OCR Update: Shared Ancestry and Ethnicity Discrimination Guidance

In recent months, OCR has reached resolution agreements with a school district and two universities after investigating complaints of discrimination and harassment based on ancestry or ethnicity, including allegations regarding antisemitic and Islamophobic incidents since October 2023. Additionally, OCR has released numerous guidance documents to guide schools and colleges of their obligations under Title VI of the Civil Rights Act of 1964 (Title VI). Title VI and its regulations, which prohibit discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance, extend protections to those who experience discrimination and harassment based on their actual or perceived shared ancestry or ethnic characteristics, or their citizenship or residency in a country with a dominant religion or distinct religious identity.

Below, we provide a brief overview of recent OCR findings and resources regarding Title VI discrimination based on shared ancestry or ethnicity, as well as some key reminders for schools and colleges regarding their Title VI obligations to students and employees.

Recent OCR resolution agreements

On July 8, 2024, OCR entered into a resolution agreement with Brown University to ensure its compliance with Title VI based on national origin, including shared Jewish, Palestinian, Arab, and/or Muslim ancestry. OCR launched an investigation after a complaint was filed against Brown University in December 2023 that alleged numerous Title VI violations. The investigation found that the university received around 75 reports of alleged antisemitic, anti-Palestinian, and anti-Muslim harassment against students from October 2023 through late March 2024, including allegations of students pointing at a Jewish classmate’s Star of David jewelry and yelling an ethnicity-based insult, a student berating a Palestinian-American roommate about their identity, and students blocking a Jewish classmate from attending a pro-Palestinian rally.

OCR found that Brown University appeared to have not responded sufficiently. It is reported that the response was to acknowledge receipt, provide resources, and request to meet with the complainant. Notably, OCR observed that the university may have conditioned a fuller response on the complainant’s replying to the university’s outreach emails, which OCR stated misapplies the law. OCR opined that under Title VI, once a university has notice of alleged discrimination, it has an obligation to assess whether a hostile learning environment exists, regardless of whether the complainant responds. This is noteworthy given the common practice of conditioning an investigation on receiving a request to investigate.

On June 17, 2024, OCR reached a similar resolution agreement with the University of Michigan regarding its Title VI obligations to students and employees. OCR reviewed the university’s response to a number of allegations based on shared descent and ancestry, including a report of protestors shouting “Nazi liberation” on campus, reports of a Jewish student being targeted on social media, and a student’s report that she had been called a “terrorist” based on her participation in a pro-Palestinian protest. OCR concluded that the university did not comply with Title VI by failing to properly investigate whether these and other reported incidents created a hostile environment for students, faculty, or staff under Title VI. OCR found that the university’s responses to these reports were largely ineffective—for instance, the university only offered informal resolution to the student who voiced concerns about social media harassment, stating that formal resolution was not an option since social media is “largely…protected as free speech.” Similarly, the university offered the student who reported being called a “terrorist” the opportunity to participate in a restorative circle but did not take any further action.

Earlier this year, OCR reached a resolution agreement with Park City School District in Utah, which involved numerous Title VI complaints over a two-year period. OCR investigated allegations that the district was on notice of—and failed to respond promptly or effectively to—widespread student-to-student harassment based on race, national origin, sex, and disability. The majority of the alleged incidents involved racial and antisemitic harassment involving slurs, threats, name-calling, jokes, gestures, symbols, and assaults. OCR found that the district had “repeated” actual notice of such harassment, and that the combined accumulation of harassing incidents created a hostile environment that limited students’ access to education. OCR also found that the district frequently failed to take timely and effective steps to end race- and national origin-based hostile environments, prevent their recurrence, and remedy their effects. Furthermore, OCR found that the district was noncompliant with Title VI’s recordkeeping requirements, which require consistently maintaining records of reports of harassment to the district, the district’s investigations, and responsive measures.

The resolution agreements listed measures that the schools agreed to follow, including, but not limited to:

Revising policies and procedures to ensure all offices comply with Title VI;
Notifying all students, employees, and parents about Title VI prohibitions and protections against discrimination and how to report harassment;
Conducting annual training on nondiscrimination and harassment for all students and employees;
Consistently maintaining records related to complaints or reports of discrimination under Title VI;
Conducting a review of their responses to complaints and taking remedial actions when required;
Conducting climate surveys focused on Title VI discrimination for all students and employees; and
Analyzing and creating action plans in response to climate surveys focused on Title VI discrimination.

Takeaways

OCR’s recent investigations provide a reminder for educational institutions of their obligations under Title VI. In at least one case, OCR found that it was not enough for an institution to update policies and procedures, provide training to students and employees, and respond to and provide referrals to resources to complainants. Even where the institution took proactive steps to increase awareness of and address ancestry and ethnicity discrimination, OCR found that the institution still fell short of its obligations by conditioning a more robust response to reports on the complainant’s participation in an investigation. OCR reiterated that under Title VI, once an institution has notice of alleged discrimination, it has an obligation to assess whether a hostile learning environment exists, whether or not a complainant responds to outreach. Institutions may need to revise their practices to ensure that they respond effectively in cases where the complainant does not seek an investigation.

Recent OCR resources on Title VI obligations

In addition to these resolution agreements, OCR released guidance documents advising institutions on their Title VI obligations to students and employees based on their shared ancestry or ethnicity, in response to the recent proliferation of antisemitic, anti-Palestinian, and anti-Muslim incidents at school districts and college campuses across the country. These OCR resources are linked below:

These and other resources can be found on OCR’s Shared Ancestry or Ethnic Characteristics website here.

If you have any questions regarding these OCR decisions or guidance documents or would like assistance regarding Title VI discrimination or harassment based on shared ancestry or ethnicity, please reach out to a Franczek attorney.

OCR Update: Shared Ancestry and Ethnicity Discrimination Guidance

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