victim of discrimination case study

Victims of Discrimination Have No Path to Justice Following Supreme Court Decision

When Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama in 1955, our laws did not provide any recourse against the discrimination she faced. In the decades that followed, organizers and civil rights groups won key battles to expand our laws to protect against discrimination for Black people, women, and people with disabilities. Until recently, thanks to the groundwork laid by people like Parks, people who faced discrimination could seek damages for the emotional distress they endured. But the U.S. Supreme Court blocked that avenue for relief in Cummings v. Premier Rehab Keller, P.L.L.C , turning its back on our communities and effectively making such discrimination legal.

In its decision , the court guts key civil rights remedies by revoking the right of victims of race, sex, and disability discrimination to recover emotional distress damages — essentially blocking victims from bringing lawsuits at all.

Until recently, people who faced discrimination could seek damages for the emotional distress they endured. But the U.S. Supreme Court blocked that avenue for relief.

Though often excluded from discussions of the court’s radical shift to the right, the egregious impact of this decision cannot be understated. After Cummings , discrimination cases that cannot show economic harm will never see the light of day. So, providers who turn away people with disabilities because they cannot be bothered to provide accommodations, or doctors who are openly racist to patients, would face no consequence for their obvious discrimination.

In its amicus brief the ACLU, the NAACP Legal Defense Fund, and the National Women’s Law Center highlighted a number of discrimination cases that would be affected by this decision. In each of these cases, emotional distress damages are the primary tool used to seek justice for victims. In Franklin v. Gwinnett County Public Schools , for example, in which a young girl was sexually harassed by her teacher, the injuries required damages only for emotional, not economic, harm. Similarly, in Zeno v. Pine Plains Central School District , in which a Black student suffered racial harassment and assault for more than three years, damages that addressed the psychological harm on the student were the only way to hold the school accountable.

After Cummings , cases like these will be nearly impossible to bring. Here’s what you need to know about this shameful decision.

What happened in this case?

Jane Cummings, who is deaf and legally blind, was denied services from a physical therapist’s office — Premier Rehab Keller — because of her disability. The office refused to provide Cummings with an American Sign Language interpreter at her sessions, although they were required to under federal anti-discrimination laws.

Cummings was forced to find a different physical therapist, but filed a lawsuit against Premier Rehab for violating the anti-discrimination rules in the Rehabilitation Act of 1973 and the Affordable Care Act (ACA).

In her case, as is the case for many Americans who experience discrimination due to their identity, the lawsuit sought damages for emotional distress. Emotional distress damages are often critical to discrimination cases, compensating victims for lasting harms like anxiety, depression, and post-traumatic stress disorder.

What did the court say?

The issue, in this case, was not whether Cummings was discriminated against, but rather what to do in response to the discrimination she faced. The Supreme Court’s answer? Nothing could be done.

For the first time, the court held that emotional distress damages were not recoverable in a private action to enforce anti-discrimination laws. In its argument, the court applied contract law to hold that damages cannot include compensation for emotional suffering since emotional distress damages are not traditionally available in suits of breach of contract.

Despite studies routinely showing that discrimination can cause significant emotional damage, potentially affecting a person’s stress levels, self-esteem, blood pressure, and overall mental health, the court claimed these harms do not warrant a remedy.

What does this mean for victims of discrimination?

The impact of this decision is far reaching. Practically, this decision means that while emotional injury is often the primary, and at times the only, harm caused by discrimination, victims will not be able seek justice.Without emotional distress remedies, many discrimination cases in progress will be thrown out, and future cases will not be taken up by lawyers at all.

While the facts of this case concerned disability discrimination under the Rehabilitation Act and the ACA, its ruling also applies to Title VI of the Civil Rights Act of 1964 (prohibiting race discrimination) and Title IX of the Education Amendments of 1972 (prohibiting sex discrimination). This means the decision will affect kids in schools, people who experience sexual harassment and abuse, and many other victims of race and sex discrimination.

Cummings not only prevents these individuals from seeking justice, but also leaves them at greater risk under the weakened anti-discrimination laws. In the past, the strength of these laws has relied on the deterrent effect of lawsuits brought by private actors. Now, many victims will be unable to bring a case, making it all the more difficult to hold violators of these laws accountable.

With this decision, key wins fought for by civil rights activists like Rosa Parks are stripped away. Rosa Parks suffered no economic harm from sitting in the back of the bus. She lost no job. The bus still took her where she needed to go. But the injury she suffered — the indignity and stigma of being segregated and relegated to the back — was real. Now, the court has effectively told Rosa Parks, “So what?”

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Case study 1: darlene, page controls, page content.

As part of a government program, Darlene, a grade 12 graduate, got a job with a local garden nursery. She was to help Mr. M., the owner, tend plants and shrubs, place orders and serve customers.

Mr. M's first review of Darlene's work showed that she was performing all her job duties exceedingly well. It was obvious that Darlene liked the work.

Over the next three months, Mr. M's behaviour toward Darlene began to change. As they worked, he would often put his hands on her shoulders and hips or lean over closer to her. At these times, she would quickly draw away from him. He then began to make offhand remarks about how he was sick of his wife and that he needed “satisfaction” from another woman.

Darlene did not encourage the comments or actions, nor did she say anything against them. However, she was becoming increasingly uncomfortable with the situation and tried to avoid the owner as much as possible. One day, Mr. M. asked her for a kiss. When she refused, he said “I know what's wrong with you. You're scared you're going to like it.”  A few days later, Mr. M. suggested that she come to his apartment to have sex with him. Darlene firmly refused, saying that she was seriously involved with her boyfriend. On several other occasions, the owner tried to get Darlene to come to his apartment.

In June, Mr. M. terminated Darlene's employment, saying he had no work for her, even though June is the busiest month of the year for the nursery.

Group discussion questions

• Did the nursery owner violate the  Human Rights Code ? If so, how?
• When Darlene first became uncomfortable with the nursery owner's  behaviour, why wouldn't she have said something?
• In this situation, would Darlene have had to say anything to the nursery  owner for him to know that he might be violating the  Code ?
• Is Darlene's termination a factor when assessing if her rights were violated?

Case study 2: Paramvir

In response to increased violence in its schools, a local school board adopted a policy prohibiting carrying weapons on school grounds. The following spring, the school administration learned that Paramvir, a Khalsa Sikh, was wearing a kirpan in school. The school wanted to implement its “no weapons” policy.

Of the estimated 250,000 Sikhs living in Canada at the time, more than 10% are Khalsa Sikhs—they have gone through the Amrit ceremony, symbolizing spiritual commitment. One of the duties of the Khalsa Sikh is to carry, at all times on his or her person, a kirpan, an article of faith symbolizing a spiritual commitment to law and morality, justice and order. A kirpan is a steel knife, encased and secured in a sheath, and generally worn out of sight under normal clothing.

After prolonged discussions with Paramvir's family and Sikh organizations, the school board amended its weapons policy to include kirpans. It forbade Sikh students to wear the kirpan to school—they could only wear a symbolic representation of the kirpan, provided it did not involve a metal blade that could be used as a weapon.

A Sikh teacher took the case to the Tribunal. At the hearing, it was argued that Sikh religious practices dictate that the kirpan must be made of iron or steel and worn at all times, otherwise the Khalsa would break their holy vows. It was shown that, while the kirpan has the appearance of a weapon, it has never been used in Canada as a weapon. Furthermore, it was argued that other school boards did not have a policy restricting kirpans. 

The school board argued that:

• Education was not a service covered by the Ontario  Human Rights Code  but was instead under the jurisdiction of the  Education Act
• The kirpan posed a risk as it looked like, and could be used as, a weapon
• Others could perceive the kirpan as an invitation to violence.
• Does the  Code  prevail, or have “primacy,” over the  Education Act ?
• Did the weapons policy discriminate against Khalsa Sikhs? How?
• Was the policy reasonable? Suggest some ways the school board  could accommodate Khalsa Sikhs without undue hardship – for example,  posing a safety risk?

Case study 3: Danté

After months of searching for a weekend job, Danté, who is Black, finally got an interview with the owner of a busy car wash and gas station. The owner seemed reluctant to hire him, but Danté managed to win him over. The owner gave him the job, saying that he would be working on a weekend shift with seven other young men, all students from the local area. The shift manager would train him on the car wash equipment.

On Danté's first day, the shift manager gave him only a few minutes of instruction on the equipment. Danté watched what the other men were doing, but when he asked questions, they were not very helpful.

Over the next few weekends, Danté concentrated on his work but because of certain events, he increasingly began to stay by himself. A few co-workers invited him to join their little group for lunch or breaks, but others consistently cracked ethnic and racial jokes, often within hearing of the shift manager. One day Danté overheard the manager say that Black people were responsible for increased violence in the community. This statement encouraged some co-workers, who had previously eaten lunch with Danté, to tell a couple of jokes about Black people. When they glanced at him as they told their jokes, he got up and walked away.

One busy Saturday afternoon, a whole section of the car wash equipment broke down because someone had allowed the system to become overheated. Danté had worked on that section until his break, when a co-worker took over. The system had broken down at some point after that.

The shift manager was furious and accused Danté of negligence. Danté replied that he believed the system was fine when he left for his break. Although Danté insisted that the equipment failure was not his fault, the shift manager fired him. Dante believed he was discriminated against because he is Black, while his co-workers and managers are White.

• Did the shift manager have good reason for firing Danté? Why?
• What factors would a human rights tribunal take into consideration?

Case study 4: Tammy

By age 11, Tammy had bowled for five years in the local recreation league. She and several others qualified to enter a province-wide competition sponsored by the Youth Bowling Council.

Tammy has cerebral palsy and uses a wheelchair, but she has some movement and coordination. So she could bowl, her father built a wooden ramp, the top of which rests in Tammy's lap. She lines up the ramp towards the bowling pins and lets the ball roll down the ramp.

Just before the competition, the Council ruled that Tammy was ineligible to take part. While the Council's rules allowed persons with disabilities to use special equipment to assist them in recreational bowling (provided the equipment did not add force or speed to the ball), they prohibited the use of such equipment in competitions.

The Tribunal and later the Supreme Court of Ontario heard Tammy’s application. The Youth Bowling Council argued that it had not violated her rights under the  Code , because Tammy wasn’t capable of the essential requirement of bowling—manually releasing the ball. The Council also contended that the use of special devices would make competition between the bowlers unfair, because the skills assessed would not be common to all competitors.

Tammy's lawyers argued that Tammy was bowling—she was using the ball to knock down pins. Also, the Youth Bowling Council had a duty to accommodate her under the  Code  by allowing her to use the ramp. Speed and accuracy tests showed that Tammy did not gain any advantage over other bowlers. Her ball speed was too low for maximum results and her accuracy no better than average.

• Could Tammy perform the essential requirement of bowling? Should this  argument have been a factor in determining whether a violation occurred?
• Should the Council have to accommodate Tammy (for example, should they  allow her to bowl in competitions with the ramp)?
• Would the Council experience undue hardship if it accommodated her in competitions? Would it change the sport too much? Give your reasons.

Case study 5: Kyle

Kyle is a young man who went to The Barking Frog, a bar in London, Ontario. He went on a “Ladies” Night,” when women are charged a lower cover charge than men. Bars across Ontario (and indeed across Canada and parts of the United States) routinely hold what are commonly called ladies’ nights, where women are charged a lower cover charge or no cover charge to enter the bar or are given discounts on their drinks. This practice has been common in Ontario and elsewhere for decades.

Kyle went to The Barking Frog, where the doorman told him the cover charge was $20 for the men but only $10 for the women in the group. Kyle was upset and was unwilling to pay the $20, so he did not enter the bar.

Kyle launched a human rights complaint claiming the different cover charges amounted to discrimination based on the ground of sex.

• Did Kyle face discrimination? If so, what type?
• What factors would be taken into account to determine if this differential  treatment violated the  Code ?
• How is substantive equality different from formal equality?

Case study 6: Rita

Rita and her family moved to the city from a remote community in the middle of the school year. Within a week, Rita was registered at the local high school and began attending classes. She travelled to and from school by school bus.

After two weeks at the new school, Rita was just beginning to settle into her classes. However, she was somewhat nervous about her history course. After her first class, the teacher made it clear that Rita had a lot of “catching up” to do, if she were to pass the course.

The following week, some students gave a presentation on Columbus' voyage in 1492 to the “New World.” There was lively discussion, and readings and prints were circulated depicting Columbus' arrival in various territories. There were several references made to “Indians and savages” that the colonists “had to defeat” to settle the New World.

As a member of the Cree Band, Rita was dismayed by the way the teacher portrayed Aboriginal persons in the presentation. She approached her teacher before class the next day to discuss the issue. As the class began, the teacher announced that Rita had concerns with the Columbus presentation. She then turned to Rita and asked her to give her version of the “Columbus discovery” from an Aboriginal point of view.

Caught off guard, Rita haltingly made several points, and then sat down quickly when several of the students began to snicker. Later that day on the bus ride home, some of the other students jeered at her, saying if she didn't like history the way it was taught, then she should drop out. She turned away and ignored them. The next day, the jeering continued in the hallway. When she went to her locker at lunch, someone had scrawled the words “gone hunting” on her locker door. Again, she ignored the curious students around her.

Rita told her parents about the incidents. They called the principal, who said she would give “hell” to the offenders. She also suggested that Rita should make more of an effort to fit in and get along with others.

• How should the teacher have handled Rita's concern over the  Columbus presentation?
• Should the principal deal with the situation in a different way?

Case study 7: Cindy

Cindy, 19, applied for a job at a nursing home as a nursing aide. She had previously worked part-time as a kindergarten teacher's aide and had also cared for children with mental and physical disabilities during her high school years. In her initial interview, the assistant administrator told Cindy she was an ideal candidate and that she probably would be hired.

She was given a pre-employment medical examination for her family doctor to complete. He confirmed that she could meet the requirement of being able to lift patients.

At a second meeting, the interviewer reviewed the completed medical form and noticed Cindy's hand. During the initial interview, the assistant administrator had not observed her left hand, on which the index, middle and ring fingers were much shorter than those on most hands. Following this, the interviewer and another nursing director spent much time discussing Cindy's disability and the job requirements. Even though they both really wanted to hire Cindy, they didn’t think she would be able to cope with the gripping or clasping that is needed to lift patients.

Although Cindy said she could perform the duties and had done similar tasks in her previous job with children with disabilities, she was not hired.

• Did the interviewer have reasonable grounds to believe that Cindy  could not do the job?
• On what basis did the interviewers assess that Cindy could not meet  a  bona fide  job requirement?
• What do you think the interviewer and the nursing director should have  decided? What are your reasons?

Case study 8: Maria

When Maria began working for the packaging company in 2003, her first name was Tony. She was hired as a general labourer on August 24, 2003. In 2008, she was accepted in the gender identity clinic and began transition from living as a man to living as a woman. She started the process of sex reassignment and developed female breasts as a result of hormone treatments. Maria says that she was harassed, subjected to a poisoned work environment and dismissed – all violations of the  Human Rights Code .

Maria said that Gerry, a lead hand and machine operator, played a central role in the harassment and the incident that led to her dismissal. The packing company said the allegations never happened. The company argued that it treated the applicant appropriately, considering her a man and treating her like other men until it received medical or legal documentation that she was a woman. They say they fired her because of her attitude and being involved in workplace conflicts that were her fault, as well as insubordination.

• In what ways do you think Maria might have experienced discrimination  in her employment?
• What reasons do you think Maria's supervisor would give for firing her?  What do you think of these reasons?
• What remedy do you think Maria should receive because she was  discriminated against?

Case study 9: Tawney

Tawney worked as a forest firefighter for the Province of British Columbia and was a member of the Initial Attack Forest Firefighting crew for a small area in the forests of BC. The crew’s job was to attack and suppress forest fires while they were small and could be easily contained. Her supervisors found her work satisfactory and had no reason to question her continuing ability to do the work safely and effectively.

After she had been successfully doing this job for three years, the government adopted a new series of fitness tests for forest firefighters. The tests were developed in response to a Coroner’s Inquest Report that recommended that only physically fit employees be assigned as front-line forest firefighters for safety reasons. The tests required that forest firefighters weigh less than 200 lbs. (with their equipment) and complete a run, an upright rowing exercise, and a pump carrying/hose dragging exercise within stipulated times.

The running test was designed to test the forest firefighters’ aerobic fitness. Subjects were required to run 2.5 kilometres in 11 minutes. After four attempts, Tawney failed to meet the aerobic standard, running the distance in 11 minutes and 49.4 seconds instead of the required 11 minutes. As a result, she was laid off.

Stating that the test unfairly discriminated against women, Tawney’s union brought a grievance on her behalf.

• ​ What do you think about having different standards for men and women?
• Do you think the test was a fair way of measuring a firefighter’s ability  to do the job?
• If Tawney was passed, even though her running time was below what  was required, is she being given preferential treatment over men?

Case study 10: Réjeanne

Based on  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , [1999] 1 SCR 381 — 1999-02-24 Supreme Court of Canada — Canada (Federal)  http://canlii.ca/t/1fqmp

Réjeanne lived in Montreal. Her career goal was to become a horticulturalist. She had successfully passed a college course and completed an apprenticeship as a gardener with the city’s Botanical Gardens. When a suitable opening came up to work as a horticulturalist with the city, she immediately sent in her application.

Réjeanne was fully qualified for the position and was invited for an interview. She successfully passed the interview. However, she also had to undergo a physical check-up to confirm her suitability for the job. This check-up indicated she had a slight curvature of the spine called  scoliosis . Réjeanne was surprised to learn this, as she had never experienced any symptoms from this relatively common condition. In fact, she had never experienced any pain, nor had she suffered any limitation on her because of her condition. A later evaluation showed that Réjeanne was able to perform all the duties of a gardener-horticulturalist in complete safety to herself and others, and that there was no need to limit her duties.

When it became aware of Réjeanne’s condition, the city decided to hire another candidate who it thought would be less of a risk for back problems and therefore unlikely to incur increased health care costs later on. The city rationalized its decision saying that it had the right and even the responsibility to employ individuals who would pose the least potential cost to taxpayers.

Believing the city had rejected her application because of a handicap, Réjeanne made a complaint to the Human Rights Tribunal. Réjeanne alleged that the city acted in a discriminatory way that deprived her of unemployment insurance benefits, caused her a high level of stress and deeply humiliated her. The city responded that because Réjeanne had no functional limitations, it could not be said that she had a disability under Quebec’s  Charter of Human Rights and Freedoms .

• Why do you think that the city should or should not have hired Réjeanne?
• If it is possible that Réjeanne will develop back problems, do you think that  the city did the right thing by not hiring her?
• Do you think society’s view towards persons with disabilities has a positive  or negative impact on the barriers they face?

Case study 11: Alia and Ahmed

There are many people in Ontario who are deaf, deafened or hard of hearing. Some people may use sign language as their first language or preferred means of communication, and their inability in English will seriously impede their ability to communicate unless aided by interpretation. For these Ontarians, effective communication and getting fair access to services and employment is very hard.

Alia and Ahmed are parents who were both born deaf. They were expecting twins and would usually provide their own sign language interpreters for their medical visits. Unless an interpreter was present, communicating information was often frustrating for them. At the same time, any miscommunication about medical information could be dangerous.

Alia went into labour eight months into her pregnancy. She and her husband found themselves at the hospital without the aid of an interpreter. Neither the attending doctor nor the nurses could effectively communicate with the parents, who found this isolation difficult and frightening. After the babies were born, they were immediately taken away from the delivery room and put under observation in another area of the hospital. One nurse wrote on a piece of paper that the children were “fine.” Otherwise, no one gave any details about the twins’ condition to either Alia or Ahmed.

In their human rights complaint, Alia and Ahmed alleged that the hospital was providing unequal services because it did not accommodate their needs as deaf persons. The hospital replied that it was too hard to bring in interpreters on such short notice, and that it was too expensive to keep interpreters on call 24 hours a day.

• How would you feel if you were in the same situation as Alia or Ahmed?
• Whose responsibility is it to provide sign language interpreters in public  service sectors?
• How would this claim be covered under the  Code ?
• Do you think it’s unreasonable for deaf people to expect interpreters  to be available in emergency situations? What about in other non- emergency situations?

Case study 12: Marc

Marc is a gay 17-year-old student attending a publicly-funded Catholic high school. He wishes to go to the prom with a same-sex date. The prom is being held at a rental hall off school property.

The school principal and the Catholic School Board have said no on the grounds that this would be endorsing conduct contrary to the church’s teachings. Marc believes that this is a violation of his human rights. He is considering seeking a court injunction because the prom is only weeks away.

• What ground and social area does Marc’s application fall under?
• What competing rights are involved here? 

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Case Summaries

Beneath the title of each case summary below are links that connect to lists of similar cases sorted by topic areas relevant to each case by protected class . Links within each case summary connect to important case documents including complaints, briefs, settlement agreements, consent decrees, orders, and press releases.

On March 18, 2004, the United States Attorney's Office for the Southern District of New York and the Section moved to intervene in A.B. v. Rhinebeck Central School District and Thomas Mawhinney , a sexual harassment case brought against the Rhinebeck Central School District and the former high school principal Thomas Mawhinney. The case was filed in the United States District Court for the Southern District of New York on May 9, 2003, by four current and former high school students and a school employee. The plaintiffs alleged that the school district and Mawhinney violated state and federal laws, including Title IX. The United States filed an intervention brief and complaint-in-intervention alleging that Mawhinney sexually harassed the four plaintiff students as well as other female high school students during his ten-year tenure as principal and that the school district violated Title IX by acting with deliberate indifference to known sexual harassment of these students. The district opposed the United States' intervention, and the United States filed a reply . On August 25, 2004, the court granted the United States' intervention motion.

On March 22, 2006, the court approved a consent decree that requires the district to develop and implement a comprehensive plan that will ensure a discrimination-free educational environment for all students. The district must retain an expert regarding sexual harassment training and prevention to assist in developing the comprehensive plan, to evaluate the district's sexual harassment policies, to conduct a school climate assessment, and to develop a mandatory training program. The consent decree also requires the district to educate school board members and employees regarding how to respond to sexual harassment complaints. Lastly, the district must pay $152,500 to compensate the student victims and to pay their attorney's fees. On December 9, 2009, the parties informed the court that the case could be closed based on the district's implementation of the consent order.

On October 3, 2018, the Section and the District of Colorado U.S. Attorney’s Office (collectively the “United States”) entered into an out-of-court settlement agreement with the Adams 12 Five Star Schools (“the District”) in Colorado to bring the District’s English Learner (EL) program into compliance with Section 1703(f) of the Equal Educational Opportunities Act of 1974 (EEOA). This is the United States’ second settlement agreement with the District. The first settlement agreement was reached in 2010 and aimed to resolve numerous EEOA violations that the Section had identified during a compliance review of all the District’s English Learner (“EL”) programs and practices. This 2010 agreement addressed, among other things, the school district's obligations to: ensure timely, adequate and appropriate EL services; train EL teachers and administrators; recruit and hire qualified staff for EL students; provide translation services for parents and guardians; ensure EL students are appropriately evaluated for special education and receive dual services when eligible; provide adequate and appropriate materials for EL classes; monitor current and exited EL students; and evaluate its EL programs adequately. The Section ended its monitoring of the 2010 agreement in 2015.

In 2016, the United States began conducting a complaint investigation to determine whether the District was appropriately serving its approximately 5,600 EL students as required by Section 1703(f) of the EEOA. The second settlement agreement addresses the narrower set of conditions that the United States identified as noncompliant with the EEOA in 2018. The 2018 agreement requires the District to: provide adequate language services to all EL students; provide EL students with appropriate access to core content through sheltered instruction; adequately train the administrators and teachers who provide language services and implement the EL program, including on how to use its curricula for EL students; adequately monitor the academic performance of current and former EL students; and properly evaluate the effectiveness of the EL program over time.  The parties anticipate that the 2018 agreement will remain in place for three years.

This desegregation case involves the Longview Independent School District ("LISD") in Longview, Texas, which was ordered by the District Court for the Eastern District of Texas to desegregate on August 27, 1970. On January 24, 2011, as part of a district-wide consolidation plan, the court approved a consent order adopting LISD's revised attendance zones. On February 28, 2014, the court declared that LISD was partially unitary and had eliminated all vestiges of past de jure discrimination to the extent practicable in its facilities, transportation, extracurricular activities, and staff assignment. Following a comprehensive review of the school district's policies and practices, and subsequent negotiations, on December 22, 2014, the court approved the parties' proposed consent order. The Section is monitoring the district's compliance with this consent order, which requires LISD to publicize and broadly disseminate the application and assessment procedures it uses to admit students to the Hudson PEP Elementary School magnet program; permit and facilitate majority-to-minority transfers between certain schools; provide equal access to pre-advanced placement courses at its middle schools; and publicize and broadly disseminate its gifted-and-talented program admission procedures.

On October 12, 2022, the United States issued its Letter of Findings alleging the State of Alabama is violating Title II of the Americans with Disabilities Act.  Based on our investigation, we concluded the State of Alabama discriminates against students with emotional and behavioral disabilities in the foster care system who have been enrolled at on-site schools on the campuses of Alabama’s psychiatric residential treatment facilities.  By enrolling students at the on-site schools without regard to each student’s ability to perform in local public schools, the State’s practices relegate them to unnecessarily segregated classes and unequal educational opportunities.  During our investigation, we found these on-site schools differ in many and substantial ways from general education schools, including in their physical attributes, the multi-grade composition of the classes, their heavy reliance on online programs in classrooms without certified staff, and an overall and profound lack of resources.  The on-site schools also lack grade-appropriate curricula; provide insufficient instructional services and supports, including through the use of shortened school days; and are often unable to provide students with access to facilities that are common in general education settings, such as libraries, gyms, and science labs, or opportunities to participate in sports and extracurricular activities. For more information, please see the press release .    

In this matter involving the Pennsylvania Department of Education’s (PDE) system of alternative education programs, known as Alternative Education for Disruptive Youth (AEDY), the Section conducted an investigation into complaints that Pennsylvania’s statewide system of alternative education discriminated against students with disabilities in violation of Title II of the Americans with Disabilities Act, as well as English Language Learners (EL) students in violation of Section 1703(f) of the Equal Educational Opportunities Act of 1974.  On March 25, 2019 , the Section along with the United States Attorney’s Offices for the Western, Middle, and Eastern Districts of Pennsylvania entered into a settlement agreement with PDE .  The settlement agreement requires that PDE monitor the AEDY system to ensure that students with disabilities are not placed in AEDY in a manner that discriminates based on disability; that they are not unnecessarily segregated within AEDY programs on the basis of disability; that they are not denied equal educational opportunities; and that students with disabilities are transferred back to their home schools in a timely manner.  In addition, the agreement will require all local educational agencies referring EL students to AEDY to establish an EL service plan to ensure EL students are provided appropriate services.  Further, PDE will ensure that AEDY programs provide EL services by utilizing teachers who hold ESL teaching credentials and by using appropriate materials. The United States will monitor compliance with the terms of the agreement.  For more information, please see this press release .

On February 16, 2023, the Section entered into a settlement agreement with the Anchorage School District in Anchorage, Alaska to address the discriminatory use of seclusion and restraint against students with disabilities. The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) based on allegations that the district engaged in improper restraint and seclusion practices in its specialized schools and programs for students with emotional and behavioral disabilities. Under the settlement agreement, the district will take proactive steps to ensure that its practices do not discriminate against students with disabilities. The district will, among other things: prohibit the use of seclusion; limit the use of restraint; document and review all instances of restraint and ensure they were justified; hire a district-level administrator to review incidents and ensure the district’s compliance with the agreement and Title II of the ADA; create classroom-wide behavior management plans to discourage restraint and promote positive behaviors; revise its complaint form to ensure it can receive complaints related to restraint and seclusion; provide training and professional development for all teachers and instructional staff at its schools and programs for students with emotional and behavioral disabilities; notify parents and guardians of all instances of restraint and seclusion; and offer compensatory counseling or education services to students with disabilities who were subjected to the district’s discriminatory practices. For more information, please see this letter , press release , and summary of the agreement .

In this longstanding school desegregation case, the Section and a class of black plaintiffs opposed the school district's proposal, among other things, to build five new schools. The Section contended that the district's proposal would not further desegregation of the district's schools, would not afford black students equal educational opportunities, and would impose disproportionate transportation burdens on black students. The school district's transportation records showed, for example, that some black high-school students were required to ride a bus up to nearly two and one-half hours each way to and from school, while white students were bussed no longer than forty-five minutes to and from the same school; nonetheless, the school district proposed to build a new high school at a location that would reduce the transportation times of white students while maintaining the transportation times of black students. The Section also alleged that the school district had failed to comply with existing desegregation orders in the areas of faculty and staff hiring, assignment and compensation; transportation; facilities; and curriculum.

After a seven-day evidentiary trial in May 1999, the district court issued an order approving the school district's construction plan, but requiring the school district to address several of the matters about which we had complained. Among other things, the district court ordered the school district to take steps to reduce the transportation times to school for black students. The Section and the plaintiff class appealed from the district court's order relating to new construction. At the request of the Section and the plaintiff class, the district court entered an order "staying," or putting on hold, the school district's proposed new construction, pending a decision by the Fifth Circuit Court of Appeals.

While the appeal was pending, the parties entered into settlement discussions. In April 2000 the parties signed and the district court approved a consent order that both required the school district to address areas of its alleged non-compliance with federal law and resolved all but one of the issues on appeal. The remaining issue on appeal was whether the school district's proposed site for a new high school was consistent with the district's affirmative desegregation obligations. On November 6, 2000, the Fifth Circuit Court of Appeals affirmed the lower court's ruling that allowed construction of the new high school to proceed at the contested location. In December 2000, the district court entered an order establishing a bi-racial advisory committee.

On August 5, 1965, the private plaintiffs brought this school desegregation case to enjoin the Monroe City School District from continuing to operate racially segregated schools.  The United States joined the case as amicus curiae in 1970 and intervened in the lawsuit in 1978.  On July 6, 1992, the Court declared the District unitary with respect to facilities, extracurricular activities, and “the hiring and retention of black teachers and administrators.”  However, the Court declined to declare the District unitary with regard to “teacher and principal assignments, student assignments and transportation.”  On March 30, 2010, the Court ordered the District to “offer the same courses at every high school in the District;” fully implement a medical magnet program at Carroll High School by the fall of the 2011-12 school year (in an attempt to increase the diversity of the student population at Carroll High); encourage each high school student “to attempt to qualify for the Tuition Opportunity Program for Students (TOPS), which provides scholarships for qualified high school students who choose to attend a Louisiana state college or university;” “work with the Equity Assistance Center for the Intercultural Development Research Association (IDRA) in order to ensure that all students have an equitable opportunity to participate in Gifted, Honors, pre-AP, and AP programming at all schools in the District;” and ensure that all principals, other administrators, faculty and certified staff are informed of the terms of the Court’s order.  On September 25, 2015, the Court declared the District unitary with respect to student assignment and transportation, but declined to pronounce the District unitary as to teacher and principal assignments.  In addition, the Court found that the District had not complied with the March 30, 2010 Consent Decree.  On December 11, 2015, the Court entered a Consent Decree designed to remedy teacher and principal assignment and course offerings.  Among other actions, the board must take steps to equalize course offerings and ensure that the racial makeup and credentials of the teachers and administrators at any given school does not indicate that a school is intended for black students or white students.  On March 23, 2016, in the interest of securing full compliance with the letter and spirit of the December 2015 Consent Decree, the United States and the District jointly filed a motion for the extension of certain deadlines therein.  The Court granted the motion and entered an Amended Consent Decree on March 24, 2016.  On April 14, 2016, the Court entered a Second Amended Consent Decree .

On July 24, 2013, the Section and the Department of Education's Office for Civil Rights entered into a resolution agreement with the Arcadia Unified School District in Arcadia, Calif., to resolve an investigation into allegations of discrimination against a transgender student based on the student's sex. Under the agreement, the school district will take a number of steps to ensure that the student, whose gender identity is male and who has consistently and uniformly presented as a boy at school and in all other aspects of his life for several years, will be treated like other male students while attending school in the district. The agreement resolves a complaint filed in October 2011. As detailed in the closure letter sent to the district, the complaint alleged that the district had prohibited the student from accessing facilities consistent with his male gender identity at school and on a school-sponsored overnight trip because he is transgender. The United States investigated this complaint under Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964. Both Title IX and Title IV prohibit discrimination against students based on sex. Under the agreement, the district will work with a consultant to support and assist the district in creating a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes; amend its policies and procedures to reflect that gender-based discrimination, including discrimination based on a student's gender identity, transgender status, and nonconformity with gender stereotypes, is a form of discrimination based on sex; and train administrators and faculty on preventing gender-based discrimination and creating a nondiscriminatory school environment for transgender students. Additionally, the district will take a number of steps to treat the student like all other male students in the education programs and activities offered by the district. The district-wide provisions of the agreement will be in place until the end of the 2015-2016 school year. The student-specific provisions of the agreement will be in place as long as the student is enrolled in the district. For more information, please see this press release .

On July 23, 2021, the Section and the U.S. Department of Education filed a statement of interest in the U.S. District Court for the South District of Texas in Arnold v. Barbers Hill Independent School District .  In this case, the District disciplined two black boys when they refused to cut their locs to conform to the District’s hair length policy.  Because similarly situated girls would not have been in violation of the District’s policy, the boys and their parents brought suit, alleging that the hair length policy unlawfully discriminates on the basis of sex (among other bases) in violation of the Equal Protection Clause and Title IX of the Education Amendments of 1972.  Plaintiffs further allege that the District retaliated against one of the parents in violation of Title IX.  On June 21, 2021, the District filed a Motion for Partial Dismissal, arguing primarily that Fifth Circuit precedent establishes a per se rule barring judicial review of all school hair length regulations and that a parent lacks standing to bring a Title IX retaliation claim.  In its statement of interest, the United States advises the court that there is no binding Fifth Circuit precedent barring review of plaintiffs’ sex-based challenges to the District’s hair length policy.  The United States further advises that Title IX applies to all aspects of a federal funding recipient’s education programs and activities, including its dress and grooming code, and that parents of minor schoolchildren have standing to bring Title IX retaliation claims.  Applying the proper Equal Protection Clause and Title IX standards, the United States concludes that plaintiffs adequately allege that the District’s hair length policy unlawfully discriminates on the basis of sex in violation of the Equal Protection Clause and Title IX, and that the District unlawfully retaliated against a parent who complained about the hair length policy’s discriminatory effect.  For this reason, the United States asserts that the District’s motion to dismiss plaintiffs’ sex discrimination claims should be denied. 

On January 28, 1975, Mississippi was sued for maintaining an unconstitutional dual system of higher education. Plaintiffs argued that Mississippi denied equal opportunities to black students and faculty members by favoring the State's historically white colleges and universities at the expense of its historically black colleges and universities, and by failing to remove the vestiges of racial segregation in the former de jure dual system. On April 21, 1975, the Section intervened and joined the plaintiffs in seeking injunctive relief that would bring Mississippi's higher education system into conformity with constitutional and statutory provisions.

After a trial, the district court and appellate court found for the defendants, but, in 1992, the Supreme Court overturned the lower courts' decisions and remanded the case to the district court to determine if Mississippi had taken the necessary steps to ensure that a student's choice of college was indeed free and unconstrained by Mississippi's former discriminatory policies. The case marked the first time that the Supreme Court defined the applicable legal standards for higher education desegregation.

On February 15, 2002, the court entered a final judgment approving a $503 million settlement . Endorsed by the Mississippi legislature, the settlement will fund a comprehensive plan over a seventeen-year period aimed at improving academic programs, making capital improvements, and expanding summer programs at the State's historically black colleges and universities. The State also will recognize the historically black Jackson State University as a comprehensive university. The district court dismissed the case, but has retained jurisdiction to enforce the settlement agreement.

On January 30, 2017, the District Court for the Eastern District of Louisiana approved a consent order that addresses the remaining issues in the desegregation case and when fully implemented will lead to its closing. The consent order, negotiated with the school district (the “District”) and private plaintiffs, represented by the NAACP Legal Defense and Educational Fund, puts the District on a path to full unitary status within three years provided it:

• Implements a new student assignment plan that desegregates its three nearly all-black elementary schools to the extent practicable, by revising feeder patterns and creating specialized academic programs that will attract a diverse student body;
• Revises the District’s code of conduct to ensure fairness and consistency in the handling of subjective disciplinary offenses that do not threaten safety, and provides District staff with additional tools to address student misbehavior in nondiscriminatory ways;
• Takes reasonable steps to recruit a diverse pool of applicants for faculty and staff vacancies that arise in the course of implementing the new student assignment plan; and
• Incorporates into its student handbook a statement prohibiting discrimination in extracurricular activities and encouraging participation by students of all races.

The consent order declares that the District has already met its desegregation obligations in the area of transportation. The court will retain jurisdiction over the consent order during its implementation, and the Justice Department will monitor the district’s compliance. For more information, please see this press release .

This longstanding desegregation case was filed in 1965 by private plaintiffs, with the NAACP Legal Defense and Educational Fund and local cooperating attorneys serving as counsel. The United States intervened later that year. In 1969, the Fifth Circuit entered a desegregation order permanently enjoined the District from discriminating on the basis of race or color in the operation of the Meridian schools. In 2010, as part of efforts to enforce the desegregation order, the department began to investigate complaints that the District had implemented a harsh and punitive student discipline policy that resulted in the disproportionate suspension, expulsion, and school-based arrest of black students in Meridian schools. The department found that these kinds of disparities persisted even when the students were at the same school, were of similar ages, and had similar disciplinary histories.

At the conclusion of the investigation, the United States and the District engaged in extensive negotiations, resulting in a proposed consent decree filed in the United States District Court for the Southern District of Mississippi on March 22, 2013. Along with the proposed consent decree, the parties jointly filed a motion to approve the decree , and the United States separately filed a memorandum of law . Under the consent decree, the district will take steps to create safe and inclusive learning environments in all Meridian schools, including providing students with supports and interventions before excluding them from school; limiting the use of discipline measures that remove students from the classroom; ensuring that discipline consequences are fair and consistent; establishing clear guidelines for when law enforcement intervention is appropriate; providing training to give teachers and administrators the tools necessary to manage their schools in a safe, effective and positive manner; and building data-driven monitoring and accountability systems. On May 30, 2013, the Court adopted the consent order .

For more information regarding the proposed consent decree, please see this press release .

On June 21, 2010, the Division filed a Motion for Leave to file an amicus brief in Biediger, et al. v. Quinnipiac University. Plaintiffs allege that Quinnipiac failed to provide female students an equal opportunity to participate in varsity intercollegiate athletics, and that this failure constituted intentional sex discrimination in violation of Title IX and 34 C.F.R. § 106.41(c)(1). The plaintiffs allege that Quinnipiac misrepresented its athletic participation numbers by, among other things, requiring women’s teams to artificially increase their number of participants, resulting in some members lacking a genuine varsity athletic participation opportunity; underrepresenting the number of male athletes on teams; eliminating the women's volleyball program; and counting participants on its cheer squad as a sport under Title IX. The United States' amicus brief provided guidance as to what constitutes a genuine participation opportunity, as well as guidance concerning what constitutes a sport for Title IX compliance.

On October 1, 2010, the Section, the Office for Civil Rights of the U.S. Department of Education (OCR), and the Boston Public Schools (BPS) entered into a Settlement Agreement to resolve violations of English Language Learner (ELL) students' rights under the Equal Educational Opportunities Act (EEOA), 20 U.S.C. § 1703(f), and Title VI of the Civil Rights Act of 1964 (Title VI), 20 U.S.C. § 2000d et seq. The 2010 Agreement , which grew out of the Section’s and OCR’s joint compliance review of BPS' ELL programs, was needed to address as soon as possible its failure to test approximately 7,000 students in reading and writing to determine if they were ELL students and over 4,000 known ELL students whom it had misidentified as having opted out of ELL programs between 2003 and 2009. The 2010 Agreement secured ELL and compensatory services for the more than 4,000 misidentified “opt out” students and the 4,300 of the 7,000 students who were improperly identified as non-ELL students. The 2010 Agreement further required BPS to provide all ELL students with English as a Second Language (ESL) instruction by ESL-certified teachers and Sheltered English Immersion (SEI) content classes by teachers trained to provide SEI instruction. While BPS was implementing the 2010 Agreement, OCR and DOJ completed the remainder of their compliance review and negotiated a Successor Agreement with BPS to resolve the additional areas of noncompliance identified in the review. The April 19, 2012 Successor Agreement replaced the 2010 Settlement Agreement and provides systemic, comprehensive relief across BPS’s ELL programs, procedures, and practices. The Successor Agreement requires, inter alia: accurate and timely identification of ELL students; appropriate ESL and SEI services provided by qualified faculty; meaningful communications with Limited English Proficient parents through translations and qualified interpreters; assessments and services specially designed to meet the needs of ELL students who face unique challenges, such as students with disabilities and students with interrupted formal education; and greater access for ELL students to the higher-level learning opportunities in BPS. To ensure these programmatic changes are effective, the agreement further requires BPS to evaluate the effect of these changes on student achievement over time through robust, disaggregated data analyses. For more information on both agreements, please see the 2010 press release and 2012 press release .

In this matter involving the Bound Brook New Jersey School District, the Section reviewed whether the district was providing appropriate instruction and services to English Language Learners (ELLs) as required by the Equal Educational Opportunities Act of 1974 (EEOA). Based on its review of the district, the Section raised concerns about, among other things: the school district's procedures for screening new students to determine whether they are ELLs; ELLs' access to basic skills instruction, special education services, and academic enrichment programs; the opportunities that ELLs have to integrate with native speakers of English in a school setting; and monitoring of students currently enrolled in the ELL program and those students who have exited from the program. The school district and the Section engaged in good-faith negotiations about these and other issues and on October 16, 2003, entered into a settlement agreement outlining the measures that the school district was required to take to ensure its compliance with the EEOA. The agreement required the district to provide, among other things: timely assessment of all students with non-English speaking backgrounds; quality curricula and instruction for ELLs; adequate teacher training; and careful monitoring and reporting on the academic progress of current and former ELLs. After the district compiled in good faith with the settlement agreement, the agreement ended on January 12, 2007.

On June 17, 2021, the Section and the U.S. Department of Education filed a statement of interest to assist the U.S. District Court for the Southern District of West Virginia in evaluating the Title IX and Equal Protection claims in B.P.J. v. West Virginia State Board of Education, et al. , Case No. 2:21-cv-00316.  In this case, the plaintiff, an 11-year-old girl who is transgender, challenged H.B. 3293, a state law that prohibits girls who are transgender from participating on female interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or state institution of higher education.  She asked the court to enjoin West Virginia from enforcing H.B. 3293 and allow her to participate on girls’ sports teams consistent with her gender identity.  The plaintiff alleged that H.B. 3293 requires her school, a recipient of federal financial assistance, to exclude her from school athletics on the basis of sex, causing her harm in violation of Title IX of the Education Amendments of 1972.  The plaintiff also alleges that H.B. 3293 violates the Equal Protection Clause because the state law discriminates against her because of sex and gender identity and is not substantially related to an exceedingly persuasive justification.  In its statement of interest , the United States advised the court that Title IX and the Equal Protection Clause prohibit discrimination against students because of their sex, including because a student is transgender.  The United States concluded that the plaintiff was likely to succeed on these claims in support of her motion for a preliminary injunction. 

Memorandum and Order - B.P.J. v. West Virginia State Board of Education

On November 13, 2019, the Section and the U.S. Attorney’s Office for the District of Vermont entered into a Settlement Agreement with the Burlington School District in Burlington, Vermont, to resolve an investigation into allegations of sex discrimination.  The Section initiated its investigation in response to a complaint by a group of parents alleging that their children had been subject to severe and pervasive sex-based harassment, including assault, that went unaddressed by the District.  As a result, their children feared for their safety and several withdrew from the school.  Under the Agreement, the District will take a number of steps to improve its ability to prevent and appropriately respond to peer-on-peer harassment based on sex.  Those steps include retaining the technical assistance of the Mid Atlantic Equity Center to support a review of the District’s sex-based harassment policies, practices, and procedures as well as the District’s training on and implementation protocols for such policies.  The Agreement further requires that the District work with the Equity Center to assess its resources and build capacity at individual schools and at the District-level to ensure that all schools have the capacity to implement fully the District’s policies and procedures.  Under the Agreement, the District will provide particularized training for students and faculty at the elementary school implicated in the complaint, and will conduct climate surveys at that school to assess the presence and effects of harassment and bullying, the inclusiveness and safety of the educational environment, and the effectiveness of the measures taken pursuant to the Agreement.  The Agreement will be in place through the 2021-22 school year.    

On July 14, 2014, the Division filed a Statement of Interest in D.J. et al v. State of California , a state case brought by parents and guardians of English Language Learner (ELL) students against the State of California and the California Department of Education (CDE) among others, which alleged that the State violated the Equal Educational Opportunities Act (“EEOA”) by failing to respond to credible information that tens of thousands of ELL students were not receiving ELL instructional services.  The Division’s Statement of Interest articulated what the United States maintains are the correct legal standards governing the State’s obligations under the EEOA, including monitoring local education agencies (LEAs) provision of EL instructional services.  In an August 12, 2014 decision, the state court ruled that the State had violated the EEOA and ordered it to take remedial action, reiterating many of the legal standards discussed in the United States’ brief.  In November 2014, the State appealed the ruling, and then subsequently settled the appeal and all of D.J. plaintiffs’ claims in a private settlement approved by the state court.

Applying the standards in the Statement of Interest in its own EEOA compliance review of the State’s monitoring practices, the Division notified CDE and the California State Board of Education in a letter dated May 22, 2015, that the State was not meeting its obligations under the EEOA and needed to respond promptly and appropriately to ensure LEAs provide their EL students with appropriate EL instructional services.  On September 8, 2016, the Division and the State settled the matter in a two-year settlement agreement that requires the State to respond in a timely and effective manner to credible evidence that LEAs are failing to serve their ELLs, including notifying them of violations and providing a protocol by which they must submit to CDE documented evidence that resolves the violations.  The agreement also requires CDE to: consider LEAs’ reports of unserved ELs when selecting schools for monitoring reviews; improve CDE’s online monitoring tool; require that schools found to be out of compliance with specific requirements in this online tool receive onsite monitoring if they fail to provide adequate evidence that the noncompliance has been resolved; and develop and provide training on the monitoring, review, and corrective action processes associated with CDE’s system of monitoring schools for ELL service violations.  For more information, please see the press release .

In this religious discrimination case, the plaintiffs alleged that their rights under the First and Fourteenth Amendments were violated when the school board excluded them from using school facilities for a "prayer meeting" at which civic and social issues would be discussed. The school board permits community groups and non-students to use school facilities for a wide variety of civic and recreational purposes such as luncheons, homeowner association meetings, seminars, and athletic activities. The policy permits groups to use school facilities to engage in discussions having a "religious viewpoint," but not to engage in "religious services or instruction." Relying on this distinction, the board denied facility access to the plaintiffs on the grounds that the proposed prayer meeting was a religious service rather than a meeting presented from a religious viewpoint. On April 25, 2003, the Section filed an amicus brief in support of plaintiffs' motion for summary judgment, arguing that (1) plaintiffs' proposed meeting fits well within the forum created under the school board's facility use policy, and (2) there is no legal or practical distinction between religious viewpoints on a topic and "religious services or instruction." On June 3, 2003, the Section filed an amicus brief in opposition to defendants' motion for summary judgment.

On July 10, 2003, the court held a hearing on the parties' motions in which the Section participated. On July 29, 2003, the court issued an order granting summary judgment for plaintiffs. The court concluded that although the plaintiffs' proposed meeting was primarily a religious service, it also included a discussion of family and political issues from a legally protected religious viewpoint. Thus, the court held that the proposed meeting was not "mere religious worship," but included speech that the school district permitted through its facility use policy. The school district therefore improperly denied the plaintiffs access to school facilities for their evening meeting. On February 19, 2004, the case was dismissed.

On February 19, 2021, the Section and the U.S. Attorney’s Office for the Northern District of Ohio opened an investigation into Case Western Reserve University’s (“CWRU”) response to reports of sexual harassment, including sexual assault, and sexual misconduct in its Greek Life community.  The Department’s investigation included interviews with former and current campus employees, students, and alumni, and an extensive review of CWRU’s polices grievance procedures, training, and response to reports of sexual harassment.

On August 22, 2023, the Department and CWRU reached a resolution agreement under Title IX to address the areas of noncompliance identified through the Department’s investigation.  Under the agreement, CWRU will, among other steps: reorganize the Title IX reporting structure to remove it from the purview of the Office of General Counsel and ensure CWRU follows its grievance procedures free from conflicts of interest; promote greater awareness about the Office of Equity and the Title IX Coordinator; require annual training for all students and employees; invest resources into enhanced prevention programming and training for CWRU fraternities and sororities; conduct campus-wide outreach; and implement a campus-wide student survey to better serve its community.  The Department will carefully monitor the CWRU’s implementation of this agreement, which will remain in place through the 2025-2026 academic year.  For more information, please see this letter , press release , and a plain-language summary  of the agreement.

On September 12, 2022, the Section entered into a settlement agreement with the Cedar Rapids Community School District in Cedar Rapids, Iowa to address the discriminatory use of seclusion and restraint against students with disabilities. The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) based on allegations that the school district engaged in improper seclusion and restraint practices. Under the settlement agreement, the school district will take proactive steps to ensure that its practices do not discriminate against students with disabilities. The district will, among other steps: end its use of seclusion; limit its use of restraint, revise its restraint procedures and practices, and consistently implement those procedures and practices in all schools; report all instances of restraint and evaluate if they were justified; offer counseling and other services to students who are restrained; adopt policies and procedures to assess suicide risk, prevent suicide and self-harm, and implement immediate crisis intervention for students who threaten or engage in self-harm; designate trained staff to collect and analyze restraint data and oversee the creation of appropriate behavior intervention plans; deliver appropriate training and resources to help schools implement the agreement; and hire two new administrators to oversee schools’ use of restraint and ensure the district’s compliance with the agreement and Title II of the ADA. For more information, please see this letter ,  press release , and  summary of settlement agreement .

In this matter involving Charleston County School District in Charleston, South Carolina, the Section and the U.S. Attorney’s Office for the District of South Carolina conducted an investigation under Title VI of the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974.  The United States received complaints that the school district failed to communicate essential information to Spanish-speaking, limited English proficient (LEP) parents, denying their children full and equal access to the school district’s education programs and services.  The United States found that, over the course of several years, the school district often failed to use qualified interpreters to communicate with Spanish-speaking LEP parents and guardians, even when their need for an interpreter was documented or otherwise evident.  The United States also found that the school district did not consistently translate essential written information into Spanish, and asked parents who can only communicate in Spanish to make important decisions about school programs and services without explaining the options in a language they understand. 

On March 2, 2021, the United States entered into a settlement agreement  with the school district to ensure that the school district and each its 80 schools and programs use qualified interpreters and translators to communicate with LEP parents about matters essential to their children’s education, including special education services.  The agreement requires, among other things, that the district take proactive steps by: developing and implementing effective language access policies and procedures; training faculty and staff on how to properly identify and meaningfully communicate with LEP parents and guardians; informing LEP parents and guardians of their right to language access services at special-education related meetings and receive translated special-education related documents; and providing a language-assessment report and bi-annual compliance reports to DOJ.  For more information, please see this press release  and a translated version in Spanish .  A translated version of the agreement is available in Spanish .

On July 9, 2004, Child Evangelism Fellowship (CEF), an organization that sponsors after-school Good News Bible Clubs, filed a complaint and a motion for preliminary injunction, alleging that officials of the Upland Unified School District (California) discriminated against CEF by allowing non-profit organizations such as the Boy Scouts free use of school facilities while at the same time charging religious organizations such as CEF rent equal to “direct costs.”

The United States filed a motion to participate as amicus curiae in this matter, as the United States is charged with enforcement of Title IV of the Civil Rights Act of 1964, which authorizes the Attorney General to seek relief if a school deprives students of the equal protections of the laws. The Court granted the United States’ motion.

The United States filed a brief in support of plaintiff’s motion for a preliminary injunction. The United States argued that the district’s practice of charging religious groups a fee to use school facilities for activities serving local youth when the district does not charge secular groups a fee to use facilities serving local youth violated the First and Fourteenth Amendments because the fee discriminated against CEF’s religious viewpoint.

