The Challenge of Combatting Discrimination in Higher Education
As a legal firm that defends the legal rights of students, we often find ourselves litigating complex cases of discrimination in higher education. These cases pose numerous challenges, including proving intent, navigating each institution’s idiosyncratic policies, and contending with the asymmetric power relationship between an institution of higher education (which are multimillion-dollar and, in some cases, multibillion-dollar organizations, with thousands of employees) and an individual student who frequently just wants to get their degree and move on. Our goal in each such case is to use the rights structures that protect students who belong to protected classes—race, ethnicity, sex, gender, affectional orientation, religious affiliation, national origin, and disability—to ensure that colleges and universities treat our clients fairly.
Proving Intent in Higher Education Discrimination Cases
One factor that distinguishes the statutes that protect students in primary and secondary education and the statutes that protect students in higher education is that to establish liability for institutions of higher education, one must show a requisite degree of intent to discriminate on the basis of disability. Intent, in broad terms, refers to the state of mind behind an action or decision. In some discrimination cases, particularly those under Section 504 of the Rehabilitation Act involving private colleges and universities, demonstrating that the actions or omissions in question were discriminatory, or at least recklessness with regard to an outcome that resulted in disparate treatment based on disability, is a prerequisite to establishing financial liability for a college or university. This can be challenging in higher education settings where institutions will not only claim that their decisions were made for legitimate reasons unrelated to discrimination, but that the decisions were made for pedagogical reasons in which only the higher education institution has expertise.
To prove intent, lawyers rely on a combination of direct evidence (such as explicit statements expressing bigotry or documented discriminatory practices like deliberate segregation), and circumstantial evidence, such as disparate outcomes for members of protected classes as compared to non-protected persons (e.g., white students consistently getting better grades and/or more and/or better opportunities than Black students). Even with compelling evidence, however, establishing intent in the eyes of a jury can be difficult—especially when dealing with subtle forms of discrimination and institutionalized biases.
Proving intent in discrimination cases in higher education is often like creating a mosaic. One must piece it together from the individual bits and pieces. We have found that it is now exceedingly rare to find a “smoking gun” in higher education discrimination cases. Those who discriminate against students with disabilities know not to use discriminatory language in written communications. We must therefore build evidence of discriminatory intent in higher education cases by finding nuances, indirect evidence, and inconsistencies between stated values and behaviors. It’s rarely a straightforward task. But that work is crucial to building a strong case against discriminatory practices on college campuses.
Despite these challenges, strategies such as thorough documentation, use of expert testimony, and the development of thorough comparator evidence can strengthen the case for proving intent in discrimination cases. The meticulous compilation and presentation of evidence helps to hold institutions accountable for discriminatory practices and helps attorneys and their clients with disabilities advocate for inclusive environments on college campuses.
What Are Common Forms of Discrimination in Higher Education?
Despite the widespread belief that colleges and universities are bastions of liberalism and acceptance, discrimination happens every day on campuses. That discrimination takes various forms but is frequently both subtle and exacerbated by the inequalities that characterize the relationships between professors and students, graduate students and advisors, and Ph.D. candidates and their dissertation committees or primary researchers. Understanding these forms of discrimination is essential for identifying and addressing disparities within undergraduate and graduate educational institutions.
Likely the most common form of discrimination in higher education is racial discrimination, which can manifest through disparities in admissions (especially since the Supreme Court’s decisions in SFFA v. Harvard and SFFA v. UNC, which effectively eliminated affirmative action practices in higher education that were meant to remedy more than a century of racial injustice in America), discipline, and access to resources, mentorship, and clinical and/or practical opportunities. Students of color face barriers to entry and encounter hostile environments that hinder their academic success relative to their white peers.
Gender discrimination is also prevalent in higher education. Women often experience disparities relative to men in recognition, access to opportunities, and academic freedom. Women in academia—both students and professors—can also face criticism for exhibiting the same characteristics that are encouraged in men: Assertiveness, overt confidence, and contentiousness. Stereotypes and biases can contribute to a hostile climate for women in academic settings, perpetuating inequalities in representation and advancement. Trans and gender-diverse persons face mistreatment based on their identitiy(ies) as well. They can be pigeonholed into what others believe their range of gender expression should be, penalized in both formal and informal ways for not behaving for the comfort of others, and permitted to advance only as far as tokenism will allow.
