Higher Education Renaissance
Peter Lake is a Professor of Law who has never shied away from addressing the controversial topics that impact higher education with his trademark candid, unique, and often humorous approach. Eric Seaborg has created this podcast series to capture the insight of Peter Lake on the status of higher education. Eric will have Peter analyzing the key issues challenging the industry of post-secondary education and the future direction of our institutions across the nation.
Higher Education Renaissance
Next up walking the Higher Ed tightrope...Title VI
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Join us for a thoughtful conversation with Peter Lake as we unravel the complexities of administering Title VI while scrutinizing the growing use of time, place, and manner restrictions on campuses. These regulatory shifts hold profound implications for free speech, possibly leading to viewpoint discrimination. Listen in as we highlight a pivotal Department of Education case from Ann Arbor, Michigan, which underscores the tangled interplay between race, color, and national origin, urging institutions to respond with greater depth and urgency.
As the regulatory landscape shifts, we explore how faculty positions, especially in law schools, are affected by these changes amid declining interest due to low pay and program closures. Discover how recent Supreme Court decisions and regional attitudes toward Diversity, Equity, and Inclusion (DEI) initiatives shape university admissions and oversight efforts. We also discuss the resurgence of the Calvin Report as a guiding light for free speech and academic freedom. Witness the rising enrollment in HBCUs as part of the trend of affinity consumerism, where students gravitate toward learning environments that resonate with their values.
Welcome back. This is Higher Education Renaissance. I'm Eric Seaboard. In July of 1964, president Lyndon Johnson signed into law Title VI as part of the Civil Rights Act, the purpose to prevent racial discrimination in programs and institutions receiving federal financial support. This was, of course, part of a larger effort to uphold civil rights and social justice in the United States. On today's episode, peter Lake discusses Title VI and the potential resurgence of challenges institutions may face on the eve of our national election. Following this episode, peter and I will be gearing up for a post-election show to talk about the ramifications that higher education may experience based on the outcome, an outcome that may take months to decide.
Speaker 2:From MC1R Entertainment. This is Higher Education Renaissance with.
Speaker 3:Peter Lake hey buddy, how are you today?
Speaker 1:Well, it's the 2024 semester in full swing.
Speaker 3:We're in for a ride. You can say that again. Edge Apocalypse is alive and well. Are you surprised? We didn't think that things would cool off terribly much coming into this term and right on schedule it hasn't.
Speaker 1:So you reached out to me about this concern you had.
Speaker 3:There's been a bit of a pivot away from Title IX to Title VI. Title IX is its own hot mess, continuing to create utter confusion around the country as to what to do and when and what the obligations are. There was an email from the Department of Education about compliance obligations. That was. I don't think I'd ever see anything quite like it. A lot of you are under injunction, but those of you who aren't, we intend to enforce the new rules, and well, we'll just have to see. But in any event, I do think that the energy that's being directed on campus towards issues that arose back in October and have been continuing ever since has really gotten the attention of just about every senior leader out there and dominates a lot of the conversation.
Speaker 1:Okay, so where do we start with the discussion?
Speaker 3:I'm seeing a couple things happen. One is that people are locking down on time, place and manner. They're using those more aggressively than perhaps we'd seen in some time, if at all.
Speaker 1:Let's start there. What do you mean by time, place and manner?
Speaker 3:Well, even in a public forum, an open space that's traditionally designated for speech activities, you have the authority to impose reasonable time, place and manner restrictions. And of course, what's reasonable is sometimes in the eye of the beholder, but what you're seeing is stricter standards for reasonable time, place and manner, and then, particularly and notably, is enforcement that follows that, you know, just this week there's been a report of hundreds of arrests made in the campus. And so it's you're seeing, you know, more intentional reasonable time, place and manner restriction that's more restrictive, and then the willingness to exercise authority to back it up with trespass or other types of rules or conduct rules on campus. This is a new day for a lot of campuses to have that level of regulation, and you know, as I hinted, regulations have to be reasonable. Already, ACLU and FIRE have been pushing back against some of them, because some of them are written in such an overbroad way that potentially could squelch speech or express some activity that's not intended to be swept up in it and could be too restrictive given the nature of you know what the campus is trying to do.
