While Florida’s “anti-woke” teaching restrictions continue to face legal challenges[1] and districts across the country face scrutiny on how they offer inclusive curricula,[2] the U.S. Department of Education Office for Civil Rights has issued a Dear Colleague Letter clarifying how schools may “develop curricula or engage in activities that promote racially inclusive school communities”[3] consistent with Title VI of the Civil Rights Act. While the Department re-affirms that they cannot “mandate, direct, or control curricula,” they are charged with investigating complaints of discrimination in schools, which may include evaluating school curricula and actions to determine if there is a violation.
What is discrimination in schools?
While it may be obvious that separating or treating students differently based on race would be considered discrimination, schools may also discriminate “when they create, encourage, accept, tolerate, or fail to correct a racially hostile educational environment.”
This may include:
- Express racial classifications – any school program, including recognizing or supporting a school group or extracurricular club, that “treat individual students differently based on their race” is likely discriminatory under current standards of review.
- Applying “neutral” policies in a racially discriminatory way – a school can discriminate if it enforces a race-neutral rule “in a way that makes it harder for students of a particular race.”
- Racial harassment and hostile environment – If a school creates, encourages, accepts, tolerates, or leaves uncorrected a racially-hostile environment, 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 school. A hostile environment can include conduct directed at anyone, even those of a different race, or have multiple offenders or one victim.
When might school curricula be discriminatory?
When school curricula, programming, or events separate students or treats them differently based on their race, even if the programming is identical, OCR is likely to find the treatment warrants investigation as discrimination due to express racial classifications. For example:
- A school requires that students of different races read different materials based on race or requires students complete different written assignments or participate in different discussion groups based on their race.
- A school hosts an assembly for its Black students to provide a forum for them to express their frustrations, fears, and concerns after several high-profile police shootings of Black victims. White students ask to participate and are turned away.
- An Irish Cultural Club hosts an annual St. Patrick’s Day event but limits participation to students with Irish ancestry due to limited space and budget.
When schools apply “neutral” policies in a racially discriminatory way, OCR is likely to find the differential treatment warrants investigation as discrimination. For example:
- A group of predominantly Latino college students files paperwork to be recognized as an official student group but is denied because their proposed faculty advisor is not tenured despite a photography club comprised of mostly white students being approved with a non-tenured faculty advisor.
When school curricula or programming creates racial harassment or a hostile environment, one that is subjectively and objectively offensive, based on a holistic review of the circumstances, OCR is likely to find the treatment warrants investigation as discrimination. For example:
- A high school teacher develops a lesson plan to teach that the Holocaust did not happen, asking all students to question how the textbook depicts Adolf Hitler, write a paper on how people of Jewish ancestry caused economic and other societal problems in Germany, and re-enact the role of Nazi guards who are portrayed as patriots preserving a culturally-cohesive Germany.
- A group of white students start an “American Youth Association” open to all students to discuss social issues and their opposition to immigration. The club hosts a white nationalist speaker that encourages violence against students of color and uses racial slurs. The next week, school buildings are graffitied with the same slur. Several students of color stop attending school or report feeling unsafe.
When is school curricula likely NOT discriminatory?
Absent allegations of discrimination, the OCR does not involve itself in school programming and may decline to investigate complaints that do not reflect discriminatory behavior. For example:
- An elementary school program that requires all students to read a book about race discrimination and racial justice from a list created by the school. Because the requirement does not exclude or treat students differently based on their race, nor are there allegations that the program creates a racially hostile environment, the OCR would likely not investigate.
- A school district requires students to take one Mexican-American history class before graduation. Again, the requirement does not exclude or treat students differently based on their race. Even if some students “find the class subjectively offensive, absent additional specific facts, OCR would have no reason to regard a Mexican-American history class as objectively offensive” or causing a racially hostile environment, therefore the OCR would likely not investigate.
- A high school teacher provides the class with articles about racial and ethnic identity and asks students to participate in small group discussions focused on how the articles relate to their life experiences. All students read the same articles regardless of their race and are not assigned to discussion groups based on their race. Because the requirement does not exclude or treat students differently based on their race, nor are there allegations that the program creates a racially hostile environment, the OCR would likely not investigate.
- An “Asian American Student Alliance” group is open to all students and advertises monthly events that provide a “safe space for students to discuss hate incidents against Asian students.” Even if most or all students who attend the group are Asian, because it is open to all students, the OCR would likely not investigate.
- A school district sponsors a “National Black Parents Involvement Day” event but notes on their website and promotional materials that the event is open to all in the community.
- An Italian Cultural Club hosts a free “Pasta night” open to all but only the first 50 students will get food. Most of the students who attend the event are of Italian descent.
- A school district creates a high school mentorship program to encourage all students, but particularly students from marginalized groups, to take more rigorous classes. The district encourages Black and Latino students to participate but participation is voluntary and all students are welcomed.
What can parents do if they believe their child’s school curriculum is discriminatory?
The OCR will investigate reports of discriminatory curricula and programs when they allege discriminatory treatment, application, or a racially-hostile environment. If you have questions about the legal rights of you or your student, you can contact the School Law Center for legal advice based on your situation and guidance for how to ensure your child can access public education benefits free from discrimination.
[1] Hassan Kanu, Lawmakers get broad shield in challenge to Florida’s ‘anti-woke’ law, Reuters (Nov. 2, 2023).
[2] Tim Walker, The Culture War’s Impact on Public Schools, National Education Association(Feb. 17, 2023).
[3] U.S. Department of Education Office for Civil Rights, Race and School Programming, (Aug. 2023).