United States Department of Education
Office for Civil Rights, Region IX

April 16, 2012

Chancellor Marye Anne Fox
University of California, San Diego
9500 Gilman Drive
La Jolla, California 92093-0097

Re: OCR Docket #09-11-6901

Dear Chancellor Fox:

On March 11, 2010, the U.S. Department of Justice, Civil Rights Division initiated an investigation into the University of California at San Diego (University) to determine the University's compliance with federal civil rights laws, including Title IV of the Civil Rights Act of 1964. On March 30, 2010, the U.S. Department of Education (the Department), Office for Civil Rights (OCR) opened a directed investigation pursuant to Title VI of the Civil Rights Act of 1964. The investigation concerned alleged incidents of racial discrimination and harassment at the University, including a review of the University's policies and practices for responding to student complaints of racial discrimination and racially-biased incidents on the University campus. While the investigation was conducted jointly, this letter principally addresses OCR's jurisdictional authority under Title VI.

OCR has responsibility for enforcing the regulation implementing Title VI, at 34 C.F.R. §100.3(a) and (b), which prohibit discrimination based on race, color or national origin by recipients of Federal financial assistance. Universities are responsible under Title VI and the regulation for providing students with a nondiscriminatory educational environment. Harassment of a student based on race, color or national origin can result in the denial or limitation of the student's ability to participate in or receive education benefits, services, or opportunities.

Under Title VI and the regulation, once a university knows or reasonably should have known about possible harassment among students on the basis of race, color or national origin, it is responsible for determining what occurred and responding appropriately. A university may violate Title VI and the regulation if: (1) the harassing conduct is sufficiently serious to interfere with or limit the student's ability to participate in or benefit from the educational program; (2) the university knew or reasonably should have known about the harassment; and (3) the university fails to take immediate responsive action to stop the harassment, eliminate the hostile environment, and remedy the effects of the harassment. These steps are the university's responsibility whether or not the student who was harassed makes a complaint or otherwise asks the school to take action. The university also must take steps to prevent any retaliation against the student who made the complaint or those who provided information.

In determining whether a hostile environment based on race, color or national origin has been created, OCR examines all the circumstances, including: the type of harassment (e.g. whether it was verbal or physical); the frequency and severity of the conduct; the age, race, and relationship of the parties; the setting and context in which the harassment occurred; whether other incidents have occurred at the university, and other relevant factors.

Background and Facts
A number of widely publicized racial incidents occurred during the two-week period between February 15, 2010 and March 1, 2010.

On February 15, 2010, fraternity members hosted an off-campus, themed party that was called the “Compton Cookout.” The party was advertised as a celebration of Black History Month and utilized exaggerated African American stereotypes in its publicity. Party participants were encouraged to attend in stereotypical garb and some were observed at the party in blackface. Immediately following the party, several students expressed outrage over the event and called for the University to investigate the incident. The concerned students were principally represented by the Black Student Union – the African American student organization on campus.

The University investigated the incident to determine if there were any possible violations of the student conduct code by the fraternity members who organized the event. During the course of its inquiry, the University determined that there were no University funds involved and that the University did not have authority over the off-campus event. The University also learned that the fraternities of the students involved independently reprimanded their members, but because those sanctions were private, the extent and nature of the sanctions remain unknown.

The University issued press releases reaffirming UCSD's "Principles of Community" and condemning the party. The University’s Intergroup Relations Program (IRP) was involved in coordinating the University's response, which included a public message from the Chief Diversity Officer stating that "this type of event mocking a racial group will not be tolerated." IRP also alerted Counseling and Psychological services to provide support services for students. The University also sponsored a forum on February 16, 2010, to provide the University community an opportunity to discuss the issues and scheduled a teach-in on racial stereotyping for February 24, 2010.

