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Title VI

Note: This explainer does not constitute legal advice.

TL;DR:

  • Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in federally funded programs. It is a cornerstone of U.S. civil rights law, alongside Title VII and Title IX.
  • Columbia University is significantly exposed to Title VI risk, accounting for 38% of its operating budget. These funds are highly concentrated in the Faculty of Health Sciences, which produce up to ~90% of Columbia’s Federal grants.
  • Case law sets a high bar for Columbia to be found liable. Title VI compliance is overseen by Federal agencies and potentially private lawsuits, all of which play a role in ensuring adherence to anti-discrimination standards.
  • Recent guidance emphasizes addressing hostile educational environments without stifling free speech, presenting a catch-22 for university administrators.
  • While immediate disruptions to funding are unlikely, long-term risks—such as slowed grant approvals under new political directives—could significantly strain Columbia’s finances.

What is Title VI?

Title VI is a section of the Civil Rights Act of 1964 which says:

“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.”

Together with Title VII (prohibitions on discrimination in the workplace) and Title IX (prohibitions on discrimination based on sex in an educational setting), it forms the basis of civil rights and antidiscrimination legislation in the United States.

Why does Title VI matter for Columbia?

They key provision is the language “receiving Federal financial assistance.” Columbia University receives substantial Federal financial assistance. As we have written in a previous post, Columbia’s Title VI exposure could be as much as $2.4 billion (out of a total of $3.5 billion in financial exposure) or ~38% of its operating budget, broken down as follows:

  • $1.329 billion in Federal research grants
  • $785 million (estimated) in Medicare and Medicaid reimbursements, which courts have ruled fall under the definition of “Federal financial assistance.”
  • $318 million in Federal student aid

Columbia is required to publish an annual line-by-line disclosure of all Federal grants received known as the Uniform Guidance Report. The 2024 report is not yet online, but the 2023 report provides directional indications.

The breakout of Federal research funding is heavily concentrated from a few awarding agencies and allocated predominantly to the Faculty of Health Sciences. Specifically, the National Institutes of Health, the Department of Health and Human Services, and the National Science Foundation provide ~90% of Columbia’s grant funding. Most, if not all, of these grants can be attributed to the Faculty of Health Sciences and Engineering.

Not all these funds are dedicated to research. The 2024 financial statements disclose that of the $1.329 billion, $348.9 million is categorized as “indirect cost recovery” (ICR). This basically means that on a blended basis, for every $1.00 the Federal government gives to Columbia’s researchers, it gives ~$0.36 to Columbia administration for overhead and indirect costs. This is a blended rate; Columbia’s ICR rates range from 19% for vessel operations (Columbia’s Lamont-Doherty Earth Observatory apparently has a ship, the R/V Marcus G. Langseth which as of this writing is near West Africa) to 64.5% for on-campus research. These ICR monies can be used to fund Columbia’s central overhead, or can indirectly cross-subsidize other faculties, as money is fungible.

Put simply, in order to receive these Federal funds, Columbia’s Title VI obligations require it to ensure its educational environment is free of discrimination.

How does the Federal government interpret these requirements?

Two Federal agencies that have provided guidance on this. First, the Department of Justice’s Civil Rights Division has published detailed guidance on Title VI here. The guidance is a summary of case law as interpreted by the courts.

The specific language that applies to Columbia is the section on intentional discrimination by a third party thus creating a “hostile environment.” Here, where Columbia “does not create the hostile environment”, but a third party (say a student protestor) does, Columbia has an affirmative “obligation to respond adequately to the third party’s discriminatory conduct.”

Case law suggests that Columbia becomes liable in private suits only if it exhibits “deliberate indifference”. But that bar here is low: an expression of sympathy will seemingly clear it. More generally, Columbia must “take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and address its effects.”

To be precise, Columbia doesn’t have to actually “end the harassment,” just take “prompt and effective steps reasonably calculated” to do so. The Department of Education believes this could be as simple as (among other things) university administrators communicating their opposition to such conduct.

The Department of Education issues Dear Colleague letters, which do not carry the official force of administrative law, but do carry with it an implied threat to funding. The May 7, 2024 Dear Colleague letter provides several clarifications on the Federal government’s stance.

The Department of Education’s Office of Civil Rights (OCR) interprets Title VI violations to mean harassment that “based on the totality of circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from a school’s education program or activity.”

The “severe or pervasive” language is quite important. The conduct can either be severe or it could be pervasive; there’s no need for it to be both. On the other hand, it does not oblige university administrators to limit the speech or otherwise stop the actions of perpetrators; the May 7 letter implies a safe harbor is established if they communicate their opposition to such conduct, provide counseling and support for affected students, or create a welcoming environment (but does not define what that means). The Dear Colleague letter acknowledges this catch-22, conceding that while universities have an obligation to address a hostile environment, they “may, however, be constrained or limited in how it responds if speech is involved.” Therefore, we are back to this unfortunate scene from Team America.

