OCR Issues Fact Sheet on DEI Activities

The United States Department of Education’s Office for Civil Rights (OCR) recently issued a carefully worded fact sheet noting that diversity, equity, and inclusion (DEI) training and activities do not necessarily violate Title VI of the Civil Rights Act of 1964 (Title VI). Title VI prohibits illegal discrimination and harassment based on race, color, and national origin in programs and activities that receive federal financial assistance.

Specifically, OCR stated, Title VI does not categorically prohibit activities such as:

· Diversity, equity, and inclusion training;

· Instruction in or training on the impact of racism or systemic racism;

· Cultural competency training or other nondiscrimination training;

· Efforts to assess or improve school climate, including through 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.

OCR’s fact sheet will likely serve as a Rorschach test for proponents and opponents of DEI training and activities. While some DEI proponents focus on more accurately teaching American history; others, more problematically, focus on teaching all aspects of American history through the lens of real or imputed racism. Likewise, while some DEI opponents focus what they perceive as the overreach of some DEI proponents; others, more problematically, would like to imagine racism never existed or does not exist now. Thus, the radicalism the subject of DEI training tends to generate creates much of the friction.

Significantly, OCR does not take the position DEI training and activities can never violate Title VI. Clearly, intentional illegal discrimination and harassment of members of any protected group, including majority, violates Title VI. This is true regardless whether such discrimination or harassment is called DEI training.