Non-Discrimination Policy: Frequently Asked Questions

The “Policy” and “Procedures” are two sections of a policy and one set of procedures that provide information on how the College responds to allegations of harassment and discrimination on the basis of Legally Protected Characteristics (see below). You can find the Policy here and the Procedures here.

Collectively, the Policy applies to current members of the College community, including faculty, staff, students, those with an official capacity at the College (such as Trustees, guest lecturers, volunteers), and third parties, such as campus visitors and vendors who may have contact with members of the College community either on the College’s campus or at other College events and programs.

The Policy aims to ensure that members of the community are not, on the basis of Legally Protected Characteristics, denied access to the College workplace or Pomona College programs or activities or subjected to severe or pervasive harassment. The Procedures provide a process through which members of the community who believe they have been harmed by a violation of the Policy can file a complaint.

“Legally Protected Characteristics” encompass all of the categories that are protected by state and federal employment laws, including: sex (including pregnancy, childbirth and related medical conditions, breastfeeding, and conditions related to breastfeeding), gender identity and expression, pregnancy, reproductive health decision-making, religion (including religious dress and grooming practices), creed, color, race (including traits historically associated with race, including but not limited to hair texture and protective hairstyles), national or ethnic origin, actual or perceived shared ancestry or ethnic characteristics, citizenship or residency in a country with a dominant religion or distinct religious identity, sexual orientation, medical condition, physical or mental disability, age (age 40 and over), marital status, registered domestic partner status, military and/or veteran status, genetic characteristics and information or any other basis prohibited by state or federal law.

The College also recognizes that discrimination and harassment may occur in an intersectional manner. Intersectional discrimination and harassment occur when discrimination or harassment is based on a combination of interconnected protected statuses. A non-exhaustive list of examples of intersectional discrimination and harassment is below.

• Antisemitism can be a form of intersectional discrimination or harassment based on religion, shared ancestry, and/or national origin. Antisemitism may manifest as engaging in any of the following conduct against an individual because the individual is or is perceived to be Jewish or because the individual is or is perceived to be from Israel: repeatedly using antisemitic slurs; defacing an individual’s property with a hateful symbol or word (e.g., a swastika); denying an individual access to or refusing to allow an individual to participate in any program sponsored or hosted by the College; using force or intimidation to obstruct the path of an individual; or refusing to grant an individual a benefit to which they are entitled (e.g., a letter of recommendation). Evidence of an individual’s perceived protected status may include, for example, association with Israel or with a Jewish organization, wearing religious attire (e.g., a kippah), or displaying a religious symbol associated with Judaism (e.g., a star of David).In determining whether conduct is antisemitic, the College will consider the International Holocaust Remembrance Alliance (“IHRA”) Definition of antisemitism and its contemporary examples, to the extent that any examples might be useful as evidence of discriminatory intent.
• Islamophobia can be a form of intersectional discrimination or harassment based on religion, shared ancestry, and/or national origin. Islamophobia may manifest as repeated incidents of slurs based on an individual’s actual or perceived protected status; blaming an individual for actions of other individuals of their actual or perceived shared identity as Middle Eastern or Muslim (e.g., calling an individual a “terrorist”); exclusion or discriminatory harassment based on wearing or not wearing a hijab; or denying an individual access to or refusing to allow an individual to participate in any program sponsored or hosted by the College because of their actual or perceived protected characteristic.
• Discrimination or harassment based on age and disability can be another form of intersectional discrimination or harassment, which may manifest as acting on assumptions about an individual’s inability to participate in an educational activity based on their age and disability or using patronizing language toward an older individual with a disability, even when not engaging in similar behavior towards an older individual without a disability or younger individual with a disability.
• Discrimination or harassment based on race and gender can be another form of intersectional discrimination or harassment, which may manifest as applying different expectations for behavior to women of color or acting on stereotypes about characteristics of particular groups of women of color, even when not engaging in similar behavior towards men of color or white women.

The Policy prohibits discriminatory conduct and, in particular, discrimination and discriminatory harassment based on one or more protected characteristics.

Discrimination is singling out or targeting an individual(s) for less favorable or differenttreatment because of their protected category.

