The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently issued guidance in the form of a “Dear Colleague” letter to public elementary and secondary schools regarding schools’ legal obligations to provide students with equal access to educational resources without regard to race, color, or national origin.[1] OCR has found that “chronic and widespread racial disparities” persist in access to educational resources such as certain academic programs, extracurricular activities, a stable workforce of effective teachers, safe and appropriate school buildings, modern technology and high-quality instructional materials.[2] OCR’s guidance does not add requirements to applicable law, but it does the following: highlights the importance of protecting students from discrimination in the allocation of resources; serves to support and inform education officials by clarifying their legal obligations; provides information and examples concerning how OCR evaluates whether schools are complying with their legal obligations; and identifies resources that can guide schools in assessing whether resources are equitably available.

Legal Framework

OCR enforces Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving Federal financial assistance. School districts that receive Federal funds are bound by this law and fall within OCR’s jurisdiction.

The Allocation of Educational Resources Can Result in Unlawful Discrimination in Two Ways

In assessing the allocation of educational resources, OCR will investigate and analyze the evidence pursuant to two theories of discrimination – intentional discrimination and disparate impact – to ensure that students are not subjected to unlawful discrimination.[3] OCR applies the following analysis to determine whether a school district intentionally discriminated in the allocation of resources:

• “Did the school district treat a student, or group of students, differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin?”[4] If yes, then:

• “Can the school district articulate a legitimate, nondiscriminatory, educational reason for the different treatment?”[5] If not, then OCR could find that the district has intentionally discriminated on the basis of race. If yes, then:

• “Is the allegedly nondiscriminatory reason a pretext for discrimination?”[6] If yes, then OCR would find that the district has intentionally discriminated on the basis of race.

OCR applies the following analysis to determine whether a school district violated the law by allocating resources in a manner that had an adverse, disparate impact on students of a certain race, color or national origin:

• “Does the school district have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?”[7] If yes, then:

• “Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal?”[8] If the policy or practice is necessary to serve an important educational goal, then OCR would ask:

• “Are there comparably effective alternative policies or practices that would meet the school district’s stated educational goal with less of a discriminatory effect on the disproportionately affected racial group; or, is the identified justification a pretext for discrimination?”[9] If the answer to either question is yes, then OCR would find that the district had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the district had engaged in discrimination.

Some Suggested Steps to Avoid Findings of Discrimination

In addition to investigating complaints that have been filed, OCR’s guidance suggests that it will become more proactive in initiating nationwide compliance reviews focusing on investigating whether schools are providing equal access to educational resources. As a result, districts should take the appropriate measures to ensure that they are compliant with the law prior to an OCR investigation. OCR encourages districts to proactively identify and address racial disparities in resource allocation and the effectiveness of those efforts may reflect favorably on districts in the event of a parent complaint or a random OCR investigation. OCR may randomly investigate a district during a routine audit. The following are some proactive steps that OCR recommends:

• Designate one or more employees to coordinate the district’s compliance with Title VI, including self-assessments of resource comparability. Assessment tools are available on OCR’s website at www.ed.gov/ocr/resourcecomparability.html.

• Provide notice to the school community of rights and responsibilities under Title VI and the procedure by which students, parents and employees may report concerns.

• Review the policies that govern how resources are distributed to certain schools and within schools.

Please contact us if you have any questions about OCR’s guidance or would like assistance reviewing your compliance with Title VI.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014

[1] http://www.ed.gov/news/press-releases/us-education-secretary-announces-guidance-ensure-all-students-have-equal-access-

[2] Id. at pg. 2

[3] Id. at pg. 6

[4] Id.

[5] Id. at pg. 7

[6] Id.

[7] Id. at pg. 8

[8] Id.

[9] Id.