Speaker 3:And then there's an undercurrent to this too, Ginge, which is that if all of a sudden, out of nowhere. You start having reasonable time, place and manner restrictions because you don't like what people have to say. There's a problem about viewpoint discrimination. That's going to come up, and this is percolating underneath all of this. Is you know, are you doing this to manage your campus because there's been a problem? Are you doing it in a neutral and even-handed way, or are you just disliking the speakers and the content and you're going after that, but you're doing it with the pretense of neutral, reasonable time, place and manner restrictions.
Speaker 1:So this is where the discussion begins with Title VI.
Speaker 3:Yeah, I think when people thought Title VI, the focus had been a lot on race. People thought of was admission standards, race-conscious admissions, you know. So there you are. And the word color, which has a lot of historical meaning and significance and is legally protected, wasn't necessarily as big a part of the discussion, and national origin also wasn't as big a point of focus. And all of a sudden, because of what's happened in the Middle East, we're getting a much more complex mix of race, color and particularly national origin is coming forward and I don't know that everybody was as prepared for this as they might have been something that had been as big a focus area but has now become the subject of repeated resolutions from the Department of Education, including this week involving a school system up in Ann Arbor, Michigan.
Speaker 1:So talk about that for a minute, outline it for us.
Speaker 3:Well, apparently someone went to a counselor and what was reported to OCR is that the counselor told the student I don't deal with terrorists.
Speaker 3:The student was of Palestinian origin and Muslim faith. And again, you know, I'm just reading the resolution agreement. What I don't want to do is, you know, spin things beyond what I've seen in resolution letters. But the significance is that OCR moved toward very quickly and they immediately castigated the institution for having a policy that they would only deal with written complaints, even though they were aware of the concern, and they've insisted that schools move towards issues of hostile environment. I think it's interesting too, because in and of itself it's a single incident, although there may have been indications that other things were problematic. But the department certainly looks at things now and says we can see a triggering incident that'll make us ask you, are you looking to see how this connects to the general environment around national origin and race, in particular on your campus environment around national origin and race in particular on your campus? And they're asked to do a lot of things now, doing a climate survey and come up with new policies and etc.
Speaker 1:I wanted to pause here during our discussion and bring up the information on the Office of Civil Rights page, the latest data they had listed for complaints, or I should say investigations, under the terminology of shared ancestry 2018, there were two. 2019, there were two. This is nationwide. 2020, there were six. 2021, there were were three. Then, as COVID started to move to the back burnera little bit and campuses started to open again, in 2022, it jumped up to 13 in 2023, last year 46, and now, thus far at the time of this recording, in 2024, there are 85 current OCR investigations on college campuses surrounding shared ancestry. So I asked Peter to comment on that.
Speaker 3:I have to say I think higher ed has a tendency to move towards the thing where the fire is existing, and so we have very elaborate systems for Title IX reporting and response now, and you don't see the same infrastructure for Title VI. Four, six, even 13 complaints, that's basically nothing. You're not seeing anything of consequence on that, and if you were seeing something, it was more likely race-based, not always, but more often than not you see these things in an employment context. Now you're seeing it with the student body in very large numbers.
Speaker 1:So, Peter, how do all these agencies interact with each other?
Speaker 3:Essentially, the Department of Justice and Department of Ed have overlapping jurisdiction. Ocr is a subunit of the Department of Education and they look for what Congress intended, which is what's known as voluntary resolution. The idea is that you investigate and you attempt to generate a voluntary resolution with an institution. If you fail a voluntary resolution, theoretically it can be sent to the court system. That DOE could run under the Procedure Act. People don't opt for that, although it is interesting because of changes in federal law from the Supreme Court about how administrative courts operate. I wonder if people might.
Speaker 1:It sounds like you're referencing the Chevron doctrine that we talked about in one of our past episodes.
