On February 14, 2025, the Acting Assistant Secretary for Civil Rights at the Department of Education, Craig Trainor, published a Dear Colleague letter that “explains and reiterates existing legal requirements” that apply to educational institutions regarding unlawful race-based discrimination. The letter also notes the Department’s intent to “take appropriate measures to assess compliance ... based on the understanding embodied in this letter beginning no later than 14 days from today’s date” – i.e., by February 28, 2025. The letter appears to apply to “all educational institutions,” expanding the scope of enforcement beyond the typical guidance for institutions receiving “federal funding” to all institutions receiving “financial assistance” from the Department, which may be read to include institutions whose students receive student aid.
While the letter does not legally require any action by institutions and, by its own terms, only “provides notice of the Department’s existing interpretation of federal law,” it does advise that institutions take the following actions: “(1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.”
As to the first action item, the letter reveals the Department’s interpretation of what is required to comply with existing civil rights law, particularly Title VI, the Equal Protection Clause, and the Supreme Court’s decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) (the SFFA decision). Notably, and as the letter explicitly states, the Department interprets Title VI and the Equal Protection Clause “more broadly” than the Supreme Court. Indeed, while the Supreme Court limited its SFFA decision to admissions programs, the Department’s letter discusses “using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing graduation ceremonies, and all other aspects of student, academic, and campus life.” Particularly by expanding to hiring, promotion, and compensation, the Department’s interpretation breaks from Supreme Court precedent, which outlines an entirely different legal test for lawful affirmative action programs in employment. Additionally, the Supreme Court’s SFFA decision recognized that, per long-standing Supreme Court precedent not overruled by the SFFA decision, institutions have a compelling interest in achieving the educational benefits of diversity. The Department’s letter, on the other hand, states that “nebulous concepts like race balancing and diversity are not compelling interests,” seemingly taking the position that achieving diversity is not a compelling interest in any context.
Although the letter outlines a “simple” test that “the educational institution violates the law” if it “treats a person of one race differently than it treats another because of that person’s race,” it leaves many unanswered questions as to the scope of the Department’s interpretation of applicable law and the actions it will take to enforce that interpretation. The letter promises that “legal guidance will follow in due course,” but given the Department’s stated intention to take enforcement action – or at least “appropriate measures to assess compliance” – no later than February 28, 2025, institutions will undoubtedly be parsing the letter for cues as to the Department’s enforcement agenda, including the letter’s suggestion that the Department will take the position that the following practices are noncompliant with Title VI and Equal Protection:
- “segregation by race at graduation ceremonies and in dormitories and other facilities”
- statements or messaging that “the United States is built upon ‘systematic and structural racism’”
- programs “under the banner of ‘diversity, equity, and inclusion’ (‘DEI’)”
- “use [of] students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race”
[Note, however, that the Supreme Court explained that “nothing in [the SFFA] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” (600 U.S. at 230).]
- “eliminat[ing] standardized testing to achieve a desired racial balance or to increase racial diversity”
- “DEI programs” that “preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not”
- “reliance on third-party contractors, clearinghouses, or aggregators ... in an effort to circumvent prohibited uses of race.”
The Department’s imminent enforcement action may provide more clarity to educational institutions regarding its interpretation of governing law. The letter leaves many open questions, including:
- Does the Department’s interpretation of Title VI apply to funding for student organizations or affinity groups? If so, how will that impact student governance and an institution’s role in funding decisions typically delegated to students?
- Does the Department’s interpretation of Title VI make diversity recruitment and retention strategies, which many believed still permissible after the SFFA decision, impermissible?
It is also likely that the Dear Colleague letter itself, and related enforcement action, will be met with legal challenges, as we have seen with many of President Trump’s executive orders (EOs) and related agency actions. Indeed, Trump’s EO “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” is currently the subject of a lawsuit seeking a court order to enjoin its enforcement, including through executive agencies like the Department of Education, which is a named defendant in the lawsuit. And, while not cited in the letter, the EO does require the Department to “issue guidance ... regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).” Future legal challenges to the Department’s enforcement of the guidance in the letter may seek to enjoin enforcement by arguing that the Department’s guidance and enforcement steps are unconstitutional violations of free speech and the separation of powers. The letter, and the Department’s enforcement of the same, also may face legal challenges because it exceeds the scope of the Supreme Court holding upon which it relies, and because, unlike the administration’s DEI EO, which seeks to prohibit “illegal DEI,” the letter asserts in sweeping fashion that all DEI-related activities are illegal.
In the meantime, while awaiting further action and guidance from the Department (and any related legal action that may challenge it), institutions should work closely with counsel to internally audit their programs and assess risk regarding enforcement action from the Department in light of the letter.
Client Alert 2025-051
