Religious Discrimination at School: Application of Title VI of the Civil Rights Act of 1964

Religious Discrimination at School: Application of Title VI of the Civil Rights Act of 1964

Legal Sidebari

Religious Discrimination at School:
Application of Title VI of the Civil Rights Act
of 1964
March 22, 2024
Since the beginning of armed hostilities between Israel and Hamas on October 7, 2023, Congress has
focused significant attention on the reaction of students and schools, colleges, and universities to events
unfolding in the region. Congressional hearings have been held and legislative proposals have been
introduced addressing religion-based animus, and in particular antisemitism, at institutions of higher
education. A number of media reports, complaints filed with the Department of Education (ED), and
lawsuits allege that Jewish or Muslim students have faced harassment or other discrimination on campus
because of their religious beliefs or identities.
A primary legal question prompted by these events is whether and how federal antidiscrimination statutes
protect students from discrimination on the basis of religion. A trio of statutes enacted pursuant to
Congress’s authority under the Spending Clause serve as the primary (though not exclusive) vehicles for
students seeking redress for certain kinds of discrimination by their schools: Title VI of the Civil Rights
Act of 1964 (Title VI), Title IX of the Education Amendments of 1972 (Title IX), and Section 504 of the
Rehabilitation Act of 1973 (Section 504). These laws prohibit discrimination on the basis of race, color,
and national origin (Title VI); sex (Title IX); and disability (Section 504) by recipients of federal financial
assistance. None of these laws directly prohibit religious discrimination.
Students facing religious discrimination at public schools may be able to bring constitutional claims under
the First or Fourteenth Amendments, but the Constitution does not itself provide for the same breadth or
depth of enforcement as Title VI, Title IX, and Section 504 do. The Constitution does not offer any direct
recourse to students at private institutions. In addition, federal agencies lack the authority they possess
under these other antidiscrimination laws to enforce any prohibition on religious discrimination,
including, for example, the authority to issue regulations, undertake compliance reviews, and investigate
and resolve complaints.
For several decades, however, ED has interpreted Title VI to reach religious discrimination when it
overlaps with race or national origin discrimination. As ED, Congress, and the courts respond to
allegations of religious discrimination at schools, they are considering whether and how Title VI applies
to such claims. This Sidebar reviews the state of the law on that question.
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Background on Title VI
Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in
federally funded programs. All public schools, colleges, and universities in the country and many private
ones accept federal funding and are therefore subject to Title VI. Each federal agency enforces Title VI
with respect to its own funding recipients. ED, through its Office for Civil Rights (OCR), is the primary
federal agency that enforces Title VI against schools, colleges, and universities.
OCR has broad authority to prevent racial and national origin discrimination by its funding recipients. It
issues formal regulations and sub-regulatory guidance interpreting and implementing Title VI. OCR
regulations impose obligations beyond the basic mandate not to discriminate, including, for example,
recordkeeping and reporting requirements. OCR may secure Title VI compliance via “any . . . means
authorized by law.” It can conduct compliance reviews and investigate complaints. If it finds a violation,
it determines the remedy to seek, although it must first attempt a cooperative resolution. Remedies can
include agreements or orders to an institution to, for example, change its policies, compensate injured
students, and cooperate with OCR monitoring going forward. As a last resort, ED may seek to terminate
federal funding, which it can do only after making a finding of noncompliance on the record of a formal
administrative hearing and giving Congress a chance to weigh in. OCR can also refer cases to the Civil
Rights Division at the Department of Justice for enforcement in court.
Educational institutions may be liable under Title VI when they treat students differently because of their
race or national origin (known as a disparate treatment claim) and when they fail to respond appropriately
to racial or ethnic harassment that is so severe, pervasive, and objectively offensive that it deprives
students of access to educational benefits or opportunities (known as a hostile educational environment
claim). Not all racially or ethnically offensive conduct rises to the level of actionable harassment.
Furthermore, to be liable for harassment, a school must have exhibited deliberate indifference—that is, its
response must be clearly unreasonable in light of the known circumstances. (For more information on
Title VI harassment claims, see CRS Legal Sidebar LSB11087, Title VI and Peer-to-Peer Racial
Harassment at School: Federal Appellate Decisions, by Jared P. Cole.) Additionally, ED’s Title VI
regulations prohibit disparate impact discrimination, that is, racially or ethnically neutral policies that
adversely affect a particular racial or ethnic group. The Supreme Court has held that the disparate impact
regulation is not enforceable by private litigants, but it has never directly ruled on the validity of the
regulation and whether ED can enforce it.
Students who believe their schools have violated Title VI can file complaints with OCR. They may also
bring suit directly in federal court. Victorious plaintiffs can receive injunctive relief, that is, a court order
directing the institution to change its policies or practices; certain compensatory damages (although likely
not damages for emotional distress); and attorneys’ fees.
An original draft of Title VI included a prohibition on religious discrimination. Congress omitted that
language in the final version. One commentator reads the legislative history to suggest that Congress was
concerned that including religion would cut off sectarian colleges and universities from federal funding.
Members also expressed the view that religious discrimination in education was a minor problem.
For more information about Title VI in general, see CRS Report R46534, The Civil Rights Act of 1964:
An Overview, by Christine J. Back.

