INTRODUCTION
On February 14, 2025, the Acting Assistant Secretary for Civil Rights (the “Assistant Secretary”) at the United States Department of Education (the “Department”) circulated a Dear Colleague Letter (the “DCL”) regarding “Title VI of the Civil Rights Act in light of Students for Fair Admissions v. Harvard” (“SFFA,” 143 S. Ct. 2141, 600 U.S. 181 (2023)). The DCL asserts:
“The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.”
In support, the DCL makes numerous assertions about federal law, some of which are consistent with common understanding of existing case law and applicable regulations, and some which go beyond.
This reference guide will provide an overview of the DCL and a reminder of the significance and impact of DCLs generally. It will evaluate key provisions of the DCL, identifying open issues and ambiguities, and provide initial guidance on short-term and long-term strategy for responding to this DCL.
Legal action challenging the DCL is possible, and the DCL itself foreshadows that ““[a]dditional legal guidance will follow in due course,” so the landscape is likely to change.
CHEAT SHEET: THREE IMMEDIATE STEPS AND CONSIDERATIONS
- Get the gang back together. It has been less than two years since institutions coordinated responses to SFFA. Now is the time to re-group, inventory and assess your amended admissions practices, and plan for assessment of the other programs and activities cited in the DCL, if this work is not already ongoing.
- Coordinate. To the extent you have a team working on your institution’s response to Executive Order 14173, pertaining to “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” on which Saul Ewing recently released a reference guide similar to this one, that work should be complementary, to ensure a consistent approach – and appetite for risk – guides your institution’s work.
- Find out what you have. Catalogue and assess by risk any DEI programs and activities in two categories – “investigation risk” and “true legal risk.” First, carefully assess those which may violate “existing civil rights law” as you – and counsel – understand it to be. Second, decide how to address those which may violate the law as OCR represents it to be, and which may be broader than your understanding.
TABLE OF CONTENTS
- Overview of the DCL
- Rewind: What Is a DCL?
- Significance of the DCL After Loper Bright
- “Existing Civil Rights Law”
- Breaking Down the DCL’s Analysis of SFFA
- What’s Next
- Developing Your Two-Week Action Plan
- Anticipating Challenges
OVERVIEW OF THE DCL
In the DCL, the Assistant Secretary lays out the Department’s view of “legal requirements” under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities, including SFFA. Per the DCL:
- Nebulous concepts like racial balancing, diversity, social justice and equity “are not compelling interests” which can satisfy strict scrutiny, even if the action at issue is otherwise sufficiently narrowly tailored;
- Federal law “prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life” (emphasis added);
- In the context of admissions, schools may not “use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students” and also may not “[r]ely[] on non-racial information as a proxy for race,” such as “eliminat[ing] standardized testing to achieve a desired racial balance or to increase racial diversity”; and
- In the context of other “DEI programs,” it is unlawful to “preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not” because this “stigmatize[s] students who belong to particular racial groups based on crude racial stereotypes” and “den[ies] students the ability to participate fully in the life of a school.”
Importantly, the DCL – like Executive Order 14173 – does not provide a clear working definition of “DEI” or “DEI programs.” Interest groups have already commenced litigation challenging Executive Order 14173 relying, in part, on arguments of vagueness – that by leaving DEI undefined, the EO is unconstitutionally overbroad and serves to chill speech. Similar arguments could be expected to be made about the DCL.
The DCL advises that it intends to “provid[e] notice of the Department’s existing interpretation of federal law” and that “[a]dditional legal guidance will follow in due course,” with “appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in [the DCL] beginning no later than 14 days from” the date of the letter (i.e., February 28, 2025). It instructs institutions to, in the interim:
(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 in an effort to circumvent prohibited uses of race.
The DCL warns that failure to comply “with federal civil rights law” may result in “loss of federal funding,” and encourages concerned individuals to file complaints with the Office for Civil Rights (“OCR”).
REWIND: WHAT IS A DCL?
