On Friday, February 14, 2025, the Department of Education issued a Title VI Dear Colleague Letter that focused on the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard. The letter explained ED’s current interpretation that “[a]lthough SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly,” and thus prohibits “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 letter broadly describes DEI programs as cover for discriminatory practices and reiterates the prohibition of practices that seem race-neutral but are “motivated by racial considerations.” For example, the letter says it is prohibited to “eliminat[e] standardized testing to achieve a desired racial balance or to increase racial diversity.”
Note the shift in ED’s interpretation since the 2023 ED and DOJ joint guidance (attachments below) about the SFFA decision, which welcomed stated goals and missions toward diversity of the student body. That guidance has not been formally rescinded nor has it been archived, but it is currently missing from the DOJ and ED. The 2023 guidance described lawful means to attract and retain a diverse student body, including targeted outreach and recruitment, pathway programs, evaluating admissions requirements, considering yield and retention strategies, and more. ED and DOJ wrote: “In particular, nothing in the SFFA decision prohibits institutions from continuing to seek the admission and graduation of diverse student bodies, including along the lines of race and ethnicity, through means that do not afford individual applicants a preference on the basis of race in admissions decisions.”
The current DCL warns institutions that ED will begin assessing institutions’ compliance starting 14 days after the letter (Feb 28), threatening a loss of federal funding from those not in compliance. The response of education associations was swift. On February 25, the American Federation of Teachers, American Federation of Teachers – Maryland, and American Sociological Association filed a complaint for declaratory judgment and injunctive relief regarding the February 14 DCL.
Then on February 28, the Department issued “FAQ About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act,” following up the DCL with a series of 15 questions and answers. The FAQ reiterates points from the DCL and acknowledges that “While the facts of the case before the Supreme Court [in SFFA] were specifically about racial preferences in university admissions, the Court applied broad reasoning to its decision, which has broad implications for race-based policies in education generally.” The FAQ interprets Title VI and SFFA as prohibiting “school-sponsored or school-endorsed racially segregated aspects of student, academic, and campus life, such as programming, graduation ceremonies, and housing.” ED likens such separate activities to segregation outlawed under Brown v. Board of Ed. The FAQ also acknowledges that “educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate or recognize historical events and contributions, and promote awareness” would not violate Title VI so long as they “do not engage in racial exclusion or discrimination.” The FAQ identifies actions that would (or would likely) violate Title VI, such as:
- “mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes;”
- “requiring students to participate in privilege walks;”
- an elementary school “sponsor[ing] programming that acts to shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors or relatives in other areas of the world;” and
- “craft[ing] essay prompts in a way that require applicants to disclose their race.”
The FAQ cites to previous guidance, including the 1994 Investigative Guidance on Racial Incidents and Harassment and the 2003 Dear Colleague Letter on the First Amendment. Neither the DCL and FAQ have the force or effect of law, as noted in their footnotes.
The DCL is here.
The FAQ is here.
The following documents are no longer accessible on the DOJ or ED’s websites, but can be accessed here: