When most people think about discrimination in schools, the battles from the late 20th century over desegregation and busing generally come to mind. Segregated schools are by no means a thing of the past, mostly because of housing patterns. But these days, conflicts over educational discrimination are more likely to involve schools’ treatment of gay or transgender youth, services for children with disabilities, sexual harassment, or bias against students of color in school discipline. When parents sue schools over discrimination—or when governmental agencies get involved in enforcement—they usually rely on federal laws that make it illegal for public schools to discriminate based on students’ ethnicity, sex, and disability.
Discrimination Based on Ethnicity
Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in any programs that receive federal funds—which is true of almost all public schools, as well as many private ones. (See our article on discrimination by private schools.) The Equal Educational Opportunities Act (EEOA) reinforces Title VI by specifically prohibiting public schools from denying equal educational opportunities to students based on their race, color, or national origin.
Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in educational programs or activities. For several years, the U.S. Department of Education’s Office for Civil Rights has interpreted Title IX as covering discrimination based on a student’s failure to conform to gender stereotypes and gender identity. According to a 2016 policy statement, this meant that schools’ treatment of transgender students (including their use of restrooms) should be consistent with their gender identity. But in early 2017, the Trump administration signaled a change in this approach by withdrawing that policy statement. (For more details, see our article on discrimination based on sexual orientation and gender identity.)
Two important federal laws—Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act—prohibit public schools from discriminating against students because of their disabilities. Most people associate these laws with requirements for physical access—things like wheelchair ramps and accessible restrooms. But under Section 504 and relevant federal regulations, public schools must ensure that students with physical and mental disabilities receive an appropriate education. This means providing other kinds of accommodations or services to help with special needs, such as:
- classroom aides
- speech or occupational therapy, and
- individual health plans to address students’ health-related needs (like ensuring that school personnel can quickly give injections to students suffering severe allergic reactions).
The ADA and Section 504 are separate from the Individuals with Disabilities Education Act(IDEA), which requires special education services for children with disabilities. Some students are eligible for services under Section 504 even if they aren’t eligible under IDEA
When Harassment is Discrimination
Harassment based on sex, race, national origin, or disability is a form of illegal discrimination. That means that when school officials know it’s going on, they’re legally obligated to take action to stop the harassment, if it’s so serious that it limits the victim’s ability to participate in or benefit from educational opportunities or activities. And in some circumstances, students (or their parents) can successfully sue a school for not trying to stop the abuse. (For more details, see our FAQ page on suing schools for harassment and other harm.)
What About Religious Discrimination?
Title VI doesn’t directly address discrimination based on religion. But often, religious-based harassment includes slurs (or worse) based on stereotypes about the victims’ ethnicity or national origin—like calling them terrorists because they come from a predominantly Muslim country. In that case, the federal law would apply. And of course, all students have a constitutional right to the free expression of their religion.
Discrimination Against English-Language Learners
Under the EEOA, public schools must take “appropriate action” to overcome language barriers that prevent students from equal participation in educational programs and activities (20 U.S.C. § 1703(f)). Courts have interpreted this requirement as meaning that schools should properly assess the English proficiency of students who aren’t native speakers, provide effective programs to help them gain adequate language skills, and ensure that they continue to receive instruction in the rest of the curriculum. (For example, see Issa v. School District of Lancaster, 847 F.3d 121 (3rd Cir. 2017).)
Talking With a Lawyer
If a school is discriminating against your child based on ethnicity, national origin, sex, or disability, you could file a discrimination complaint with the OCR. But you may also want to speak with a lawyer. For one thing, some observers are questioning whether the OCR, under its leadership during the Trump administration, will continue to enforce rules regarding educational discrimination as aggressively as in the past. Also, an attorney who’s experienced in fields like education, civil rights, or disability law should be able to explain the anti-discrimination laws that apply to your situation—including any state laws that may provide broader protection than federal law. A lawyer can also advise you about any legal reasons (or “grounds”) you might have for filing a lawsuit against the school.