The Education Department has released a document with additional guidance for schools trying to implement an earlier “Dear Colleague” letter. That letter, released last month, directed educational institutions to halt a wide range of racially discriminatory behavior.
While the original letter mostly directed schools to follow civil rights law and Supreme Court precedent, a passage restricting Diversity, Equity, and Inclusion (DEI) programs caused concern among some First Amendment experts. The letter stated that such programs frequently “teach students that certain racial groups bear unique moral burdens that others do not” and thus “deny students the ability to participate fully in the life of a school.”
“The way ‘teach’ is going to be interpreted, is going to be very important when looking at this ‘Dear Colleague’ letter,” Robert Shibley, special counsel for campus advocacy at the Foundation for Individual Rights and Expression (FIRE), told Reason last month. “I do think there’s legitimate concerns to be had there. And I think it’s important that the department clarify that sooner rather than later.”
This document attempts to do just that. Thankfully, the letter attempts to assuage free speech concerns, stating that nothing in the new policy “requires or authorizes a school to restrict any rights otherwise protected by the First Amendment.” The document also declared that the department wouldn’t go after any program solely because it uses “specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,'” but rather would focus on outright racial discrimination, which may be part of some DEI programs.
“Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races,” the letter reads. “For example, schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” The letter also clarified that identity-based observances like Black History Month are acceptable, as long as the events are open to all students.
But some ambiguity remains, given the friction between wide-ranging free speech protections and laws that bar colleges from allowing a “hostile environment.”
The “First Amendment rights of students, faculty, and staff, and the curricular prerogatives of states and local school agencies do not relieve schools of their Title VI [of the 1964 Civil Rights Act] obligations not to create hostile environments through race-based policies and stereotypes,” the document reads. “Nor does it relieve them of their duty to respond to racial harassment that creates a hostile environment.” Will this be interpreted so expansively as to go after, say, a peaceful Palestinian protest that is accused of being antisemitic? We’ll soon see.
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