OCR Releases Fact Sheet on DEI Activities

On January 31, 2023, the Department of Education’s Office for Civil Rights (“OCR”) released a fact sheet clarifying that diversity, equity, and inclusion (“DEI”) training and similar activities are generally consistent with civil rights laws, including Title VI of the Civil Rights Act of 1964. The fact sheet was released in part due to confusion regarding the legality of DEI activities.

Title VI prohibits discrimination based on race, color, or national origin in programs or activities that a recipient of federal funding (i.e., elementary, secondary, and postsecondary educational institutions) provides. A violation of Title VI occurs where a recipient of federal funding is responsible for creating a racially hostile environment or where a school or college intentionally treats persons differently or causes harm on the basis of race. A hostile environment exists where conduct is sufficiently severe, pervasive, or persistent to interfere with or limit an individual’s ability to participate in or benefit from programs or activities by a school or college. For example, harassment based on race could result in a finding of unlawful hostile environment.

The fact sheet clarifies that DEI initiatives and activities that are at least in part intended to promote diversity, equity, accessibility, and inclusion, are not prohibited under Title VI. Instead, OCR noted that DEI activities have been implemented by educational institutions to remedy potential violations of Title VI, including:

• “Diversity, equity, and inclusion training;
• Instruction in or training on the impact of racism or systemic racism;
• Cultural competency training or other nondiscrimination trainings;
• Efforts to assess or improve school climate, including through the creation of student, staff, and/or parent teams, use of community focus groups, or use of climate surveys;
• Student assemblies or programs focused on antiharassment or antibullying;
• Investigations of, and issuance of reports concerning the causes of, racial disparities within a school; or
• Use of specific words in school policies, programs, or activities, such as equity, discrimination, inclusion, diversity, systemic racism, or similar terms.”

This fact sheet reaffirms that schools and colleges may implement DEI training and activities to promote a more diverse and accepting community. If you have questions about DEI training and activities or questions about their legality under Title VI, contact the authors of this Alert or any Franczek attorney.