On Board Online • August 14, 2023
By Merri Rosenberg
Special Correspondent
The Biden administration has announced plans to amend rules affecting schools as part of 100 actions to "counter antisemitism and hate of all kinds."
By December, the U.S. Department of Education (USDOE) plans to propose an amendment to regulations implementing Title VI of the Civil Rights Act of 1964 to specifically address "cases involving harassment and other discrimination based on shared ancestry or ethnic characteristics."
"No student should have to face discrimination or harassment because of their race, color, national origin, shared ancestry, such as Jewish ancestry, or ethnic characteristics," U.S. Secretary of Education Miguel Cardona said in a news release. "Antisemitism has no place in our society, and I am proud that the department will continue to use all available tools to prevent and address antisemitic discrimination in our nation's schools."
So far, the USDOE has issued an advisory with examples of ancestry-based incidents that could violate federal antidiscrimination law. And on May 25, USDOE's Office for Civil Rights issued a "Dear Colleague" letter to remind educators of their legal obligation, under Title VI, to protect students "who experience discrimination, including harassment, based on their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity."
The May 23 Dear Colleague letter (DCL) is advisory guidance and not legally binding on the public or courts, according to Beth L. Harris, a school attorney and partner with Shaw, Perelson, May & Lambert, LLP, in Poughkeepsie. "Rather, this DCL is the USDOE's persuasive interpretation of law," she said. It describes how USDOE's Office for Civil Rights OCR and other federal agencies should proceed when investigating and resolving complaints involving Title VI.
She noted that both the National School Board Association and law professors have previously raised concerns in the context of a different civil rights law, Title IX. They criticized OCR for attempting to effectuate legislative change through Dear Colleague guidance letters rather than following the procedures required to adopt implementing regulations, which includes a mandatory public feedback process. Harris noted that the concerns about Title IX guidance were addressed in regulations that were adopted and went into effect in January of 2020. "Title VI regulations may similarly codify or change existing DCL guidance," she said.
While no specifics about proposed regulatory changes have been shared by the Biden administration, Harris said that existing provisions could be strengthened if they described a standard regarding what kind of evidence is sufficient to demonstrate a Title VI violation.
Also, she said, USDOE could clarify how districts can operate within the law if Title VI regulations:
- Provided a definition of antisemitism.
- Set a timeline for Title VI investigations.
- Specified training requirements for employees.
Harris noted that federal executive orders and guidance letters have called attention to prohibited shared ancestry discrimination for decades.
"Giving equal application of Title VI's protections to persons on the basis of shared ancestry was explained by the USDOE and OCR in 1999, in 2017 and again in former presidential Executive Orders and 2021 OCR policy guidance," she said. All have sought to clarify that Title VI protects persons of a shared ancestry as a protected class, but "Title VI does not itself prohibit discrimination on the basis of religion," she said.
What prompted the Biden administration to revisit the issue? In part, it's a documented increase in antisemitic incidents in schools, as reported to the FBI and as measured by the Anti-Defamation League (ADL).
This past school year, there was a 49% increase in reported antisemitic incidents in K-12 schools nationally, and a 36% increase in New York State, according to Dan Granot, director of government relations for the ADL in Washington, D.C.
"ADL welcomes the Department of Education fulfilling its commitment . by launching the Antisemitism Awareness Campaign and issuing a letter to remind schools of their legal obligations under Title VI of the Civil Rights Act of 1964 to address complaints of harassment and discrimination," Granot said. "I urge all K-12 schools, colleges and universities in New York to take these obligations seriously and work to create safe and inclusive learning environments where Jewish students can thrive."
New regulatory language could also enhance protections for other groups of students, including Muslim students, said Robert McCaw, government affairs director for the Council on American-Islamic Relations.
"It surprises me how often Muslim students are bullied," McCaw said. "It's not happening in a vacuum. Race and religion are intertwined. The Muslim community is one of the most ethnically diverse. One-third of the community is white, and two-thirds are South Asian, Asian, African or African American. Quite often when Muslims are bullied, it occurs across the intersection of many identities.
School districts are also subject to state-level enforcement of anti-discrimination laws. After an investigation by New York's Office of the Attorney General of allegations of race- and gender-based bullying, the Mamaroneck Union Free School District agreed to make policy changes, provide counseling to students and continue to report bullying incidents to state officials (as is required of all school districts).
"The complaints alleged that the Mamaroneck UFSD's lack of action led to students being repeatedly degraded and discriminated against by their classmates for months across various schools within the district," Attorney General Letitia James said in a July 18 news release. "The severity of the harassment interfered with students' ability to learn, socialize and feel safe within their schooling environment."
"While the district does not agree in principle with every aspect of the OAG's review, we believe that entering into the [agreement with the attorney general] is in the best interest of all," district Supt. Robert Shaps said in a letter to the community.
"I commend the leadership of the Mamaroneck UFSD for its work to reach an agreement that puts the needs of students and families first," said State Senator Shelley Mayer. She also praised the attorney general's office for "negotiating such a forward-thinking resolution."
While James' investigation focused primarily on federal civil rights laws, she noted that New York's Dignity for All Students Act (DASA) requires public schools to provide a safe and supportive environment free from discrimination, harassment and bullying. DASA requires schools to investigate and respond to instances of bullying with measures reasonably calculated to end the behavior creating a hostile environment for a student.
For more information on USDOE's views on ancestry discrimination, see bit.ly/3q30Xh0 . The Biden administration has published a 60-page "U.S. National Strategy to Counter Antisemitism" at bit.ly/3QcISI1 .