Discrimination based on disability, sexual/affectional orientation, religion, and other protected characteristics also occurs on a daily basis in higher education. Each impacts students’ experiences and access to educational opportunities. With discrimination on the basis of disability in particular, colleges and universities often fail to implement reasonable accommodations for students, even where the institution’s office of disability services has agreed that those accommodations are necessary for a student with disabilities to have the same access to their education as do their non-disabled peers.
We believe it is also important to recognize that all of these forms of discrimination can intersect, which compounds the challenges faced by marginalized groups within academic institutions. For example, Black students with disabilities can face particular forms of discrimination that Black students and students with disabilities do not experience. Similarly, women of color often face particular forms of discrimination that include the erasure of at least one aspect of their identities (e.g., you can be regarded as Black or as a woman, but not as a Black woman).
Recognizing and addressing these common forms of discrimination does not merely benefit individual students. It helps colleges and universities to create more inclusive environments that promote diversity, equity, and academic excellence, to the benefit of all.
What Legal Protections Exist for Students Facing Discrimination in Higher Education?
When students encounter discrimination in higher education, they may wonder what legal protections are available to them. Understanding these protections is essential both for advocating for a client’s rights and for seeking recourse in cases of discrimination.
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance, including many colleges and universities. This law provides students with a mechanism for filing complaints with the U.S. Department of Education’s Office for Civil Rights (OCR), and for pursuing civil litigation against institutions found to be in violation.
Similarly, Title IX of the Education Amendments of 1972 prohibits sex discrimination, including sexual harassment and assault, in educational programs and activities. Students who experience gender-based discrimination or violence can file complaints with the OCR or pursue legal action against their institutions under Title IX.
Additionally, the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 prohibit discrimination on the basis of disability in higher education, requiring colleges and universities to provide reasonable accommodations and ensure equal access to educational opportunities for students with disabilities.
State laws can provide similar and supplemental protections. Here in Pennsylvania, for example, the Pennsylvania Human Relations Act (“PHRA”) provides protections under Pennsylvania Law that are co-extensive with Title VI, Title IX, the ADA, and Section 504. And, crucially, state laws remain largely unaffected by changes to federal law and decisions by the United States Supreme Court. So while emotional harms damages have been eliminated under Title IX and Section 504, for example, they remain available under the PHRA.
While these laws offer important protections for students facing discrimination in higher education, navigating the legal process can be difficult, particularly where these rights structures overlap with one another. Legal representation and advocacy organizations specializing in civil rights and education law can provide vital support and guidance to students seeking justice in cases of discrimination on college campuses.
What Role Do Institutional Policies and Procedures Play in Addressing Discrimination in Higher Education?
Policies and procedures provide the framework for institutional responses to discrimination in higher education, outlining the steps for reporting, investigating, and remedying instances of discrimination. They also can serve, unfortunately, to slow down institutional responses to the needs of students and to shield colleges and universities from their obligations under the law. Understanding the role of these policies and how an individual institution applies them is crucial for students, faculty, and administrators alike in fostering inclusive campus environments and upholding civil rights.
In many colleges and universities, anti-discrimination policies are included in student codes of conduct, faculty handbooks, and institutional equity statements. These policies typically define prohibited behaviors, outline reporting mechanisms, and delineate the responsibilities of various stakeholders in addressing discrimination.
The mere existence of policies is not, however, sufficient to combat discrimination effectively. Many institutional anti-discrimination policies are merely aspirational: They state a purported value but offer no protections beyond what the law already provides for students. Moreover, policies and procedures matter not in how they are written, but how they are applied. Comprehensive, accessible, and consistent enforcement are the prerequisites to providing meaningful protections for members of the campus community. And that, in turn, requires colleges and universities to implement ongoing training for staff, professors, and administrators; transparent communication about rights and responsibilities; and not only mechanisms for accountability and oversight, but clear paths for students to access those mechanisms.
