The legality of Diversity, Equity and Inclusion (“DEI”) Programs has come under immense scrutiny beginning with the change in presidential administration. On January 21, 2025, President Trump issued executive order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“Executive Order”). This Executive Order required all Federal Agencies to end Diversity Equity and Inclusion and Diversity Equity, Inclusion, and Accessibility (“DEI/DEIA”) practices and directed the agencies to combat illegal private-sector DEI/DEIA practices.
On February 5, 2025, in response to the Executive Order, the U.S. Attorney General issued a memo committing the Department of Justice’s Civil Rights Division to investigate, eliminate, and penalize illegal DEI/DEIA practices in the private sector and in educational institutions receiving federal funds. The Attorney General also promised further guidance from the U.S. Department of Education.
The guidance from the U.S. Department of Education came on February 14, 2025, in the form of a Dear Colleague Letter (“the Letter”). The Letter indicates that colleges, universities, and K-12 schools, under the banner of DEI/DEIA programs, have engaged in discrimination in violation of Title VI by routinely using race as a factor in admissions, financial aid, hiring, training, and other institutional programming. The Letter relies on the holding in Students for Fair Admissions v. Harvard in which the U.S. Supreme Court applied strict scrutiny to race-based admission practices. The Letter emphasizes that strict scrutiny requires a compelling state interest and determines that racial balancing and diversity are not compelling interests.
Through the Letter, the U.S. Department of Education advises educational institutions to:
- Ensure that their policies and actions comply with existing civil rights law;
- Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
- Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.
The Letter concludes that education institutions that fail to comply with federal civil rights law (i.e., removal of illegal DEI/DEIA practices) may, consistent with applicable law, face potential loss of federal funding. The U.S. Department of Education will begin assessing compliance with the Letter on February 28, 2025.
To ensure continued access to federal funds, school districts across Ohio will need to review any DEI/DEIA policies, programs and practices to ensure that they are in compliance with the Letter and the Civil Rights Law.
[View source.]