On February 18, 2010, the Koala (an on-campus satirical magazine) produced a live broadcast on SRTV, the University’s closed-circuit television channel, and used a racial slur when referring to members of the Black Student Union (BSU). On February 19, 2010, during a student-organized forum on racism at the student center following a rally in response to the SRTV event, a BSU member went with the Director of the University Center for Student Affairs to the SRTV office to obtain a recording of the broadcast. They were unable to find a recording, but they found a sign in the Koala’s campus office that said "Compton Lynching”. The sign was brought back to the forum and read aloud, after which several students stated that they “felt threatened on campus” and that they “interpreted the note as a direct threat to their lives.”

On February 25, 2010, the University’s Assistant Vice Chancellor received a text message containing a photograph of a noose that was hung from a bookshelf in the main undergraduate library. University police responded to the library and found the noose hanging from a library shelf. Two days later, a student came forward and admitted to hanging the noose. The student was suspended, and the evidence was turned over to San Diego Police for a potential criminal investigation.

On March 1, 2010, the University library’s security staff was notified that there was a Ku Klux Klan style hood on the head of a statue near the library. Near the site of the noose, an anonymous individual had placed a rose in protest, with flyers that stated, among other things, "if you have ever been made to feel like a stranger on this campus, or if you want to show love and solidarity for those that are in pain, these flowers are for you.”

The hood incident was the final widely publicized racial incident in the series of events during the two week span between February 15, 2010 and March 1, 2010. Additional incidents had occurred earlier in spring 2010, prior to the Compton Cookout, including multiple graffiti incidents on University property that included racial slurs and a swastika.

Following these incidents, the BSU along with several other minority student organizations issued a list of 32 demands to the University that they believed would increase minority representation and inclusion of minorities on campus. These included hiring more minority faculty, improving recruitment and retention efforts for minority students, offering more courses and a minor in African-American Studies and in Chicano/a Latino/a Studies, developing an African-American resource center, requiring that all students take a diversity course as a prerequisite for graduation, and improving the campus climate for diverse students.

Summary of Investigation to Date

Campus Climate
Students, staff, and faculty who were interviewed stated that they felt intimidated and unsafe on campus. Many of the investigative interviews indicated that racial minorities at the University experienced expressions of hostility toward them and that some minorities – both faculty and students – did not feel welcome or supported by the University community. Some interviewees indicated that the University was insensitive toward minority students and did not do as much as it could to create an environment free from discrimination. As an example, students interviewed consistently perceived the Koala’s publications, which often espouse hostile perspectives toward minority students, as a representative voice of the majority community, and, moreover, that the University’s inaction toward the Koala signified a tacit approval of its messages. Some staff and faculty also stated that they felt the majority of administrators and faculty did not seem to understand the importance of a diverse learning community and that the University’s efforts to retain employees of color were inadequate.

Some members of the University’s senior leadership acknowledged that the aforementioned sentiments exist in their campus population but also expressed frustration that their efforts at promoting a safe, inclusive campus climate were not adequately recognized by the community. They expressed their belief that the passage of California Proposition 209¹ made it more difficult to develop targeted programs to recruit minority students and faculty; nonetheless, they identified a number of initiatives designed to increase the diversity of the faculty and student body.

Policies and Procedures
The investigation further revealed that the University had a number of procedures to address discrimination on campus. The procedures applied in various situations, with separate procedures for incidents involving faculty, for incidents involving other students, and for incidents involving staff. Each procedure was overseen by a different entity of the University. Most of the procedures were mandated by the University of California system, and the University stated that it has limited ability to alter those procedures.

None of the students who were interviewed – many of them campus leaders – could articulate any awareness of the University's process for addressing complaints of race discrimination. While Title VI does not enumerate specific requirements with respect to a university's grievance procedures, the University is responsible for responding appropriately to incidents of discrimination. Having a clear grievance process can facilitate the effectiveness of such responses.

