The civil rights laws at issue extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries and museums that receive federal financial assistance from the Department.

On February 14, 2025, the United States Department of Education, Office of Civil Rights (the Department) published a “Dear Colleague Letter” (DCL) signed by Acting Secretary for Civil Rights Craig Trainor that provides guidance for all educational institutions receiving federal funding regarding impermissible diversity, equity and inclusion (DEI) practices relying on the Supreme Court decision in Students for Fair Admissions v. Harvard (SFFA), 600 U.S. 181 (2023). This DCL guidance was “designed to provide clarity to the public regarding existing legal requirements under Title VI, the Equal Protection Clause, and other federal civil rights and constitutional law principles” and follows President Trump’s January 21, 2025, Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” It additionally supplements a recent memorandum issued by United States Attorney General Pam Bondi to the U.S. Department of Justice that further attempts “to encourage the private sector to end illegal discrimination and preferences.” While the DCL states that it “does not have the force and effect of law and does not bind the public or create new legal standards,” the DCL clearly signals the likely enforcement direction that the new administration will take. Since penalties for noncompliance may include loss of federal funding in addition to other sanctions, institutions should thoroughly review the DCL with counsel. 

The civil rights laws at issue extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries and museums that receive federal financial assistance from the Department. These include all public schools and most public and private colleges and universities.

In 2023, the Supreme Court in SFFA held that the use of racial preferences in college admissions is unlawful and established a framework for evaluating the use of race by state actors and entities covered by Title VI. The Department’s guidance now sets forth a more expansive interpretation of SFFA:

Federal law thus prohibits covered entities from 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. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

The Department advised institutions to take the following three courses of action for compliance purposes and to avoid potential sanctions:

1. Ensure that their policies and actions comply with existing civil rights law and do not contain illegal DEI initiatives;
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 could be used by institutions in an effort to circumvent prohibited uses of race.

The DCL stated that the “Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding.” Therefore, institutions should work with experienced education and employment counsel to evaluate the need for or advisability of changes to their DEI initiatives in response to the DCL and related executive orders. Institutions should review and prepare strategies for compliance with this interpretation of federal policies, as well as strategies for responding to investigative and enforcement efforts under the False Claims Act or otherwise. We note that there is currently a pending lawsuit challenging the constitutionality of the DCL, American Federation of Teachers v. U.S. Department of Education (D. Md.), Case No. 1:25-cv-00628-SAG (D. Md., Feb. 25, 2025). Additionally, a recent preliminary injunction ordered in the United States District Court of Maryland does not likely impact the effectiveness of the DCL guidance, without explicit clarification by the Department and/or a court ruling.

All interested parties have the opportunity to submit public comments on the DCL to the Office of Civil Rights; institutions, other impacted organizations and individuals should do so. Experienced counsel will be able to provide advice on effective communications to the Department on this matter. Comments can be sent by email to OCR@ed.gov or by regular mail to Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, D.C. 20202.

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