On November 15, 2004, the Court granted the plaintiff’s motion for a preliminary injunction thereby enjoining the district from requiring CEF to pay any rental fees or other fees that are not required of other non-profit community organizations for use of the district’s facilities.

Then, on February 4, 2005, the Court entered a Stipulated Dismissal without prejudice with an attached Settlement Agreement stating that the district agreed, among other terms, to permit CEF equal access to school facilities on the same terms and conditions as other similar non-profit groups.

The department conducted a compliance review of the English Language Learner (ELL) program at the Clay County School District in Alabama to determine whether ELL students were receiving services required by the Equal Educational Opportunities Act of 1974 (EEOA). On June 19, 2014, a settlement agreement was reached that will ensure that this rural district takes appropriate action to serve its small but growing population of ELL students, including: increasing services for ELL students, obtaining additional English as a Second Language-certified instructors, conducting significant professional development for teachers, providing adequate materials and classroom supports for ELL students, monitoring the academic performance of current and former ELL students and improving language-accessible communication with limited English proficient parents. For more information, please see this press release .

Settlement Agreement in: Spanish

Press Release in: Spanish

In this matter involving the Clay County School District, the Section and the U.S. Attorney’s Office for the Middle District of Florida investigated whether the District was providing appropriate language services to its English Learner (“EL”) students, as required by the Equal Educational Opportunities Act of 1974 (“EEOA”). The investigation revealed that the District was not appropriately identifying EL students or providing them with the educational services and supports needed for EL students to become proficient in English and participate equally in school. On October 30, 2023, the District and the United States entered into an out-of-court settlement agreement . Under the agreement, the District will modify its practices so that EL students are properly assessed and identified shortly after their enrollment, promptly provided with language services if they qualify and have the opportunity to equally benefit from the academic and behavioral supports provided to their peers. The District will also make certain that all teachers are qualified, trained and provided enough support and resources to help EL students become fluent in English and understand their core-content courses. The District will also translate and interpret important school information for parents who are not fluent in English. For more information, please see the press release in English , Spanish , and Haitian-Creole . The agreement is available in English , Spanish , and Haitian-Creole , and summaries of the agreement are available in English , Spanish , and Haitian-Creole .

In this matter involving the Colton Joint Unified School District in California, the United States investigated whether the district’s programming for English learners was adequate under Section 1703(f) of the Equal Educational Opportunities Act of 1974. After a multi-year investigation conducted by the Educational Opportunities Section along with the U.S. Attorneys’ Office for the Central District of California, the United States found that English learners in the district did not receive adequate English language instruction, and that core content teachers did not have the requisite training to meet English learner needs in math, science and social studies courses. On December 19, 2022, the United States entered an out-of-court settlement agreement with the district to ensure that every English learner in the district receives English language instruction, and that teachers working with English learners are trained and qualified to meet their needs. The district will also implement additional changes to ensure that English learners have an equal opportunity to participate in the district’s various programs, including programs for gifted and talented students. The agreement will remain in place for three years. For more information please see this press release in English and Spanish ( español ).

In this sex discrimination case, high school girls in Michigan filed a complaint alleging that the Michigan High School Athletic Association (MHSAA) violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. They contended that MHSAA refused to sanction additional sports for high school girls, provided inferior practice and playing facilities for post-season tournaments held in certain girls' sports, and required girls to play certain sports in disadvantageous seasons. This last contention allegedly reduced participation opportunities for high school girls by shortening playing seasons, thereby preventing participation in club competitions and all-star competitions involving players from other states and negatively affecting their chances of being recruited for collegiate-level sports programs. On September 7, 1999, the Section was granted leave to participate as litigating amicus curiae and filed an amicus brief at the summary judgment stage, arguing that the case should go forward under Title IX and the Equal Protection Clause. On January 21, 2002, the court ruled in plaintiffs' favor, allowing the case to proceed to trial.

In the summer of 2001, the parties participated in mediation which resulted in a settlement of all claims except for the issue of playing seasons. The court conducted a two-week bench trial in September 2001 and received evidence concerning the following questions: (1) whether MHSAA, by assuming controlling authority over interscholastic athletics from member schools that receive federal funds, is subject to Title IX; (2) whether MHSAA is a state actor for purposes of 42 U.S.C. § 1983; and (3) whether MHSAA's scheduling of only girls' sports in disadvantageous seasons violated Title IX and the Equal Protection Clause. On December 17, 2001, the court issued its ruling finding in favor of the plaintiffs and the Section on all three issues. See Communities for Equity v. Michigan High Sch. Athletic Ass'n , 178 F. Supp.2d 805 (W.D. Mich. 2001). The court held that MHSAA is subject to Title IX and is a state actor for purposes of 42 U.S.C. § 1983. In so holding, the court further concluded that MHSAA's scheduling practices violated Title IX and the Equal Protection Clause. Lastly, the court ordered MHSAA to submit a compliance plan to remedy the discriminatory scheduling of girls' sports.

The Section filed an opposition to the compliance plan in June 2002. After reviewing briefing on the issue of the remedial plan and conducting a hearing on the matter, the Court issued a ruling requiring MHSAA to switch girls' basketball and volleyball to their traditional, advantageous seasons of the winter and fall respectively. The Court ultimately approved the rest of MHSAA's remedial plan, finding that the switching of the remaining sports at issue (soccer, golf, tennis, swimming, and diving) balanced the inequity of nontraditional playing seasons amongst high school boys and girls in Michigan.

MHSAA appealed the district court's rulings on liability and the remedial plan to the U.S. Court of Appeals to the Sixth Circuit. The Division filed an amicus brief in August 2003. In July 2004, the Sixth Circuit affirmed the district court's ruling that MHSAA's scheduling of sports violates the Equal Protection Clause. MHSAA then appealed to the Supreme Court, which instructed the Sixth Circuit to reconsider the case. On August 16, 2006, the Sixth Circuit issued an opinion that again affirmed the district court's ruling that the sports schedule discriminates against female athletes on the basis of sex. On December 7, 2006, the Court of Appeals for the Sixth Circuit denied rehearing and rehearing en banc. On April 2, 2007, the United States Supreme Court denied review of MHSAA's petition for certiorari.

In 1999, the Section intervened in this lawsuit alleging the Denver Public Schools (DPS) violated Title VI and the EEOA by failing to take appropriate actions to overcome language barriers of its English Language Learner (ELL) students. On June 16,1999, the district court approved a new English Language Acquisition Plan for the Denver Public Schools.

The result of compliance monitoring by the Section and the Congress of Hispanic Educators (CHE), and DPS’s recognition that the 1999 order no longer reflected the district’s own best practices for serving ELL students, moved the parties to develop a new consent decree to replace the existing plan. On April 16, 2013 the district court in Denver approved a comprehensive consent decree between the Department of Justice, CHE, and DPS that requires DPS to provide language services to the more than 28,000 ELL students enrolled in the district’s 170 schools.

The consent decree requires the district to implement comprehensive measures to ensure that ELLs have equal opportunities to succeed academically in district educational programs, starting with the proper identification of ELL students when they enter DPS.  Among other things, the consent decree requires DPS to: provide language acquisition services to ELL students in district schools, including charter schools, until they are proficient in English and to monitor ELL students after they exit services to ensure they are participating meaningfully and equally in mainstream classes; to make translation and interpretation services available for thousands of Limited English Proficient parents who speak more than 130 different languages – ensuring that all parents have access to essential information about their children’s education;  to provide Pre-K language services at each school where DPS offers early childhood education; and to make  appropriate language services available for ELL students who face unique challenges, including refugee students and students with disabilities.

For more information about the 2013 Consent Decree, please see the following fact sheet available in: English | አማርኛ (Amharic) | العربية (Arabic) | မြန်မာစကား (Burmese) | Soomaali (Somali) | Español (Spanish) | Tiếng Việt (Vietnamese) .

The June 16, 2009 complaint alleges that FHSAA’s new policy discriminates against female students by reducing the maximum number of competitions that a school can schedule by 20% for varsity teams and 40% for sub-varsity teams while exempting 36,000 boys who play football and only 4,300 girls and 201 boys who participate in competitive cheerleading. The complaint also alleges that OCR has not recognized competitive cheerleading as a sport under Title IX and that even if it were recognized as a sport, the new policy exempts nearly nine times as many boys than girls from the reductions in their competition schedule. The complaint further alleges that FHSAA sanctions football for a total of 23 weeks of coaching, practices, and competitions, while the majority of girls’ sports operate for only a total of 15 weeks. The plaintiffs filed a motion for a preliminary injunction on June 19, 2009. The defendant filed a motion to dismiss on July1, 2009. On July 14th, the Division filed a motion for leave to file an amicus brief in opposition to the defendant’s motion to dismiss and in support of plaintiffs’ motion for preliminary injunction. The United States’ amicus brief argues that plaintiffs’ allegations establish claims of intentional discrimination, not just disparate impact, under Title IX and the Equal Protection Clause that are sufficiently detailed to survive the motion to dismiss. The brief also argues that there is a substantial likelihood that the Title IX and Equal Protection claims will succeed on the merits, and that the court should preliminarily enjoin new Policy 6. On July 15, the court granted the United States’ motion for leave to file its brief and its request for oral argument at a preliminary injunction hearing scheduled for July 17. Shortly thereafter on July 15, FHSAA voted unanimously to rescind its challenged policy. On July 16, 2009, the court cancelled the preliminary injunction hearing because the plaintiffs and defendants agreed that FHSAA’s rescission of the policy rendered the motion for a preliminary injunction moot. On October 21, 2009, the court issued an order granting the parties’ agreed motion to dismiss the case without prejudice and retaining jurisdiction to enforce the terms of their settlement until December 31, 2010.

In this matter involving the Coolidge Unified School District (“the District”) in Arizona, the Section examined whether the District’s instructional services and materials for English Learner (EL) students and its training for their teachers and administrators complied with Section 1703(f) of the Equal Opportunities Act of 1974.  On April 16, 2021, the District and the United States entered into an out-of-court settlement agreement to resolve the District’s compliance issues identified by the United States.  The agreement requires the District to improve and increase language instruction for EL students so they can become fluent in English and understand the coursework in all of their academic subjects.  The agreement also requires the district to provide robust teacher and administrator training, obtain the special materials and curricula that English learner students need to succeed academically, and actively evaluate students’ progress over time.  The agreement will remain in place for three full school years.  For more information, please see this press release in English and Spanish . A translated version of the agreement is available in Spanish .

In this longstanding desegregation case involving the Franklin County Board of Education (North Carolina), the Section monitors the school district's compliance with existing court orders. The school district achieved partial unitary status in certain areas in 2002 and additional areas in 2018 . The court retains jurisdiction over the Green factor of student assignment, including the school district’s administration of discipline and its gifted and talented programs.

On April 13, 2000, the school district moved to dismiss the case on the grounds that it had attained unitary status. On November 22, 2000, the Section filed a  memorandum  opposing, in part, the school district's motion. On June 24, 2002, the district court held that the school district was partially unitary with respect to school transportation, extracurricular activities, school construction and facilities, student transfers, and faculty desegregation. On June 17, 2003, the Court approved a Consent Order governing the school district’s remaining areas of obligation (student assignment, staff desegregation, and quality of education). A new student assignment plan was approved in a May 2005 order .

At the court’s request, in a January 2018 response to the school district’s annual report the Section identified two areas of ongoing district noncompliance with the 2003 Consent Order that pertain to the assignment of students within schools: (1) discipline that excludes students from schools and classrooms; and (2) the referral and assignment of students to the gifted and talented program. With the consent of the  school district, the Section simultaneously filed a joint motion to declare the district partially unitary and approve a proposed stipulation with regard to several of the school district’s remaining desegregation obligations. Separately, counsel for Plaintiffs asked the Court to require the school district to provide notice of the proposed changes and invite public comment before dismissing any part of the 2003 Order. The Court granted plaintiffs’ counsel’s request.

Having provided the public appropriate notice and an opportunity to submit comments pursuant to a court-approved schedule, the United States and the school district filed a Joint Motion and Memorandum of Support on December 14, 2018, to declare the District partially unitary with respect to desegregation of staff and the following quality of education areas governed by the 2003 Order: academic achievement, advanced course offerings and enrollment, special education program, and student dropouts. The court granted the joint motion in an order dated December 18, 2018.

This case was brought by the Henrico County School Board (board) to appeal a Virginia hearing officer’s decision in favor of R.T.’s parents’ private school placement. R.T. is an autistic child entitled to a free and appropriate education (FAPE) under the Individuals with Disabilities Education Act (IDEA). The hearing officer agreed with R.T.’s parents that the board failed to provide R.T. with a FAPE and that the private school placement was a FAPE. One issue before the federal district court was which party should pay for the private school placement pending the board’s appeal of the state hearing officer’s decision. According to the U.S. Department of Education’s regulation, 34 C.F.R. §300.514(c), which implements the IDEA’s stay put provision, 20 U.S.C. §1415(j), the board should fund the placement while litigation is pending. The board challenged the validity of the statutory and regulatory stay put provisions, and the Section filed an amicus brief on behalf of the U.S. Department of Education to defend both provisions. The Section argued that the regulation was consistent with the plain meaning of the statutory provision and that the statutory provision was a valid exercise of the Spending Clause power. On June 22, 2006, the court issued an opinion rejecting the board’s Spending Clause challenge and agreeing with the United States that the board must pay for R.T.’s private pendent placement.

On January 18, 2017, the Section entered into a settlement agreement with the Covington Independent Public Schools to ensure the District does not discriminate on the basis of disability in its administration of school discipline. The agreement will guarantee that the District provides reasonable modifications of school policy for students with disabilities to avoid the use of exclusionary discipline, isolation, seclusion, or restraint, and contact with law enforcement. The agreement will also replace the use of punitive discipline with more positive approaches as part of an overall focus on improving student achievement and school climate.

This is a cooperative resolution of the Justice Department’s investigation, opened in November 2015 in response to complaints that the District’s discipline practices discriminated on the basis of race and disability. As a part of the settlement agreement, the District will continue its current practice of not stationing School Resource Officers (SROs) at elementary schools; cease requesting SROs to enforce disciplinary rules; eliminate the use of seclusion and isolation rooms; prohibit the use of restraints unless there is imminent danger to the physical safety of the student or others; develop a protocol to identify students who are disproportionately subject to disciplinary referrals, particularly those students who receive exclusionary discipline as a result, and provide those students with interventions and supports intended to reduce disciplinary actions; take prompt and effective steps to help students who are in crisis; implement a code of conduct that focuses on positive interventions, rather than punitive discipline; and train administrators and teachers on how to provide all students with effective interventions and supports.

On August 7, 2017, Cleveland Central High School and Cleveland Central Middle School opened in Cleveland, Mississippi, a major milestone in this longstanding desegregation case, which was initially filed in 1965 by private plaintiffs (the United States intervened in 1985).

On May 2, 2011, the United States had filed a motion for further relief asking the court to find that the district had violated its desegregation obligations under several previously-entered desegregation orders governing the District, and to compel the district's compliance with federal law. In its brief , the United States argued that, while the district had been governed by desegregation orders for more than 42 years, the predominantly black schools on the east side of the District had never been desegregated. The United States further asserted that the ratio of black and white faculty at numerous District schools reinforced the reputation of those schools in the community as "white" or "black" schools. The district filed an opposition brief on August 18, 2011, and the United States filed a reply brief on October 6, 2011.

In an opinion issued on March 28, 2012, the court determined that two schools, a middle school and high school that were formerly de jure black schools, had never been desegregated. The court also found that the ratio of black and white faculty at every school in the District deviated from the district-wide faculty ratio. The court ordered the district to submit a proposed desegregation plan addressing these issues. On December 11, 2012, following a hearing on the District’s proposed plan, the Court issued an order and opinion , finding that the District's proposal did not meet constitutional requirements and ordering the District to implement a "freedom of choice" plan for its middle and high school students.

On February 21, 2013, the United States filed a motion asking the Court to reconsider its remedial order, arguing in its brief that "freedom of choice" was an inadequate remedy in this case. The Court denied the motion in an April 30, 2013 order . On April 1, 2014, following the United States' appeal of the court's remedial order, the U.S. Court of Appeals for the Fifth Circuit issued an opinion reversing and remanding for further proceedings. On January 23, 2015, the United States submitted a proposed desegregation plan to the Court. The district filed two separate plans. The United States objected to the District's plans on February 13, 2015 and responded to the District's objections to its plan on February 27, 2015. The court held a five-day evidentiary hearing on the proposed plans in May 2015. 

On May 13, 2016, the Court approved the U.S. plan and ordered the Cleveland School District to consolidate its secondary schools, rejecting as unconstitutional both of the District’s proposals. For more information on the Court’s order, please see this press release .  After several months during which the District proceeded with an appeal of the Court’s May 2016 decision to the Fifth Circuit and submitted additional proposals to the district court, the Parties reached an agreement.  On February 8, 2017, the Parties filed a Joint Motion for Modification of the Court’s May 2016 Order that would end the appeal and remove the additional proposals from the district court’s consideration.  In a March 13 order , the Court granted the Parties’ motion, and on March 17, 2017, the Court issued an updated implementation timeline . For more information on the Court’s order, please see this press release .

Cleveland Central High School opened to all District 9th-12th graders and Cleveland Central Middle School opened to all District 7th-8th graders in August 2017.  The Department of Justice will continue to monitor the District’s compliance with the Court’s orders and federal law.

In this matter involving the Crestwood School District in Dearborn Heights, Michigan, the Department investigated a complaint alleging violations of the Equal Educational Opportunities Act, 20 U.S.C. §1703 et seq., related to the district's English Language Learner (ELL) program, as well as claims of employment discrimination and unlawful retaliation. On August 13, 2014, the Department and the district entered into a comprehensive, multi-part Settlement Agreement. The agreement requires the district to ensure all of its ELL students, most of whom are native Arabic speakers, receive appropriate English as a Second Language and sheltered content instruction taught by teachers who are properly qualified and trained. The district also must provide ELL students and limited English proficient parents with meaningful access to important information, including discipline and special education materials and procedures. Pursuant to the agreement, the district will work with the Department' Community Relations Service to improve parental outreach and community engagement, establish a community advisory panel, and implementing training on cultural competency. The district also will retain a qualified consultant to help it draft a comprehensive recruitment and hiring policy and implement best practices for recruiting, hiring, and retaining a qualified and diverse faculty and staff. The agreement also requires the district to institute internal complaint processes to investigate and resolve allegations of employment discrimination and/or retaliation. The district's compliance with the agreement will be monitored for four years. For more information, please see this press release .

Settlement Agreement in: Arabic

Press Release in: Arabic

On June 16, 2004, the parents of a 5th-grade student at the Hadley School Program for the Creative and Academically Talented sued the school district of the City of Saginaw, Michigan for allegedly discriminating against the student’s religious beliefs. Specifically, the complaint alleged that the district prohibited him from “selling” candy cane ornaments with an attached card explaining the religious origin of the candy cane as part of “Classroom City”–a multi-disciplinary marketplace town simulation that was part of the school’s social studies curriculum. The district conceded that the student had properly followed the assignment’s directions and received a grade of A for the simulation. Both the plaintiffs and the district filed cross motions for summary judgment.

The United States filed an amicus brief in support of plaintiff’s motion for summary judgment. The United States argued that the district’s censorship of student religious speech that otherwise fulfills the assignment criteria violated the First and Fourteenth Amendments proscribing government regulation of speech that discriminates against a particular point of view–here a religious viewpoint. On September 18, 2006, the Court issued an opinion finding that the district had abridged the plaintiff student’s First Amendment free speech rights, but granted the district’s motion for summary judgment on other grounds.

On September 7, 2022, the Section, the U.S. Attorney’s Office for the District of Massachusetts, and the U.S. Department of Education filed a statement of interest in the U.S. District Court for the District of Massachusetts in Czerwienski, et. al. v. Harvard University, et. al .  The plaintiffs in this case are doctoral students at Harvard University who allege that they were retaliated against for reporting sexual harassment by a professor.  Harvard argues that it cannot be held liable for any retaliatory acts by the professor.  The United States’ brief clarifies that a recipient of federal financial assistance, like Harvard University, may be held liable for damages under Title IX where retaliatory conduct amounts to an official act of the recipient or where the recipient is deliberately indifferent to its employee’s retaliatory conduct.

On July 17, 2019, the Section and the U.S. Attorney’s Office for the District of Utah notified the Davis School District in Utah that we had opened an investigation under Title IV of the Civil Rights Act of 1964 in response to parent complaints that Davis deprived students of equal protection of the law based on race. The Department’s investigation principally focused on Davis’s response to serious and widespread racial harassment of Black and Asian-American students.  The Department also investigated reports that Davis disciplined Black students more harshly than their white peers for similar behavior and that Davis denied Black students the ability to form student groups while supporting similar requests by other students.  After conducting over 100 interviews and an extensive review of Davis’s policies, trainings, discipline and other records, and responses to reports of racial harassment and other discrimination, the Department concluded that Davis violated students’ equal protection rights.

On September 15, 2021, the Department issued a  letter  notifying Davis of the Department’s conclusions, and on October 20, 2021, the Department entered into a settlement agreement  with Davis to address its violations of the Equal Protection Clause.  Under the Agreement, Davis will take significant steps to prevent and appropriately respond to racial harassment and other discrimination, including to: create a new department to handle complaints of race discrimination; train staff on how to identify, investigate, and respond to complaints of racial harassment and discriminatory discipline practices; inform students and parents of how to report harassment and discrimination; create a centralized, electronic reporting system to track and manage complaints and Davis’s response to complaints; implement student, staff, and parent training and education on identifying and preventing race discrimination, including discriminatory harassment; analyze and review discipline data and amend policies to ensure non-discriminatory enforcement of discipline policies; and develop a districtwide procedure to assess requests for student groups and treat such requests fairly.  The Department will carefully monitor Davis’s implementation of this agreement, which will remain in place through the 2024-2025 school year. For more information, please see this  summary and the  press release . An Amendment to the 2021 Agreement is available, here .

In October 2012, counsel for the Sikh Coalition filed a complaint with the Department of Justice alleging that a middle school student had been repeatedly targeted with verbal and physical harassment because of his Sikh faith. The United States has authority to investigate and resolve complaints of religious and national origin harassment through its enforcement of Title IV of the Civil Rights Act of 1964.

Following an inquiry into the student-specific complaints, the United States notified the district of its concerns that the district had failed to respond promptly and appropriately to the Sikh Coalition's allegations of harassment, including allegations that the student was called "Aladdin" because he wore a turban and was told by a fellow student to "go back to his country." The United States also raised concerns that the district had not investigated witness statements that the student had been called a "terrorist" and that there was a history of fellow students targeting him because of his turban. The United States also found that the disciplinary measures the district did take had not been effective in ending the harassment, and that the student feared continued harassment.

The district worked cooperatively with the United States to resolve the complaint and ensure greater protections for the student. The May 2013 Resolution Agreement, which will be in effect until the end of the 2014-2015 school year, requires the district to: work with a consultant to develop and implement anti-harassment training at the student's middle and high school; immediately implement a safety plan to ensure that the student is safe at school and, should incidents of harassment occur, that the district responds quickly and effectively; and meet with the student, his family, and administrators from his middle school and the high school where he will enroll, to identify key school personnel who can support the student should any future incidents of harassment occur. The Parties also agreed to continue to work collaboratively to resolve the United States' remaining concerns regarding the district's anti-harassment policies, procedures, and practices, and to ensure that district students and employees had appropriate training and guidelines on their federal civil rights and obligations as they pertain to harassment based on religion and national origin.

As a result of that joint effort, the district and the United States agreed to a second Resolution Agreement in November 2014 that supplements the existing and operative May 2013 agreement. The districtwide agreement, which will be in effect through the 2016-2017 school year, is designed to enhance the district's ability to prevent and respond to peer-on-peer harassment based on national origin and religion and to provide clear and consistent procedures for reporting, investigating, and responding to such conduct. The agreement requires the district to: review and revise all district anti-harassment and discipline policies and procedures to ensure consistency with the district's obligations under federal law; ensure that parents and students with limited English proficiency have access to essential information, including discipline policies and procedures, in a language they understand; develop and implement annual age- and position-appropriate trainings on religious and national origin harassment for all students, district and school administrators, faculty, and staff; and continue to build upon the district's existing anti-bullying initiatives and the May 2013 resolution agreement.

For more information, please see this press release .

EOS Fact Sheet: AAPI MASSA

EOS Fact Sheet: AAPI MASSA (Punjabi)

The Department of Justice, through the Civil Rights Division and the United States Attorney’s Office for the Northern District of Georgia, filed a statement of interest on July 7, 2020 in the U.S. District Court for the Northern District of Georgia in Doe v. Fulton County School District.  In this case, the plaintiff, a middle school girl with significant physical, developmental, and intellectual disabilities, alleges that the Fulton County School District   subjected her to unlawful discrimination on the basis of sex.  Her claims of discrimination arise from an escalating series of sexual assaults and rape that she endured at the hands of other students while riding on a District special needs school bus, all with no intervention by the bus driver.  The plaintiff seeks damages under Title IX of the Education Amendments of 1972, Title II of the Americans With Disabilities Act, and Section 504 of the Rehabilitation Act, as well as injunctive relief under the Georgia Open Records Act.  On June 15, 2020, the District filed a Motion to Dismiss, arguing primarily that the knowledge of a bus driver categorically may not be attributed to the District for purposes of plaintiff’s discrimination claims.  In its statement of interest, the United States advises the court that determining whether a school district employee is an “appropriate person” under Title IX is fact-dependent and thus may not be based on the employee’s title alone.  The United States concludes that proper application of Title IX case law requires that plaintiff be permitted to demonstrate facts in support of her allegations and that the Defendant’s Motion to Dismiss should therefore be denied.

In November 2010, the Department of Justice received a complaint alleging that students in the school district were being harassed by other students because they didn't dress or act in ways that conform to gender stereotypes. Pursuant to Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, the Departments of Justice and Education conducted an extensive investigation into sex-based harassment in the district's middle and high schools. Many students reported that the unsafe and unwelcoming school climate inhibited their ability to learn.

Six student plaintiffs filed a lawsuit against Anoka-Hennepin School District in the United States District Court for the District of Minnesota in July 2011. In August 2011, the Court asked the United States to join in the mediation of the lawsuit. On March 5, 2012. The United States, the six student plaintiffs, and the District filed a Consent Decree , which was entered by the Court on March 6, 2012. Also on March 5, 2012, the three parties filed a Joint Motion to Approve the Proposed Consent Decree and a Memorandum of Law in Support of the Joint Motion to Approve the Proposed Consent Decree , and the United States filed its Complaint-in-Intervention .

The Consent Decree requires the school district to retain an expert consultant in the area of sex-based harassment to review the district's policies and procedures concerning harassment; develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools; enhance and improve its training of faculty, staff and students on sex-based harassment; hire or appoint a Title IX coordinator to ensure proper implementation of the district's sex-based harassment policies and procedures and district compliance with Title IX; retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment; provide for other opportunities for student involvement and input into the district's ongoing anti-harassment efforts; improve its system for maintaining records of investigations and responding to allegations of harassment; conduct ongoing monitoring and evaluation of its anti-harassment efforts; and submit annual compliance reports to the departments during the five year life of the Consent Decree. For more information on the Consent Decree, please see this press release .

In 2008, the U.S. Department of Justice began investigating Colorado Springs' Falcon School District 49 in response to complaints that the District was not adequately responding to incidents of racial harassment and discrimination in its schools. On January 25, 2010, the parties executed a settlement agreement to resolve the United States' concerns. A modified settlement agreement designed to address the District's non-compliance with the parties' original settlement agreement was executed on October 14, 2014. The modified settlement agreement requires the District to adequately address incidents of racial harassment by keeping adequate records, analyzing those records, training teachers and students, and providing appropriate disciplinary responses. For more information on this settlement, please see this press release and agreement.

On November 12, 2020, the Section and the U.S. Attorney’s Office for the Western District of Washington entered into a Settlement Agreement with Federal Way Public Schools in Federal Way, Washington to resolve an investigation into allegations of peer-on-peer harassment on the basis of religion and national origin between 2014 and 2018, and that the District failed to properly communicate with parents and guardians who are not English language proficient. The Department initiated its investigation under Title IV of the Civil Rights Act of 1964 in response to complaints by parents alleging their children had been subjected to severe and pervasive religion- and national-origin-based harassment that went unaddressed by the District. The complaints alleged that other students repeatedly called Muslim students “terrorists,” pulled off their hijabs, and physically assaulted them, and told a Latina student to “Go back to Mexico,” threatened to kill her, and physically assaulted her. The Department also investigated complaints that the District failed to properly communicate with parents and guardians with English language barriers as required by the Equal Educational Opportunities Act of 1974. Under the Agreement, the District will take proactive steps to improve its ability to prevent and appropriately respond to peer-on-peer harassment based on religion and national origin. Those steps include retaining consultants to provide technical assistance to support a review of the District’s harassment policies, practices, and procedures, as well as the District’s training on and implementation of protocols for such policies. The Agreement also requires the District to work with the consultants to assess its resources and build capacity at individual schools and at the District level to ensure that antiharassment policies are properly implemented. The District will also provide training for students and faculty, and will survey the educational environment and effectiveness of measures taken pursuant to the Agreement. Lastly, the District will ensure that it communicates essential school-related information in a language that parents and guardians with limited English proficiency understand so that their children can access the District’s educational programs. The Section will monitor compliance with this three-year agreement. For more information, please see this press release  and Extension Agreement .

Settlement Agreement: English | Español (Spanish) | العربية (Arabic) | Soomaali (Somali)    

On February 6, 2013, the U.S. District Court for the District of Arizona approved a Unitary Status Plan ("USP") filed by the Department of Justice, together with private plaintiffs and the Tucson Unified School District. The USP is the latest step in this longstanding desegregation case, originally filed in 1974. The United States intervened in the case in 1976. In 2012, after extensive negotiations, the parties jointly submitted the USP, a four-year plan requiring the District to undertake a robust set of measures to desegregate its schools. The USP touches on nearly every aspect of school operations and lays a strong foundation for a high quality educational environment for all students. For more information, please see this press release .

On December 1, 2021, the Section entered into a settlement agreement with the Frederick County Public School District in Maryland to address the discriminatory use of seclusion and restraint against students with disabilities.  The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) into complaints that the school district inappropriately secluded and restrained children enrolled in the district’s specialized programs for students with autism and emotional and behavioral disabilities.  Under the settlement agreement, the school district will take proactive steps to ensure that its practices do not discriminate against students with disabilities.  The district will, among other things: prohibit the use of seclusion; report all instances of restraint and evaluate whether they were justified; designate trained staff to collect and analyze restraint data and oversee the creation of appropriate behavior intervention plans; deliver appropriate training and resources to help schools implement the agreement; design and implement procedures for handling complaints about restraint; offer counseling and compensatory education services to students with disabilities who were subjected to the district’s discriminatory practices; and hire an administrator to supervise school-based staff and ensure the district’s compliance with the agreement and Title II of the ADA.  For more information, please see this letter , press release , and summary of the agreement .

In this matter involving the Ganado Unified School District in Arizona, the Section conducted a review to determine whether the district was providing appropriate services to English Language Learner (“ELL”)  students as required by the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. §1703(f).  On February 18, 2014, the Section and the district entered into an out-of-court settlement agreement to resolve the district’s noncompliance with the EEOA.  The agreement requires the district to: improve language acquisition instruction to ELL students; conduct significant training for staff and teachers of ELL students; provide adequate materials to support their acquisition of English and academic content; monitor ELL students who opt out of ELL services and after they exit such services to ensure they are participating equally in instructional programs; and evaluate the effectiveness of the ELL program.  The training-related remedies require teachers to facilitate ELL students’ access to the grade-level core content curriculum by using appropriate instructional strategies and providing a culturally responsive learning environment.  For more information, please see this press release .

The U.S. Department of Education Office for Civil Rights (OCR) partnered with the U.S. Department of Justice, Civil Rights Division - Educational Opportunities Section (DOJ) to initiate a compliance review of the Gallup-McKinley County School District (District). The purpose of the review was to determine whether the District discriminated against Native Americans by excluding them from college and career readiness programs and courses, such as Gifted and Talented (GATE), Advanced Placement, International Baccalaureate and honors courses. We also evaluated whether the District discriminated against Native American parents by failing to ensure meaningful access to the information surrounding the aforementioned programs and courses.

On June 16, 2017, the District entered into a Resolution Agreement to address OCR and the DOJ’s concerns. As part of the Agreement, the District agreed to (i) retain a consultant to examine and make recommendations to address the underrepresentation of Native American students in the college and career readiness programs and courses; (ii) improve outreach to the Native American community to ensure that Native American students and their parents are timely informed about the various college and career readiness programs and courses, including the application and admission processes and procedures; (iii) review and revise its practices and procedures for identifying and recommending students to college and career readiness programs and courses; (iv) provide mandatory training to teachers involved in the identification or referral of students to the college and career readiness programs and courses; (v) increase the number of college and career readiness programs and courses offered in its high schools; (vi) monitor the academic performance of students enrolled in the college and career readiness programs and courses, providing academic support where necessary; and (vii) provide language assistance, including translation services, for limited English proficient parents/guardians.

On January 4, 2001, the court approved a five-year consent decree negotiated by the parties to eliminate further the vestiges of segregation in the Tennessee system of public higher education. Under this consent decree, the State committed to creating new high-demand programs at TSU, particularly at the downtown campus (the former UT-N site), to appeal in particular to nontraditional students. Other efforts included revitalization of the downtown TSU campus, an increase in system-wide efforts to recruit black undergraduate students, and the creation and funding of a TSU endowment for educational excellence. In an order dated September 21, 2006, the court recognized the parties' efforts and achievements in the case in establishing a unitary system of public higher education in Tennessee, and approved the parties' joint motion for a final order of dismissal and terminated this longstanding litigation.

The Department of Justice and the Department of Education filed a statement of interest on June 29, 2015 with the U.S. District Court for the Eastern District of Virginia in G.G. v. Gloucester County School Board.  In this case, the plaintiff, a transgender boy, alleges that the Gloucester County School Board unlawfully discriminated against him and denied him equal treatment and benefits based on his sex when it passed a policy that prohibited transgender students from using facilities matching their gender identity.  The plaintiff, represented by the A.C.L.U., asked the court for a Preliminary Injunction to permit him to use the boys’ restrooms the beginning of next school year.  In the statement of interest, the departments advised the court that Title IX of the Education Amendments of 1972 prohibits discrimination against students because of their sex, including on the basis of a student's gender identity, transgender status, and nonconformity to sex stereotypes. The departments also stated that a sex-stereotyping claim can be based on an individual’s anatomical features, as well as behavior and appearance.  The departments concluded that the plaintiff's Motion for a Preliminary Injunction had a likelihood of success on the merits under Title IX and that granting the relief would serve the public interest.

A sixth-grade student who practiced Islam wore her hijab, a religious head covering, for several weeks at the beginning of the 2003-04 school year in the Muskogee Public School District. On September 11, 2003, school officials told the sixth-grader that she could no longer wear her hijab because of the “no hats” policy in the school’s dress code. The dress code, however, had not been applied consistently, and the school district had allowed students to wear hats for medical, educational, and other secular purposes. When the sixth-grader refused to remove her hijab, she was suspended for eight days.

In October 2003, the student, through her father, sued the school district for alleged violations of her constitutional rights and Oklahoma law. The United States opened an investigation in November 2003, and then intervened in the lawsuit upon finding evidence to support a claim based on the denial of her rights under the Equal Protection Clause of the Fourteenth Amendment. On May 6, 2004, the United States filed a motion for summary judgment and an accompanying memorandum in support .

On May 20, 2004, the parties negotiated a consent order . Under the six-year consent order, the school district must: allow the plaintiff to wear her hijab; make similar religious accommodations for any other student in the school system who has a bona fide religious objection to the dress code; implement a training program for all teachers and administrators regarding the revised dress code; and publicize the revisions to students and parents. The district also must certify its compliance with the terms of the order to the United States for a four-year period. The private plaintiffs and the school district also negotiated a confidential damages settlement and the claim for expungement of her school records. For more on this settlement, please see the press release linked here.

In this matter involving the Horry County Schools, the Section examined whether South Carolina’s third-largest public school district was providing appropriate services to its rapidly growing population of English Learner (“EL”) students, as required by the Equal Educational Opportunities Act of 1974 (“EEOA”). On August 24, 2017, the Section and the district entered into an out-of-court settlement agreement outlining the steps that the district would take to resolve the issues identified by the United States and ensure compliance with Section 1703(f) of the EEOA. Among other things, the agreement required the district to: properly identify and place EL students when they enroll in school; provide adequate language services to all EL students, including those with disabilities, so that they can become proficient in English and access grade-level core content instruction; secure enough teachers certified in English as a Second Language to serve all EL students; adequately train the administrators and teachers who implement the EL program; monitor the academic performance of current and former EL students; and evaluate the effectiveness of the EL program over time. The agreement required the district to regularly report to the Section on the agreement’s implementation; the agreement was terminated December 2023.

In a long-standing desegregation case, the Huntsville City Schools proposed plans for construction to replace or expand several schools. Following negotiations, the United States agreed not to oppose the district's proposed motion for approval of school construction plan, which the district submitted to the U.S. District Court for the Northern District of Alabama. The court approved the plan on May 20, 2013. On April 21, 2015, the court issued an opinion setting forth its reasons for approving a consent order jointly filed by the United States and the Huntsville City Schools. The consent order revises attendance zones and strengthens magnet offerings across the school district; expands access to pre-K, gifted programs, advanced course offerings, academic after-school programs, and college counseling; and includes comprehensive remedies to address racial discrimination in student discipline, among other areas.

On August 28, 2023, the Section and the U.S. Attorney’s Office for the District of Kansas entered into a Settlement Agreement with Highland Community College in Kansas to resolve an investigation into allegations it discriminated against Black students—primarily Black student-athletes—on the basis of race in the administration of its discipline, housing and campus security policies and procedures, and its response to complaints of racial discrimination. The investigation was conducted under Title IV of the Civil Rights Act of 1964. Under the settlement, the college will strengthen its policies and procedures to ensure an effective response to  students’ complaints of racial discrimination and clarify campus security policies, procedures, and training to promote consistent, non-discriminatory interactions between security personnel and students. The college will, among other steps, train relevant staff on how to respond to and resolve allegations of discrimination; promote fair and equitable application of discipline policies and analyze discipline data to ensure non-discrimination; train campus security and other staff on effective de-escalation techniques and non-coercive methods of gathering information; survey and improve the climate and culture of the college’s main campus and cultivate safe, welcoming spaces for Black students; and ensure students’ equitable access to the college’s education programs and activities regardless of race. For more information, please see the cover letter to the agreement and press release .

On November 22, 2022, the Section entered into a settlement agreement with Illinois Central College in Peoria, Illinois, to ensure that students with disabilities have access to the College’s programs, and to address concerns related to the College’s process for investigating complaints of disability discrimination. The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) based on allegations that a student with a hearing disability was denied access to the College’s theatre program, and that the College failed to adequately investigate the student’s complaint. Under the settlement agreement, the College will update its investigation process to ensure that student complaints of disability discrimination are handled in a fair and timely manner. In addition, the College will train the managers and staff involved in investigations, as well as staff in the College’s theatre department, on the new complaint investigation procedures and the requirements of the ADA. Finally, the College will appoint an ADA Coordinator charged with overseeing implementation of the revised processes and compliance with Title II of the ADA.

In this matter involving the Illinois State Board of Education (ISBE), the Section conducted a review to determine whether ISBE was providing appropriate guidance and monitoring of school districts' services to English Language Learner ("ELL") students as required by the Equal Educational Opportunities Act of 1974 (EEOA). The Section determined that ISBE was violating the EEOA because its administrative rules and guidance did not ensure that districts serve ELL students beyond the three-year requirement under State law for transitional bilingual education (TBE) and transitional program of instruction (TPI) services. Although ISBE denied violating the EEOA, it agreed to revise its administrative rules and guidance to make clear that ELLs must receive services until they achieve English proficiency on the State's mandated test. The amended rules were approved by ISBE on June 24, 2010, were cleared by the Joint Committee on Administrative Rules on July 13, 2010, and will take effect once filed with the Illinois Secretary of State. See press release . The amended rules require school districts that terminate TBE and TPI services at year three to submit to ISBE a plan explaining the ELL services to be provided beyond year three, the staff providing such services, and the resources available to implement those services. ISBE also agreed to monitor these plans to determine if they are sufficient and appropriately implemented. ISBE further agreed that it will issue guidance identifying educationally sound ELL services that could be provided in lieu of TBE and TPI services after year three. ISBE released this guidance in March 2011. Pursuant to the agreement between the Department and ISBE, ISBE will apply the amended rules and this guidance when monitoring districts' ELL programs.

Following negotiations, the parties agreed to a consent order , which the court approved on July 14, 2000. The order required the district to take steps to increase African-American student participation in its gifted program and its advanced classes. To decrease the number of African-American students in resource classes, the order also required the district to annually evaluate students in resource classes to determine if placement in a regular class would be more appropriate. The JISD provided three reports in conjunction with its requirements under the order, as well as supplemental reports requested by the Section. On October 16, 2001, the parties agreed to, and the court signed, an agreed order of dismissal , indicating that the JISD had achieved unitary states in all facets of its operations.

In September 2012, the U.S. Department of Justice, Civil Rights Division and the U.S. Department of Education, Office for Civil Rights began investigating the Jefferson Parish Public School System ("JPPSS") after the Departments received several complaints alleging violations of federal civil rights laws. Specifically, the complaints concerned JPPSS's policies and practices for student registration, enrollment, and graduation; JPPSS's policies and practices for communicating with national origin minority parents who have limited English proficiency; and JPPSS's response to alleged harassment of Latino students based on their national origin. After requesting and reviewing documents and information provided by JPPSS, the Departments visited Jefferson Parish and interviewed many administrators, faculty, and students in May 2013. At the conclusion of the Departments' visit, JPPSS voluntarily agreed to resolve the investigation by entering into an agreement that includes school-specific and parish-wide remedial measures to address the United States' concerns.

The agreement, signed by the parties on July 9, 2014, will ensure that all students who reside in Jefferson Parish can enroll in school regardless of their or their parents' national origin or immigration status. The agreement also requires JPPSS to review and revise its policies and practices for communicating with national origin essential parents who have limited English proficiency to make sure that parents receive important information in a language they can understand. Additionally, JPPSS will review and revise its policies and practices to ensure that all complaints alleging discrimination on the basis of race, color or national origin, including allegations of harassment, are appropriately investigated and resolved.

For more information, please see this press release and the full agreement available in English and Spanish.

Summary in: Spanish.

Summary in: Arabic.

Summary in: Vietnamese.

On January 14, 2010, in the Northern District of New York, the Section moved to intervene in J.L. v. Mohawk Central School District. The lawsuit was filed by the New York Civil Liberties Union on behalf of J.L., a 15-year-old student in the District. J.L. alleged that the District violated state and federal laws including the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972, both of which prohibit discrimination based on sex, including discrimination based on failure to conform to gender stereotypes. According to the United States' motion , J.L. failed to conform to gender stereotypes in both behavior and appearance. He exhibited feminine mannerisms, dyed his hair wore makeup and nail polish, and maintained predominantly female friendships. The alleged severe and pervasive student-on-student harassment based on sex escalated from derogatory name-calling to physical threats and violence. The United States further alleged that the District had knowledge of the harassment, but was deliberately indifferent in its failure to take timely, corrective action, and that the deliberate indifference restricted J.L.'s ability to fully enjoy the educational opportunities of his school. The District denied all allegations. Prior to the court ruling on the United States' intervention motion, an out-of-court settlement was reached among J.L., the District, and the United States. The court approved the settlement agreement on March 29, 2010. The agreement requires the District to (1) retain an expert consultant in the area of harassment and discrimination based on sex, gender identity, gender expression, and sexual orientation to review the District's policies and procedures; (2) develop and implement a comprehensive plan for disseminating the District's harassment and discrimination policies and procedures; (3) retain an expert consultant to conduct annual training for faculty and staff, and students as deemed appropriate by the expert, on discrimination and harassment based on sex, gender identity, gender expression, and sexual orientation; (4) maintain records of investigations and responses to allegations of harassment for five years; and (5) provide annual compliance reports to the United States and private plaintiffs. Lastly, $50,000.00 will be paid to J.L. and $25,000.00 in attorneys' fees will be paid to the New York Civil Liberties Foundation.

On May 5, 2006, Junior Does filed a complaint against the Allentown School District alleging that, as six- and seven-year-old students, they were sexually assaulted by another student in the bathrooms at Central Elementary School during the 2003-2004 school year. On April 21, 2009, Junior Does amended their complaint to include a sex discrimination claim pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and on July 10, 2009, the Division intervened. On August 3, 2011, Junior Does again amended their complaint to include allegations that a fifth student was sexually assaulted, adding another minor plaintiff as a party.

In the case, the Division alleged the following: that sexual assaults occurred on at least five separate occasions; that the district was made aware of each incident immediately after it occurred; and that despite this notice, the district did not take appropriate action, and in some circumstances took no action, to prevent the harassment from recurring. Furthermore, the department alleged that both before and after the sexual harassment of the students, the district failed to adopt and implement adequate and effective sexual harassment policies and procedure as required by federal law; had the district adopted and implemented such policies and procedures, the district would have prevented the continued sexual assault of students.

After extensive discovery, the Division and the school district negotiated a consent decree . The court approved the proposed consent decree on July 31, 2012. The consent decree provides for substantial systemic relief and requires the school district to take the following steps: develop and implement a comprehensive plan for addressing and preventing sexual harassment in all district schools; retain an expert consultant in the area of student-on-student harassment to draft and implement a sexual harassment policy and procedures; provide training to administrators, faculty, staff, students and parents on sex-based harassment; select qualified district and school-based equity coordinators to ensure proper implementation of the district's harassment policies and procedures and compliance with Title IX, including prompt investigation, resolution and reporting of sexual harassment complaints and allegations; create procedures for identifying, monitoring, and supervising students with a confirmed history of sexual harassment toward other students; develop and implement policies and procedures for communicating with outside agencies, such as police, hospital and child protection agencies, of allegations of sexual harassment in the district; and submit annual compliance reports to the Division.

On July 1, 2016, the Section and the United State Attorney’s Office for the District of Kansas filed two statements of interest to assist the U.S. District Court for the District of Kansas with evaluating the Title IX sexual assault claims in T.F. v. Kansas State University and S.W. v. Kansas State University . In these cases, the plaintiffs, both students of Kansas State University (K-State), allege that K-State discriminated against them on the basis of sex in violation of Title IX when K-State allegedly refused to respond to or investigate their reports of sexual assault by K-State students during parties hosted at and by fraternities recognized and supported by K-State. In the statements of interest responding to K-State’s motions to dismiss the plaintiffs’ Title IX claims, the United States advised the court that Title IX imposes an obligation on federally-funded schools to respond to reports of rape that occurred at off-campus school-recognized fraternity houses and events and to determine if a hostile educational environment exists in such school-recognized activities or other education programs or activities. The United States further argued that under the proper Title IX standards, Plaintiffs’ Title IX claims for damages and equitable relief should be allowed to proceed. On March 14, 2017, after considering the parties pleadings and the United States’ statements of interest, the court denied K-State’s motions to dismiss the plaintiffs’ Title IX claims, holding that both plaintiffs had alleged the elements required to state a plausible Title IX harassment claim. Specifically, the court held that the plaintiffs plausibly alleged that K-State had substantial control over the alleged assailants and the context of the assaults, which were so severe as to deny plaintiffs access to educational benefits and opportunities, and that K-State’s alleged deliberate indifference to the plaintiffs’ reports of rape made them “liable or vulnerable” to further harassment or assault.

Memorandum and Order - T.F. v. K-State       

Memorandum and Order - S.W. v. K-State

In this case, formerly known as Lau v. Nichols, the United States Supreme Court held that the San Francisco Unified School District (SFUSD) had violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and its implementing regulations by failing to provide special programs designed to rectify the English language deficiencies of students who do not speak or understand English, or are of limited English-speaking ability, and by failing to provide these students with equal access to the instructional program. Lau v. Nichols, 414 U.S. 563 (1974). The Supreme Court remanded the case for the fashioning of appropriate relief. On October 22, 1976, the parties entered into a Consent Decree that incorporated a Master Plan that requires bilingual-bicultural education for the English Language Learner (ELL) students who speak Chinese, Filipino, and Spanish. Chinese and Spanish bilingual programs continue subsequent to the passage of California's Proposition 227. The Consent Decree also requires the provision of other special programs and English as a Second Language (ESL) for ELL students of other language groups, as well as the provision of bilingual instruction, whenever feasible. The Consent Decree calls for annual reporting to the Court by the SFUSD regarding its ELL programs and the establishment of a Bilingual Community Council (BCC) to assist the SFUSD in filing these annual reports.

On August 24, 2006, the Court issued an order requiring the parties to show cause why the Court should not relieve the SFUSD of responsibility for reporting under the extant Consent Decree. The United States filed a response to the show cause order that identified problems with the ELL programs and recommended continued reporting by the SFUSD, additional on-site visits of the ELL programs, and the development of an updated Master Plan for ELL programs. The SFUSD and the private plaintiffs filed responses agreeing to this approach for going forward. The Court continued the reporting obligations and assigned the case to an active judge. On May 1, 2007, the new judge held a status conference in which he agreed to let the parties continue their school visits and work collaboratively on developing an updated Master Plan. The United States' consultant and members of the BCC completed visits to twenty-four schools on May 18, 2007. The parties agreed to a new Master Plan that would replace the outdated plan and filed a stipulated application to modify the 1976 Consent Decree. On September 11, 2008, the Court approved the new Master Plan and entered an order modifying the 1976 Consent Decree.

The United States and the Private Plaintiffs then monitored SFUSD's implementation of the 2008 Master Plan through the District's annual reports, regular site visits, community meetings, and communications with parents and students. To resolve the United States' and Private Plaintiff's consistent concerns about SFUSD's compliance, the parties negotiated a Modified Consent Decree (MCD) . On June 24, 2015, the parties jointly filed a motion and supporting memo seeking court approval of the MCD. The MCD, approved by the court on June 29, 2015, requires SFUSD to, among other things: promptly identify, assess, and place EL students in effective EL programs; offer a range of EL programs and services to meet the needs of all EL students, including newcomers, students with disabilities, and long-term EL students; expand translation and interpretation services for LEP families; adequately train employees who serve EL students so that they can fulfill their roles; and conduct robust monitoring. The MCD also protects the educational rights of the district's most at-risk and vulnerable EL students who are learning in alternative education or juvenile justice settings. If SFUSD implements the MCD fully and in good faith, the MCD and this historic case are expected to end in the fall of 2018. For more information about the MCD, please see the June 24, 2015 press release . Translated copies of the MCD are linked here in Chinese , Spanish , Vietnamese , Filipino , and Arabic .

This statewide settlement resolved issues relating to the overrepresentation of black students in the mental retardation and emotional disturbance special education classifications and the underrepresentation of black students in the specific learning disabilities and gifted and talented special education classifications. This consent decree , approved by the court on August 30, 2000, involves special education issues that were raised as a result of information gathered during unitary status reviews in eleven desegregation cases pending before the United States District Court in the Middle District of Alabama. Parties to the decree include the United States, private plaintiffs, and the Alabama State Department of Education.

The settlement required the State of Alabama to undertake initiatives in providing teacher training, to establish a program to improve reading achievement, and to make changes to Alabama administrative law in the areas of pre-referral, referral, evaluation procedures, and eligibility criteria. This emphasis on pre-referral intervention services resulted in substantial changes over the six years of implementing the consent decree. There have been significant reductions in racial disparities in the special education classifications of mental retardation (MR), and disparities have been virtually eliminated in the classifications of emotional disturbance (ED) and specific learning disabilities (SLD). There also has been an overall decrease in the number of students classified as MR or ED, and increases in students classified as SLD. The number of black students classified as gifted also has increased.

