CLIENT ALERT: U.S DEPARTMENT OF EDUCATION RELEASES NEW GUIDANCE ON ADDRESSING HATE-BASED DISCRIMINATION IN SCHOOLS
On November 7, 2023, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a new Dear Colleague Letter reminding schools of their legal obligations under Title VI of the Civil Rights Act of 1964 (“Title VI”) to provide all students, including students who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian, a school environment free from discrimination based on race, color, or national origin.
OCR’s letter was issued in response to a “nationwide rise at schools of all levels in reports of hate crimes and harassment, including an alarming rise in disturbing antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students on college campuses and in P-12 schools.” OCR Assistant Secretary Catherine Lhamon emphasized, “Hate-based discrimination, including based on antisemitism and Islamophobia among other bases, have no place in our nation’s schools.”
The letter underscores the responsibility of institutions to take immediate and appropriate action in response to complaints of discrimination or harassment based on a student’s actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Specifically, that responsibility under Title VI extends to Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or other students that have been subjected to racial, ethnic, or ancestral slurs or stereotypes based on their ancestry or ethnicity or otherwise discriminated or harassed because of their skin color, language, physical features, or style of dress that reflects both ethnic and religious traditions.
OCR has stated that Title VI requires schools to take immediate or other appropriate action to investigate or otherwise determine whether the discrimination or harassment has occurred and, if so, take steps to stop the discrimination or harassment, eliminate the hostile environment, and prevent the discrimination or harassment from recurring. These steps may involve student disciplinary action, providing counselling or other support, and increased training for students and other members of the school community. OCR has also emphasized the importance of schools having well-publicized policies prohibiting discrimination and harassment and procedures by which students, parents, and employees may report allegations of discrimination or harassment.
The issuance of OCR’s guidance is the latest development as part of the Department of Education’s (“Department”) Antisemitism Awareness Campaign. launched in May 2023. OCR’s latest guidance is among several resources released by OCR to help support schools fulfill their obligations under Title VI to address discrimination based on race, color, or national origin, including shared ancestry and ethnic characteristics. Previously issued additional resources in this area include a fact sheet, Protecting Students from Discrimination Based on Shared Ancestry or Ethnic Characteristics, released in January 2023, and a Dear Colleague Letter issued in May 2023. Additionally, OCR recently provided an updated version of its discrimination complaint form, specifying that Title VI’s protections extend to students who are or are perceived to be Jewish, Muslim, Hindu or Sikh, or based on other shared ancestry or ethnic characteristics.
The Department plans to issue proposed regulations to address enforcement of Title VI by OCR in cases involving harassment and other discrimination directed at Jewish, Muslim, Hindu, and other students based on their shared ancestry or ethnicity, although no timetable for the proposed regulations has been released.
HMBR’s Education Group will continue to monitor these developments. Should you have any questions or concerns about possible implications for your institution, please feel free to contact us at 312-946-1800. We encourage institutions to review this guidance and to contact HMBR’s Education Group with any questions or concerns about the topics covered.