On August 24, 2023, the United States Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL), which provides guidance on Race and School Programming. The DCL clarifies circumstances under which schools can develop curricula and programs that promote racially inclusive schools.
“This resource aims to assist our nation’s schools to fulfill Congress’ longstanding promise that no student [shall] experience discrimination based on race.” — Assistant Secretary for Civil Rights Catherine E. Lhamon.
Overview of the Dear Colleague Letter
The DCL offers practical guidance to schools, clarifying the circumstances under which recipients of federal financial assistance from the U.S. Department of Education (Department) can develop curricula or engage in activities that promote racially inclusive school communities.
The DCL details and provides examples for schools as to how they can implement such curricula in compliance with Title VI of the Civil Rights Act of 1964 (Title VI) and its implementing regulations.
OCR found that it was necessary to address this area of concern, as the Department has received numerous complaints and requests for technical assistance from school communities.
Scope of Guidance Provided
Though the examples within the DCL do not dictate the outcome of any particular matter OCR may investigate, schools may find this to be a helpful resource when addressing matters related to race-promotion, as well as Diversity, Equity, and Inclusion efforts in their district.
Schools should be advised that OCR’s guidance is offered only to the extent the Department can direct curricula. Therefore, schools must also consider state and local laws governing their curricula and programs.
Schools should consult with their Solicitors or legal counsel regarding the promotion of racially inclusive curricula to ensure such programs meet the Pennsylvania State Board of Education’s State Academic Standards, further, that they are in compliance with the Pennsylvania Public School Code and related statutes.
Title VI of the Civil Rights Act of 1964
In Section One of the DCL, OCR discusses the legal standards under Title VI, which reads:
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
All educational institutions, including Pre-K, Elementary, and Secondary public schools and school districts, and public and private colleges, universities, and other postsecondary institutions that receive federal financial assistance, must comply with Title VI.
Section One further clarifies the following violations and ways in which OCR determines said violations:
• Unlawful Express Racial Classifications: School programs (curricula) that treat individual students differently based on race are subject to “strict scrutiny” review under Title VI.
• Racially Discriminatory Application of Facially Neutral Policies: Racial discrimination can occur when a school implements or enforces a facially race-neutral policy or practice in a manner that treats students differently based on their race.
• Racial Harassment and Hostile Environment: The existence of a racially hostile environment that is created, encouraged, accepted, tolerated, or left uncorrected by a school can constitute discrimination on the basis of race in violation of Title VI.
School Curricula and Programming
Under Section Two, OCR offers examples as to how it may consider complaints regarding curricula and programming where the school is a recipient of federal financial assistance.
“Example 1: A local news outlet reports that a nearby public elementary school has launched a new program that requires all students to read a book about race discrimination and racial justice from a list created by the school. OCR receives a complaint alleging that the school is violating Title VI.
Guidance: OCR may decline to open an investigation based on this complaint. On its face, the requirement to participate seems to apply to all students, and the complaint did not allege that any students had been excluded from the program or treated differently based on race. The complaint also included no allegations suggesting that the school’s program was subjectively and objectively offensive and created a racially hostile environment. Absent other facts, the complaint likely does not raise allegations that warrant investigation under Title VI”.
OCR offers five (5) additional examples under Section Two. These examples address the separation of students and different treatment based on race and race-based hostile environments.
• Separation of Students and Different Treatment Based on Race: OCR indicates that it will generally open an investigation under Title VI should the allegations suggest that the use of a curriculum separates students or otherwise treats them differently based on their race. Title VI specifically prohibits separate treatment in any matter related to a student’s receipt of educational services (i.e., curricula).
• Race-based Hostile Environments: OCR states that “curricular content creates a hostile environment if, based on the totality of the circumstances, it is subjectively and objectively offensive, and is so severe or persuasive that it limits or denies a person’s ability to participate…” In its example, OCR offers guidance on a situation where an educator may provide a lesson contending that a particular historical event did not occur (i.e., the Holocaust did not happen). Upon receipt of a complaint, OCR would have reason to open an investigation, because the conduct of the educator could be both subjectively and objectively offensive.
Other School Programming
Generally, Title VI does not restrict schools from holding assemblies, meetings, focus groups, or listening sessions to hear about students’ experiences with race in the school. In fact, in the DCL, OCR recognizes that many schools use such events to prevent violations of Title VI. However, schools must ensure that they do not restrict student participation based on race, as that would give rise to an OCR investigation.
The same principle applies to educational programs and activities. All students, regardless of race, must have an equal opportunity to participate in any educational program.
There is an extended history of schools sponsoring or recognizing extracurricular groups or clubs with race-related themes. Such extracurriculars are allowed, however, only where all students, regardless of race, are able to participate.
OCR guides schools on the implementation and permissibility of clubs that follow a race-based theme. OCR’s examples include where a public school recognizes a African American Students Association; where a school recognizes an event called the “National Black Parents Involvement Day”; where a high school allows students to create an Irish Cultural Club; and more.
Schools must understand that in addition to curricula and programming, they are responsible for ensuring compliance under Title VI when it comes to student involvement in extracurriculars.
Bottom Line for Schools
Through the DCL, OCR recognizes that many educational institutions “offer spaces and activities for students and others to share ideas, receive support, and discuss common experiences in order to cultivate inclusive communities that feel welcoming to students from populations that have traditionally been underserved”.
The DCL offers clarifying guidance to assist schools in navigating school-sponsored or recognized curricula and programs that present race-based themes.
School leaders with questions regarding OCR’s recent guidance should contact their school solicitor or one of the Education attorneys at KingSpry.