In Sweeping Letter, Ed. Dept. Says SCOTUS Ruling Applies to All Race-Conscious Programs

Late Friday night, the U.S. Department of Education’s Office for Civil Rights (OCR) put colleges on notice: stamp out all race-conscious policies and programming immediately or risk losing federal funding.

In a Dear Colleague letter, Craig Trainor, acting assistant secretary for civil rights, wrote that “institutions’ embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia.”

OCR’s letter offers an expansive interpretation of the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which banned the consideration of an applicant’s racial status. Though the so-called SFFA decision pertained only to admissions evaluations, Trainor wrote that the ruling “applies more broadly,” prohibiting institutions from considering race in “hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

OCR’s letter stakes out a broad swath of race-related institutional policies and programs that could trigger a federal investigation. Those include campus diversity, equity, and inclusion (DEI) initiatives, which, Trainor wrote, “frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not,” which can “deny students the ability to participate fully in the life of a school.”

Federal law, Trainor wrote, prohibits colleges from adopting race-neutral policies “motivated by racial considerations.” It would be unlawful, he said, for a college to nix standardized-testing requirements “to achieve a desired racial balance or to increase racial diversity.”

The Education Department plans to provide additional legal guidance in the near future. OCR’s letter said that it would begin to assess institutions’ compliance by the end of February.

Over the weekend, the Dear Colleague letter stoked outrage among some Democratic lawmakers and education advocates.

“This threat to rip away the federal funding our public K-12 schools and colleges receive flies in the face of the law,” Sen. Patty Murray, Democrat of Washington and former chair of the Senate Education Committee, said in a written statement. “While it’s anyone’s guess what falls under the Trump administration’s definition of ‘DEI,’ there is simply no authority or basis for Trump to impose such a mandate.”

PEN America, a nonprofit group that supports free speech, described the letter as “yet another twisting of civil rights law in an effort to demand ideological conformity by schools and universities and to do away with critical inquiry about race and identity.”

The Supreme Court’s decision in the SFFA case has loomed over colleges for nearly two years. But how far does its shadow extend? To what extent will a relatively narrow ruling on admissions practices at highly selective colleges end up disrupting a wide range of institutional policies and practices throughout higher education over time?

Such questions just became thornier.

“This is difficult and complicated — not susceptible to a simplistic broad brush,” Art Coleman, founding partner of EducationCounsel LLC, a firm that advises colleges on admissions policies and practices, told The Chronicle on Sunday. “There are conceptual nuggets in the letter that I think are right, like the simple premise that the SFFA decision likely extends beyond the contours of an admissions decision. I think it’s undeniably true. But that doesn’t mean that the decision extends in all settings or that the extension is a simplistic cookie cutter, as the letter seems to suggest.”

Coleman, a former deputy assistant secretary for OCR, described the letter as an overreach. “Many diversity, equity, and inclusion practices are well-designed, research-based, and legally sound,” he said. “There’s simply no federal precedent for the proposition that all diversity, equity, and inclusion practices are categorically unlawful. But that’s certainly the view that the letter seeks to convey.”

OCR’s letter states that its guidance “does not have the force and effect of law and does not bind the public or create new legal standards.” But the letter also threatens imminent enforcement of the Trump administration’s broad interpretation of federal law.

That will likely have a chilling effect on institutions, said Scott Schneider, owner and founder of Schneider Education & Employment Law, which advises colleges. “I think the argument that the SFFA decision extends to DEI programs is a weak one,” he said, “but my hunch is that many colleges will likely err on the side of extreme caution here.”

Pulling a college’s Title VI funding would be an unprecedented move. But the Trump administration has demonstrated a willingness to push beyond the boundaries of precedent. Within two days of taking office, Trump issued a sweeping federal order directing federal agencies to terminate all “discriminatory and illegal” DEI programs and activities, though the administration didn’t clarify what would make them illegal. He also ordered individual agencies to identify up to nine colleges, companies, or nonprofits for civil investigation and potential lawsuits. And it singled out prominent colleges with endowments of more than $1 billion.

OCR’s letter suggests that the administration’s scrutiny of higher education will continue. The letter’s timing — issued before the confirmation of a new education secretary and the appointment of an assistant secretary for civil rights — indicates that it was written well in advance by political operatives who’ve set their sights on colleges.

The likelihood that they use the nuclear bomb here and pull federal funding is higher under this administration than under any other in the Education Department’s history.

And the tone of the letter seems to express the depth of the administration’s animus toward DEI: “Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them — particularly during the last four years — under the banner of ‘diversity, equity, and inclusion’ ... smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”

Given all that, Schneider, an adjunct professor at the University of Texas at Austin School of Law, doesn’t take OCR’s threat to revoke federal funding lightly.

“In the past, the compliance risk was that you get a slap on the wrist, you get embarrassed publicly,” he said. “But this administration doesn’t fit into what’s historically been a conservative approach, which has always been deferential to institutional decision-making. The likelihood that they use the nuclear bomb here and pull federal funding is higher under this administration than under any other in the Education Department’s history.”

Coleman, at EducationCounsel, said that colleges should ensure that they have conducted an extensive audit of all enrollment and other institutional practices that confer benefits and opportunities to students based on their racial and ethnic status. Institutions, he said, should make sure that those practices are fully inclusive — or that there is a sufficiently strong foundation for an argument that their policies further a compelling interest that federal courts will recognize.

“There’s the absolute need at this moment in time to assess the breadth of your diversity portfolio in light of mission aims and imperatives, and to determine where and how you are prepared to lead and draw the line and challenge any overreach by this administration, which we can anticipate based on actions in the past few weeks.”

Students for Fair Admissions prevailed in the nation’s highest court. But the extent of its victory is still under debate. And that debate is far from over.

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Eric Hoover writes about the challenges of getting to, and through, college. Follow him on Twitter @erichoov, or email him, at eric.hoover@chronicle.com.