Reforming Title VI to Protect Schools and Students

“Education is a fundamental human right: Every girl and boy in every country is entitled to it. Quality education is critical to development both of societies and of individuals, and it helps pave the way to a successful and productive future. When all children have access to a quality education rooted in human rights and gender equality, it creates a ripple effect of opportunity that influences generations to come.”

-UNICEF[i]

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Introduction

Title VI of the Civil Rights Act of 1964 made important first steps towards addressing and eliminating discrimination in public schools and programs. While a noble endeavor in 1964, the current process overwhelms districts with many unfounded complaints and creates conflicts of interest by requiring districts—the entities under investigation—to self-report. Now, more than fifty years later, it is time for a reformation of the Statute. Modern applications of Title VI undermine school districts and students and fail to effectively end discrimination in public schools because of the emphasis on district self-reporting.

From Brown to Today

Before Title VI, the Supreme Court attempted equality through Brown v. Board of Education and the declaration that school segregation was unconstitutional.[ii] However, “nine years after Brown . . . 99% of the black students in the South were still in 100% black schools.”[iii] It was during this deadlock that President John F. Kennedy called for a major, reformative civil rights act in 1963.[iv] Title VI states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[v] Early applications of Title VI and funding through the ESEA were rigorous and powerful with serious follow-through.[vi] However, today’s efforts are less successful, and the effects of discrimination and segregation remain just as disastrous: students in these situations are “more likely to drop out,” less likely to have access or take advanced placement courses, “and to have much less information from their peer group about college possibilities.”[vii]

How Title VI Works

When there is an allegation of Title VI violations, the Education division of the Office for Civil Rights (“OCR”) handles the matter. To file a Title VI complaint and begin the arduous process, complainants must follow the requirements of 34 C.F.R. § 100.7. After receiving notice of a Title VI violation report, 34 C.F.R. § 100.7 outlines the requirements for an appropriate investigation into the matter.[viii] However, due to the overwhelming number of allegations, OCR often delegates the reporting process to the districts themselves through the “voluntary compliance” route. [ix]

The Problem with Self-Reporting

Self-reporting perpetuates the emphasis on the intent of the accused rather than on the impact to the victim,[x] and creates leaves room for misreporting.[xi] It also opens reports up to inevitable bias. Even the best-intentioned districts could, unchecked, operate under a predisposition to report as favorably as possible for the district. A student facing the implications of inequity in education based on “race, color, or national origin” deserves an impartial report “without prejudice to the substantial rights of the party challenging.”[xii] In the criminal world, a juror that possesses actual bias about some relevant facet of the case cannot participate. Just as a juror could be disqualified from participating for actual bias, so too should school districts be disqualified from taking the “voluntary compliance” route and self-reporting when the circumstances of the case could lead to a loss of vital funding. As it stands now, the OCR is like the judge that receives a full brief from one party and only a letter from the other. Such an approach undermines students, schools, and the ability of the OCR to come to a fair and accurate conclusion.

The Need for Reform

Reform is necessary because the current approach focuses more on retaining funding and punishing wrong-doing than on establishing a system that “determines the ends that the law should produce and then shapes standards of legal liability to achieve them.”[xiii] The end goal is to eliminate discrimination and inequity in public schools. Both sides must be fully represented. Both sides must be given equal resources and opportunity to lay out the facts, situations, and circumstances for the impartial OCR to adequately judge.

Rather than requiring a self-analysis of whether a district has messed up, review and assessment should focus on the end goal of receiving the most accurate information in order to create an equitable system. The focus is not punishing the districts that have floundered—it is achieving a system that provides quality and equal education to all students regardless of “race, color, or national origin.”[xiv] “[I]f the goal of antidiscrimination law is to reduce racial inequity, segregation, or barriers, a defendant’s motives are irrelevant.”[xv]

Conclusion

Public education systems that fail to properly address discrimination will continue to fail a vast majority of students and school districts alike. “While we celebrate victories such as the Civil Rights Act of 1964, those celebrations must be short-lived as there is still much work to do.”[xvi] The current OCR approach to addressing claims of discrimination harms both students and school districts and must be reformed in order for the next step in educational equality to occur. “When we look carefully at [those] . . . whose work brought us the Civil Rights Act and Brown v. Board, we see proof that if we all keep doing our part, we can pick up where they left off and continue their work to finally achieve equity.”[xvii]

[i] The Big Picture, UNICEF, http://www.unicef.org/education/bege_59826.html (last visited Apr. 11, 2016).

[ii] Derek W. Black, Defining Discrimination: Intent, Impact, and the Future of Title VI of the Civil Rights Act of 1964 in The Pursuit of Racial and Ethnic Equality in American Public Schools 143 (Kristi L. Bowman ed., 2014).

[iii] Gary Orfield, Education and Civil Rights: Lessons of Six Decades and Challenges of a Changed Society in The Pursuit of Racial and Ethnic Equality in American Public Schools 407 (Kristi L. Bowman ed., 2014).

[iv] See id.

[v] Title VI, 42 U.S.C. § 2000d.

[vi] See Orfield, supra note 3, at 408.

[vii] Orfield, supra note 3, at 406.

[viii] See 34 C.F.R. § 100.7.

[ix] Education and Title VI, Office for Civil Rights (Oct. 14, 2015),  http://www2.ed.gov/about/offices/list/ocr/docs/

hq43e4.html (“OCR is unable to investigate and review the policies and practices of all institutions receiving ED financial assistance. Therefore, through a program of technical assistance, OCR provides guidance and support to recipient institutions to assist them in voluntarily complying with the law. OCR also informs beneficiaries, such as students and applicants for admission to academic programs, of their rights under Title VI.”)

[x] See Black, supra note 2, at 156.

[xi] See Physical Education and Physical Fitness Title VI Compliance in California Public Schools, CAHPERD (Aug. 13, 2015), https://www.cityprojectca.org/blog/wp-content/uploads/2015/08/Physical-Education-Letter-US-DOE-201508013-final-corrected.pdf.

[xii] Bias, Black’s Law Dictionary, http://thelawdictionary.org/bias/ (last visited Mar. 27, 2016).

[xiii] Black, supra note 2, at 157.

[xiv] Title VI, supra note 5.

[xv] Black, supra note 2, at 157.

[xvi] Allison R. Brown, Equity in Education: The Present and Future of the Civil Rights Act of 1964 in The Pursuit of Racial and Ethnic Equality in American Public Schools 127, 138 (Kristi L. Bowman, ed.).

[xvii] Id.