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Title VI and Religious Discrimination
Department of Education’s Approach
On its face, Title VI does not prohibit discrimination on the basis of religion. However, in 2004, OCR
released guidance explaining that, in OCR’s opinion, religious discrimination could, in some
circumstances, overlap with racial or national origin discrimination, bringing it within Title VI and ED’s
purview. OCR has since released additional guidance documents, most recently on November 7, 2023,
explaining how it interprets Title VI to apply to claims alleging religious discrimination, including claims
by Jewish, Muslim, and Sikh students. As OCR interprets the law, religious discrimination is illegal under
Title VI if it is based on a group’s “(i) shared ancestry or ethnic characteristics; or (ii) citizenship or
residency in a country with a dominant religion or distinct religious identity,” rather than the group’s
religious practices. Discrimination may include “ethnic or ancestral slurs”; harassment based on how
students “look, dress, or speak in ways linked to ethnicity or ancestry (e.g., skin color, religious attire,
language spoken)”; and actions grounded in “stereotype[s] based on perceived shared ancestral or ethnic
characteristics.” OCR’s examples of religious discrimination overlapping with racial or national origin
discrimination include “Muslim students targeted for wearing a hijab,” “Sikh students taunted and called
terrorists,” and Jewish students targeted with swastikas, Nazi salutes, and Holocaust jokes.
OCR’s interpretation of Title VI to prohibit some forms of religious discrimination is not new, and OCR
had investigated institutions of higher education and K–12 school districts for discrimination against
religious groups on the basis of “shared ancestry” before October 7, 2023. In 2021, for example, OCR
investigated the University of Vermont and State Agricultural College in response to complaints of
antisemitic harassment including, among other things, that a teaching assistant had published tweets
threatening to retaliate academically against “zionist” students. In 2022, OCR resolved an investigation
against an Arizona school district for its failure to respond to student-on-student antisemitic harassment,
including pro-Nazi conduct and Holocaust jokes. As of the time of this Sidebar’s publication, OCR had
opened at least 78 investigations involving national origin discrimination and religion since October 7,
2023.
Judicial Approach
Case law is sparse on when discrimination ostensibly on the basis of religion may also constitute racial or
national origin discrimination under Title VI. Courts regularly dismiss Title VI claims based on alleged
antagonism toward or failure to accommodate a plaintiff’s religious beliefs. Few courts, however, have
addressed all of the kinds of harassment highlighted by OCR, making it difficult to know whether courts
would agree with OCR’s interpretation of Title VI. At least one district court rejected a Title VI claim
based on anti-Muslim discrimination that included allegations that school officials equated Muslims with
terrorists. Three other district courts have allowed Jewish K–12 students to proceed under Title VI on
claims that their schools failed to address antisemitic harassment by fellow students, who, among other
things, allegedly displayed swastikas, performed Nazi salutes, used antisemitic epithets, and made
offensive statements about the Holocaust. One court explained that such harassment, drawing on
“hackneyed stereotypes, bigoted ‘jokes,’ and painful references to the Holocaust and Naziism,” is “rooted
in” antagonism to the victims’ “actual or perceived national origin or race” and not only their “faith or
religious practices.” This analysis appears to align with OCR’s view of religious harassment that may
violate Title VI.
Beyond Title VI, courts recognize that other laws prohibiting racial and national origin discrimination can
reach discrimination against certain groups, including religious groups, when, at the time those laws were
enacted, members of those groups were considered to share a racial or ethnic background. Thus, the