Speaker 3:Things have changed in that dimension, but it still seems business as usual, that the institutions still have incentives to come to voluntary resolution.
Speaker 1:Okay, so clarify for me when the Department of Justice is involved. They seem to appear on occasion, and I'm not sure why.
Speaker 3:working collaboratively together. But I've noticed that DOJ tends to show up when there is some criminal level or appears that the response that the government needs to have with something is very heavy.
Speaker 1:Is it the Hollywood version? Where they come in, they start rifling through all the file cabinets.
Speaker 3:They tend to be more directive, I think, is what I would say more immediate, direct, like thou shalt do this, thou shalt not do that. I'm editorializing this, but, yeah, visits from DOJ is a big signal.
Speaker 1:So is this going to be now just a regulatory environment for higher education going forward and we should be hiring a bunch of lawyers?
Speaker 3:It's actually a predictable life cycle with regulatory behavior. How so and here's how it plays is usually there's a social issue that's gone unresolved and all of a sudden it becomes an issue and you see the first generation of regulations. And so the first iteration is why weren't you doing more? And this is we saw this with Title IX. This was April 4, 2011. And exactly the same thing has happened with Title VI. I mean, people are summoned to Congress. We're seeing DOE why aren't you doing more?
Speaker 3:And the next phase, and the challenging phase, is that the compliance efforts themselves routinely risk becoming the source of compliance complaints. You get what I call meta-compliance issues, so things that you wouldn't have seen before. You get what I call meta-compliance issues, so things that you wouldn't have seen before. It's 2010,. And how many people were complaining that they were screwed over by a Title IX system? Well, they weren't, because there wasn't one.
Speaker 3:As soon as you introduce a college court, you're going to have people complaining that the court went haywire. And the thing is, we've actually already seen this with Title VI, but we didn't realize we were seeing it, because many courts around the country have said that if you operate a biased response unit in a certain way it violates free speech rights. So it's already happening and what I absolutely predict because it's so predictable in the life cycle of regulation that the next stage of Title VI battles is going to be that the systems you use themselves are introducing legal issues that didn't exist before you introduced this, and I guarantee it. I mean, it's not even you know, a speculation. This is going to happen and people are going to attack reasonable time, place and manner restrictions, just as I said earlier, and say well, no, you're discriminating based on national origin or First Amendment rights or otherwise.
Speaker 3:You created these rules, but what it really is, you just don't like the speakers and the content, or you favor one group because that's another thing to think about here that you can't run any system that's designed to favor a group for national origin basis, and so people are going to make that complaint. They're going to say you're too pro this or too pro that, you're too anti this, and so we're headed towards the next generation of this and at some point the whole thing becomes a hot mess. But after that is the rebuild phase, and we're actually entering the first stages of the Title IX rebuild out. This will eventually land with Title VI as well. But now a question of all right, have you done enough? But if you do more, will it actually generate compliance error itself?
Speaker 1:And how will Title VI affect the academic side of campuses?
Speaker 3:Well, it's interesting because for any issue there's people out there doing scholarly work on it. There were people doing gender studies and they got caught up in the churn. Laura Kipnis, I mean, was a perfect example of someone who was writing in the area and got caught up in the storm of the change in regulatory standards. But here's a couple of things I'll say. I was frankly a little disappointed in the Harvard decision that the Supreme Court didn't make more which I think they should make more of the distinction and overlap between race and color.
Speaker 1:What Peter is referencing here is both Harvard University and the University of North Carolina violated the Equal Protection Clause of the 14th Amendment, whereby race cannot be used as a factor in admissions.
Speaker 3:But there's another thing too, and I think what's kind of fascinating to me is that there are a lot of scholars that have spent a lot of time studying, for example, the state of Israel, but also national origin of the people from Israel now and how that all came about. Like the modern state of Israel but also national origin of the people from Israel now and how that all came about. Like the modern state of Israel. And then the people of Palestine and their arguments and the discussion about a Palestinian state. And Americans I think sometimes outside the academy, aren't always really clear on the difference between statehood and nationality.
