In the past several months, there has been a sharp rise in reports of antisemitic, Islamophobic, and other hate-based incidents at K-12 schools. Reported threats against faith communities, particularly Jewish and Muslim communities (as well as those perceived to be in those communities) have been increasing, the Federal Bureau of Investigation has noted.

On the heels of these reports, state and federal officials have sought to codify and outline the legal responsibilities of public and private institutions for providing a harassment-free environment. Just last week, Georgia Governor Brian Kemp signed a bill into law defining antisemitism. The definition will be used when an agency is enforcing various laws and regulations that prohibit discrimination based on race, color, religion, or national origin.

In November, the U.S. Department of Education outlined in a "Dear Colleague" letter the legal obligations schools have in providing students an environment free from discrimination based on race, color, and national origin, including shared ancestry or ethnic characteristics. The Department of Education urged schools to remember their legal obligations under Title VI of the Civil Rights Act of 1964. The key for schools is that students have a right to learn without discrimination.

Finally, last May, the Equal Employment Opportunity Commission (EEOC) issued renewed guidance to employers on antisemitism. This guidance addresses how employment discrimination based on religion — which could include antisemitism — violates Title VII of the Civil Rights Act of 1964.

In light of these new laws and guidance, it is important for schools to remember the following key takeaways from state law and federal guidance.

Key Takeaways for Schools

• Georgia’s House Bill 30 defines antisemitism as "a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities."
   
• The new definition is intended to be applied when an agency is authorized or required to enforce criminal or noncriminal laws or regulations that prohibit discrimination on the basis of race, color, religion, or national origin. It should also be considered for penalty enhancements for hate crimes.
   
• Of course, this law does not trump a student or employee’s right to free speech as defined by the law.
   
• From the U.S. Department of Education guidance, schools that receive federal financial assistance must address prohibited discrimination against students perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian. This applies to discrimination when it involves racial, ethnic, or ancestral slurs or stereotypes along with discrimination based on a student's skin color, physical features, or style of dress that reflects both ethnic and religious traditions.
   
• Students are protected from discrimination based on their actual or perceived shared ancestry or ethnic characteristics. They are also protected on actual or perceived citizenship or residency in a country with a dominant religion or distinct religious identity.
   
• Employment discrimination based on antisemitism can establish a Title VII violation.
   
• Harassment includes verbal and physical conduct and does not have to be directed at a particular person.

If the misconduct is so severe the student cannot benefit or participate from the learning activity in school, the Department of Education labels that as a hostile environment. Failure to heed recommendations from the Department of Education can result in investigations by the Office of Civil Rights (OCR).

Recently, an OCR investigation in Delaware resulted in a school district having to revise and/or develop internal policies and procedures about harassment issues and conduct annual trainings and informational programs for staff and students, along with numerous other resolution requirements. The investigation occurred after a student was targeted by antisemitic harassment.

It is clear that discrimination on the basis of race, color, and national origin, including shared ancestry or ethnic characteristics will be thoroughly investigated by the OCR if schools do not act quickly and consistently to address incidents.

Legal Responsibilities for K-12 Schools

Schools must also consider their legal responsibilities for ensuring a harassment-free learning environment for students and workplace for employees.

• Districts should review policies and consider specifically banning antisemitism in anti-discrimination and anti-harassment policies. School districts must also ensure there is a reporting process to ensure the district is aware of any activity that could create a hostile environment.
   
• Districts should also review training materials to ensure that staff have been properly trained on how to recognize antisemitism and any other forms of discrimination or harassment based on religion and national origin.
   
• Districts must ensure that employees and students who need accommodations for their religious practices or beliefs are provided reasonable accommodations. Appropriate support should be provided at the school level as these issues can be difficult to navigate.
   
• For any student or employee impacted by antisemitism or other form of harassment or discrimination based on their religion or national origin, school districts must ensure supports are put into place.
   
• For school administrators, the key is to be proactive. If the appropriate policies and procedures regarding the handling of these reports are in place today, your staff will know how to address an incident when it arises. Schools and districts must remind their staff that if an incident does happen, it should be reported to the appropriate school leadership or authorities to allow an investigation to ensue.
   
• Districts must anticipate having to navigate the intersection of alleged misconduct and rights of free speech.

We have been fielding questions, for example, on student dress code violations and items that staff members are wearing that may be perceived as antisemitic or offensive. We are happy to consult with districts whenever these questions arise, as they require legal analysis and a delicate balance to ensure schools are free from harassment and discrimination while still respecting students’ and employees’ rights to freedom of speech.

Finally, districts must ensure that employees and students who report antisemitism or other types of harassment or discrimination are protected from retaliation.

For more information, please contact us or your regular Parker Poe contact. You can also subscribe to our latest alerts and insights here.