On March 5, 2025, the Attorneys General of Illinois, Massachusetts, New York, California, Connecticut, Delaware, Maine, Maryland, Minnesota, New Jersey, Nevada, Oregon, Rhode Island, Vermont, and the District of Columbia issued Joint Guidance regarding the Department of Education’s February 14 Dear Colleague’s Letter (DCL) and Feb 28 Frequently Asked Questions (FAQ). This guidance is directed at institutions of higher education and K12 districts operating in these states.
The 10-page document includes an introductory memo followed by legal guidance and FAQ.
The stated purpose of the guidance is to clarify that “nothing about the federal government’s recently issued documents changes the state of the law; nor do they prohibit diversity, equity, and inclusion efforts in admissions and access to higher education or other educational settings.”
The guidance highlights sections of the DCL that seemingly extend beyond the SFFA ruling. For example, the AGs write that “a school may lawfully consider the ways in race affected a particular student’s life.” The Joint Guidance also rejects ED’s proclamation that it’s unlawful “to implement race-neutral policies in order to increase racial or other forms of diversity,” citing the Supreme Court’s encouragement of exactly such race-neutral alternatives to achieve diversity. The memo then recounts how Federal courts across the country have affirmed race-neutral admissions practices that are aimed toward diversity in the student body.
The guidance also says that the DCL “mischaracterizes DEI programs.” The AGs write about how “practices and programming that lawfully promote diversity, equity, inclusion, and accessibility” are critical to our campus communities.
In the legal guidance, the AGs restate the narrow holding in the SFFA cases and reiterate that the case “has no direct application to programs outside of higher education admissions or to admissions policies that do not use race as a factor for admissions in the same way [as in the SFFA cases].” Following the legal guidance are FAQs on institutional mission, admissions, recruitment practices, and programs.
Undoubtedly the nation is heading toward a civil rights law collision, where state civil rights laws may require protections that federal law prohibits. Generally, where federal law conflicts with state law, the federal law supersedes. But according to these AGs, there is no conflict on this issue right now, and although the DCL and FAQ include misstatements, these documents are not law.
These states are all under Democratic leadership, and so the position they’ve taken is not a surprise; still, the guidance may provide some clarity or give comfort to schools in that state seeking direction during this confusing time. A state’s interpretation of federal law will not insulate a school from federal scrutiny. At the same time, a school may determine that it is reasonable to rely on guidance from the Attorney General, and perhaps the AG’s office would be supportive or even intervene if the federal government did come calling.