Not So Fast: OCR’s Fact Sheet on DEI Efforts is Only Half the Story
By Jackie Gharapour Wernz and Ashley L. White
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 the effects of past and current discrimination against women in various spaces—are discriminatory against men.
Does OCR’s fact sheet remove the confusion? Not even close. OCR’s guidance doesn’t go beyond any categorical restatements of—frankly—pretty obvious law. The fact sheet doesn’t address any number of factual scenarios in which OCR itself has found that DEI and female-focused programs violated Title VI or Title IX. For example, University of Michigan-Flint professor Mark J. Perry recently tweeted that based on his complaints with OCR, “Nearly [100 US] colleges and universities agreed this year to change, discontinue or stop promoting 170 female-only or BIPC/Black-only programs, awards, fellowships, and scholarships to correct their violations.” In one publicly available decision from OCR from May 2022, for example, Colorado State University agreed to stop sponsoring only female students to attend a professional development opportunity. In the race arena, the University of California San Francisco is reportedly under investigation by OCR for allegedly having segregated “Racial Affinity Caucusing Groups.” Any K-12 schools districts that feel immune to these types of challenges need only think back to the OCR investigation involving Oak Park River Forest High School District 200, a suburban Chicago school district that OCR found violated Title VI by holding a student assembly entitled “Black Lives Matter” that only African American students were permitted to attend. These educational institutions not only had egg on their faces for losing OCR complaints, but also got the pleasure of entering into monitoring by OCR, which can regularly take years and requires significant resources that could be put to much better use.
So, what is the takeaway for schools, colleges, and universities? Do you need to shy away from DEI or female-focused programming in your educational programs or activities? Not at all! These initiatives are incredibly important and should be priorities. But don’t make the mistake of thinking that OCR’s fact sheet will protect your educational institution if you go about these programs the wrong way. There is still significant risk, particularly because these types of programs are ripe for challenges in our current political climate.
If you aren’t thinking carefully about how your programming may implicate Title IX, Title VI, and even state laws, you are putting a target on your institution’s back. Don’t go it alone. For assistance in implementing your DEI initiatives well, contact one of the authors of this post or any other Thompson & Horton attorney.