The recent wave of campus activism over issues of gender and racial equity has presented a range of challenges for college lawyers, including the thorny question of how to protect free speech and sometimes conflicting demands from federal and state governments on transgender rights.
Civil-rights issues arising from concerns like those were heavily discussed at the annual conference here this week of the National Association of College and University Attorneys, known as Nacua.
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The recent wave of campus activism over issues of gender and racial equity has presented a range of challenges for college lawyers, including the thorny question of how to protect free speech and sometimes conflicting demands from federal and state governments on transgender rights.
Civil-rights issues arising from concerns like those were heavily discussed at the annual conference here this week of the National Association of College and University Attorneys, known as Nacua.
The focus on civil-rights issues was not intentional, said José D. Padilla, vice president and general counsel at DePaul University and the new chair of the association’s Board of Directors. But the program did reflect the complicated discussions that emerged from a year’s worth of campus protests, battles with state lawmakers, and a major Supreme Court decision on race-conscious admissions.
Some of those issues were not new to the conference and have been debated for years. But the intensity of the discussions and the potential for conflict have increased over the past year.
Mr. Middleton, who led protests to improve racial diversity during his time as a law student at Mizzou, said his generation of students had little hope that their demands would be met. Millennials, on the other hand, “are less willing to tolerate mistreatment,” he said during a presentation to the conference.
And the solutions for many of these issues lie more in the realm of best practices than in purely legal analysis, said many conference attendees. Lawyers representing colleges, they said, need to consider measures that encourage students to express their views while maintaining a culture of civility.
“We don’t want to encourage uncivil advocacy,” Mr. Padilla said, “but we shouldn’t be afraid of them being independent thinkers.”
Old Issues, New Students
Under pressure from the Education Department’s Office for Civil Rights and stricter guidance about colleges’ responsibilities under the gender-equity law known as Title IX, lawyers who represent colleges have, for several years, been grappling with the issue of sexual violence on campuses.
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Discussions of those issues are still prominent at the annual Nacua conference. But gender-equity discussions are taking on added dimensions now, with debates over transgender rights and how to accommodate students who do not identify with the binary distinctions of male and female. The issue came to a head this year, when North Carolina enacted a law that requires people to use bathrooms that correspond with the gender on their birth certificates.
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The Education Department responded in May with a “Dear Colleague” letter saying that students who are transgender are protected under Title IX and should be allowed to use the restrooms and locker rooms that are consistent with their gender identity.
Panelists speaking at the Nacua conference noted that colleges are also beginning to deal with issues such as accurate record keeping for students who are transgender and providing appropriate housing options that protect them from harassment.
Access to a safe and convenient restroom has always been a civil-rights issue in the context of racial equality and under laws protecting disabled persons, said Chicora Martin, vice president for student life and dean of students at Mills College. Now colleges are beginning to realize that giving individual students a say in how they are identified and treated is an important part of making the institution more accessible and responsive to educational needs. “We’re moving away from the paternalistic ‘we know what’s best for you’ approach.”
Diversity and Inclusivity
Campus tensions over race, prompted by student protests and the continued rise of the Black Lives Matter movement, came up in several smaller sessions at the conference. The panels dealt with the potential legal conflict between calls for protections from offensive speech and the freedom of speech guaranteed by the First Amendment.
Title VI of the Civil Rights Act of 1964 is meant to protect individuals from harassment based on race and requires colleges and other institutions to respond to behavior that is “severe, pervasive, or persistent.” But lawyers at the sessions urged caution in trying to regulate or respond to speech, even if it is blatantly offensive or the outcry from such speech is widespread.
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That doesn’t mean lawyers should be counseling their colleges to take no action, said Traevena Byrd, general counsel at Towson University. The president of a college can be encouraged to speak out against the offending speech, she said, and the college’s lawyer can simply meet individually with the person who has made offensive comments and “make them aware of the impact of their speech.”
But students can’t simply be told now to put their concerns aside, she said, especially since colleges have told them to have high expectations. “We’ve sold them a bill of goods about how they should be treated.”
Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.
Correction (7/1/2016, 1:03 p.m.): This article originally misstated Mr. Padilla’s status at the association. He is the new chair of its Board of Directors, not the departing chair. The article has been updated to reflect this correction.
Eric Kelderman covers issues of power, politics, and purse strings in higher education. You can email him at eric.kelderman@chronicle.com, or find him on Twitter @etkeld.