The University recognized that the many processes for addressing complaints were confusing for many members of the campus community and that there was no consistent record-keeping of such incidents. The University proposed to create a central office for the reporting of all incidents of discrimination, which would simplify the process for filing an internal complaint of discrimination. In August 2010, the University created the Office for the Prevention of Harassment and Discrimination (OPHD) to serve as the primary entry point for complaints under the University's discrimination procedure, to investigate most complaints of discrimination and, as appropriate, to coordinate with other offices in the University that share responsibility in responding to incidents of discrimination.

Voluntary Resolution Agreement
Prior to the completion of the investigation, the University voluntarily asked to resolve this investigation. Under OCR's case processing procedures, a case may be resolved before the conclusion of an investigation. The provisions of the agreement must be aligned with the issues addressed by the investigation and must be consistent with applicable regulations. Such a request does not constitute an admission of liability on the part of the University, nor does it constitute a determination that the College has violated any of the laws that OCR enforces.

On April 9, 2012, the University signed an agreement (Agreement) to resolve this investigation. The Agreement is the result of collaborative efforts with the University to identify measures that will assist the University with its Title VI compliance and its ongoing efforts to ensure a campus that is free from racial harassment that can deprive students of an equal opportunity to benefit from or participate in the University's education programs and activities. In entering into the Agreement, the University makes no admission of liability under Title VI or of any wrongdoing. OCR wishes to thank the University for its cooperation in reaching an agreement that will have a long-lasting, positive impact for its University community and that will enhance and build upon the many actions the University already was taking.

The Agreement, in part, requires the University to revise its policies and procedures concerning discrimination and harassment to ensure that they are designed to prevent harassment from occurring; to fully and appropriately resolve complaints of discrimination and harassment; and to remedy the effects of discrimination and harassment and eliminate any hostile environment that may have resulted. The University is required to provide bi-annual reports to OCR until 2015, detailing records of all discrimination complaints received, the investigation of those complaints, and a description of how the complaints were resolved. In addition, the University must maintain records related to allegations of race discrimination and racial harassment for a period of no less than five years from the date of their creation. The University is required to develop a comprehensive plan for conducting annual training for faculty, staff, administrators and students on the policies and procedures concerning discrimination and harassment. Further, the Agreement recognizes the creation of the OPHD and defines expectations for the investigation, documentation, and resolution of complaints of discrimination. Additionally, the Agreement incorporates a number of commitments that the University made to the campus community in response to the incidents in the spring of 2010. Those commitments – developed collaboratively with many of the University's students and concerned faculty – are designed to improve the campus climate and create a more welcoming environment for all students.

Conclusion
In light of the actions taken by the University and the commitments that the University has made going forward, OCR has concluded that the concerns examined as part of this investigation are resolved. We are therefore closing this investigation as of the date of this letter. As is its standard practice, OCR will continue to monitor the University's implementation of each item of this Agreement until such time as OCR has obtained sufficient evidence to demonstrate that the University is in compliance with the provisions of Title VI applicable to this investigation. OCR will not close the monitoring of this investigation until that time. In addition to the monitoring provisions set forth herein, during its monitoring of this agreement, OCR may visit the University, interview University staff and students, and request such additional reports or data as are necessary for OCR to determine whether the University has complied with the terms of this agreement and the applicable Title VI requirements.

This letter is issued by OCR to address an individual OCR investigation.  Such letters contain fact-specific investigative findings and dispositions of individual cases. Letters of finding are not formal statements of OCR policy and they should not be relied upon, cited, or construed as such.  OCR's formal policy statements are approved by a duly authorized OCR official and made available to the public.

We look forward to receiving your first monitoring report, which is due on August 1, 2012. Thank you again for your cooperation and that of University officials during the course of this review. If you have any questions, please contact Stephen Chen, OCR Supervisory Attorney, by telephone at (303) 844-2557 or by e-mail at stephen.chen@ed.gov.

Enclosure

¹ Proposition 209 was a 1996 California ballot proposition that, upon its passage by voters, amended the state constitution to, among other things, prohibit public universities from considering sex, color, ethnicity, or national origin in their operations.