Curriculum Control: Federal vs. State

Lawmakers in 49 states have taken action on Critical Race Theory (CRT). They have adopted or introduced laws that regulate or restrict CRT and diversity, equity, and inclusion (DEI) initiatives. This begs the question – curriculum control: federal vs state, who holds the power?

Schools, colleges, and universities receive federal funding from The Office of Civil Rights (OCR). However, the OCR does not require, direct, or control their curriculum. The State, local, and educational institutions determine curriculum and programing choices, including academic course materials and related discussions.

States that have introduced or passed Critical Race Bans or anti-DEI bills

 

 

Visit CRT Forward to see the legislation adopted or introduced in your specific state at local, state, and federal levels.

What is Title VI?

Title VI is a section of the Civil Rights Act of 1964, controlled by the Federal Government. It prohibits discrimination based on race, color, or national origin. This applies to programs and activities that receive federal financial assistance.

Title VI states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 

Who is required to comply with Title VI?

• Educational institutions – including pre-K, elementary, and secondary public schools and school districts, and public and private colleges, universities, and other postsecondary institutions that receive federal financial assistance.

• School programs – school groups, clubs, extracurricular organizations or activities, assemblies, meetings, focus groups, or listening sessions.

Title VI also applies to other federally funded entities and protects specific individuals. However, this guidance primarily centers on students and their interactions within educational settings.

How does Title VI impact my child’s school curriculum and programming?

In enforcing Title VI, OCR does not do the following:

• Involve itself in complaints based on the content of a school’s curriculum, academic course materials or related discussions.
• Restrict schools from holding assemblies, meetings, focus groups, or listening sessions to hear about students’ experiences with race in the school or surrounding community or to hear students’ ideas about creating inclusivity with attention to race or other aspects of identity that affect students’ experiences at the school or in the world.
• Restrict a school from sponsoring or recognizing extracurricular activities and spaces with race-related themes.

 

Many schools across the country have a long history of offering clubs and activities designed to ensure that students can celebrate their identities and share their common interests and experiences. Programs such as these do not violate Title VI if they are open to all students, regardless of race or ethnicity (e.g., African American Students Association). However, some schools may restrict these programs or events to prevent Title IV violations.

 

What constitutes a violation of Title VI?

1. Unlawful Express Racial Classifications.

Any school program that treats individual students differently based on their race is subject to a “strict scrutiny” review. OCR will open an investigation if there are allegations that the use of a curriculum or program separates students or otherwise treats them differently based on their race.

Title VI regulations specifically prohibit “separate treatment in any matter related to” a person’s receipt of services or any other benefit of the school program.

2. Racially Discriminatory Application of Facially Neutral Policies

This is when a school implements or enforces a rule, regulation, or practice that does not overtly address, or mention issues related to race or ethnicity on the surface.

Example: If a school 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:

• 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?
• Can the school articulate a legitimate, nondiscriminatory reason for the different treatment?
• Is the articulated reason for the different treatment a pretext for discrimination (i.e., not the true reason for the school’s actions)?

Other factors may include: 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.

3. Racial Harassment and Hostile Environment

When a school creates, encourages, accepts, tolerates, or fails to correct a racially hostile educational environment.

OCR could find a Title VI violation in its enforcement work if:

• A hostile environment based on race existed.
• The school had actual or constructive notice of the hostile environment.
• The school failed to take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.

OCR may investigate claims that a curriculum addressing race contributes to a hostile environment. A curriculum is seen as creating a hostile environment if it is found offensive based on overall circumstances. The offense must be severe or pervasive enough to limit or deny someone’s ability to engage in or benefit from the educational program or activity.

Harassment, in this context, is defined as unwelcome race-based conduct that, based on the totality of circumstances, is subjectively and objectively offensive and is so severe or pervasive, that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment). 

 Fact Sheet: Harassment based on Race, Color, or National Origin on School Campuses

The Takeaway:

Defunding DEI programs and removing CRT and Black History from classrooms are not controlled by the OCR. The federal government doesn’t influence curriculum decisions. Curriculum decisions are made at the state, local, or educational institution level. While the federal government doesn’t dictate curriculum, Title VI prevents racial discrimination. Understanding this structure is crucial for advocating change in our children’s education. By staying aware of these guidelines and working together for an inclusive environment, we can enhance the educational experience for all.

 

 

If you suspect a Title VI violation, visit https://ocrcas.ed.gov/contact-ocr. You may also contact OCR’s Customer Service Team at 1-800- 421-3481 or at ocr@ed.gov. If you require language assistance, you may contact OCR by calling 1-800-USA-LEARN (1-800-872-5327). Additional resources are available on http://www.ed.gov/ocr, including prior policy statements, reports, resolution agreements, manuals, brochures, and many other materials.

To read the full letter published by Office of Civil Rights visit: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20230824.pdf