A "Dear Colleague Letter” is a form of subregulatory guidance federal agencies use to disseminate information about various legal issues, including the agency’s interpretation of law and enforcement priorities. As the February 14 DCL acknowledges in note 3, such guidance “does not have the force and effect of law and does not bind the public or create new legal standards,” but rather is “designed to provide clarity to the public regarding existing legal requirements under Title VI, the Equal Protection Clause, and other federal civil rights and constitutional law principles.”
As noted in the Introduction to this reference guide, however, the DCL makes some assertions about federal law which go beyond our understanding of existing case law and applicable regulations. If the DCL by its own admission “does not have the force and effect of law,” then an obvious question arises: to the extent your institution concludes that the DCL goes beyond “existing legal requirements” and (however unacknowledged) “create[s] new legal standards,” what obligation does your institution have to comply?
The coercive power of a DCL is well known. Regardless of whether an institution is in agreement with OCR’s position, being pulled into a lengthy investigation, with all the associated financial, reputational, and human costs, can be punishment enough to chill any conduct at odds with the DCL, whether otherwise unlawful or not. If an institution chooses not to voluntarily resolve an OCR complaint when available, and OCR has advised the institution that its investigation has found non-compliance, the institution can challenge the finding at an administrative hearing before any responsive action can be taken (such as moving to suspend or terminate Federal financial assistance), the stakes are so high that most institutions will conclude that the risk of non-compliance is intolerable.
SIGNIFICANCE OF THE DCL AFTER LOPER BRIGHT
In 2024’s Loper Bright Enterprises v. Raimondo, the United States Supreme Court overturned the 40-year-old Chevron doctrine. Chevron required courts to defer to an agency’s reasonable interpretation of an ambiguous statute that it administers. Loper Bright, by contrast, instructs courts to exercise “independent judgment” in determining the meaning of statutory provisions. Although the ruling is still new, it is expected that courts will engage in much greater scrutiny of agency actions than during the Chevron era.
If challenged, a court could look to the Department’s interpretation of the relevant statute (here, Title VI) for guidance. But, it need not defer to the Department’s interpretation. It is possible – perhaps even likely – that challengers may win the day in asserting both that the DCL, despite its protestations, “create[s] new legal standards” and that these standards are inconsistent with the requirements of the law. But, that possibility does nothing to shield institutions from OCR investigations in the interim. This “investigation risk” is an important and separate consideration from what we would regard as true legal risk.
“EXISTING CIVIL RIGHTS LAW”
Again, the DCL purports to “provide clarity to the public regarding existing legal requirements under Title VI, the Equal Protection Clause, and other federal civil rights and constitutional law principles” (emphasis added). It asserts that federal law “prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”
The extent to which “existing civil rights law” indeed prohibits all of these actions is an open question. But, there is no question that many of the prohibitions identified in the preceding sentence were indeed already clearly barred by the law as it stood on February 13, 2025, before the DCL was issued. For example:
Admissions: In SFFA, the Supreme Court indeed struck down the race-conscious admissions practices of Harvard University and the University of North Carolina because, in the Court’s view, they failed on three critical grounds: that “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.” However, our analysis of the limits and contours of the prohibition on the consideration of race in admissions follows in the next section of this reference guide (“Breaking Down the DCL’s Analysis of SFFA”).
Hiring, promotion, and compensation; employee and student discipline: Again, long-standing interpretation of Title VI, and other statutes (primarily Title VII of the Civil Rights Act of 1964), makes it clear that “ultimate employment decisions, such as hiring, granting leave, discharging, promoting, demoting, and compensating” may not be based on race. Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 580 (5th Cir.2003); see also Bloomberg v. New York City Dep’t of Educ., 119 F.4th 209 (2d Cir. 2024) (“To determine what ‘employment practice’ means under Title VI, we turn to our interpretation of that term in Title VII, which was, like Title VI, enacted as part of the Civil Rights Act of 1964”).