Speaker 3:Title VI is broader because it protects nationality even if you don't have a state. And here's the thing there are a lot of scholars deeply invested in national origin and in particular in the Middle East, because it has been an area that's worthy of a lot of academic study. Entire programs are devoted. I mean, I think even people have minors and majors in the topic. So inevitably you're going to have a lot of scholars who've been saying a lot, and now when something happens at such a level of drama in the Middle East, they're naturally going to be drawn into making public utterances or academic utterances about it. It's inevitable that you're going to see this kind of issue, and I think people are invested in various positions associated with this.
Speaker 1:So who is going to be Peter, the person or department responsible for this overall? I mean that was the issue originally with Title IX when it first really started to kick up a lot of interest who was going to be the coordinator or the quarterback of this program to ensure there would not be any violations on campus? I mean, do you go ahead and create a whole new Title VI office, like colleges and universities did with Title IX?
Speaker 3:If you have an increase in volume of problems on campus, somebody's got to deal with it. So who is it? What's their authority? Where does it come from? But as soon as I see an office like this pop up, I start thinking well. But as soon as I see an office like this pop up, I start thinking well, depending on where you are in America, you might have anti-DEI standards and it's awfully hard to say oh well, this is different because it relates back to October last year. You know it's why, if DEI is problematic, then how can you have an office like this? Maybe you can't, but it would be.
Speaker 3:It becomes a bit of an odd duck to say we'll carve out space for this because this particular issue will give you a pass. I don't. So there are places like that. Plus, there are states and federal jurisdictions where bias response units are considered potentially chilling speech. So it depends on how this thing operates. If it has a disciplinary connection in some ways, you're going to see the arguments made that this is itself potentially discriminatory in some fashion. I'm not suggesting it is, but I can just see the handwriting on the wall.
Speaker 3:This is part of the pathogenesis of regulatory behavior. Once regulators create the need for compliance, the vendors start moving immediately to it. It's, you know, somebody's got to supply the materials for whatever regulatory activity is going on. And I can already see some of the vendor-type activity out there thinking, oh, we can start selling Title VI centers and services, here we go, here we go. But once you get that kind of bureaucratization of it and vendor relation, it just potentially multiplies. That phase of the development of regulatory law we talked about is what will compliance error look like?
Speaker 1:Peter, with anything new trending on campus and having to enforce that always makes me think about all the twists and turns are going to come up and the difficulty on deciding how things are going to operate.
Speaker 3:People will struggle. Do we want to have one overarching office with equal opportunity and with special areas like Title IX and Title VI, or do you want to have separate offices and do you want to hire somebody that was doing Title IX work and say, come do Title VI, Because it's similar enough that you can jump from one area to another and I think we're going to see you know shuffling chairs on this for a little while.
Speaker 1:Once the institution decides on where Title VI operations should be placed and the people responsible for it, what's going to be the big challenge in the beginning?
Speaker 3:I think the challenge changes that. What the Department of Ed at least is calling for, and I think what is probably needed with these kinds of issues, is public health modeling work that helps create healthy campuses and gosh with Title IX. We were doing that hostile environment type stuff but then it sort of died out with the 2020 regulations and I find that a lot of institutions, lawyers, vendors really struggle with the delivery of services to meet what is really a public health challenge of a hostile environment. They think discipline rules.
Speaker 1:What is the first step in the building process?
Speaker 3:Social norming, education, climate surveys, positive modeling I mean there's a lot of stuff that goes into building out a non-hostile environment. I mean there's a lot of stuff that goes into building out a non-hostile environment, and it is. You know, something interesting about federal law is that it prohibits a hostile environment. But what we really should be seeking is promoting a non-hostile environment. We should seek the positive. And it's sometimes hard for people to imagine what that looks like because it goes outside skill sets. But I think some of the people that used to do alcohol and drug prevention that kind of got lost in the shuffle a little bit with Title IX, may resurrect themselves as people who are working in this way because they have that skill set. But it's going to take some pretty creative hiring for a lot of institutions to realize that that's where the skill set is and who might be most valuable to them to realize that that's where the skill set is and who might be most valuable to them.
