Race-Based Programs in the Post-Affirmative Action Era

On August 24, 2023, the Department of Education Office for Civil Rights (“OCR”) published a “Dear Colleague” letter to provide federal guidance to schools on how they can develop curricula and engage in activities that promote racially inclusive school communities compliant with Title VI of the Civil Rights Act of 1964 (“Title VI”).

To fully appreciate OCR’s guidance, it is important to understand Title VI’s general prohibition. Title VI states that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”  OCR enforces Title VI by withholding or threatening to withhold federal funding of recipients in violation of Title VI.

A violation of Title VI may occur in any of the following ways:

1. Express Race Classifications—Express race classifications arise when school programs, curricula, extracurricular activities, or the establishment thereof, expressly direct the administration of such programs to treat individual students differently on account of their race.  Express race classifications are subject to a legal standard called “strict scrutiny” which permits express race classifications only in very narrow circumstances.
2. Discriminatory Application of Facially Nuetral Policies—A facially neutral policy is one where, on its face, the policy, program, or activity gives no indication that different races should be subject to different treatment.  However, if the OCR finds that the district applied these facially neutral policies or programs differently on account of race, then again, the reasoning for the different treatment of races is subject to strict scrutiny.
3. Racially Hostile Environment—The existence of a racially hostile environment that is created, encouraged, accepted, tolerated, or left uncorrected by a school can constitute discrimination based on race in violation of Title VI.  A “racially hostile environment” is understood as, based on the totality of circumstances, such environment is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the education program or activity. OCR has articulated many times that OCR may find a Title VI violation if (1) a hostile environment based on race exists, (2) the school had actual or constructive notice of the racially hostile environment, and (3) the school failed to take prompt and reasonable steps to end the harassment, eliminated any hostile environment and its effects, and/or prevent the harassment from reoccurring.

Race-Based School Programming— The above prohibitions are not meant to discourage race-based school programming or racial inclusivity.  In fact, under the concept of a racially hostile environment, a school district may violate Title VI for not talking about, thinking about, or considering race. OCR acknowledges that program and curricula substance, implementation, and policy decisions thereof, are within the parameters of state and local authority, and, for purposes of Title VI race discrimination, will not interfere unless a difference in race-based treatment has occurred. OCR provided several examples of permissible race-based programs.

• Example #1—A local news outlet reports that a public elementary school launched a new program that requires all students to read a book about race, discrimination, and racial justice from a list provided by the school.  Under these circumstances, OCR may decline to open an investigation because such a requirement to read a book about race, discrimination, and racial justice applies to all students and therefore, is subjecting the students to the same treatment.

• Example #2—A high school mentorship program intended to encourage all students, but particularly students from marginalized groups, to take more rigorous courses.  Participation is completely voluntary, but the program’s recruiting efforts specifically encourage Black and Latino students to participate. OCR may decline to open an investigation because the recruitment efforts do not amount to different access to the program by non-Black and non-Latino students.

Context of this Dear Colleague Letter is crucial for its understanding.  This Letter comes after Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the U.S. Supreme Court ruling in June 2023, which held that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the 14^th Amendment.  The Dear Colleague letter is meant to clarify and provide examples in this post-affirmative action environment.  In reality, the Supreme Court’s holding in in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College does very little to change the status of race-based programs and activities in K-12 school districts. School districts may still choose to offer race-based curriculum, educate  students on historical and current issues faced by individuals of specific races, and work to improve the school district’s racial inclusivity.  The crux of a Title VI race discrimination violation occurs when a school is using race or national origin as a basis for exclusion or entitlement, where other races are not subject to the same exclusion or entitlement.

OCR provides they would have cause to investigate complaints such as those reflected in the following examples.

• Example #1—The curriculum for a college course requires that students of different races read different materials based on their race.  The college also requires that students complete different assignments and participate in different discussion groups based on their race.  In justifying this action, the college claims that they do this because students often feel more comfortable reading works by authors of their own race.  OCR states they would have reason to open an investigation based on these facts because there are facts to suggest the college treated students differently based on race.

• Example #2—A high school allows students to create student groups. A group of students with Irish heritage create an “Irish Cultural Club.”  The club hosts an annual St. Patrick’s Day movie event highlighting Irish history.  In advertising the event, the club states that “only students of Irish ancestry are allowed to attend the event.”  OCR provides they may open an investigation because the event excluded non-Irish students solely because of national origin. Importantly, the national origin theme of the group unlikely violated Title VI so long as (1) the club’s membership is open to any student, and (2) the school offers the same access and opportunity to create a race-based or cultural group to all other races, cultures, and national origins.

Thus, school districts retain vast discretion in creating the content of school programming, so long as the school does not entitle or exclude students from access on account of their race, ancestry, or national origin.