The settlement also required reevaluation of certain categories of minority students who had been identified as MR. As a result, several hundred students who had been inappropriately placed as MR were exited from special education. These students were provided with appropriate supplemental services to help transition successfully into the general education program, and were carefully monitored during this process.

On February 12, 2015, the U.S. District Court for the Northern District of Alabama approved a consent order filed by the Justice Department, together with private plaintiffs and the Calhoun County, Alabama School District, in this longstanding desegregation case. The order found that the district has met its desegregation obligations in certain areas and providing for additional, comprehensive relief in the areas of faculty and staff hiring and recruitment and student discipline and school climate.

In approving the consent order, the district court declared that the 9,200-student school district has eliminated the vestiges of prior segregation in the areas of student assignment, extracurricular activities, school facilities, and transportation, thereby ending the court's supervision in those areas. The order requires the district to take additional steps to reach full compliance, including adopting measures to promote racial diversity in its faculty and staff, expanding its use of positive behavioral supports and interventions throughout its schools, and revising its student discipline policies and procedures to ensure they are fair, non-discriminatory, and limit the use of exclusionary discipline such as suspensions and expulsions.

In this school desegregation case, the parties entered into a consent decree , which provided for the closure of two K-12 schools and the consolidation of the students into two central school zones. One of the K-12 schools to be closed had a virtually all-white student body and had never graduated a black student. The day after the decree was filed, the school board voted to rescind its consent. The Section filed a motion to enforce the consent decree , arguing that once the board had given its consent, granted authority to counsel to sign on its behalf, and jointly filed the consent decree, the board was bound by the terms of the consent decree.

At the same time, two groups moved to intervene in the case for the purpose of opposing the consent decree. The groups comprised parents, students, and other citizens from each of the two schools scheduled for closure. The Section filed briefs opposing both motions for intervention – one against the Mellow Valley School intervenors and one against the Bibb Graves School intervenors – arguing that the proposed intervenors did not express a cognizable interest in furthering desegregation, and, even if they had, the United States and private plaintiffs adequately represented any such interest.

On May 13, 2003, the district court accepted all of the Section's arguments and entered an order (1) denying the Board's motion to rescind its consent, (2) denying both motions to intervene, and (3) enforcing the consent decree. The parties worked to implement the consent decree, and the two schools were successfully closed prior to the beginning of the 2003-04 school year. The two groups of unsuccessful intervenors appealed to the Eleventh Circuit Court of Appeals, which ultimately dismissed the appeal for lack of jurisdiction.

In this matter involving the Lewiston, Maine school district, the United States reviewed whether the district was providing appropriate instruction and services to English Language Learners (ELLs)–particularly among the district’s large population of Somalian refugees–as required by the Equal Educational Opportunities Act of 1974 (EEOA). On June 4, 2007, the school district and the United States entered into a settlement agreement outlining the measures that the school district will take to ensure its compliance with the EEOA. The agreement requires the district to develop, among other things: standardized curricula for ELLs; adequate teacher training and collaborative opportunities; systematic monitoring and reporting on the academic progress of ELLs; and a comprehensive ELL program evaluation model.

The Section investigated complaints about whether (i) the Lewiston Public School District’s shortening school days for students with disabilities by placing them on an “abbreviated” school day schedule violated Title II of the Americans with Disabilities Act (ADA) and (ii) the District’s English Learner (EL) programs and practices complied with Section 1703(f) of the Equal Educational Opportunities Act of 1974 (EEOA). The investigation found that the District routinely shortened school days for students with disabilities because of behavior related to their disabilities without considering their individual needs or testing alternative interventions or supports to keep students in school for the full day.  The investigation further revealed that the District failed to provide EL students with the instruction and support needed to become proficient in English and participate equally in school.  On May 27, 2021, the District and the United States entered into an out-of-court settlement agreement to resolve the compliance issues identified by the United States, including: ensuring students with disabilities receive supports they need to remain in school for the full day; developing policies and procedures for non-discriminatory abbreviated school day placements; and ensuring that all special education personnel, school counselors, and school psychologists receive training on appropriately responding to disability-related behaviors. The agreement also requires the District to provide English as a Second Language (ESL) instruction to all of its EL students and targeted programming for those ELs with limited or interrupted formal education; fully staff its EL programs with ESL-certified teachers; provide training to principals and teachers; communicate effectively with Limited English Proficient parents about school activities; and monitor the EL program over time to evaluate its efficacy.  The agreement will remain in place for three school years.  For more information, please see this press release in  English , Somali , Swahili , French , Spanish , and Portuguese . Translated versions of the agreement are also available in Somali , Swahili , French , Spanish , and Portuguese .

This historic desegregation involving the St. Louis Public Schools (SLPS) began in 1972.  The Section continues to monitor the SPLS’s compliance with a 1999 Agreement that set forth requirements to ameliorate the effects of segregation through voluntary interdistrict transfers, remedial programs, school improvement and accountability, and the provision of funds from the state to the SLPS.  This Agreement has been consensually modified by new orders and agreements in recent years, including a 2011 agreement that allowed for the use of desegregation funds for specific programs, such as magnet school transportation, principal leadership training, early childhood, and enhanced computing and technology in the SLPS.  Section 10 of the 1999 Agreement set aside funds for “construction and site acquisition costs to accommodate any reasonable anticipated net enrollment increase caused by any  reduction or elimination of the voluntary transfer plan.” 1999 Agreement, Section 10, at 12 .  While the parties anticipated in 1999 that the voluntary transfer program would continue for a number of years, Section 10 was designed to provide for SLPS’ capital needs if the transfer program ended and numerous students returned at one time to the SLPS.  Over the years, however, the assumptions underlying creation of the Section 10 fund did not come to pass, primarily as a result of population declines, the advent of charter schools, and the ongoing commitment by both city and county schools to the voluntary transfer program. Accordingly, in 2013, the court approved the parties’ agreement to allow the use of certain remedial funds set aside in the desegregation account to provide continued funding for the St. Louis Community Monitoring and Support Task Force.

On July 30, 2007, Kimberly Lopez filed a complaint against the Metropolitan Government of Nashville and Davidson County (“Metro”) alleging her son was sexually assaulted by another student while riding a special education school bus operated by Metro. On April 30, 2008, Plaintiff amended her complaint to add a sex discrimination claim against Metro pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Recognizing the United States’ substantial interest in ensuring recipients of federal funds do not discriminate on the basis of sex in violation of Title IX, the Court issued an order granting the United States Motion to Intervene and permitting the United States to file its complaint in intervention. In January 2009, the United States moved for summary judgment , and subsequently opposed Metro’s cross-motion for summary judgment on Plaintiffs’ Title IX claim and submitted a reply brief in support of its own motion. On July 7, 2009, the Court issued a memorandum opinion denying the parties' cross-motions for summary judgment but adopting the Section’s interpretation of Title IX in numerous key respects. On February 8, 2010, the parties entered into a consent decree that obligates the Nashville Public School District to take substantial steps to enhance the security of students with disabilities on its public school transportation system. These steps include staffing bus monitors to assist drivers on all special education buses; implementing comprehensive screening procedures to ensure that students with disabilities are not assigned to buses where they would be at risk of harassment; expediting the investigation of suspected acts of sexual harassment involving students with disabilities; and ensuring open lines of communication between transportation officials and school-based personnel. Metro also agreed to pay Plaintiff $1.475 million as part of the settlement.

The Section intervened in this same-sex peer harassment case alleging the school district violated Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment by failing to respond appropriately to harassment of a student on the basis of sex. Specifically, the Section alleged in our complaint-in-intervention : from the eighth grade through the eleventh grade, Jeremy Lovins was subjected to harassment on the basis of sex (ostensibly because other students believed he was gay); Jeremy and his parents repeatedly informed school officials of the harassment but the harassment continued; and Jeremy was eventually subjected to an assault and forced to leave school because of the harassment. On July 31, 2000, the Court entered a consent decree settling the case

The consent decree included monetary relief for Mr. Lovins in the amount of $72,500 and injunctive relief. Under the consent decree, the school district agreed, among other things: to conduct a climate assessment of student-to-student and teacher-to-student relations within its schools; to develop a comprehensive plan to identify, prevent, and remedy harassment and discrimination on the basis of sex and sexual orientation; to educate and train teachers, staff, and students about the operation of the policy and procedures; to maintain written records of complaints and investigations; and to file implementation reports with the Section and the court.

The two plaintiffs alleged, among other things, that the Sullivan County Board of Education (SCBE) violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment by failing to appropriately address known student-on-student harassment on the basis of race. Specifically, plaintiffs' amended complaint alleges that both Michael and Marquita Madison, who are black, were subjected to ongoing racial harassment while attending Sullivan East High School (East). This harassment included a constant barrage of racial slurs, some made within earshot of teachers, racially derogatory graffiti on walls and desks, and racially offensive paraphernalia. Though school officials knew or should have known of the harassment, they failed to take appropriate steps to address it. Marquita eventually transferred to another school after her sophomore year. Michael fell victim to a racially-motivated assault outside the school cafeteria his junior year. He did not return to East after the assault and finished high school on homebound studies.

The Section filed its complaint-in-intervention , motion to intervene , and supporting memorandum in November 2000. In our complaint-in-intervention, we sought monetary relief for the plaintiffs and injunctive relief, such as policies and procedures to prevent or address such harassment in the future. The court granted the Section's intervention on November 28, 2000. The parties conducted discovery in 2001 and early 2002. Following discovery, the parties negotiated a consent order and monetary settlement of the Title VI and equal protection claims. Under the consent order , which was approved by the Court on October 16, 2002, the school system agreed to retain an expert to develop a comprehensive plan to prevent, identify, and remedy harassment and discrimination; provide an education and training program for teachers, staff, and students about the school district's policies prohibiting harassment and discrimination; and maintain written records of each harassment allegation received, investigation conducted and corrective action taken by the district to ensure a consistent and effective review of allegations. For more details about the settlement, please see the press release linked here .

On June 12, 2023, the Section entered into a  settlement agreement  with the Madison County School District to address complaints of race-based harassment in its schools. The agreement followed an investigation conducted under Title IV of the Civil Rights Act of 1964, based on allegations that the school district denied students equal protection of the laws based on their race. Under the settlement agreement, the school district will undertake significant institutional reforms. The district will, among other steps: revise its anti-discrimination policies and procedures; create three new central office positions to oversee effective handling of complaints of race discrimination; update its racial harassment and discipline policies to more accurately track and consistently respond to complaints of race-based harassment; train staff on how to identify, investigate, and respond to complaints of racial harassment and discriminatory discipline practices; inform students and parents of how to report harassment and discrimination; update its centralized, electronic reporting system to track and manage complaints and the district’s response to complaints; implement focus groups, conduct surveys, training and educational events on identifying and preventing race discrimination, including discriminatory harassment; and analyze and review its discipline data and amend its policies to ensure non-discriminatory enforcement of discipline policies. For more information, please see this  letter  to the District and  press release .

In this matter involving the Martin Luther King, Jr. Charter School of Excellence (“the School”), the Section and the United States Attorney’s Office for the District of Massachusetts examined whether the School was adequately serving its English Learner (EL) students, including EL students with disabilities, as required by Section 1703(f) of the Equal Educational Opportunities Act of 1974 (“EEOA”).  On March 10, 2020, the School and the United States entered into an out-of-court settlement agreement to address the issues identified by the United States and ensure the School’s compliance with Section 1703(f) of the EEOA.  Among other things, the agreement requires the School to: provide all EL students – who make up nearly a quarter of the School’s population – with an adequate amount of daily English as a Second Language (ESL) instruction taught by an ESL-certified teacher; actively recruit qualified, certified staff for ESL, core content area, and special education teaching positions; ensure all ELs with disabilities receive both ESL and special education services unless their parents/guardians voluntarily and knowingly waive one or both services; train special education and ESL-certified teachers who work with EL students with disabilities on how to provide services to ELs with disabilities; communicate with Limited English Proficient parents about essential school information in a language they understand; and properly monitor and evaluate the effectiveness of its EL program over time.  The parties anticipate that the agreement will remain in place through the end of the 2021-22 school year. 

Private plaintiffs filed this school desegregation case in 1965; the United States intervened later that year. On July 31, 1969, the Court approved the District's 1969-70 Revised Desegregation Plan, which was subsequently modified with the court's approval in 1970, 1971, 1973, 1975, and 1978. In 2007, the United States initiated a review of the District's compliance with the court's desegregation orders and applicable federal law. This review resulted in the filing of negotiated consent order, which was approved by the court on February 5, 2009. On July 27, 2012, the parties filed another motion for approval of a negotiated consent order, which was granted on August 21, 2012. On July 3, 2013, the parties filed another motion for approval of a negotiated consent order, which was granted on July 12, 2013 . The consent order requires the district to close four of its seven elementary schools, including three racially identifiable schools; construct a new school; modify its attendance zones; and implement a controlled choice program at two of its elementary schools. The consent order also will require the district to continue certain intra-district transfers that have the effect of furthering the desegregation of the district's schools. On March 5, 2014, the court approved amendments to the July 12, 2013 consent order, which extended the timeline for implementing the elementary desegregation plan and established monitoring and reporting requirements sought by the United States.  On October 11, 2023, the court declared the district had met its desegregation obligations in several areas of operations, including staff assignment, facilities, transportation and extracurricular activities, and approved a negotiated consent decree that requires the district to take measures to desegregate its gifted program and advanced and dual enrollment courses.  The consent order also requires the district to implement changes to its student discipline policies designed to reduce racial disparities in discipline and eliminate the use of corporal punishment.

In this matter involving the Mercer County School District in West Virginia, the Section conducted a review to determine whether the district was providing appropriate services to English Language Learner ("ELL") students as required by the Equal Educational Opportunities Act of 1974 ("EEOA"). After determining that the school district was not complying with Section 1703(f) of the EEOA, the United States entered into a settlement agreement with the school district on January 31, 2012. This agreement addressed, among other things, the school district's obligations to: timely identify and assess all students with a primary or home language other than English; serve ELLs with appropriate instruction; provide adequate teacher training; and carefully monitor the academic progress of current and former ELLs.

On September 26, 2016, the Division filed a Statement of Interest to assist the U.S. District Court for the Middle District of Florida in evaluating the plaintiffs’ claims under Title VI, its implementing regulations, and the Equal Educational Opportunities Act (EEOA) in Methelus v. School Board of Collier County .  The plaintiffs filed on behalf of their newly-arrived, foreign-born English Language Learner (ELL) children ages 15-17, arguing that the Collier County School Board (Board) has violated the EEOA and Title VI by refusing to enroll these children in its regular high schools and diverting some to enroll in Adult English for Speakers of Other Languages (ESOL) programs that charge a fee and do not earn credit toward a high school diploma.  Among other claims, the plaintiffs alleged that the Board’s practices did not constitute “appropriate action to overcome language barriers” under Section 1703(f) of the EEOA and intentionally discriminated against these foreign-born, ELL children on the basis for their national origin in violation of Title VI.  The Board moved to dismiss all of plaintiffs’ claims in their Amended Complaint.  The United States’ Statement of Interest , filed in response to the motion to dismiss, sets forth the legal standards applicable to the claim under Section 1703(f) of the EEOA, including the Castaneda v. Pickard standards binding on the Florida federal court. The filing explains why under those standards the plaintiffs adequately pled facts supporting a plausible Section 1703(f) claim.  The filing also sets forth the well-established Arlington Heights factors for evaluating intentional discrimination claims under Title VI, explaining how the plaintiffs’ factual allegations addressed many of these factors and sufficed to state a plausible Title VI claim.

On April 24, 2013, the Section entered into a settlement agreement with the Metropolitan School District of Decatur Township, Indiana to prevent and respond to peer-on-peer harassment in schools. The agreement resolved the Section's review of the district's policies and practices related to harassment and bullying, which was initiated in June 2011 after reports of possible racial harassment at a district school. The agreement requires the district to take a number of steps to prevent and address harassment based on race, color, national origin, sex, religion and disability, and to ensure a safe and supportive learning environment for all students. These steps include forming a district-wide anti-harassment task force to review and revise the district's policies and procedures related to harassment, bullying, and discipline; establishing a cohesive process for receiving, investigating and monitoring complaints of harassment and bullying, enabling the district to track repeated incidents involving individual students or groups targeted for their membership in a protected class; and providing training, professional development and school climate assessments for both students and staff at two of the district's schools. For more information, please see this press release .

On November 18, 1963, private plaintiffs filed this case complaining that the Gadsden City Board of Education was maintaining a segregated school system. On May 9, 1966, the Section intervened and joined the plaintiffs in seeking injunctive relief that would bring the school system into conformity with federal constitutional and statutory provisions.

Over the years, the court issued a series of orders aimed at eliminating the vestiges of past discrimination and completely desegregating the school system. In July 2003, the court approved the parties' proposed consent order that required the school district to take remedial actions in the areas of student assignment, personnel assignment, facilities, and quality of education. The consent order required the district to assign students randomly to classrooms and to enforce attendance zone lines strictly. With respect to personnel assignment, the consent order required the district to increase efforts to recruit minority teachers and to ensure that each school had a faculty whose racial diversity was reflective of the district-wide faculty. The consent order also required the district to make substantial improvements to its secondary schools so that these facilities were all of comparable quality. Finally, with respect to quality of education, the consent order required the district to equalize its offering of and access to advanced and honor classes among secondary schools. Having fulfilled these obligations, the district was declared unitary on August 26, 2005.

In this long-standing school desegregation case, the Jackson-Madison County School Board filed a motion for unitary status in December 1999, asserting that it had complied in good faith with prior desegregation decrees and had eliminated the vestiges of segregation to the extent practicable. The Section and the private plaintiffs opposed the board's motion for unitary status. The parties engaged in extensive negotiations, which resulted in an agreement shortly before trial in November 2000.

The agreement, which the court approved in December 2000, permits the board to proceed with its plan to construct five new schools and implement revised student attendance zones over the next four years. The agreement includes numerous measures that will further desegregation by voluntary means, including the construction of magnet schools and the introduction of other school choice options. The board is also required to take additional remedial action in faculty and staff assignments, and to encourage minority student participation in all programs and activities. Implementation and monitoring of the agreement is ongoing

Parents of students with disabilities who allege that their children were not properly identified, evaluated, and provided with special education services filed a class action lawsuit against the Newark Public Schools, the State of New Jersey, and several state officials. The lawsuit alleges that Newark does not have adequate systems in place to comply with the Individuals with Disabilities Education Act (IDEA) and that New Jersey has violated its obligation to supervise local implementation of IDEA requirements.

In its motion to dismiss, New Jersey raised a constitutional challenge to the IDEA, claiming that the Eleventh Amendment afforded it immunity against a private lawsuit to enforce the IDEA. The Section sought and was granted intervention to defend the constitutionality of the IDEA. In its brief , the Section argued that New Jersey had agreed to comply with the IDEA and waive its sovereign immunity when it accepted federal IDEA funds to defray the cost of educating students with disabilities. In the alternative, the Section argued that Congress validly abrogated state sovereign immunity pursuant to the Fourteenth Amendment. The district court accepted both arguments and denied the State's motion to dismiss. The defendants appealed the denials of their motions to dismiss, and the Appellate Section defended the IDEA's constitutionality on appeal. On September 16, 2003, the Third Circuit issued an opinion affirming the district court's holding that the State of New Jersey had waived its sovereign immunity.

In this matter involving the Nashua School District (“the District”) in New Hampshire, the Section and the U.S. Attorney’s Office for the District of New Hampshire investigated whether the District’s English Learner (EL) programs and practices complied with Section 1703(f) of the Equal Educational Opportunities Act of 1974.  The investigation revealed that the District failed to provide EL students with the instruction and support they need to become proficient in English and participate equally in school.  On May 24, 2021, the District and the United States entered into an out-of-court settlement agreement to resolve the District’s compliance issues identified by the United States.  The agreement requires the District to provide English as a Second Language (ESL) instruction to all of its EL students, fully staff its EL programs with ESL-certified teachers, provide training to principals and core academic teachers of EL students, communicate effectively with Limited English Proficient parents about school activities, and monitor the EL program over time to evaluate its efficacy.  The agreement will remain in place for three school years. For more information, please see this press release in English , Spanish , and Portuguese .

Settlement Agreement: Español (Spanish) | Português (Portuguese)      

The United States initiated this litigation against the Nettleton Line Consolidated School District on September 8, 1969, and the court subsequently approved consent decrees requiring the District to desegregate on December 8, 1969 and June 19, 1970 .  On August 8, 2011 , following negotiations between the United States and the District, the court issued a consent order requiring the District to revise its policies and procedures and to terminate its race-based selection and election procedures for extracurricular activities (e.g., elections for class officers, homecoming court, and class superlatives).  After the United States completed a review of the District’s operations and compliance with the Court’s orders, on September 2, 2020 the court approved an additional consent order .  The 2020 Consent Order granted partial unitary status and found that the District had eliminated the vestiges of de jure segregation in the areas of student assignment, staff, extracurricular activities, and facilities.  The 2020 Consent Order also required the District to complete more work to demonstrate that it has eliminated the vestiges of de jure segregation in the areas of faculty and transportation.  Therefore, the 2020 Consent Order requires the District to take steps to (i) increase its recruitment of black applicants for teacher vacancies; (ii) conduct its hiring with the goal of eliminating any real or perceived racial barriers in hiring; (iii) retain qualified, black faculty members who are employed by the District; (iv) eliminate overlapping or duplicative bus routes; and (v) eliminate or reduce the number of racially identifiable bus routes or at least mitigate the disparities between the percentages of black and white students assigned to each racially identifiable bus.  The District may file a motion with the court for full or partial dismissal of the case after three full school years of compliance with the relevant provisions of the 2020 Consent Order .

In this matter involving the Newark Public Schools (“the District”), the Section and the U.S. Attorney’s Office for the District of New Jersey examined whether the District’s English Learner (“EL”) programs and practices complied with Section 1703(f) of the Equal Educational Opportunities Act of 1974 (“EEOA”).  The United States initiated its investigation in response to a complaint alleging that the District was failing to appropriately communicate with parents who have limited proficiency in English (“LEP parents”).  In addition to corroborating the District’s LEP parent communications failures, the United States found  that the District failed to hire and retain enough qualified teachers to support its program, resulting in limited instruction time for some students, and for others, no language services at all.  On September 1, 2021, the District and the United States entered into an out-of-court settlement agreement to address the noncompliant conditions identified by the United States and ensure the District’s compliance with Section 1703(f) of the EEOA.  Among other things, the agreement requires the District to: identify and place EL students appropriately when they enroll in school; provide adequate language services to all EL students, including those with disabilities, so that they can become proficient in English; and locate and re-offer services to EL students who were exited improperly from the District’s programs without achieving English proficiency.  The agreement also requires the District to ensure that English as a Second Language (“ESL”) classes and bilingual classes are taught by ESL-certified and bilingual-endorsed teachers; adequately train the administrators and teachers who implement the District’s EL programs; ensure meaningful communication with LEP parents about District and school programs and activities; and evaluate the effectiveness of the EL programs over time.  The parties anticipate that the agreement will remain in place for at least three school years until the District has fully complied with its obligations. Translations of the Agreement are available in Spanish , French , Haitian Creole , and Portuguese . For more information, please see press releases available in English , Spanish , Portuguese , Haitian Creole , and French .

On September 15, 2022, the United States entered into a settlement agreement with the district to resolve the Section’s investigation of the district’s English Learner (EL) programs and practices under the Equal Educational Opportunities Act of 1974 (EEOA).  The Section opened the investigation in 2020, after the U.S. Department of Justice received a complaint alleging that the district violated the EEOA by failing to communicate effectively with K’iche’-speaking Limited English Proficient parents and denying K’iche’-speaking EL students equal educational opportunities.

Through its investigation, the Section identified that the district: (1) failed to communicate adequately with Limited English Proficient parents, including K’iche’ speakers, about school-related programs and activities; (2) did not adequately train its faculty on providing appropriate services to its EL students, including training to address the specific needs of K’iche’ speakers to overcome language barriers; and (3) did not adequately evaluate its EL programs for effectiveness, including assessing the performance of K’iche’-speaking EL students to determine if they are overcoming language barriers.

The agreement requires, among other things, that the district implement effective measures to correctly identify the languages spoken by students and parents/guardians, so that school staff do not assume K’iche’ speakers are native Spanish speakers based on their country of origin.  The district also agreed to improve its practices and professional development to address the specific needs of EL students who speak K’iche’ so that they can access the same educational opportunities as other students in the district.  For more information on this settlement, please see this press release  (in Spanish , Portuguese , and Cape Verdean Creole ).

On September 28, 2012, the Educational Opportunities Section of the Civil Rights Division entered into a settlement agreement with the Northeastern Local School District (NELSD) in Springfield, Ohio, to resolve allegations of racial harassment of African-American students in the district.

In December 2011, the Section received a complaint alleging incidents of racial harassment, including race-based death threats, directed at an African-American student enrolled at Kenton Ridge High School in NELSD. The Section's investigation of the complaint revealed that the student had been subjected to significant harassment based on race and retaliation for reporting the harassment of which the District knew or should have known. In violation of Title IV of the Civil Rights Act of 1964, the District failed to investigate the alleged harassment and retaliation adequately, address it effectively, and prevent it from recurring. Because of the severe, pervasive, and persistent harassment and retaliation, the student was afraid to go to school and eventually left the district out of fear for her own safety. The investigation also revealed that other African-American students in the district had experienced racial harassment and retaliation for reporting racial harassment.

Under the terms of the agreement, the district agreed to take a variety of steps to prevent racial harassment at all of its schools, to respond appropriately to harassment that occurs, and to eliminate the hostile environment resulting from harassment. These steps include revising policies and procedures for handling racial harassment complaints; conducting trainings for faculty, staff, students, and parents; and reporting data to the Department of Justice for three years. For more information, please see this press release .

On December 31, 2020 the Section entered into a settlement agreement  with the North Gibson School Corporation in Princeton, Indiana to address and prevent the discriminatory secluding and restraining of students with disabilities. The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) into a complaint that the school district inappropriately secluded and restrained students with emotional and behavioral disabilities in the district’s self-contained classrooms. Under the settlement agreement, the school district will, among other things: change its policies to prohibit use of seclusion rooms; report all instances of restraint and review whether they were justified; take steps to avoid placing students with emotional and behavioral disabilities on an abbreviated school day or homebound instruction and document those steps; create and implement a procedure for handling complaints of disability discrimination; provide appropriate training and resources to help schools implement the agreement; and appoint an Intervention Coordinator to ensure the district’s compliance with the agreement and Title II of the ADA. For more information, please see this press release .

In this matter involving the North Plainfield, New Jersey school district, the Section reviewed whether the district was providing appropriate instruction and services to English Language Learners (ELLs), as required by the Equal Educational Opportunities Act of 1974 (EEOA). Based on its review of the district, the Section raised concerns about, among other things: the school district's procedures for screening new students to determine whether they are ELLs; the opportunities that ELLs have to integrate with native speakers of English in a school setting; the extent to which the district's school libraries and media centers are accessible to ELLs; and the academic support provided by the district to ELLs who enroll in general education classes.  The school district and the Section engaged in good-faith negotiations about these and other issues, and on September 3, 2004, entered into a settlement agreement outlining the measures that the school district was required to take to ensure its compliance with the EEOA. The district compiled in good faith with the settlement agreement that ended on September 3, 2007.

On December 20, 2022, the Section entered into a settlement agreement with the Okaloosa County School District in Fort Walton Beach, Florida to address the discriminatory use of seclusion and restraint against students with disabilities and the district’s responses to allegations of physical and verbal abuse. The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) based on allegations that the school district engaged in improper seclusion and restraint practices and failed to appropriately respond to known physical and verbal abuse of students. Under the settlement agreement, the school district will take proactive steps to ensure that its practices do not discriminate against students with disabilities. The district will, among other steps: continue to prohibit the use of seclusion; limit its use of restraint; clarify and improve crisis response team procedures and post-restraint procedures; report all instances of restraint and evaluate if they were justified and complied with district policy; reform district complaint procedures and improve internal district investigations into allegations of employee abuse or improper use of restraint or seclusion; develop and deliver appropriate trainings for personnel who restrain students and personnel who review restraint reports; and deliver appropriate training and resources to help schools implement the agreement. For more information, please see this letter and press release .

In this matter involving Old Dominion University (ODU) in Norfolk, Virginia, the Section conducted an investigation under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq. and Section 504 of the Rehabilitation Act of 1973.  The Section received a complaint alleging that ODU discriminated and retaliated against a graduate student based on her disability and her related request for acknowledgement of her right to reasonable modifications of policy.  The Section found that, in a series of retaliatory acts, ODU terminated the student’s relationship with her professor-advisor and his research lab, withdrew her from a professional conference where she was scheduled to present, and forced her to change her graduate course of study.  On February 3, 2021, the Section entered into a settlement agreement with ODU to ensure that the University provides reasonable modifications of policy for students with disabilities.  The agreement requires that ODU develop and disseminate a retaliation policy; train staff and faculty on the requirements of the ADA and Section 504; and provide compliance reports to DOJ.  In addition, under the agreement ODU will pay the complainant $40,000 in compensatory damages. For more information, please see this press release .

This religious discrimination case arose after the principal of an elementary school in New Jersey prohibited an eight-year-old girl from singing a Christian song in a voluntary after-school talent show. On May 20, 2005, the student’s parents filed suit in federal district court, alleging that the school violated her constitutional rights by censoring her speech. The school defended the censorship by asserting that (1) the song had an overtly religious and proselytizing message and (2) permitting the song would have violated the Establishment Clause of the First Amendment.

On June 19, 2006, the Section filed an amicus brief in support of the student’s motion for summary judgment, arguing that the school engaged in unconstitutional viewpoint discrimination by censoring her performance based solely on the religious perspective of her song. The brief also contended that the school’s Establishment Clause justification was unavailing because the song clearly represented the student’s expression, not the school’s.

On December 11, 2006, the district court ruled in favor of the plaintiffs, granting summary judgment. In its opinion , the court held that the school’s censorship of “Awesome God” constituted unlawful viewpoint discrimination because the song conformed to the talent show guidelines and the school permitted other acts with religious and “proselytizing” content. The court found that the school did not have “a legitimate pedagogical concern in distancing itself from proselytizing religious speech.” The court further ruled that the school’s Establishment Clause concerns could not justify censoring the plaintiff’s song because the performances in the talent show did not represent school-sponsored speech.

On April 12, 2011, the Educational Opportunities Section of the Civil Rights Division and the Department of Education's Office for Civil Rights (OCR) reached a resolution agreement with the Owatonna Public School District ("District") in Owatonna, Minnesota, to resolve a complaint regarding the student-on-student harassment and disproportionate discipline of Somali-American students based on their race and national-origin.

The complaint arose from a November 2009 fight between several white and Somali-American students at Owatonna High School and alleged severe and pervasive harassment. Following DOJ's and OCR's investigation, the Section and OCR worked with the school district to resolve the complaint. The departments gathered evidence indicating that the district meted out disproportionate discipline for the students involved in the November 2009 incident and that the district's policies, procedures and trainings were not adequately addressing harassment against Somali-American students.

The District took affirmative steps to address the harassment and disproportionate discipline of Somali-American students, and voluntarily entered into the resolution agreement. Under the terms of the agreement, the District will take all reasonable steps to ensure that all students enrolled in the district are not subject to harassment or discrimination on the basis of race, color or national origin, and to respond promptly and appropriately to all reports of harassment. To that end, the District has agreed to improve its policies and procedures concerning harassment and discipline as necessary to make them effectively protect students from racial or national origin-based harassment. For more information, please see this press release .

This case involves religious harassment by students against a Jewish public school teacher in the Upper Peninsula of Michigan. Mr. Owen, a veteran teacher of more than 30 years, filed his lawsuit in federal district court in March 2000 after an investigation by the Detroit office of the U.S. Equal Employment Opportunity Commission concluded that his complaint had merit. The United States intervened in October 2000, alleging that the L'Anse Area Schools subjected Mr. Owen to religious harassment while he was employed by the school district. The United States alleged that Mr. Owen had been the target of numerous incidents of anti-Semitic harassment by his students, including the drawing and etching of swastikas and hate messages such as "Die Jews," "Kill Owen," "KKK," and "White Power" in and around his classroom on multiple occasions and the placement of a hangman's noose on his classroom door. The United States alleged that the school district failed to take effective measures to remedy the harassment and to keep it from recurring despite Mr. Owen's repeated complaints. Further, the United States alleged that as a result of the harassment, Mr. Owen was forced to take an extended medical leave and ultimately retire from the school district.

Following discovery and an unsuccessful motion for summary judgment by the school district, the parties entered mediation, reaching a settlement agreement in March 2002. Under the agreement , which the district court approved on April 11, 2002, Mr. Owen was paid $265,000. The agreement also required the school district to review and revise its policies ; train its employees to recognize, investigate and address harassment and discrimination; and educate its students about the inappropriateness of harassment and discrimination. In addition, the agreement required the district’s faculty and staff to report actual or suspected incidents of harassment or discrimination to appropriate school officials. The Justice Department monitored the school district's compliance with the settlement agreement for three years, and the case was dismissed on December 15, 2005.

In September and November 2011, the Civil Rights Division of the United States Department of Justice notified the School District of Palm Beach County that it had received complaints regarding the District's enrollment and registration practices, as well as its practices of administering school discipline. The Division then conducted an investigation, including reviewing documents and data; conducting a site visit that included tours of schools and interviews with Principals, Area Superintendents, Assistant Superintendents, District Office staff, the School District of Palm Beach County Police Department, and the Superintendent; meeting with community members and local stakeholders; and reviewing and providing comments regarding the District's enrollment and discipline policies. The United States conducted its investigation with the full cooperation of the District.

At the conclusion of the investigation, the United States and the District engaged in extensive negotiations, resulting in a settlement agreement signed by the Parties on February 26, 2013. Under the settlement agreement, the district will enroll all area students regardless of background and will provide translation and interpretation services throughout the registration process. The district will also limit the use of disciplinary measures that remove students from the classroom and implement behavior management and discipline practices that support and protect students. Among other things, the agreement requires that ELL students and parents who are limited English proficient receive translation and interpretation services throughout the enrollment and discipline processes; expands the use of language-accessible positive behavior interventions and supports ("PBIS"); places limits on the use of discipline measures that remove students from the classroom; establishes clear guidelines for when law enforcement intervention is appropriate; requires school law enforcement officers to communicate with students in a language the student understands, including by securing an interpreter when appropriate; requires providing training to give teachers and administrators the tools necessary to manage their schools in a safe, effective and positive manner; and requires expanding data-driven monitoring and accountability systems. On July 25, 2016, the parties agreed to an eighteen month extension of the Agreement . 

On March 5, 2024, the Section entered into a settlement agreement with the Pasco County School District in Pasco County, Florida to resolve the department’s investigation into alleged discrimination against students with disabilities in school discipline, threat assessment practices and referrals of students to law enforcement. The agreement followed an investigation under Title II of the Americans with Disabilities Act. The investigation found that the district routinely suspended students or called police for disability-related behavior that could have been addressed through proper support and de-escalation. The investigation also found problems with how the district conducted threat assessments (a process to identify, evaluate and respond to potential school security concerns). When these assessments involved students with disabilities, the district systematically failed to consider the relationship between a student’s disability and their behavior, and whether appropriate support for the student would address the behavior that prompted the assessment. Instead, the district often unnecessarily referred students to law enforcement to be arrested or to start the process for an involuntary admission into a mental health facility under Florida’s Baker Act. 

Under the settlement agreement, the school district will take proactive steps to ensure that its practices do not discriminate against students with disabilities. The district will, among other steps: ensure that personnel accurately assess disability-related behaviors, identify appropriate interventions, and monitor their implementation; hire a consultant who will assist in updating policies and practices; update its student code of conduct, threat assessment process, and law enforcement referral process to ensure that the district is adequately considering disability-related behaviors; improve data collection and analysis and regularly evaluate data to ensure students with disabilities do not face discrimination as a result of the district’s discipline, threat assessment and law enforcement referral practices. The Section will monitor the district’s implementation of the agreement and will also continue to monitor and enforce an ongoing desegregation order that covers the district.

For more information, please see this letter , press release ( español ), and summary of the settlement agreement .

In this matter involving sex discrimination, several high school girls and their representatives filed a complaint alleging that the South Dakota High School Activities Association (SDHSAA) violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. Specifically, the plaintiffs contended that the SDHSAA discriminated against female athletes by requiring girls to play certain sports (basketball and volleyball) in disadvantageous seasons. Playing in disadvantageous seasons can result in substantial harms that deny female high school athletes equal athletic opportunities, including, among others, the ability to participate in interstate competition and club competition, the opportunity to be recruited for collegiate-level sports programs, and the opportunity to have the same number of games and practices as similarly-situated boys' sports teams.

On October 17, 2000, the Department was granted leave to intervene in the lawsuit as a plaintiff-party in support of the high school girls. Subsequently, the SDHSAA moved for summary judgment on the issue of whether the association was subject to Title IX and whether it is a state actor for purposes of 42 U.S.C. § 1983. Before any further briefing was completed, however, the parties agreed to engage in mediation and ultimately reached a settlement. Pursuant to the parties' stipulation, the Court entered a Consent Order on December 5, 2000, requiring the SDHSAA to schedule girls' high school volleyball during the traditional fall season and girls' high school basketball during the traditional winter season beginning with the 2002-03 school year. The SDHSAA submitted a detailed plan which was subsequently agreed to by the plaintiff-parties and approved by the Court.

In June of 2002 and shortly before the season switch was to take place, a group of parents and students filed a separate lawsuit in state court that was removed to federal court, Hoffman v. South Dakota High Sch. Activities Ass'n , C.A. No. 02-4127 (D. S.D.), seeking to challenge the Consent Order entered in the Pedersen case, or in the alternative, to delay the season switch for four more years. The Hoffman plaintiffs also filed a motion for preliminary injunction seeking to enjoin the season switch immediately. The Department moved to intervene in the lawsuit as a defendant to uphold the prior Consent Order entered in the Pedersen case and the district court granted the Department's motion to intervene. The Department also filed a motion to dismiss the Hoffman lawsuit on procedural grounds that the district court held in abeyance until after the hearing on the motion for a preliminary injunction. The district court conducted a three-day evidentiary hearing on the merits of the Hoffman case at which the Department presented evidence. Shortly thereafter, the district court issued an opinion denying the Hoffman plaintiffs' motion for a preliminary injunction. On January 22, 2003, the district court granted the Department's motion to dismiss and dismissed the Hoffman lawsuit with prejudice.

In this matter involving the Plainfield, New Jersey School District, the Section reviewed whether the district was providing appropriate instruction and services to English Language Learners (ELLs), as required by the Equal Educational Opportunities Act of 1974 (EEOA). Based on its review of the district, the Section raised concerns about, among other things: the school district's procedures for screening new students to determine whether they are ELLs; the opportunities that ELLs have to integrate with native speakers of English in a school setting; the extent to which the district's school libraries and media centers are accessible to ELLs; and the academic support provided by the district to ELLs who enroll in general education classes. The school district and the Section engaged in good-faith negotiations about these and other issues, and on June 30, 2003, entered into a settlement agreement outlining the measures that the school district will take to ensure that it complies with the EEOA. The district compiled in good faith with the settlement agreement that ended on June 30, 2006.

In April 2009, Plaintiff filed a complaint in the United States District Court for the Northern District of New York alleging, inter alia, that the Indian River Central School District, its Board of Education, and eight of its employees violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. On June 11, 2010, the Defendants filed a motion to dismiss the Equal Protection Clause and Title IX claims. On August 13, 2010, the United States filed a motion seeking leave to participate as amicus curiae in order to provide the court with the proper legal standards governing harassment on the basis of sex under the Equal Protection Clause and Title IX. The United States argues in its amicus brief that harassment based on sex stereotyping is a legally cognizable claim under Title IX and the Equal Protection Clause; that sexual orientation harassment does not preclude a harassment claim based on non-conformity to sex stereotypes; and that a hostile environment claim in primary and secondary schools can span classes, grades, and schools.

In this matter involving the Prince William County School District, the Section conducted a compliance review to determine whether the district was providing appropriate instruction and other services to English Language Learner ("ELL") students as required by the Equal Educational Opportunities Act of 1974 (EEOA). On September 5, 2013, the Section and the district entered into an out-of-court settlement agreement outlining the steps the district will take to resolve the issues identified by the United States and ensure compliance with the EEOA. Among other things, the agreement requires the district to: provide all ELL students with adequate English Language Development and sheltered content instruction by qualified ELL teachers; ensure that ELL teachers and administrators receive appropriate training; monitor and evaluate the effectiveness of its ELL programs; modify its enrollment and registration practices to ensure that students have access to educational programs regardless of race, national origin, or immigration status; provide ELL students and Limited English Proficient parents meaningful access to district and school-level information, such as discipline and special education forms and meetings; and take measures to ensure discipline is administered in a nondiscriminatory way, such as instituting cultural responsiveness training for teachers. The district-wide review and agreement grew out of an investigation of a complaint regarding the Fred Lynn Middle School. That investigation resulted in a 2010 agreement requiring remedial measures at that school, which was later amended by a 2011 agreement . This school and all others in the district are now subject to the 2013 agreement , which requires the district to report to the Section on the agreement's implementation through 2016.

In this matter involving the Providence Public Schools (“the District”) and the Rhode Island Department of Education (“RIDE”), the Section and the U.S. Attorney’s Office for the District of Rhode Island examined whether the District was identifying and serving its approximately 8,000 English Learner (“EL”) students as required by Section 1703(f) of the Equal Educational Opportunities Act of 1974 (“EEOA”).  On August 9, 2018, the District and the United States entered into an out-of-court settlement agreement to address the noncompliant conditions identified by the United States and to ensure the District’s compliance with Section 1703(f) of the EEOA.  Among other things, the agreement requires the District to: identify and place EL students appropriately when they enroll in school; provide adequate language services to all EL students, including those with disabilities, so that they can become proficient in English; ensure that the English as a Second Language (“ESL”) components of its EL program are taught by ESL-certified teachers; adequately train the administrators and teachers who implement the District’s EL programs; ensure meaningful communication with Limited English Proficient parents about District and school programs and activities; provide equal opportunities for EL students to participate in specialized programs; and evaluate the effectiveness of the EL program over time.  On November 1, 2019, RIDE took control over the District, and on December 19, 2019, the parties agreed that the 2018 EL agreement would be binding upon both the District and RIDE.  On September 29, 2021, the parties executed a letter agreement , which modifies and extends the 2018 EL settlement agreement through at least the 2022-2023 school year.

2021 Letter Agreement: English  |  Español (Spanish)  | العربية (Arabic) | ខ្មែរ (Khmer) |  Kiswahili (Swahili)

In this peer-on-peer sexual harassment case, a student alleged his rights were violated under Title IX and the Equal Protection Clause of the Fourteenth Amendment. More specifically, the student contended the school district failed to take adequate steps to protect him from an ongoing campaign of sexual harassment by his peers.

The harassment included: three written death threats, repeated and unwanted sexual contact, offensive and hostile verbal abuse, and other acts involving intimidation and humiliation.

In response to defendants' motion to dismiss the case, the Section submitted an amicus curiae brief in support of the plaintiff. In this brief, the Section argued a Title IX claim was appropriate because of the nature and severity of harassment involving conduct of a sexual nature. Furthermore, the Section argued the student's Equal Protection claim, challenging discrimination based on his actual or perceived sexual orientation, should not be dismissed. Following the amicus participation of the Section and mediation between the plaintiff and defendants, the case settled. In addition to monetary relief for the plaintiff, the school district modified its sexual harassment policies, applicable to both students and employees, to prohibit discrimination based on actual or perceived sexual orientation. The modified policies also describe the school district's responsibilities and the recourse available to victims of discrimination.

In this matter involving the Robertson County Schools in Tennessee, the United States reviewed the status of the District's compliance with its desegregation obligations as a former de jure segregated public school system. The Section determined that the district had not complied with its desegregation obligations in the areas of student assignment and school construction. In its letter of September 5, 2014 , the Section identified a series of district decisions that, over decades, impeded desegregation by building and expanding almost all-white schools while leaving African-American students disproportionately in overcrowded schools with portable classrooms. In February, 2015, the United States and the district entered into a settlement agreement to resolve the district's noncompliance with federal law. The agreement requires the district to: assign students and construct and maintain schools in a desegregated and nondiscriminatory manner; implement a new elementary school plan that furthers desegregation; eliminate overcrowding at predominately minority schools; develop a secondary school student assignment plan that will further desegregation; and provide cultural sensitivity and competency training for teachers and staff. On August 4, 2015, the United States and the district entered into another settlement agreement to further desegregation in the secondary schools through a Science, Technology, Engineering and Math (STEM) magnet program and attendance zone line changes. For more information about the February 2015 agreement, please see this press release . For more information about the August 2015 agreement, please see this press release .

On August 8, 2023, the Section and the U.S. Attorney’s Office for the District of Idaho filed a  statement of interest in the U.S. District Court for the District of Idaho in  Roe, et. al. v. Critchfield, et. al .  The plaintiffs in this case are transgender students attending K-12 public schools in Idaho who are challenging S.B. 1100, a state law that prohibits transgender students from using public school facilities, including restrooms and changing facilities, consistent with their gender identity.  The United States’ brief provides its view that the plaintiffs are likely to succeed on the merits of their Title IX and Equal Protection Clause claims.   

In this matter involving the Rowan-Salisbury School System (“the District”) in North Carolina, the Section investigated whether the District’s English Learner (EL) programs and practices complied with Section 1703(f) of the Equal Educational Opportunities Act of 1974.  The investigation found system-wide failures to provide these students with the instruction and support they need to learn English and fully participate in school.  On June 17, 2021, the District and the United States entered into an out-of-court settlement agreement to resolve the District’s compliance issues identified by the United States.  The agreement requires the District to increase language instruction for all EL students, including those with disabilities, so they can become fluent in English.  The District will also train its teachers and administrators on how to support EL students in academic subjects such as math, science, and social studies.  The District will continue to improve its translation and interpretation services for Limited English Proficient parents so all parents can fully participate in their children’s education.  The agreement will remain in place for three school years.  For more information, please see this press release in English and Spanish .

On December 15, 2022, the Educational Opportunities Section along with the U.S. Attorney’s Office for the Central District of California entered into an agreement with the San Bernardino City Unified School District resolving a multi-year investigation of the district’s English learner program under Section 1703(f) of the Equal Educational Opportunities Act of 1974. During the investigation, the United States found that the district failed to offer adequate instruction to English learners, in either the English language or in core content areas like math, science and social studies. In addition, the United States identified problems with the special education evaluations conducted by the district and the services offered to English learners with disabilities. The United States also found that English learners did not have equal access to the district’s gifted programs, and advanced coursework. In the out-of-court settlement agreement the district will ensure that students receive adequate English language instruction from trained and certified personnel. It will train core content teachers on how to work with English learners, and it will update its special education policies and trainings to meet the needs of English learners with disabilities. In addition, the district will take steps to improve access to gifted and advanced programs for English learners. The agreement will remain in place for three years. For more information please see this press release in English and Spanish ( español ).

On June 29, 2020, the Educational Opportunities Section and United States Attorney’s Office for the Northern District of California initiated a Title IX compliance review of San José State University (“SJSU”).  The Department’s investigation principally focused on SJSU’s response to reports of sexual harassment, including sexual assault, by an athletic trainer spanning more than a decade.  The Department also investigated reports of retaliation against two SJSU Athletics Department employees.  After conducting numerous interviews and an extensive review of SJSU’s policies, grievance procedures, training, and response to reports of sexual harassment and retaliation, the Department concluded that SJSU violated Title IX.

On September 21, 2021, the Department reached a resolution agreement with SJSU to address its noncompliance under Title IX and issued a letter  summarizing the Title IX violations.  Under the terms of the agreement, SJSU agreed to take significant steps including, among others: providing resources to the Title IX Office; publicizing Title IX policies and protocols and improving SJSU’s response to complaints of sex discrimination; developing informational materials to educate the SJSU community how to report Title IX concerns; delivering training to student-athletes and SJSU Athletics employees on giving and receiving informed consent for medical treatments and athletic training services; and providing supportive measures and remedies to student-athletes who were sexually harassed by the athletic trainer.  The agreement also requires SJSU to pay a total of $1.625 million in financial relief to individuals who were sexually harassed by the athletic trainer and participated in the Department’s or SJSU’s investigations.  The Department will carefully monitor the University’s implementation of the agreement, which will remain in place through the 2024-2025 academic year.  For more information, please see the press release .   

The Tri-Creek Corporation School District in Indiana had an attendance policy that allowed for only one day of excused absences for religious observance. After a student missed more than one day for religious worship, the District’s attendance policy stated that the student would be given an unexcused absence and subjected to various sanctions including loss of academic credit, inability to make up work, and suspension. The policy also stated that legal action may be taken against the parent.

After receiving a complaint about the enforcement of Tri-Creek’s policy, the United States intervened in the case on behalf of Ruth Scheidt and her son, M.S., both adherents to the religious tenets of the United Church of God. During the 2004-05 school year, M.S. was given eight unexcused absences for documented religious attendance; teachers failed to allow him to make up classwork and the district threatened expulsion and legal action, including the filing of educational neglect charges against Ms. Scheidt. On August 10, 2005, the Section filed a brief asserting that Tri-Creek’s attendance policy violated Ms. Scheidt and her son’s right to exercise their religion freely, and Ms. Scheidt’s right to raise her son consistent with her religious beliefs.

Shortly after the Section's intervention, the District and the plaintiffs reached a settlement that: (1) absences for religious observances will be recorded as “excused” and credit given for timely make-up work; and (2) school attendance policies will be revised to accommodate religious observances. Unlike in the past, there is now no limit on the number of excused absences a student may receive for religious observance.

In this race discrimination case, the plaintiffs sued the University of South Florida (USF), alleging that it had violated Title VI of the Civil Rights Act of 1964 by retaliating against black players on the USF women's basketball team who had complained to university officials about discriminatory treatment by the head coach. At the summary judgment stage, the Section filed an amicus brief in support of the plaintiffs, arguing that Title VI prohibits retaliation against individuals who complain of racially discriminatory treatment, and that this prohibition is necessary to protect the victims of racial discrimination and concerned third parties who come forward with their complaints. Prior to the court ruling on the summary judgment motion, the parties settled the case.

On January 30, 1970, the Court ordered Defendants, including the Concordia Parish School Board, to adopt a desegregation plan.  Concordia Parish School District (“District”) is still operating under the requirements of this 1970 federal desegregation order and further orders mandating the desegregation of the District.  A January 4, 2013 consent order addressed a new charter school’s obligations to comply with the court’s orders in the case and take measures to ensure equal access to the school.

A review of the Somerville School District in Massachusetts concerning the instruction and services provided to English Language Learners (ELLs) revealed the school district was not comporting with the requirements of the Equal Educational Opportunities Act of 1974 (EEOA). On November 25, 2008, the Section and the Somerville School District entered into a settlement agreement addressing concerns raised by the Section including specific provisions requiring: adequate registration, identification, and placement of all ELLs; ongoing training of all personnel involved in the registration, identification, and placement process; maintenance of a database of qualified and available translation and interpretation services; sufficient and appropriate instruction for ELLs; development of an English Language Development (ELD)/English as a Second Language (ESL) curricula; qualified and trained teachers of ELLs; the provision of adequate materials; appropriate special education services and language services for ELLs who are eligible for both services; careful monitoring of current and exited ELLs; and evaluation of the district’s ELL program.

On April 17, 2023, the Section entered into a settlement agreement  with the Spokane Public Schools in Spokane, Washington to address the discriminatory use of seclusion and restraint against students with disabilities.  The agreement followed an investigation conducted under Title II of the Americans with Disabilities Act (ADA) into complaints that the school district inappropriately secluded and restrained children with disabilities and failed to use appropriate behavior interventions.  The Department’s investigation concluded that the school district inappropriately and repeatedly secluded and restrained students with disabilities and did not limit its use of restraint and seclusion to emergency situations, as required by state law and the district policy.  Instead, the district restrained and secluded students with disabilities to address noncompliant behavior, even when those actions appeared to escalate the behavior or when students showed clear signs of trauma.  As a result, the District’s restraint and seclusion practices segregated hundreds of students with disabilities from their classmates and resulted in students missing hundreds of hours of instructional time.

