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MSU’s updated Anti-Discrimination Policy delayed by federal changes

May 27, 2024
<p>Michigan State’s Office of Institutional Equity is located in Olds Hall on campus.</p>

Michigan State’s Office of Institutional Equity is located in Olds Hall on campus.

New federal regulations are stalling the implementation of Michigan State University’s updated Anti-Discrimination Policy, delaying the long-anticipated revisions by three months.

MSU announced on April 18 that after over a year of work, the newly revised policy — which prohibits identity-based discrimination and harassment — had been finished and would go into effect the next month. But the very next day, April 19, the U.S. Department of Education released broad revisions to a federal policy that prohibits sex discrimination in schools.

Almost immediately, MSU’s Office for Civil Rights realized the federal changes to Title IX could affect the new Anti-Discrimination Policy, said Eltaro Hooper, the office’s executive director of Support, Investigation, and Resolution.

Title IX regulations — which address sex-based conduct that interferes with a student’s educational experience — don't necessarily dictate MSU’s broader Anti-Discrimination Policy, Hooper said.

MSU’s Office for Civil Rights investigates sex and gender-based discrimination and sexual harassment under a separate policy, called the Relationship Violence and Sexual Misconduct and Title IX policy.

MSU decided to hold off releasing the new Anti-Discrimination Policy anyway, to “make sure that we are consistent in both policies,” Hooper said. The policy will go out Aug. 1, the deadline set for schools to adjust their Title IX policies to the new rules.

The new federal regulations extend the scope of Title IX, broadening the rules on who is covered by the policy and what conduct schools have to address.

Since the university’s two policies tackle similar issues and use many of the same investigatory procedures, MSU wants to make sure they’re adhering to the same federal framework.

The “small updates” MSU is planning involve adjusting newly-defined language and procedures to be the same between the Anti-Discrimination Policy and the RVSM and Title IX policy, such as what counts as a complaint.

“It just creates confusion for community members and it wouldn't do our operations any good to have two drastically different complaint definitions,” Hooper said.

The revised Title IX rules define a complaint as “an oral or written request that objectively can be understood as a request for the university to investigate and make a determination about alleged conduct.”

The previous definition required the submission of a formal document in order to file a complaint.

Hooper said they’re still interpreting how the rules might change their policies.

“We're not changing any avenues in which a person would be able to (file a complaint) because they're pretty exhaustive right now, but the way in which we would understand their report” is what would change under the new rules, Hooper said. MSU’s Office for Civil Rights currently fields complaints of harassment and discrimination through multiple reporting methods, including phone calls, in-person meetings and an online form.

The revised Title IX regulations also clarify that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, sexual orientation, and gender identity.

MSU’s Anti-Discrimination Policy currently covers those forms of discrimination, not its RVSM and Title IX policy. Hooper said the department is currently consulting experts and community stakeholders about which policy — if not both — should address it.

What’s in the new Anti-Discrimination Policy

MSU’s Office for Civil Rights has been holding community feedback sessions on the Anti-Discrimination Policy since 2022, an effort to “advance civil rights and equity at MSU,” according to a press release.

It was “a great undertaking for those involved,” Hooper said. “It's been a long time coming.”

The scope of the policy — which currently only applies to university-related events — will expand to include conduct that occurs “off-campus and outside of a University-sponsored program or activity,” as long as it “has continuing adverse effects” on MSU.

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“It provides a wider net for people to say, ‘I have experienced this; it didn't happen on campus, it didn't happen at any University program or activity, it falls outside of that, but the impact is still interfering with my education or is interfering with my work environment,’” said Hooper. “This allows that person to still seek support and potential remedies.”

The procedure for handling incidents reported under the Anti-Discrimination Policy will now closely mimic that of the RVSM and Title IX Policy. This “marrying” of procedures will make switching between policies easier, should an incident fall between what the two policies cover, said Hooper. 

It also gives people reporting discrimination access to more resources throughout the process through a formal “options meeting,” in which an MSU representative lays out the investigatory process and what supportive measures are available. Those measures now include access to a university-provided advisor, Hooper said.

Previously, “there were some disjointed ways of how people got support within the process,” said Title IX Communications Manager Chris Chapman. “Over time we have brought all of those efforts together and put it on the front end of the process, so that people are very aware of what the next steps are.”

The policy moved from being under the governance of the Board of Trustees to being a university-wide policy. This means the university president, not the board, will approve changes to the policy. The change also allows for more regular review and updates, Hooper said.

What’s not in the new Anti-Discrimination Policy

During the revision process, community stakeholders frequently asked that the policy address hate speech, according to a press release.

Legally, that’s more complicated than it seems. Nikki Schmidtke, director of Anti-Discrimination Policy response and investigations, previously told The State News that since hate speech doesn’t have a legal definition, it’s often protected under the First Amendment.

And speech that’s protected by the First Amendment “cannot, as a matter of law, be categorized as an (Anti-Discrimination Policy) violation,” the release stated.

MSU can still offer supportive measures to students who feel they’ve experienced harassment or discrimination, even when reported conduct doesn’t technically count as harassment under the policy.

“We strongly encourage reporting such incidents so that those affected can receive the support they need,” the release stated. “Navigating what falls under free speech protections and what constitutes harassment can be incredibly complex. We urge individuals to report any speech or actions that cause concern, even if they believe it may be protected by the First Amendment.”

Schmidtke told The State News in December 2023 that conduct may be addressed by other university policies in ways the Anti-Discrimination Policy 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.

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