Department of Education Issues Guidance on Balancing Title VI Obligations & Free Speech On Campus

On Tuesday, the United States Department of Education’s Office for Civil Rights (“OCR”) issued a “Dear Colleague” letter (“the letter”) to provide guidance regarding the existing legal requirements under Title VI of the Civil Rights Act of 1964, given recent increases in complaints filed with OCR alleging discrimination in schools and universities. The letter reiterates that Title VI protects against antisemitism and other forms of discrimination based on shared ancestry or ethnic characteristics.

To help schools carry out Title VI’s requirements, the letter provides illustrative examples of how OCR analyzes complaints alleging antisemitic, anti-Israel, and anti-Muslim discrimination. The examples are intended to resemble incidents that have reportedly occurred on campuses across the country in the last few months. For instance, the letter suggests that defacing campus property with antisemitic symbols, using stereotypical slurs against Jewish and Israeli students, and mocking the cultural practices of a Muslim student of Arab descent may all, under certain circumstances, warrant further investigation. These examples do not dictate the outcome of any particular matter or suggest that any specific type of conduct is categorically impermissible under Title VI. Instead, the examples illustrate how OCR would approach analyzing cases based on various factual circumstances, including the nature of the alleged harassment; the student’s actual or perceived race, color, or national origin; and the school’s response to the allegedly harassing conduct.

The letter also acknowledges that addressing discrimination and harassment on campus may raise First Amendment considerations where the alleged conduct involves certain types of speech. To help schools navigate these considerations, the letter highlights a number of non-disciplinary tools that schools may employ when responding to complaints of discrimination or harassment that do not implicate any rights protected by the First Amendment. These tools include communicating the school’s opposition to stereotypical and derogatory language, providing counseling for students affected by harassment, and taking affirmative steps to create a welcoming and inclusive campus environment. 

When reviewing complaints of antisemitism on campus, educational institutions will need to carefully analyze the facts of each complaint to comply with their obligations under Title VI while preserving the free speech rights of students and faculty. O’Melveny’s Education Industries Group is available to consult with clients working through these difficult issues.  

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California; Steven J. Olson, an O’Melveny partner licensed to practice law in California; Matt Cowan, an O’Melveny partner licensed to practice law in California; David N. Kelley, an O’Melveny partner licensed to practice law in New York and Connecticut; Anton Metlitsky, an O'Melveny partner licensed to practice law in the District of Columbia and New York; Damali A. Taylor, an O’Melveny partner licensed to practice law in California and New York; Kim Williams, an O’Melveny partner licensed to practice law in Texas; David Cohen, an O'Melveny counsel licensed to practice law in New York; Brittany Fowler, an O'Melveny counsel licensed to practice law in California and Texas; Ashley E. Robertson, an O’Melveny counsel licensed to practice law in the District of Columbia; Marni Robinow, an O’Melveny counsel licensed to practice law in California; Jennifer B. Sokoler, an O’Melveny counsel licensed to practice law in New York; and Danielle Siegel, an O’Melveny associate licensed to practice law in the District of Columbia and Maryland, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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