By John Worthington, Esq., Coordinator of Special Education Law
In these times of political volatility and heightened tensions over issues such as the rights of students in various racial and ethnic groups, as well as curricular requirements with respect to these groups, school districts in New Jersey should be aware of recent guidance issued by the United States Department of Education, Office of Civil Rights. The guidance provides clarification of how the OCR reviews and analyzes allegations of inappropriate curricular requirements and racially inclusive practices implemented by school districts. The guidance provides an explanation of the legal criteria for review of district policies, and examples of possible conclusions based on proffered fact patterns. The guidance is located here: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20230824.pdf
When addressing complaints of violations of Title VI by educational institutions, the OCR looks at both express racial classifications, which treat individual students different based on race, and facially neutral policies that, based on their implementation, treat students differently based on race. The OCR assesses express racial classifications pursuant to the following standard:
School programs – including the implementation of curricula or the establishment, recognition, or support of a school group, club, or other extracurricular organization – that treat individual students differently based on their race are subject to “strict scrutiny” review under Title VI. To survive strict scrutiny, a school must demonstrate that any use of an individual student’s race is “narrowly tailored” to further a “compelling” interest. Strict scrutiny is a demanding standard of review that requires a careful and fact-specific analysis.
This standard seldom results in a determination that a school district’s policies are not in violation of Title VI because it is rare when a race-based policy can meet the compelling interest test. OCR offers the following example of a race-based policy and how they would address it.
Example 3: The curriculum for a college course requires that students of different races read different materials based on their race. The college also requires that students complete different written assignments and participate in different discussion groups based on their race. When asked why the college assigned different materials, the college stated that students often feel more comfortable reading works by authors of their own race. A student in the course files a complaint with OCR alleging race discrimination.
OCR would have reason to open an investigation based on this complaint. Because the complaint alleges specific facts that suggest that the college treated students differently based on race, including in the assignment of reading materials, written assignments, and discussion groups, further investigation may be warranted. If OCR’s investigation confirms these allegations, OCR would apply the strict scrutiny standard; examine whether the college’s decision to treat students differently based on race furthers a compelling interest, and, if so, whether the college’s actions were narrowly tailored to achieve that interest. Given the college’s lack of a stated compelling interest, the college’s division of students by their individual race into race-exclusive discussion groups, and the college’s assignment of different reading materials based on individual students’ race, OCR could find that the college’s practice is unlawful as the practice appears to fail to satisfy strict scrutiny.
Typically, at issue when a complaint is filed is a facially neutral policy that treats students differently based on race. OCR sets forth the following standard for reviewing such policies:
B. Racially Discriminatory Application of Facially Neutral Policies Racial discrimination can occur when a school implements or enforces a facially race-neutral policy or practice in a manner that treats students differently based on their race. For example, a school could violate Title VI if it enforces its race-neutral rules related to extracurricular activities in a way that makes it harder for students of a particular race to form a club or hold activities because of their race. OCR frequently uses the following three-step test to determine whether a school treated similarly situated students differently based on race in violation of Title VI:
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- Did the school treat a student or group of students of a particular race differently from a similarly situated student or group of students of another race? If no, then OCR would not find sufficient evidence to determine that the school has engaged in different treatment based on race under this framework. If yes, then move to step two:
- Can the school articulate a legitimate, nondiscriminatory reason for the different treatment? If no, OCR could find that the school has discriminated on the basis of race. If yes, then move to step three:
- Is the articulated reason for the different treatment a pretext for discrimination (i.e., not the true reason for the school’s actions)? If yes, OCR could find that the school has engaged in discrimination based on race. Additionally, to determine whether a school acted with a racially discriminatory purpose, OCR also may consider other factors, such as the racial impact of the challenged action, the historical background of the decision, the specific sequence of events leading up to the challenged decision, departures from normal procedures, and legislative or administrative history. The relevance of the factors will vary based on the context.
The OCR also provides several examples of how these facially neutral policies are assessed. Such examples illustrate that school districts are on solid ground with respect to their policies as long as they are careful to develop policies that in their wording and implementation treat students equally based on race. The following example from OCR illustrates this Point:
Example 1: A local news outlet reports that a nearby public elementary school has launched a new program that requires all students to read a book about race discrimination and racial justice from a list created by the school. OCR receives a complaint alleging that the school is violating Title VI.
OCR may decline to open an investigation based on this complaint. On its face, the requirement to participate seems to apply to all students, and the complaint did not allege that any students had been excluded from the program or treated differently based on race. The complaint also included no allegations suggesting that the school’s program was subjectively and objectively offensive and created a racially hostile environment. Absent other facts, the complaint likely does not raise allegations that warrant investigation under Title VI.
Thus, when assessing their curricular requirements (many of which are state-mandated) and the lesson plans being utilized by teaching staff to implement such requirements, school districts must be careful to evaluate such requirements and plans with an eye toward their impact on different racial groups. For example, if a district implements the New Jersey requirements to teach students about diversity and contributions of different racial groups to society, and mandates that all students read certain texts, such a requirement would likely be determined in conformance to Title VI. However, if the requirement were implemented by requiring that students read materials discussing only the racial group in which they are perceived by the teacher to be a member, such a policy would not survive scrutiny under Title VI.
Consider another example from the USDE guidance, regarding a district’s efforts to respond to a racially charged shooting incident.
Example 7: In the wake of several high-profile police shootings of Black victims, a public school announces that it will convene an assembly for its Black students in order to provide a forum for them to express their frustrations, fears, and concerns. On the day of the event, several white students ask to participate, but school officials turn them away, saying that the program was designed specifically for Black students. OCR later receives a complaint from a parent alleging that the assembly violated Title VI by excluding students based on race.
OCR would have reason to open an investigation based on this complaint. Because the complaint alleges specific facts suggesting that the school limited students’ participation based on their race, further investigation may be warranted. If OCR’s investigation confirms these allegations, OCR would apply the strict scrutiny standard, analyzing whether the school’s decision to limit participation in the assembly on the basis of race furthered a compelling interest, and if so, whether the school’s actions were narrowly tailored to achieve that interest. If the school could not proffer a compelling interest for excluding students on the basis of race, OCR could find that the school’s actions violated Title VI. If a compelling interest was identified, OCR would evaluate whether the exclusion meets the narrow tailoring requirement of strict scrutiny.
While implementing curricular requirements and responding to current events in politically charged times can be intimidating, school districts can place themselves in the best position by reviewing their curricular requirements with a critical eye toward how such policies impact various racial groups on their face and in their implementation. In this regard, it is critical to also review lesson plans for implementing such requirements to ensure that racially neutral curricular requirements are not being converted to racially discriminatory requirements based on their implementation in individual classrooms. While challenges cannot always be avoided, adhering to state curricular mandates in a racially neutral manner, as demonstrated by the above examples, will allow districts to survive challenges to their curriculum.