Speaker 1:We always talk about how faculty positions have changed, how the occupation itself has been modified or altered in the past couple of years. What are you seeing right now with faculty development?
Speaker 3:I noticed something this year. There's a group that sponsors people to put their resumes in to apply to be law professors, and the number of resumes that's floating right now is a fraction of what it was when I applied 30 years ago or 35 years ago. A fraction, it's obvious to me. What the challenge is is that the pay isn't good, programs are closing and then you could just walk into a firefight and the job could damage your career irreparably. I mean you could take a pay cut, take a chance on a school that might close, you might get fired or you might get attacked and it's just not as attractive. And then the work is a lot harder than it's ever been because you are walking on eggshells and the demands of modern teaching are just ever more complicated. You know I interact a lot more as a teacher now with regulatory matters, which is a good thing, but it just takes a lot more time and energy and it's a harder job than it was 34 years ago.
Speaker 1:Oh, I can imagine.
Speaker 3:For years people were teaching and the school had an identity, the teachers were embedded in it. And then all of a sudden you get a new governor with a new attitude, with the board of governors, and it's just a completely new day. And so your whole life plan has now shifted because of political stuff. You know it used to be in this business you could sort of plop down and the whole idea of tenure wasn't so much a job for life. But when I was at Oxford I remember taking a tour and I looked down and there was a guy's name on a plate that I was standing on and they said he's buried there. This professor is buried here.
Speaker 1:And I thought- Like a star on Hollywood Boulevard.
Speaker 3:You know that's an interesting thought that you would take a job, spend your whole life there and then, when eternity came, they'd pot you right down the hall from where you taught. You know that you would always be there, forever and ever. And boy are things different now.
Speaker 1:Peter in the spring of 2011,. That's when things started to heat up in higher education with Title IX. I'm assuming the October 7th attack over in Israel generated this process of Title VI thinking, but it didn't really start to surface, at least from my perspective, until recently. But I imagine that's because most of the news and headlines was taken up by all the protests on campus and there really wasn't time to sit and focus on the regulatory matter here.
Speaker 3:October 7th is April 2011 to Title VI. We will carbon date those moments. I mean, there are these moments like May 3rd 1970, january 6th. There are dates that things change and that was definitely one, and there was a lot of potential energy that had built up. And what higher ed is getting more tuned into is they've got to be sensitive to potential energy behind the dam it will release at some point. It's just a question of what's going to do it and what's the next big thing that is building up behind the dam.
Speaker 1:What do you think that next big thing is going to be?
Speaker 3:From my edge of apocalypse point of view is I think one of the big challenges higher ed's facing right now is do I really want to run to college now and spend a fortune when it's just a dumpster fire? You know it's, it's not going to be fun. I mean, I get the job I need, I may get in all of this drama and it just ain't fun. It's risky and maybe it always was in a way that we didn't project it. But it does seem like there's just so much more on the table and I think this is part of the reason you're seeing enrollment declines. And challenges for so many schools is what are we selling? Why do people want it? And it's just simmering under the surface the whole time. One of the big threads that's going through higher ed is the resurrection of the Calvin report. You know we don't.
Speaker 1:We don't take positions on things Back in 1967, a professor at the University of Chicago Law School named Harry Calvin Jr generated a document regarding the institutional's role when confronted with political, social or divisive public issues. His stance was for a neutral university position on such matters, along with a strong commitment by the institution of maintaining academic freedom. In other words, calvin's argument was to avoid a collective viewpoint by the university on public controversies, but still supporting the free speech and individual rights of its faculty staff and students. Today, the Calvin Report is a foundational reference when issues of speech and academic freedom arises on campus.