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Supreme Court has allowed claims by Arab and Jewish plaintiffs to proceed under two 19th-century laws
prohibiting certain racial discrimination because, by 19th-century standards, “Jews and Arabs were among
the peoples then considered to be distinct races and hence within the protection of the statute.” Courts
have not analyzed popular ideas of race and ethnicity as applied to religious groups at the time Congress
enacted Title VI in the 1960s. Nor has any court weighed in on whether Title VI would protect only those
religious groups considered racially distinct in the 1960s, or whether, as OCR would have it, harassment
based on the modern perpetrator’s apparent view of a group’s shared ethnic characteristics could suffice.
Executive Order 13,899, the Antisemitism Awareness Act,
and Title VI in the Midst of the Israel-Hamas Conflict
Congressional attention to Title VI and discrimination at schools since October 7, 2023, has focused
particularly on antisemitism. Beyond whether and how Title VI covers religious discrimination at all,
another question concerns what kind of conduct constitutes antisemitism. Agencies, courts, and Congress
have considered whether and what forms of opposition to Israel can be antisemitic and might be
prohibited by Title VI. In 2019, President Trump adopted Executive Order 13,899, which remains in
effect, stating the administration’s policy to enforce Title VI against antisemitism. The executive order
directed federal agencies to “consider” the “non-legally binding working definition of anti-Semitism
adopted . . . by the International Holocaust Remembrance Alliance (IHRA),” as well as the
“contemporary examples” cited therein. The IHRA defines antisemitism as “a certain perception of Jews,
which may be expressed as hatred toward Jews.” Examples include, among other things, “[d]enying the
Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a
racist endeavor”; “[a]pplying double standards by requiring of [Israel] a behavior not expected or
demanded of any other democratic nation”; and “[d]rawing comparisons of contemporary Israeli policy to
that of the Nazis.” A bill introduced in the 118th Congress in both houses, the Antisemitism Awareness
Act, would similarly instruct ED to “take into consideration” the IHRA definition of antisemitism and
contemporary examples when enforcing Title VI.
Few courts have considered whether Title VI, or other federal antidiscrimination laws, prohibit particular
forms of conduct tied to sentiments about Israel or a Palestinian state. CRS has not located any judicial
opinion holding that opposition to Israel, or to Jewish claims in Israel, can be antisemitic for purposes of
federal antidiscrimination law. Nor has it located any case holding that pro-Israel conduct, or hostility to
pro-Palestinian advocacy, constitutes discrimination on the basis of Palestinian, Arab, or Muslim identity.
In the few cases that have addressed claims in the former category, courts have avoided ruling that certain
anti-Israel conduct or speech is inherently antisemitic, observing that the issue is “hotly disputed” and
emphasizing First Amendment protections for political speech. Courts have also held that discrimination
against people for pro-Palestinian expression is not the same as discrimination on the basis of Palestinian
identity. This latter category of case suggests another approach courts may take to the question of whether
or when anti-Israel activity discriminates on the basis of Jewish identity.
Courts may soon have more to say. Since October 7, 2023, a number of cases have been filed that raise
the question of whether forms of opposition to Israel can violate Title VI. For example, groups seeking to
represent Jewish students sued Berkeley Law School for, among other things, allowing student groups to
refuse membership and speaker invitations to people who “hold views . . . in support of Zionism.” The
plaintiffs argue that “Zionism, which reflects the Jews’ ancestral heritage and deep connection to Israel, is
integral to the religious, national and/or ethnic identity of most Jews” and that “[m]arginalizing,
demonizing, and excluding Jews on the basis of the Zionist component of their Jewish identity is
discrimination against Jews, pure and simple.” In urging the court to dismiss the suit, Berkeley contends
that disciplining student groups who adopt an “anti-Zionism” policy would violate students’ First

