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UPDATED: On March 1, the Office of Civil Rights released a clarifying some aspects of the Title VI guidance from February 14th. The new document clearly states that by law the federal government cannot dictate curriculum and that cultural celebrations in schools are legally permitted if they are open to people of all races. OCR also reminds districts of the process by which they will proceed with schools that are determined to be out of compliance with Title VI.

On February 14th, the Office of Civil Rights that threatens districts with the loss of federal funding if they are found to be 鈥渢reating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice or equity鈥�put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.鈥� Significantly, the Department warned against 鈥渞elying on non-racial information as a proxy for race, and making decisions based on that information, violates the law.鈥� It considers any DEI program that teaches 鈥渟tudents that certain racial groups bear unique moral burdens that others do not鈥� as also violating civil rights laws. This guidance extends beyond existing law to denounce policies designed to enhance diversity, even if they do not employ racial classifications or intentional racial balancing.

The guidance included that OCR will launch compliance reviews鈥攊nvestigations initiated based on OCR鈥檚 discretion rather than in response to complaints鈥� beginning March 1 for those that fail to follow the directives in the guidance. Further, it implies that if schools continue considering diversity goals in any form, they could face an immediate risk of losing federal funding. 

Though a footnote concedes that the guidance 鈥渄oes not have the force and effect of law,鈥� it still threatens educational institutions with severe consequences鈥攏amely, loss of federal funding鈥攆or noncompliance. We do not yet know how likely this scenario is for districts, especially given:  

Historically, rescinding funding for failure to comply with civil rights laws is a lengthy process. OCR must first initiate a compliance review or other investigation, actually investigate the complaint, including allowing the educational institution to submit data and a legal response to the allegations, and make a finding that the institution or agency has violated the law. Even then, OCR has always offered the institution or agency the opportunity to voluntarily enter into a resolution agreement that spells out the corrective actions needed before threatening federal funding. If the district chooses not to enter into a resolution agreement, it had the right to due process in administrative court before any action is taken to suspend, terminate or withhold federal funding. Finally, the district can historically has had the option to challenge OCR鈥檚 interpretation of Title VI in federal court.  

, with ECR Solutions, provided 91制片 with legal guidance you can . Putting this blog post in the context of 91制片鈥檚 legislative agenda and priorities, we point to her blog post and recommendation that if a district feels compelled to try and proactively avoid OCR challenges they should 鈥渇ocus on programs and activities that might be at risk under the current law, regulations, and judicial guidance. Policies that explicitly use race in admissions, financial aid, hiring, or discipline鈥攕uch as racial quotas, set-asides, or preferential treatment鈥攁re the most at risk under current law. Similarly, DEI programs that stereotype individuals or groups, assign racial blame, or suppress speech based on race could be suspect. However, there is much less support for arguments against race-neutral-yet-race-conscious policies like those used in cases in the 1st and 4th Circuit and there certainly is no legal merit for the idea that considering diversity goals or race at all is a problem.鈥�

  

Finally, no federal law prevents teaching about race and race-related topics and any attempt by OCR to prevent discussions on race would violate a host of federal laws and raise First Amendment issues. The Advocacy team will continue to provide timely updates on these evolving issues and their potential impact on school districts as we learn more. 

In addition to the analysis provided above, EducationCounsel has written an analysis on the Dear Colleague Letter. .