Moreover, the intersectionality of discrimination requires a holistic approach to policy development and implementation. Institutions must recognize and address the ways in which discrimination based on race, gender, disability, sexual and affectional orientation, and other protected class memberships intersect and compound to create unique challenges for marginalized individuals.
Combating discrimination in higher education is a multifaceted process. Each such individual fight will vary depending on the specific circumstances and applicable laws. Here, however, is a broadly-framed, step-by-step guide:
Documentation and Evaluation: Collect and document evidence of discriminatory behavior or practices. This may include written communications, emails, witness statements, and any other relevant documentation. Evaluate the evidence to determine if it indicates potential discrimination based on protected characteristics such as race, gender, disability, or others.
Know Your Rights: Familiarize yourself with federal and state laws that prohibit discrimination in higher education, such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and others. Pay attention also to state anti-discrimination laws, which often offer protections in addition to those supplied by Federal law (e.g., the Pennsylvania Human Relations Act). Understand what constitutes discrimination under these laws and the remedies available to you based on your protected class memberships.
Explore Internal Complaint Procedures: Many colleges and universities have internal procedures for addressing discrimination complaints. Review your institution’s policies and procedures for reporting discrimination and follow the prescribed steps for filing a complaint. This may involve submitting a formal written complaint to the appropriate office or official within the institution.
Decide Whether to File with External Agencies: If you are unsatisfied with the outcome of the internal complaint process or if your institution fails to address the discrimination adequately, you may consider filing a complaint with external agencies. For example, you can file a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) or the Equal Employment Opportunity Commission (EEOC), depending on the nature of the discrimination and the nature of your position within a college or university. The same is true of state administrative agencies that enforce antidiscrimination laws, like the Pennsylvania Human Relations Commission. Bear in mind, however, that the timelines to file these administrative complaints can be short (90 or 180 days, in many cases), and those timelines may not be paused while you are going through a college or university’s internal complaint procedures.
Engage in Advocacy and Awareness: Engage in advocacy efforts to raise awareness about discrimination and promote institutional change. This may include collaborating with student organizations, faculty groups, or community activists to advocate for policy reforms, diversity initiatives, and cultural competency training programs within the institution.
Take Legal Action: In some cases, you may need to pursue legal action against the institution or individuals responsible for the discrimination. This is where a firm like Raffaele & Associates enters the picture. We routinely handle student civil rights, and our experience can be indispensable when seeking legal recourse and determining the best course of action. This may involve negotiating directly with the attorneys for colleges and universities, filing administrative complaints, and filing lawsuits in federal or state court seeking damages and/or injunctive relief.
Follow-Up and Monitor Routinely: Stay informed about the progress of your complaint or legal case and follow up with relevant authorities or legal counsel as needed. Monitor the institution’s response to your complaint and hold them accountable for addressing the underlying issues of discrimination.
Understanding the specific challenges combatting discrimination in higher education is an important first step in seeking redress for abuses that you or your college-age child has suffered in an educational setting. You can be proactive by familiarizing yourself with the anti-discrimination policies and procedures at the involved institution, as well as the applicable federal and state laws.
If you notice any gaps or inconsistencies, you can move forward through potential legal action. By actively engaging with your institution’s policies and holding them accountable to uphold the rights of you and/or your child, you can achieve not only redress for any institutional failures, but also contribute to creating a more inclusive and equitable campus environment going forward.
We Are Here to Help
The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and families. Our trusted team of attorneys, education consultants, and staff provide skilled, thoughtful representation for your case. By combining the experience and sophistication of a large firm with the personal attention and service of a small law office, we offer you the best of both worlds.
Our team of professionals includes attorneys, an advocate, and support personnel, all working together to serve our clients and fulfill our mission through education, advocacy, and representation.
If you would like to know more, please contact us here. We look forward to speaking with you.
The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your personal situation.