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Amendment free speech and freedom of association rights. Other lawsuits also claim Title VI violations
based on campus “anti-Zionism,” and other universities have raised the First Amendment in response.
Were a court to determine that certain anti-Israel activity discriminated against Jews, that would not fully
resolve the question of whether Title VI prohibited such activity—because, as explained above, Title VI
does not cover religious discrimination. To find that Title VI applied, a court would also have to find that
such actions constituted a form of racial or national origin discrimination, rather than religious
discrimination or some other form of discrimination that Title VI does not address.
Considerations for Congress
By the current state of the law, as interpreted by OCR and a few courts, the viability of Title VI claims
based on animus toward members of a religious group may turn on whether the plaintiffs can
demonstrate, based on the specific nature of the harassment, that the perpetrators perceived them to share
ethnic, racial, or national characteristics, not only religious ones. Alternatively, or potentially additionally,
plaintiffs may need to show that they are members of a religious group considered to share a common
race or ethnicity at the time Title VI was enacted.
Congress can amend Title VI to clarify if and when it prohibits religious discrimination. It could, for
example, add religion as a protected category under Title VI or elaborate on when religious discrimination
overlaps with racial or national origin discrimination. If it takes this approach, Congress may consider
how other antidiscrimination laws and courts approach prohibitions on religious discrimination,
particularly given that a large number of sectarian schools accept federal funding. Other
antidiscrimination laws contain exceptions for certain conduct by at least some religious institutions,
including sectarian schools. Title VI does not.
Since 2016, lawmakers have introduced a version of the Antisemitism Awareness Act at least eight times,
as well as other bills that could cause schools, colleges, and universities to lose federal funding if they
respond inadequately to antisemitism as defined by the IHRA. Congress may consider how these and
similar bills interact with Title VI. The versions of the Antisemitism Awareness Act in the 118th Congress,
for example, instruct ED to “take into consideration” the IHRA definition of antisemitism when enforcing
Title VI, but they do not amend Title VI itself to explain if and when Title VI covers religious
discrimination at all. Congress may clarify the role of any proposed definition of discrimination in private
enforcement actions under Title VI, in addition to defining terms for purposes of ED enforcement.
Various approaches to combating religious discrimination at schools, colleges, and universities may also
raise complex constitutional questions. Obligations that fall on sectarian schools may need to take into
account First Amendment limits on the application of antidiscrimination laws to religious institutions.
Furthermore, lower courts have struck down some school policies prohibiting harassment or limiting
access to certain speakers as vague, overbroad, or viewpoint discrimination in violation of the First
Amendment. The IHRA definition of antisemitism is broad—“a certain perception of Jews”—and
includes some forms of criticism of Israel that courts and commentators, including the lead author of the
IHRA definition, have suggested enjoy First Amendment protection. Laws that extend greater protection
to people of one faith than to people of other faiths may face scrutiny under the Constitution’s Equal
Protection or Establishment Clauses.

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Author Information

Abigail A. Graber

Legislative Attorney

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