Under the settlement agreement, the school district will take proactive steps to ensure that its practices do not discriminate against students on the basis of disability. The district will, among other steps: prohibit the use of seclusion; limit the use of restraint; document and report all instances of seclusion and restraint; appoint a district-level administrator to review all incidents of seclusion and restraint to ensure proper follow-up occurs; create classroom-wide Behavior Management Plans for its programs serving students with high-intensity behaviors that are based on data analysis and that promote and reinforce positive behaviors; provide copies of and explain classroom plans to parents and guardians; develop a complaint procedure and respond in a timely fashion to all complaints regarding the use of restraint or seclusion; offer counseling and compensatory education services to students with disabilities who were subjected to the district’s discriminatory practices; deliver appropriate training and resources to help schools implement the agreement; and ensure the district’s compliance with the agreement and Title II of the ADA. For more information, please see this letter ,  press release , and  summary of settlement agreement .

In this matter involving the Stamford Public School District, the Section and the United States Attorney’s Office for the District of Connecticut (“USAO”) conducted a comprehensive review to determine whether the district was providing appropriate services to English Language Learner (“ELL”)  students as required by the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. §1703(f).  On February 28, 2014, the Section, the USAO, and the district entered into an out-of-court settlement agreement to resolve the district’s noncompliance with the EEOA.  The agreement requires the district to: provide language acquisition services to all ELL students until they reach the state’s English proficiency criteria; ensure that teachers of ELL students are qualified to provide these services; make appropriate language services available for ELL students with disabilities; obtain adequate materials for ELL students; and monitor students after they exit ELL services to ensure they are participating meaningfully and equally in the district’s instructional program.  Under the Agreement, the district will implement a tiered services plan to ensure that ELL services are appropriate to ELL students’ English language proficiency levels, designed to address their individualized needs, and effective.  The district will ensure that ELL students who are not making sufficient yearly progress receive additional ELL services.  For more information, please see this press release .

In February of 1970, the District Court for the Northern District of Mississippi entered separate orders requiring the Starkville Municipal Separate School District and the Oktibbeha County School District to desegregate. In 2015, the Mississippi Legislature consolidated the two school districts, and, in 2016, the new Starkville-Oktibbeha Consolidated School District (the “District”) and the United States filed a joint motion to approve a new desegregation order. The District Court granted the motion and approved the consent order on March 3, 2016.

The consent order requires the District to eliminate segregative policies and practices in its operations regarding student assignment, faculty and staff hiring, transportation, extracurriculars, and facilities. Specific provisions in the consent order require the District to, among other things, provide equal access to gifted-and-talented and advanced programs; analyze the equity of bus assignments and routes; and hire, promote, pay, demote, discipline, non-renew, and dismiss faculty and staff without regard to race, color, or national origin. The District must also have a Biracial Advisory Committee, which will advise the District on the desegregation plan.  The Section is monitoring the District’s efforts to achieve unitary status and comply with the consent order.

This case involves claims against the Department of Education of the State of Hawaii and various government officials for alleged violations of Section 504 of the Rehabilitation Act (Section 504) and the Individuals with Disabilities Education Act (IDEA).

Plaintiffs alleged, among other things, that defendants intentionally discriminated against Aaron L. because of his disability (Down Syndrome), failed to provide him with appropriate special education services, and denied him a free appropriate public education, all in violation of Section 504 and the IDEA. Plaintiffs sought compensatory and punitive damages, as well as injunctive and other equitable relief.

Both defendants and plaintiffs moved for partial summary judgment. Defendants asserted that plaintiffs' claims are barred by the Eleventh Amendment. Plaintiffs asserted that they should be able to demonstrate discriminatory intent, for purposes of obtaining compensatory damages under Section 504, with evidence that defendants acted with deliberate indifference or conscious disregard for their federal rights.

In its intervention brief filed on May 25, 2001, the Section defended the constitutionality of Section 504 and the IDEA. The Section also filed an amicus brief arguing that a plaintiff seeking compensatory damages under Section 504 may rely on the deliberate indifference standard to prove discriminatory intent.

On June 18, 2001, the district court upheld the constitutionality of Section 504 and the IDEA, and ruled that a plaintiff seeking compensatory damages under Section 504 may establish intentional discrimination by showing that the defendant acted with deliberate indifference to the plaintiff's federally protected rights.

On June 30, 2011, the Educational Opportunities Section of the Civil Rights Division and the Department of Education's Office for Civil Rights (OCR) reached a resolution agreement with the Tehachapi Unified School District in Tehachapi, California, to resolve a complaint regarding the harassment of a middle school student based on his nonconformity with gender stereotypes. The complaint arose from the September 2010 death of Jacobsen Middle School student Seth Walsh, who took his own life at the age of 13. Following OCR's investigation, the Section joined OCR in working with the school district to resolve the complaint. The investigation found that Walsh suffered sexual and gender-based harassment by his peers for more than two school years because of his nonconformity with gender stereotypes.

As summarized in a detailed letter of findings , the departments determined that the harassment, which included ongoing and escalating verbal, physical and sexual harassment by other students at school, was sufficiently severe, pervasive and persistent to interfere with his educational opportunities, and that the school district failed to appropriately respond to notice of the harassment. The departments concluded that the school district violated Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights of 1964, both of which prohibit discrimination on the basis of sex, including harassment based on nonconformity with gender stereotypes and sexual harassment. Under the terms of the agreement, the district agreed to take a variety of steps to prevent sexual and gender-based harassment at all of its schools, to respond appropriately to harassment that occurs, and to eliminate the hostile environment resulting from harassment. These steps include adopting revised policies and procedures for handling sexual and gender-based harassment complaints, conducting trainings for faculty, staff, and students, and reporting data to OCR and DOJ for five years. For more information, please see this press release.

On July 20, 2023, the Section entered into a resolution agreement with Teton County School District #1 in Wyoming to resolve the department’s investigation into the district’s responses to alleged sexual harassment, retaliation, and disability discrimination conducted under Title IV of the Civil Rights Act of 1964 and Title II of the Americans with Disabilities Act (ADA). The agreement requires the school district to work with a consultant to review and revise its anti-harassment policies and practices and ensure it responds appropriately to discrimination complaints and adopts appropriate supportive and remedial measures using the district’s Multi-Tiered Support System.  The district also will: prohibit and take reasonable steps to prevent retaliation; implement school climate assessments; implement an engagement plan; train its civil rights coordinator and other staff on their obligations under the district’s antidiscrimination policies and resolution procedures; and institute internal monitoring and auditing procedures to ensure compliance and regularly evaluate its antidiscrimination program. For more information, please see the press release .

On June 11, 2021, the Section and the U.S. Department of Education filed a statement of interest to assist the U.S. District Court for the District of Nebraska in evaluating the Title IX peer sexual assault and retaliation claims for damages in Thomas v. Board of Regents of the University of Nebraska , Case No. 4:20-cv-03081. In this case, the plaintiffs, current and former students of the University of Nebraska-Lincoln (UNL), allege that UNL discriminated against them on the basis of sex in violation of Title IX when UNL allegedly responded to their reports of sexual assault, sexual harassment, and/or retaliation with deliberate indifference that created and/or left them in a hostile educational environment. Plaintiffs also allege that UNL violated Title IX by engaging in retaliatory actions against them in response to their reports of peer retaliation and sexual assault. In the statement of interest responding to UNL’s motion to dismiss the plaintiffs’ Title IX claims, the United States set forth the proper legal standards for the court to apply to plaintiffs’ Title IX claims for damages based on alleged sexual assaults and retaliation. The United States took no position on whether plaintiffs’ allegations in their complaint state plausible Title IX claims for damages under those legal standards.

This is a longstanding desegregation case in the Western District of Louisiana, where the St. Martin Parish School Board has not fulfilled its desegregation obligations in the following areas: student assignment, faculty assignment, and quality of education in graduation pathways and discipline.  To remedy the student assignment issues, the United States, the School Board, and the Private Plaintiffs represented by the NAACP Legal Defense Fund, entered into a consent order on June 9, 2023 . The 2023 consent order provides for  student transfers to promote desegregation across the District and establishes a plan to develop a robust magnet program to further desegregate the St. Martinville zone.  The parties are still negotiating and litigating remedial measures for creating attendance zone changes that  desegregate the District’s schools.  Following a period of litigation from 2021-2023 regarding the District’s compliance with a 2016 Superseding Consent Order , the District Court  entered an order on May 25, 2023 that requires the District to take additional steps regarding faculty assignment, graduation pathways, and discipline.  The Court will retain jurisdiction over the case and consent order, and the Justice Department will monitor the District’s compliance.  For more information, please see this press release .

Additional Documents:

On July 31, 2020, the district and the United States entered into an out-of-court settlement agreement to address and prevent discriminatory discipline of students based on race or disability and to require appropriate language services for limited English proficient (LEP) parents on matters essential to their children’s education.  The agreement followed a federal civil rights investigation by the Section and the U.S. Attorney’s Office for the Northern District of Ohio into complaints of discriminatory treatment of African-American students and students with disabilities in school suspensions, expulsions, and referrals to law enforcement agencies, which was conducted under Title IV of the Civil Rights Act of 1964 and Title II of the Americans with Disabilities Act of 1990.  The Department also investigated under the Equal Educational Opportunities Act of 1974 allegations concerning the district’s communications with parents and guardians with language barriers.  Under the settlement agreement, the district will take proactive steps to ensure its discipline practices do not discriminate against students based on race or disability.  The district will, among other things, regularly review how schools handle discipline incidents to ensure non-discriminatory treatment, expand its use of positive behavior supports, and provide appropriate training and resources to help schools implement the agreement, including training for teachers, administrators, and school safety officers.  In addition, for parents and guardians with language barriers, the district will ensure it communicates essential school-related information in a language that they understand so their children can access the district’s instructional programs.  The United States will monitor compliance with the terms of the three-year agreement.  For more information, please see this press release .  On December 15, 2023, the parties executed an extension agreement , which modifies and extends the 2020 settlement agreement through the 2024-2025 school year.

Settlement Agreement: English  |  Acuerdo de Conciliación:  Español (Spanish)  | Extension Agreement

The Department of Justice and the Department of Education filed a statement of interest  on February 20, 2015 with the U.S. District Court for the Eastern District of Michigan in Tooley v. Van Buren Public Schools. In this case, the plaintiff, a transgender boy, alleges that several Michigan school districts unlawfully subjected him to harassment and denied him equal treatment and benefits based on his sex. In the statement of interest, the departments advised the court that Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibit discrimination against students because of their sex, including on the basis of a student's gender identity, transgender status, or nonconformity to sex stereotypes. The departments concluded that plaintiff's allegations of sex discrimination on each of these bases under Title IX and the Equal Protection Clause were sufficient to deny the motion to dismiss filed by defendant Wyandotte Public Schools.

The Department of Justice and the Department of Education filed a statement of interest on January 25, 2016 in the U.S. District Court for the Eastern District of Pennsylvania in T.R. v. School Dist. of Philadelphia, No. 15-04782.  This case involves Limited English Proficient (LEP) parents of students with disabilities who allege that the Philadelphia School District intentionally discriminates against them based on national origin by not providing complete and timely translations and interpretations of special education and regular education documents.  In the statement of interest, the departments explained that under Title VI of the Civil Rights Act of 1964 case law and federal regulations and guidance, school districts have an obligation to provide LEP parents with a meaningful opportunity to participate in their children’s education.  The statement of interest also supported the plaintiffs’ claims under the Equal Educational Opportunities Act of 1974 (EEOA) by explaining that “appropriate action” under the EEOA includes translations and interpretations for LEP parents.  On November 30, 2016, the court issued a memorandum opinion denying the district’s motion to dismiss in its entirety and relied on the United States’ brief in the discussion of why the court was not dismissing the EEOA and Title VI claims.

On March 16, 2023, the Section entered into a settlement agreement with the Twin Valley School District in Whitingham, VT to address the District’s response to complaints of student-on-student harassment based on race and sex. The Civil Rights Division’s Educational Opportunities Section and U.S. Attorney’s Office for the District of Vermont jointly conducted the investigation under Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq . Under the settlement agreement, the school district will implement the following reforms: modify district policies and procedures to prevent and address peer harassment; undertake periodic assessments of school climate at Twin Valley Middle-High School and implement responsive programming to remedy hostile educational environments; and improve training for district employees who receive, investigate or adjudicate complaints of harassment. For more information, please see this cover letter and press release .

In this matter involving Union Public Schools, the Section examined whether the Oklahoma school district was providing appropriate services to its approximately 3,500 English Learner (“EL”) students, as required by the Equal Educational Opportunities Act of 1974 (“EEOA”).  On June 26, 2018, the Section and the District entered into an out-of-court settlement agreement outlining the steps that the District will take to resolve the issues identified by the United States and ensure the District’s compliance with Section 1703(f) of the EEOA.  Among other things, the agreement requires the District to: provide adequate language services to all EL students, including those with disabilities, so that they can become proficient in English; ensure that the English as a Second Language (“ESL”) components of its EL program are taught by ESL-certified teachers; adequately train the administrators and teachers who implement the EL program; ensure meaningful communication with Limited English Proficient parents about District and school programs and activities; and evaluate the effectiveness of the EL program over time.  The parties anticipate the agreement will remain in place through 2021. 

This desegregation case was in active litigation for two years when the school district moved to have the case dismissed in November 1998. Following a review of information provided by the district, a tour of district schools and subsequent rulings by the court, the parties entered into a consent order in November 1999. The agreement set forth a plan for the district to take additional steps to desegregate the school system and to eliminate vestiges of discrimination from the former segregated system.

Under the settlement, the district agreed to: (1) implement a new elementary school assignment plan and convert two historically minority schools into magnet schools; (2) eliminate general tracks in secondary schools while keeping certain advanced and gifted and talented tracks; (3) implement reforms to its bilingual education and English as a Second Language programs; (4) develop an action plan in each secondary school to increase minority participation in extracurricular activities; and (5) implement a mentoring program to identify potential minority candidates for administrative intern and teaching positions. As a result, minority enrollment increased in advanced and gifted classes, the magnet schools enrolled diverse student bodies, and the English Language Learner program was significantly improved. On September 12, 2002, the court declared the district unitary and dismissed the case.

This English Language Learner (“ELL”) case originally arose from a desegregation order entered against the State of Texas and the Texas Education Agency (“TEA”). In 1972, the League of United Latin American Citizens (“LULAC”) and GI Forum were allowed to intervene in the desegregation case as representatives of Mexican Americans in Texas. Most recently, on February 9, 2006, LULAC and GI Forum filed a motion for further relief under the statewide desegregation order and the Equal Educational Opportunities Act of 1974 (“EEOA”). Their motion alleges that Texas and TEA have failed to sufficiently monitor and enforce programs for ELL students in public schools across the state, thereby wrongfully denying those students equal educational opportunities.

In their briefs responding to the motion for further relief, the state defendants claimed immunity from suit under the Eleventh Amendment and argued that the EEOA failed to validly abrogate this immunity. On July 10, 2006, the Section filed a response to these briefs, asserting that the EEOA abrogated states’ Eleventh Amendment immunity because the statute constituted a reasonably tailored legislative response to a long history of unconstitutional discrimination against national origin minorities. In its August 11, 2006 memorandum opinion , the district court agreed with the Section’s analysis and held that the EEOA abrogated the state’s Eleventh Amendment immunity.

On November 30, 2007, the United States filed a motion for further relief asserting that the Evangeline Parish School Board had failed to fully implement an earlier agreed upon school reorganization plan. The United States sought additional relief, including, either, completion of certain renovations at a majority black high school, construction of a new facility at this high school, or grade restructuring and mandatory reassignment of students from other schools to eliminate the racial identifiability of the school. On December 22, 2009, after significant litigation the court entered a consent order negotiated by the parties that requires the District to take remedial measures in the areas of personnel assignment, facilities, student assignment and quality of education.

Following the Supreme Court's decision, the Board of Visitors of The Citadel voted to admit women to its Corps of Cadets, and, in August 1996, four women joined the entering class of students. When allegations surfaced in December 1996 that two of the women had been harassed and physically abused, the United States initiated an investigation into The Citadel's assimilation efforts. This investigation was separate and apart from the contemporaneous criminal investigation initiated by federal and state law enforcement authorities.

Subsequently the court required The Citadel to submit a revised plan for the assimilation of women. This led to a consent order that, among other things, required The Citadel to: hire a full-time Assistant Commandant to coordinate the assimilation of women into the Corps of Cadets, a fulltime Dean of Women and a full-time recruiter to coordinate female recruitment efforts; institute regular, mandatory sexual harassment-prevention training of all students and staff; undertake specific efforts to recruit women; develop formal assessment tools to evaluate assimilation; hire and station eight additional adult officers in each of the barracks to increase supervision; establish a female assimilation study group to evaluate assimilation efforts and make reports to the president of the college; promptly complete all facilities modifications to accommodate women in all barracks; revise school publications to eliminate sex-restrictive language; and establish informal complaint reporting mechanisms, including the establishment of a college Ombudsman to serve as a confidential recipient of complaints of harassment or abuse. On March 28, 2002, the court entered an agreed order of dismissal to which the parents had agreed, thereby dismissing the case.

The Section filed a complaint alleging that defendants engaged in race discrimination by failing to provide equal educational opportunities for the American Indian students residing in Navajo Mountain. Specifically, the district failed to provide a secondary school located reasonably near their place of residence, as is done for all other students residing in the district. Prior to the filing of this lawsuit, American Indian students who lived in the Navajo Mountain community attended boarding schools operated by the Bureau of Indian Affairs 90 miles away from home. The nearest district high school was 171 miles away from the Navajo Mountain area. The court ruled in favor of the plaintiffs. One year later, the parties entered into a settlement agreement , and the new Navajo Mountain High School opened for classes in 1998.

This case arose out of a long-standing school desegregation suit filed by the United States against the State of Texas, Texas Education Agency (“TEA”), and various school districts. In 1971, the district court entered a desegregation order that, among other things, prohibited TEA from approving or funding interdistrict student transfers that have the cumulative effect of reducing or impeding desegregation in one of the districts. In 2003, Hearne Independent School District (“Hearne”) intervened in the underlying suit, claiming that transfers from Hearne to Mumford Independent School District (“Mumford”) had reduced or impeded desegregation in Hearne, and that TEA improperly continued to fund those transfers. In 2004, the Division filed a motion to enforce the desegregation order against TEA and Mumford.

After a bench trial, the district court found that the transfers from Hearne to Mumford reduced desegregation in Hearne, that Mumford had engaged in fraudulent conduct to circumvent the requirements of the desegregation order, and that the TEA had not complied with the order. The district court enjoined Mumford from accepting–and TEA from funding–all of the transfers that reduced or impeded desegregation in Hearne. Mumford and TEA subsequently appealed to the Fifth Circuit Court of Appeals.

On July 24, 2006, the Fifth Circuit reversed and vacated the district court’s judgment. In its opinion , the Fifth Circuit held that the district court’s factual findings were clearly erroneous and that its remedy was overly broad. The Fifth Circuit further held that Mumford could not be held liable for violating the desegregation order without a finding that it intentionally engaged in segregative conduct because it was not a party defendant to the original desegregation lawsuit.

This is a long-standing desegregation case in the District Court for the Northern District of Georgia. On November 9, 2006, the court approved a consent decree that obliges the district to take measures in the areas of student attendance and assignment, facilities, employee assignment, and student transfers. These measures include, but are not limited to: maintaining facilities and resources at Ruth Hill, a former black school, that are comparable to those at other elementary schools; implementing new attendance zones and policies; and assigning principals and instructional staff in a manner that does not identify a school as intended for one race.

The Section assessed whether the Dublin City School District (Dublin) was complying with its school desegregation orders and applicable federal law. In the course of its review, the Section determined that Dublin’s ability grouping and heterogeneous class assignments were violating a desegregation order. The Section also determined that Dublin was using race-based class assignments to dissuade white students from transferring to the surrounding majority white district of Laurens County (Laurens) and that transfers from Dublin to Laurens were negatively impacting desegregation in Dublin’s schools. The Section attempted unsuccessfully to negotiate voluntary relief with Dublin and Laurens.

On April 15, 2004, the Section filed a motion and supporting memorandum to hold Dublin in contempt for its class assignment violations and for further relief against Dublin and Laurens to enforce an order governing interdistrict transfers. Dublin moved for unitary status, and the Section filed an opposition . Pursuant to the court’s instructions, the United States filed a motion to join Laurens as a necessary defendant and a supplemental complaint against Laurens.

On June 23, 2005, after extensive discovery, the United States and Dublin agreed to a consent order and a settlement agreement that resolved all issues between them, except for the interdistrict transfer issue. The consent order , which was approved by the court on July 1, 2005, governs student assignments to classes and schools, extracurricular activities, and transportation. The settlement agreement governs faculty, administrators, staff, gifted programs, special education, and diploma tracks. Many of the black students improperly classified as having a Mild Intellectual Disability or an Emotional/Behavioral Disorder have been exited from special education under the agreement.

On February 21, 2006, the Section moved for summary judgment against Laurens on the interdistrict transfer issue. Laurens filed an opposition, and the Section filed a reply . The Section also moved for summary judgment against Dublin. Dublin opposed by adopting Laurens’s opposition. Laurens moved for summary judgment on the transfer issue, but Dublin did not. The Section filed an opposition to Laurens’s motion and a motion to exclude Laurens’s expert report. This motion and the parties’ cross motions for summary judgment are fully briefed and pending before the court. To obtain copies of the unsealed exhibits to any of the linked documents, please call (202) 514-4092.

This case arose out of a long-standing school desegregation suit filed by the United States on August 1, 1969 against the State of Georgia and 81 individual school districts. Subsequent to substantive rulings from the District Court and the Court of Appeals, the District Court approved a comprehensive consent decree in 1974.  Thereafter, in March 2013, the District Court approved a consent decree with provisions addressing each of the Green factors: (1) student assignment, including school assignment, student transfers, classroom assignment, gifted and talented, and discipline; (2) faculty and staff, including faculty assignment and faculty hiring; (3) transportation; (4) facilities; and (5) extracurricular activities. On May 25, 2017, the District Court approved a new consent decree , which replaced the March 2013 consent decree and all previous orders in the matter. The May 2017 consent decree provides that the district has satisfied its obligations in the areas of transportation, extracurricular activities, and facilities, and includes remedial measures to address outstanding concerns related to the remaining Green factors, student assignment and faculty and staff. The consent decree is intended to enable the district to establish the record needed for a declaration of full unitary status.

In the late 1980's, the litigation was reactivated when the United States and the plaintiff-intervenors moved to compel Meriwether to comply with the July 23, 1973 permanent injunction. Those proceedings resulted in an order dated June 28, 1990, which established a new student attendance zone plan, prohibited most intra-district and inter-district transfers, and required teaching and staff assignments at schools to remain within 5% of the district-wide racial percentages for teachers and staff. The court also ordered Meriwether to offer the same courses above the core curriculum at both Manchester and Greenville High Schools. In 1996, the court approved a five-year facilities plan proposed by the district. In 1999, the Eleventh Circuit Court of Appeals affirmed the lower court’s approval of the plan. United States & Ridley v. State of Georgia (Meriwether Co. Bd. Of Educ.) , 171 F.3d 1333 (11th Cir. 1999).

On August 28, 2003, Meriwether moved for a declaration of unitary status. The United States objected to the district’s motion. Subsequent to comprehensive discovery and negotiations, the court approved a Consent Decree on October 21, 2004, which essentially requires the district to fully implement the plan previously approved by the court and to see unitary status in 2007.

The Section intervened in a suit filed by plaintiffs who sought relief from violations of a court-ordered settlement agreement made between private plaintiffs and the district in 1976. The suit involved allegations that defendants failed to provide equal educational services to American Indian students in the district. Our complaint-in-intervention alleged that the district failed to provide equal educational opportunities to American Indian students and failed to provide an appropriate program of education for limited-English-proficient Navajo students. The case was settled by consent agreement and covered the issues raised in our complaint. The settlement called for the establishment of four committees to review the district's programs in general curriculum, special education, and bilingual education and to hear disputes that arise under the agreement. The district has adjusted its educational programs accordingly, including its program for students who are limited English proficient.

This case was brought by the Section in 1980 as both an education and housing desegregation case against the City of Yonkers, the Yonkers Board of Education (YBOE), and the Yonkers Community Development agency. The Yonkers Branch of the NAACP (NAACP) intervened as plaintiffs in 1981, and the case was certified as a class action on behalf of all parents of minority (black and Hispanic) children attending the Yonkers Public Schools (YPS) and all minority residents of Yonkers currently residing in, or eligible to reside in, publicly assisted housing. In 1985, the district court found that the defendants had intentionally segregated the City's public schools and housing over a forty-year period. The court order designed to desegregate the schools became known as the Educational Improvement Plan I (EIP I). EIP I, which primarily involved a magnet school program, desegregated the district with respect to student and faculty assignment.

In September 1987, the YBOE filed a cross-claim against the State of New York, alleging that the State also was liable for the prior segregation in housing and education and that there were continuing vestiges of the prior school segregation that were not being addressed by EIP I. In 1993, the district court found that vestiges of segregation existed in the YPS but that precedent from the Second Circuit precluded the court from holding the State liable as a defendant. In 1996, a panel of the Second Circuit distinguished this precedent and ruled that the State could be held liable for the prior segregation. In 1996,the City filed a third-party cross-claim against the State to obtain state contributions to the costs of implementing the school desegregation orders. In 1997, the district court held that the same vestiges identified in 1993 still existed in 1997, and it ordered the State and City to fund a remedial plan known as EIP II. These defendants appealed.

In June 1999, a panel of the Second Circuit initially reversed the district court's 1993 and 1997 vestiges findings and remanded the case to end the action. In a November 1999 decision, the panel withdrew the June 1999 decision, but maintained its reversal of the vestiges findings and remanded the case to the district court to determine if any other vestiges existed. In November 2000, the district court found that five vestiges of segregation existed in YPS as of 1997: (1) disproportionate academic tracking of minority students into the least demanding classes; (2) disproportionately high discipline of minority students; (3) disproportionately high referrals of minorities to special education; (4) inadequate pupil personnel services; and (5) inadequate services for limited-English-proficient students. The court directed the court-appointed monitor to determine whether evidence since 1997 showed that these five vestiges still existed, and it urged the parties to settle the case.

The Section and the other parties were actively involved in negotiations until they reached a settlement of the case in January 2002. In March 2002, the court conducted a fairness hearing and approved the settlement . The settlement dismissed the education portion of the case with prejudice while retaining court jurisdiction to enforce the settlement's terms. In the settlement, the parties did not agree that the YPS was entitled to a court declaration of unitary status, but rather that the YPS was unitary with respect to the six Green factors and that disputed issues regarding vestiges were resolved by the educational programs and funding provided under the settlement. The settlement required the State to provide $300 million over a five-year period to fund over forty remedial educational programs. The settlement ended on its own terms on June 30, 2006, effectively ending the case.

In this long-standing desegregation case, a consent decree negotiated between the Section and the school district was approved by the court on October 15, 2004. The consent decree includes provisions requiring the district to: cease assigning students to classrooms in a manner that creates racially segregated classrooms; conduct an investigation of racial differences in assignment to its gifted and talented program; alter its method for assigning students to honors classes; cease allowing the use of race-conscious policies or procedures in all of its extracurricular activities; and desegregate certain bus routes.

This longstanding desegregation case was filed by the United States in 1967, and a private plaintiff was granted the right to intervene in 1987. On July 23, 1969, the court approved the school district's first desegregation plan, and, in response to a motion for further relief, the court issued a new order concerning student assignment on April 20, 1987, which was subsequently modified in 1992, 1996, 2000, 2003, and 2005. On May 28, 2009, the court issued an order granting, in part, and denying, in part, a motion filed by the school district for approval of a new desegregation plan. The court subsequently declared the school district partially unitary status in the areas of transportation (March 9, 2012), faculty and staff assignment (Sept. 2, 2012), and extracurricular activities (Dec. 14, 2012). The school district also filed a motion for a declaration of partial unitary status in the area of facilities, which was denied and later renewed on August 18, 2013. On April 6, 2014, the district filed a motion for a declaration of full unitary status, which the United States opposed on June 3, 2014. On October 8, 2014, the court issued an order directing the parties to participate in mediation on all unresolved issues, and on May 21, 2015 approved a negotiated consent order that requires the district to implement a new student assignment and transfer policy; adopt new outreach and admission procedures at the district's charter and magnet schools; and implement a new student discipline policy.

In this long-standing desegregation case involving the Bertie County (North Carolina) Board of Education, the Section commenced informal discovery to assess whether the school district was complying with its desegregation order and applicable federal law. Based on its review of the district, the Section identified concerns regarding the school district’s assignment of students, faculty and staff assignments, and student transfer policies. The school district and the Section engaged in good-faith negotiations about these and other issues, but were not able to develop a mutually satisfactory agreement.

On September 26, 2002, the Section filed a motion requesting further relief. In its supporting memorandum of law , the Section asked the district court to order the school district to develop a new desegregation plan that would address vestiges of segregation in student, faculty, and staff assignments as well as student transfers. On April 22, 2003, the district court issued an order granting the Section's motion and directing the school district to file a new desegregation plan to address the vestiges identified in the Section's motion.

On December 19, 2003, the school district filed its proposed desegregation plan. After discovery and negotiations, the Section filed a response to the plan on February 24, 2005. In this response, the Section objected only in part to the proposed student assignment plan, which would have failed to desegregate Askewville Elementary School to the extent practicable. The Section also recommended consideration of more effective alternatives for desegregation and raised the issue of the poor condition of JP Law Elementary School, a small historically black school with declining enrollment. The parties reached an interim agreement on these lingering issues, which culminated in a consent order entered on June 24, 2005. This order called for the reconfiguration of attendance zone lines for Askewville, an independent facilities assessment of the elementary and middle schools in the district, and the development of a new student assignment plan.

Following the completion of the facilities assessment and further negotiations, the parties reached agreement about student assignment, transfers, and facilities. This agreement, reflected in the court-approved consent order of March 17, 2006, established a timeline for closing Askewville and JP Law Elementary Schools and required the re-drawing of elementary school attendance zone lines. The order also prohibited the consideration of race in classroom assignments in other elementary schools and enumerated annual reporting requirements. Finally, the order declared that the school district had complied with its desegregation obligations with respect to transportation, extra-curricular activities, and faculty and staff assignment.

This longstanding school desegregation case was initiated by the United States in 1970.  On January 13, 2017, the United States and the Hendry County School Board filed a joint motion for declaration of partial unitary status and sought court approval of a stipulation governing faculty and staff recruiting and student discipline.  On January 23, 2017, the court granted the parties’ motion , declaring that the school district had achieved partial unitary status with respect to student assignment between schools, transportation, facilities, and extracurricular activities.  The court also approved the parties’ stipulation regarding faculty and staff recruiting and student discipline and will retain jurisdiction over these areas.

In 1980, the United States filed suit against the Chicago Board of Education alleging the board was violating the Equal Protection Clause of the Fourteenth Amendment and Titles IV and VI of the Civil Rights Act of 1964 by unlawfully segregating students in its schools on the basis of race and national origin. On the same day the United States filed its complaint, the parties filed a school desegregation consent decree the court entered on September 24, 1980.

In January 2003, the court directed the parties to examine the continued viability of the 1980 consent decree. The parties evaluated the board’s compliance with its desegregation obligations and jointly developed a modified consent decree sought to achieve the goals of the original consent decree under the changed factual and legal circumstances facing the board. On March 1, 2004, the Court approved the modified consent decree , which required the board to fulfill obligations in the following areas: student assignment; faculty assignment; facilities; transportation; compensatory and supplemental programs; desegregation funding; discipline; higher level course offerings; extracurricular activities; and English Language Learner (“ELL”) programs.

The United States moved to enforce the modified consent decree on four occasions. On one such occasion, the United States filed a motion to enforce the board’s desegregation funding obligations and its duty to provide majority-to-minority (“M-to-M transfers”). The board filed an opposition, and the United States filed a reply . On December 7, 2004, the court issued an opinion in favor of the United States. On August 26, 2005, the United States filed a motion to show cause because the board once again failed to comply with its desegregation funding duties. The board filed an opposition, and the United States filed a reply . On September 21, 2005, the court ruled that the board’s 2005-06 desegregation budget did not comply with the modified consent decree. The parties resolved this dispute through a stipulated settlement the court approved on November 9, 2005.

In the fall of 2005, the court asked the parties and amici to file position papers on whether the modified consent decree should be dismissed or continued in an altered form. The parties filed briefs requesting court approval of a second amended consent approving the parties’ settlement with slight modifications. The August 10, 2006 order requires the board to: continue magnet and specialized schools, offer M-to-M transfers, monitor open enrollment transfers to ensure they do not negatively impact desegregation, fund compensatory programs at racially isolated schools, take steps to diversify the applicant pool for principals, and provide adequate services to ELL students.

On February 16, 2008, the United States filed a motion to enforce the ELL provisions of the 2006 amended consent decree. The United States argued the board had failed to comply with these ELL provisions in three ways: (1)the board had not demonstrated 30% of its special education ELLs were appropriately served, (2) thousands of ELLs received no ELL services or untimely and inadequate ELL services, and(3)the board failed to provide native language instruction and materials for many of its Transitional Bilingual Education programs. After conducting fact and expert discovery, the parties participated in a twelve-day trial in early 2009 regarding whether the board had achieved unitary status in all areas. At the trial, the board sought dismissal of the entire case, and the United States vigorously opposed dismissal of the ELL provisions. On February 20, 2009, the United States filed a post-trial brief, urging the court to require the board to file a proposal regarding how it intends to operate the magnet and specialized schools so the court can assess the board’s good faith, and to order appropriate relief to ensure ELLs receive the services required by the August 10, 2006 order. The parties await a ruling from the court.

On February 20, 2009, the United States filed a post-trial brief , urging the court to require the board to file a proposal regarding how it intends to operate the magnet and specialized schools so the court can assess the board’s good faith, and to order appropriate relief to ensure ELLs receive the services required by the August 10, 2006 order. On September 3, 2009, the United States filed a supplemental brief in light of the Supreme Court ruling in Horne v. Flores. On September 24, 2009, the court vacated the August 10, 2006 order and dismissed the case.

In this longstanding desegregation case, January 7, 2009, the Court entered a consent decree negotiated by the parties finds the district unitary in all areas except student assignment and quality of education. Pursuant to the terms of the consent decree, the District will seek the Southeastern Equity Center’s assistance in the administration of disciplinary measures and ensuring students equal access to admission in the District’s gifted programs.

This school desegregation lawsuit was initiated by the United States on November 30, 1970. On April 1, 1971, the court ordered defendants to implement a desegregation plan, which was modified by subsequent court orders in 1979, 1981, and 1992. On June 30, 2008, the court approved a consent decree declaring the school district partially unitary in the areas of student assignment, transportation, extracurricular activities, and facilities. To address the United States' concerns that a number of Valdosta's schools were racially identifiable in terms of the demographics of school-based personnel, the 2008 consent decree required the Board to take additional steps to meet its obligations in the areas of faculty and staff. The Board was required to develop personnel policies and procedures related to the recruitment, hiring, and assignment of faculty and certified staff; to assign school-based personnel so that no school would be racially identifiable by its faculty; to maintain applications for employment for a three-year period; and to submit periodic compliance reports to the United States and the court. On March 21, 2011, the Board filed a motion for unitary status and motion to dismiss. The United States, finding that the Board had not fully complied with the terms of the 2008 Consent Decree, opposed the Board's motions in a response filed on November 21, 2011. Following settlement negotiations, the parties agreed to a consent order , approved by the court on February 29, 2012, which modifies and extends the terms of the 2008 Consent Decree for two years. Pursuant to the 2012 Consent Order, the Board agreed to withdraw its motion for unitary status and motion to dismiss. For more information on the 2012 Consent Order, please see this press release .

In this desegregation case, the United States determined that the Calhoun County school district was permitting students to transfer to any school in the district without regard to the impact these transfers had on the school district's desegregation obligations. The United States and the school district agreed on a transfer policy that governs the transfer of students within the school district and to other school districts. The parties presented the transfer policy as part of a consent decree that was submitted to the federal district court for its consideration and approval. In 2004, the parties also agreed to the consolidation of all middle school grades at one school located in the district. This agreement was approved by the court and became effective in the 2004-05 school year.

In 2001, the Section received complaints from Asian students at Lafayette High School (LHS) in Brooklyn, NY that alleged numerous instances of national origin discrimination. This discrimination took many forms, ranging from inadequate services for English Language Learner (ELL) students to school officials’ indifferent reaction to persistent verbal and physical peer harassment of Asian students. In one well-publicized case, four Chinese students returning to LHS for their senior year were informed that they had graduated the previous year, though guidance counselors had erroneously informed them otherwise. School officials initially prohibited the graduated students from returning to high school for an additional year of college preparation, notwithstanding the fact that it was too late for them to apply for college admission or receive financial aid. In other cases, Asian students at LHS who assumed they were on track to graduate were forced to return for additional semesters after falling one or two credits short of their graduation requirement when counselors failed to schedule them for the correct classes.

After a lengthy investigation the United States filed a complaint against the City of New York and the Board of Education of the New York City School District on February 2, 2004. The United States alleged violations of Title IV of the Civil Rights Act stemming from defendants’ failure to ameliorate the hostile environment for Asian students at LHS, and further charged that defendants violated the Equal Educational Opportunities Act of 1974 (EEOA) by failing to take appropriate action to help ELL students overcome their language barriers. Four months later, the parties entered into a consent decree that obliged defendants to develop a compliance plan to remedy the transgressions alleged in the United States’ complaint. The Section, in collaboration with the U.S. Attorney’s Office in the Eastern District of New York, is currently monitoring the defendants’ performance under the compliance plan to ensure that there is no recurrence of the events that gave rise to the complaint.

The Section brought suit against Virginia in 1990 under Title IV of the Civil Rights Act of 1964, after receiving a signed, written complaint from a female high school student in Virginia about the males-only admission policy of the Virginia Military Institute (VMI). In 1996, the Supreme Court ruled that Virginia had failed to justify its exclusion of women from VMI's unique educational program.

Following the Supreme Court's decision and VMI's admission of women in 1997, the Section monitored the integration of women into the institution. As a result of a March 21, 2000 Order requiring Virginia to provide more extensive information on its integration efforts at VMI, the Section reviewed reports regarding male and female students in the areas of recruitment and admissions, retention, financial aid, gender relations, physical training, and women's varsity athletics. The Section worked cooperatively with Virginia to resolve its concerns arising from information contained in the reports, and, as a result, the parties signed and the court entered a Joint Motion for Dismissal on December 6, 2001.

On February 23, 2024, the District Court for the Eastern District of Arkansas approved a consent order in the England School District desegregation case to ensure the District broadens its recruitment efforts and conduct hiring on a non-discriminatory basis. As part of the consent order, the district will be required to:

• Collect data on the race of applicants for administrator and Certified Staff vacancies, track whom the District interviews, selects and hires for those positions, and to document the reasons for the hiring decisions;
• Maintain a recruitment and retention team;
• Ensure vacancies are properly advertised on employment sites, social media, and local sources of publicity;
• Develop recruiting partnerships with specific colleges; and
• File with the Court twice yearly status updates and share the information in those status reports with the public at school board meetings.

The court will retain jurisdiction over the consent order during its implementation, which is expected to last two years, and the Justice Department will monitor the district’s compliance.  

On December 6, 2016, the District Court for the Eastern District of Arkansas approved a consent order to address the remaining issue in the Watson Chapel School District desegregation case, the administration of school discipline. The consent order will replace the use of punitive discipline with more positive approaches as part of an overall focus on improving student achievement and school climate.   As part of the consent order, the district will be required to:

• Revise its Code of Conduct, which currently allows the harshest discipline to be imposed for the most minor offense, to instead strictly limit the use of exclusionary discipline, including prohibiting expulsions or out-of-school suspensions for offenses that do not threaten safety;
• Stop the use of corporal punishment, which has been disproportionately applied against black students and undermined the creation of a positive school climate;
• Assess the district’s support services for students with disabilities to ensure that students, particularly students of color, are not disciplined for their disabilities; and
• Enter into an agreement with the law enforcement agencies that provide School Resource Officers to the district that makes clear that Officers will not become involved in enforcing school discipline rules, prevents students from being arrested for minor misconduct and requires the Officer to provide a report to the District any time the Officer becomes involved in an incident at a school.

The court will retain jurisdiction over the consent order during its implementation, which is expected to last three years, and the Justice Department will monitor the district’s compliance.  For more information, please see this press release .

In this long-standing desegregation case involving the Covington County (Mississippi) School District, the Section had concerns about the district’s two virtually one-race schools, how the district’s staff assignment and school construction have reinforced those two virtually one-race schools, and the district’s use of race in extracurricular activities and awards (to include race-based homecoming queens). Despite the fact that the district overall enrolled about half-black students and half-white students, the district nevertheless maintained one virtually one-race black elementary school, Hopewell (grades K-6), and one virtually one-race white attendance center, Seminary (grades K-12), that enrolled over 60% of all of the white students in the district. Hopewell is the only school in the district without a neighborhood middle or high school. Upon graduating from Hopewell, Hopewell students attended grades 7-12 at a majority black middle and high school (ranked passing and Level III in academic achievement by the state) about 10-12 minutes by bus from Seminary (ranked highest achieving and Level V in academic achievement by the state). The district and the Section engaged in good-faith negotiations about these and other issues, but were not able to develop a mutually satisfactory agreement.

On November 25, 2003, the Section filed a motion requesting further relief and a memorandum of law in support of that motion. In its filings, the Section asked the district court to order the school district to develop a new desegregation plan that would address vestiges of segregation in student assignment, staff assignment, school construction, and extracurricular activities.

On April 28, 2005, the United States filed a motion for partial summary judgment, challenging the district’s race-based extracurricular activities. The district then agreed to enter into a Consent Decree that required it to cease any practices utilizing a student’s race, color, or national origin in the selection or eligibility for participation in any extracurricular activity and to develop written racially non-discriminatory extracurricular activity policies.

On March 8, 2006, after additional discovery and extensive settlement discussions, the district and the United States entered into a Consent Decree resolving the remaining issues in the case. As a result of this Consent Decree, the district made the following modifications, among others, to its existing desegregation plan for the following school year: (1) all students attending Hopewell for grades K-6 will attend Seminary for grades 7-12, thereby eventually desegregating Seminary for grades 7-12; (2) the district committed to publicize its Majority-to-Minority transfer program; (3) the district committed to implement a compensatory enrichment program at Hopewell (a pre-K program) with the primary purpose to “enhance education” at Hopewell and the secondary purpose to “encourage white students who reside in other attendance zones” to attend Hopewell; (4) the district is required to conduct a facilities organization study and to submit all plans for construction and renovation to the United States prior to commencing any construction and renovation at Seminary; and (5) the district is required to engage in a comprehensive analysis of the bus routes for Hopewell students in order to reduce the length of all such bus routes to the extent practicable.

This longstanding school desegregation case was initiated by the United States in 1970.  On February 21, 2018, the United States and the Jackson County School Board filed a  joint motion for declaration of partial unitary status and sought court approval of a stipulation  governing faculty and staff recruitment, hiring, and promotion, and student discipline.  On February 23, 2018,  the court granted the parties’ motion , declaring that the school district had achieved partial unitary status with respect to student assignment between schools, transportation, facilities, and extracurricular activities.  The court also approved the parties’ stipulation regarding faculty and staff recruitment, hiring, and promotion, and student discipline and will retain jurisdiction over these areas.  For more information, please see this press release .

This school desegregation lawsuit was initiated by the United States on June 8, 1966. In a decree dated August 1, 1969, the Court ordered a desegregation plan for the district's schools, subsequently modified by a 1970 order and 1971 consent decree . Pursuant to a Fifth Circuit Decision , dated July 13, 1979, the public laboratory schools at Grambling State University and Louisiana Tech University were added to the case. A 1984 consent decree addressed the desegregation obligations of the lab schools. In 2011, following a unitary status review, the Department of Justice submitted a status report to the Court identifying areas of noncompliance by the defendants. The school board filed responses to the status report on September 15, 2011 and October 15, 2011 . Grambling State University and Louisiana Tech University each filed responses on October 17, 2011. Following negotiations, the Department of Justice and the school board submitted a superseding consent order , approved by the Court on May 24, 2012, which granted the Board partial unitary status in the areas of faculty, staff, transportation, extracurricular activities, and facilities. The superseding consent order required the board to implement a school pairing plan to desegregate the four K-5 elementary schools in the board's Ruston attendance zone and to implement revised intra-district student transfer policies. For additional information on the superseding consent order, please see this press release .

On June 2, 2015, the Court approved a supplemental consent order , in which the Board agreed to address the Division's concerns regarding the Board's classroom assignment practices at the four elementary schools located in the Ruston attendance zone. Under the supplemental consent order, the Board will implement the following key changes at the four elementary schools: (1) assign students to homerooms so that the percentage of black and white students in each homeroom reflects the percentage of black and white students in each grade level at each school; (2) refrain from grouping students into homerooms based on students' perceived abilities and ensure that students of all academic levels are assigned to each homeroom; (3) ensure that no homeroom class has more than forty percent special education inclusion students; and (4) transform the Advanced Learning Academy ("ALA") program into a school-wide, racially diverse enrichment program designed to develop the gifts and talents of all students (if the Board chooses to continue operating the ALA program). For additional information on the supplemental consent order, please see this press release .

In 2002 and 2003, private plaintiffs brought suits against the he Lowndes County school district asserting non-compliance with its desegregation obligations, primarily in West Lowndes, an almost all-black area of the district, pursuant to a pursuant to a desegregation order that the district has been operating under since 1970. In 2004, these complaints were consolidated with the United States’ case, and in January 2006, the Court signed a consent order requiring the district to make significant changes to further desegregation. The district was to make improvements to the virtually all-black high school to make them comparable to the majority white high schools including district requirements to: purchase land adjacent to the West Lowndes High School and build a baseball field, upgrade facilities at the virtually all-black high school to make them comparable to the majority white high schools, create band and football practice fields at the virtually all-black high school, remedy short-comings at the virtually all-black elementary and middle schools including upgrading certain classrooms, renovating an auditorium/gymnasium, and removing unseemly sewage lagoons on these premises, implement educational programming at the West Lowndes Middle and High Schools to foster future AP and advanced classes at the high school, teaching advanced classes (AP) on par with the array of course offerings at the majority white schools even if only requested by one child, and to cease using race-conscious policies in the selection of extracurricular activities such as class superlatives and homecoming courts.

In 2007, the Section determined the district was not in compliance with the 2006 order. Nonetheless, on August 21, 2008, the District filed a motion for unitary status. The Section opposed the district’s motion and moved to enforce the 2006 order on the grounds the district: (1) failed to built a baseball facility as ordered (2) failed to install facilities improvements properly resulting in leaks at the entryway to the building; (3) failed to develop policies and procedures related to advanced instruction; and (4) failed to recognize continued complaints of racial harassment and discrimination by community in the district’s majority white schools. On October 15, 2008, the parties withdrew their motions, initiated negotiations, and on February 3, 2009, the court entered a consent order requiring the district to repair the baseball field and entryway at the virtually-all-black high school, develop and support an advanced instruction curriculum (AP) at the virtually-all-black middle school and high school, and adopt and implement a non-discrimination policy to systemically address continued community and parent concerns.

In 1978, the United States sued the Marion County School District (Florida) for maintaining a segregated school system. In 1983, the district court approved a Stipulated Agreement of the parties that, among other things, implemented a plan for further desegregation of the district, including the conversion of two de jure and almost 100% black schools into a district-wide magnet. Since that time, the court entered a decree in 1995 and a modified decree in 2004 to resolve the outstanding desegregation issues. The 2004 modified decree clarified the requirements in the 1995 decree and set forth detailed provisions regarding student assignment (including a policy on out-of-area transfers), the magnet schools, new school construction, staff assignment and recruitment, and the district's reporting obligations.

After finding noncompliance with the extant desegregation order in this case, the Division negotiated a settlement agreement with the district in 2001. In 2003, the school district moved for unitary status and dismissal of the case despite its noncompliance with the 2001 agreement. The Division filed an opposition to the motion on grounds of noncompliance. Following briefing on the issues, the parties negotiated a new agreement that required the district to take specified steps in the areas of student and faculty assignment. Under the agreement , the district agreed to establish a magnet program at a historically black school, to strictly enforce its student transfer policies, and to assign faculty and staff in a way that does not perpetuate the historic racial identifiability of the district's schools. In 2007, the district again moved for unitary status. The Division filed an opposition and a motion for further relief on the grounds that the district had failed to comply with the portions of the 2003 agreement pertaining to transfer policies and faculty assignment.

On July 21, 1966, the United States initiated this lawsuit against the Richland Parish School District.  On July 31, 1969, the Court entered a decree setting forth a plan to desegregate the school district.   In 2010, the United States with the cooperation of the School Board began a comprehensive review of the School Board’s compliance with its obligations under the operative court orders in this case.   Upon completion of its review, the United States concluded that the School Board satisfied the requirements for unitary status with respect to facilities, extracurricular activities, and transportation.  On March 17, 2013, the Court granted the District’s c onsent order declaring partial unitary status and dismissal in the areas of facilities, transportation and extracurricular activities.  The parties continue to negotiate the remaining areas of student assignment, faculty, and staff.

This longstanding desegregation case was filed by the United States in 1970.  On August 14, 1970, the United States District Court for the Middle District of Florida, Jacksonville Division, issued an order requiring the District to adopt and implement a school desegregation plan.  On August 17, 1971, the Court amended its previous desegregation order and required the District to implement a student assignment plan in accordance with the principles established in Swann v. Charlotte Mecklenburg Bd. of Educ., 402 U.S. 1 (1970), and to follow provisions regarding faculty desegregation, transportation, school construction and site selection, student transfers, and extracurricular activities.  On May 7, 1980, the Court removed the case from its active civil docket but the District remained subject to the 1971 Order, including its reporting obligations.  On October 26, 2016, the Court entered an order granting the parties’ Joint Motion for Declaration of Partial Unitary Status and for Approval of Stipulation regarding Faculty and Staff Recruiting .  The order declares the District partially unitary with respect to student assignment, including student transfers, facilities, transportation, and extracurricular activities.  In addition, the order approves the Parties’ Stipulation Regarding Faculty and Staff Recruitment .  The Section is monitoring compliance with the 2016 Order and Stipulation.

In this longstanding school desegregation case, the district court entered an order on December 18, 2014, approving the proposed consent order jointly submitted by the United States and the Suffolk City School Board. The consent order modified the School Board's student assignment plan by establishing zone lines for a new elementary school and implementing a voluntary majority-to-minority ("M-to-M") transfer program that furthers desegregation in the district. On March 20, 2017, the district court approved a subsequent consent order that declares the district has achieved partial unitary status in the areas of facilities, extracurricular activities, transportation, and faculty and staff assignment. The consent order retains judicial supervision over the area of student assignment--including the implementation and expansion of the M-to-M program, anticipated changes to school attendance zones, and student disciplinary practices--through the 2019-20 school year. For more information, please see this press release .

The United States filed this school desegregation case in 1980.  The Court entered a Consent Order shortly thereafter on February 8, 1980.  On April 17, 1980, the Court approved the District’s Desegregation Plan, which went into effect for the 1981-1982 school year and was subsequently modified with the Court’s approval in 1992, 2002, 2010, and 2015.  In the fall of 2017, the District proposed a new student assignment plan for elementary and middle schools called “Focus 2018.”  On April 30, 2018, the parties filed a joint motion and stipulation to obtain court approval of Focus 2018 and address the School Board’s forthcoming steps to further desegregation in other areas of the case.  On June 7, 2018, the Court approved the new plan and the stipulation, which required the parties to identify agreed upon action steps regarding the other areas by August 31, 2018.  On that date, the parties filed a joint motion and stipulation regarding consent decree compliance.  On September 4, 2018, the Court approved this second stipulation , which requires the District to further desegregation by ensuring non-discrimination in student discipline, equitable student transportation, and continued review of high school programs and student enrollment practices.  The stipulation also established monitoring and reporting requirements to promote District compliance with the Consent Order.