Speaker 3:I think it's very hard to be Switzerland when you have people living on your borders clamoring for you to take positions. A lot of schools, including Harvard, have doubled down on this. You know, that's how they think they're going to proceed forward and we'll have to see if it works or not. And then somebody has to deal with customers who aren't happy with the service, with customers who aren't happy with the service. So you have to design something that at least appears to placate the customers if it doesn't actually intervene with them. And I think people are toying with different ideas. But the fascinating thing is to run to create centers that could actually just be conflicting with bias laws that already exist on court cases.
Speaker 3:I'm seeing trends in American society and in higher ed. People are moving towards affinity consumerism. They want to buy, live, eat, sleep and recreate and work in environments that resonate with their affinities. For example, harvard decision comes out One thing that everybody's trying to be real cautious about the impacts. But have you noticed that HBCUs have seen surges in enrollment? No, let me find my place, and this goes back to several conversations we've had. But when you overemphasize free expression and speech without protecting privacy, what you find is that people go screaming in the streets for freedom from speech. They want to find their affinity space where they can be safe, and it's exceptionally difficult to find safe space. And you hear the conversation over school safety. You see it over race and national origin, even economically, I mean.
Speaker 3:You notice that when the polls come out, you see this consistent divide between people who have had education past K-12 and people who have not. You know, people want to preserve what and protect what they believe is their space and they want to be able to find it. And when it's hard to find, people get angry and scared and they start making all sorts of decisions about where they want to be and where they want to spend their money. And I think this is what schools are struggling with. And you know, jen, is it possible to run the institutions of the past where everybody is welcome? Is that the model that they're going to want? Or do they really want to shop where they want to shop, eat where they want to eat? And I'm not pushing that, I'm not advocating it, but that's what's going to drive a lot of this and I'm seeing all sorts of reshuffling going on as people think well, this is where I want to be and where I don't want to be. And look, people were calling on basis of national origin, saying I was hearing statements like this you should go here and not go there. Conversations I didn't think you'd really have before. You know, and I just hate to say it out loud, but there's some kind of instinct in this country right now for a lot of people to think about separateness. So we'll see how this all shakes out.
Speaker 3:But I think the modern college leadership, the board and president, are going through revolutionary business remodeling. It's a new day. We call this a renaissance show for a reason because both of us believe in the green fields beyond. You know this restructuring period. It's very difficult, it's very confusing. But you know, one of the things I hope today's episode sort of leaves people with a taste with this as social issues become legal, regulatory issues, they go through a cycle, just like a hurricane does, and ultimately hurricanes have a lot of positives associated with them the rebuild that comes afterwards. I mean, we just had a storm go through New Orleans and there was barely a story about the levees breaking, you know. And why is that? Because they're a little better prepared.
Speaker 1:And finally, I will say, peter, in the United States we always pride ourselves on being first and ahead of the trends. What does all this regulation in higher education look like on the world stage?
Speaker 3:Well, I'll say, is that the American experiment could be very useful for people to observe and to see what we've been through, because we all have a lot of the same issues. You know, we've been watching Australia, national attention recently driven around the idea of violence against women and I thought, you know, boy, this reminds me of the American experience and our good friends in Australia might want to pick up some do's and don'ts and lessons learned from the battlefield. And then, of course, our friends in Australia have dealt with Aboriginal rights issues parallel to some of the things we're seeing. So our experiences may be thousands of miles away, but they're not fundamentally different.
Speaker 3:We're all people, we're all trying to learn, and the renaissance in all of this is that the human spirit wants to grow and learn to understand, and that's why higher learning is you'll never kill it. It might have to go underground or go different directions, but we want to figure out. Why are we here, what are we supposed to do and what's next? And it never ends and they'll find a way to do it. You know, the music will play. It's just a question of where it plays and what the tones are.
Speaker 1:Always great insight on these topics, peter. So now we'll gear up for the next episode, after the election. Let's do it All right. Bye, everybody, and keep tuning in. Thanks, Peter, and thanks to everyone for listening in and we'll look for you next time. See you, Bye.
Speaker 2:Higher Education Renaissance is a creation of MC1R Entertainment, written and produced by Jinji Pop Production. We welcome your comments and show ideas at ericseaborg at gmailcom. Thank you.
