On August 24, 2023, the United States Department of Education's Office for Civil Rights ("OCR" or the "Department") released a Dear Colleague Letter (the "DCL") regarding "Race and School Programming." This DCL, which surely appears to be a response to the Supreme Court's ruling in Students for Fair Admissions, clarifies the circumstances under which institutions receiving federal funds can develop curricula or engage in activities that promote racially inclusive school communities consistent with Title VI of the Civil Rights Act of 1964 (Title VI).
What You Need to Know:
- OCR has not changed the legal standards it uses to evaluate Title VI; those remain consistent with past guidance.
- For complaints about discussions of race in school curriculum or other school programming, OCR will typically not investigate unless there is an allegation that students are being treated differently based on race.
- Extracurricular groups and activities with the goal of sharing common interests and experiences—including race-related themes—will generally not raise Title VI concerns if open to all students.
- A program that focuses recruitment efforts on students of a particular race/national origin does not violate Title VI if the program is open to all students regardless of race.
- The standard OCR will use to evaluate programs or activities that may involve race is whether communications and ads regarding the program or activity would "lead a reasonable student … to understand that all students are welcome to participate."
The DCL provides numerous examples to illustrate the circumstances under which institutions receiving federal funds can develop curricula or engage in activities that promote racially inclusive school communities consistent with Title VI. Throughout the examples provided, OCR emphasizes that, in most circumstances, it will not investigate a possible violation of Title VI if the institutions' program, activity or event is open to all students. OCR further clarifies that this is the case even for programs, activities, and events that focus on a particular race or ethnicity. The general rule of thumb appears to be that OCR will not investigate complaints of Title VI violations as long as everyone is welcome unless the circumstances of the program or event creates a hostile racial environment.
Title VI
The DCL begins by restating the legal standards for Title VI and its implementing regulations. Title VI states that "[n]o person of the United States shall, on the ground of race, color or national origin, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance." Citing the recent SFFA v. Harvard College decision by the U.S. Supreme Court, OCR states that Title VI prohibits racial classifications that would violate the Equal Protection Clause of the Constitution. The DCL then discusses this concept in three circumstances: unlawful express racial classifications; racially discriminatory application of facially neutral policies; and racial harassment and hostile environment.
As to the first category—an unlawful express racial classification—OCR notes that any school program that treats individual students differently based on their race is subject to strict scrutiny review. To satisfy this standard, a school must show that the use of a student's race is "narrowly tailored" to further a "compelling" interest.
For facially neutral policies that may be racially discriminatory, OCR explains that it will use a three-step test to determine whether a school violated Title VI. For each step, if the answer is "yes," the analysis moves to the next step. The steps are:
- Did the institution treat a student (or group of students) of one race differently from similarly situated students of another race?
- Can the school articulate a legitimate, nondiscriminatory reason for the different treatment?
- Is the articulated reason a pretext for discrimination?
If the answer to the final question is also "yes," OCR may find that the school has engaged in discrimination based on race.
Regarding "racial harassment and hostile environment," OCR notes that it would find a violation of Title VI where (1) a hostile environment based on race existed; (2) the school had actual or constructive notice of the hostile environment; and (3) the school failed to take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent harassment from recurring. OCR clarifies that a hostile environment is one where there is unwelcome race-based conduct that is subjectively and objectively offensive and so severe or pervasive that it limits an individual's ability to participate in the program or activity. Restating well-known principles, OCR explained that evaluating these factors will be a "totality of the circumstances" analysis.
With these legal concepts in mind, the DCL moves on to discuss specific examples of how it may evaluate race-related complaints in the areas of school curricula, other school programs, and extracurricular programming.
Curriculum-Based Complaints
The DCL makes clear that OCR will not involve itself in complaints based on the content of a school's academic course materials or related discussions, absent allegations of discrimination.
Allegations that a school's curriculum or program is actually separating students based on race will, however, prompt an investigation. For example, a college course that requires students of different races to read different materials and complete different written assignments would prompt an OCR investigation and would be evaluated under a strict scrutiny standard and found to be unlawful. A similar class that assigns articles about race and ethnicity to all students, however, would be unlikely to prompt an OCR investigation.
In short, action can be expected if there is an allegation that an institution's curriculum does not just discuss race, but treats students differently based on race. For instance, the DCL gives the example of an Asian American Student Alliance, open to all students, which establishes discussion groups with licensed counselors to discuss hate incidents against Asian students. Because the Alliance is a recognized group that is open to all students, OCR would not open an investigation.
One exception to this general rule is recognized in the DCL. OCR would investigate a complaint that the content of a class promotes hateful or demeaning racial stereotypes or violence toward people of a particular race. Such a situation can create a racially hostile environment, even if the content is not targeted at a specific person. As an example of this situation, the DCL notes that it would investigate a lesson plan that taught that the Holocaust did not happen. Antisemitism is something OCR would investigate under Title VI in that situation, even if the instructor did not target students who were Jewish.
Other School Programming
The DCL then turns to discuss "other school programming." OCR states that Title VI generally does not restrict schools from holding assemblies or listening sessions to hear about students' experiences with race, or ideas for creating an inclusive school community, provided that all students, regardless of race, have an equal opportunity to participate. OCR recognizes that institutions utilize such "with the aim of preventing violations of Title VI" (emphasis in DCL). If someone were to complain about such programming, in determining whether to investigate, OCR's analysis would focus not on the content of the programming, but on whether students were treated differently based on race. As one example, the DCL notes that if there was a forum to discuss police shootings of Black victims, and that forum was limited to Black students, OCR would open an investigation, and apply the strict scrutiny standard. Implicitly, if the forum was open to all, OCR would not open an investigation.
Extracurricular Programming
The DCL finally discussed extracurricular programming, activities, and organizations. OCR states that extracurricular groups and activities that are formed around the goal of sharing common interests and experiences—including race-related themes—if open to all students, will generally not raise Title VI concerns. On the other hand, groups or activities that restrict membership based on race, would trigger an investigation and strict scrutiny analysis. The DCL notes that OCR's analysis will ask whether communications and ads regarding the group would "lead a reasonable student … to understand that all students are welcome to participate."
Programs like mentorship programs, fellowships, leadership trainings, and similar opportunities focused on the experience of particular racial groups, if open to all students regardless of race, likely do not violate Title VI.
Likewise, a program that focuses its recruitment efforts on students of a particular race/national origin does not violate Title VI if it is open to all students regardless of race. The examples shared by OCR make clear that each individual event must be evaluated as to whether it is open to all students. For instance, an Irish culture group that is otherwise open to all students but, due to limited resources, limits an event to those of Irish heritage, would be subject to an OCR investigation. A similar group that held an event limiting participation to the first 50 students to arrive (regardless of heritage), however, would not result in an investigation by OCR.
Similarly, an institution's recognition of groups or events, or use of focus groups, that limit agendas to focusing on students of a particular race, may not warrant an investigation under Title VI. As an example, the DCL notes that a school's support groups for black students and their parents, sponsorship of "National Black Parents Involvement Day," and the use of focus groups to solicit feedback, would not prompt an investigation – so long as there was no express limit to the groups' agendas and the advertisements made clear that there was no limit on who may participate.
Like the earlier curricular example, however, OCR would investigate a school group even if it is open to all students if there is an allegation it creates a hostile racial environment. As an example, the DCL notes that it would investigate a student group formed by white students that is focused on anti-immigration, where they invite a white nationalist speaker to campus that incites violence against students of color and uses racial slurs.
The Higher Education Group at Saul Ewing will continue to monitor this complex and evolving area of the law.