On July 15, 2015, the United States sent its findings  to the State of Georgia stating that the State’s administration of the Georgia Network of Educational and Therapeutic Support (GNETS) program violates Title II of the Americans with Disabilities Act by unnecessarily segregating students with disabilities from their peers in school.  The State fails to ensure that students with behavior-related disabilities receive services and supports that could enable them to remain in, or return to, the most integrated educational placements appropriate to their needs.

On August 23, 2016, the United States filed a lawsuit against the State of Georgia in federal district court to remedy violations of the ADA pertaining to the State’s failure to provide thousands of public school students with behavior-related disabilities with appropriate mental health and therapeutic educational services and supports in the most integrated setting appropriate to their needs. The lawsuit alleges that, as a result of the manner in which Georgia plans, funds, administers, and delivers its mental health and therapeutic educational services through the Georgia Network for Educational and Therapeutic Support Program (“GNETS Program”), students with disabilities are unnecessarily segregated and provided unequal educational opportunities in GNETS Centers and Classrooms, where they are isolated from their non-disabled peers, when they could be served in general education classrooms. The lawsuit further alleges that other students with behavior-related disabilities are placed at serious risk of segregation in the GNETS Program.  For more information, please see this press release .

In this desegregation case, the Section determined the McComb Municipal Separate School District had violated the terms of the governing desegregation order and federal law by clustering white students into particular classrooms in a manner resulted in a significant number of segregated, all-black classrooms at the District’s two elementary schools. Additionally, the District was impermissibly using raced-based procedures to select students for certain school-sponsored accolades, including McComb High School’s homecoming queen and court. These procedures had the effect of establishing separate elections for black and white candidates.

In March 2004, the district moved for unitary status. The United States filed a response and a motion for further relief . After discovery, the United States filed an opposition to the District’s motion for unitary status, which stated the United States' objections to unitary status in the areas of student assignment and extracurricular activities, but stipulated to unitary status and dismissal in the areas of transportation, hiring of faculty and administrators, facilities, and resource management. On July 13, 2006, the Court held a hearing to address the areas of dispute. The Court issued a memorandum opinion and order on April 18, 2008, that denied the district’s motion for unitary status and ordered the district to devise an assignment policy that results in meaningful racial interaction for all of the students attending the two elementary schools in question. To execute the requirements of the Court’s order, the court entered a consent decree on September 18, 2008, negotiated by the parties that establishes protocols for student assignment at the two elementary schools and establishes voting procedures for McComb High School’s homecoming court.

The Simpson County School District is under a desegregation order and a 1983 Consent Decree specifically governing employment procedures. The District moved for unitary status in November 2001, and the United States thereafter participated in discovery to evaluate the district's progress toward complete desegregation. The United States learned in March 2003 that the District was not following the specific hiring procedures mandated by the 1983 Consent Decree. To address allegations of racial discrimination in employment, the Consent Decree requires the District actively to recruit black applicants for faculty and administrative positions and to do so by advertising all such vacancies outside the district in regional newspapers and with various universities in the state. The District, however, followed a policy of advertising vacancies first within the District and then outside the district only if no qualified applicants were found within. The United States learned that the District sought to fill three vacancies in principal positions this past winter following that practice rather than the procedures mandated by the Consent Decree. Because the District employed no black personnel with the administrative certification necessary for the positions, the District made the positions available only to white persons and considered no black applicants for the job. The practice therefore contravened the purpose of the 1983 Consent Decree, and the United States filed a motion with a supporting memorandum in April 2003 and a reply to enforce the employment procedures detailed therein. A hearing was held on the motion in July 2003, and the court subsequently granted the United States' motion. The court's order required the District to reopen the three principal positions for the 2004-05 school year and to advertise the vacancies according to the requirements of the Consent Decree. Subsequently, the district moved for unitary status and we opposed. The court ruled in our favor and the district has appealed.

In this longstanding desegregation case, the Wayne County School District is subject to several court orders prohibiting the use of race in classroom assignment decisions and inter-district student transfers that impede the desegregation of the district's schools. In an August 10, 1970 order, the court ordered the district to adopt a desegregation plan, which was modified by several subsequent orders. On May 16, 2006, the court approved a consent order, which declared the district partially unitary in the areas of faculty assignment, staff assignment, transportation, extracurricular activities, and facilities. The 2006 consent order required the district to address the impermissible use of race in classroom assignment decisions at Waynesboro Elementary School (WES). On August 8, 2008, the court approved a consent order increasing the district's reporting requirements. In 2011, the United States notified the District of its determination that WES officials continued to use race as a factor in classroom assignment decisions and that white students residing in a majority-black attendance zone were impermissibly transferring to schools in a majority-white zone. To address these issues, the parties agreed to a consent order , approved by the court on January 3, 2012, requiring the district to adopt a random assignment system for classroom assignment at WES and to take steps to stop impermissible student transfers.

In December of 2009, the Section received a complaint from the Asian American Legal Defense Fund (AALDEF) on behalf of community advocates and Asian students at South Philadelphia High School (SPHS) in Philadelphia, PA that alleged numerous instances of national origin discrimination. This discrimination took many forms, including indifferent reaction to persistent verbal and physical peer harassment of Asian students. This discrimination culminated in one well-publicized instance where Asian students were violently attacked by their peers in and around school grounds. These attacks led to roughly a dozen Asian students being sent to the hospital, twenty-two suspension hearings and the transfer of several students to disciplinary or other schools.

After a lengthy investigation the United States filed a complaint and settlement agreement against the School District of Philadelphia and the School Reform Commission on December 15, 2010. The United States alleged violations of Title IV of the Civil Rights Act stemming from defendants’ failure to ameliorate the hostile environment for Asian students at SPHS, and further charged that defendants violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution due to their deliberate indifference to known instances of severe and pervasive harassment. The settlement agreement obliges defendants to develop an action plan to remedy the transgressions alleged in the United States’ complaint. The Section, in collaboration with the U.S. Attorney’s Office in the Eastern District of Pennsylvania and the Pennsylvania Human Relations Commission, is currently monitoring the defendants’ performance under the action plan to ensure that there is no recurrence of the events that gave rise to the complaint.

In this school construction case, the Section investigated the school district's plans to build a new elementary school in a particular section of Tunica County, Mississippi. This district has a majority black population, and concerns were raised that the proposed school would serve primarily white students and would cause further housing segregation in the county.

Because the school district was under order to desegregate its schools, the district had to obtain the court's approval for its plan. The Section submitted a brief providing the relevant legal standards for evaluating both the need for a new school and the appropriateness of the proposed location. Shortly thereafter, the parties entered into a consent order . As a result of the November 29, 1999 consent order, the District’s new elementary school was built two miles south of the originally proposed location, at a site that is closer to existing black communities.

In the course of reviewing the West Carroll Parish school district's compliance with its desegregation orders, the Section identified zone jumping within the district and student transfers from outside of the district. As a result, the United States negotiated Agreed Modifications to the Residency Verification and Transfer Provisions of the 1991 Consent Order , which were approved by the Court on August 11, 2003. The Section continues to monitor the district’s compliance with these strengthened transfer obligations and the elimination of its race-based homecoming election practices.

To address the persistence of three virtually all white schools and two other racially identifiable schools in this eight-school district, the Section proposed five student assignment plans to further school desegregation. The district rejected the proposed plans, and the Section filed a motion for further relief on November 29, 2005. The United States argued that the district never desegregated these three white schools and that the pre- Swann desegregation plan implemented by the district falls short of eliminating the vestiges of discrimination to the extent practicable. The district filed an opposition, which also served as a motion for unitary status, and the Section filed a reply .

On December 22, 2006, the United States filed a motion for summary judgment , arguing that the evidence obtained in discovery established that the district had failed to eliminate its one-race schools to the extent practicable. The district moved for summary judgment on the grounds that it had achieved unitary status in the area of student assignment to schools. The United States filed an opposition to the district's motion on January 12, 2007, and a reply in support of its own motion on January 26, 2007. On February 14, 2007, the court issued a ruling granting the United States' summary judgment motion and denying that of the district. The court found that the district had failed to eliminate the vestiges of discrimination to the extent practicable and ordered that the trial set for February 26, 2007, proceed to consider an appropriate student assignment plan. In lieu of going to trial, the district and the United States reached agreement on a new desegregation plan in a three-year consent order , which the court approved on March 21, 2007.

On April 10, 2012, the Educational Opportunities Section of the Civil Rights Division and the Department of Education's Office for Civil Rights (OCR) reached a resolution agreement with the University of California, San Diego ("UCSD"), in San Diego, Calif., to resolve an investigation into complaints of racial harassment against African-American students on campus.

The investigation and settlement focused on multiple incidents beginning in February 2010, including public displays of nooses and a Ku Klux Klan-style hood, and the hosting of an off-campus party where students were invited to dress as stereotypes of African-Americans, as well as UCSD's response to the incidents. Following DOJ's and OCR's investigation, UCSD voluntarily entered into a resolution agreement with the departments.

Under the terms of the resolution agreement, UCSD will take steps to prevent racial harassment on campus, respond appropriately to harassment that occurs, and eliminate any hostile environment resulting from harassment. The university has agreed to revise its campus policies and procedures related to racial harassment to ensure they are consistent with federal civil rights laws; maintain an Office for the Prevention of Harassment and Discrimination to receive, investigate, and resolve complaints of harassment and discrimination; and provide mandatory trainings for staff and students on the university's anti-discrimination policies and procedures. The university also voluntarily initiated a number of additional programs to address campus climate issues, and the departments will monitor the implementation of those programs to evaluate their impact on resolving the departments' concerns. For more information, please see this press release .

On March 18, 2024, the Department  notified the University of Maryland, Baltimore County (UMBC) that the University had violated Title IX of the Education Amendments of 1972.  The Department found that from 2015 to 2020, UMBC failed to respond adequately to known allegations of sex discrimination in the Athletics Department.  As a result, a former head coach engaged in sex-based harassment, including sexual assault, of male student-athletes, as well as discrimination on the basis of sex of female student-athletes, on an ongoing basis for years. 

On April 3, 2024, the Department and UMBC reached a settlement agreement to address UMBC’s noncompliance with Title IX.  The agreement followed the Department’s March 18, 2024 letter notifying UMBC that it did not comply with Title IX when, between 2015 and 2020, it failed to respond adequately to known allegations of sex discrimination in the Athletics Department.  Under the agreement’s terms, UMBC will, among other things, ensure sufficient staffing and funding to maintain an effective Title IX compliance program; employ full-time staff to support individuals who have experienced sexual assault; promote greater awareness of its revised Title IX policy and protocols; provide targeted training to student-athletes and Athletics Department staff; create a policy outlining behavioral expectations for coaching staff; and implement climate surveys to identify and respond to the needs of student-athletes. The agreement also requires UMBC to pay up to $4.14 million in financial relief to individuals who the Department found experienced sex discrimination by the former head coach.  The Department will monitor the UMBC’s implementation of this agreement, which will remain in place through the 2028-2029 academic year.  For more information, please see the press release and plain-language summary of the agreement.  

University of Montana-Missoula

On May 1, 2012, the Civil Rights Division formally launched a Title IX compliance review and Title IV investigation of the University of Montana-Missoula's (the University) handling of student reports of sexual assault and sexual harassment. That same day, the Division launched a companion investigation of the University's campus police under the Violent Crime Control and Law Enforcement Act of 1994 (Section 14141), and the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act). See May 1, 2012 Press Release .

Shortly thereafter, the Division combined its Title IX compliance review with one initiated by the Department of Education's Office for Civil Rights (OCR). Title IX and Title IV both prohibit discrimination on the basis of sex in education programs. After conducting numerous interviews and an extensive review of the University's policies, grievance procedures, investigative practices, training, and responses to reports of sexual assault, sexual harassment, and retaliation, the Division and OCR identified a number of areas where the University needed to take further steps to ensure compliance with Title IX and Title IV.

On May 9, 2013, the Division and OCR reached a resolution agreement with the University to resolve their findings under Title IX and Title IV, and the Division reached a separate agreement to resolve its findings under Section 14141 and the Safe Streets Act. Under the terms of the Title IX-Title IV agreement , the University agreed to take significant, additional steps to: prevent sexual harassment and assault; to respond promptly and effectively to reports of sexual harassment, sexual assault, and retaliation; and to fully eliminate the effects of the hostile environment resulting from such harassment. These steps include: adopting revised policies and procedures for handling sex-based discrimination complaints, conducting training for all employees and students, disseminating information more clearly and broadly about how to report sexual harassment and assault, conducting annual climate surveys to assess students' knowledge of these issues and any barriers to their reporting, and evaluating the effect of the Agreement's remedies over time to ensure that they are effective. The Division and OCR will carefully monitor the University's implementation of the Agreement to ensure that the relief it provides reaches students quickly.

On December 5, 2014, the Civil Rights Division and United States Attorney’s Office, New Mexico, formally launched a Title IX compliance review and Title IV investigation of the University of New Mexico's (the University) handling of student reports of sexual assault. Title IX and Title IV both prohibit discrimination on the basis of sex in education programs. After conducting numerous interviews and an extensive review of the University's policies, grievance procedures, investigative practices, training, and responses to reports of sexual assault and sexual harassment, DOJ issued a Letter of Findings on April 16, 2016 which identified a number of areas where the University needed to take further steps to ensure compliance with Title IX and Title IV.

On October 17, 2016, DOJ reached an agreement with the University to resolve their findings under Title IX and Title IV. Under the terms of the Title IX-Title IV agreement, the University agreed to take significant, additional steps to: prevent sexual harassment and assault; to respond promptly and effectively to reports of sexual harassment and sexual assault; and to fully eliminate the effects of the hostile environment resulting from such harassment. These steps include: adopting revised policies and procedures for handling complaints of sexual harassment, conducting training for all students and responsible employees, disseminating information more clearly and broadly about how to report sexual harassment and assault, conducting annual climate surveys to assess students' knowledge of these issues and any barriers to their reporting, and evaluating the effect of the Agreement's remedies over time to ensure that they are effective. DOJ will carefully monitor the University's implementation of the Agreement to ensure that the relief it provides reaches students quickly. For more information, please see this press release .

In this matter involving the University of Tennessee Health Science Center (UTHSC), Tennessee, the Department investigated a complaint alleging, in part, that UTHSC violated of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, et seq ., by failing to reasonably modify policies, practices, and procedures when it employed a threat assessment process and placed a student on a mandatory medical leave of absence from her academic program because of her mental health condition without first considering accommodations to facilitate her continued enrollment.  On July 22, 2016, the Department and UTHSC entered into a Settlement Agreement that prohibits the university from discriminating against any person on the basis of disability and from excluding any person with a disability from participation in or benefiting from its services, programs, or activities.  In addition, the Agreement requires UTHSC to change its leave and withdrawal policies, and provide annual ADA training to faculty and staff.  UTHSC also must ensure that the process it uses to evaluate a student’s request for accommodation or reasonable modification of policies is conducted independently from other campus administrative or discipline processes, and that any threat assessment involving a student with a disability is supported by an appropriate factual record and based on legitimate safety concerns, and not on speculation, stereotypes, or generalizations about persons with disabilities.  Finally, the Agreement allows the complainant to recover $45,000 in compensation, and requires UTHSC to amend the student's academic record; destroy specified documents, including the complainant’s medical records; and take other steps to remedy the alleged discrimination.

After learning of allegations that Utah State University (the “University”) failed to respond to numerous reports of serious student-on-student sexual assault, the Civil Rights Division and United States Attorney’s Office for the District of Utah (collectively, the “United States”) initiated a Title IX compliance review of the University.  The United States reviewed the University’s response(s) to sexual assault and harassment complaint(s) over a more than four-year period.  After conducting numerous interviews and an extensive review of the University’s policies, grievance procedures, training, student education efforts, and responses to reports of sexual assault, sexual harassment, and retaliation, the United States identified areas of noncompliance with Title IX.

On February 12, 2020, the United States reached a settlement agreement with the University to address the areas of noncompliance.  Under the terms of the agreement, the University agreed to take significant steps including, among others: revising its notice of nondiscrimination and relevant sexual harassment policies, procedures, and practices; responding promptly, equitably, and adequately to known sexual harassment that has created a hostile environment; and training students and employees on University policies and federal laws pertaining to sexual harassment, how and to whom they can report allegations of sexual harassment and retaliation, the resources available and how to access them, and the University’s Title IX grievance procedures and potential outcomes.  The United States will carefully monitor the University’s implementation of the agreement, which will remain in place through the 2022-2023 academic year.  For more information, please see the press release .  On July 28, 2020, the United States executed a letter agreement with the University, extending the deadlines in the original settlement agreement.

On January 13, 2003, the Westfield High School L.I.F.E. Club and some of its student members filed a complaint and motion for preliminary injunction, alleging that the Westfield Public Schools and officials discriminated against their religious beliefs by refusing to allow them to distribute pamphlets containing a religious message, even though defendants permitted the distribution of secular pamphlets by these same students the year before. The plaintiffs alleged that this violated their rights to freedom of speech under the First Amendment, the Establishment Clause of the First Amendment, and their rights to equal protection under the laws pursuant to the Fourteenth Amendment.

The United States filed a motion to participate as amicus curiae in this matter, as the United States is charged with enforcement of Title IV of the Civil Rights Act of 1964, which authorizes the Attorney General to seek relief if a school deprives students of the equal protections of the laws. The Court granted the United States' motion on February 26, 2003.

The United States filed a brief in support of plaintiffs' preliminary injunction. The United States argued that the school's restrictions on plaintiffs' speech violated the First and Fourteenth Amendments proscribing government regulations of speech that discriminate against a particular point of view – here a religious viewpoint.

On March 17, 2003, the Court granted the plaintiffs' motion for a preliminary injunction, enjoining defendants from prohibiting the students and the L.I.F.E. Club from distributing literature to fellow students, during non-instructional time, based on the content of the literature.

On June 16, 2003, the Court entered a Consent Decree in which the district agreed to use a revised Free Speech Policy and not to impose any prior restraints upon the plaintiffs to distribute literature unless the distribution failed to comply with the policy.

In this matter involving the Westminster Public Schools, the Section and the District of Colorado USAO examined whether the District was identifying and serving its English Learner (“EL”) students in compliance with the Equal Educational Opportunities Act of 1974 (“EEOA”).   EL students comprise approximately 46% of the District’s student population.  On February 27, 2018, the District and the United States entered into an out-of-court settlement agreement to resolve the District’s noncompliance with the EEOA and ensure that EL students receive the support they need to succeed in the District’s educational programs.  Under the agreement, the District will: identify and place EL students appropriately when they enroll in school; ensure that all ELs, including those with disabilities, receive adequate language services so that they can become proficient in English; provide ELs with access to appropriate grade-level content within the District’s Competency Based System; train teachers and administrators who implement the EL program adequately; monitor the academic performance of current, former, and long-term EL students; evaluate the effectiveness of the EL program over time; and ensure meaningful communication with Limited English Proficient parents about District and school programs and activities.  The parties anticipate that the agreement will remain in place for three full school years.

On August 31, 2015, the Division formally launched a Title IX investigation and compliance review of Wheaton College after receiving a complaint regarding the College’s handling of a student’s report of sexual assault.  The Division reviewed the College’s response to sexual assault and harassment complaints over an approximately three and a half-year period.  After conducting numerous interviews and an extensive review of the College’s policies, grievance procedures, investigative practices, training, student education efforts, and responses to reports of sexual assault, sexual harassment, and retaliation, the Division identified areas where the College needed to take further steps to ensure compliance with Title IX and its regulations. On September 21, 2106, the Division reached a settlement agreement with the College to address these areas and bring it into compliance.  Under the terms of the agreement, the College agreed to take significant, additional steps to: prevent sexual harassment and assault; respond promptly and effectively to reports of sexual harassment, sexual assault, and retaliation; and fully eliminate the effects of the hostile environment resulting from such harassment.  These steps include, among others: revising its policies, procedures, and investigative practices to ensure the prompt and equitable resolution of sexual assault and harassment allegations; adequately investigating and responding to allegations of retaliation by students who reported sexual harassment or assault; taking sufficient action to fully eliminate sex-based hostile environments; and adequately training individuals designated to coordinate its Title IX efforts. The Division will carefully monitor the College’s implementation of the agreement, which will remain in place for at least three school years.  For more information, please see this press release.

In this matter involving the Wicomico County Public School District in Maryland, the Section conducted an investigation into complaints that the District’s student discipline policies resulted in the discriminatory suspension of black and Latino students and students with disabilities, in violation of Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c et seq., which prohibits discrimination based on race, color, national origin, sex, or religion in public schools and institutions of higher education, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and its implementing regulations, 28 C.F.R. Part 35, which prohibits discrimination based on disability in services, programs and activities provided by State and local government entities.

After the investigation, the United States and the District negotiated and entered a voluntary out-of-court settlement agreement on January 19, 2017. Under the settlement agreement, the district will take steps to create positive and inclusive learning environments in all Wicomico County schools, including by timely responding to requests for reasonable modifications to District disciplinary policies, practices and procedures; providing students with supports and interventions before excluding them from school; limiting the use of discipline measures that remove students from the classroom; ensuring that discipline consequences are fair and consistent; establishing clear guidelines for when law enforcement intervention and other emergency response measures are appropriate; providing training to give teachers and administrators the tools necessary to manage their schools in a safe, effective and positive manner; and building data-driven monitoring and accountability systems.

In this matter involving the Worcester, Massachusetts public school system, the Section conducted a review to determine whether the district was providing appropriate instruction and services to English Language Learner ("ELL") students as required by the Equal Educational Opportunities Act of 1974 ("EEOA"). After determining that the school district was not complying with the requirements of the EEOA, the United States entered into an out-of-court settlement agreement with the school district on January 26, 2009. Under this agreement, the school district agreed to take the following steps, among others, to: establish protocols for registration and identification; train faculty and intake staff concerning proper data entry for tracking; ensure timely, adequate and appropriate ELL services; provide translation services for parents and guardians, train ELL teachers, provide appropriate materials for ELL classes, ensure special education students are not denied appropriate ELL services, and monitor current and exited ELLs.

On July 10, 2012, the United States entered into a supplemental agreement with the school district that addressed, among other things, the school district's duty to: adequately test students for English language proficiency; properly train personnel involved in the identification and registration of ELLs; monitor and track the academic achievement of former ELLs; and ensure that classroom instruction provided to ELLs is delivered by teachers who are qualified to teach ELLs. After determining that the school district was still not in compliance with the 2008 and 2012 Agreements, the United States entered into a comprehensive second supplemental agreement with the district on July 11, 2016.  The 2016 agreement replaces the 2008 Settlement Agreement and 2012 Supplemental Agreement and aims to address, among other issues: inadequate ESL and sheltered content instruction for ELLs, the need for more qualified ESL and sheltered content teachers, services and procedures for ELLs with disabilities, and insufficient translations and qualified interpreters for LEP parents.

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Article Contents

1 introduction: ‘anti-discrimination law’ – 
a cure or a disease.

• 2 The Gay Widower: Tadao Maruko v. Versorgungsanstalt der DeutschenBühnen

3 Unisex Insurance Fees: Test Achats v. Conseil des Ministres

4 outlawing the honourable: hall & preddy v. bull & bull, 5 conclusion.

• < Previous

Three Case Studies on ‘Anti-Discrimination’

• Article contents
• Figures & tables
• Supplementary Data

Jakob Cornides, Three Case Studies on ‘Anti-Discrimination’, European Journal of International Law , Volume 23, Issue 2, May 2012, Pages 517–542, https://doi.org/10.1093/ejil/chs022

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In recent years, the EU has adopted a series of new directives to promote ‘equality’ and to fight ‘discrimination’. Further measures are planned. But given that they are based on highly abstract concepts leaving wide margins of interpretation, the true meaning and impact of these new laws is difficult to understand in advance. In this article, I analyse three recent cases that give a foretaste of where European legislators, in their quest for more ‘equality’, may be heading.

Rather than at the moment of their adoption, the true impact and meaning of new laws is often better understood when law courts start applying them. This is particularly true of the EU directives that have been adopted to promote ‘equality’ and ‘non-discrimination’, and the legislative measures taken by Member States to transpose and implement them. Indeed, ‘the fight against discrimination’ has become a major agenda point for EU legislation in recent years, which in turn suggests that ‘discrimination’ may be the most pressing problem of contemporary society.

But is this really the case? A Eurobarometer survey on discrimination carried out in 2009 seems to provide supporting evidence: 16 per cent of respondents considered themselves to have been victims of discrimination within the 12 months preceding the survey, and 26 per cent reported they had witnessed someone else being discriminated against. 1 This is an extraordinarily high number of victims in countries where the equality of all before the law has been a fundamental principle of constitutional law for at least a century and where, as far as one can tell, this foundational principle is drawn into question by nobody. But there are some other findings in the survey that are unexpected: for example, the EU Member State with the highest incidence of ‘discrimination’ appears to be Sweden (where 42 per cent of respondents reported to have witnessed ‘discrimination’), followed by Austria (38 per cent), and Denmark 
(36 per cent). 2 Being an Austrian myself, I do not want to comment on my own country – but as far as the two Nordic countries are concerned, I always used to believe that they were models of open, tolerant, and socially inclusive societies. How is it then possible that these two countries now turn out to be among those where ‘discrimination’ is most rampant, whereas on the lower end of the scale we find countries like Turkey (where only 18 per cent of respondents claim to have witnessed ‘discrimination’), Romania 
(15 per cent), Lithuania (14 per cent), and Croatia (19 per cent). 3 This seems to defy common wisdom: is not Turkey the country where the Kurdish minority is oppressed, where Christians (including, in 2010, a Catholic bishop) are occasionally brutally murdered for no reason other than their faith, 4 where a famous Syrian Orthodox Monastery, which looks back on 1,500 years of uninterrupted existence, faces the risk of being stripped of all its property, 5 and where the Ecumenical Patriarchate has, for more than 30 years, been prevented from re-opening its Seminary 6 where it could train new priests? Is not Romania the country with a huge Roma population living under very precarious social conditions? Is not Croatia the country where ethnic conflicts between Croats and Serbs continue to boil beneath the surface? Is not Lithuania the country that has repeatedly been singled out and pilloried by EU politicians 7 for its (allegedly?) hostile and discriminating policies against homosexuals? And yet the greatest number of self-perceived victims of discrimination is found not in any of these countries, but in Sweden.

It appears thus that – according to Eurobarometer – being a victim of discrimination is not a matter of tangible facts, but of self-perception 8 . This raises some questions both regarding the way in which the issue is nowadays understood by sociologists and regarding the remedies devised by politicians. Could it be that discrimination is most rampant in countries where opinion polls suggest it is not, and that, inversely, in countries where many people believe to have witnessed, or to have been a victim of, discrimination, such widespread sentiment is just the product of government-sponsored ‘awareness-raising’ policies, through which people are educated to look at themselves as ‘victims’ whenever there is an occasion to do so? In other words, could it be that anti-discrimination policies, rather than providing a cure, bring a new illness to society: generalized hypochondria? One feels vaguely reminded of Karl Kraus’ famous jibe on psychoanalysis: it is ‘ jene Geisteskrankheit, für deren Therapie sie sich hält’ , 9 i.e., it is itself the mental disease of which it believes to be the cure. Could not a similar argument be made against anti-discrimination policies?

It seems rather unlikely that Sweden should be the country in the EU with the highest incidence of real discrimination – but it surely appears to be a country where people have very highly developed ‘discrimination awareness’. And we are left to wonder whether further education efforts (e.g., media campaigns, anti-discrimination curricula in schools and universities, etc.) could indeed raise that awareness to 80 or even to 100 per cent – i.e., that all people would finally discover that they are, in some way or other, victims of ‘discrimination’. But in that case, what would such a high level of problem awareness really signify?

As an old saying goes, the truth is in the eyes of the beholder. The inequality and injustice in this world should by no means be trivialized, but on the other hand the problem of ‘discrimination’ to a large extent exists only because it is perceived as such. Many of the discriminations that seem to preoccupy the minds of specialized researchers, advocacy groups and politicians have never been perceived as a problem by the rest of society. And while it could be argued that just as certain diseases can be diagnosed only by specialist doctors, and that diagnosis of the social evil that is called by the name of ‘discrimination’ can be perceived only by those who have been trained to perceive it, the question still remains whether some of the proposed remedies are not worse than the evil they are meant to eradicate.

Assuredly, the word has a negative connotation, and there seems to be nearly universal agreement that ‘discrimination’ should be fought against: hence it is easy to adopt political agendas that identify the fight against ‘discrimination’ as an important priority, or to organize parliamentary majorities to vote in favour of EU directives or national laws that purport to serve that purpose. Yet the traditional precept of justice was not to provide equal treatment to all and everything, but to distinguish : as the Romans said, iustitia est constans et perpetua voluntas ius suum cuique tribuendi . 10 To give everyone his due is definitely different from giving everyone the same . But the concept of ‘discrimination’, as it is enshrined in various EU directives, departs from the perennial concept of justice precisely because it is based on the assumption that justice means nothing other than ‘equality’. According to those directives, ‘discrimination’ occurs when two people are treated differently although they are in a ‘comparable’ situation. 11 But what does ‘comparable’ mean? Even very different things can, with some hope for gain of insight, be compared. Yet it requires not much more than a bit of common sense to see that the mere fact that a comparison may be made between two different situations is not sufficient ground to treat them alike. Moreover, even if an obligation not to discriminate related only to identical (rather than also to merely ‘comparable’) situations, it seems unavoidable that such an obligation, if applied to private persons rather than only to the state, would massively interfere with those persons’ personal freedom: for it is part of that freedom that people are allowed to act arbitrarily, in accordance with their personal preferences or dislikes.

In addition, one cannot help noticing that anti-discrimination legislation tends to be based on highly abstract definitions and principles: it refers to concepts such as ‘direct’ and ‘indirect discrimination’, identifies certain criteria of discernment as ‘suspicious grounds’ (whereas other criteria appear to be less ‘suspicious’, and people and groups identified by such criteria hence receive less protection), and establishes highly unusual reversals of the burden of proof. Even for expert lawyers the practical impact of anti-discrimination laws is thus hardly predictable. Indeed, the only prediction that can be made with great certainty is that they leave a huge margin of interpretation to the judges and public servants who are to apply them, and expose citizens to considerable uncertainty. For the very same reasons, there are strong grounds for doubting whether many of the politicians raising their hands to vote in favour of such laws actually understand the content – not to mention the possible impact – of the measures they are adopting. While it is certainly a gratifying feeling for a politician to have ‘stood up against discrimination’, the practical results from such political action might, if examined more closely, turn out to be far less gratifying.

In this article, I will take a look at a number of cases where new ‘anti-discrimination laws’ have been used by courts at supra-national and national levels with rather surprising results. My purpose is to understand how judges nowadays interpret concepts like ‘equality’ and ‘discrimination’, and how these interpretations seem to depart from a more traditional understanding of justice.

2 The Gay Widower: Tadao Maruko v. Versorgungsanstalt der Deutschen Bühnen

A the facts of the case.

The first of these cases is the Maruko Judgment 12 of the European Court of Justice (ECJ), which was hailed by some as a landmark decision with regard to the equal treatment of homosexuals.

The facts of the case are quickly summarized. The plaintiff, Mr Tadao Maruko, is a homosexual man who, shortly after this possibility was introduced in Germany by a law enacted in 2001, entered into a ‘registered partnership’ with another man who had been employed as a designer of theatrical costumes for more than 40 years and, during that time, had contributed to the compulsory pension scheme of the Versorgungsanstalt der deutschen Bühnen (the German Theatre Pension Institution, the ‘VddB’). When his life partner died in 2005, Mr Maruko demanded the payment of a widower’s pension, as part of the survivor’s benefits provided for under the compulsory occupational pension scheme of which his deceased life partner had been a member. But the VddB scheme provided for the grant of a widower’s pension only in the case of married couples, not in the case of a registered partnership between persons of the same sex. According to Mr Maruko, the VddB’s refusal to grant him survivor’s benefits on the same conditions as a surviving spouse was discrimination on grounds of his sexual orientation. He filed an action with the Bayerisches Verwaltungsgericht München (Bavarian Administrative Court, Munich), which referred the case to the ECJ for a preliminary ruling, asking whether Directive 2000/78/EC obliges Member States to ensure that in cases such as the one at hand the surviving same-sex partner receives a survivor’s benefit equivalent to that granted to a surviving spouse.

B The Court’s Decision

The ECJ ruled in Mr Maruko’s favour, stating that the payment of a widower’s pension under an occupational pension scheme was to be considered a part of the employed person’s salary, and hence fell within the scope of the Directive which forbids discrimination ( inter alia ) on grounds of sexual orientation with regard to employment and employment-related benefits, but explicitly excludes from its scope social security and social protection schemes . Therefore,

the combined provisions of Articles 1 and 2 of Directive 2000/78 preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the VddB. 13

This was hailed by many as a major breakthrough 14 in the fight against ‘discrimination’, in particular regarding people with a diverse sexual orientation, and it was claimed that no difference in treatment would be admissible any longer.

In May 2011, the Court issued a very similar judgment in the case of Jürgen Römer v. 
Freie und Hansestadt Hamburg, 15 with the sole difference that what was claimed in the Römer case was not a widower’s pension, but a higher pension while the registered same-sex partner was still alive. Given the great similarities, I will not discuss the Römer case separately, but limit myself to saying that the comments I make with regard to Maruko are equally valid for the Römer decision, which, once again, was greeted as a ground-breaking victory for lesbian, gay, bisexual, and transgender (LGBT) rights. 16

However, such comments appear to widely overstate the significance of both cases. Upon reading both judgments more carefully, one finds that the ECJ makes a much more cautious assertion: 17 the obligation of Member States to provide for ‘equality’ is made dependent on their own policy choice to ‘place persons of the same sex in a situation comparable to that of spouses’. 18 In other words, only if and where a Member State decides to adopt laws that put same-sex partnerships on a par with marriage must it provide equal treatment. Inversely, if a Member State makes no such decision, the principle of equal treatment does not apply.

This is far from a sweeping statement that Member States must legally recognize same-sex partnerships, or provide a legal framework for them, let alone that they must provide such partnerships with the same social benefits or tax breaks that accrue to married couples. Indeed, the ECJ explicitly acknowledges that ‘the civil status and the benefits flowing therefrom are matters which fall within the competence of the Member States and Community law does not detract from that competence’, 19 and it is difficult to imagine how it could have come to any other conclusion, given that both Article 81(3) of the Treaty on the Functioning of the EU (TFEU) and Recital 22 of Directive 2000/78 itself clearly reserve that competence to the Member States. It was clear from the outset that the Court’s interpretation of Directive 2000/78 could not result in an EU-wide introduction of same-sex marriage.

C Critique of the Decision

But even as it stands, the ECJ’s decision goes farther than it should, and suffers from some apparent flaws.

The first of these flaws is the circularity of the Court’s reasoning: what it says is that if and where a Member State chooses to treat marriages and same-sex partnership equally, it should treat them equally. This statement certainly is as true as it is trite. But the ECJ’s competence is limited to interpreting EU law, and if the obligation to provide equal treatment is derived from national laws rather than from EU law, it should be for national law courts to decide whether or not such an obligation applies in the concrete case. The ECJ has thus overstepped its competence. The right thing to say would have been that an obligation to provide equal treatment could not be derived from the EU Directive and that it was for the German court to determine whether such obligation was to be derived from domestic law.

A second point of criticism follows from the first. The ECJ’s assumption that German legislation ‘places persons of the same sex in a situation comparable to that of spouses’ is evidently mistaken. If it had done so, the dispute at hand would never have arisen. But Mr Maruko’s problem precisely was that the applicable German law, by not granting him an entitlement to a widower’s pension, did not place him and his partner in the same situation as spouses. This must be seen as a part of Germany’s domestic policy in regulating same-sex partnerships, and it was probably a deliberate decision. How, then, is it possible to argue that because Germany ‘places persons of the same sex in a situation comparable to that of spouses’ there must be no difference in treatment? The direct opposite is true: German legislation did not place persons of the same sex on a par with spouses, nor was there any obligation under the EC Directive to do so.

To put all this into simpler words, I could say that, thirdly, the judgment simply suffers from flawed logic. The problem for Mr Maruko was that the applicable German law put him and his partner not in an identical, but only in a ‘comparable’ (viz. similar) situation to that of a married couple. The ECJ judgment thus boils down to something in the sense of: because Germany has decided to treat same-sex partnerships and marriages similarly , the ECJ now demands that it treats them alike . But at the same time the Court has to acknowledge that all Member States are free, if they so choose, to treat these situations very differently, e.g., by granting no legal status at all to same-sex relationships. By which logic, then, can it be licit for Member States to treat marriages and same-sex relationships either equally or differently, but at the same time illicit to treat them with slight differences? And why does it follow from a country’s resolve to treat two different situations similarly that those situations must be treated alike ?

This leads me to my fourth point, which probably is the most important one. Fighting against discrimination means ensuring that like situations are treated alike, and unlike situations differently. This implies that one must first compare the two factual situations in question, and then the rules to which they are subject. But the ECJ’s Maruko judgment simply does not do that. It does not draw any comparison at all between the factual situation of married couples and that of same-sex life partners; instead, it only draws a comparison between the respective legal situations, which are found to be ‘comparable’, albeit not identical. In omitting the required comparison between relevant factual situations, the ECJ has committed a logical error that is known as petitio principii : the proposition that needed to be proven was assumed implicitly or explicitly in the premise. It is affirmed that A and B have been treated unequally in the past and must be treated equally in the future, but there is no argument at all to demonstrate that there actually is any equality between A and B to warrant such equal treatment.

There never was any doubt that there were some differences in the respective legal situations of married couples and same-sex registered partners. But – even by the standards of Directive 2000/78 – in order to find ‘discrimination’, one would have to demonstrate that there is a convergence in the factual situations that would warrant their being treated alike. In the case at hand, for example, the ECJ would have had to compare the typical situation of same-sex partners with the typical situation of married spouses. Had it done so, it could have discovered that marriage is typically entered into with the purpose of having children, whereas same-sex partners typically have no children. It could also have noticed that having to deal with the upbringing of children in many cases implies that one of the spouses either has no income of his/her own or only a small income from a part-time job, whereas in the case of same-sex couples there is typically no comparable reason why each partner should not live on his/her own salary. It could have found that, as a consequence, most same-sex couples have two incomes (which is why they are increasingly seen as a social group with particularly high purchasing power), whereas married couples with children often are under considerable financial strain. It could have found that in the case of married couples the granting of a widower’s pension therefore has a clear social purpose, which in the case of most same-sex partners is definitely less self-evident. Finally, it would have noted that unmarried people and same-sex couples can have pensions only because other people raise children, who (once they have grown up) sustain society through their work: married couples thus make an important contribution to the common good whereas same-sex couples typically make no comparable contribution.

Bearing this in mind, one may well ask whether in the case of childless married couples or couples that have two full incomes the surviving spouse should really be entitled to a survivor’s pension – but there can be absolutely no doubt that there is no reason to grant such an entitlement to a surviving homosexual partner like 
Mr Maruko. This judgment creates no equality, but undeserved privileges. 20

It is the ECJ’s (now CJEU’s) unwillingness to deal with relevant facts that lies at the roots of the apparent circularity of its reasoning. But one may ask whether this disturbing insouciance about facts is something that must be laid at the door of the Court alone, or whether it is not already inherent in the legal provisions it had to apply. There seems to be a certain ambiguity, or even a widespread misunderstanding, with regard to the meaning of the terms ‘equality’ and ‘discrimination’.

There is therefore a fifth and last point I should make here: both the ECJ’s judgment and the underlying legislation appear to suffer from inherent self-contradictions. If ‘equality’ means ‘equal pay for equal work’, and if – as the Court has argued – the benefits that were under consideration in the Tadao Maruko and Römer cases (i.e., a survivor’s pension and, prior to that, a higher pension while the spouse/partner is still alive) are considered to qualify as ‘pay’, then these benefits must accrue to all employees doing the same work, irrespective of any marital or civil partnership status. As things stand now, the new victims of ‘discrimination’ would be all those who, not being married and not living in a civil partnership, do not receive the same benefits despite delivering the same work output and making the same contribution to the pension scheme. If pension entitlements are part of a person’s ‘pay’, then those unmarried and un-partnered people should be given the right to designate a person of their choice as recipient of a possible ‘survivor’s pension’, otherwise there is no equal pay for equal work. If, by contrast, it is acknowledged that the benefits in question serve a social purpose (i.e., that of providing social security to a person who, for the purpose of raising children, has limited possibilities of earning a salary of his/her own and thus is dependent on his/her partner’s income), then one can hardly understand why Messrs Maruko and Römer should be entitled to them. Instead, and in view of the fact that in both cases the employment appears to have been in the public sector, those entitlements must be seen as ‘state social security and social protection schemes’ that are outside the scope of the Directive. Given the purpose of such benefits, they should be targeted: they should accrue to the socially vulnerable , or to those who, for example by raising children, provide a specific contribution to the common good. From the two ECJ judgments, one fails to see how either of these conditions would be met by Mr Maruko or Mr Römer.

It is a fundamental flaw not just of the two judgments discussed here, but also of the underlying legislation, that a distinction between ‘pay’ and ‘social security’ is made in a way that does not correspond to the reality of the market. The reality is that in some employment contracts (especially where higher management is concerned), so-called social benefits are individually negotiated: the employee accepts a lower salary in exchange for a higher pension, or a survivor’s pension for his spouse, or similar. There can be no doubt that under such circumstances those benefits should be qualified as ‘pay’. But it is hard to imagine how ‘anti-discrimination’ laws could be applied to such individually negotiated employment conditions without stifling the functioning of the labour market. If and where, by contrast, the employer uses fixed schemes to determine the salaries and other entitlements of their employees (as all public services and, with regard to the lower ranks of their staff, many privately-owned enterprises do), the qualification of social benefits such as pension rights as ‘pay’ makes not much sense, given that they are dependent not only on the amount and quality of work delivered by an employee, but also on numerous other factors such as the duration of his/her life, his/her marital status, etc. The failure to recognize the social purpose of such benefits and the application of a strict, but ill-conceived, principle of ‘equal pay for equal work’ is a serious flaw in Directive 2000/78. It simply leads to the result that employers must generally refrain from granting such benefits to any of their employees: it is in the very nature of social benefits that some draw a greater profit from them than others – therefore, there will always be some ‘discrimination’. It would therefore appear wiser to interpret Directive 2000/78 more restrictively, and to limit its scope strictly only to salaries that are based on a fixed scheme (i.e., not individually negotiated), but not to any employment-related social benefits.

Be that as it may, it seems very clear that the typical situation of gay partners, characterized by double income and no kids, is not equal to the typical situation of a married couple that, while receiving only one or one and a half salaries, bears the expense of raising children and, in doing so, makes a specific contribution to the common good. If the ECJ’s interpretation of Directive 2000/78 is correct, then ‘anti-discrimination’ means that the unequal must be treated equally .

A No Rule without Exception

Anti-discrimination legislation prohibits unequal treatment on specific grounds that are identified as ‘suspect criteria’. But what if, in a given situation, the application of such a ‘suspect’ criterion turns out to be fair and objective? Should it then still not be used? Long before ‘anti-discrimination’ policies came to deal predominantly with the promotion of gay and lesbian issues, their main concern was over the equality of sexes. The underlying narrative that was to provide legitimacy and moral high ground for the proponents of ‘anti-discrimination’ was that from the dark origins of times to our day women had always and everywhere been the victims of discrimination and enslavement, and that – in the absence of any other possible suspects – men were responsible for having oppressed them. To remedy this situation, the equality of citizens irrespective of their sex was enshrined as a foundational principle in the constitutional laws of most democracies, and all laws that provided for differences in treatment were, one after the other, modified or abrogated.

But, somehow, this alone did not suffice to satisfy the fighters against ‘discrimination’. What they had obtained was equal rights, but what they still want is ‘equality’. ‘Equality’, in their view, does not mean that men and women should have equal rights, but that they have the same living conditions, earn the same salaries (at least on average), occupy the same number of seats in parliaments or governments, or the same number of senior posts in the management of enterprises. For this kind of ‘equality’, the factual differences between the sexes (e.g., the fact that only women can become pregnant, or that men and women have different preferences in their career planning, or that men are more apt for physical work) often turns out to be an obstacle that can only be overcome by deliberate differences in treatment, which are then called ‘positive discrimination’. Bizarrely, therefore, ‘equality’ is often the opposite of ‘equal rights’, and ‘anti-discrimination policies’ turn out in actual fact to be pro-discrimination.

Council Directive 2004/113, which has the stated purpose of ‘implementing the principle of equal treatment between men and women in the access to and supply of goods and services’ is a perfect example of this. In the civil law of all EU Member States, men and women have the equal right to own property, for example money, and the equal faculty to conclude contracts, for example concerning the purchase of goods and services. Whoever has confidence in the functioning of a free market economy would think that this equality before the law should suffice to give them access to all goods and services they desire. But the lawmakers thought otherwise: they were concerned over the fact that for certain goods and services women and men might have to pay different prices. For example for clothing and shoes (although, obviously, the different styles of dressing may be a good reason for any such price differences). Or for a haircut (maybe we will soon get an EU directive to implement the principle of uniform dressing and hairstyle?)

One of the areas in which men and women often pay different prices is insurance. This, however, is not the result of deliberate discrimination, but is due to the fact that insurance companies, in order to ensure that the premium to be paid for a given insurance policy corresponds to the size of the insured risk, carry out a careful risk assessment that is based on all available statistical information. The more accurate this calculation, the easier it will be for an insurance company to offer insurance at a competitive price.

Statistical evidence demonstrates, however, that in many cases risks may be significantly different for persons of a different sex. There are diseases that affect predominantly women (like breast cancer), or only men (like prostate cancer), or that affect men and women with highly different degrees of likelihood (e.g., cardiovascular diseases). Health risks associated with pregnancy and maternity affect only women. On the other hand, women have a longer life expectancy, and that fact – combined with the on average lower retirement age – means that they often have to pay higher contributions for their (private) health and pension insurance schemes. At the same time, male drivers, especially young ones, have a higher statistical risk of being involved in a car accident, and hence are often required to pay higher prices for their car insurance. The principle thus applies in both directions: in some cases it results in higher insurance fees for women, in other cases in higher fees for men.

When the EU set out to enforce the principle of equal treatment in the access to and supply of goods and services, it was clear from the outset that an exception had to be made for insurance. The directive, which was adopted by unanimous vote in the Council, thus provided in its Article 5:

Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.

Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, 
and shall forward the results of this review to the Commission.

The provision in Article 5(2) thus certainly put a burden of proof on the Member States concerned to demonstrate that their legislation was not discriminatory. But the exemption it provided for was clearly intended to be a permanent one. This was further corroborated by a recital which ran thus:

(19) Certain categories of risks may vary between the sexes. In some cases, sex is one but not necessarily the only determining factor in the assessment of risks insured. For contracts insuring those types of risks, Member States may decide to permit exemptions from the rule of unisex premiums and benefits, as long as they can ensure that underlying actuarial and statistical data on which the calculations are based, are reliable, regularly up-dated and available to the public. Exemptions are allowed only where national legislation has not already applied the unisex rule. Five years after transposition of this Directive, Member States should re-examine the justification for these exemptions, taking into account the most recent actuarial and statistical data and a report by the Commission three years after the date of transposition of this Directive.

B A Constitutional Complaint Brought to the CJEU

Given that, according to common wisdom, the purpose of ‘anti-discrimination’ policies is to protect women against male oppression, it is certainly surprising that two men, Messrs van Vugt and Basselier, should have considered themselves to be victims of ‘discrimination’ with regard to access to insurance. And yet this is what happened: for reasons that remain unclear (as the CJEU’s judgment makes no mention of them, nor of any details of the proceedings at national level), and availing themselves of the support of Test Achats, a leading Belgian consumers’ association, they filed a complaint with the Belgian Constitutional Court, demanding the invalidation on grounds of unconstitutionality of the legal provision by which Belgium had transposed Article 5(2) of Directive 2004/113 into the domestic legal order. In simpler words, they considered that the exemption of insurance services from the general principle of unisex premiums violated the Belgian Constitution.

The Belgian Constitutional Court, however, rather than examining the compliance of the challenged provision with Belgian constitutional law, referred the case to the ECJ for a preliminary ruling on whether Article 5(2) of Directive 2004/113 (i.e., the provision the challenged Belgian law was meant to transpose) was in conformity with the principle of equality and non-discrimination as guaranteed by Article 6(2) of the EU Treaty. This was not strictly necessary, as a law can, while standing in contradiction to the Belgian Constitution, conform to the EU Treaty, and vice versa. It would thus have been possible for the Constitutional Court to invalidate the Belgian law and at the same time leave intact the ability of other Member States to avail themselves of the flexibility offered by Article 5(2) to exempt insurances from the strict application of the unisex premium rule if and where a significant difference in the actuarial risk in relation to sex was demonstrable. But, as it was, the case was turned from a constitutional complaint in Belgium into one at European level – which is remarkable, because individual citizens do not normally have the chance to question the compatibility of EU directives with primary Community law.

By judgment 21 of 1 March 2011, the CJEU ruled that Article 5(2) of Directive 2004/13, having been found incompatible with Articles 21 and 23 of the EU’s Fundamental Rights Charter, was to be considered invalid as from 21 December 2012.

C Critique of the Court’s Ruling

Despite being preceded by the Opinion of Advocate General Juliane Kokott, who had come to the same conclusions, the Court’s judgment has surprised many by its bluntness and poverty of argument. For indeed, Mrs Kokott’s conclusions had already received harsh criticism in the mass media 22 as well as from legal experts and stakeholders (not just the representatives of insurance companies, 23 but also some consumer organizations 24 ) which, one might have expected, should have been reason for the Court to handle this case with even greater caution than normal and give the matter a second thought. But there is hardly anything in the judgment to suggest that the Court made any attempt to use caution or restraint.

The CJEU adopts a rather too simplistic point of view when, in paragraph 16 of its Decision, it says:

Article 6(2) EU, to which the national court refers in its questions and which is mentioned in recital 1 to Directive 2004/113, provides that the European Union is to respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law. Those fundamental rights are incorporated in the Charter, which, with effect from 1 December 2009, has the same legal status as the Treaties.

As a summary of the legal framework on fundamental rights, this is not quite correct. The FRC does not incorporate the rights contained in the ECHR, but it paraphrases those rights with, at times, rather different words. The reason why the Charter, rather than sticking to the text of the Convention, uses different words has never been explained in a satisfactory manner, so that it remains quite unclear whether this is (a) a pure coincidence or inadvertence, or (b) a deliberate attempt by 27 of the 47 Member States of the Council of Europe unilaterally to re-interpret the Convention and change its meaning, or (c) an attempt to provide a higher level of rights protection in the EU than provided for by the Convention. Whichever it is, the two documents differ considerably from each other. 25 This is particularly true for the issue of ‘discrimination’: while Article 14 ECHR prohibits ‘discrimination’ only with regard to ‘the enjoyment of the rights and freedoms set forth in this Convention’, Article 21 of the FRC prohibits ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’, and thus creates a completely new type of cross-cutting fundamental right. Article 23 of the FRC, which stipulates that ‘equality between men and women must be ensured in all areas, including employment, work and pay’, has no correlative at all in the ECHR, nor are similar provisions to be found in the constitutional laws of many Member States. On the other hand, however, the second paragraph of Article 23 FRC, which provides that ‘the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex’ clearly reveals that this provision does not at all aim at ‘equal rights’; quite on the contrary, it contains a mandate for creating ‘equality’ through deliberate discrimination, and must thus rather be seen as a warrant for unequal rights . It is hard to describe this approach otherwise than by saying that, standing in direct and radical contradiction to the prohibition of ‘any discrimination based on ... sex’ in Article 21, it evidences the self-contradictions of the European Union’s ‘anti-discrimination policies’: in principle ‘discrimination’ is bad, but when it suits the interest of certain groups it is good. The assertion that provisions like Articles 21 and 23 ‘result from the constitutional traditions common to the Member States’ seems quite daring, and the CJEU in the judgment at hand does nothing to provide substance and credibility to this claim. What many Member States do have in their constitutional laws 26 is a clause similar to Article 20 of the Charter: everyone is equal before the law. But that is something completely different from the novel ‘anti-discrimination’ language in Article 21 or the pro-discrimination clause in Article 23.

