The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently issued a Fact Sheet that makes clear to educators, and elementary, secondary, and postsecondary educational institutions that “diversity, equity, and inclusion training and similar activities,” in most circumstances, do not violate Title VI of the Civil Rights Act’s (“Title VI”) prohibition against discrimination based on race, color, or national origin (collectively, here, “race”) in educational programs that receive Federal financial assistance.  OCR enforces Title VI for recipients that receive financial assistance from the federal government, including States, school districts, public schools and public and private colleges and universities.

An educational institution violates Title VI if it “intentionally treats persons differently or otherwise causes them harm because of their race, or creates or is responsible for a racially hostile environment, e.g., physical, verbal, or written conduct that is severe, pervasive, or persistent enough to interfere with or limit the ability of an individual to participate in or benefit from the services, activities, or privileges provided by the educational institution.  But Title VI does not prevent educational institutions from engaging in diversity, equity, and inclusion (“DET”) activities, according to the OCR.  In fact, DEI activities further a Congressional finding that it is in the best interest of the U.S. for public schools to foster voluntary meaningful interactions among students of different racial and ethnic backgrounds, beginning at the earliest stage of each students’ education.

More specifically, activities that the OCR does not consider to be categorically prohibited by Title VI include:

• Diversity, equity, and inclusion training;
• Instruction in or training on the impact of racism or systemic racism;
• Cultural competency or other non-discrimination training;
• Efforts to assess or improve school climate, including the use of focus groups and climate surveys;
• Student programs focused on anti-harassment or anti-bullying;
• Investigations of and issuance of reports concerning the causes of racial disparities within a school; and
• Use of specific words in school policies, programs, or activities, such as equity, discrimination, inclusion, diversity, systemic racism, or similar terms.

While the Fact Sheet “does not have the force and effect of law . . .” and is “not meant to bind the public beyond what is required by existing statutory and regulatory requirements, there is little doubt that it was intended to send a clear message to the public and to educators about the OCR’s understanding of what it believes is permissible under Title VI.  For those favoring DEI-related educational activities, the Fact Sheet will be seen as a welcome counterbalance to the ongoing discussions at the state and local levels in places like Florida.

We will continue to provide updates as the debate over the merits and lawfulness of school-based DEI activities moves forward.  If you have any questions related to your current DEI policies and practices, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.