The incoming Trump administration has indicated it will take a much more aggressive stance, with the President-elect stating “My first week back in the Oval Office, my administration will inform every college president that if you do not end antisemitic propaganda they will lose their accreditation and Federal support.”

But the President cannot unilaterally via Executive Order make changes to standards that have been determined by courts—and will be challenged in court (and likely lose) if he tries to do so anyway. Time will tell if he is able to effectively use his bully pulpit to jawbone colleges into line—or, equally likely, a sufficiently lugubrious Title VI case is ruled upon by a high enough court to significantly alter the body of case law.

Who enforces Title VI?

Basically, both regulatory agencies and private parties. But it’s slow.

The Department of Education’s OCR can conduct Title VI investigations. As of this writing, Columbia University currently has three active shared ancestry investigations. OCR maintains a database online of completed investigations an settlement agreements. Brown University’s settlement agreement, arrived at on July 8, 2024, requires it to:

  • Revise its nondiscrimination and anti-harassment policy and its protests policy
  • Provide mandatory training for all affiliates
  • Keep records
  • Subject itself to regular review
  • Conduct regular surveys of campus climate.

Each Federal agency awarding funds will require recipient organizations to self-certify that they are compliant with Title VI. The NIH’s procedure for doing so is here. If a recipient organization is found not to be in compliance, then the Department of Health and Human Services’s Office of Civil Rights can freeze funding while the situation is being remediated.

The last time Columbia faced such risk was when a letter was written on November 3, 1971 by J. Stanley Pottinger, then head of the Civil Rights Division for the Department of Labor, which ordered a suspension of all Federal contracts with the University (then $33 million, or $263 million in today’s dollars; it was also approximately 23% of Columbia’s then $144 million revenue, even higher than today) due to persistent and unaddressed Title IX, Executive Order 11246 and 11375 (equal opportunity and affirmative action) complaints. This got the University administration’s attention, which embarked on a remediation process, and the matter was resolved months later in April 1972, when Columbia submitted an Affirmative Action Plan that committed University to hire 900 additional women and minorities within the following five years.

Next, private actors can file lawsuits against Columbia. Multiple lawsuits have been filed against Columbia alleging Title VI violations. NYU has also been sued and has settled its lawsuit, with the following provisions:

  • Revising its Title VI policy
  • Creating a new Title VI coordinator position, to parallel its existing Title IX coordinator position
  • Providing mandatory training for all affiliates
  • Regular reporting obligations

From first appearances, these settlement points from a private lawsuit sound quite similar to Brown University’s OCR settlement. We believe the “playbook” for settling Title VI violations is now known and that universities, including Columbia, are slowly moving to “harmonize” their policies with these.

What is going on with Columbia’s ongoing Title VI complaints?

There are two categories of complaints. First, there are the investigations that the Department of Education’s Office of Civil Rights has opened up on Columbia. Second, there are the lawsuits filed by private parties against Columbia.

On current course and speed, we believe that these will be resolved according to the “playbook” in the OCR investigations at Brown and the NYU lawsuits, that is, revised policies, public statements, mandatory training, regular reporting, and dedicated administrative resources. We note the comment “on current course and speed.” We can offer no prediction on what the incoming Trump administration will do or on what timeline.

Although it has not yet appeared in any OCR or private lawsuit settlement that we are aware of, we would welcome any settlement that includes a requirement that Columbia publicly publish aggregate, anonymized statistics of its internal Title VI adjudication processes—as it briefly did earlier this year before stopping. So far, settlement agreements seem to require disclosure to universities’ governing boards—not to the public. We reiterate Justice Hewart’s dictum, “Justice must not only be done, but must also be seen to be done.”

What is the likelihood that Title VI funding could be disrupted?

In our judgment, and again on current course and speed, low for existing funding in the short-term. But that may be enough to do considerable damage. We’ve disclosed this in our post on Columbia’s institutional risk exposure. Let’s break this down.

  • Medicare and Medicaid funding is unlikely to be touched as that would harm vulnerable populations and risk political blowback.
  • Federal student aid is also unlikely to be touched, unless as part of a comprehensive reform of the Title IV program, as it impacts students directly.
  • In-progress research funding is unlikely to be impacted in the short-term because of the sheer bureaucratic lift required to freeze funding. Incoming political appointees will likely have their hands full with many other priorities.

However, since Federal research grants operate on a four-year cycle, new political leadership merely directing the civil service to slow-walk the award of new grants will be enough to cause financial strain. Worst of all, we will have no notice and no recourse. We may only be able to observe a theoretical slowdown as it is happening. A quarter of Columbia’s research budget is several hundred million dollars a year; a fraction of that will be felt.

Finally, we conclude by caveating again that it is on “current course and speed.” We have no way of predicting what the incoming administration’s appointees will do, how the career civil service will react, and where these actions may sit in their hierarchy of priorities.