Be that as it may, one thing is certainly true: Articles 21 and 23, albeit contradicting each other, are now a part of the EU’s primary law. Therefore, the provisions in a directive must comply with them.

But is it really ‘discrimination’ in the sense of Article 21 FRC if a directive allows one to charge different premiums for the insurance of risks that, according to all statistical evidence, differ significantly? Would it not rather be ‘discrimination’ to impose a provision that different risks must be insured at the same price? Does Article 23 not provide legitimacy to certain differences in treatment where this seems appropriate?

One might have expected the Court to discuss these crucial issues exhaustively. This case was not about an individual action with no implications for third parties, but about the broad implications of two articles of the new Fundamental Rights Charter which leave a wide margin of interpretation. Thus, what would have been required here was a careful and yet exhaustive exegesis of those two articles, exploring their scope and their limits.

But those looking for such an analysis in the CJEU’s decision will be disappointed. The core passages of the judgment are the following:

28 The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraph 23).

29 In that regard, it should be pointed out that the comparability of situations must be assessed in the light of the subject-matter and purpose of the EU measure which makes the distinction in question (see, to that effect, Arcelor Atlantique et Lorraine and Others, paragraph 26). In the present case, that distinction is made by Article 5(2) of Directive 2004/113.

30 It is not disputed that the purpose of Directive 2004/113 in the insurance services sector is, as is reflected in Article 5(1) of that directive, the application of unisex rules on premiums and benefits. Recital 18 to Directive 2004/113 expressly states that, in order to guarantee equal treatment between men and women, the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals. Recital 19 to that directive describes the option granted to Member States not to apply the rule of unisex premiums and benefits as an option to permit ‘exemptions’. Accordingly, Directive 2004/113 is based on the premise that, for the purposes of applying the principle of equal treatment for men and women, enshrined in Articles 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable.

31 Accordingly, there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for in Article 5(2) of Directive 2004/113, to persist indefinitely.

32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.

Five paragraphs, albeit in solemn legal language, are rather a small space in which to discuss an issue of such general importance. Yet the core of the Court’s reasoning could be put in even simpler words: the purpose of Directive 2004/113 is to establish the principle of unisex premiums in the insurance sector. The provision made by Article 5(2) is described as an ‘exemption’. Therefore, it must be concluded that the legislator of the Directive believed that the respective situations of men and women with regard to insurance premiums and benefits contracted by them are ‘comparable’ (viz. the same), and that, in the absence of such an ‘exemption’, the application of different premiums for men and women must (again: according to the legislator of the Directive) be considered ‘discrimination’. But such ‘discriminations’ must not be allowed to persist indefinitely. Therefore, the ‘exemption’ must be declared invalid ‘upon the expiry of an appropriate transitional period’.

This argument – or should I say: this lack of argument? – is astonishing. First and foremost, the CJEU does not even attempt to explain why the application of different premiums for statistically different risks should be considered ‘discriminatory’. Instead, it defers to mere assumptions allegedly made by the legislator of the Directive, which it considers to be ‘based on this premise’. In other words, the Court abdicates its own authority to challenge and examine that premise, which, had it really been made by the legislator, would certainly have deserved some critical scrutiny.

In actual fact, however, it is not at all certain that the legislator really made such a premise, or that he made it with regard to all insurance contracts. From the word ‘exemption’ alone it cannot be concluded that, in the eyes of the legislator, the insurance contracts covered by Article 5(2) were to be seen as ‘discrimination’ which, by virtue of that provision, would be allowed to persist only for a limited phasing-out period. On the contrary, the legislator’s intention appears to have been that those insurance contracts should be permanently exempted from the application of unisex premiums precisely because, under the conditions set out in Article 5(2), the application of different premiums was not considered discriminatory . The CJEU has widely overstretched the significance of the word ‘exemption’, and attributed to the European legislator an opinion it clearly did not have. Quite obviously, there are many types of insurance contracts where the insured person’s gender has no influence whatsoever on the risk assessment (wherefore it would indeed seem discriminatory to apply different premiums for men and for women), while in other cases a significant difference of risk depending on to the insured person’s sex can easily be demonstrated: the insurance of a house against fire and inundation clearly falls into the first category, while health insurance clearly seems to fall into the second. It seems logical to apply the unisex rule only to some types of insurance contracts, while exempting other types of insurance on a permanent basis. This is what Article 5(2) allowed Member States to do.

The reasoning of the Court is thus based on a series of non sequiturs . First, from the word ‘exemption’ in Recital 19 of the Directive it does not follow that the legislator made the assumption ‘that ... the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable’. Secondly, if the legislator had indeed made such an assumption, it still would not follow that that assumption was correct, or that it could not be challenged: a mere assumption is not an established fact. Thirdly, even if the assumption were correct, it would not follow that such ‘comparability’ would necessarily mean that each and every difference in treatment must be deemed an illicit ‘discrimination’: as we have seen before, two things that are ‘comparable’ are not necessarily ‘identical’. On the contrary, the very fact that the Directive contained an exemption for insurance contracts means that the legislator considered that in this specific area unequal treatment was not discriminatory.

In the light of the preceding remarks, it can be said that what we are witnessing here is the creation ex nihilo of a new ‘fundamental right’: the right to buy services of different value for the same price. Once again, ‘anti-discrimination’ is transposed into an obligation to give equal treatment to unequal situations.

It is not my intention here to dwell on the economic consequences of the judgment. It suffices to imagine what will happen under normal free market conditions if one particular group of potential clients is asked to pay insurance fees that are higher than what actually would correspond to the risk they seek to insure: that group of clients will simply be discouraged from taking out insurance. The remaining clients (i.e., those representing a higher statistical risk) will thus remain the only ones to take out insurance: but even for them the insurance fee will not decrease because, with the low-risk clients not buying insurance, the insurance fees must still correspond to the risk of the only remaining group that does take insurance, i.e., the high-risk group. In other words, the sole effect of such a policy would be to evict the low-risk clients from the market. And the only areas where this consequence will not occur are those where insurance is compulsory (as is the case, e.g., for car insurance). The ‘equal treatment’ provided as per the CJEU judgment is thus in reality a special tax levied on low-risk groups in order to subsidize high-risk groups. It should at least be called by that name.

Now it could certainly be that this analysis is too pessimistic, and that at least a few people will draw some benefit from this landmark decision. But given the harsh criticism this judgment has received, it seems neither unlikely nor illegitimate that a future Community legislator would wish to correct a judgment he might view as careless and ill-reasoned. The problem, however, is that such a correction will hardly be possible.

It should be noted here that Directive 2004/113 was adopted under Article 13 of the EC Treaty (now: Article 19 of the Treaty on the Functioning of the EU (TFEU)). For a directive to be adopted on this legal basis unanimity between Member States is required. This is an aspect of the judgment that, despite the considerable coverage the case has received in the media, does not seem to have caught much attention – but it is nevertheless monumental: by simple majority vote, a Grand Chamber of the CJEU has declared invalid a legal act that had been adopted by the unanimous decision of the (then) 25 Member States ! A vote of, say, seven versus six judges suffices to invalidate a decision on which, without exception, all governments have agreed. But who knows better which meaning the FRC intended to give to ‘equality’? The Member States that adopted the FRC as well as Directive 2004/113 by unanimity, or the CJEU?

If, as seems perfectly legitimate and reasonable, Member States should want to re-introduce a possibility for insurance companies to apply different premiums for men and women in cases where the risk assessment demonstrably depends on the sex of the insured person, they will have to overcome almost insurmountable obstacles. It would not suffice to adopt, once more by unanimous vote, a new provision to that effect. Instead, it would be necessary to change the text of the FRC itself, at least through adding a specific clarification that the EU’s endeavour to fight ‘discrimination’ is not to be understood as meaning that justifiable differences in treatment (such as different insurance premiums for different risks) are not allowed to persist. This would require not only a unanimous vote by Member States, but an intergovernmental conference that would have to be followed by a ratification procedure in each Member State and, in some of them, even a popular referendum.

What we are confronted with is thus not just a silly, and poorly reasoned, Court decision or, indeed, as the Frankfurter Allgemeine Zeitung 27 put it, the ‘silliest judgment in the history of economy ’ . Instead, the case aptly illustrates how EU Member States, by adopting a new Fundamental Rights Charter and defining it as part of the EU Treaty, have caught themselves in a trap. A new set of ‘fundamental rights’ (including not just the ‘equality’ provisions in Articles 21 and 23 of the Charter, but also other novelties such as the ‘right to a good administration’ in Article 41 or the ‘right to a high level of consumer protection’ in Article 38) provide a pretext for the CJEU to adopt extravagant and far-reaching judgments that are apt to cancel out even provisions that have been enacted by unanimous agreement of the entire EU membership. Rather than providing increased protection for citizens, the Charter seems to pave the way towards a dictatorship of the judiciary.

A The Legal Basis

The third case 28 I wish to relate here was not decided by the ECJ, nor does it have a basis in current EU legislation. It is a case that has been decided by a court in a Member State based on that Member State’s domestic legislation. Also, it should be noted that the ruling was issued by the first instance of the judiciary, and that an appeal is still pending. 29 Nevertheless, the case is significant: given that the legislation it is based on is very similar to a legislative proposal that is currently under discussion at European level, it provides a foretaste of what is due to happen in courts all over Europe, should that legislative proposal be adopted.

The court that issued the judgment is the Bristol County Court, and the legislation on which the judgment was based is the Equality Act (Sexual Orientation) Regulations (SORs), secondary legislation in the UK which was adopted by the Secretary of State in 2007 under powers granted by the Equality Act 2006.

These Regulations prohibit ‘discrimination on the grounds of sexual orientation’ with regard to the provision of goods and services (among which the ‘accommodation in a hotel, boarding house or similar establishment’ is explicitly mentioned). They also clarify that, within their scope, married (i.e., different-sex) couples and civil partners 30 (i.e., same-sex couples) must be treated alike.

In substance, the Regulations are similar to the content of the European Commission’s proposal 31 for a directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age, or sexual orientation.

B The Facts of the Case and the Court’s Ruling

The case which was brought to the Bristol County Court concerned the owners of a privately owned Bed & Breakfast in Cornwall who, based on their Christian belief in the sanctity of marriage, had a long-standing policy of not letting double rooms to unmarried couples. This policy was mentioned on the hotel’s website, and people wishing to reserve a room by telephone were informed of it. This notwithstanding, a certain Mr Preddy called and reserved a double room for a weekend for himself and his spouse. Only upon their arrival at the hotel did it turn out that Mr Preddy was homosexual and that his ‘spouse’ was, in fact, a man with whom he lived in a registered civil partnership. The owners of the hotel refused to accommodate them in a double room, but offered two separate rooms instead. But the homosexual couple, rather than accepting this offer, went to court and filed an action for ‘discrimination’. Their claim was upheld by Judge Andrew Rutherford, who awarded them £3,600 in damages.

C A Comment on the Ruling

Given that a judge’s task is to apply laws, there is no reason to reproach him for this judgment: with the SORs providing what is summarized above, he could hardly have decided otherwise. Nonetheless, the judgment caused uproar in the media, and received overwhelmingly negative comments.

Why was this? Apparently the wider public was not familiar with the new legislation, or at least not with its practical implications. The press coverage that had accompanied the legislative process had probably not caught the attention of a wide readership. The few who followed it had read and heard of new measures that were necessary to prevent ‘discrimination’, not of a law that would massively curtail contractual freedom. Yet while there appears to be wide agreement that ‘discrimination’, whatever that is, is bad and should not be accepted, the necessity of a law that exposes to heavy financial sanctions an elderly couple who wanted nothing but to run their business in line with their, at worst, somewhat conservative morality was certainly much less self-evident. Was the sanction imposed by the law really proportionate to any damage suffered by the homosexual couple? Why could such matters not simply be regulated by the forces of the free market?

It is thus not the judge’s decision that raises many questions, but rather the law on which it was based. Indeed, the judge himself seemed to have some doubts. Besides granting the defendants leave to appeal his ruling, he also stated:

The standards and principles governing our behaviour which were unquestioningly accepted in one generation may not be so accepted in the next. I am quite satisfied as to the genuineness of the defendants’ beliefs and it is, I have no doubt, one which others also hold. It is a very clear example of how social attitudes have changed over the years for it is not so very long ago that these beliefs of the defendants would have been those accepted as normal by society at large. Now it is the other way around. . . . I have no doubt . . . that the defendants genuinely hold a perfectly orthodox Christian belief in the sanctity of marriage and the sinfulness of homosexuality. . . . In my view, . . . each side hold perfectly honourable and respectable, albeit wholly contrary, views.

Each side holds honourable and respectable views? This statement would deserve somewhat more nuance. The truth is that one of those views, namely that of the defendants, was universally considered to be the one and only honourable and respectable view throughout nearly the entire history of human civilization – at all times, in all places, and among all people. 32 The other view (i.e., that of the two claimants) has emerged only very recently, 33 and only in a rather limited number of countries. Thus, to describe the defendants’ moral stance in any other way than as ‘perfectly honourable and respectable’ would be tantamount to condemning the moral stances taken by all nations at (nearly) all times. It would mean that everybody had been wrong on this issue, except the law-makers of England and Wales as from 2007. Even as I write this, there is hardly any country in the world where laws comparable to the Equality Act (Sexual Orientation) Regulations are in force. With regard to the claimants’ views, by contrast, one cannot help noting that they do not have similar credentials. Not many would have described them as ‘perfectly honourable and respectable’ 20 or 30 years ago. As the judge pointed out, ‘social attitudes’ have changed, and the laws with them. But have they really? The defendant’s stance shows that this recent change of attitude is certainly not shared by all and everyone. And even if it were, i.e., if an overwhelming majority of Britons adhered to the ‘new’ attitude towards homosexuality, does that mean that it becomes illicit to hold diverging views? Is it wrong for elderly people such as the defendants to stay loyal to the moral values they were brought up with?

Thus, even if we were to assume, for argument’s sake, that the judge was right and that, due to ‘social attitudes’ having changed, both views were now to be considered equally honourable and respectable, that would not answer the question why the defendants, whose views, by the judge’s own words, are ‘perfectly honourable and respectable’, are punished for having acted in accordance with them. Apparently there are some honourable and respectable views, namely those of the claimants, which receive the backing of the law, while the defendants’ views, albeit equally honourable and respectable, are now under threat of persecution. While the claimants get their litigation financed by the taxpayer through a government-funded Equality and Human Rights Commission (EHRC), 34 the defendants, albeit equally honourable and respectable, have to bear their own legal expenses. And this, quite absurdly, is the result of a law that has the stated purpose of promoting tolerance, equal treatment, and non-discrimination.

Indeed, rather than protecting liberty and equality, the Equality Act (Sexual Orientation) Regulations appear to undermine both. And rather than protecting anyone against bigotry and harassment, they offer a new legal basis for them. In the case at hand, the judge said he did not believe that the defendants were ‘set up’ by the claimants with the assistance of a group such as Stonewall – but he also said that such a set-up, even if ‘very materially affect[ed] the issue of damages’, would not by itself defeat the discrimination claim. 35 In other words: this new law does give a mandate to pressure groups such as Stonewall to act as a thought police, bringing claims against people who dare to act according to their different (albeit ‘perfectly honourable and respectable’) moral views. It is no wonder, then, that in the days following the Bristol County Court’s judgment, the defendants were reported to have received abusive and menacing telephone calls from homosexuals attempting to book double rooms at their hotel and warning them that they would be acting illegally if they refused. 36 Also, it was reported that the hotel suddenly received a quantity of malicious bogus reviews on travel websites, 37 the apparent purpose of which it was to put the hotel out of business. While, of course, it is true that the Equality Act (Sexual Orientation) Regulations neither mandate nor give licence to such hate crimes, and the hotel owners have the right to take legal action against the perpetrators, it nevertheless remains that those acts would probably never have taken place had the law not put the hotel owners into such a vulnerable position: nobody would ever have heard of them and their ‘conservative’ views on the sanctity of marriage, nor would anyone have had the idea of harassing and bullying them because of those views. In the context of their condemnation by the Bristol County Court, the defendants – an elderly couple whose views the Court found ‘perfectly honourable and respectable’! - have been exposed to vilification and mockery in certain mass media for their ‘narrow-minded, eccentric, batty rejection of modern mores’. 38 Moreover, having to bear their own litigation costs in the discrimination case, the hotel owners are hardly able to spend time and money on defending themselves against hate crimes that are committed under the shield of anonymity. It is thus precisely the government’s anti-discrimination policy that has the effect of singling them out and exposing them to harassment.

Thus, the UK’s cutting-edge legislation on ‘equality’, instead of providing improved human rights protection, raises serious concerns with regard to its own compatibility with fundamental human rights. With regard to Article 9 ECHR, Judge Rutherford recognized that the running of a hotel along Christian beliefs can be described as ‘manifesting one’s religion’, i.e., that the right to religious freedom is not limited to belief and worship, but also includes the right to act in accordance with one’s belief. 39 But even if Article 9 were to be interpreted more restrictively, there could be no doubt that Article 8 of the Convention is applicable. The concluding of contracts is one of the principal ways for us to interact with other persons, and the freedom to determine their content and to decide with whom one wants, or does not want, to enter into contractual relationships is thus one of the most important freedoms everybody should enjoy in a free society. This does not mean that contractual freedom can under no circumstances be restricted. But any such restriction must pass the test that Article 8 ECHR establishes for laws that, in one way or the other, limit a person’s right to self-determination: whether it is necessary in a democratic society .

Even assuming that homosexuals have been in the past, or continue to be today, victims of discrimination and harassment and that it is therefore necessary to protect them – is it necessary in a democratic society to adopt laws that outlaw views and opinions that, to use yet once more the words of Judge Rutherford, are ‘perfectly honourable and respectable’? As it appears, there was never any risk for the two complainants that, being sent away by all hotel owners in the area, they would have had to spend the night under the open sky. Quite on the contrary, it is a known fact that gay tourists are today one of the most sought after clienteles of the tourism industry, 40 and many hotels openly announce their ‘gay-friendliness’ in order to attract them. 41 Under such circumstances, is it really necessary 42 for the legislator to curtail the contractual freedom of hoteliers? Or is this not a bit disproportionate?

This is not about three isolated cases without a broader significance. Of the three cases discussed here, the first two have been decided by the CJEU/ECJ, the supreme judicial body of the EU. They are preliminary rulings under Article 267 (ex Article 234) of the TFEU, through which the CJEU, in a manner which binds all courts throughout the EU, has decided how relevant parts of the EU legislation must be applied. The third one, having been decided by a local court, is still open to review, but there is hardly any doubt that the judge’s decision was in keeping with the law he was called on to apply. It is this law, rather than the judge’s interpretation of it, that raises serious questions. And it is certainly commendable for lawmakers outside the UK to reflect on those questions before adopting similar laws.

Is ‘anti-discrimination’ the remedy for a widespread social problem, or is it itself a problem in need of a remedy? From what is exposed above I would draw the following conclusions:

First, there appears to be a wide divergence between the reality of ‘discrimination’ and its perception in the media or political environment . Although it would probably be an exaggeration to affirm that there was an inverse correlation between perceived and factual discrimination, it nevertheless does seem appropriate to caution against basing ‘anti-discrimination policies’ on subjective perceptions that appear to be caused by obtrusive awareness-raising campaigns rather than on tangible facts.

Secondly, the novel doctrines of ‘discrimination’ and ‘equality’ diverge considerably from the traditional concept of justice upon which, from antiquity until today, our legal systems were built. While the traditional concept of justice, summarized in the principle ‘ suum cuique tribuere’ , meant to treat equal things equally, unequal things unequally, and everything according to its merit, modern anti-discrimination policies tend to turn this principle upside down. The Maruko and Römer decisions have resulted in providing additional pension entitlements and family allowances to a group of people typically living in double-income-no-kids situations; very clearly, that is not what these particular social benefits were meant for. The Test Achats case has resulted in an obligation for insurance providers to insure unequal risks at the same price – a palp able example of equal treatment for unequal situations. Though this was not examined in detail in this article, I might add that certain other ‘anti-discrimination measures’, such as the proposal to ensure ‘gender balance in business leadership’ through putting an obligation on publicly listed companies to reserve a fixed quota of their board chairs to women, 43 commit the opposite error: this kind of affirmative action means treating people of equal qualification and merit unequally, and promoting people on the basis of their being of the right gender rather than on the basis of capabilities and merits. It is hard to see how such policies, which find a legal basis in Article 23 of the FRC, could be reconciled with the classical concept of justice. They remind one of an attempt to organize a football World Cup in such a way that it would become equally probable for the Faroe Islands to win the trophy as it is for Brazil, e.g., by allotting a certain number of penalty kicks to the Faroe Islands or by reducing the number of Brazilian players in the field to five. But would that still correspond to the purpose of a football competition? And are such measures not conducive to inequality rather than equality? Indeed it appears that, following truly Orwellian logic, ‘anti-discrimination’ is discrimination.

Thirdly, one might also question the necessity of those anti-discrimination policies. As Montesquieu famously pointed out, laws that are unnecessary undermine those which are necessary, 44 which is the reason unnecessary laws should not be adopted. With regard to the three court rulings examined in this article, it seems impossible not to question the necessity of the legal provisions upon which they were based. Do gay men who have been able to earn their own salary and to acquire their own pension entitlements for more than 30 years really need a survivor’s pension? Is it really necessary for the wellbeing of society that men and women pay exactly the same price for their car insurance? Is it really necessary to adopt and enforce laws that require Christian hotel owners to accommodate gay couples in double bedded rooms when those gay couples have plenty of alternatives? Beyond those women who, through their zeal and personal capability, make their way into leadership positions anyway, is there really a need for companies to have a fixed quota of female board members? These and similar issues are often treated as if the need for the measures in question were a self-evidence. But is it really?

Fourthly, in times of economic crisis and budgetary constraints it is certainly worthwhile spending a thought or two on the costs of ‘anti-discrimination policy’. These costs include not only the costs of devising and implementing those policies (i.e., the salaries of the public servants drafting and enforcing such laws, the setting-up of specialized agencies at national or EU level, 45 and the heavy subsidizing of certain non-governmental ‘advocacy groups’ 46 ). As the Maruko and Römer decisions show, anti-discrimination leads to new entitlements that someone has to pay for. If homosexuals obtain access to a new social entitlement, it is the non-homosexual rest of society who will pay for it. The Test Achats decision, as has been shown, is likely to lead to a generalized increase in insurance costs. Finally, measures like fixed quotas of female (or black, or homosexual, or handicapped. . .) board members for publicly listed companies are very likely to lead to indirect and hidden, but nevertheless considerable, economic costs. If companies are constrained to employ managers other than those with the best qualifications, this may result in positive damage in terms of management mistakes, or in lost business opportunities (in terms of what a more capable manager might have achieved). Moreover, such legislation could even have the result of encouraging companies to move their headquarters to countries where they do not face this kind of constraint. The economic losses, albeit difficult to quantify, could be enormous.

A fifth point to be noted – and maybe the most important one – is the loss of personal freedom caused by ‘anti-discrimination policies’. This is already discernible in the Test Achats case, where the CJEU cancelled out the economic freedom of both insurance companies and their clients to agree on insurance prices that seemed best to correspond to the insured risk. Before that, Directive 2004/113 had already imposed limitations on economic liberty with regard to all other goods and services. But the case in which this liberty-killing effect of ‘anti-discrimination’ has become most palpable is the B&B case, where people have been punished for having acted in accordance to what the judge himself described as ‘perfectly honourable and respectable’ views. An ‘anti-discrimination law’ that allows some people to act in accordance with their honourable and respectable views, while prohibiting others from acting with their equally honourable and respectable views, is, quite obviously, in and of itself discrimination. But this is far from being an isolated case. There are many more instances where anti-discrimination laws have been used to undermine civil liberties, most notably the freedom of speech.

A sixth point is that the loss of self-determination of the average citizen is mirrored by the increase of power for those few who are called to determine what is, and what is not, ‘discrimination’. This is mostly due to the fact that ‘anti-discrimination laws’ such as EU Directives 2000/78 and 2004/113 are by no means more precise than the (outdated?) principle of suum cuique – yet being of more recent making, their exact significance still remains rather unclear, which means that courts and public administrations enjoy an extremely wide margin of interpretation. This situation is conducive to costly, unproductive, and often frivolous litigation – especially where, as occurred in the B&B case, potential claimants are allowed to litigate at the expense of a publicly financed quango. The legal uncertainty reaches its extreme when, in the name of a novel but vaguely drafted pan-European super-dogma, a simple majority of CJEU judges overturns a provision that government representatives of 25 Member States had agreed upon by unanimity.

Last but not least, the events that occurred in the aftermath of the B&B case cast serious doubt on the assumption that ‘anti-discrimination policies’ will lead to more tolerant societies. On the contrary, there is reason to fear that the self-ordained victims of today may become the oppressors of tomorrow.

Special Eurobarometer 317, Discrimination in the EU in 2009, at 22 and 25.

Ibid .., at 27.

The most notorious recent cases include the murder (in Iskenderun/Alexandrette on 3 June 2010) of Catholic bishop Luigi Padovese, and the assassination (in Istanbul on 19 Jan. 2007) of Armenian journalist Hrant Dink, as well as the murder of three evangelical Christians in Malatya on 18 Apr. 2007.

Concerning the dispute on land ownership that sets the Mor Gabriel Monastery against the Turkish State Treasury cf. Krüger, ‘Rettet das zweite Jerusalem’, Frankfurter Allgemeine Zeitung , 27 Apr. 2009.

The Seminary on the island of Chalki (Turkish: Heybeliada), which was closed by order of the Turkish government in 1971. It was the main school of theology of the Eastern Orthodox Church’s Ecumenical Patriarchate of Constantinople.

Cf. the Res. adopted on 17 Sept. 2009 by the European Parliament to condemn Lithuania for having adopted a new ‘Law on the Protection on Minors’, which prohibited the promotion of homosexuality at schools. However, on 10 Nov. 2009, the Lithuanian parliament (Seimas) retaliated by adopting a res. requesting the Government to seek the invalidation of the EP Res., which it condemned as an unlawful act. That view was subsequently confirmed by the EU Fundamental Rights agency, which declined the Parliament’s request to issue a legal opinion on the controversial law on the ground that it had no legal mandate for doing so.

Searching for opinions rather than facts is the approach that also underlies a new survey on ‘LGBT discrimination’, which is currently (in April 2012) carried out by Gallup on behalf of the EU Fundamental Rights Agency (FRA). The survey is freely accessible on the internet (www.lgbtsurvey.eu) and anyone wishing to do so can participate, but only the responses of persons who describe themselves as gay, lesbian and transgender are taken into account. The questionnaire does not even remotely comply with the generally known standards for social research. Rather than approaching the issue from a neutral and disinterested point of view, it resembles an invitation to all those LGBT persons who feel discriminated to ‘tell their story’ in order to confirm the FRA’s pre-established view that LGBT discrimination is the most pressing of all human rights issues. But the information gathered under this methodology is too unspecific to allow any serious conclusions, given that the survey is anonymous, respondents are not required to provide any verifiable and factual information regarding the discrimination they allegedly have suffered, and there is even no firewall to prevent one and the same person from sending multiple responses. Finally, many of the questions are drafted in a way that is unlikely to lead to any useful new insight: for example, asking transgender people whether they would be in favour of (unspecified) ‘workplace anti-discrimination policies referring to gender identity’ or ‘measures implemented at school to respect gender identity’ is rather like asking people whether they want a free meal. Seriously, who would expect them to say no to such a question? It would be more useful to ask the non-LGBT rest of society what they think of such measures and policies, because it is to them that those policies might bring some restrictions and disadvantages.

Which conclusions can validly be drawn from this survey? Not many. There is a certain number of individuals identifying as LGBT who perceive themselves as being victims of discrimination and who respond to the invitation to (anonymously) tell their story ▪ but it is not certain whether this discrimination exists in reality (rather than just in the perception of the respondents), nor is it clear to what extent those respondents are representative of the totality of LGBT persons.

This new survey is thus hardly apt to provide any credibility to whatever policy proposals it may wish to make on this basis. But it throws a spotlight on how opinion polls are nowadays used to influence policy debates.

Kraus, ‚Nachts (Zeit)’, in G. Fieguth, Deutsche Aphorismen (1978), at 227.

Corpus Iuris Civilis, Inst. 1, 1, 1; Dig 1, 1, 10.

E.g., EU Dir. 2000/43/EC, Art. 2(2)(a), OJ (2000) L180/22: ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation’.

Case C–267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [2008] ECR I–01757.

Cf. ibid ., at para.73 of the judgment.

E.g., the representative of the advocacy group ILGA-Europe spoke of a ‘historic victory’ and claimed that ‘the highest court in the EU today decided that registered (same-sex) partnerships have to be treated on the same footing as marriage and that employers and pension schemes must not restrict benefits to married partners’: Rechtskomitee Lambda, press release on 1 Apr. 2008, available at: www.rklambda.at/News/index.htm. This claim was incorrect and so was the heading of the press release (‘EuGH ordnet Gleichbehandlung von Lebenspartnerschaft und Ehe an’). In reality the Court did not make a general ruling that registered homosexual partnerships must be treated like marriages.

Case C– 147/08, Jürgen Römer v. Freie und Hansestadt Hamburg ECJ (Grand Chamber) 10 May 2011, available at: http://curia.europa.eu/,

Press release on 10 May 2011 by the ‘Rechtskomittee Lambda’, a gay rights pressure group with its seat in Vienna, available at: www.rklambda.at/e/index.htm.

Cf. G. Toggenburg, ‘“LGBT” go Luxembourg: on the stance of Lesbian Gay Bisexual and Transgender Rights before the European Court of Justice’, 5 European Law Reporter (2008) 174, at 181: ‘[a] closer look reveals however that the Court remains rather restrictive in its approach towards gay rights. For the judgment boils down to a rather demure statement communicating little more than the obvious’.

Maruko , supra note 6, at para. 69.

Ibid., at para. 59.

The self-serving character of such privileges becomes apparent when one looks at a case that raised widespread media attention in Austria, shortly after the country had enacted legislation for civil partnerships for homosexual couples in 2010. Immediately after the enactment of the new law, Mrs Johanna Dohnal, a former Minister for Gender Equality, contracted such a partnership with another female politician, Mrs Annemarie Aufreiter. Three weeks after the civil partnership had been concluded, Mrs Dohnal died at the age of 71. Her ‘widow’, who, as a member of the Vienna City Council, earns her own salary and accumulates her own pension entitlements, applied for a survivor’s pension that would amount to 60% of Mrs Dohnal’s pension as a former member of the Federal Government (i.e., roughly € 13,000 per month). The request was turned down because the applicable legislation provides that, in order for Mrs Aufreiter to be entitled to a survivor’s pension, the couple would have had to live in a marriage or civil partnership for at least three years. Not happy with this decision, Mrs Aufreiter has filed a constitutional appeal, claiming that, civil partnerships between homosexuals not having been possible before 2010, it was not possible for her to contract such a partnership with Mrs Dohnal earlier. She considers herself to be a victim of indirect discrimination and demands that the criterion of the registered partnership having lasted for at least three years should not be applied to her case. The case is pending with the Austrian Constitutional Court ( Streit um Witwenpension für Dohnal-Partnerin , Die Presse , 25 Aug. 2010).

Case C–236/09, Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres ECJ (Grand Chamber) 1 March 2011, available at: http://curia.europa.eu/.

E.g., the Financial Times commented on 4 Feb. 2011 in anticipation of the CJEU’s judgment, ‘No matter that women’s greater longevity is a biological fact. No matter that annuities ultimately pay the same to women as to men over their lifetimes. It seems that an unelected, unaccountable cabal of judges in Luxembourg has given itself the power to overturn basic principles of risk and insurance – and overrule the laws of nature. . . . Juliane Kokott, the advocate general, and her learned friends are actually ruling on the legality of the derogation in the Equal Treatment Directive (2004/113/EC, OJ (2004) L373/37) that permits the use of gender-based statistics in setting all insurance premiums and benefits. So, if they deem this discriminatory, women will have their car insurance premiums raised to subsidise boy-racers from Middlesbrough to Milan. Like so many illogical ideologues, Kokott & co are in danger of reading discrimination into every differential.’

Cf. the press release of CEA, the European Insurance and Reinsurance Federation, of 30 Sept. 2010, available at: www.insuranceeurope.eu/uploads/Modules/Newsroom/100930-ecj-opinion.pdf, which commented on Mrs Kokott’s conclusions as follows: ‘[t]he core principle of risk assessment is that people in comparable situations are treated equally and those in different situations are treated differently. If this risk-based, factual principle is not maintained, premiums will increase, coverage will decrease and some products will be withdrawn from the market entirely. Insurers must be able to calculate their premiums in a fair and sustainable way, using all relevant factors.’ (‘CEA warns of consumer detriment if insurers can no longer differentiate on basis of sex’ , press release 30 Sept. 2010, available at: www.insuranceeurope.eu/uploads/Modules/Newsroom/100930-ecj-opinion.pdf.

E.g., OpenEurope, a British think tank, warned that ‘UK insurance providers will need to raise an extra £936m in capital to cover themselves against the new uncertainties created in the market’ and that ‘these costs will be passed on to consumers’. It estimated that ‘on average, a 17 year old female driver will have had to pay an extra £4,300 in insurance premiums by the time she is 26 as a consequence of the ruling, while male drivers would (only) save an estimated £3,250 over the same period of time’ : OpenEurope briefing note, 25 Feb. 2011, available at: /www.openeurope.org.uk/Content/Documents/PDFs/ECJgenderdirective.pdf.

Cf. J. Cornides, ‘Verdunklungsgefahr?’, in G. Lang and M.F. Strohmer (eds), Europa der Grundrechte? (2003). at 116–134.

E.g. Germany: Art. 3(1) of the Basic Law (Grundgesetz):’[a] lle Menschen sind vor dem Gesetz gleich’ ; France: Déclaration des droits de l’homme et du citoyen, art. premier: ‘ les hommes naissent et demeurent libres et égaux en droits’.

‘Der Unisex-Unsinn’, Frankfurter Allgemeine Zeitung , 5 May 2011.

Bristol County Court, Hall & Preddy v. Bull & Bull , 19 Feb. 2011, Case No. 9BS02095, available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/hall-preddy-bull-judgment.pdf.

The appeal was decided (and the judgment upheld) while this article was being reviewed: CA (Civil Division), 10 Feb. 2012 [2012] EWCA Civ 83. References in this article are to the judgment of the Bristol County Court.

The UK introduced ‘civil partnerships’ as a specific form of union between two people of the same sex in 2004.

COM(2008)0426.

As regards the case of England, homosexual acts were a capital offence, i.e., threatened by capital punishment, until 1828. They remained a criminal offence until 1967. Until then, no hotel owner would ever have thought of letting a double bed room to two people of the same sex if he had reason to suspect that they would use it to engage in homosexual intercourse. The abolition of criminal sanctions meant that the homosexual act was no longer punishable, but this still left everybody free to maintain and express moral objections.

The Civil Partnership Act was adopted only in 2004 – before this, there was no legal recognition of homosexual relationships at all. A legal provision according which everybody ( including those privately holding moral objections against homosexuality) must provide equal treatment to registered same-sex couples and married couples even in the context of private contractual relations became law through the adoption of the ‘Equality Act (Sexual Orientation) Regulations’ only in 2007, and there is nothing to indicate that before 2007 such equal treatment had been part of any generally accepted or respected moral code.

Not only did the EHRC fund the claimant’s litigation in the first instance, but it even filed, as a reaction to the defendant’s appeal, a cross-appeal demanding that the compensation for the claimants should be increased from £3,600 to £5,000. It was only following massive public criticism that the Commission withdrew this cross-appeal, explaining that it had been based on an ‘error of judgement’ by its legal team: ‘Gay couple end hotel payout claim’, The Independent, 11 Mar. 2011.

Cf. para. 14 of the Judgment, supra note 25.

‘Christian hotel owners who turned away gay couple face business ruin after torment by hate callers’, Daily Mail , 26 Jan. 2011.

Harding, ‘Internet lies are destroying us, say Christian hoteliers’, Daily Mail , 28 Jan. 2011.

Woods, ‘Inside a most un-PC B&B’, The Telegraph, 28 Jan. 2011.

Cf. para. 27 of the Judgment, supra note 25.

Earlier this year the Belgian newspaper La Libre Belgique reported that homosexuals have become the European capital’s preferred tourists. The reason is that they have more money to spend than any other group in society. According to the report, gays and lesbians have the ‘epicurian’ spending habits of businessmen: they do twice as many city trips than average tourists, and a third of them make even 5 or more such trips per year. Two thirds of them spend more than €3,000 per year on their holidays: Meulders, ‘Bruxelles cible le tourisme gay’, La Libre Belgique , 13 May 2011.

E.g., a wide choice of hotels in Cornwall openly advertising their ‘gay-friendliness’ is found at www.gayaccommodationcornwall.co.uk/. As a result in casu there was no particular necessity at all for the claimants to be accommodated in the defendants’ hotel, even assuming that they wanted to spend their weekend precisely in the surroundings of Penzance.

In this context, note should be taken of a judgment recently issued by the supreme judicial instance of Germany, the Bundesgerichtshof (BGH), in which it was confirmed that hotel owners are completely free in accepting or refusing someone as their guest. A claim for compensation arises only in cases where a confirmed booking is cancelled (but not if the person requesting the booking provided false information). The case concerned an action brought by Mr Uwe Voigt, leader of an extreme right-wing party, whose booking was refused by a hotel owner who did not want to have a prominent neo-Nazi in his hotel, fearing that other guests might cancel their bookings. The BGH found that this fear was sufficient justification for the hotel owner to refuse the booking, even though the German Basic Law (Grundgesetz) explicitly prohibits discrimination ‘on grounds of political opinions’. The fact that Mr Voigt had already in previous years spent holidays in the hotel and that, on these occasions, his behaviour had never given offence to any other guest, was not considered relevant by the Court, which emphasized that the defendant’s right to reject a booking of an undesirable guest was grounded in his fundamental rights, namely the rights to private autonomy, property, and free exercise of his profession. Given that the provision in Art. 3 of the Grundgesetz treats discrimination on the grounds of sexual orientation and political opinion in exactly the same way, it can safely be assumed that the judgment would have been the same if the hotelier had turned down a homosexual instead of a neo-Nazi: BGH, 9 Mar. 2012 – V ZR 115/11.

Cf. the European Commission’s press release of 1 Mar. 2011 (Ref.: IP/11/242): ‘EU Justice Commissioner Viviane Reding meets European business leaders to push for more women in boardrooms’. Another press release of 9 Mar. 2012 ( ETW/12/0309) and a Consultation on Gender imbalance in corporate boards in the EU launched on 5 Mar. 2012 seem to indicate that the Commission is now seriously considering making such a proposal.

De l’ésprit des loix, XXIX, 16: ‘ Les lois inutiles affaiblissent les lois nécessaires’ (1755 edn) .

For instance, the EU has two specialized agencies promoting ‘anti-discrimination’ policies: the Fundamental Rights Agency (FRA) in Vienna (according to OpenEurope, the proposed budget for 2011 is €20 million), and the European Institute for Gender Equality (EIGE) in Vilnius (proposed budget for 2011: €7.5 million). At national level, each of the EU’s Member States has its own equality agency. In the UK, e.g., this agency is the Equality and Human Rights Commission (EHRC, with, in 2009, an annual budget of £70 million, and 400 employees and rising).

One of the most egregious examples is ILGA Europe, an advocacy group promoting the vested interests of homosexuals. Between 2007 and 2010, ILGA has received a total of €4,107,457.12 from the European Commission in the form of ‘bulk grants’. Each year, the organization hands in its ‘annual work programme’ to the Commission, and receives a grant amounting to roughly 85% of its forecast expenditure. Under these conditions, it seems hardly appropriate to describe ILGA as a ‘non-governmental or ganization’, or to speak of it as ‘civil-society’.

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The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides

Posted on Jun 04, 1998

• Executive Summary
• The Sounds of Racism
• The Raw Data
• Taking Into Account the Severity of Murders
• Mid-Range Cases Versus Extreme Cases
• Black Defendants and the Race of the Victims
• Philadelphia Study: Conclusions
• National Patterns of Race Discrimination
• Figure 7: Statistical Data in Death Penalty States Showing a Risk of Racial Discrimination 23
• No Relief in the Courts
• Study II: The Race of the Decision-Makers
• Racial Bias Permeates the System
• Public Reaction

It is tempt­ing to pre­tend that minori­ties on death row share a fate in no way con­nect­ed to our own, that our treat­ment of them sounds no echoes beyond the cham­bers in which they die. Such an illu­sion is ulti­mate­ly cor­ro­sive, for the rever­ber­a­tions of injus­tice are not so eas­i­ly confined.

–Former U.S. Supreme Court Justice William Brennan ( 1987 )

Executive Summary Up

The results of two new studies which underscore the continuing injustice of racism in the application of the death penalty are being released through this report. The first study documents the infectious presence of racism in the death penalty, and demonstrates that this problem has not slackened with time, nor is it restricted to a single region of the country. The other study identifies one of the potential causes for this continuing crisis: those who are making the critical death penalty decisions in this country are almost exclusively white.

From the days of slavery in which black people were considered property, through the years of lynchings and Jim Crow laws, capital punishment has always been deeply affected by race. Unfortunately, the days of racial bias in the death penalty are not a remnant of the past.

Two of the country’s foremost researchers on race and capital punishment, law professor David Baldus and statistician George Woodworth, along with colleagues in Philadelphia, have conducted a careful analysis of race and the death penalty in Philadelphia which reveals that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant. The data were subjected to various forms of analysis, but the conclusion was clear: blacks were being sentenced to death far in excess of other defendants for similar crimes.

A second study by Professor Jeffrey Pokorak and researchers at St. Mary’s University Law School in Texas provides part of the explanation for why the application of the death penalty remains racially skewed. Their study found that the key decision makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.

These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. The gravity of the close connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. The latter evidence has produced enormous changes in law and societal practice, while racism in the death penalty has been largely ignored.

Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief on the grounds that patterns of racial disparities are insufficient to prove racial bias in individual cases. With the single exception of Kentucky which recently passed a version of the Racial Justice Act, legislatures have turned their back on corrective measures. Despite the prior example of legislation in response to similar discrimination in such areas as employment and housing, legislatures on both the federal and state level have failed to pass civil rights laws regarding the death penalty for fear of stopping capital punishment entirely. And so, the sore festers even as executions accelerate and appeals are curtailed.

The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and in the devoting of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks. Such a system of injustice is not merely unfair and unconstitutional—it tears at the very principles to which this country struggles to adhere.

– U.S. Supreme Court Justice William Brennan ( 1987 ) [ 2 ]

The Sounds of Racism Up

Blatant racism is seen and heard too often in courtrooms around the country. In death penalty cases, the use of derogatory slurs kindles the flames of prejudice and allows the jury to judge harshly those they wish to scapegoat for the problem of crime. A few examples illustrate the intensity of this racism:

• “One of you two is gonna hang for this. Since you’re the nigger, you’re elected.”3 These words were spoken by a Texas police officer to Clarence Brandley, who was charged with the murder of a white high school girl. Brandley was later exonerated in 1990 after ten years on death row.
• In preparing for the penalty phase of an African-American defendant’s trial, a white judge in Florida said in open court: “Since the nigger mom and dad are here anyway, why don’t we go ahead and do the penalty phase today instead of having to subpoena them back at cost to the state.”4 Anthony Peek was sentenced to death and the sentence was upheld by the Florida Supreme Court in 1986 reviewing his claim of racial bias.
• A prosecutor in Alabama gave as his reason for striking several potential jurors the fact that they were affiliated with Alabama State University — a predominantly black institution. This pretext was considered race neutral by the reviewing court. 5
• During the 1997 election campaign for Philadelphia’s District Attorney, it was revealed that one of the candidates had produced, as an Assistant D.A., a training video for new prosecutors in which he instructed them about whom to exclude from the jury, noting that “young black women are very bad” on the jury for a prosecutor, and that “blacks from low-income areas are less likely to convict.”6 The training tape also instructed the new recruits on how to hide the racial motivation for their jury strikes.
• In Missouri, Judge Earl Blackwell issued a signed press release about his judicial election announcing his new affiliation with the Republican Party while presiding over a death penalty case against an unemployed African-American defendant. The press release stated, in part: “[T]he Democrat party places far too much emphasis on representing minorities … people who dont’ (sic) want to work, and people with a skin that’s any color but white … .”7 The judge denied a motion to recuse himself from the trial. The defendant, Brian Kinder, was convicted and sentenced to death, and Missouri’s Supreme Court affirmed in 1996.8

These examples are symbolic of a more systemic racism, and they provide a sense of how damaging racial prejudice and insensitivity can be when someone is facing execution. Empirical studies which provide the national evidence of racism in capital punishment are critical to understanding that this problem goes far beyond individual examples of prejudice.

The Raw Data Up

The first step in determining the presence of racial discrimination in the death penalty is to look at the raw data: from among the eligible homicides, how often are black defendants sentenced to death and how often are others sentenced to death?

The raw data of death sentences in Philadelphia between 1983 and 1993, provide the first piece of disturbing evidence that race discrimination may be operating. The rate at which eligible black defendants were sentenced to death was nearly 40% higher than the rate for other eligible defendants. A sentencing rate is simply a ratio of the number of death sentences for a particular group compared to the total number of cases of that group which would be eligible for a death sentence. In the chart below, a death sentencing rate of .18 for blacks means that for every 100 eligible black defendants, 18 will be sentenced to death. For other defendants, only 13 out of 100 will be similarly sentenced.

Taking Into Account the Severity of Murders Up

In order to determine whether race influences death sentencing, the researchers turned to the same techniques used in medical research to determine whether cigarette smoking causes cancer, or frequent exercise and good diet reduces heart attacks. Murder cases become death eligible through the existence of certain aggravating factors which make one murder “worse” than another. In deciding whether the death penalty should be sought, the prosecutor is supposed to consider the presence of such factors as whether a murder was committed with grave risk to the life of others, whether the murder was committed in the course of another serious crime such as robbery or rape, whether torture was used in the commission of the murder, or whether the defendant had a significant violent history. The jury is similarly told to consider such factors when deciding whether the sentence should be life or death, once a guilty verdict is rendered.12

Through an analysis of murders in which the death penalty could have been sought, it is possible, through an analysis of the defendants that were and were not sentenced to death, to assign a predictive score, or coefficient, to various aggravating factors to measure how heavily each influences the likelihood of a death sentence. The researchers screened hundreds of factors, statutory and non-statutory, to develop models to explain how the system works. All statutory factors, and those non-statutory factors which significantly correlated with the outcome were included.

Comparing the coefficients permits an average assessment of how much reliance was placed on the factor by the decision-makers. For example, the fact that the murder was committed in the course of another felony has less impact than the fact that the defendant caused great harm, fear or pain. Statistically, in this study committing another felony had a relative predictive value of 0.8. On the other hand, if the murder was accompanied by torture, that factor was very significant and registered a predictive value of 1.9. A murder committed with grave risk of death to others had a relatively high predictive value of 1.5. A factor which had no apparent effect would have a value of 0. The study looked at a large class of such variables.

The race of the defendant is not supposed to influence whether a person is sentenced to death, but in Philadelphia it clearly does. (See Chart below.) Murders by blacks are treated as more severe and “deserving” of the death penalty because of the defendant’s race. Being a black defendant merits a score of 1.4 in predicting whether a death sentence will ultimately result. This extra burden for black defendants is comparable to such legitimate aggravating factors as torture or “causing great harm, fear or pain,” which earned scores of 1.9 and 1.0 respectively, in predicting the sentence. Stated differently, in Philadelphia, the capital sentencing statute has operated as though being black was not merely a physical attribute, but as if it were one of the most important aggravating factors actually justifying the death penalty.

The race of the defendant is a much stronger predictor that a case will result in a death sentence than the fact that the crime was committed along with another felony (0.8) or that the defendant killed with multiple stab wounds (0.9). Either when the prosecutor decides to seek the death penalty in a particular case, or when the jury decides that death is the appropriate sentence, on average, black defendants are considered “worse,” regardless of the other factors in their case.

Mid-Range Cases Versus Extreme Cases Up

Race does not affect all cases equally. Notorious serial killers like Ted Bundy or John Wayne Gacy, both white, are nearly certain to receive the death penalty regardless of their race. In the most highly aggravated cases, the fact that the defendant is black is less of a factor pushing a case toward a death sentence. The same can be said for cases of very low severity: race is less likely to be a factor in cases where there is little inflammatory evidence.

But in the “mid-range” of severity (or aggravation), race plays a very significant role. When cases were ranked from 1 to 8 in increasing severity, cases in categories 1 (least severe) and 8 (most severe) showed little or no discrimination against black defendants. But in the middle categories 3 through 7, the disproportionate treatment of black defendants, as compared to all other defendants, was quite pronounced. For example, in cases of level 5 severity, 25% of the black defendants received the death penalty, but only 5% of the other defendants received death, and the difference between these sentencing rates is 20 percentage points. At level 6 severity, the difference was 15 percentage points, and at level 4 severity, the difference in death sentencing rates was 11 percentage points higher for black defendants. These results are summarized in the graph below.

In other areas of society, such as employment or housing, racial disparities similar to those shown in this death penalty study have raised deep concerns and have prompted civil rights legislation to protect the rights of minorities.13 But with the death penalty, this clear evidence of racial bias has gone uncorrected.

Black Defendants and the Race of the Victims Up

Another measure of race’s impact on the death penalty is the combined effect of the race of the defendant and the race of the victim. In the Philadelphia study, the racial combination which was most likely to result in a death sentence was a black defendant with a nonblack victim , regardless of how severe the murder committed. Black-on-black crimes were less likely to receive a death sentence, followed by crimes by other defendants, regardless of the race of their victims.

As noted above, in cases deemed to be least severe and those found to be most severe, the connection between race and the likelihood of a death sentence tends to lessen. For example, few defendants of any race are likely to get the death penalty in a case involving defendants with no prior record and where the killing may have been accidental. But for the bulk of crimes which are in the mid-level of severity, blacks who kill nonblacks are more likely to receive the death penalty than blacks who kill blacks, and they have a death sentencing rate much larger than the rate for defendants of other races who commit similarly severe murders of black victims.

It is important to note that these mid-range cases are precisely the ones in which prosecutors and jurors have the most discretion on seeking and imposing the death penalty. And when discretion is more prevalent, race may more easily become the deciding factor in who lives and who dies.

These results are summarized in the graph below. Reading the graph from left to right, black defendants, regardless of their victims’ race, are consistently more likely to receive a death sentence than other defendants, and this holds true to varying degrees throughout the increasing levels of crime severity. Similarly, black victim cases are less likely to receive the death penalty, regardless of the race of the defendant.

Philadelphia Study: Conclusions Up

After controlling for levels of crime severity and the defendant’s criminal background, the average death sentencing rates in Philadelphia were .18 for black defendants and .13 for other defendants, which amounts to a 38% higher rate for blacks (coincidentally, these rates were approximately the same as the unadjusted rates on p.8). The disparities for various racial combinations of defendant and victim were even wider and are shown in the table below.

Whichever measures the researchers employed, the statistics pointed to the same conclusion: black defendants on average face a distinctly higher risk of receiving a death sentence than all other similarly situated defendants. The various independent tests were so thoroughly consistent that they pointed to race discrimination as the underlying cause. The researchers stated: “In the face of these results, we consider it implausible that the estimated disparities are a product of chance or reflect a failure to control for important omitted case characteristics… . In short, we believe it would be extremely unlikely to observe disparities of this magnitude and consistency if there were substantial equality in the treatment of defendants in this system.”14

For those on death row from Philadelphia, these numbers translate into a harsh and deadly reality: if the death penalty were applied to blacks as it is to others, there would be far fewer blacks facing execution.

National Patterns of Race Discrimination Up

When people of color are killed in the inner city, when homeless people are killed, when the “nobodies” are killed, district attorneys do not seek to avenge their deaths. Black, Hispanic, or poor families who have a loved one murdered not only don’t expect the district attorney’s office to pursue the death penalty—which, of course, is both costly and time consuming—but are surprised when the case is prosecuted at all. - Sister Helen Prejean, CSJ 15

If the racial disparities documented in the study of capital cases in Philadelphia were unique, they might be dismissed as simply a local problem requiring a local solution. But such racial patterns have appeared in study after study all over the country and over an extensive period of time.

