After giving educational institutions two weeks to comply with the Department of Education’s Dear Colleague Letter (DCL), on February 28, the Office of Civil Rights (OCR) issued Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act. Title VI generally prohibits discrimination based on race, color or national origin in programs or activities that receive federal financial assistance. The DCL provided guidance on the Trump administration’s interpretation of the Supreme Court decision Students for Fair Admissions v. Harvard, which prohibited colleges and universities from considering race, color, or national origin in school admissions programs.
The DCL, issued on February 14, 2025, extended the rationale of the Supreme Court decision beyond admission policies, applying it to virtually all school operations, including “admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” With the addition of the FAQs, we now have an even clearer picture of what areas OCR plans to focus on in its enforcement activities related to Title VI.
Schools that do not comply with the guidance set forth in the DCL and the FAQs risk the loss of federal funding. One of the greatest concerns for educational institutions based on the guidance in the FAQs may be their relationships with third-party suppliers and contractors. The FAQs provide that any race-based preferences in the procurement and selection of contractors will prompt OCR scrutiny. Many schools have awarded contracts in the past to minority-owned businesses, either to comply with state and local laws, or to proactively eliminate systemic barriers that minority-owned businesses may have historically faced. Likewise, OCR says that schools may not administer or advertise third-party scholarships, prizes or other opportunities based on race, even if the school itself does not sponsor such opportunities.
The FAQs also provide that, in addition to avoiding agreements and relationships with third parties that may use race-based preferences, schools may not endorse or sponsor any program that segregates the campus community on the basis of race, color or national origin. This would include events exclusively for students of a particular race, separate graduation ceremonies for students of a particular national origin, or housing units or floors segregated by racial preferences. The FAQs clarify that programming focused on particular cultures, heritages or historical observances that promote awareness are not per se unlawful so long as members of all races are welcome to participate in such programs/events, and no one from a particular group is discouraged from attending.
Following the DCL, the FAQs reinforce the Department’s stance that institutions cannot use covert methods to engage in racially preferential treatment in admissions, such as essay prompts that encourage students to identify themselves by race, color, or national origin, or required face-to-face interviews that can ascertain a student’s racial identity.
The FAQs respond to the question of whether Diversity, Equity, and Inclusion (DEI) programs are unlawful this way:
[w]hether a policy or program violates Title VI does not depend on the use of specific terminology such as “diversity,” “equity,” or “inclusion.” Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.
In addition, the FAQs state that nothing in Title VI or the DCL “requires or authorizes a school to restrict any rights otherwise protected by the First Amendment.”
Where programs, trainings, or orientations touch on racially sensitive issues, however, schools are prohibited from mandating participation or forcing participants to identify themselves by race, which could lead to “school-on-student harassment” and create a hostile educational environment. The FAQs explain that OCR will look at each case individually to determine if a hostile environment exists based on the particular facts and circumstances. As examples of “more extreme practices at a university” that could create a hostile environment, the FAQs cite:
requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race.
Finally, the OCR sets forth a three-step test, citing to the McDonnell Douglas decision in which the Supreme Court created a three-step burden-shifting framework used for employment-discrimination claims, to evaluate schools’ facially neutral policies:
First, did a school treat a student or group of students of a particular race differently from a similarly situated student or group of students of other races? Then, if so, can the school provide a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual? Finally, if the school is unable to offer a legitimate, nondiscriminatory reason, or if the offered reason is found to be a pretext or cover for discrimination, OCR will conclude that unlawful discrimination has occurred.
Further explaining how OCR will proceed with schools that it determines are out compliance with Title VI, the FAQs refer to its updated Case Processing Manual, dated February 19, 2025.
A DCL does not have the force of law, nor do the newly issued FAQs. The DCL is currently the subject of a lawsuit filed on February 25, 2025 in the District of Maryland. In American Federation of Teachers v. Dept. of Education, the plaintiffs assert in their complaint that the DCL “radically upends and re-writes otherwise well-established jurisprudence” by attempting to ban efforts to advance diversity, equity and inclusion in education without “the lawmaking power of Congress nor the interpretative power of the courts.” The plaintiffs further argue that the DCL, if implemented, will have devastating impacts, including: (a) undermining schools as a training ground for informed, prepared citizens; (b) denying students opportunities to hone critical thinking skills and expand their world views, and (c) hampering efforts to further equal access to education. The plaintiff seeks relief for alleged violations of the First Amendment (free speech and free association), Fifth Amendment (due process vagueness), and the Administrative Procedure Act (5 U.S.C. § 706(2)).
Littler will provide updates as these issues unfold in the court system and through OCR enforcement.
