By Catherine Brown, Senior Director, Policy and Advocacy
Reading time: Five minutes
On Friday, February 14, the Office for Civil Rights (OCR) at the US Department of Education (ED) issued a Dear Colleague letterprohibiting schools that receive federal aid, including preschools, elementary, secondary, and postsecondary educational institutions, as well as state agencies, from using race-based considerations in any aspect of programming or operations. The
letter claims that higher education institutions’ “embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia…[and that] schools have routinely used race as a
factor in admissions, financial aid, hiring, training, and other institutional programming” illegally.
To address this issue, ED prohibits educational institutions from considering race in any way. “If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution
violates the law,” the letter states. It continues, “Federal law thus prohibits…using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing graduation
ceremonies and other aspects of student, academic and campus life.” The Dear Colleague letter also prohibits relying on proxies for race. It also attacks diversity, inclusion, and accessibility programs, claiming they preference one racial group over
another and “teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability
to participate fully in the life of a school,” it claims.
ED justifies its action with an expansive interpretation of the Supreme Court’s 2023 decision in Students for Fair Administrations v. Harvard, which prohibited
colleges and universities from using race in admissions decisions. Friday’s Dear Colleague letter goes much further, stating that educational institutions may not factor in race in any decision or programming and may not pursue a goal of increasing racial diversity through any means. It says that using non-racial proxies violates the law “whether the proxies are used to grant preferences on an individual basis or a systematic one.” As a result, it would be “unlawful for an educational institution to eliminate standardized testing
to achieve a desired racial balance or to increase racial diversity.”
While the letter mentions preschool, K-12 schools, and colleges and universities, it seems particularly tailored to change the practices of colleges and universities. It bans them from using students’ “personal essays, writing samples, participation in
extracurriculars, or other cues” to determine a student’s race.
To comply with this order, 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 to an effort to circumvent prohibited uses of race.”
According to the letter, ED “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.”
ED’s main tool for enforcing this directive is to open an investigation by the OCR. Such investigations often take months or years and typically result in a settlement, agreed to by the school and complainant, that can include a range of district
or college actions like changes to school practices or policies. According to ED’s website, there are currently more than 3,000 open investigations, with one case dating back
to 2008. While OCR has the power to terminate a school’s access to federal financial aid, it has not done so in decades, and would only be able to do so after all legal appeals are exhausted.
This directive will certainly be challenged in court because of the many questions it raises, such as:
What is the impact on longstanding policies, programs and practices of educational institutions? Does it prohibit support for historically Black colleges and universities (HBCUs) or Black sororities and fraternities, for example, or dedicated housing
or orientation programs for students who are the first in their family to go to college?
What if a scholarship is targeted at students from a particular geographic area or city where the majority of students are of one race or ethnicity?
Are state programs that allow university admission to students who are in the top 10% of their class implicated by this directive?
What about need-based financial aid programs that disproportionately benefit Black and Brown students?
Is it fair to students for college and university admissions and financial aid processes and criteria to change mid-cycle, after students have already submitted their applications?
What is a “third-party contractor… that [is][ being used to circumvent prohibited uses of race?” Does that include college access programs that are helping students from disadvantaged backgrounds to achieve their dreams of going to college? What if
those programs help specific groups of students like those who are Native American or from immigrant families?
Is it reasonable or even possible to expect schools to expansively overhaul their policies and programs in just two weeks? Don’t educational institutions have a right to adequate process and notice of sweeping, high-stakes changes?
Since its rationale goes far beyond the Supreme Court’s 2023 affirmative action decision, what is the legal justification for this action?
There will undoubtedly be much more to come on this issue soon. ED will need to quickly answer the questions above and many more in a court of law as educational institutions seek answers and clarity at a time that is already confusing and chaotic for
many in the education community.
This Dear Colleague letter builds on an executive order that directed federal agency heads to “coordinate
the termination of all discriminatory programs, including illegal diversity, inclusion, and accessibility mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”
This review is ongoing.
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