In the late 1980s, Congress asked the General Accounting Office (GAO) to review the empirical studies on race and the death penalty which had been conducted up to that time. The agency reviewed 28 studies regarding both race of defendant and race of victim discrimination. Their review included studies utilizing various methodologies and degrees of statistical sophistication and examined such diverse states as California, Florida, Georgia, Illinois, Kentucky, Louisiana, Mississippi, New Jersey, and Texas. Their conclusion in 1990, based on the vast amount of data collected, was unequivocal:

In 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding held for high, medium, and low quality studies. 16

One of the most sophisticated of the studies reviewed by the GAO was the study of race and the death penalty in Georgia. This study looked at 2400 cases processed in Georgia over a seven year period. It showed that, even when controlling for the many variables which might make one case worse than another, defendants whose victims were white, faced, on average, odds of receiving a death sentence that were 4.3 times higher than similarly situated defendants whose victims were black.17 The study controlled for hundreds of variables such as the level of violence in the crime and the prior criminal record of the defendant.

The significance of this racial disparity is highlighted by comparing it to a smoker’s increased odds of dying from coronary artery disease. A pivotal study found their odds of dying were approximately 1.7 times higher than for non-smokers of similar ages,18 a factor smaller than that linking race and the death penalty. Such statistical evidence about the dangers of smoking led the Surgeon General to conclude that “cigarette smoking is a cause of coronary heart disease,”19 which, in turn, helped trigger legislation and significant reform. Yet the correlation between race and the death penalty is much stronger and has been met with virtual silence.

The study of racial disparities in Georgia was the basis for the most important case brought before the U.S. Supreme Court on the issue of race and the death penalty, McCleskey v. Kemp (1987).20 The research was conducted by David Baldus, Professor of Law at the University of Iowa College of Law, and George Woodworth, Professor of Statistics also at the University of Iowa, both of whom participated in the Philadelphia study discussed above. For their work in what has become known as “the Baldus study,” these researchers were awarded the Harry Kalven Prize for distinguished scholarship by the Law and Society Association.

In a recent report prepared for the American Bar Association, Professors Baldus and Woodworth have expanded on the GAO’s review of studies on race discrimination in capital cases.21 They found that there are some relevant data in three-quarters of the states with prisoners on death row. In 93% of those states, there is evidence of race-of-victim disparities, i.e., the white race of the person murdered correlated with whether a death sentence will be given in a particular case. In nearly half of those states, the race of the defendant also served as a predictor of who received a death sentence. The disparities in nine states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are particularly notable because of their reliance on well-controlled studies.

These disparities reveal a disturbing and consistent trend indicating race-of-victim discrimination. For example, in Florida, a defendant’s odds of receiving a death sentence are 4.8 times higher if the victim was white than if the victim is black in similarly aggravated cases. In Illinois, the multiplier is 4, in Oklahoma it is 4.3, in North Carolina 4.4, and in Mississippi it is 5.5.22 The table below shows how frequently race-of-victim discrimination has been detected, as well as the states where race-of-defendant disparities have been shown.

Figure 7: Statistical Data in Death Penalty States Showing a Risk of Racial Discrimination 23 Up

Only studies whose results were statistically significant, or where the ratio between death sentencing (or prosecutorial charging) rates (e.g., between white victim and black victim cases) was 1.5 or larger and with a sample size of at least 10 cases in each group, were included. The disparities in nine states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are based on well-controlled studies. The results in the other states are from less well-controlled studies and are only suggestive.

All of the race of victim disparities except one (Delaware) were in the direction of more death sentences in white victim cases.

All of the race of defendant disparities except two (Florida and Tennessee) were in the direction of more death sentences for black defendants.

A particularly egregious example of race of victim discrimination was revealed in a recent review of the cases from Kentucky’s death row. Researchers at the University of Louisville had found in 1995 that, as in other states, blacks who killed whites were more likely to receive the death penalty than any other offender-victim combination.24 In fact, looking at the makeup of Kentucky’s death row in 1996 revealed that 100% of the inmates were there for murdering a white victim, and none were there for the murder of a black victim, despite the fact that there have been over 1,000 African-Americans murdered in Kentucky since the death penalty was reinstated.25This gross disparity among capital cases sends a message that the taking of a white life is more serious than the taking of a black life, and that Kentucky’s courts hand out death sentences on that basis.

This biased use of the death penalty for the murder of those in the white community, but not those in the black community, led to the introduction of legislation allowing consideration of such patterns of racial disparities. The bill, referred to as the “Racial Justice Act,” failed in the Kentucky legislature in 1996,26 but was passed in 1998. It will permit race-based challenges to prosecutorial decisions to seek a death sentence.

No Relief in the Courts Up

Despite these pervasive patterns implying racial discrimination, courts have been closed to challenges raising this issue. In McCleskey v. Kemp, the U.S. Supreme Court held that the defendant had to show that he was personally discriminated against in the course of the prosecution. “Merely” showing a disturbing pattern of racial disparities in Georgia over a long period of time was not sufficient to prove bias in his case.27

The federal courts have taken their cue from McCleskey and have not granted relief based on a racial application of the death penalty in any case.28 When such claims of racial bias are raised in civil rights suits alleging employment or housing discrimination, civil rights legislation instructs the courts to employ a more commonsensical burden of proof and provides a chance for relief.29 In criminal cases, however, the courts require the defense to “get inside” the mind of the prosecutor or jury and show purposeful race discrimination directed at the defendant, an almost impossible task.

Study II: The Race of the Decision-Makers Up

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups. -Rev. Jesse Jackson (1996) 30

As the analysis above indicates, racially biased decisions can readily enter the criminal justice system through the discretion given to prosecutors to selectively seek the death penalty in some cases but not others. The GAO review of race discrimination noted that “race of victim influence was found at all stages of the criminal justice process” and that “[t]he evidence for the race of victim influence was stronger for the earlier stages of the judicial process (e.g., prosecutorial decision to charge the defendant with a capital offense, decision to proceed to trial rather than plea bargain) than in later stages.”31

The death penalty could be sought in far more cases than it actually is, and prosecutors use a variety of factors to determine which cases are deserving of the state’s worst punishment. That discretion more likely results in capital prosecutions when the victim in the underlying murder is white, and in some states, when the defendant is black. Except for extreme cases, as when a black police officer is killed, the murder of people of color is not treated as seriously as the murder of white people.

One of the likely reasons for this discrepancy is that almost all the prosecutors making the key decision about whether death will be sought are white . According to a new study soon to be published in the Cornell Law Review, only 1 percent of the District Attorneys in death penalty states are black. This staggering imbalance in the racial makeup of the life and death decision-makers may partially explain the persistent racial imbalance in the use of the death penalty.

Professor Jeffrey Pokorak of St. Mary’s University School of Law collected data regarding the race and gender of the government officials empowered to prosecute criminal offenses, and in particular, capital offenses from all 38 states that use the death penalty. The study was concluded in February, 1998.

It revealed that only 1% of the District Attorneys in death penalty states in this country are black and only 1% are Hispanic. The remaining 97.5% are white, and almost all of them are male. The chart below Fig. 9) summarizes the racial findings of Professor Pokorak’s study.

The implications of this study go far beyond the shocking numbers and racial isolation of those in this key law enforcement position. When a prosecutor is faced with a crime in his community, he often consults with the family of the victim as to whether the death penalty should be sought. If the victim’s family is prominent, white, and likely to support him in his next election, there may be a greater willingness to expend the extensive financial resources and time which a death penalty prosecution will take. Justice Harry A. Blackmun

The way that racial bias can play out in practice is illustrated by one of the key death penalty jurisdictions in the country: Georgia’s Chattahoochee Judicial District, which has sent more people to death row than any other district in the state. In a recent law review article, Stephen Bright, of the Southern Center for Human Rights in Atlanta, described the prosecutor’s practice there:

• [A]n investigation of all murder cases prosecuted … from 1973 to 1990 revealed that in cases involving the murder of a white person, prosecutors often met with the victim’s family and discussed whether to seek the death penalty. In a case involving the murder of the daughter of a prominent white contractor, the prosecutor contacted the contractor and asked him if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the death penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for judge in the next election. The contribution was the largest received by the District Attorney. There were other cases in which the District Attorney issued press releases announcing that he was seeking the death penalty after meeting with the family of a white victim. But prosecutors failed to meet with African-Americans whose family members had been murdered to determine what sentence they wanted . Most were not even notified that the case had been resolved. As a result of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial District, 85% of the capital cases were white victim cases.33

Racial Bias Permeates the System Up

Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die. - Justice Harry Blackmun, 1994 34

Prosecutors not only decide who should be charged with a particular level of offense, they also have a significant impact on the way the trial is conducted. When a prosecutor refers to an Hispanic defendant as “a chili-eating bastard,”35 as happened in a Colorado death penalty case, it sets a tone of acceptance of racial prejudice for the entire trial. Similarly, the selection of juries is an essential part of this process, and some prosecutors have made a practice of eliminating blacks from their prospective juries, thereby increasing the likelihood of a race-based decision.

Jack McMahon, for example, was an Assistant District Attorney for many years in Philadelphia. During his recent campaign for the District Attorney’s position, it was revealed that he carefully instructed new prosecutors in his office on the importance of keeping many blacks off high level criminal cases. His training video for prosecutors stated that “young black women are very bad” on the jury for a prosecutor, and that “blacks from low-income areas are less likely to convict.”36

If a new prosecutor did not follow his directives, he or she faced dismissal: “And if you go in there and any one of you think you’re going to be some noble civil libertarian and try to get jurors [who say they’ll be fair], that’s ridiculous. You’ll lose and you’ll be out of the office; … .”37

His tape urged his fellow prosecutors to pick juries that they knew would be unfair: “[T]he only way you’re going to do your best is to get jurors that are as unfair and more likely to convict than anybody else in that room.”38

Mr. McMahon, himself, prosecuted 36 murder cases and some of those defendants are presently on death row in Pennsylvania. In selecting juries, McMahon practiced what he preached. In a review of 16 first-degree murder cases prosecuted by McMahon, black jurors were struck four times as often as other jurors, and black women jurors were struck six times as often as non-African-American males.39

But McMahon was certainly not alone in this practice of racial discrimination in jury selection. Statistics from the race study in Philadelphia discussed above showed that from 1983 to 1993 prosecutors struck 52% of all black potential jurors, but only 23% of other potential jurors.

These same practices are common in other jurisdictions. According to a recent federal court decision in Alabama reviewing a death penalty case, the Tuscaloosa District Attorney’s Office had a “standard operating procedure … to use the peremptory challenges to strike as many blacks as possible from the venires in cases involving serious crimes.” 40

In the Chattahoochee Judicial District of Georgia, described above, prosecutors used 83% of their peremptory jury strikes against African-Americans. Six black defendants were tried by all-white juries.41

In the Ocmulgee Judicial District of Georgia, District Attorney Joseph Briley tried 33 capital cases between 1974 and 1994. Twenty-four were against black defendants. In cases in which the defendant was black and the victim was white, Briley used 96 out of his 103 jury challenges against African-Americans.42

In Chambers County, Alabama, the prosecutor kept lists dividing prospective jurors into four categories: “strong,” “medium,” “weak,” and “black.” Such a process led to striking 26 African-American jurors, resulting in three all-white juries in the death penalty prosecution of Albert Jefferson, a black defendant whose victim was white. An Alabama court found that no racial discrimination had occurred.43

The U.S. Supreme Court in Batson v. Kentucky ruled that it is unconstitutional to strike jurors solely on the basis of race. Prosecutors, however, sometimes circumvent this ruling by providing race-neutral reasons as a pretext for eliminating unwanted black jurors. In Philadelphia, Assistant D.A. Jack McMahon prepared his new prosecutors for just such manipulation in his training tape mentioned above:

So if—let’s say you strike three blacks to start with, the first three people. And then it’s like the defense attorney makes an objection saying that you’re striking blacks. Well, you’re not going to be able to go back and say, oh— and make up something about why you did it. Write it down right then and there… . And question them [the black jurors], say, “Well, he had a —had a” — “Well the woman had a kid about the same age as the defendant and I thought she’d be sympathetic to him” or “She’s unemployed and I just don’t like unemployed people” … .

So sometimes under that line you may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race .45

In another jurisdiction, prosecutors followed McMahon’s strategy precisely. Their spurious reasons for excluding black jurors were exposed by the Florida Supreme Court in reviewing the death penalty conviction of Robert Roundtree. At trial, the judge simply accepted the state’s explanations at face value as the prosecutor eliminated ten black jurors from the jury pool. The first two black jurors were dismissed because they were “inappropriately dressed” and one had on “pointy New York shoes.” At the same time, a similarly dressed white juror was accepted. Another black juror was rejected because she was thirty years old and unemployed, but a white unemployed female was accepted. Three blacks were excused, in part, because they were single, but five white single jurors were accepted. And the reason given for striking another black woman was that the state preferred a predominantly male jury, although the state had accepted 13 white females, 6 of whom sat on the final jury. The reviewing court found that “the proffered reasons were a pretext for racial discrimination” and reversed the conviction.46

Prosecutors are not alone in acting out of racial prejudice. Judges, defense attorneys and jurors can also display harmful racial bias. It is the defendant, however, who suffers the consequences. In the death penalty trial of Ramon Mata in Texas, the prosecutor and the defense attorney agreed to excuse all prospective minority race jurors, thereby ensuring an all white jury. The U.S. Court of Appeals for the Fifth Circuit found this to be harmless error.47

In the Georgia trial of Wilburn Dobbs, a black man charged with the murder of a white man, both the judge and his attorney referred to Dobbs as a “colored boy.” The defense attorney expressed his opinion that “blacks are uneducated and would not make good teachers, but do make good basketball players,” and referred to the black community in Chattanooga as “black boy jungle.”48 Dobbs was sentenced to death, and his conviction has been upheld by the Georgia courts.

In Utah, African-American William Andrews was executed despite the presence of a note found by a juror depicting a stick figure on a gallows with the inscription: “Hang the Nigger’s (sic).” Even after seeing this evidence of racial prejudice within the all-white jury, the trial judge never sought to determine who wrote the note or how many jurors saw it.49

William Henry Hance, a mentally impaired black man was sentenced to death in Georgia despite the fact that one of the jurors said she did not vote for death. The only black person on the jury stated that she had voted for a life sentence because of Hance’s mental condition, but her vote was ignored. In the courtroom, she was intimidated against speaking out, but she later revealed her vote and the strong racial overtones in the jury room. Another juror signed an affidavit confirming the black juror’s story, but Mr. Hance was executed anyhow in 1994.50

Public Reaction Up

By reserving the penalty of death for black defendants, or for the poor, or for those convicted of killing white persons, we perpetrate the ugly legacy of slavery— teaching our children that some lives are inherently less precious than others. - Rev. Joseph E. Lowery, former President, Southern Christian Leadership Conference, 1989 51

After the Civil War and the emancipation of the slaves, lynchings of black people were common in the U. S. From the late 1800s, at least 4,743 people were killed by lynch mobs, with 90% of the lynchings occurring in the South, and most of the victims being black people.52 Lynchings were praised as necessary and just, and even some governors deferred to the public demand for vengeance. Georgia populist Tom Watson observed that “Lynch law is a good sign; it shows that a sense of justice yet lives among the people.”53

Revulsion at the spectacle and gross injustices of the lynching era eventually led to the formation of the National Association for the Advancement of Colored People and then to the demise of lynching.54 But the disparities evident in today’s death penalty indicate that prejudice and racism remain a potent force infecting our system of justice.

These racial disparities in capital punishment have drawn increasingly critical reaction from legal and civil rights groups both nationally and internationally. After the Supreme Court narrowly rejected a challenge to the racially biased application of the death penalty in Georgia,55 civil rights groups and many newspaper editorials called for the passage of the Racial Justice Act to remedy this injustice on a national level. Although this proposed legislation was passed by the U.S. House of Representatives in 1994 and 1990, it was ultimately defeated on the theory that such a racial inquiry would “abolish” the death penalty. Only Kentucky has passed similar legislation on the state level.

As a result of this and other inequities in the administration of capital punishment, the ABA, which had earlier recommended the passage of the Racial Justice Act,56 has called for a complete moratorium on executions until such problems can be adequately addressed. Other bar associations such as the Pennsylvania Bar, the Ohio Bar, the Chicago Council of Lawyers, the Massachusetts Bar and the Philadelphia Bar have either endorsed the ABA’s resolution or passed similar resolutions. Over 100 other organizations have also endorsed motions to stop executions, at least until a greater sense of justice can be restored to the process.57

Evidence of racial discrimination in the U.S. death penalty system has attracted worldwide attention. In 1996, the International Commission of Jurists, whose members include respected judges from around the world, visited the United States and researched the use of the death penalty. Their report was sharply critical of the way the death penalty is being applied, particularly in regards to race: “The Mission is of the opinion that … the administration of capital punishment in the United States continues to be discriminatory and unjust — and hence ‘arbitrary’ —, and thus not in consonance with Articles 6 and 14 of the Political Covenant and Article 2(c) of the Race Convention.”58

In a March, 1998 decision,59 the Inter-American Commission on Human Rights concluded that the U.S. had violated international law and should compensate the relatives of William Andrews, who was executed in Utah in 1992, because of racial bias in his case (discussed above).

And most recently, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions filed a report with the U.N. Commission on Human Rights after his visit to the U.S. stating that “race, ethnic origin and economic status appear to be key determinants of who will, and will not, receive a sentence of death.”60

In Philadelphia, the Secretary General of Amnesty International criticized Pennsylvania’s death penalty as “one of the most racist and unfair in the U.S.”61 Hours after his speech, the Philadelphia Bar voted in favor of a resolution calling for a moratorium on the death penalty in that state. The Governor’s office responded by pointing out that the only two persons executed in Pennsylvania in recent times were both white. However, these men were the exception, having been executed before others only because they waived their appeals. The overwhelming majority of those on the state’s death row are black, and 84% of those on death row from Philadelphia are black.62

Religious opposition to the death penalty has also cited the racial unfairness in its application. Recently, all the Catholic Bishops in Texas signed a statement calling for an end to the death penalty, noting: “The imposition of the death penalty has resulted in racial bias. In fact, the race of the victim has proven to be the determining factor in deciding whether to prosecute capital cases.”63 Similar concerns have been voiced by the National Conference of Catholic Bishops and the leaders of other denominations.

The public in this country is very aware of the role race plays in the death penalty. A recent poll by Newsweek Magazine revealed that about half of all Americans believe that a black person is more likely to receive the death penalty than a white person for the same crime.65 When such public reaction will result in a challenge to this injustice is not clear. Until then, it remains a serious source of division among the races and an embarrassment to the U.S.’s pursuit of international human rights.

Conclusion Up

Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. - Justice William Brennan, 1987 66

The influence of race on the death penalty is pervasive and corrosive. In other areas of the law, protections have been built in to limit the effects of systemic racism when the evidence of its impact is clear. With the death penalty, however, such corrective measures have been blocked by those who claim that capital punishment would bog down if racial fairness was required. And so, the sore festers.

The new studies revealed through this report add to an overwhelming body of evidence that race plays a decisive role in the question of who lives and dies by execution in this country. Race influences which cases are chosen for capital prosecution and which prosecutors are allowed to make those decisions. Likewise, race affects the makeup of the juries which determine the sentence. Racial effects have been shown not just in isolated instances, but in virtually every state for which disparities have been estimated and over an extensive period of time.

Those who die because of this racism are not the kind of people who usually evoke the public’s sympathy. Many have committed horrendous crimes. But crimes no less horrendous are committed by white offenders or against black victims, and yet the killers in those cases are generally spared death. The death penalty today is a system which vents society’s anger over the problem of crime on a select few. The existing data clearly suggest that many of the death sentences are a product of racial discrimination. There is no way to maintain our avowed adherence to equal justice under the law, while ignoring such racial injustice in the state’s taking of life.

Note: All pho­tographs are print­ed with per­mis­sion. The pho­tographs of Justices Marshall and Blackmun are by Joseph Lavenburg (Natl. Geographic Soc.), and the pho­to­graph of Justice Brennan is by Ken Heinen, all from the Collection, The Supreme Court of the United States, cour­tesy The Supreme Court Historical Society. The oth­er pho­tographs were received with per­mis­sion from their subjects.

1 . J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race and Gender of the Discretionary Actors, xx Cornell Law Review xxx ( 1998 ) (forth­com­ing).

2 . McCleskey v. Kemp, 481 U.S. 279 , 344 ( 1987 ) (Brennan, J., dissenting).

3 . N. Davies, White Lies: Rape, Murder, and Justice Texas Style 23 ( 1991 ) (quot­ing tes­ti­mo­ny in the appeal of Clarence Brandley).

4 . Peek v. Florida, 488 So. 2 d 52 , 56 (Fla.  1986 ).

5 . See B. Stevenson &  R. Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice, 51 Wash. &  Lee L. Rev. 509 , 522 ( 1994 ).

6 . See M. Janofsky, Under Siege, Philadelphia’s Criminal Justice System Suffers Another Blow, New York Times, April 10 ,  1997 .

7 . See Appellant’s Brief, Missouri v. Kinder, No. 75082 (Missouri Supreme Court, 1996 ) for com­plete text of press release (on file with the Death Penalty Information Center).

8 . See State v. Kinder, 942  S.W. 2 d 313 (Mo.  1996 ).

9 . Speech at Annual Dinner in Honor of the Judiciary, American Bar Association, 1990 , quot­ed in The National Law Journal, Feb. 8 ,  1993 .

10 . T. Rosenberg, The Deadliest D.A., N.Y. Times Magazine, July 16 , 1995 , at  22 .

11 . This study was con­duct­ed by David Baldus, George Woodworth and oth­ers in 1996  –  98 . Statistical data is avail­able in part from the Death Penalty Information Center. The pre­lim­i­nary Philadelphia results report­ed here­in will be pub­lished in the Cornell Law Review in the Fall of  1998 .

12 . In Pennsylvania, the jury can arrive at a death sen­tence in two ways: a) it finds at least one aggra­vat­ing fac­tor, but no mit­i­gat­ing fac­tors, which then requires a manda­to­ry death sen­tence; or b) it finds at least one aggra­vat­ing fac­tor and one mit­i­gat­ing fac­tor, which then must be weighed to deter­mine the prop­er sen­tence. Pa. Stat. Ann. tit. 42 , § 9711 ©( 1 )(iv) (Purdon 1982 ).

13 . See Title VII of the Civil Rights Act of 1964 , 42 U.S.C. §§ 2000 e to e‑ 17 ( 1988 ) (equal employ­ment oppor­tu­ni­ties); 42 U.S.C. §§ 3601  –  3619 ( 1988 ) (fair housing).

14 . D. Baldus, et al., Race Discrimination and the Death Penalty in the Post Furman Era: An Empirical and Legal Overview, with Preliminary Findings from Philadelphia, xx Cornell Law Review xxx ( 1998 ) (forth­com­ing).

15 . H. Prejean, Would Jesus Pull the Switch?, Salt of the Earth, March/​April, 1997 , at  12 .

16 . U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities ( 1990 ), at 5 (empha­sis added) (here­after GAO Report).

17 . See D. Baldus, et al., Reflections on the ​ “ Inevitability” of Racial Discrimination in Capital Sentencing and the ​ “ Impossibility” of Its Prevention, Detection, and Correction, 51 Washington &  Lee Law Review 359 , 365 ( 1994 ).

18 . See S. Gross &  R. Mauro, Death &  Discrimination: Racial Disparities in Capital Sentencing 151 ( 1989 ).

19 . Id. at 172 , cit­ing U.S. Dept. of Health, Education &  Welfare, Smoking and Health, A Report of the Surgeon General, at 60 ( 1979 ).

20 . 481 U.S. 279 ( 1987 ).

21 . D. Baldus &  G. Woodworth, Race Discrimination in America’s Capital Punishment System Since Furman v. Georgia ( 1972 ): The Evidence of Race Disparities and the Record of Our Courts and Legislatures in Addressing This Issue ( 1997 ) (report pre­pared for the American Bar Association) (here­inafter ABA Report).

22 . See Gross &  Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stanford L. Rev. 27 , 78 , 96 ( 1984 ); S. Gross &  R. Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing 65  –  66 ( 1989 ).

23 . The sta­tis­ti­cal bases of many of these dis­par­i­ties can be found at D. Baldus, et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15 Stetson Law Review 133 , 159  –  60 , 163  –  64 ( 1986 ), and in the works of Gross &  Mauro, note 22 above; see also ABA Report, note 21 above, at Appendix A, for a cita­tion for each state study.

24 . T. Keil &  G. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976  –  1991 , 20 American Journal of Criminal Justice 17 ( 1995 ).

25 . See Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7 , 1996 (cit­ing Univ. of Louisville study).

26 . See M. Chellgren, Race-bias Bill Rejected, Could Get New Hearing, The Kentucky Enquirer, Mar. 26 ,  1996 .

27 . See McCleskey v. Kemp, 481 U.S. 279 , 292 ( 1987 ).

28 . See J. Acker, et al., edi­tors, America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 409 ( 1998 ) (arti­cle on race dis­crim­i­na­tion by D. Baldus &  G. Woodworth).

29 . See Title VII of Civil Rights Act of 1964 , note 13  above.

30 . J. Jackson, Legal Lynching: Racism, Injustice and the Death Penalty 97 ( 1996 ).

31 . GAO Report, note 16 above, at  5 .

32 . See Pokorak, note 1  above.

33 . S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara Law Review 433 , 453  –  54 ( 1995 ) (empha­sis added).

34 . Callins v. Collins, 114  S. Ct. 1127 , 1135 ( 1994 ) (Blackmun, J., dis­sent­ing from denial of certiorari).

35 . See People v. Sharpe, 781 P. 2 d 659 , 660 (Colo. 1989 ) (cen­sur­ing the prosecutor).

36 . See Janofsky, note 6  above.

37 . DATV Productions, Jury Selection With Jack McMahon, tran­script at 45  –  46 ( 1987 ) (here­inafter McMahon Tape).

38 . Id. at  46 .

39 . Petitioner’s Brief, Commonwealth v. Wilson, Nos. 3267 , 3270 &   3271 (Pa. Ct. of Com. Pleas, Phil. Oct., 1997 ), Supplement to Petition for Post-Conviction Relief Under Article I, Sec. 14 and Post-Conviction Relief Act, ¶¶ 3 &   4 .

40 . Jackson v. Thigpen, 752  F. Supp. 1551 , 1554 (N.D. Ala. 1990 ), rev’d in part and aff’d in part, sub nom. Jackson v. Herring, 42  F. 3 d 1350 ( 11 th Cir.  1995 ).

41 . See Bright, note 33 above, at  456 .

42 . Id. at  457 .

43 . Id. at  448 .

44 . 476 U.S. 79 ( 1986 ).

45 . McMahon Tape, note 37 above, at 69  –  71 (empha­sis added).

46 . See Roundtree v. State, 546 So. 2 d 1042 (Fla.  1989 ).

47 . Mata v. Johnson, 99  F. 3 d 1261 ( 5 th Cir.  1996 ).

48 . Dobbs v. Zant, 720  F. Supp. 1566 , 1577 (N.D. Ga. 1989 ), aff’d, 963  F. 2 d 1403 ( 11 th Cir. 1991 ), rev’d, 113  S. Ct. 835 ( 1993 ).

49 . See J. Yang, A Rallying Point for Blacks in Utah, Washington Post, Feb. 26 , 1992 , at A 4 ‑ 5 .

50 . See Georgia Rejects Clemency for a Killer Who Says He’s Retarded, N.Y. Times, Mar. 31 , 1994 , at  A 19 .

51 . Testimony of Rev. Dr. Joseph E. Lowery, President, Southern Christian Leadership Conference, before the Senate Judiciary Committee, Oct. 2 , 1989 , at  3 .

52 . See S. Bright, note 33 above, at  440 .

53 . R. Johnson, Death Work: A Study of the Modern Execution Process 33 ( 1998 ).

54 . See, e.g., J. Marquart, et al., The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923  –  1990 8  –  13 ( 1994 ).

55 . McCleskey v. Kemp, 481 U.S. 279 ( 1987 ).

56 . American Bar Association, Policy and Procedures Handbook ( 1988 ).

57 . A list of endors­ing orga­ni­za­tions is avail­able from Equal Justice, a project of the Quixote Center, Hyattsville, MD .

58 . International Commission of Jurists, Administration of the Death Penalty in the United States (June, 1996 ), at 68 (Findings of The Mission, vi).

59 . Inter-American Commission on Human Rights, Report No. 57 /​ 96 ( 1998 ).

60 . E. Olson, U.N. Report Criticizes U.S. for ​ ‘ Racist’ Use of Death Penalty, N.Y. Times, April 7 , 1998 , at  A 17 .

61 . M. Matza, Activist Blasts Pa. Over Death Penalty, Philadelphia Inquirer, Nov. 26 ,  1997 .

63 . Statement by Catholic Bishops of Texas on Capital Punishment, Oct. 20 ,  1997 .

64 . See, e.g., R. Marquand, Death-Penalty Issue Stirs Divergent Religious Views, The Christian Science Monitor, June 12 , 1997 (“Conventional reli­gious oppo­si­tion to the death penal­ty includes points famil­iar to sec­u­lar oppo­nents. They include … the dis­pro­por­tion­ate rate of exe­cu­tion of poor and minor­i­ty inmates;”).

65 . See T. Morgenthau &  P. Annin, Should McVeigh Die?, June 16 , 1997 , at 27 (“ 49 % of all those polled say a black is more like­ly than a white to receive the death penal­ty for the same crime”).

66 . McCleskey v. Kemp, 481 U.S. 279 , 343 ( 1987 ) (Brennan, J., dissenting).

Discrimination and Harassment Case Study Analysis

• Post author: Stevens and McMillan Law Firm
• Post published: July 7, 2020
• Post category: Attorney Info

Case studies about discrimination in the workplace

In August of 2018, a young woman was hired to become the shipping manager for a small printing company. She is 26 years old, has a boyfriend that she is living with, and has plans to get married and have children, eventually. The general manager of the company was not included in resume selection, interview process, or the training of the young woman, but did do an initial welcome interview when she was hired. After he had met with her and had some time to get to know her a little bit, he was disgruntled at the human resources manager for hiring someone who would need time off for a wedding and for children sometime in the future. He approached the human resources manager and told her “Next time you decide to hire someone, hire a young able-bodied man so we don’t have to worry about him taking time off for personal reasons”. The tricky part in this scenario is that the general manager did not actually say these things to the female employee but to the female human resources manager. The comments that were said, made the female human resource manager uncomfortable because she too, may have a future situation like the one he is ridiculing the shipping manager for.

            This young woman was discriminated against since she was planning for her future as a wife and a mother. Regardless of her plans, or any female employed by the company, the discrimination took place because she is a woman, and once she decides to have children, she will need to utilize medical leave in order to give birth to her children. The human resources manager also shares in the same scenario, to which the GM has now openly given his criticism. The general manager in this case has decided that she would not be a good fit for the position because she will have weightlifting limitations and will have to take time off work. His comments and actions are sexist because he has already decided that she is not fit for the position for reasons that have not even happened yet.  The comments made by the manager could potentially be a serious liability for the company, and an immediate investigation must be done to determine whether or not legal action should be taken against him. According to a case settlement against the Consolidated Edison Company of New York, Inc. in 2015, The company continued to discriminate between 2006 thru 2014, whereas the company subjected countless women to sexual harassment and/or various forms of sex discrimination . Con Edison was blatantly discriminating against women Attorney General Eric Schneiderman said, “This agreement sends a clear message to employers across New York State: All women, including those working in male-dominated workplaces, are entitled to equal justice under the law.” United States EEOC (Press Release 9-2015). Although this case is an extreme example, it gives a clear understanding of how the behavior of the general manager is unacceptable and will not be tolerated. This case is one of the thousands of different scenarios that continue to happen daily.  

Investigating Discriminatory Actions

            A case like the example shown is a lot easier to investigate because it was extreme discrimination and most of the circumstances were well documented. However, as shown by the amount of time that these women were given disparate treatment, it took many years to finally determine that Con Edison was engaging in illegal actions. The situation that is occurring with the new female shipping manager, as well as the human resources manager, will continually be more difficult to prove sexual discrimination, and senior management will have a difficult time trying to prove the blatant abuse of power by the general manager. According to a recent study, “researchers surveyed about 6,000 U.S. military employees, and in their findings, they showed that reporting incidents of harassment often triggered retaliation. Under such conditions, it’s no wonder that for many of these employees, the most “reasonable” thing to do was to avoid reporting.” (Dessler, G., 2016). At this point, the shipping manager is not aware of the statements made by the GM, but the comments made by him have put the human resources manager in an uncomfortable position, as the comments that were made could potentially be directed at her in the near future as well.

In situations such as this, employers are legally obligated to investigate complaints (harassment, discrimination, retaliation , safety, and ethics) in a timely manner. In addition, any appropriate corrective action is required to be taken by the employer to ensure illegal actions and behaviors cease immediately. (SHRM, 2018). One major problem with this case is that it has yet to happen. The comments made by the general manager have not come into play yet, but if and or when it does, he will have violated the Pregnancy Discrimination Act of 1978. This law was put in place in order to protect women’s rights in the workforce. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination on the basis of pregnancy, therefore, “Women affected by a pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work”. (EEOC, 1978).  

The human resources department has been put in place to ensure that all employees are treated fairly and equally, and to make sure that equal opportunity employment always occurs. The role of human resources management involves documentation of employee grievances, terminations, absences, performance reports, timekeeping of vacation and sick time, and compensation and benefits information. When any type of sexual discrimination or harassment happens, it is typically reported to the HR administration. In this case, however, the HR manager has been indirectly discriminated against, so an outside investigator should be.

Author: Sarah Hendriksen from West Valley City

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Religious Discrimination

This post has 2 comments.

What is the difference between discrimination and harassment?

Discrimination is when someone treats you differently because of certain characteristics. These characteristics could include race, color and national origin as well as religion.

Harassment is unwelcome behavior and can sometimes be illegal. Harassment can include something said, written, or physical contact. They create a hostile atmosphere and are deliberate in their acts.

Comments are closed.

• Equality and Diversity

12 Notorious UK Discrimination Cases

on 01 Mar 2024

Discrimination takes many forms, from gender or age to well-intentioned or just malicious. We examine some of the most serious, high-profile cases in the UK.

No matter what guise it adopts, discriminatory behaviour is never anything but harmful. One in five UK adults experience workplace discrimination . As a result, more and more people are beginning to take a stand against it and are challenging employers and entire institutions in court or the employment tribunal.

Of the many discrimination cases appearing before judges and investigators in the UK, some truly stand out for their severity or uniqueness. We take a look at just how varied cases of discrimination can be.

Dirty dozen of the worst UK discrimination cases

• When age is not just a number, and neither is a hefty fine
• Discrimination plagues NHS England
• BNP Paribas' #MeToo moment
• Police force has deaf ears about hearing tests
• An important lesson for teacher's employer
• Lost in translation
• Home Office worries lead to internal consequences
• Fit to carry a child but not carry out her job
• The inability to read or tell time doesn't equal dishonesty
• Turning a frown into a smile
• Pink or Punk?
• The cake case that takes the biscuit

1. When age is not just a number, and neither is a hefty fine

An 89-year-old NHS secretary, Eileen Jolly, became the oldest person in the UK to win an age discrimination claim . Her superiors at Reading's Royal Berkshire Hospital fired her, claiming that she was stuck in her "old secretarial ways" and that she had demonstrated a "catastrophic failure in performance".

In a nutshell, Eileen was fired for not having the ability to use a modern computer. However, the employment tribunal found that "there was evidence of the claimant's training having been inadequate, incomplete and the 'on the job' training was ad hoc and not directed". While Eileen never got her job back, she did end up £200,000 richer!

2. Discrimination plagues NHS England

Liverpool senior nurse, Michelle Cox, won a landmark case against NHS England Improvement after the court heard evidence of her harassment and victimisation by her employer. Furthermore, her whistleblowing claims were disregarded after she raised a grievance and an appeal.

The employment tribunal found that Ms Cox's manager, Gill Pax, side-lined, undermined and intimidated her. Direct discrimination in the form of purposefully excluding Ms Cox from team away days and Pax excluding her from recruiting to new senior posts in her team.

These are two examples of several occasions of direct discrimination. The tribunal found that Ms Cox was a victim of a "hostile and humiliating environment". She was supported by the Royal College of Nursing and is in line to secure substantial compensation after being dismissed and discredited by her manager between 2019 and 2021.

3. BNP Paribas' #MeToo moment

A female broker won her sexual discrimination case against BNP Paribas . Stacey Macken told the tribunal that her mostly-male colleagues routinely subjected her to humiliating and sexist behaviour , such as leaving a witch's hat on her desk. She also said that her boss often answered with "Not now, Stacey" when asked a question.

As if that wasn't bad enough, Macken claimed that the bank frequently carried out her performance reviews in a way that made light of her contributions.

Unsurprisingly, this meant that she often missed out on bonuses that were dished out readily to her male colleagues, and the tribunal ruled that they couldn't find any evidence to the contrary. In the end, Macken won £2m from the sexual discrimination case.

4. Police force has deaf ears about hearing tests

In one of the more unusual cases on this list, a policewoman who is not disabled has won a claim against the police force for direct disability discrimination. Lisa Coffey was given a standard medical examination that revealed hearing loss upon joining the force. However, since she could pass the force's practical hearing test, she was permitted to work without requiring any adjustments.

Two years after she started working as a constable, Coffey applied for a transfer to another police force and was once again required to undergo a medical test. The results of this test were identical to the first; however, the Acting Chief Inspector refused her application because her hearing loss was likely to deteriorate in the future. The employment tribunal found this perception to be direct disability discrimination and awarded Coffey £26,616.05 in compensation.

5. An important lesson for teacher's employer

Gary Day-Davies, a teacher, diagnosed with bipolar disorder, won a case against United Learning Trust for their discriminatory treatment. After initially being suspended for being unfit to work, Day-Davies took appropriate measures to enable a speedy recovery. However, once he obtained proof from his GP and a psychologist that he was fit to work once more, the trust rejected this evidence, and his suspension was upheld.

While Manchester's employment tribunal ruled that the trust was right to initially suspend Day-Davies, rejecting solid recommendations from health professionals for no logical reason was not. In the end, the tribunal ruled that this was little more than a classic case of disability discrimination.

6. Lost in translation

A couple were awarded £2,500 in compensation after they suffered racial discrimination at the hands of a car sales company. Kin Hung Wong, a man of Chinese descent, and his wife, a Hong Kong national, visited John Mulholland Motors to buy a new car. Wong conducted all negotiations with staff in English, his first language. However, when explaining certain aspects of the sale to his wife, he switched to Cantonese, her mother tongue.

Regrettably, this was something that didn't go down too well with the staff present, who kept asking them to switch to English "because we are in the UK", despite Wong explaining that his wife can't speak it well enough to engage in a proper conversation. Wong said they were treated aggressively and rudely and not even offered a handshake once the sale was complete. The judge ruled that John Mulholland Motors's staff had "created a degrading and humiliating environment", which is why he ultimately ruled in the couple's favour.

7. Home Office worries lead to internal consequences

In what can only be described as a devastating let-down, British-born Vitesh Patel was fired from his dream job a mere two hours after being hired! With seven years of rising through the Home Office ranks under his belt, Patel applied to be an immigration liaison officer in New Delhi. He aced the interview, and an email confirming the post followed shortly after.

Unfortunately, he soon received another email that effectively fired him since his family connections in India presented "a risk that the employee may come under significant and unwelcome external pressure - in addition to the obvious conflict of interest risks." The employment tribunal found that Patel's unfair dismissal was racially discriminatory since his ethnic origin was used as grounds to deny him an opportunity he deserved.

8. Fit to carry a child but not carry out her job

A pregnant policewoman won a sex discrimination case against Devon and Cornwall Police after she was forced to move from the front line to a desk-bound position. Once PC Natalie Town informed her superiors about the pregnancy, she was given no choice but to move to the Crime Management Hub. Her employers believed this was "safe and suitable for a pregnant woman" despite her receiving advice that she was fit to carry out her regular role.

PC Town did not take the change well and felt it would permanently harm her career. As a result, she developed anxiety, depression, and migraine headaches, leading to a lengthy absence from work. The employment tribunal ruled that PC Town was a victim of indirect sex discrimination . Therefore, women were at a particular disadvantage in the form of susceptibility to an enforced transfer from an operational role to a non-operational role".

9. The inability to read or tell time doesn't equal dishonesty

Meseret Kumulchew, a dyslexic woman, beat Starbucks in a disability discrimination case after being wrongly accused of falsifying documents. The accusation was made after she mistakenly entered incorrect information on certain documents due to her condition, making it hard to read, write or tell the time.

Quite understandably, Kumulchew took the wild accusations badly, telling the BBC, "I nearly ended my life. But I had to think of my kids. I know I'm not a fraud. I just made a mistake." The employment tribunal uncovered that the coffee shop had not made any reasonable adjustments for dyslexic workers , thereby discriminating against Kumulchew because of her condition .

10. Turning a frown into a smile

In 2016, an Orthodox Jewish nursery fired Zelda De Groen from her job as a teacher. The reason for her dismissal was that people found out she was living with her boyfriend without being married, something generally frowned upon by the Orthodox Jewish community. After making the discovery, the school asked De Groen to tell the parents that she had changed living arrangements. When she refused, she was fired.

She took her case to the employment tribunal in 2017, where they found that she had suffered from both sex and religious discrimination. However, the nursery immediately appealed, and the Employment Appeal Tribunal later concluded that only the sex discrimination verdict applied. The nursery was cleared of the religious discrimination charge after the judge, Mr Justice Swift stated that employers are allowed to act to the detriment of an employee based on the employer's beliefs but not on the worker's .

11. Pink or Punk?

Another particularly odd case on this list involves a man who sued a brewery for refusing to serve him a drink at a discounted price. Ironically, Cardiff's Brewdog had relabelled some of their 'Punk IPA' bottles as 'Pink IPA' to raise awareness about the gender pay gap , selling them a pound cheaper than the standard drink. However, to buy one, you had to be a woman, which is where the root of this case lies.

When 27-year-old Thomas Bower, a male, tried to purchase a £4 bottle of Pink IPA, he was refused due to his gender . Oddly enough, he was allowed to purchase it after lying to the barman he identified as female. District Judge Phillips ruled in Bower's favour, finding the brewery guilty of sexual discrimination, adding that Bower must have felt "humiliated", which is why he was awarded £1,000 in compensation.

12. The cake case that takes the biscuit

Possibly the most high-profile discrimination case in UK history involves a 'gay marriage cake' . The trouble all started when Ashers Baking Company, a bakery with evangelical Christian owners, refused to bake a cake with a pro-gay marriage message due to their religious beliefs. The case was heard by several different courts, with judges initially siding against the bakery, deeming their refusal to be discriminatory.

However, in 2018 the supreme court went against previously made judgements. Instead, it ruled that the bakery had every right to refuse baking a cake that is against their beliefs, thereby clearing Ashers of all discrimination charges. Gareth Lee, the customer who originally ordered the cake, said he would take the case to the European Court.

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Workplace Harassment Training Presentation

Harassment and discrimination can take many different forms, and your employees must be aware of what it is and how discrimination affects the workplace.

By raising employee awareness of equality and diversity and explaining why discrimination needs to be stopped, you can help stamp out harassment.

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Disability Discrimination Case Study – The Equality Act 2010

BY ADISH FARKHAD, EMPLOYER LAW  

Taken from: NRAS magazine, Autumn 2012  

The following is a real case which  Adish  dealt with…  

Joe suffers from left hip early osteoarthritis with femoroacetabular impingement. He believes that this condition amounts to a disability within the meaning of the Equality Act 2010.    Joe is currently employed as a Personal Trainer at “All About Health” gymnasium (his “Employer”) and has worked with them for the past 10 years. Joe was diagnosed with hip early osteoarthritis with femoroacetabular impingement 3 years ago. He feels that he has been treated less favourably by his Employer because of his disability, contrary to the Equality Act 2010.    Joe has, on several occasions, made his Employer aware that he is suffering from a disability for which he requires reasonable adjustments to his working practices. Joe has requested the following adjustments:    1.    regular breaks from his shifts so that he can rest to ease the pain in his hip;  2.    a reduction in his hours but not so much of a reduction that would prevent him from earning a living. He wants to work 27 hours per week;  3.    an adjustment to the shift pattern for Personal Trainers to allow him to work Mondays and Tuesday which are his busiest days (so that he can continue to look after his key clients); and  4.    that his Employer waives its unreasonable request that Joe works every weekend (the quietest times) as part of his working hours as Joe wants to be treated in the same way as his non-disabled colleagues who only have to work one weekend per month.    Employee Booklets

Whilst Joe’s Employer has been on notice of his disability for over 3 years; it has persistently failed to make any adjustments to accommodate his disability. Joe’s manager regularly picks on him for demonstrating his hip pain in the way that he sometimes walks around the gym. His manager’s view is that Joe’s physical impairment does not create a positive image for the gymnasium and its Personal Trainers.    The subjecting of Joe to disability discrimination has meant that Joe has been prevented from working the reduced hours he requested and this has had a detrimental effect on his current health which has exacerbated the effects of his disability. Two months ago, Joe raised a formal grievance as he felt that he had no alternative but to do so in circumstances where all of his previous concerns raised verbally had been ignored. Joe’s Employer did not uphold his grievance and denied all liability for discrimination. Joe’s Employer did, however, agree to reduce his hours to 20 hours per week (with no flexibility or adjustment to enable him to work in excess of that should the need arise), requesting that he works at the quietest times every weekend and preventing him from working at the busiest times on Mondays and Tuesdays. He has also been allowed to take a 10-minute break when he feels in pain on the condition that he authorises the break with his manager so that his manager is aware of his whereabouts.    Joe’s Employer wishes to vary Joe’s terms and conditions of employment to reflect his new working hours (20 hours per week) and days of work to include working every weekend. Joe was told that he would face “proceedings” if he does not accept the proposed varied terms.    Joe considers that his Employer has failed to give any good reason for not agreeing to make the adjustments he requested and that the proposed adjustments that it is willing to make are unreasonable in the circumstances. Joe is aware that new staff are being recruited or being asked to cover Mondays and Tuesdays (his Employer has the maximum number of Personal Trainers already because it is allowing employees without a disability to work on a Monday and Tuesday instead of him).    Joe went to see a solicitor for legal advice to see if he had any potential employment claims against his Employer. He was advised that the Equality Act 2010 requires employers to make reasonable adjustments for employees who have a disability. Also, that employees with a disability should not be treated less favourably because of a disability. In Joe’s case, his employer did not provide any business reasons as to why it could not allow Joe to work 27 hours per week and on a Monday and/or Tuesday. Joe’s Employer had not sought a medical opinion from an Occupational Health Therapist about his disability and what recommended adjustments could be made. In all the circumstances, therefore, Joe’s Employer had failed to make reasonable adjustments. In addition to this, Joe’s Employer subjected him to less favourable treatment by insisting he works at the quietest times every weekend (when his colleagues who did not suffer from a disability did not have to work every weekend) and by insisting that he seeks his manager’s approval before taking breaks, in circumstances when it knew Joe had been bullied by him and that it would not always be possible to obtain such authority.    In addition to a claim for disability discrimination, Joe could also claim victimisation under the Equality Act 2010 because he was subjected to further less favourable treatment because he made a complaint (by raising his grievance) about disability discrimination, as his Employer threatened that he would face ‘proceedings’ if he does not accept the proposed variation to his terms and conditions of employment.    Joe was advised that if he were to pursue a claim in the Employment Tribunal for disability discrimination, he would be entitled to compensation for his injury to feelings, his future loss of income (if he were to resign and leave the gymnasium) and possibly the personal injury he had suffered due to his condition becoming worse as a result of his Employer’s failure to accommodate his disability. It was also explained to Joe that the Employment Tribunal would make a recommendation about reasonable adjustments for his continued employment (if he did not leave).    At the interview with his solicitor, Joe was concerned about the costs involved in pursuing an Employment Tribunal claim. However, when his solicitor discussed the matter with him, it became clear that he had Legal Expenses Insurance which would fund legal assistance. Joe was very surprised he had not realised he had such cover in his Home and Contents Policy. Joe’s solicitor assisted him to apply to his insurers for funding and then issued an Employment Tribunal claim on his behalf.    Employer Law     The Equality Act 2010 is the law which bans unfair treatment and helps achieve equal opportunities in the workplace and in wider society.  For further information and to download publications visit:  www.homeoffice.gov.uk/equalities/equality-act  

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• Int J Environ Res Public Health

“I Have Nowhere to Go”: A Multiple-Case Study of Transgender and Gender Diverse Youth, Their Families, and Healthcare Experiences

Megan s. paceley.

1 School of Social Welfare, University of Kansas, 1545 Lilac Lane, Lawrence, KS 66045, USA; ude.uk@adnanaj (J.A.); moc.liamg@8150sivadrt (T.D.M.)

Jennifer Ananda

Margaret m. c. thomas.

2 Luskin School of Public Affairs, University of California Los Angeles, 3250 Public Affairs Building, Los Angeles, CA 90095, USA; ude.alcu.niksul@samoht

Isaac Sanders

3 A Way Home Washington, 1200 12th Ave. S. Suite 710, Seattle, WA 98144, USA; gro.awemohyawa@srednasi

Delaney Hiegert

4 School of Law, University of Kansas, 1535 W 15th Street, Lawrence, KS 66045, USA; moc.liamg@tregeihcd

Taylor Davis Monley

Associated data.

Data are not made available to protect the privacy of participants.

Transgender and gender diverse (TGD) youth experience health disparities due to stigma and victimization. Gender-affirming healthcare mitigates these challenges; yet, we have limited understanding of TGD youth’s healthcare experiences in the U.S. Midwest and South. Using a multiple case study design, we aimed to develop an in-depth and cross-contextual understanding of TGD youth healthcare experiences in one Midwestern state. Families with a TGD child under 18 were recruited with the goal of cross-case diversity by child age, gender, race, and/or region of the state; we obtained diversity in child age and region only. Four white families with TGD boys or non-binary youth (4–16) in rural, suburban, and small towns participated in interviews and observations for one year; public data were collected from each family’s community. Thematic analysis was used within and across cases to develop both family-level understanding and identify themes across families. Findings include a summary of each family as it relates to their child’s TGD healthcare experiences as well as the themes identified across cases: accessibility and affirming care. Although limited by a small sample with lack of gender and race diversity, this study contributes to our understanding of TGD youth healthcare in understudied regions.

1. Introduction

Transgender and gender diverse (TGD) youth experience stigma and victimization in their homes, schools, and communities [ 1 ]; these experiences are associated with increased health concerns, including depression, suicidality, substance abuse, eating disorders, and stress [ 2 , 3 , 4 , 5 ]. These health concerns can be mitigated or alleviated by supportive individuals and communities. When TGD youth report having at least one supportive adult in their lives, their risk of suicidality decreases by 40% [ 6 ]. Additionally, TGD youth report decreased depression and suicidality when people in their lives use their chosen names [ 7 ]. Communities can also reduce risk for TGD youth via TGD-inclusive non-discrimination policies, presence and visibility of other TGD people, and access to affirming resources [ 8 ].

An important resource for TGD youth is access to physical and mental healthcare that is affirming of their gender identities and expressions [ 8 ]. At the broadest level, having affirming healthcare means access to providers who use a patient’s chosen name and pronouns and affirms their gender. More specifically, gender-affirming healthcare for youth includes access to puberty blockers (to safely delay puberty associated with sex assigned at birth), use of hormones consistent with their gender, and medications to promote physical development [ 9 ]. Gender-affirming healthcare is recognized by major pediatric medical organizations as evidence-based practice for TGD youth [ 10 , 11 ] and is associated with reduced health disparities [ 12 ] including risk of suicide [ 13 ].

