting these robust investigations. They’re relying on just really what information is out in the public sphere.

The second significant change in my mind is these resolution agreements that are being negotiated and published. They are no longer directly tied to the allegations and directly tied to the concerns identified. So, you’ll read the letter that the agency has issued. The letter focuses a hundred percent on shared ancestry discrimination and harassment describes some of the information collected, whether through an investigation or through the public sphere on that particular topic, shared ancestry harassment. But then you look at the agreement and the agreement includes the whole kitchen sink. So, the agreement goes way beyond the concerns identified in the letter and requires changes in DEI practices for hiring for admissions. It addresses gender policies, single sex facility when there’s no mention in the letter of any concerns identified from evidence collected on those issue areas.

Jackie Gardina:
So, given this environment, what questions should board of trustees be asking?

Beth Gellman-Beer:
I would be asking very critical questions of the staff in your compliance unit, whether that’s your Title IX unit, that’s your Title VI unit. If you don’t have a Title VI unit, start asking, “Who is investigating Title VI complaints? Do we have the staff who are adequately trained and have the expertise to respond to Title VI complaints?” I would also ask, have those staff who are responding to these complaints, have they taken a look at some of the agreements that have been negotiated under this administration and under the last administration, go take a look at all of the provisions in those agreements. Are there some steps that you can take from those agreements proactively to ward off the administration’s attention to your university? Like I said earlier, a lot of the new investigations are directed investigations based on press reports. The question you really should be asking yourself is, “What do we need to do to avoid showing up in the press?”

A lot of the steps that you can take to avoid showing up in the press or all of the steps that I talked about earlier, all of the provisions in those agreements that we negotiated under the prior administration and the provisions that are in the current administration. The key really here is to make sure that you have an environment where students know where and how to file these complaints, that you have a policy that addresses these kind of complaints, that you have staff that have the expertise and training to process and respond to these complaints in a timely fashion and to resolve them and make determinations. If your staff are doing that, it is less likely that you’re going to have an incident that appears in the press or a complaint filed by a student. More importantly than that, a lot of what we’re seeing in the press lately is a result of schools failing to implement time, place, and manner restrictions.

It’s really, really important proactively to make sure that you have policies addressing time, manner, and place restrictions. You have policies addressing free speech, and when incidents cross the line into a Title VI hostile environment that you have policies addressing posturing, which also have time, place and manner restrictions. But even more important than that, and what you’ll see in the recent letters that have been published under this new administration, a lot of the schools had time, place and manner restriction policies, but they were not enforcing them. And so the likelihood that your school will appear on the front page is much higher if you’re not enforcing those time, place and manner restrictions. And how do you make sure that your school is effectively enforcing those time, place and manner restrictions? Training. You need to train everyone on staff, including public safety, so that everybody understands what the policy is, what it says, and what their role is in effectively enforcing and implementing those policies.

Jackie Gardina:
Beth, that’s so helpful. I really appreciate the time that you spent with us today, and thank you for lending us your expertise.

Beth Gellman-Beer:
Of course. It’s my pleasure as always.