By Catherine Brown, Senior Director, Policy and Advocacy
Reading time: Four minutes
On March 1, the US Department of Education (ED) released an FAQ document following up on its Dear Colleague letter that prohibited schools that receive federal funding from using race-based considerations in any aspect of programming or operations. Here are five takeaways from this document:
Cultural Programming Acceptable if Open to
All: The FAQ states that schools with programs focused on particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, as long they are open to all students regardless of race. Recognizing Black History Month
or International Holocaust Remembrance Day, for example, would not violate Title VI “so long as they do not exclude or discourage students of a particular race or races from participating or create a hostile environment based on the race for students
who do participate.” Conversely,housing, graduation ceremonies orany other aspect of school life that “allows one race but not another or otherwise separates students, faculty, or staff based on race” is prohibited according to this guidance, as is
selecting contractors based on race.
Educational Benefits and Resource Allocations
May Not be Limited by Race:The document says that “when there is a limited number...of educational benefits or resources, such as admissions spots…financial aid, scholarships, prizes, administrative support, or job opportunities, a school
may not legally take account of a student’s race in distributing those benefits or resources, even if race is only being considered as a positive or plus factor.” The FAQ states that in competitive or zero-sum processes, advantaging one race or another
is equivalent to disadvantaging others.
Context Will Matter in Investigations: The FAQ describes how the Office of Civil Rights (OCR) will proceed once it has identified a perceived violation, stating that it will look at the context: “OCR will examine the facts and circumstances of each case, including the
nature of the educational institution, the age of the students, and the relationships of the individuals involved. For example, an elementary school that sponsors programming that acts to shame students of a particular race or ethnicity … could create
a racially hostile environment. But similar themes in a class discussion at a university would be less likely to create a racially hostile environment.” Additional information on how OCR will assess racial incidents and claims of harassment can be
found here.
College Admissions Processes May Change Yet Again: The FAQ says that schools may not use essays in the admissions process to determine an applicant’s race but may use essays to identify positive character traits. Referring to the “essay loophole,”
the FAQ says “schools that craft essay prompts in a way that require applicants to disclose their race are illegally attempting to do indirectly what cannot be done directly…Schools can credit what is unique about the individual in overcoming adversity
or hardship but never the person’s race.”
OCR Will Work with Schools to Come to
Agreement: Perhaps the most takeaway from this new document is that OCR will work with schools to come to a voluntary agreement about what needs to change before taking punitive action. The guidance says “if OCR determines that a school failed to
comply with the civil rights laws that it enforces, OCR will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement. If the school agrees to resolve the complaint, OCR and the school will negotiate
a written resolution agreement to be signed by the school that describes the specific remedial actions it will take to address the area(s) of noncompliance identified by OCR. OCR will monitor implementation of the resolution agreement’s terms.” Only
if the school and OCR cannot come to an agreement, will OCR take additional enforcement action, including potentially referring to the case to the US Department of Justice. This process aligns with the approach OCR has taken under previous administrations.
Unstated but noteworthy here is that ED will not withhold federal funding to any school without describing the perceived violation to its administrators and offering them an opportunity to address it.
The FAQs clarify what might guide OCR in its investigations into alleged violations of racial discrimination, and higher education institutions may choose to enter into voluntary settlements with OCR. But institutions
may also dispute OCR's interpretation of federal anti-discrimination law, and ultimately only federal courts can determine whether a practice violates those laws. Many legal scholars believe that the Trump Administration's policies and the FAQs continue to overstate what constitutes
racial discrimination by colleges and universities.
On Friday, the Trump Administration announced that a federal antisemitism task force will conduct site visits to
10 college campuses that experienced alleged instances of antisemitism. Those colleges include Columbia University, George Washington University, Harvard University, Johns Hopkins University, New York University, Northwestern University, the University
of California, Los Angeles, the University of California, Berkeley, the University of Minnesota, and the University of Southern California. On Monday, they initiated a sweeping, multi-agency investigation of Columbia University, that could halt billions of dollars of federal grants and contracts. And on Tuesday, President Trump tweeted that
all federal funding will stop for colleges and universities that allow "illegal protests," which seems to be at odds with the First Amendment and students' right to free expression.
Only time will tell how these investigations will unfold. We will continue to monitor this issue and share information as it unfolds.
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