Even with this professional recognition, gender-affirming care is facing significant social and political backlash. In early 2021, in the U.S. more than 20 bills were proposed that aim to restrict gender-affirming healthcare for TGD children and adolescents [ 9 , 14 ]. These bills include provisions making it a criminal act to provide gender-affirming care (for medical professionals and/or parents), opening medical professionals up to civil liabilities for providing gender-affirming care to youth, and/or restricting insurance coverage for gender-affirming care for people under 18 [ 9 ]. If passed, these bans could restrict access to gender-affirming care for as many as 45,000 TGD youth in the U.S. [ 9 ], primarily in Midwestern and Southern states.

Access to affirming physical and mental healthcare is a critical component of reducing health disparities for TGD youth, yet we lack research on the healthcare experiences of TGD youth in the U.S. Midwest and South, precisely those areas where TGD youth face heightened risks for health disparities. Simultaneously, legislation in these regions is targeting TGD youth via restrictive and discriminatory policies and rhetoric. To redress this critical gap in the literature, this study centers the lived experiences of TGD youth and their families in one Midwestern state with the goal of understanding their healthcare experiences broadly and related to gender-affirming care specifically.

1.1. TGD Youth in the Midwest

The Midwest is characterized as having low tolerance for sexual minorities [ 15 ]. TGD youth in the Midwest and South report higher rates of anti-TGD victimization compared with TGD youth in other regions of the country [ 16 , 17 ]. Few studies have centered an understanding of the Midwest context on the experiences and well-being of TGD and sexual minority youth. One study explored the community context of TGD youth living in rural communities in a Midwestern state [ 18 ]. They found that community climate (e.g., the level of support for TGD people in a community) was a better predictor of supportive resources than was community size. This finding suggests that it is critical to identify strategies to increase support for TGD people within their communities. Another study examined the community factors relevant to how TGD youth perceive support in rural and small towns in the Midwest [ 8 ]. Youth described a lack of TGD-affirming resources, including healthcare options that affirmed and supported their identities.

1.2. TGD Youth Healthcare

Access to supportive and competent healthcare can reduce health concerns and promote well-being for TGD youth [ 19 ], yet TGD youth face barriers to accessing both general and gender-affirming healthcare. Specifically, barriers to healthcare for TGD youth include fears of mistreatment based on gender [ 20 , 21 ] and providers using youth’s incorrect names/pronouns [ 20 , 22 ]. Additionally, TGD youth face barriers to gender-affirming care such as lack of competent providers [ 21 , 22 , 23 ], lack of access to puberty blockers or hormones [ 20 , 22 ], and insurance and financial issues [ 21 , 22 ]. Alternatively, affirmation of TGD youth’s gender is associated with reduced barriers to affirming care for TGD youth of color [ 24 , 25 ].

Importantly, access to supportive and affirming healthcare extends beyond provider competency and accessibility. For TGD youth under the age of 18, parental consent and support is often a prerequisite to care [ 26 ]. Very few studies have examined the healthcare experiences of TGD youth from the perspective of both youth and parents. A qualitative study of TGD youth and parents in Newfoundland found that while both youth and parents identified the barriers described above, parents also discussed concerns about their child’s mental health, wait times for access to care, and a lack of information on providers and gender-affirming care [ 23 ]. Additionally, youth specifically worried about parental acceptance, safety, and feelings of dysphoria.

These studies provide an important understanding of the healthcare experiences of TGD youth, and yet there remain key gaps in the literature. Given the important role of parents in the provision of healthcare for TGD youth, we need more studies including both youth and parent perspectives. Additionally, healthcare access and affirmation may be different in regions and communities with less supportive attitudes and resources, such as the U.S. Midwest and South. Finally, existing studies have primarily used cross-sectional surveys or interviews, providing important details at a point in time. We lack studies exploring the lived experiences of TGD youth and their families over time. Therefore, the purpose of this study was to center the lived experiences of TGD youth and their families in one Midwestern state over the course of a year with the goal of learning about their experiences with healthcare.

2. Materials and Methods

We used a multiple case study design to explore the healthcare experiences of TGD youth and their families in one Midwestern state. Multiple case study designs allow for in-depth exploration of a phenomenon across varying contexts or situations [ 27 ]. Four families in one Midwestern state participated in the study over the course of twelve months (July 2019–June 2020). All procedures were approved by the University of Kansas ethics review board.

2.1. Positionality

As scholars engaged in research-advocacy with TGD youth, it is essential that we identify our positionalities within the study. Author one (she/they) is a queer, white, genderqueer woman with professional, educational, and class privilege. They have over a decade of practice experience working with TGD youth. They led the study, engaged in all data collection and analysis, and were the primary contact for all families. Author two (she/her) is a white, queer, cisgender woman with professional, educational, and class privilege. She engaged in data analysis and dissemination. Author three (she/her) is a white, lesbian, cisgender woman, with class, educational, and professional privilege. She joined the study during the dissemination phase as a policy expert. Author four (they/them) is a Black, two spirit, queer person with professional and educational privilege. They joined the study during the dissemination phase as a TGD practice expert. Author five (they/them) is a white, queer, transmasculine nonbinary person with professional, educational, and class privilege. They engaged in data analysis and dissemination. Author six (she/her) is a white, queer, cisgender woman. She was involved in the study from the start and engaged in data collection, analysis, and dissemination.

2.2. Recruitment and Sampling

A multiple case study design requires the selection of cases (i.e., families) who have a similar connection to a phenomenon (i.e., TGD healthcare) but with different contexts or situations [ 27 ]. We aimed to recruit and retain four families who lived in the sampled state and had at least one child under the age of 18 who identified as transgender, non-binary, or gender diverse. We also aimed to include varying contexts to explore diversity across cases; specifically, we hoped to include children of varying age, race/ethnicity, and gender identities or expressions, as well as families in multiple regions of the state.

Families were recruited via advertisements on social media, emails from LGBTQ+ organizations, and professional connections throughout the state. Interested parents or children were asked to email or call the first author to establish eligibility and consent. For each family, the parent was the initial contact. A total of five families consented to participate. One family withdrew after data collection began, and their data are not included. Although we attempted to recruit a diverse sample in terms of race/ethnicity and gender, the final set of families included only age and regional diversity. Table 1 describes the characteristics of each family. Notably, all families were white and three youth participants were trans boys.

Family Case Characteristics.

Note. Pseudonyms are used to protect family anonymity.

2.3. Data Collection

Data collection included three or four in-depth interviews with parent and child participants, observations of each family, public document review, and member checking/data review by each family. Data collection occurred between July 2019 and June 2020. Due to the onset of COVID-19 in early 2020, all data collection after March 2020 was conducted online.

2.3.1. Interviews

Multiple interviews were conducted with each family to understand their individual contexts and experiences, attending to changes over time. After receiving initial agreement to participate in the study by parents and children, we set up a time to meet the families in person. The first and last author traveled to meet the families in their homes. At the first meeting, we brought food, snacks, and/or things to play with (for the family with younger children) to establish rapport and get to know the family before starting data collection. Consent documents were shared and parents provided signed consent for themselves and their child. Children received an assent form and provided verbal agreement to participate. Families participated in three to four interviews over the course of twelve months, spaced about three to four months apart. Parents and children received a USD 20 gift card for each data collection visit for a total of up to USD 160 per family.

An interview guide was used to facilitate each interview. The first interview guide was developed to establish an understanding of the child, family, school, community, and healthcare contexts. Initial interviews with parents and children were conducted separately to provide privacy and confidentiality for all families except one (due to age of the child). The parent interview guide included questions related to their interest in the study, family background, their TGD child, their child’s physical and mental healthcare experiences, and needs of the family. The child interview guide was adapted based on the age of the child and included questions related to their family, gender, healthcare experiences, and any need for support they had. Subsequent interview guides were developed for each family based on their individual contexts and after preliminary analyses of their previous interview(s). Subsequent interviews focused on changes since previous meetings, past and upcoming healthcare appointments, shifts related to gender identity or expression, and ongoing or new needs for support. Two families elected to conduct these subsequent interviews as a family, rather than individually (both were the two families with younger children). All interviews were audio recorded and transcribed by a professional transcription service.

2.3.2. Observations

Participant observations were used to document and explore family dynamics and contexts. At each family meeting, we engaged with the parent(s) and child together before and after interviews. Following each meeting, we individually documented our observations of the family, family dynamics, and possible topics for further exploration. Observations included memos from the interviews. Observation memos were written within 48 h of each meeting, and we also discussed our reactions and thoughts as a group.

2.3.3. Public Document Review

Public documents in each family’s community were collected to understand the healthcare and community context for each family. Public data included the presence or absence of TGD-affirming healthcare services, non-discrimination policies inclusive of gender identity, and any other relevant public documents, such as lists of TGD-affirming healthcare providers.

2.3.4. Member Checking/Data Review

At the end of the data collection period (Summer, 2020), each family was provided with a two-to-three-page summary description of their family contexts and TGD healthcare experiences. They were asked to read and review it for accuracy and anonymity, allowing them the opportunity to change details or obscure facts that might make them easy to identify. No families asked to change any information. They were asked to answer a few questions via email in their response, including whether there had been any changes or updates since their last interview, feedback they hoped healthcare providers would take from this study, and ideas for training healthcare professionals. All families responded to the questions, and these responses were incorporated into the analyses.

2.4. Data Analysis

Data for this study included interview transcripts, observation notes, public documents, and member checking reviews. Given the multiple case study design, it was essential to analyze these documents within cases (e.g., each family) and across cases (e.g., the entire data set). This allowed for an in-depth understanding of each family’s contexts and experiences and for the comparison of data across cases. This is an essential step in a multiple case study with the goal of understanding each individual case and identifying similarities and differences across cases [ 27 ].

The first and last authors began analyzing data within families at the start of data collection to develop a thematic understanding of each family prior to the subsequent interview/meeting. Interview transcripts and observation notes were read by each author who each took notes about emerging ideas and codes to attend to in subsequent rounds of analysis. These notes were used to create interview guides for subsequent meetings with families, including follow-up questions from within-case analysis (e.g., “Tell me more about what happened when the doctor….”) and across cases (e.g., “Some families are reporting [a specific experience]. Has that been true for you).

When data collection ended, the first and final two authors engaged in the thematic analysis procedures outlined by Braun and Clark [ 28 ]. Each author read all data materials to establish familiarity within each family and then across cases. Next, codes were generated within data related to healthcare experiences, needs, and concerns. We developed themes and then reviewed them to ensure accuracy and that no other codes or themes were missing. One author then wrote family summaries using these themes and sent them to the families for review. Families were able to make corrections or omissions and answered a few final questions; these answers were used in the final round of analyses. Themes were then compared across cases by coding excerpts for similarities and differences and compiling them into a set of themes that described the findings across all four cases.

With the goal of providing a rich description of each case, as well as sharing insights across cases, the findings from this study are presented in two parts. First, we provide a brief but in-depth description of each family and their healthcare experiences. Second, we share the findings from the across-case analyses demonstrating two broad themes of TGD healthcare experiences: accessibility and affirming care.

3.1. Family Descriptions

3.1.1. family 1.

Travis was 16 years old at the start of the study, the middle child of three siblings, living with his mom and dad in a rural town. Although adjacent to an urban county, the community had a small town feel with neighbors waving at cars as they drove by and a small, walkable downtown in which we picked up lunch for the family on our first visit. There were no TGD-affirming providers within the county, and the county had no legal protections for TGD people. An urban city is about an hour away, providing access to resources, but only if one were able to make the drive. Throughout the course of the study, Travis’ family had access to medical care and private insurance. Travis and his mom, Carrie, were open, loving toward each other, and friendly. Travis shared his love of music, art, and writing.

Travis explored his gender on his own for years prior to telling his parents he is trans at the age of 13. They were supportive of him, using his correct name and pronouns, finding TGD-affirming providers, and advocating for him. Travis indicated his school was mostly supportive, but he described instances where, in an attempt to be supportive, the school would do things like ask what group he preferred when events were separated by gender, which he felt like they should know, given he is a boy. Although he was generally reserved, he had gotten involved in advocacy efforts with his school’s gender and sexuality alliance (GSA). Travis attended an LGBTQ+ organization in the neighboring city, providing him with social support and resources.

Travis sought both TGD-related medical and mental healthcare. He described his therapist as helpful and affirming. He first saw his family doctor for gender-related care; however, the doctor was uncomfortable with this and provided no referrals. Carrie explored other options and eventually found a transgender-friendly clinic, referred by friends from the LGBTQ+ center. Travis receives hormones and ongoing care from the clinic, which has been affirming and competent; physicians and nurses use proper language, understand how to work with TGD youth, and ensure TGD people feel comfortable. However, the clinic is an hour away, and there have been logistical challenges with scheduling and physician turnover. Carrie described several examples of times in which their insurance initially would not cover visits to the clinic due to coding issues or confusion about Travis’ gender. After phone calls to the insurance, these issues were resolved; however, it required time and emotional labor on Carrie’s behalf. She described their healthcare hurdles to be finding and accessing TGD-affirming healthcare and navigating insurance challenges, such as improperly coding TGD-related healthcare as not covered.

3.1.2. Family 2

Aiden was 15 years old, the youngest of two, living with his mom and dad in a suburban community. The town had a long-standing non-discrimination ordinance that included gender identity, as well as numerous therapists skilled at working with TGD youth. There were a few medical providers affirming of TGD people; however, there were no TGD-specific providers or centers. The city is about an hour from an urban community that had numerous TGD-affirming providers, including a gender clinic for children, if families could make the drive. Aiden and his family had lived in this community for a couple of years, having moved from another state due to transphobia. They had access to private insurance and means to travel and pay for medical care. Aiden shared enjoying physical activity and playing video games. Throughout the study, Aiden and his mom, Vanessa, as well as other family members who stopped in to say hi, were friendly and welcoming. Aiden and Vanessa appeared to have a strong, trusting relationship.

Aiden knew at five that his gender was not what people expected of him, but he did not have the words for it at such a young age. Vanessa described wondering if her child might be transgender and meeting with a mental health professional to ensure they were providing Aiden with the right types of support. At 10, he met with a gender-affirming therapist and then came out as transgender, changing his name and pronouns and starting hormone blockers to delay puberty. His family has been incredibly supportive, advocating for him when his school denied him use of facilities consistent with his gender (e.g., boys’ bathrooms), and eventually moving to provide him with a more accepting community and resources.

Aiden’s experiences with healthcare have been mixed. He described his previous doctor as “scared” of him, as he refused to prescribe hormones even after a therapist said Aiden was ready. He switched doctors and found a general practitioner who was TGD-affirming. He also visited the gender clinic in the neighboring urban city every four weeks. He sees a local therapist who is skilled at working with TGD youth. Aiden and Vanessa described generally positive experiences with healthcare but indicated that barriers existed with physician training and education on how to work with TGD people.

3.1.3. Family 3

Blake was 11 years old, the middle child of three kids living with their mom, Faith; Blake’s dad lived in another state. Although they lived within an urban city, their home was situated on the outskirts of town, just off a major interstate, giving it a more rural feel. Despite that, the city is one of the largest in the state and has several LGBTQ+ organizations and TGD-affirming healthcare providers. At the time of this study, the city did not have any policies protecting TGD people from discrimination. Blake shared his joy of cats, art, and rock collecting, as well as experimenting with make-up and fancy clothes. During our meetings, the family often had spirited conversations, sometimes openly disagreeing with each other’s take on situations, but also demonstrating closeness and care.

Blake had been exploring his gender and sexuality for a few years. He reported feeling both like a boy and non-binary, as well as bisexual, but expressed no desire to change his name or pronouns from those assigned at birth. He described liking make-up, high heels, and dresses. At times, Faith questioned this and Blake would respond adamantly that liking these things did not make him a girl. He was allowed to start wearing make-up in public, including at school, when he started the 6th grade, the same as his older sister had been.

Blake was in both family and individual therapy. Faith shared that Blake started individual therapy at a local clinic for multiple reasons, of which gender and sexuality were a part, but that his therapists would only discuss gender and sexuality if he brought it up. Faith expressed concern that this was about their discomfort with TGD issues. Blake shrugged, indicating he had no concerns about his gender or sexuality. Blake had not told his primary doctor about his gender or sexuality, but Faith reported feeling as if they would be competent. Blake indicated no desire for any medical transition or gender-related care at this time. Faith shared that the biggest hurdle she witnessed regarding TGD-affirming care was in education for mental health providers. As a clinician herself, she shared that psychologists and social workers needed better and more ongoing continuing education on working with LGBTQ+ youth.

3.1.4. Family 4

Ethan was four years old, living with his twin sister, mom, and dad in a small town. Situated in a more conservative and less densely populated area of the state, the town was unique in having a county-wide non-discrimination ordinance that included gender identity. There are no gender clinics or specific TGD-affirming providers in the community; however, there is a human rights organization providing training and resources to physicians providing care for all genders. Additionally, a more urban area, about an hour’s drive away, hosts additional resources for access to care. Ethan, his mom, Natalie, and their family were well-established in the community and the family had insurance through Natalie’s job. Ethan loved coloring, playing with toys, and laughing with his sister. During our visits, the family was loving toward each other and reported intentional efforts at building family cohesion and community.

Ethan began talking about his gender as a boy at 2 ½ years old. He regularly said he was a boy, would wear boy clothes, and questioned his own body. When we first met with Ethan and his family, he was using his name provided at birth and she/her pronouns. He appeared shy and reserved, though warmed up quickly and wanted to play with us. When we visited the second time, his demeanor had changed completely. He was using the name Ethan and he/him pronouns, had cut his hair, and was expressing his gender as a boy full-time. Natalie informed his preschool teacher, sharing that she “didn’t give them a choice” about whether to accept him or not. She said his Kindergarten the next year had a gender-inclusive policy, and she was not worried.

Natalie shared that Ethan’s general practitioner was open and supportive of Ethan and the family, noting no potential concerns. She shared that she sought out the expertise of a child therapist to identify how best to support Ethan, but the therapist shared harmful rhetoric surrounding a gender binary as opposed to being helpful. Although Ethan was too young for any TGD-specific medical care, Natalie shared concerns about being able to access that type of care in their town as Ethan got older. She indicated a barrier to effective care for Ethan is in the lack of education and training of medical and mental health providers.

These family descriptions illustrate how families navigated TGD youth healthcare, broadly and related to gender. Importantly, all the youth in the study had supportive parents willing to advocate for them to access affirming care. Most had the financial resources, insurance, and/or ability to travel to access care. This is clearly not the situation for many TGD youth; however, the themes that emerged across the families revealed important implications for access to TGD healthcare, likely relevant for TGD young people across contexts.

3.2. TGD Healthcare

Thematic analysis across data sources and families resulted in two themes related to healthcare: accessibility and affirming care.

3.2.1. Accessibility

Youth and their parents described accessible healthcare as access to TGD healthcare information, having TGD-competent providers, and safe physical resources that were obtainable given their financial and geographical location. Each family shared stories about accessibility, recognizing their own privilege of access due to supportive parents with stable incomes and access to transportation. Even so, each family shared accessibility challenges including a lack of TGD healthcare information/providers, material hardship (finances, distance), and safe physical resources. Importantly, these challenges intersected to either enhance or further limit accessibility.

Participants discussed challenges in finding information related to local healthcare providers who could work with TGD youth. One parent said:

We didn’t know where to go; doing random Google searches does not get you what you need, and looking that up on our providers care site, there was nothing. I mean, I could find 50 endocrinologists, but none of that told me if they would be able to help with this situation.

While an internet search revealed resource lists of health providers in some communities in the state, many communities had no such information consolidated or readily available online. In addition to online searches, participants noted that they also sought information regarding TGD healthcare from their child’s primary doctor. They noted that, while well-intentioned, their child’s doctors often did not have referrals for healthcare services for TGD youth. Ultimately, most families in the study relied on information provided by other TGD youth or organizations that provide support for TGD youth and their families. A youth shared how they were able to access information word-of-mouth through other TGD connections: “if I didn’t go to the [LGBTQ] center, and if I didn’t meet my friend who told me about [TGD healthcare provider], I don’t know what would have happened.”

Even when families found and accessed TGD-affirming physicians, they shared concerns about high turnover rates and a general lack of physicians in their areas. This was particularly salient for rural TGD youth. One youth shared feeling as if they had to re-establish rapport regularly due to changing physicians at the clinic, speculating that turnover could be related to working in a high-stress clinic that also provides abortion services, where protesters regularly gather and individuals experience harassment when entering and exiting the clinic.

Safety, therefore, was of particular concern to the youth and parents. They described accessing gender-affirming care through “women’s clinics”, walking through protesters, and being yelled at. One youth said:

Where I go, it’s [women’s clinic]. So they do more women’s health care. They do abortions and stuff there, too, so it’s like that’s why they have that much security cause you go through a metal detector, and the door’s locked. And then he has to unlock the door for you…But then they also do trans stuff on top of that.

Another youth described the safety planning required to enter the facility where they accessed services.

There are lots of anti-abortion people. They’re all like, there’s a building right next to them, and they have a sign that’s like, ‘Planning getting an abortion? We can help you, because we’re religious.’ They have a big truck with a really graphic image on it, which is probably fake, and they have tables and flyers. Before my first appointment, they called me and was like, ‘When you get there, just drive on in like you work there. Just ignore them, and they probably won’t try to talk to you.’

Experiencing protesters, having to go through security protocols, and other similar experiences were common for youth accessing TGD healthcare in a women’s clinic setting.

Finally, families described material hardships related to accessibility such as affordability, insurance restrictions, and travel to access resources, even in homes with adequate family support and resources. Parents experienced insurance companies’ coding mistakes that led to lengthy conversations with Human Resources to ensure that hormones and other medical needs were covered for their child. They also described instances in which visits were not covered by their insurance provider, but they were unaware until after the appointment was billed and sometimes after multiple appointments. TGD youth were also aware of the costs for medical care. One participant said:

I mean, I have a friend, and he’s getting top surgery in June or July, which is awesome for him. But I’m not. And it’s very expensive. I know, I have to wait at least another two years, if that, if I have the money. So it’s just kind of bittersweet, I guess. Because I’m really excited and happy for him. Because he’s been wanting this since- For so long.

Travel was another accessibility issue. Most of the youth in this study had to travel, sometimes an hour or more, to access a physician who competently addressed their healthcare needs.

3.2.2. Affirming Care

Affirming care was described by youth and their parents as affirming practices within the healthcare setting, having knowledge and attitudes that met their needs, and affirming spaces to access healthcare. Families identified specific instances in which name and pronoun use, providing education and referrals, and gendered space impacted their perceptions of the care they received as affirming or presented challenges to accessing affirming care.

Affirming practices were identified by participants as a broad range of affirming behaviors exhibited by or desired from healthcare providers, including using correct names and pronouns, requesting consent before engaging in services, and providing education to TGD youth as they engaged in hormone therapy. These behaviors significantly impacted participants’ perceptions of their experiences.

I mean even just the normal things, asking pronouns. One thing I’ve been reading some about is consent and this isn’t just for trans (people), but obviously it could make a big difference. Even when the doctor comes to check your pulse, ‘Is it okay if I grab your arm and then I’m going to check.’ …Just that kind of consent would be in having a more trusting and comfortable relationship.

One family in the study discussed an event that had a significant impact on their experience. A parent described it, saying,

She brought us in, and she went over it all, she showed us everything. I mean, she went into detail. And then she gave us a sharps bucket, she gave us all kinds of extra needles for practicing, and for using, gave us all this stuff. It was like this, we call it his little trans starter kit, she gave us. She was so, I mean, that made such a world of difference for us. She was amazing…

Affirming behaviors from medical professionals created an environment in which TGD youth felt more comfortable accessing the care they need.

Participants also relayed concerns about healthcare professionals’ education on gender-affirming healthcare and their inability to provide safe and effective referrals. Participants regularly went first to their general practitioners for references for gender-affirming care.

We didn’t know where to start. We really like our general practitioner, so we just set up his regular physical and started by talking to her, and she said, ‘Well, I don’t feel comfortable with that. I’m not an endocrinologist, and I don’t know enough about it,’ and she said, ‘And I would not recommend the endocrinologist in town. There’s only one.’ And she said, ‘That’s just, he does not seem like the right fit.’ She tried to help us, but we ended up getting a reference from a friend at the Center, and we go to the (Clinic’s name).

Participants noted that their practitioners seemed uncomfortable and uninformed when discussing gender-affirming care and saw gender-affirming referrals through their general practitioner as a barrier to finding care. “I think it would be easier to access that stuff through your family doctor, just going, and if you would tell them, and then they would be like, ‘Oh here’s a bunch of things we can do for you, whichever works best.’” One participant acknowledged the discomfort expressed by their general practitioner when a referral was requested, “I think doctors should be more educated on the topic because my doctor doesn’t really know a lot about trans people in general. She has a general idea, but she doesn’t know anything pretty much.” Many participants were able to find a referral to a practitioner who offered affirming care through interpersonal relationships, but they expressed concerns about accessing healthcare for other medical needs.

Yeah, and I mean so far we’ve been very lucky. He’s got a great primary care physician who’s… We’re fine. But just, every time we see somebody new, I mean I made a point when choosing a primary care physician that that would be something on the list. But if he ever has to see a specialist, or if he ever has to go to the emergency room, who knows what we’re going to find?

Concerns about accessing healthcare professionals outside of gender-based care, such as the emergency room or other emergent healthcare needs, was a concern for participants.

Additionally, participants acknowledged the need for those healthcare professionals who provide gender-affirming care to remember that youth accessing their services are not medical professionals themselves and require education and information about the care they are receiving. One participant said, “I think for young trans kids, I feel like they just…I didn’t know a lot even, and I feel my doctors didn’t really tell me enough. And I never really got what was going on. I would ask my mom and she would just tell me we’re moving in the right direction.” There may be a presumption from medical providers that youth accessing their services understand gender-affirming medical care because they sought out those services.

Gendered spaces also impacted participants’ access to affirming care. Specifically, a transmasculine youth shared discomfort about accessing women’s clinics.

It kind of made me uncomfortable at first. It still kind of makes me uncomfortable. Because I was talking to my friend, and he’s cis. And I was just like, “Oh yeah, I go to (clinic’s name).” And it was like, uh, women… Not women, but it says women in the title. And it’s pink on the card, and just like, I’m not a woman, but I go there. So it makes me kind of uncomfortable.

Another youth participant noted discomfort accessing services in a “women’s” space.

I’m like, ‘Oh, I’m not a woman, but I’m going here,’ and if I’m walking, I was like, ‘I hope no one sees me walking in here.’ Or if I talked to other people, they’re like, ‘Oh, where do you go?’ I was like, ‘Oh, I go to (Clinic’s name).’ It was like, ‘What?’

Participants mentioned a desire to have a space that was broadly available for gender-based care, “It would be amazing if there were a center here. Just gender in general, gender medical-based center that you could go to for all those things.” Even if women’s clinics are able to provide gender-affirming care, the gendered nature of the center can impact the affirming care TGD youth receive in those spaces, even if healthcare professionals there provide affirming care for TGD youth within the facility.

4. Discussion

This study explored the healthcare experiences of four TGD youth and their parents in one Midwestern state. Through extensive interviews, two broad themes arose that were explored in this paper: accessibility and affirming care. Findings reveal that even in supportive families with access to financial resources and community support, TGD youth face barriers to accessing affirming healthcare. Specifically, accessibility was limited by lack of information on TGD healthcare providers, financial resources and insurance restrictions, and safety of physical locations. Affirming care included knowledgeable and affirming providers and healthcare spaces and specific practices that demonstrated competence and care to TGD youth. These findings enhance our understanding of healthcare among TGD youth in the Midwest U.S.

A key finding from this study is the fact that even in supportive families, TGD youth experienced barriers to accessing TGD-affirming healthcare, including finding resources, financial barriers, and geographic limitations. Parents regularly discussed spending hours on the internet, talking to other parents, visiting LGBTQ+ resource centers, and calling doctors and clinics to find competent and affirming care for their child. This echoes findings from recent research that TGD youth lack access to competent healthcare providers [ 21 , 22 , 23 ]. Importantly, each family in this study had adequate health insurance coverage and yet still faced financial barriers to care, including travel to access resources and insurance challenges. Prior research has identified insurance and finances as a barrier to accessing TGD-affirming care [ 21 , 22 ]. Travel to access gender-affirming healthcare has not been specifically examined in TGD healthcare literature; however, it has been identified as a barrier to TGD and sexual minority youth access to affirming community-based resources [ 29 ].

Another finding from this study illustrates the importance of affirming practices from medical and mental healthcare providers. Several of the families in this study started their gender-affirming healthcare experience with the child’s primary care physician. Many of those providers were uncomfortable providing care or making referrals. Families also worried about what kind of care they might receive if their TGD youth had to go to the emergency department. This suggests that access to gender-affirming care is not just about access to gender-specific care, but also access to medical and mental healthcare providers and systems that are affirming regardless of what type of care a person needs.

4.1. Limitations

This study has important limitations to note. As an exploratory multiple case study, the findings should not be generalized to other populations or geographic settings. The nature of the study required parental permission and involvement, which meant parents who agreed to participate were more supportive than in other families with TGD youth. Finally, despite attempts to diversify the sample by both race/ethnicity and gender identity/expression, the final sample of families were all white and had TGD children who were transmasculine or non-binary; youth/families of color and transfeminine youth were not included. We make conclusions carefully considering these limitations.

4.2. Implications

The findings from this study are relevant to the current sociopolitical context for TGD youth and, combined with other evidence, have important implications for policy and practice. Given the rise of anti-TGD legislation and rhetoric, including particular emphasis on reducing access to healthcare services for TGD youth [ 9 ], it is critical that social workers, healthcare providers, and other professionals advocate for inclusive policies that promote access to affirming care for TGD people. Resisting anti-TGD legislation is an important place to start; however, professionals and advocates should also promote gender-inclusive policies at city, state, and national levels. Advocating for non-discrimination policies that are inclusive of gender identity and expression is an essential step toward promoting healthcare access and reducing discriminatory practices. Opposing additional access and affordability barriers to healthcare for TGD youth is both an ethical imperative and grounded in sound policy reasoning. The nondiscrimination provisions of the Affordable Care Act and other federal law, such as the Title IX civil rights provisions barring discrimination based on sex, may be interpreted as protecting the rights of TGD youth to equal access to care [ 30 ].

Additionally, this study’s findings highlight the enormous challenges which insurance policy and practice can pose for families of TGD youth. The families in this study all had access to private health insurance, a status associated with fewer insurance denials of TGD-related healthcare among adults, as compared to those with public health insurance [ 31 ]. Nonetheless, families reported routine insurance challenges, indicating the importance of improving both insurance policy and practices. From a policy perspective, the challenges families faced may reflect the important state and regional differences which motivated the present study’s attention to experiences in a Midwestern state. Current data on state-level TGD exclusion and inclusion in health insurance coverage indicate that nearly all Midwestern and Southern states do not have policies requiring coverage of TGD-related healthcare by private health insurance companies [ 32 ]. Moreover, state Medicaid policy in several Midwestern and Southern states explicitly excludes TGD healthcare coverage [ 32 ]. With many states’ policies to draw on as models, the clear policy implication is to expand bans on TGD exclusion from private and public health insurance coverage.

In addition to policy change, insurance-related practices emerged as a barrier to families, suggesting the importance of extending education and training to people who work with insurance claims. This might include healthcare organizations’ billing department employees and insurance companies’ customer service staff. While these are not the clinicians who often have direct contact with TGD youth, their work in coding, checking, and resolving insurance issues requires sufficient education and training to understand the experiences and healthcare needs of TGD youth and therefore interpret and process insurance claims correctly.

At the practice level, all participants in this study noted a lack of training for medical and mental health providers related to working with TGD people. As providers become more aware of, and more TGD youth access healthcare services for other healthcare needs, such as emergency room services, the need for training for all medical personnel will continue to expand. Eisenburg et al. [ 33 ] advocated for physical and healthcare provider training on a regular basis, and creating a system for tracking who has been trained and who is willing to provide support for TGD youth. This would help not just with training healthcare professionals but with providing resources for families to identify potential doctors or clinicians for their child. Training should consist of topics such as TGD-affirming language, debunking myths about TGD people and youth, and other medically relevant resources [ 33 , 34 ]

Relatedly, a critical practice implication of this research is a greater need for access to TGD-affirming resources. Physicians, mental health providers, and other groups such as LGBTQ+ community organizations should create and sustain a TGD-specific resource guide [ 33 ]. Such a guide can support both providers and families with finding affirming and accessible healthcare resources, reducing time spent seeking resources, helping providers make referrals to affirming providers, and providing autonomy to TGD youth who might not have familial support. This type of guide could be similar to resource guides present in large cities and urban areas, but at the county level. Additionally, the resource guide should be put into a pamphlet or brochure to ensure access for people with limited or no internet access.

Given our focus on youth, it is critical to discuss the importance of medical decision-making for TGD people under eighteen. Clark and Virani [ 34 ] explored the ethical concerns of providing medical care for TGD youth and found that TGD youth have the individual capacity to make decisions related to their own gender care. Importantly, the age of consent for medical treatment may vary by state and medical intervention, creating a potential barrier for access to affirming care. Even providers skilled in TGD care should expand their knowledge of frameworks such as positive youth development and how it intersects with TGD justice and empowerment [ 34 ].

Finally, there are important implications for research to note. We focused our study on one state in the Midwest; future research should continue to explore understudied geographic areas, including the Midwest, but also rural communities, the Southern U.S., and relevant global contexts. Additionally, future research should consider how to promote active and inclusive participation from participants while also generating findings that are more generalizable to larger groups of TGD youth. Survey methods that compare the experiences of TGD youth across states with varying policy contexts and sociopolitical environments may also be useful. Finally, innovative and less oft used methods, such as multiple case studies, provide researchers with tools to explore healthcare and health experiences with TGD and other marginalized youth in unique and nuanced ways. It may be helpful to use this type of method with states or healthcare systems as the ‘cases’ to better understand TGD youth’s experiences within these different contexts.

5. Conclusions

Numerous studies have shown that TGD youth face multiple barriers to accessing gender-affirming care. This study explored those access-oriented and gender-affirming-care-oriented barriers for white TGD youth in the Midwest who have supportive families. Even with supportive and financially stable families, these families identified barriers to accessing gender-affirming care. These barriers included a lack of access to physicians, accessing gender-affirming care financially and geographically, a lack of information and resources about gender-affirming care, and safety concerns of accessing gender-affirming care. Families identified a lack of affirming care as a barrier to access when attempting to access information on healthcare providers with knowledge about or referrals for gender-affirming care for TGD youth, when seeking information or referrals from healthcare providers, and when required to engage gendered space to access gender-affirming care. These barriers present important implications for practice and further research.

Author Contributions

Conceptualization, M.S.P., T.D.M.; methodology, M.S.P., T.D.M.; formal analysis, M.S.P., T.D.M., D.H., J.A.; writing—original draft preparation, M.S.P., J.A., M.M.C.T., I.S.; writing, T.D.M., D.H.; supervision, M.S.P.; project administration, M.S.P.; funding acquisition, M.S.P. All authors have read and agreed to the published version of the manuscript.

This study was funded by the University of Kansas General Research Fund. The University of Kansas School of Social Welfare Research Office provided funding for the open-access fees.

Institutional Review Board Statement

The study was conducted according to the guidelines of the Declaration of Helsinki, and approved by the Institutional Review Board of The University of Kansas (protocol code 144088 and 6/7/2019).

Informed Consent Statement

Informed consent was obtained from all subjects involved in the study.

Data Availability Statement

Conflicts of interest.

The authors declare no conflict of interest. The funders had no role in the design of the study; in the collection, analyses, or interpretation of data; in the writing of the manuscript, or in the decision to publish the results.

Publisher’s Note: MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

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Braverman dropping Windrush measures was unlawful, court told

Then home secretary’s decision in January 2023 to drop pledges was discriminatory, high court hears

A decision made by the former home secretary Suella Braverman to drop three recommendations intended to repair some of the “monumental harm” done to the Windrush generation was unlawful, the high court has been told.

The Home Office committed itself to a comprehensive improvement programme in response to the Windrush scandal , which had a severely discriminatory impact on a cohort of people who had lived in the UK since childhood, many of whom were arrested, detained, removed from the UK, or sacked from their jobs, made homeless and denied NHS treatment, the court heard.

The abandonment of key reform pledges was discriminatory and was one of many examples of broken promises made by the government to the Windrush generation, the court was told.

Windrush victim Trevor Donald, 68, was caught up in a “dystopian nightmare” when he found himself stranded in Jamaica for nine years after travelling back to the country that he had left 43 years earlier as an 11-year-old. Donald had attempted to secure a UK passport when his mother was critically ill in 2010, but was unable to get one, and his mother died in Jamaica before he was able to travel to visit her.

He chose to return to the island for her funeral, using emergency travel documents but was subsequently denied permission to return home until British officials accepted that he had the right to live in the UK, after the exposé of the Windrush scandal; he was allowed back to Britain in 2019.

In the interim, he lost his council flat, and his relationships with his children were damaged. He was only finally granted British citizenship in January 2022. He is bringing a legal claim against the Home Office, alleging unlawful discrimination in the decision not to proceed with all of the recommendations, which were designed to make sure there could be no repeat of the scandal.

As a result of the Windrush row, in which thousands of legal UK residents were misclassified as illegal immigrants, an independent review was commissioned from the solicitor Wendy Williams to establish what had caused the scandal and to ensure that it could never be repeated. All 30 recommendations for Home Office reform were accepted by the former home secretary Priti Patel.

But subsequently Braverman decided not to implement a commitment to organise a programme of reconciliation events, with meetings between members of the Windrush generation and senior Home Office staff and ministers so they could articulate the impact of the scandal on their lives (recommendation 3).

Braverman also decided not to appoint a migrants’ commissioner, who was going to be responsible for identifying systemic concerns and to act as an advocate for migrants (recommendation 9) and she declined to change the remit of the independent chief inspector of borders and immigration, with a view to giving the role more power (recommendation 10).

Phillippa Kaufmann KC, acting for Donald, said Home Office staff became uneasy in the summer of 2022 when it became clear that despite repeated commitments from ministers that all 30 recommendations were being implemented, little progress was being made with some of them. One official warned that continued claims that the department was progressing with all recommendations risked going “against the civil service value of ‘honesty’” and recommended that staff needed to “amend our public lines to reduce the risk of the department being seen as ‘lying’”.

Nicola Braganza KC, for the Black Equity Organisation (BEO), which is supporting the action, said: “This decision – breaking a clear and repeated promise and public commitment – and the way in which it was taken, without due consultation, left Mr Donald, BEO and members of the Windrush and black communities feeling ‘extremely disappointed’, ‘shocked and angered’ and ‘betrayed’.”

A petition signed by more than 53,000 people was delivered by BEO to Downing Street last April, asking the Home Office not to abandon the recommendations.

Arguing that the decision represented direct discrimination against Donald and other black and Asian communities, Braganza added: “The abandonment of the recommendations, designed to redress the historic mistreatment of the Windrush generation, is another example of the broken promises that particularly the Windrush cohort has faced, and that white British citizens have not and would not be subjected to.”

Edward Brown KC, acting for the Home Office, said the department was not obliged to implement a policy “which it no longer considers to be in the public interest”. He said Williams’ “recommendations were not legally binding and there was no obligation on the government to implement the recommendations”.

The hearing before Mrs Justice Heather Williams is due to conclude on Wednesday with a decision expected in writing at a later date.

• Windrush scandal
• Immigration and asylum
• Suella Braverman
• Commonwealth immigration

More on this story

London vigil marks six years since exposure of Windrush scandal

Windrush victim says Home Office ‘waiting for us to die off’ before paying compensation

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Do you really think ministers will get justice for Post Office victims? Ask the Windrush families and think again

Actors, musicians and campaigners call for faster Windrush compensation

Windrush payouts remain elusive after four years of scheme

Windrush generation: hundreds ‘sent back to Caribbean from UK hospitals’

Home Office’s Windrush payout scheme needs urgent reform, study finds

Home Office course tells immigration staff to show more empathy

‘Like a blocked gate I can’t climb over’: a Windrush victim’s DWP impasse

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Tickle vs Giggle: In a world where transgender people are under attack, this is a test case for Australia

Around the world, the human rights of transgender people are under attack. Media reports of trans women being vilified, excluded and discriminated against are frequent, and the consequences of this rise in hatred towards trans people can be deadly .

In the United States, animosity towards trans people is reaching fever pitch with 42 of the 50 states introducing laws that seek to limit trans people’s access to healthcare, participation in sport, use of bathrooms, and serving in the military, as well as censoring education about gender identity.

There’s increasing concern that a US-style anti-trans campaign is underway in Australia. This week, a spotlight was shone on these issues in the Federal Court, where a trans woman, Roxanne Tickle, has taken a women-only social media platform to court for discrimination.

Roxanne Tickle, a transgender woman, was banned from female-only social media platform Giggle for Girls. She's suing the app in the first Federal Court case alleging gender identity discrimination. https://t.co/ch4EDz3yjb — SBS News (@SBSNews) April 10, 2024

This case is providing the court with a rare opportunity to determine the extent to which the Sex Discrimination Act protects a trans woman from discrimination on the basis of their gender identity. Although the act was amended more than a decade ago to prohibit discrimination on such a basis, this is the first time these laws are being tested in court.

Read more: Dave Chappelle has built a reputation for ‘punching down’ on trans people – and now he’s targeting disabled people

What’s the case about?

Section 22 of the Sex Discrimination Act reads:

“... it is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding […]”

Tickle is asking the Federal Court to find that excluding her from the Giggle for Girls app breached this section and another in the Sex Discrimination Act.

Tickle, whose birth certificate designates her sex as female, following her transition from male to female, downloaded the app, which is marketed as a platform exclusively for women to share experiences and speak freely in a “safe space”.

To access the app, Tickle had to upload a selfie. Artificial intelligence (AI) assessed the photo as being of a woman, and Tickle was given access to the app.

However, seven months later, the chief executive of Giggle for Girls, Sally Grover, blocked Tickle from using the app on the basis that she was male. She stated :

“I looked at the onboarding selfie and I saw a man. The Al software had let them through, thereby making a mistake that I rectified.”

What legal issues are up for debate?

The case highlights the distinction between sex discrimination and gender identity discrimination.

“Sex” is not defined in the Sex Discrimination Act. It’s a term that is used to refer to whether a person is male, female or another non-binary status. It’s assigned at birth according to biological attributes that are primarily associated with physical and physiological features.

Although some people don’t agree, a person’s sex is not fixed and can be changed, as reflected in the language of section 32I of the NSW Births, Deaths and Marriages Registration Act. It states:

"... a person the record of whose sex is altered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered.”

Grover evidently sees a person’s sex as immutable. Tickle’s barrister put it to Grover that “a transgender woman who had a female birth certificate, hormone therapy, breasts, gender affirmation surgery, wore makeup and women’s clothes, had a woman’s hairstyle and used women’s facilities, […] is a woman in our society.” Grover replied: “I don’t agree.”

Gender refers to a person’s personal and social identity – how they feel, present, and are recognised within the community. It’s a social construct, and varies between cultures .

A person’s gender may be reflected in outward social markers, including their name, outward appearance, mannerisms and dress. A trans person’s gender identity does not correspond with the gender expected of them by society, given the sex assigned to them at birth.

Tickle’s claim is that she was discriminated against on the basis of her gender identity. She asserts that she was treated less favourably than cisgender women (women whose gender identity corresponds with their sex assigned at birth), because of her gender identity. That is, because she’s a trans woman.

Read more: What's going on with the wave of GOP bills about trans teens? Utah provides clues

Giggle for Girls and Grover are defending the proceedings on the basis their refusal to allow Tickle to use the app constituted lawful sex discrimination.

They say the app counts as a “special measure” under a different section of the Sex Discrimination Act, because it helps advance equality between men and women, and therefore they’re allowed to exclude men. Since Grover perceives Tickle to be a man, she submits that excluding Tickle from the app was lawful as a special measure.

These arguments are contrary to the submissions made to the court by the Sex Discrimination Commissioner ,Anna Cody, who, as a “friend of the court”, was permitted to make submissions about how the act should be interpreted.

The commissioner submitted :

“... the Court need only conclude that, for a person to be of the female ‘sex’, it is sufficient if that sex is recorded on the person’s birth certificate and/or they have undergone gender affirming surgery to affirm their status as female.”

That is the case for Tickle.

Cody also noted the Sex Discrimination Act was amended to prohibit discrimination on the basis of gender identity, to provide “maximum protection for gender-diverse people”.

The evidence, as reported , suggests Tickle, as a trans woman, was treated differently to how the respondents treated people with a different gender identity, namely cisgender women. This is contrary to the purpose of the act.

We will await the court’s decision with interest. Depending on the outcome, we may see Australia going down a very different path to the anti-trans trajectory the US is currently on.

Read more: Will things be better for LGBTIQ+ people under Labor? Here's what the new government has promised

This article originally appeared on The Conversation .

• Federal Court
• Human rights
• Transgender
• Human rights law
• Trans rights
• Federal Court of Australi
• Anti-trans legislation
• Roxanne Tickle
• Giggle For Girls
• sexual discrimination

Paula Gerber

Professor of Law

The stigma of being queer in Southeast Asia

Sexual and gender-minority people in Asia experience unique cultural stressors, and high levels of depression, but one type of therapy is holding promise.

Anti-trans hate: How do we make sure Australia doesn’t go down the same path as the US and UK?

The rights of trans people have become a highly divisive political issue in the US and UK. Recent events underline how we must be proactive in ensuring Australia doesn’t mirror their transphobic environments.

How the legal system impacts LGBTQ+ family violence victim-survivors

More research is needed on the legal processes and experiences of LGBTQ+ victim-survivors when seeking protection from abusive partners or family members.

Why queer visibility in STEM matters

Acknowledgement of being a queer-friendly workplace, and supporting opportunities for allies to learn, are integral to ensuring that LGBTQIA+ people feel safe and welcomed.

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Ojai, California – America is running short on veterinarians — and that could lead to problems for pets.

A recent study by Mars Veterinary headquartered in Vancouver, Washington shows that by the year 2030, there could be 15,000 fewer vets than needed to care for pets nationwide.

It’s common these days for people to schedule an appointment for their pets — and then wait weeks, if not months, for their animals to be seen. 

This goes for both general and urgent care needs.

“Especially since COVID, I’ve never seen emergency rooms have to turn people away, and in these cases, they don’t always have a veterinarian on staff in the emergency room because of shortages,” said Dr. Christina Sisk, Humane Society of Ventura County’s director of veterinary services in California.

Forty-seven states are facing some sort of veterinarian shortage, and the high cost of vet school doesn’t help the case.

“Most vets are graduating with about $160,000 in student loans,” said Sisk.

“Once they graduate, they want to start repaying those loans, and so they’re going to look for more lucrative jobs in cities and things like that. Working at municipal shelters and nonprofits are not going to be nearly as lucrative as private practice.”

Sisk was the only vet at her Humane Society location for several years until last autumn.

“Last fall, the board of directors said, ‘We need to be a bigger part of the solution, so let’s hire another vet if we can,’” said Humane Society of Ventura County executive director Eric Knight.

The shelter is also sending workers into the community to offer low-cost vaccinations to animals.

“When you talk about barriers to access to veterinary care, the first thing that comes to mind [is] finance — which is very important, but you’re also talking about geography,” said Knight.

“While we are close to some large populations, we’re a little bit further from others,” he also said.

The Humane Society says that teaching the community to be a part of the solution by getting their pets spayed and neutered can help lower the demand for vet services. 

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Hot Oceans Worsened Dubai’s Dramatic Flooding, Scientists Say

An international team of researchers found that heavy rains had intensified in the region, though they couldn’t say for sure how much climate change was responsible.

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By Raymond Zhong

Scenes of flood-ravaged neighborhoods in one of the planet’s driest regions stunned the world this month. Heavy rains in the United Arab Emirates and Oman submerged cars, clogged highways and killed at least 21 people. Flights out of Dubai’s airport, a major global hub, were severely disrupted.

The downpours weren’t a total surprise — forecasters had anticipated the storms several days earlier and issued warnings. But they were certainly unusual.

Here’s what to know.

Heavy rain there is rare, but not unheard-of.

On average, the Arabian Peninsula receives a scant few inches of rain a year, although scientists have found that a sizable chunk of that precipitation falls in infrequent but severe bursts, not as periodic showers. These rains often come during El Niño conditions like the ones the world is experiencing now.

U.A.E. officials said the 24-hour rain total on April 16 was the country’s largest since records there began in 1949 . And parts of the nation had already experienced an earlier round of thunderstorms in March.

Oman, with its coastline on the Arabian Sea, is also vulnerable to tropical cyclones. Past storms there have brought torrential rain, powerful winds and mudslides, causing extensive damage.

Global warming is projected to intensify downpours.

Stronger storms are a key consequence of human-caused global warming. As the atmosphere gets hotter, it can hold more moisture, which can eventually make its way down to the earth as rain or snow.

But that doesn’t mean rainfall patterns are changing in precisely the same way across every part of the globe.

In their latest assessment of climate research , scientists convened by the United Nations found there wasn’t enough data to have firm conclusions about rainfall trends in the Arabian Peninsula and how climate change was affecting them. The researchers said, however, that if global warming were to be allowed to continue worsening in the coming decades, extreme downpours in the region would quite likely become more intense and more frequent.

Hot oceans are a big factor.

An international team of scientists has made a first attempt at estimating the extent to which climate change may have contributed to April’s storms. The researchers didn’t manage to pin down the connection precisely, though in their analysis, they did highlight one known driver of heavy rain in the region: above-normal ocean temperatures.

Large parts of the Indian, Pacific and Atlantic Oceans have been hotter than usual recently, in part because of El Niño and other natural weather cycles, and in part because of human-induced warming .

When looking only at El Niño years, the scientists estimated that storm events as infrequent as this month’s delivered 10 percent to 40 percent more rain to the region than they would in a world that hadn’t been warmed by human activities. They cautioned, however, that these estimates were highly uncertain.

“Rainfall, in general, is getting more extreme,” said Mansour Almazroui, a climate scientist at King Abdulaziz University in Jeddah, Saudi Arabia, and one of the researchers who contributed to the analysis.

The analysis was conducted by scientists affiliated with World Weather Attribution, a research collaboration that studies extreme weather events shortly after they occur. Their findings about this month’s rains haven’t yet been peer reviewed, but are based on standardized methods .

The role of cloud seeding isn’t clear.

The U.A.E. has for decades worked to increase rainfall and boost water supplies by seeding clouds. Essentially, this involves shooting particles into clouds to encourage the moisture to gather into larger, heavier droplets, ones that are more likely to fall as rain or snow.

Cloud seeding and other rain-enhancement methods have been tried around the world, including in Australia, China, India, Israel, South Africa and the United States. Studies have found that these operations can, at best, affect precipitation modestly — enough to turn a downpour into a bigger downpour, but probably not a drizzle into a deluge.

Still, experts said pinning down how much seeding might have contributed to this month’s storms would require detailed study.

“In general, it is quite a challenge to assess the impact of seeding,” said Luca Delle Monache, a climate scientist at the Scripps Institution of Oceanography in La Jolla, Calif. Dr. Delle Monache has been leading efforts to use artificial intelligence to improve the U.A.E.’s rain-enhancement program.

An official with the U.A.E.’s National Center of Meteorology, Omar Al Yazeedi, told news outlets that the agency didn’t conduct any seeding during the latest storms. His statements didn’t make clear, however, whether that was also true in the hours or days before.

Mr. Al Yazeedi didn’t respond to emailed questions from The New York Times, and Adel Kamal, a spokesman for the center, didn’t have further comment.

Cities in dry places just aren’t designed for floods.

Wherever it happens, flooding isn’t just a matter of how much rain comes down. It’s also about what happens to all that water once it’s on the ground — most critically, in the places people live.

Cities in arid regions often aren’t designed to drain very effectively. In these areas, paved surfaces block rain from seeping into the earth below, forcing it into drainage systems that can easily become overwhelmed.

One recent study of Sharjah , the capital of the third-largest emirate in the U.A.E., found that the city’s rapid growth over the past half-century had made it vulnerable to flooding at far lower levels of rain than before.

Omnia Al Desoukie contributed reporting.

Raymond Zhong reports on climate and environmental issues for The Times. More about Raymond Zhong