Race Discrimination at School: Title VI and the Department of Education’s Office for Civil Rights

Race Discrimination at School: Title VI and the Department of Education’s Office for Civil Rights

July 21, 2023
Race Discrimination at School: Title VI and the Department of
Education’s Office for Civil Rights
Title VI of the Civil Rights Act of 1964 prohibits
perceived shared (1) ancestry or ethnic characteristics or
discrimination based on race, color, or national origin in
(2) citizenship or residency in a country with a dominant
programs that receive federal financial assistance. While
religion or distinct religious identity. OCR also has
that bar applies broadly to federally funded programs of
discretion to conduct compliance reviews to find and
various types, historically, Title VI’s application to public
remedy discrimination that has not been identified through
elementary and secondary schools has been particularly
the complaint process.
significant. All public school districts and most colleges
and universities receive federal financial assistance and
Title VI applies to all the operations of a school district or
must comply with Title VI. The Department of Education’s
college that takes federal funding, including its admissions,
(ED’s) Office for Civil Rights (OCR) is entrusted with
financial aid, recruiting, academic programs, student
enforcing Title VI in federally funded schools. This In
discipline, grading, class assignment, physical education,
Focus outlines requirements for schools under Title VI,
athletics, and housing. Recipients also must not retaliate
with a particular focus on OCR’s enforcement of the
against someone for opposing or complaining about a
statute. (Title VI’s application to universities’ admissions
potential Title VI violation. At the same time, the
policies intended to achieve student body diversity is
requirements of Title VI generally do not apply to a
addressed in CRS Legal Sidebar LSB10893, The Supreme
school’s employment practices unless a primary objective
Court Strikes Down Affirmative Action at Harvard and the
of the federal financial assistance is to provide employment
University of North Carolina, by April J. Anderson.)
(race-based employment discrimination is banned by Title
VII of the Civil Rights Act of 1964).
Title VI Background
The Supreme Court has described the objectives of Title VI
Responding to Complaints
as twofold: (1) to “avoid the use of federal resources to
According to its Case Processing Manual (CPM), OCR will
support discriminatory practices”; and (2) “to provide
review allegations of discrimination and determine whether
individual citizens effective protection against those
to open an investigation. This process includes ensuring
practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704
OCR has subject-matter jurisdiction over the complaint and
(1979). For instance, enforcement of Title VI historically
personal jurisdiction over the target institution, meaning
has been an important tool in desegregating public schools.
that the institution must receive federal financial assistance
from ED (unless another agency has delegated enforcement
Section 601 of Title VI bars discrimination based on race,
authority to ED). Allegations must also be timely, filed
color, or national origin in federally funded programs. 42
within 180 calendar days after the alleged discrimination,
U.S.C. § 2000d. Individuals subjected to discrimination in
although waiver of the deadline is possible.
such a program can sue a recipient to enforce Section 601;
in such cases, the Supreme Court has read the statute to bar
Under the CPM, if OCR decides to open an investigation, it
only intentional discrimination that violates the
will issue notification letters to the person complaining of
Constitution’s Equal Protection Clause. Alexander v.
discrimination and the recipient institution, describing the
Sandoval, 532 U.S. 275, 280 (2001).
allegations to be investigated and the basis of OCR’s
jurisdiction. It also is to provide contact information for the
Federal agencies also enforce Title VI. Section 602 of the
OCR staff person who will serve as the primary contact.
statute directs federal agencies that distribute federal
financial assistance to promulgate rules carrying out that
Allegations under investigation can be resolved through
mandate. 42 U.S.C. § 2000d-1. Agencies may terminate or
voluntary agreements. After an investigation, the CPM
refuse to provide funding as remedies for noncompliance.
indicates that OCR will determine whether the
ED’s Title VI regulations, for example, provide that
preponderance of the evidence supports a finding of
individuals may not, on the basis of race, national origin, or
noncompliance. In cases of noncompliance, OCR is to
color, be excluded from or denied the benefit of programs
propose a resolution agreement with specific steps the
funded by the department. 34 C.F.R. § 100.
recipient will take to comply.
OCR Enforcement of Title VI in Schools
Fund Termination
ED distributes substantial financial assistance to public
While it is much more common for OCR to conclude
school districts and colleges. ED’s OCR can investigate
matters with a resolution agreement, if it does not reach an
complaints brought by individuals alleging discrimination
agreement with a recipient, OCR may begin enforcement
based on race, color, or national origin, and interprets these
proceedings by either (1) undertaking proceedings to
categories to include discrimination based on actual or
suspend, terminate, or refuse to continue federal financial
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Race Discrimination at School: Title VI and the Department of Education’s Office for Civil Rights
assistance; or (2) referring the case to the Department of
