Continuing a pattern and practice of unconstitutional diktats, OCR now requires schools to ‘promote diversity’ to comply with anti-discrimination laws

Last month, the U.S. Department of Education’s Office for Civil Rights released a letter and resolution agreement regarding book removals at some Forsyth County Schools libraries in Georgia. OCR suggested that reviewing and removing books with sexual content and LGBTQ themes in school libraries creates a discriminatory hostile environment based on race, color, or national origin. If you’re confused about that sentence, you should be, and the legal analysis and arguments employed by OCR to attempt to connect race and sex are extraordinarily perplexing.

FIRE remains concerned about book reviews and removals, but this blog is not about those concerns. Here, we analyze the shoddy, result-oriented legal arguments in OCR’s letter that, left unchallenged, will have significant adverse ramifications for civil rights enforcement around the country. 

Background 

In early 2022, Forsyth County Schools received complaints from parents about the availability of “inappropriate” books in the District’s libraries. Several parents alleged that some books contained strong sexual content and others complained about books containing LGBTQ themes. A committee within the school evaluated the claims and rejected the request to move the books with LGBTQ themes to a different part of the library. At a later school board meeting, some parents continued to complain about the books they alleged contained strong sexual content and books with LGBTQ themes, while others — according to the OCR letter — “made negative comments about diversity and inclusion or critical race theory.” 

OCR’s letter alleges one student commented that the discussion of book removals made the student “fearful,” while another said that “banning books written with diversity silences mainly minority voices.” Another student alleged that “the District does not care about diversity.” The OCR letter provided the further detail that during summer of 2022, the District had a committee of “teachers, media specialists, and parents” temporarily remove and review eight books for explicit sexual content, with seven of the eight eventually returned to library shelves.

OCR’s shoddy legal analysis

Here’s where OCR’s strong-arming comes into play. OCR alleges that because the District heard from students that the discussions about removing books from the library made them uncomfortable, the District was on notice it was creating a “hostile environment” and, in violation of its obligations under federal anti-discrimination laws Title IX and Title VI, failed to take steps to address it. As the letter reads: “All three District witnesses said the District has not taken steps to address with students the impact of the book removals.” 

The present OCR investigation and subsequent resolution agreement (more on that later) arise from no more than alleged student discomfort about policy discussions — and nothing else. But that isn’t how anti-discrimination law works. A school board meeting where parents and board members discuss whether certain books should or should not be in a school library — however illiberal those arguments might be — cannot create a hostile environment, full stop.

Existing Title IX regulations state that sexual harassment creates a hostile environment when the institution has actual knowledge of it and fails to act promptly to respond to it in a manner that is not deliberately indifferent. The regulations track the Supreme Court’s definition of sexual harassment set forth in Davis v. Monroe County Board of Education. The regulations define sexual harassment as “conduct on the basis of sex that is unwelcome and determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

FIRE’s comment to Department of Education: Your proposed Title IX regulations are unconstitutional

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FIRE submitted a public comment criticizing the Department of Education’s proposed Title IX regulations, including the elimination of live hearings.

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But OCR did not use the Title IX regulations in its analysis of whether discussions about removing books with sexual content or LGBTQ themes created a hostile environment based on sex. OCR chose to use Title VI, which prohibits discrimination based on race, color, and national origin, for its analysis. That’s a weird leap, so why do it?

Well, we know OCR is in the midst of rolling back the existing Title IX regulations’ protections on due process and free speech. So instead of relying on regulations prohibiting sex discrimination to determine whether removing books with sexual content and LGBTQ themes violated federal prohibitions on sex discrimination, OCR chose Title VI — even though it has nothing to do with sex — for its analysis. That way, OCR would not be constrained by Title IX’s regulations, and could instead rely on past policies and practices of Title VI enforcement that have not gone through formal notice and comment rulemaking. This suggests OCR’s pigeonholing of Title VI provides a preview of what’s to come in the final Title IX rules, now due out in October. 

OCR’s letter states that Title VI hostile environment occurs when: 

1. A hostile environment based on race, color, or national origin existed;
2. The recipient had actual or constructive notice of a hostile environment based on race, color, or national origin; and 
3. The recipient failed to respond adequately to redress the hostile environment based on race, color or national origin.

The letter then uses a definition that departs from the Supreme Court’s Davis definition of harassment. It states that harassment occurs when: 

the conduct is sufficiently severe, persistent, or pervasive so as to interfere with or limit an individual’s ability to participate in or benefit from the recipient’s program. Harassing acts need not be targeted at the complainant in order to create a hostile environment. The acts may be directed at anyone, and the harassment need not be based on the complainant’s or victim’s race, color, or national origin so long as it is motivated by race, color, or national origin. [Emphasis added.]

