What counts as discrimination and harassment?

Speech or conduct that is perceived as hateful or threatening doesn’t always violate university policies. Nikki Schmidtke, director of ADP response and investigations, said that since hate speech doesn’t have a legal definition, it’s often protected under the First Amendment.

Generally speaking, “all speech and expressive conduct is protected until it reaches the threshold of how (MSU’s Anti-Discrimination Policy) defines harassment,” Schmidtke said.

The ADP defines harassment as “unwelcome conduct based on a protected category” that’s “objectively and subjectively severe, persistent or pervasive” and “creates an unreasonable interference with the individual’s work or educational experience.”

It also prohibits discrimination through “inappropriate limitation” of university resources and opportunities.

But OIE can still offer supportive measures to students who feel they’ve experienced harassment or discrimination, even when reported conduct doesn’t count as harassment in MSU’s eyes — it’s just a more complicated process.

If OIE knows the identity of the individual, offering support is one of the first things they do, even before a decision is made. For students, that often involves coordinating exam or assignment extensions with professors or changes to their housing.

Schmidtke said that conduct may be addressed by other university policies in ways the ADP can’t.

For example, if an MSU employee is accused of such misconduct, that information is sent to their department. They can decide on appropriate measures under faculty and staff policies, even if the ADP decides they are unable to act.

“We can always support a person who's been impacted even if we don't make a finding, even if they don't decide they want to pursue an investigation,” Schmidtke said.

Changing the ADP

Schmidtke has been spearheading an effort to change the ADP based on community input. 

A lot of feedback her workgroup has gotten revolves around clarifying the difference between hate speech and protected speech and “what’s covered and not covered,” Schmidtke said.

Lack of education about the ADP and how to use it was another problem that was identified.

“We got a lot of feedback on how we can make it more accessible and navigable for students and employees,” Schmidtke said.

The ADP prohibits harassment and discrimination based on over a dozen descriptors, such as race, gender and religion. An important area of focus for Schmidtke is making those identities more encompassing.

“We wanted our language to be more inclusive and representative of folks that we have on campus,” Schmidtke said. “And so we did a lot of work with stakeholders to revise the definitions for those identity definitions.”

Schmidtke expects a revised ADP to be finalized in the spring semester. 

What’s stopping students from reporting?

Schmidtke and Kelly Schweda, executive director at Prevention, Outreach and Education, gave a presentation on changes to the ADP at a Nov. 20 ASMSU meeting. But an opportunity for participant questions afterwards emphasized misinformation surrounding the policy.

One student asked how the anti-discrimination policy could protect Arab students when the university and federal government label them as white.

It's true that because the federal government does not have a category for Middle Eastern and North African people, instead labeling them as white, the MSU Diversity, Equity and Inclusion Report does the same. However, MSU does not categorize these students as white, Title IX Communications Manager Christian Chapman said. 

"It’s true that MSU’s DEI Report uses the race/ethnicity categories provided by the federal government, which are limited, but this is one report and not an accurate reflection of the many different identities and intersectional identities that we have on campus," Chapman said in an email to The State News. "This is explained in the DEI Report."

Chapman said that the "ADP is not limited to these race/ethnicity categories, even in its current form, and Arab and other Middle-Eastern identifying students are protected by the ADP." 

The ADP reporting form for discrimination and harassment does not have a list of races and ethnicities for users to choose from. Instead, reporters can choose to self-identify elsewhere in the form.

“If a Palestinian student says, ‘I'm being discriminated against based on my race,’ then it's race,” Schmidtke said. “We mark it as race.”

She added that if a Palestinian student instead reports discrimination based on their religion or ethnicity, then OIE would investigate it as such.

“They're all protected under this policy,” Schmidtke said. “However a claimant identifies themselves to us, that is the category.”

Schmidtke said the student’s question illustrates the work that still needs to be done on educating students about MSU’s policies. 

“If someone doesn't see themselves in a policy, then they may not ever come to make a report because they may not think that the policy applies to them,” Schmidtke said. “These students have always been covered, but the fact that they don't know that they're covered or don't think that they're covered, that's a problem we’ve got to fix.” 

Students also sometimes try to mitigate confusion about the process by having peers report discrimination on their behalf, Chapman said. 

Following several recent instances of racism on campus, for example, leaders of the Black Students’ Alliance have reported instances of racial discrimination for students who “don't feel comfortable or don't know how to report through MSU themselves,” Chapman said.

“That is something that we are continuing to work to educate the campus community on, that, you know, here are the options,” Chapman said. “This is a safe space to come and report your concerns.”

The reporting process

When the OIE receives a complaint of discrimination, it first offers supportive measures to the person impacted. Then, it conducts an initial assessment into whether the reported conduct violates the ADP and should be pursued further.

If it does, OIE conducts an investigation where both parties – the claimant and the respondent – have the opportunity to present information to an investigator. A decision is typically made around 90 days later. If investigators decide the conduct violates the ADP, appropriate discipline is decided by MSU.

After a decision is made, both parties have 10 days to submit an appeal. An Equity Review Officer has 18 days to respond before the decision is final. 

OIE is currently taking feedback on the ADP online. Schmidtke encouraged the community to offer input.