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Congress can amend Title VI to clarify if and when it prohibits religious discrimination. It could, for example, add religion as a protected category or elaborate on when religious discrimination overlaps with racial or national origin discrimination. Congress may consider how other antidiscrimination laws approach prohibitions on religious discrimination, particularly given that a large number of sectarian schools accept federal funding. Other antidiscrimination laws contain exceptions for certain conduct by at least some religious institutions, including sectarian schools. Title VI does not.
Since 2016, lawmakers have introduced a version of the Antisemitism Awareness Act at least eight times, as well as other bills that could cause schools, colleges, and universities to lose federal funding if they respond inadequately to antisemitism as defined by the IHRA. Congress may consider how these and similar bills interact with Title VI. The versions of the Antisemitism Awareness Act in the 118th Congress, for example, instruct ED to "take into consideration" the IHRA definition of antisemitism when enforcing Title VI, but they do not amend Title VI itself to explain if and when Title VI covers religious discrimination at all. The Antisemitism Awareness Act also does not specify whether the IHRA definition of antisemitism is to be considered in private lawsuits in addition to OCR enforcement actions.
Various approaches to combating religious discrimination at schools, colleges, and universities may also raise complex constitutional questions. In imposing obligations on sectarian schools, Congress may need to take into account First Amendment limits on applying antidiscrimination laws to religious institutions. Furthermore, lower courts have struck down some school policies prohibiting harassment or limiting access to certain speakers as vague, overbroad, or viewpoint discrimination in violation of the First Amendment. The IHRA defines antisemitism broadly—"a certain perception of Jews"—and includes some forms of criticism of Israel that courts and commentators, including an author of the IHRA definition, have suggested enjoy First Amendment protection. There may be other constitutional considerations as well. For example, laws that extend greater protection to people of one faith than to people of other faiths may face scrutiny under the Equal Protection or Establishment Clauses.
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CRS Product Type: Legal Sidebar
Topics: Education; Law, Constitution & Civil Liberties
Publication Date: 09/17/2024
Author: Graber, Abigail A.
From Congress.gov see link above.
Any attorneys want to weigh in?
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