Can Even a Short K-12 Library Book Ban Lead to a Civil Rights Violation? OCR Says Yes

By Jackie Gharapour Wernz and Kendra Yoch

From School Board member resignations to administrator terminations, from Federal free speech lawsuits to schools pulling the Bible from library shelves, there is no shortage of stories about the challenges facing school districts that ban books based on allegedly explicit content. The U.S. Department of Education recently added to the fraught environment surrounding book bans in response to a complaint alleging that the removal of certain books led to violations of students’ rights under Title IX and Title VI. Specifically, several students spoke up at a school board meeting saying their school district removed books because of LGBTQIA content or authorship. Others claimed books were removed because they championed principles of diversity, equity, and inclusion or were written by authors or contained characters who are people of color. The students reported feeling targeted, marginalized, and unwelcome because of the book bans. Despite those reports, the school district did not address the concerns under its policies prohibiting harassment based on race, color, or national origin (Title VI policies) or sex, gender, sexual orientation, or gender identity (Title IX policies).

Although OCR resolved the complaint before making a finding of whether a violation occurred, the type of resolution agreement used can only be considered when OCR’s investigation has identified concerns through its investigation. The agreement is therefore clear notice to schools that OCR expects them to treat allegations of harassment based on the removal of books from school libraries as they would any other allegation of misconduct based on a protected status. Unless and until a lawsuit—like the one filed by the Texas AG recently, challenging a similar OCR investigation in Texas—is successful, schools should brush up on their civil rights responsibilities to limit the risk of an OCR investigation in response to removals of library books. Let’s talk about this case a bit more and what those responsibilities are.

Texas AG Challenges Both Trump and Biden Administration Interpretations of Title IX for LGBTQIA Students in New Lawsuit

The Texas Attorney General’s Office has had a lot on its plate lately, including the suspension and impeachment of AG Ken Paxton. But it has taken on a new challenge this week with a broad lawsuit seeking to remove Title IX protections recognized by both the Trump and Biden administrations for LGBTQIA students.

Other lawsuits have challenged the Biden administration’s attempt to extend Title IX to sex-segregated sports teams, intimate facilities for transgender students, and even use of student pronouns. But the Texas lawsuit challenges the Department of Education’s interpretation of Title IX to protect LGBTQIA students from any discrimination and harassment based on sexual orientation or gender identity.

If a Federal court agrees with the lawsuit, it would remove protections for LGBTQIA students that both the Trump and Biden administrations have recognized since at least August 2020. Back then, the Trump administration’s Office for Civil Rights publicly opened a case for investigation alleging different treatment of a student for being gay, which had not been the policy of OCR before. Keep reading for what you need to know about the Texas AG’s lawsuit and its potential impact on schools in Texas and beyond.

Not So Fast: OCR’s Fact Sheet on DEI Efforts is Only Half the Story

On January 31, 2023, the Department of Education’s Office for Civil Rights released a fact sheet clarifying that diversity, equity, and inclusion training and similar activities “are not generally or categorically prohibited” under Title VI of the Civil Rights Act of 1964. The OCR fact sheet provides a list of activities, such as DEI training, training on the impacts of racism or systemic racism, cultural competency and other nondiscrimination training, and using specific words, such as equity, discrimination, inclusion, diversity, systemic racism, or similar terms in school policies, programs, or activities. It says that Title VI does not “categorically” prohibit such activities and that deciding if there is a violation requires assessing the totality of the circumstances in each particular case.

According to OCR’s press release, it issued the fact sheet “in response to confusion regarding the legality of [DEI] activities in schools.” Although OCR does not elaborate, stories about the importance of conservative activism around how school teach racism abound. The issues are similar in the Title IX realm, with a small but mighty contingent of challengers to programs for girls such as coding camps, scholarships, grants, and mentorships claiming that such programs, which are aimed to remediate past and current discrimination against women in various spaces, are discriminatory against men.

Does OCR’s fact sheet remove the confusion? Not even close. Keep reading to find out why.