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Over the last two weeks, �鶹��ýIOS wrote twice about the Department of Education’s Office for Civil Rights’ recent “” letter, asking for more clarity about how OCR plans to enforce Title VI. This weekend, OCR began to provide much-needed clarity through a “” document, and promised to update the FAQ as needed. 

While the FAQ document answers key questions, including addressing some points �鶹��ýIOS raised, one more item still needs to be addressed: OCR should expressly incorporate the Supreme Court’s hostile environment harassment standard articulated in Davis v. Monroe County Board of Education when evaluating whether institutional programming creates a hostile environment.  

Key clarifications from the FAQ:

• OCR echoed Attorney General Pam Bondi’s Feb. 5 , confirming that institutional cultural celebrations or historical observations such as Black History Month and International Holocaust Remembrance Day do not violate Title VI.
  • �鶹��ýIOS analysis: We advised colleges not to “overcomply” and prematurely cancel university cultural celebrations. Those that have cancelled events, including Grand View University in Iowa, should restore them.
• The FAQ distinguishes between K-12 classrooms and higher education classrooms, acknowledging that college discussions and coursework on race-related issues are less likely than K-12 programs to create a racially hostile environment.
  • �鶹��ýIOS analysis: This is a win for academic freedom and free expression in higher education. OCR correctly notes the difference between the environs of K-12 and college classrooms — the latter being precisely where difficult discussions should take place. President Trump’s  on DEI also explicitly protected higher education classroom instruction, an exception �鶹��ýIOS has long sought when government actors have attempted to reform campus DEI bureaucracies.

Other parts of the FAQ leave room for additional clarification, particularly regarding the standard for determining when race-related speech can violate Title VI. 

While �鶹��ýIOS does not take a position on affirmative action or other race-conscious practices at institutions, OCR’s interpretation of Title VI and the �鶹��ýIOS for Fair Admissions cases prohibits institutions from maintaining policies or practices that treat students differently based on their race. As the Feb. 14 “Dear Colleague” letter states: 

If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

It’s one thing for OCR to address institutional conduct in its policies or programs — prohibiting the distribution of benefits or the imposition of burdens based on race — but quite another to regulate institutional speech in programs. The FAQ would benefit from additional clarity on how the Supreme Court’s Davis decision applies to institutional speech, including mandatory trainings and institutionally sponsored events or programming. 

OCR should explicitly confirm that when evaluating whether an institution has created a hostile environment, it will only consider conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” as rising to that level. Expressly mentioning the hostile environment harassment standard as articulated in Davis in future FAQ updates would help institutions better understand the difference between unlawful conduct and protected expression. OCR’s clarifications thus far are useful, but it must make this distinction clear going forward.