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U.S. Department of Education

Office for Civil Rights 

August 26, 2020 

Dear Educators and Stakeholders: 

The purpose of this guidance is to inform you that the Department of Education

(Department) is withdrawing the following documents: 

1. January 2001 Revised sexual harassment guidance: harassment of students by

school employees, other students, or third parties and the January 25, 2006 Dear

Colleague letter distributing it.

2. September 22, 2017 Q&A on Campus Sexual Misconduct.

3. Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights

Act of 1964, 59 FR 8756 (dated February 23, 1994);

4. Dear Colleague Letter to University Counsels on Use of Race in Admissions and

Financial Aid (July 30, 1996);

5. Letter of July 27, 1990, to Robert S. Peterkin, Superintendent of Schools,

Milwaukee, Wisconsin, from Ted Sanders, Under Secretary, U.S. Department of

Education, enclosing a July 27, 1990 memorandum to Ted Sanders from Richard

D. Komer, Deputy Assistant Secretary for Policy, OCR, on the Milwaukee Choice

Program;

6. Letter of September 21, 1990 to the Honorable Tommy G. Thompson, Governor

of the State of Wisconsin, from Michael Williams, Assistant Secretary for Civil

Rights, and Robert R. Davilla, Assistant Secretary, Office of Special Education

and Rehabilitative Services, on the Milwaukee Parental Choice Program;

7. Letter of March 30, 2001 to John W. Bowen, School Board Attorney for Pinellas

County School Board, Largo, Florida, (and others) from Susan Bowers, Acting

Deputy Assistant Secretary for Civil Rights, and Patricia J. Guard, Acting

Director, Office of Special Education Programs, on Florida’s program of

Scholarships to Public or Private Schools of Choice for Students with Disabilities.

8. May 14, 2014 Guidance on Charter Schools.

OCR-000124
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With respect to Documents 1 and 2, and a subsequent 2006 letter that recirculated 

Document 1, this guidance is now outdated. As of August 14, 2020, the policies and 

procedures therein have been superseded by the Title IX Rule, announced on May 6, 2020 

and published in the Federal Register on May 19, 2020 (85 Fed. Reg., 30026), promulgated 

as regulations implementing Title IX of the Education Amendments of 1972. Those 

regulations are now found in 34 C.F.R. part 106. Note that the Title IX Rule will not be 

enforced retroactively, so to the extent that Document 1 and 2 are helpful to recipients for 

appropriately responding to sexual harassment that allegedly occurred prior to August 14, 

2020, they will remain accessible on the Department’s website. 

Documents 3 and 4 purport to explain the legal framework that governs the use of race in 

financial aid and/or admissions by postsecondary schools under the Constitution and Title 

VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq. Key portions of 

Document 1 and Document 2 have been superseded by subsequent U.S. Supreme Court 

decisions addressing the use of race in higher education, in Fisher v. Univ. of Texas at 

Austin, 136 S. Ct. 2198 (2016) (Fisher II), Fisher v. Univ. of Texas at Austin, 570 U.S. 297 

(2013) (Fisher I), and Grutter v. Bollinger, 539 U.S. 306 (2003). Additionally, these two

documents advocate policy preferences and positions beyond the requirements of the 

Constitution and Title VI. 

With respect to Documents 5, 6, and 7, the memorandum and two letters were originally 

circulated decades ago as stakeholder correspondence addressing specific school-choice 

programs involving student vouchers. The memorandum and letters reached conclusions 

under Section 504 and the regulation in 34 C.F.R. 104.39(a) that State Education Agencies 

(SEAs) are responsible for ensuring that private schools accepting state-funded vouchers 

were subject to parts of Section 504, despite not receiving federal funds. These letters and 

the memorandum associated with them appear to establish a legislative rule, interpreting 

requirements under Section 504 that was not subjected to any public or stakeholder 

comment. 

The Department has determined that the most appropriate interpretation of 34 C.F.R. 

104.39(a) is that, by its own, it applies only to recipients of federal funds that provide 

elementary or secondary education, and therefore does not require that SEAs exercise 

responsibility for ensuring private schools comply with this Section 504 requirement as a 

condition of accepting students who use state-funded vouchers. Accordingly, the 

Department of Education has decided to withdraw the letters and memorandum. However, 

the withdrawal of these documents does not alter or affect the obligation of schools to 

provide equitable services to children with disabilities who are parentally placed in private 

schools and participating in state voucher programs. Such students may be eligible to 

receive special education and related services under the Individuals with Disabilities 

Education Act (IDEA), formerly the Education of the Handicapped Act (EHA). Additional 

information clarifying IDEA’s requirements and the role and responsibility of local 

educational agencies to provide such services to parentally placed students, including 

students participating in state operated voucher programs, is forthcoming. 
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With respect to Document 8, that guidance is predicated on guidance documents that have 

been previously withdrawn by the Department, and purports to interpret the U.S. Supreme 

Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 

1, 551 U.S. 701 (2007).

1 In addition, the Department concludes that other aspects of this 

guidance document advocate policy preferences and positions beyond the requirements of 

the Constitution, Title IV and Title VI. By suggesting to recipients of federal funding that 

they take action or refrain from taking action beyond plain legal requirements, the 

documents are inconsistent with governing principles for agency guidance documents. 

Rather than federal guidance, the best source of information regarding the requirements of 

Title VI and the U.S. Constitution are those authorities themselves, along with decisions 

by the U.S. Supreme Court interpreting them.

The protections afforded to students by Title VI, Title IX, Section 504, and Title II remain 

fully in place to protect students from discrimination. The Department is firmly committed 

to vigorously enforcing civil rights protections on behalf of all students, within the 

boundaries of existing law. This guidance does not add requirements to applicable law. If 

you have questions or are interested in commenting on this letter, please contact the Office 

for Civil Rights at ocr@ed.gov or 800-421-3481 (TDD: 800-877-8339) or, with respect to 

documents 5, 6, and 7, the Office of Special Education and Rehabilitative Services. 

Kimberly M. Richey

Acting Assistant Secretary for Civil Rights

U.S. Department of Education

1 These rescinded documents are the 2011 Guidance on the Voluntary Use of Race to 

Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools 

(rescinded July 3, 2018); OCR and Department of Justice, Questions and Answers About 

Fisher v. University of Texas at Austin (rescinded July 3, 2018); Department of Education 

and Department of Justice, Dear Colleague Letter on Schuette v. Coalition to Defend 

Affirmative Action (rescinded July 3, 2018); and 2014 Dear Colleague Letter on 

Nondiscriminatory Administration of School Discipline (rescinded December 21, 2018).)