Tag: FAQ

  • Key takeaways from OCR’s Title VI FAQ clarification

    Key takeaways from OCR’s Title VI FAQ clarification

    Over the last two weeks, FIRE wrote twice about the Department of Education’s Office for Civil Rights’ recent “Dear Colleague” letter, asking for more clarity about how OCR plans to enforce Title VI. This weekend, OCR began to provide much-needed clarity through a “Frequently Asked Questions” document, and promised to update the FAQ as needed. 

    While the FAQ document answers key questions, including addressing some points FIRE raised, one more item still needs to be addressed: OCR should expressly incorporate the Supreme Court’s hostile environment harassment standard articulated in Davis v. Monroe County Board of Education when evaluating whether institutional programming creates a hostile environment.  

    Key clarifications from the FAQ:

    • OCR echoed Attorney General Pam Bondi’s Feb. 5 memo, confirming that institutional cultural celebrations or historical observations such as Black History Month and International Holocaust Remembrance Day do not violate Title VI. 
      • FIRE analysis: We advised colleges not to “overcomply” and prematurely cancel university cultural celebrations. Those that have cancelled events, including Grand View University in Iowa, should restore them. 
    • The FAQ distinguishes between K-12 classrooms and higher education classrooms, acknowledging that college discussions and coursework on race-related issues are less likely than K-12 programs to create a racially hostile environment. 
      • FIRE analysis: This is a win for academic freedom and free expression in higher education. OCR correctly notes the difference between the environs of K-12 and college classrooms — the latter being precisely where difficult discussions should take place. President Trump’s Jan. 21 executive order on DEI also explicitly protected higher education classroom instruction, an exception FIRE has long sought when government actors have attempted to reform campus DEI bureaucracies.

    Other parts of the FAQ leave room for additional clarification, particularly regarding the standard for determining when race-related speech can violate Title VI. 

    While FIRE does not take a position on affirmative action or other race-conscious practices at institutions, OCR’s interpretation of Title VI and the Students for Fair Admissions cases prohibits institutions from maintaining policies or practices that treat students differently based on their race. As the Feb. 14 “Dear Colleague” letter states: 

    If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

    It’s one thing for OCR to address institutional conduct in its policies or programs — prohibiting the distribution of benefits or the imposition of burdens based on race — but quite another to regulate institutional speech in programs. The FAQ would benefit from additional clarity on how the Supreme Court’s Davis decision applies to institutional speech, including mandatory trainings and institutionally sponsored events or programming. 

    OCR should explicitly confirm that when evaluating whether an institution has created a hostile environment, it will only consider conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” as rising to that level. Expressly mentioning the hostile environment harassment standard as articulated in Davis in future FAQ updates would help institutions better understand the difference between unlawful conduct and protected expression. OCR’s clarifications thus far are useful, but it must make this distinction clear going forward. 

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  • Department of Education Releases FAQ on February 14 “Dear Colleague” Letter

    Department of Education Releases FAQ on February 14 “Dear Colleague” Letter

    by CUPA-HR | March 3, 2025

    On March 1, the Department of Education’s Office for Civil Rights (OCR) released a Frequently Asked Questions  document providing further guidance on OCR’s February 14, 2025, “Dear Colleague” letter.

    The February 14 “Dear Colleague” Letter

    The “Dear Colleague” letter outlines OCR’s enforcement position with respect to the legal requirements “under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities,” in light of the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard (SFFA). The letter states SFFA “clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI.” OCR declares in the letter that, in accordance with SFFA, federal law “prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” The letter states that OCR will “take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date,” which was February 28. OCR also notes in the letter that institutions that fail to comply “face potential loss of federal funding.”

    CUPA-HR joined the American Council on Education and dozens of other higher education associations in a February 25, 2025, letter to OCR noting  that the language in the “Dear Colleague” letter is ambiguous and, as a result, campuses are confused about their compliance responsibilities. CUPA-HR, ACE and the other associations requested in the letter that the department rescind the “Dear Colleague” letter and “engage with the higher education community to ensure a clear understanding of their legal obligations in this area.”

    The FAQ

    The March 1, 2025, FAQ provides details on how to file a discrimination complaint, the department’s view on what type of activity is unlawful and the department’s approach to enforcement.

    Enforcement

    With respect to the department’s approach to enforcement, the FAQ states that if OCR “determines that a school failed to comply with the civil rights laws that it enforces, [it] will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement.” The FAQ then states that “if a school is unwilling to negotiate a resolution agreement, OCR will inform the school of the consequences, which may result in OCR initiating enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings.”

    Unlawful Activity

    OCR notes in the FAQ that OCR’s assessment of whether an institution’s policies and programs are lawful “depends on the facts and circumstances of each case,” but provides more details on specific activities that do or may violate the law. The FAQ notes that it regards the following activities as unlawful:

    • preferences and stereotypes as a factor in admissions, hiring, promotion, scholarship, prizes, administrative support, sanctions, discipline, and other programs and activities;
    • any programming, graduation ceremonies, housing, or any other aspect of school life that allows one race but not another or otherwise separates students, faculty, or staff based on race; and
    • policies that appear neutral on their face but are made with racially discriminatory purpose.

    With respect to the last bullet, OCR states in determining “whether a school acted with a racially discriminatory purpose, [it] may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent.” OCR provides the following “non-exhaustive list,” which may include:

    • whether members of a particular race were treated differently than similarly situated students of other races;
    • the historical background or administrative history of the policy or decision;
    • whether there was a departure from normal procedures in making the policy or decision;
    • whether there was a pattern regarding policies or decisions towards members of a particular race;
    • statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race;
    • whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race; and
    • the school’s history and stated policy of using racial classifications and race-based policies to further DEI objectives, “equity,” a racially oriented vision of social justice, or similar goals.

    The FAQ also describes activities that could be unlawful. Specifically, the FAQ notes that “extreme practices at a university — such as requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race — are all forms of school-on-student harassment that could create a hostile environment under Title VI.”

    DEI?

    The FAQ notes, “whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” but rather whether it discriminates “based on race, color, or national origin.” The FAQ notes that institutions “may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races,” or programming that “discourages members of all races from attending, either by excluding or discouraging students of a particular race or races.”

    The FAQ also notes, however, that “programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” OCR also states that “educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate or recognize historical events and contributions, and promote awareness,” are lawful “so long as they do not engage in racial exclusion or discrimination.”

    Next Steps

    CUPA-HR will continue to monitor and keep members apprised of any further developments.



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