The Department of Education released new guidance reminding schools, including colleges and universities, of their legal obligations under Title VI of the Civil Rights Act regarding race, color, and national origin discrimination. The guidance, which specifically addresses school programing involving race, appears to be designed to address legal questions that have emerged amidst political battles over diversity, equity, and inclusion (DEI) initiatives, particularly in the aftermath of the Supreme Court’s affirmative action ruling.  

In the guidance, the Department reaffirms that Title VI prohibits multiple forms of discrimination, including: (1) policies that expressly treat individuals differently based on race; (2) race-neutral policies that have a disparate impact based on race; and (3) racial harassment or a hostile environment based on race. The guidance also describes the Department’s likely enforcement response based on common scenarios involving race on campus. For example, the Department notes that it is unlikely to open an investigation into a complaint about a curriculum requirement that all students read a book on race discrimination because such a requirement is imposed equally on all students and does not treat them differently based on race. 

The guidance also notes that Title VI generally does not restrict institutions from holding assemblies, meetings, or listening sessions on race-related topics, nor does the statute prevent campuses from sponsoring or recognizing extracurricular activities and spaces with race-related themes, so long as such activities are open to all students regardless of race. According to the Department, such activities are generally welcome under Title VI because they may aid in promoting racially inclusive campuses and avoiding violations of Title VI.