February 2, 2023
On Jan. 31, 2023, the U.S. Department of Education Office for Civil Rights (OCR) published a fact sheet titled “Diversity and Inclusion Activities Under Title VI.” Title VI prohibits discrimination based on race, color or national origin in the programs or activities of all recipients of federal financial assistance, including almost all public K-12 schools and many public and private colleges and universities. In this two-page release, OCR clarified that “in most factual circumstances,” diversity, equity and inclusion training and similar activities conducted in schools are “consistent with” Title VI of the Civil Rights Act of 1964.
This fact sheet comes in response to an apparent “confusion regarding the legality of diversity, equity and inclusion activities in schools.” In the fact sheet, OCR made it clear that activities intended, in whole or in part, to further objectives such as diversity, equity, accessibility and inclusion are “not generally or categorically prohibited under Title VI.” Such activities include:
OCR stated that these activities also do not “categorically create a hostile environment based on race,” and instead signal a productive means to remedy potential discrimination, provide remedial measures to address harassing conduct, and foster a more positive and inclusive school climate. Furthermore, OCR emphasized that diversity, equity and inclusion training and similar activities sometimes actually serve as the agreed-upon remedies between OCR and schools that violated Title VI.
OCR’s fact sheet presents some tension with states that have adopted laws or guidance that either prohibit or scrutinize diversity, equity and inclusion training efforts. Schools subject to Title VI in states such as Florida and Virginia should consult with counsel to confirm that any offered diversity, equity and inclusion training does not violate state or local law.
Moreover, while diversity, equity and inclusion training is not “categorically prohibited” under Title VI, OCR did emphasize that it will still assess the totality of the circumstances of each particular case to determine whether diversity, equity and inclusion training and similar activities result in prohibited Title VI discrimination. This suggests that some diversity, equity and inclusion activities may be considered discrimination under Title VI — for example, programs that exclude someone on the basis of race. Therefore, schools subject to Title VI intending to conduct diversity, equity and inclusion training should have counsel review the contents, goals and audiences of their training to ensure compliance with Title VI and any other applicable state or federal laws.
Schools should further note that OCR’s list of not-categorically-prohibited diversity, equity and inclusion initiatives does not include scholarships based on race, national origin or color. While they may be intended to promote diversity, equity and inclusion, such initiatives potentially violate Title VI. OCR has investigated complaints against colleges and universities that offer scholarships where one of the criteria is expressly race. While schools that receive federal financial assistance may consider other factors, such as an applicant’s contribution or commitment to diversity, as part of the criteria for a scholarship, they should carefully consider providing expressly race-based scholarships. Schools should also carefully consider sex- or gender-based scholarships, which may run afoul of Title IX of the Education Amendments of 1972.
McGuireWoods’ dedicated education team is available to assist educational institutions and will continue to track updates in this space. Please contact the authors of this alert or your McGuireWoods contact for additional information.