Context
Universities receiving federal funds must comply with civil rights laws that provide that no person shall, on the grounds of sex, race, color, or national origin, including shared ancestry, be excluded from participation in, or denied the benefits of, or be subjected to discrimination under programs and activities that the university sponsors or promotes (see Title VI and Title IX). The federal government currently enforces these laws through the U.S. Department of Education’s Office for Civil Rights.
The University’s requirement to comply with these laws is consistent with its wholehearted and longstanding commitment to diversity, equity, and inclusion. Those values are essential to serving our community and achieving the University’s mission and they remain a priority.
Purpose
The University has developed this institutional guidance and checklist in consultation with the UW Division of the Attorney General’s Office, the President, Provost, and other senior leaders to facilitate compliance with civil rights laws and to safeguard and support our diversity, equity, and inclusion commitment in the area of University-sponsored or -promoted programs and activities.
Scope
The regulatory phrase “programs and activities” broadly covers the operations and activities of the University. This checklist is primarily designed to apply to University programs and activities such as recognized groups, fellowships, funds, endowments, prizes, unit or departmental events, and ceremonies. It also may be applicable to University contracts, partnerships, or sponsorships with external entities. Please consult with Compliance and Risk Services if you have questions.
In addition, specific and additional considerations apply to admission to the University, financial aid, scholarships, housing, and hiring/employment. Please consult on these topics with the unit indicated in the centralized resources.
Given the recent scope of federal agency enforcement action, this checklist focuses on race and sex. For questions about other legally protected classes or groups, such as members of American Indian tribes or Alaska Natives, please consult the unit indicated in the section on central resources.
Question 1
Is eligibility to join or apply limited by:
- Race, color, and/or national origin, including shared ancestry?
- Sex, including gender identity and expression, pregnancy, and sexual orientation?
Eligibility is not based on sex or race
Limiting eligibility to a cohort that is not legally protected is permissible (e.g., “first generation,” “low income,” “economically disadvantaged”) if it is not a proxy for race or sex.
In rare instances, a potential limited exception may exist for explicit, mandatory requirements in a controlling statute, regulation, contract, or grant. If such requirements appear to direct that eligibility be limited by race or sex, contact Civil Rights Compliance or the AGO and provide the controlling authority. Please note that any University resources utilized in the program or activity may need to be available to all.
Question 2
Are communications designed to be clear that the opportunity is open to all protected classes (although it may be restricted in other ways)? Communications include the name and/or description of the program or activity, website design and content, promotion, advertisement, and outreach for the opportunity.
Communications demonstrate opportunity is open to all protected classes even if the opportunity is restricted in other ways
Examples of “open to all” language are provided in the FAQ below.
The program or activity may have a stated focus or goal, as long as it is clear through both language and actions that the opportunity is open to all. Ensure that the goal is articulated accurately and specifically and the references to “open to all” are prominent. Use examples provided to review and assess. Additionally, a program or activity may have focused outreach efforts in addition to those that are widespread so long as the program or activity is clearly open and welcoming to all without regard to race or sex and is advertised as such.
Question 3
Is race or sex used as selection or decision-making criteria?
Race or sex is not used as selection or decision-making criteria
Cannot use the personal identity, e.g., the sex or race of a particular individual, as a selection factor or qualification for an opportunity or a factor in decision-making. Document selection and decision-making processes to ensure consistency and transparency.
Question 4
Do the actions of the program or activity demonstrate the opportunity is open to all protected classes?
Actions demonstrate the opportunity is open to all
Examples of “open to all” language and actions can be found in the FAQ below.
Programs and activities may not treat individuals differently or preferentially or create hostile environments based on race or sex, which may include a pattern of engaging in stereotyping or excluding or discouraging individuals from applying or participating.
FAQ
The following are examples of programs and activities with “open to all” protected classes statements. Each statement is then assessed to illustrate the impact and importance of communications, including program name, and to highlight related actions that help demonstrate inclusivity.
“This opportunity is open to all eligible persons regardless of race, sex or other identity.”
