On Friday, February 14, 2025, the United States Department of Education (DOE) Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) setting out its interpretation of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, ethnicity, and national origin, and the Equal Protection Clause of the United States Constitution, which provides that all people are entitled to equal protection of the laws. As described below, a portion of the DCL reinforces settled nondiscrimination law, which all education institutions are familiar with. However, the DCL then takes an expansive interpretation of nondiscrimination law beyond what has been established by the Supreme Court, and states that OCR will take aggressive action to enforce its interpretation of the law. The DCL creates legitimate concerns for many educational institutions that are committed to improving outcomes for all students through legally compliant, research-based equity initiatives.
The DCL’s legal analysis starts with the uncontroversial statement that treating people differently on the basis of race is a violation of law. The DCL then cites the Supreme Court’s decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), which prohibited the use of race in admissions decisions, and puts forth OCR’s interpretation that the SSFA opinion “applies more broadly” to “all other aspects of student, academic, and campus life,” including hiring, promotion, administrative support, discipline, etc. This broad statement of the applicability of the SSFA reasoning is currently unsupported by case law. Other aspects of the DCL appear to conflict with legal interpretations of Title VI regarding anti-discrimination, which will undoubtably lead to legal challenges if OCR takes actions against educational institutions based on this interpretation. For instance, the DCL asserts that “It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.” In fact, in 2024, the Supreme Court allowed to stand a public magnet school’s policy to stop using standardized tests in admissions, which led to an increase in the diversity of its student body, when the Supreme Court declined to review a lower court decision permitting the practice.
This DCL, as well as the several Executive Orders and other executive actions targeting diversity, equity, and inclusion, contains both broad and ambiguous statements. This creates challenges for educational entities seeking to comply with the DCL. For instance, the DCL makes broad, non-specific statements that DEI programs “discriminate in less direct, but equally insidious ways” and that the DOE “will no longer tolerate the overt and covert racial discrimination that has become widespread on this Nation’s educational institutions.” This language implies that a school’s equity mission, supported by DEI programs that operate in a nondiscriminatory manner, nonetheless may violate OCR’s interpretation of the law. For example, under current law, teaching about our country’s history of discrimination or adopting research-based programs that are designed to improve outcomes for students of color, are both permissible. The DCL, however, creates fear and confusion about whether OCR will consider such practices to be in violation of its interpretation of the law.
The DCL advises that OCR “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.” It is unclear what steps OCR intends to take to enforce the DCL. In recent weeks, various entities receiving federal grants have been required to sign specific attestations regarding compliance with civil rights law and, potentially, some executive orders. Some of those requirements are already subject to litigation. It may be that DOE intends to establish similar requirements for receipt of the federal funds it administers. We are keeping a close eye on enforcement actions from DOE, as well as likely litigation resulting from such enforcement actions.
The DCL states “All educational institutions are advised to: (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. Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.” The DCL also warns that “programs that teach students who belong to particular racial groups bear unique moral burdens that others do not” will run afoul of ODE’s interpretation. Again, most educational institutions seek to conscientiously operate within anti-discrimination law and have policies, trainings, and contracts in line with the law. However, in light of the DCL, institutions may want to assess their programming. If education entities have concerns or questions about specific programs and whether they comply with the law, they should confer with their legal counsel promptly.
As always, the Miller Nash education team will continue to closely monitor developments around this DCL and other issues impacting educational institutions. Please contact any member of our team.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