So in its departure from the constitutional standard for harassment required by Davis, this alleged Title VI standard only requires “severe, persistent, or pervasive” as opposed to “severe, pervasive, and, objectively offensive.” FIRE’s former executive director and current senior fellow Robert Shibley has written articles about the distinction between the two definitions and why those differences matter.

OCR’s definition doesn’t even require that the conduct be objectively offensive to a reasonable person, making it entirely subjective.

If OCR starts launching investigations into educational institutions based on subjective student feelings — without more — there is essentially no limit on its ability to coerce institutions into politicized resolution agreements.

For harassment to be actionable, Davis also requires that the conduct in question effectively denies a student from an educational program or activity. Contrary to Davis, OCR says the conduct must only “interfere with or limit” a student’s ability to participate in an educational program. The difference between the constitutional standard and OCR’s is stark. Each of the ways OCR’s definition departs from the Davis standard threatens protected speech and renders its approach unconstitutional. 

The letter further states that:

OCR also recognizes the District limited its book screening process to sexually explicit material. Nonetheless, communications at board meetings conveyed the impression that books were being screened to exclude diverse authors and characters, including people who are LGBTQQI+ and authors who are not white, leading to increased fears and possibly harassment. [Emphasis added].

In addition to OCR’s use of an unconstitutional definition of harassment, it then proceeded to argue that discussions of removing books with alleged sexual content were at least motivated by race, color, or national origin, which led to possible harassment based on race, color, or national origin.

In its mere two paragraphs of actual legal analysis, OCR fails to articulate — beyond a vague nod to “communications” — how policy disputes about removing books with sexually explicit content were at all linked to race. It doesn’t even make the case that a hostile environment actually existed. Rather, it just cited a few students reporting that they felt uncomfortable, then goes directly to asserting that because the District did not take steps to address those concerns, it was “possibly harassment.” This result-oriented legal analysis is unbecoming of an agency tasked with unbiased enforcement of our nation’s anti-discrimination laws. And, even worse, it trivializes actual harassment. 

The Resolution Agreement

After OCR’s intervention and investigation, the agency announced that it had entered into a binding resolution agreement with Forsyth County Schools to resolve the complaint. Both Title IX and Title VI have similar formulations. Each prohibits educational institutions receiving federal funds from discriminating against the particular protected classes of individuals. If OCR finds that an institution has discriminated against an individual based on a protected class, it can withhold all federal funding from that institution. While no institution of higher education has ever fully lost access to its federal funding under Title IX, the investigations launched by OCR often end with resolution agreements between OCR and the recipient institution. These agreements require institutions to take certain steps to remedy alleged violations of federal antidiscrimination laws. Because the threat of losing all federal dollars is so severe, institutions in these situations rarely have any incentive or willingness to challenge even those most obviously flawed and unconstitutional Department of Education diktats.

Schools will take note that if they aren’t sufficiently promoting diversity, OCR could come knocking with an investigation that threatens all of their federal funding.

The resolution agreement in this case requires Forsyth County Schools to post, in locations readily available to District students, a statement that the review of books:

Focused on sexually explicit content, and the District did not remove any book based on the sex, gender, gender identity, sexual orientation, race, national origin or color of the book’s author or characters. [Emphasis added].

So we’re clear here: OCR and Forsyth County Schools both agree there were no book removals motivated by classes protected by Title IX or Title VI.

The resolution agreement further required that: 

The District will post…a statement providing…notice that the District strives to provide a global perspective and promote diversity by including in school libraries materials about and by authors and illustrators of all cultures and that the District’s book review criteria for library books includes evaluating whether books promote diversity by including materials about and by authors and illustrators of all cultures. [Emphases added].

To be sure, Title VI prohibits discrimination based on race, color, or national origin. But this resolution agreement that OCR will enforce goes much further than preventing discrimination. It now requires Forsyth County Schools to evaluate books to see if they promote diversity and global perspectives — despite the fact that there is no legal authority that failure to “promote diversity” violates federal anti-discrimination law. If OCR thinks it can require schools to affirmatively “promote diversity” — a term left undefined — what else does the agency think it can get away with?

The implications here are significant. If OCR starts launching investigations into educational institutions based on subjective student feelings — without more — there is essentially no limit on its ability to coerce institutions into politicized resolution agreements. Schools will take note that if they aren’t sufficiently promoting diversity, OCR could come knocking with an investigation that threatens all of their federal funding. That should worry everyone who values fair, unbiased enforcement of our nation’s anti-discrimination laws.