Discriminatory harassment is unwelcome and offensive conduct based on an individual’s or group’s protected category that is so severe or pervasive, and objectively offensive, that it creates a work, educational, or living environment that a reasonable person would consider intimidating, hostile, or abusive and denies the individual an equal opportunity to participate in the benefits of the workplace or the College’s programs or activities.

In assessing claims made under the Policy, the College also follows the Speech Code’s guarantees of free speech for students and academic freedom for faculty as described in the Faculty Handbook.

Ordinarily, it will not violate the Policy for members of the College community to make controversial statements in the course of academic work or in scholarship; express disagreement with another person’s political views; or criticize a government’s policy or the political leaders of a country.

Under the Policy, conduct constitutes harassment when it is so persistent, repetitive, pervasive, or severe that it has the purpose or effect of substantially interfering with the workplace or educational environment. When a factfinder considers a complaint, the factfinder will examine all the relevant circumstances, including, among other things, what the conduct was and how often and for how long it occurred; whether the conduct was targeted to a particular person or persons; whether the conduct occurred in the context of academic discourse; or whether the conduct represented a credible threat of violence.

The Policy includes, among its protected categories, religion, national origin, and shared ancestry or ethnic characteristics. For many Jewish people, Zionism is a part of their Jewish identity. Conduct that would violate the Policy if targeting Jewish or Israeli people can also violate the Policy if directed toward Zionists on the basis of their actual or perceived religion, national origin, and shared ancestry or ethnic characteristics.

The Policy and Procedures ensure that all complaints of harassment and discrimination are treated equally regardless of protected characteristic, that complaints involving one protected characteristic are addressed in the same manner and with the same urgency as complaints involving another protected class, and that policies are applied equally to all students. Furthermore, the College's Civil Rights and/or Title VI Coordinator will ensure that Title VI and College policies will be enforced equally, applying a single standard for all students. Subject to the College’s protections for free speech and academic freedom and provided that the required elements under the Procedures are met, the following are instructive examples of conduct that may violate the Policy, provided that the conduct meets the requirements for discriminatory treatment or discriminatory harassment.

• Verbal abuse or use of antisemitic, racist, sexist, homophobic, , anti-Arab, Islamophobic, anti-LDS, or anti-Catholic slurs or hostile behavior, which could include insulting, teasing, mocking, degrading, or ridiculing or denying the ancestral history of another person or group, including but not limited to displays or electronic transmission of derogatory, demeaning, or hostile materials based on one or more actual or perceived Legally Protected Characteristics (e.g., Jewish, Israeli, Arab, or Muslim identity).
• Denying access to or refusing to allow an individual to participate in a program or activity of the College, including, for example, refusing to grant a student some expected benefit (e.g., a letter of recommendation) or denying admission into an open event because of how an individual looks (e.g., because the individual has or lacks stereotypical physical features of a certain ethnic group or conforms or fails to conform to gender stereotypes) or dresses (e.g., because the individual wears religious or ethnic attire such as a cross, kippah, Star of David, turban, or hijab or kufi); or on the basis of the individual’s language (e.g., because the individual speaks a particular language or English with a certain accent); or on the basis of the individual’s actual or perceived national origin, religious or ancestral identity; or the individual’s actual or perceived association with an ethnic, cultural or religious organization or ethnic, cultural or religious student club or political organization or political student club; or because that individual is actually or perceived to have a particular shared ancestry or be from a particular country or region.
• Treating a person differently based on the country, world region, or place where a person or their ancestors come from or are perceived to come from; or due to a person’s English proficiency; or based on certain perceptions of, which may be described as hatred toward, religious and ethnic groups, such as Jewish, Muslim, Hindu, Sikh, Christian, Arab, Hispanic, or Latinx students.
• Physical assault, intimidation, or stalking on the basis of one or more protected or perceived Legally Protected Characteristics.
• Inappropriate physical contact (e.g., forcibly removing another individual’s religious or ethnic jewelry or clothing), comments, questions, advances, epithets, or demands based on one or more protected or perceived Legally Protected Characteristics.
• Accusing an individual of supporting genocide based solely on their race, ancestry, national origin, ethnicity, religion, or other Legally Protected Characteristics.
• Accusing an individual of being a terrorist or terrorist sympathizer, or urging them to self-harm, based solely on their race, ethnicity, religion, or other Legally Protected Characteristics. However, this does not preclude such accusations regarding being a terrorist sympathizer against individuals who express support for terrorism or terrorist organizations through their conduct or speech.
• Refusing to work with each other, or the application of any type of “litmus test” for participation in any academic activity, based on any Legally Protected Characteristics.
• Targeting someone for harassment or intimidation on the basis of their identity, their religious attire, their name, their language spoken, their accent.
• Use or dissemination of tropes about protected groups.
• Calls for genocide of an entire people or group.
• Actions taken against someone based on their field of study, course enrollment, or study abroad participation could provide evidence of discriminatory motive for purposes of investigation of alleged antisemitism–for example, vandalizing the office doors in a particular department tied to the study of a country or region.