allocation of awards and benefits by race, such as
Justice to enforce Title VI in court. Suspension or
Homecoming King and Queen, would also conflict with the
termination is only allowed after an opportunity for a
statute.
hearing before the agency and a finding of noncompliance
on the record.
For allegations of different treatment based on race, OCR
generally examines whether a recipient treated a student
Disparate Impact Regulations
less favorably than similarly situated individuals of a
Section 602 of Title VI directs agencies distributing funds
different race. It then determines whether there is a
to promulgate regulations that “effectuate” Section 601’s
legitimate, nondiscriminatory justification for that
discrimination prohibition. In addition to regulations that
treatment. OCR then examines whether the asserted reason
prohibit intentional discrimination, ED and other agencies
is a pretext for unlawful discrimination.
have adopted Title VI “disparate impact” regulations that
prohibit funding recipients from unjustified actions that
School Discipline
have the effect of subjecting individuals to discrimination
A school’s disciplinary practices can unlawfully
because of a protected characteristic. In other words, even if
discriminate when the school intentionally subjects students
a recipient’s actions are not intentionally discriminatory,
to different treatment based on race. A school district that
they might still violate Title VI disparate impact regulations
disciplines students of one race more harshly than similarly
if their effect is discriminatory.
situated students of another race might violate Title VI. A
facially neutral discipline policy might also have an
In Alexander v. Sandoval, the Supreme Court ruled that
unlawful disparate impact on the basis of race.
while private plaintiffs may sue in federal court to enforce
Section 601 of Title VI, they may not do so to enforce
Harassment
Section 602. The Court also emphasized that Section 601
Harassment based on someone’s race can create a hostile
only prohibits intentional discrimination that violates the
environment. A hostile environment created or left
Equal Protection Clause. Thus, individuals may bring Title
uncorrected by a school can violate Title VI. A hostile
VI claims of intentional discrimination to court but may not
environment means racially harassing conduct that is so
sue to enforce the Title VI disparate impact regulations.
severe, persistent, or pervasive that it denies or limits a
student’s ability to benefit from or participate in a school’s
In the administrative context, OCR can enforce the
programs or activities. If a school has actual or constructive
prohibition of intentional discrimination against recipients
notice of such an environment, it must adequately respond
of assistance from ED. In addition, because the Supreme
by taking reasonable steps to eliminate it. (Unlike
Court has not ruled that agencies are prohibited from
enforcement by OCR, the standard for holding a school
enforcing disparate impact regulations through the
liable for damages under this theory in federal court may
administrative process, ED can enforce its Title VI
require a showing that a school district responded with
disparate impact regulations in education programs it funds.
deliberate indifference.)
According to OCR, a facially neutral policy not intended to
Retaliation
discriminate that has an unjust, adverse disparate impact
When persons complain to a school about a potential
based on a protected characteristic violates Title VI. To
violation of Title VI or participates in an OCR
determine whether this is the case, OCR may examine
investigation, the school may not retaliate against them,
whether the policy is necessary to meet an important
such as through intimidation, threats, or coercion.
educational goal. It may also consider if there are
alternative policies comparably effective to meet that goal
Language Access
with less of a discriminatory effect, as well as whether the
OCR also interprets Title VI regulations on national origin
justification is a pretext for discrimination.
discrimination to require school districts to provide students
who have limited English proficiency with meaningful
Discrimination Based on Race, Color, or
access to a school’s programs. This requirement extends to
National Origin
providing parents or guardians with limited English
OCR investigates a variety of alleged discriminatory
proficiency meaningful access to school information in a
conduct under Title VI. Some of the most common
language they can understand. Further, when elementary
allegations brought to OCR are differential treatment or
and secondary school districts offer advanced or specialized
denial of benefits based on race, including uneven
programs, such as Advanced Placement classes, schools
application of school discipline policies; racial harassment;
must generally make sure that eligibility requirements do
and retaliation claims. As part of its mandate to eliminate
not screen out students with limited English proficiency.
national origin discrimination, OCR also requires schools to
provide meaningful language access for English learners.
Filing a Complaint
Individuals who wish to file a complaint with OCR may do
Different Treatment/Denial of Benefits
so through the agency’s website, by mail, or email.
Schools may not exclude individuals or deny them benefits
from programs based on their race. Denying students the
Jared P. Cole, Legislative Attorney
opportunity to enroll in a particular class because of their
race, for instance, would violate Title VI. Dividing the
IF12455
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Race Discrimination at School: Title VI and the Department of Education’s Office for Civil Rights

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