U.S. Department of Education Office for Civil Rights August 2023
OCR released a letter of guidance for schools, colleges and universities that receive federal funds on the issue of implementing Title VI of the Civil Rights Act and the legal obligations required by those institutions. The guidance focuses primarily on students and their interactions with school administrators, faculty, teachers and other students.
What Are The Legal Standards Under Title VI?
Title VI of the Civil Rights Act of 1964 is a federal law that prohibits discrimination on the basis of race, color, or national origin in all programs or activities receiving federal funding. All education institutions, including public and private colleges, universities and other post-secondary institutions that receive federal funding must comply with Title VI. A school may violate Title VI when they separate students based on race or treat individual students or groups of students differently based on race. Discriminatory practices can also include creating, encouraging, accepting, tolerating or failing to correct a hostile educational environment. Determining how OCR investigates complaints of discrimination in educational institutions depends on the circumstances.
Unlawful Express Racial Classifications
School programs that treat individual students differently based on their race are subject to strict scrutiny review. That means, the school must show that any use of an individual student’s race is “narrowly” tailored to further a “compelling” interest.
Racially Discriminatory Application of Facially Neutral Policies
This type of discrimination occurs when a school implements a policy that appears race neutral, but in reality, treats students differently based on their race. To determine if a violation of Title VI occurred, OCR will follow a three-step process (McDonnel Douglas test) to decide whether the school treated similarly situated students different based on their race.
Racial Harassment and Hostile Environment
A Title VI violation could occur if the existence of a racially hostile environment is created, encouraged, tolerated, or left uncorrected by a school. A hostile environment exists where there is conduct (e.g., physical, verbal, graphic, or written) that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities, or privileges provided by a school or college. A Title VI violation occurs when the school had actual or constructive knowledge of the hostile environment and failed to take prompt and effective steps to 1) end the harassment; 2) eliminate any hostile environment and its effects, and 3) prevent the harassment from recurring. Determining whether an activity or program results in a violation of Title VI requires assessing the totality of the circumstances in each particular case.
Application of the Legal Standards in School Curricula and Programming
OCR will generally not involve itself with complaints based on the content of academic course materials or related discussions, unless there are specific allegations of discrimination. When such an allegation occurs, OCR will analyze the totality of the factual circumstances presented in each individual case.
Separation of Students and Different Treatment based on Race
In almost all cases, separation of students based on race violates Title VI. This is true even if the programming of each group is identical. However, when a program includes group discussions or other activities that focus on race it will not be a Title VI violation as long as the school does not require or deny participation in those groups based on race or assign students to a particular group because of race.
Race Based Hostile Environment
A Title VI violation occurs if race related curricula create a hostile environment. As discussed above, a hostile environment is one that 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 the program or activity. For example, using content that promotes hateful racial stereotypes or violence toward people of a particular race can create a hostile environment. If a hostile environment is found, OCR will determine if the school took effective steps to end the harassment and eliminate the hostile environment.
Other School Programming
School assemblies, meetings, focus groups, or listening sessions that are aimed toward preventing violations of Title VI or raising awareness of discriminatory treatment of students based on race will not violate Title VI. However, Title VI requires that all students, regardless of race, have an equal opportunity to participate in these programs. Any restriction on students’ participation could violate Title VI and trigger an investigation by OCR.
Extracurricular Programming, Activities, and Organizations
Educational institutions have a longstanding history of offering students a variety of clubs and activities that provide an opportunity to celebrate their culture, identity and interests. These activities play an important role in our education and “are voluntarily seeking to foster meaningful interaction among students of different racial and ethnic backgrounds, beginning at the earliest stage of such students’ education.” 20 U.S.C. § 7231(a)(4)(A). Title VI does not restrict these extra-curricular activities, including those that are race-related, as long as they are open to ALL students regardless of race. Even if the program actively recruits students of a particular race or national origin, it will not violate Title VI if the program is open to ALL students regardless of their race or ethnicity.
As guidance, OCR has listed specific examples of potential complaints they might receive and how those complaints may be handled. See https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20230824.pdf and https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tvi-dia-202301.pdf