The College addresses conduct violations, not good faith political debates. However, the Policy does provide protections against discrimination and harassment on the basis of shared ancestry, which can include Zionism. Some examples of conduct that could violate the Policy if based on actual or perceived Jewish shared ancestry include:

• The use of “Zionist” which can be often used as a codeword for ‘Jew’, and depending on the factual circumstances may be evidence of antisemitic intent (in other words, using code words, like “Zionist,” does not eliminate the possibility that student speech violates the Policy).
• Excluding Zionists from an open event, calling for the death of Zionists, applying a ‘no Zionist’ litmus test for participation in any College activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., ‘Zionists control the media’), demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism, minimizing or denying the Holocaust, or invoking Holocaust imagery or symbols to harass or discriminate.”

Yes. As above, the Policy’s Legally Protected Characteristics (e.g., race, national origin, religion, etc.) establish protections for members of the College community from discrimination or discriminatory harassment based on antisemitism and Islamophobia.

“Antisemitism” is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities. Certain manifestations of anti-Zionism can also amount to antisemitism. Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel, similar to that leveled against any other country, cannot be regarded as antisemitic. Anti-Semitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It may be expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.

“Islamophobia” is a fear, prejudice, or hatred of Muslims that leads to provocation, hostility, and intolerance by means of threatening, harassment, abuse, incitement, and intimidation of Muslims and non-Muslims, both in the online and offline world.

The Policy and Procedures encompass the College’s compliance with Title VI of the Civil Rights Act of 1964 (Title VI), and the College considers the U.S. Department of Education’s Office for Civil Rights’ (OCR) guidance in complying with Title VI. The definition of antisemitism used by the College in the Policy is the same definition of anti-Semitism used by OCR. When evaluating Title VI complaints, the College, like OCR, uses the IHRA Definition, including its contemporary examples “where useful as ‘evidence of discriminatory intent.’”

IHRA adopted the following working definition of antisemitism:

“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

For more information about examples that OCR identifies as relevant to the extent that they are useful in determining discriminatory intent, please see the Appendix to OCR’s January 19, 2021 Questions and Answers on Executive Order 13899 (Combating Anti-Semitism) and OCR’s Enforcement of Title VI of the Civil Rights Act of 1964 (“Q&A”).

Yes. ^[1] The Policy is consistent with the College’s Speech Code, which provides:

Pomona College believes that free speech is critical to Pomona’s mission as an educational institution, and therefore, the norm is that speech and other forms of expression are protected.

Protected Speech

The First Amendment protects the exercise of free speech in ways that sometimes make us uncomfortable, and our courts have consistently applied the First Amendment to protect speech that is insulting, outrageous and offensive. The First Amendment protects most speech that is commonly considered “hate speech.” Under California’s Leonard Law, the College cannot discipline a student for speech that would otherwise be protected under the First Amendment, even when members of the College community find it offensive or repugnant. This includes wearing political messages or slogans on a hat, shirt, or other clothing.

Hate Speech

Contrary to a widely held misconception, “hate speech” is generally protected by the First Amendment. This has been established law for over a hundred years. Only if the speech fits within one of the categories of unprotected speech can it serve as a basis for disciplinary action against the speaker.

The term “hate speech” often refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, shared ancestry, sexual orientation, disability or gender. While the College condemns speech of this kind, there is no “hate speech” exception to the First Amendment; under California law, the College is only permitted to discipline a student on the basis of speech if the content or manner of the expression falls into one of the categories described below as “unprotected speech”.

