### **OFFICE OF THE ASSISTANT SECRETARY**

September 13, 2004

Dear Colleague:

On the seventeenth day of September, we will observe Constitution Day, commemorating   the final day on which the delegates to the Constitutional Convention met to   sign the document that they had created in 1787. It is appropriate, as we approach   this day of education and remembrance, to address the protections that we receive   through the Constitution and laws of the United States. On this occasion, I   would like to address the right of all students, including students of faith,   to be free from discrimination in our schools and colleges under Title VI of   the Civil Rights Act of 1964 (Title VI) and Title IX of the Education Amendments   Act of 1972 (Title IX).

The Office for Civil Rights (OCR) of the U.S. Department of Education (the   Department) ensures compliance by recipients of the Department’s financial   assistance with federal laws prohibiting discrimination on the basis of race,   national origin, sex, disability, or age, or in the access of certain patriotic   organizations to school facilities. Other agencies, including the United States   Department of Justice, ensure compliance with federal laws prohibiting discrimination   on the basis of religion. The Department of Justice recently reaffirmed its   commitment to enforce civil rights laws protecting students perceived to be   of Middle Eastern or South Asian descent from religious and national origin   discrimination in a letter to state boards of education. This Department issued   Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary   Schools on February 7, 2003.   Although OCR’s jurisdiction does not extend to religious discrimination,   OCR does aggressively enforce Title VI, which prohibits discrimination on the   basis of race or national origin, and Title IX, which prohibits discrimination   on the basis of sex. In OCR’s experience, some cases of religious discrimination   may also involve racial, ethnic or sex discrimination.

 OCR has recently addressed two kinds of race and sex discrimination allegations   commingled with allegations of religious discrimination. First, since the attacks   of September 11, 2001, OCR has received complaints of race or national origin   harassment commingled with aspects of religious discrimination against Arab   Muslim, Sikh, and Jewish students. Second, OCR has recently encountered allegations   of racial and sex discrimination commingled with allegations of religious discrimination   against Christian students. OCR does not tolerate either of these forms of harassment,   which are prohibited by Title VI and Title IX. 

As we pass the third anniversary of September 11, 2001, we must remain particularly   attentive to the claims of students who may be targeted for harassment based   on their membership in groups that exhibit both ethnic and religious characteristics,   such as Arab Muslims, Jewish Americans and Sikhs. President George W. Bush and   Secretary Rod Paige have both condemned such acts of bigotry. As President Bush   has said, “those who feel like they can intimidate our fellow citizens   to take out their anger don’t represent the best of America, they represent   the worst of humankind, and they should be ashamed of their behavior.”   OCR has conducted countless outreach initiatives since September 11, 2001, to   assure members of affected communities that their civil rights will be protected.   Groups that face discrimination on the basis of shared ethnic characteristics   may not be denied the protection of our civil rights laws on the ground that   they also share a common faith. Similarly, the existence of facts indicative   of religious discrimination does not divest OCR of jurisdiction to investigate   and remedy allegations of race or ethnic discrimination. OCR will exercise its   jurisdiction to enforce the Title VI prohibition against national origin discrimination,   regardless of whether the groups targeted for discrimination also exhibit religious   characteristics. Thus, for example, OCR aggressively investigates alleged race   or ethnic harassment against Arab Muslim, Sikh and Jewish students. 

OCR has also recently investigated allegations of race and sex discrimination   against white, male Christian students. In one unfortunate incident, a white   male undergraduate student was harassed by a professor for expressing conservative   Christian views in a classroom discussion regarding homosexuality. Just last   year, OCR issued a “Dear Colleague” letter admonishing recipients   of federal financial assistance that “schools in regulating the conduct   of students and faculty to prevent or redress discrimination must formulate,   interpret, and apply their rules in a manner that respects the legal rights   of students and faculty, including those court precedents interpreting the concept   of free speech.” No OCR policy should be construed to permit, much less   to require, any form of religious discrimination or any encroachment upon the   free exercise of religion. While OCR lacks jurisdiction to prohibit discrimination   against students based on religion per se, OCR will aggressively prosecute harassment   of religious students who are targeted on the basis of race or gender, as well   as racial or gender harassment of students who are targeted on the basis of   religion.

As we observe Constitution Day this year, I hope that you will join me in reaffirming   our commitment to the protection of basic civil rights and civil liberties,   including the right of students of all faiths to be free from invidious discrimination.   As Secretary Rod Paige has said, “Working together, we can make sure that   our children get a good education in a safe environment that does not tolerate   violence and hatred.”

 Sincerely,  Kenneth L. Marcus  Deputy Assistant Secretary for Enforcement  Delegated the Authority of the Assistant Secretary   for Civil Rights

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