OCR Issues Dear Colleague Letter on Title VI Violations

May 10, 2024

On May 7, 2024, the U.S. Department of Education Office for Civil Rights (OCR) released a “Dear Colleague Letter.” The letter was to provide guidance on conduct that may violate Title VI of the Civil Rights Act. Title IV protects against discrimination based on race, color, and national origin. This encompasses protection against antisemitism and other forms of discrimination when based on shared ancestry or ethnic characteristics. Comments about religion are not prohibited under Title VI, but comments about religion may also be related to national origin or one’s ethnic community. These comments, if related to national origin or one’s ethnic community, can be a violation of Title VI if they create a hostile environment or are deliberately discriminatory. The letter goes on to give examples of two types of Title IV violations, discrimination that creates a hostile environment and deliberate discrimination in the form of different treatment by school representatives.

Hostile Environment

The fact that harassment may involve speech in a public setting or speech that is also motivated by political or religious beliefs does not mean a school does not have to respond if the harassment creates a hostile environment in school for students. A school cannot create, encourage, accept, tolerate, or leave uncorrected the existence of a hostile environment based on race, color, or national origin.

OCR could 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
   1. End the harassment,
   2. Eliminate any hostile environment and its effects, and
   3. Prevent the harassment from recurring.

If a school knows about harassment related to a practice or expression that marks membership in a group that shares ancestry and ethnic characteristics, they must act. Failure to address the harassment could result in a violation of Title VI. Even if what a student is being harassed for is a religious practice or expression of faith, if it could also mark membership in a group that shares ancestry and ethnic characteristics, the harassment could still violate Title VI. A school’s response to conduct it concludes is discriminatory must include prompt and effective steps reasonably calculated to end the harassment and prevent its recurrence. A school needs to continue to monitor situations to make sure harassment does not continue to occur.

Deliberate Discrimination by Different Treatment

If a complaint to OCR 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, OCR will make a fact-specific determination as to whether discrimination occurred. If there is direct evidence that the school limited or denied education services, benefits, or opportunities to a student or group of students on the basis of race, color, or national origin they may find discrimination occurred. If direct evidence does not exist, OCR will consider the following factors:

1. Did the school limit or deny educational 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? If not, then OCR would find that there is insufficient evidence to determine that the school has engaged in different treatment. If the students are similarly situated and the school has treated them differently, then OCR would ask:
2. Can the school provide a legitimate, nondiscriminatory basis for the different treatment? If not, then OCR could find that the school has discriminated on the basis of race, color, or national origin. If the school can articulate a legitimate, nondiscriminatory reason, then OCR would ask:
3. Is the school’s explanation for the different treatment a pretext for discrimination (e., not the true reason for the school’s actions)? If so, then OCR could find that the school engaged in discrimination in violation of Title VI.

Important takeaways from the examples

Teachers should not single any student out based on race, color, or national origin. This includes making only one student do an assignment based on any of these characteristics. If there is no legitimate, non-discriminatory reason for the teacher to treat the student differently, there may be a Title VI violation.

Read the letter here. Please reach out to Bea, Megan, Beth, Kevin, or Kali with any questions.