Unprotected Speech

Certain limited categories of speech and other forms of expression are unprotected by the First Amendment and would constitute a violation of the Student Code subject to a disciplinary response:

• Speech that constitutes harassment as specifically defined in the College’s Non-Discrimination Policy Regarding Student-Related Matters, i.e., speech based on one or more Legally Protected Characteristics, and so persistent, repetitive, pervasive or severe that it has the purpose or effect of substantially interfering with or materially limiting a reasonable person’s ability to participate in or benefit from the College’s educational programs or activities.
  • Using code words, like “Zionist,” does not eliminate the possibility that student speech violates this Policy. Speech or conduct that would violate Pomona’s Non-Discrimination Policy if targeted at Jewish or Israeli people also violates the policy if targeted at Zionists on the basis of their actual or perceived Jewish or Israeli shared ancestry.
• Speech that constitutes fighting words. To constitute fighting words, the speech must meet all of the following three criteria. First, the speech must be addressed at a specific individual or particular group of individuals. Second, the speech must be abusive rather than a communication of ideas. Third, when considered objectively, the speech must be likely to provoke a violent reaction.
• Speech that incites imminent lawless action. To constitute incitement of imminent lawless action, the speech must meet all of the following three criteria. First, the speech must advocate for, or attempt to cause, lawless action in the near future. Lawless action includes, but is not limited to, violence or the destruction of property. Second, when considered objectively, the speech, in context, must be likely to produce such lawless action. Third, the speaker must intend to cause such lawless action.
• Speech that constitutes a true threat. To constitute a true threat, the speech must communicate a serious intent to harm a specific person or a particular group of persons. While the speaker does not necessarily have to intend to carry out the threat, the speech must (1) cause the individual to subjectively fear for their physical safety and (2) cause a reasonable person in their situation to feel the same level of fear in order to qualify as a true threat.
• Speech that materially limits the College’s educational function. Examples of speech that constitute a material limitation of the College’s educational function include but are not limited to speech outside of a classroom or dedicated educational setting that is so loud as to disrupt a classroom or similar learning environment, protests that block access to a classroom or educational setting or hinder or prevent a scheduled class from convening.
• Speech/material that constitutes obscenity. To constitute obscenity, speech must: appeal to prurient interest, depict sexual conduct in a patently offensive way, and, taken as a whole, lack serious literary, artistic, political, or scientific value.
• Speech that infringes on the First Amendment rights of others through coercive disruption, defined as the physical interference with others’ peaceful exercise of free speech. Examples of this “heckler’s veto” are physically blocking access to a speaking event, physical intimidation of a speaker, and noise-making that prevents a speaker from being heard. If this type of conduct occurs during any College-sanctioned activity or function, the College reserves the right to restore conditions under which free speech can flourish. Any student who engages in coercive disruption may be removed and subject to disciplinary action.

The Policy is also consistent with the principles of academic freedom as included in the Faculty Handbook:

So it is that in all matters of educational policy and administrative procedure Pomona College adheres to the principle of academic freedom as defined by the American Association of University Professors and the Association of American Colleges in 1940:

a) Teachers are entitled to full freedom in research and in the publication of the result, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

b) Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

c) College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinion of others, and should make every effort to indicate that they are not speaking for the institution.

The Policy does not conflict with or override the protections pertaining to free speech and academic freedom.
 

^[1]  This is also consistent with existing federal guidance, which states that federal agencies “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.” Q&A, pp.2-3.

No. The free interchange of ideas is vital to the College’s primary function of discovering and disseminating ideas through research, teaching, and learning. Uncomfortable and challenging conversations—including the expression of unpopular or disagreeable views—are a normal part of College life.

When Pomona College interprets and applies the Policy, it does so with an awareness of the College’s commitment to academic freedom and open inquiry, which means that the College encourages reasoned dissent and the free exchange of ideas, beliefs, and opinions, including on controversies.

For example, the Arab-Israeli and Israeli-Palestinian conflicts may generate tense discussions that lead to conduct that violates this Policy. The College addresses conduct violations, not reasoned differences of opinion. Ordinarily, it will not violate the Policy for members of the College community to make controversial statements in the course of academic work or in scholarship; express disagreement with another person’s political views; or criticize a government’s policy or the political leaders of a country.

Yes. Retaliation is prohibited against an individual for raising a good-faith allegation, for cooperating in an investigation of such an allegation, for opposing prohibited conduct, for denying or defending oneself against an allegation, or for offering or providing support to an individual who makes or may make a good-faith report of misconduct.