Offers a clear statement of “open to all” to confirm no one is excluded. The unit establishes and documents a consistent process for selection that is not based on protected class.
“This event is open to all first-generation students, with a goal of learning about the first-generation student experience.”
Combines open-to-all language with a specific goal of learning about the experiences of first-generation students, a group not defined by protected class.
“Open to all students, the Opportunities in STEM Program is committed to broadening and enhancing access for all students, including women and people of color, who wish to pursue careers in engineering and computer science.”
The name highlights the goal of access in the context of a program that is open to all. In addition to general marketing, the program actively recruits women and persons of color to apply but does not use race as either eligibility or selection criteria. Because communications about the goal and the group are inclusive of all, the reference to sex and race in the description is not exclusionary.
“The Prism Fellowship recognizes that diverse perspectives are essential for advancing knowledge and creating a more equitable world. It is open to all graduate students whose research critically engages with issues of race, ethnicity, indigeneity, power, and social justice, with a particular emphasis on amplifying BIPOC voices and experiences.”
The name is non-specific and inclusive, and the purpose highlights the importance of differing perspectives within a focused area of scholarship. Though the research topic emphasizes BIPOC voices, graduate students of any race are invited to apply. The fellowship is committed to inclusivity and a review of past recipients confirms the fellowship’s broad reach.
“Bridges: A Space for Jewish Connection and Understanding” is open to all and aims to create a “welcoming and inclusive space for Jewish students and others interested in fostering community, deepening understanding of Jewish culture and traditions, and building bridges of respect and solidarity across diverse backgrounds.”
The name and communications accurately describe the goal. The reference to shared ancestry is not exclusionary because the description of the goal references engagement with others. The group develops norms for participation that promote respectful interaction and dialogue.
“The Asian Pacific Islanders Employee Affinity Group’s mission is to foster a sense of community in the workplace where all employees feel seen, heard, and valued, and where API voices are amplified and contribute to the institution’s success. We welcome employees of all backgrounds, ethnicities, and identities who are interested in learning about API culture and supporting API employees.”
Though the name references a specific protected class identity, the prominent mention of the mission that focuses on inclusivity and the explicit welcome to all employees help demonstrate that the group is open to all. API employees and those who support them attend meetings regularly to connect, build relationships, and enjoy cultural celebrations.
Title VI and Title IX define “program and activity” broadly, encompassing all the operations of a college, university, or other postsecondary institution. (42 U.S.C. § 2000d-4a(2); 20 U.S.C. § 1687.)
Some UW programs and activities have additional or specific considerations not covered in the checklist and it does not apply to those. Please consult as needed with centralized resources.
The checklist does not cover intercollegiate athletics. Title IX allows for gender-segregated athletic programs. However, universities must provide equitable opportunities for participation, including resources like equipment, facilities, coaching, and travel.
The checklist does not apply to classroom-based instruction. Universities may offer courses that focus on race or sex. However, instructors may use the checklist to ensure that the criteria for selecting students for class opportunities, projects, or coursework (e.g. participation in discussion groups, readings, labs, field research) are not based on protected class.
This is a complex area involving freedom of speech and civil rights compliance. Freedom of speech generally protects a speaker’s message, even if controversial or offensive. However, organizing an event or a group that excludes individuals based on protected classes is not protected. Universities must allow protected free speech while taking all necessary steps to maintain an atmosphere that is non-discriminatory. Consult university resources for guidance. More information about free speech is available on the University’s Freedom of Expression and Community Standards website.
Government enforcement agencies maintain that universities may not advertise third-party scholarships or opportunities that limit applicants or participation based on race or sex. This is a developing legal and compliance area.
Yes, universities can collect demographic data for legitimate purposes, such as mandatory reporting or program evaluation. However, data collection must be ethical, voluntary, and respect privacy. Before requesting that an applicant or participant provide demographic information based on protected class (even if optional), the program or activity should be aware of University policies, have a clear rationale for such data collection, and a plan for how to collect and use the information. Demographic data based on protected classes (e.g., race or sex) that is collected must be retained separately from any selection or decision-making processes.