By Alexa K. Potts

May 13, 2024

On May 7, 2024, the Office of Civil Rights (the “OCR”) issued a “Dear Colleague Letter” (the “Guidance”) to schools across the country, addressing the rights and obligations of schools and other recipients of federal financial assistance from the U.S. Department of Education (the “Department”) to ensure nondiscrimination based on race, color, or national origin pursuant to Title VI of the Civil Rights Act of 1964 and its implementing regulations (“Title VI”). The Guidance is the result of recent increases in complaints filed with the OCR alleging discrimination based on race, color, or national origin in schools receiving federal financial assistance from the Department.

Title VI’s protection from race, color, and national origin discrimination extends to students who experience discrimination, including harassment, based on their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. All educational institutions that receive federal financial assistance must comply with Title VI. The Guidance identified two legal frameworks that courts and the OCR use to determine whether institutions have violated Title VI: hostile environment and different treatment.

The existence of a hostile environment based on race, color, or national origin that is created, encouraged, accepted, tolerated, or left uncorrected by a school can constitute discrimination in violation of Title VI. In order to create a hostile environment, the harassing conduct must be so severe or pervasive that it limits or denies a student’s ability to participate in or benefit from a school’s program or activity. The totality of the circumstances is considered in determining whether harassment creates a hostile environment. The OCR may find a Title VI violation if it determines that: (1) a hostile environment based on race, color, or national origin exists; (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 (i) end the harassment, (ii) eliminate any hostile environment and its effects, and (iii) prevent the harassment from recurring.

If a complaint alleges that a school’s representative treated a student differently based on their actual or perceived race, color, or national origin, including shared ancestry or ethnic characteristics, the OCR will make a fact-specific determination as to whether a Title VI violation has occurred. The OCR may find that discrimination occurred where there is direct evidence that the school limited or denied educational services, benefits, or opportunities to a student or group of students on the basis of race, color, or national origin. The OCR will consider the following questions in reaching its decision: (1) Did the school limit or deny education services, benefits, or opportunities to a student or group of students of a particular race, color, or national origin by treating them differently from a similarly situated student or group of students of another race, color, or national origin? (2) Can the school provide a legitimate, nondiscriminatory basis for the different treatment? (3) Is the school’s explanation for the different treatment a pretext for discrimination?

The OCR noted that it enforces laws consistent with the First Amendment to the United States Constitution. If harassment involves conduct that constitutes speech otherwise protected by the First Amendment, a school must respond to the harassment in a manner which does not restrict First Amendment rights. For example, a school can respond to a hostile environment by communicating its opposition to derogatory opinions, providing counseling and support for students affected by harassment, and establishing a welcoming school campus. Moreover, speech expressing views regarding a particular country’s policies or practices is protected by the First Amendment and does not necessarily implicate federal civil rights laws.

The OCR concluded its Guidance by stating that it stands ready to support schools in Title VI compliance. All students, including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, or Palestinian as well as students who come from, or are perceived to come from, all regions of the world are entitled to a school environment free from discrimination. The OCR remains available to provide technical assistance to schools and organizations that request assistance in compliance with Title VI or any other civil rights laws enforced by the OCR.

Should you have any questions about the Letter, please do not hesitate to contact any of the Appel, Yost & Zee Education Law Attorneys.