by Holly Reedy, Esq.

New guidance issued by the federal government clarifies that schools can provide students of the same race or national origin with programming and space to discuss shared experiences so long as they do not exclude other students. On August 24, 2023, the U.S. Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter on Race and School Programming to guide school districts, colleges, and universities on lawful programs and activities that promote racially inclusive school communities. The guidance applies to schools that receive federal financial assistance, including pre-K, elementary, and secondary public schools, and public and private colleges, universities, and other postsecondary institutions receiving federal financial assistance.

The guidance is intended to provide clarifications consistent with Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination in schools on the basis of race, color, or national origin. Specifically, schools are prohibited from treating students differently based on race and “may violate Title VI when they create, encourage, accept, tolerate, or fail to correct a racially hostile educational environment.”

OCR clarifies that Title VI does not prohibit schools from providing racially inclusive programming. Schools are permitted to offer curriculum, clubs, spaces, and activities that are race-themed or that have a special emphasis on race. However, these opportunities must be available to all students, regardless of race

It is also acceptable for schools to require all students to complete race-related courses. However, the curriculum must not create a racially hostile environment and must not support hateful or demeaning racial stereotypes. If courses are mandatory, they must be required of all students, regardless of race.

Further, schools may not assign students to groups or assign curriculum based on race. For example, a professor may not require students to complete projects or reading assignments tailored to the student’s individual race.  

OCR further clarifies that schools must take action to address and remedy racial harassment and hostile environments. A hostile environment is created by race-based conduct that is so severe or pervasive that it limits a person’s ability to participate in an educational program or activity. If schools have actual or constructive knowledge (meaning they should have known) of such conduct, they must take steps to end the harassment, eliminate the environment and its effects, and prevent it from recurring. Schools must respond to race discrimination and racially hostile environments in a reasonable, timely, and effective manner.

Educators and administrators should familiarize themselves with this new guidance to avoid potential claims of unequal treatment or hostile environment. As always, if you need more information or assistance evaluating a program or responding to an Office for Civil Rights inquiry, don’t hesitate to contact one of Reminger’s Education Law Liability members.

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