The same can be said for employee – and student – discipline, which may not be pursued because of race, or treat individuals differently because of race. Indeed, the DOJ and ED even issued a “Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline” on January 08, 2014, addressing the topic in K-12 education, which is currently under review. Implementing regulations for Executive Order 11246 (“Equal Employment Opportunity”) previously permitted certain government contractors to establish Affirmative Action Programs (“AAPs") that set placement goals for minorities and women based on an underutilization analysis. EO 11246, in place since 1965, has been revoked by President Trump, apparently ending all AAPs. Thus, the consideration of race in hiring now is entirely impermissible for all employers.
Financial aid, scholarships, and prizes: Since 1994, OCR has had guidance in place that severely restricts an institution’s ability to consider race in awarding scholarships and financial aid. There were two notable exceptions: first, an institution can award financial aid on the basis of race if the aid is awarded under a federal statute that authorizes the use of race or national origin, and second, an institution can award financial aid on the basis of race if it is “narrowly tailored to achieve the goal of a diverse student body” (i.e., satisfies strict scrutiny). While obviously impacted by Bakke and its progeny, the latter was grounded in the regulatory framework itself. 34 C.F.R. §100.3(b)(6)(ii) (“Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.”)
Since SFFA, however, and in light of the recission of Executive Order 11246, it is clear that this second exception is no longer practically viable. Even if diversity could be a “compelling interest” (which, despite being described by the DCL as a fait accompli, was actually not part of the SFFA Court’s ruling), given that the Court rejected two programs which were incredibly detailed and backed by extensive data and internal study, as insufficiently narrowly tailored, it is difficult to imagine what could pass muster.
The other prohibitions mentioned in the DCL – administrative support, housing, graduation ceremonies, and “all other aspects of student, academic, and campus life” – are so broad as to defy such a broad pronouncement. While it seems clear that assigning student housing based on race, for example, would be unlawful, is it “illegal DEI” to offer student affinity housing for students who self-identify as interested in Hispanic Culture? An institution would obviously not require Black students to attend a Kente Graduation Ceremony, but if a student organization wanted to offer one that was open to all interested students who wanted to support and celebrate Black student excellence, would the institution have to prohibit it?
Importantly, the DCL called into question the use of even facially-neutral practices which may serve to increase diversity. A sentence in the DCL that has drawn widespread attention is the claim that “[i]t would … be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.” There is no citation for this proposition in the DCL. Importantly, the DCL does not say such actions are unlawful if they have the effect described, but rather that it would be unlawful to undertake the – even facially-neutral – action with the intent to “achieve a desired racial balance or to increase racial diversity.”
Efforts of educational institutions to implement facially race-neutral policies that might increase or maintain racial diversity have been challenged in recent years, and have been upheld – for example, the program at selective Thomas Jefferson High School of Science and Technology that waived a $100 application fee, waived standardized tests for admission, and considered “experience factors” such as a student’s eligibility for free school lunch, their status as an English-language learner, or having attended a historically underrepresented public middle school.1 However, that was not a Supreme Court case, and was highly fact dependent.
The DCL cites to Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977), in connection with its discussion of facially-neutral actions. In the particular passage of Arlington Heights cited in the DCL, the Supreme Court confirmed that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” 429 U.S. at 265 (emphasis added). The Court went on to explain “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Id. (emphasis added). Contrary to the DCL’s suggestion, Arlington Heights does not say that “any race-based decision making” is impermissible; it states that actions taken with a “racially discriminatory intent or purpose” are unlawful. These are related, but distinct, concepts.
BREAKING DOWN THE DCL’S ANALYSIS OF SFFA
This is not the space for a fulsome analysis of the Court’s decision in SFFA, and those analyses have already been written. Briefly, here is how the Court itself framed the issue: “[I]n these cases we consider whether the admissions systems used by Harvard College and the University of North Carolina…are lawful under the Equal Protection Clause of the Fourteenth Amendment.”2 600 U.S. at 191. The Court then analyzed those admissions systems.
Harvard had a race-conscious admissions program where race could be a “tip” favoring an applicant, just like other factors such as recruited athlete status, arts and music aptitude, and financial aid eligibility. Id. at 195. At the University of North Carolina, race could be a “plus factor” in weighing whether or not to admit a candidate. Id. at 196-97. After evaluating the history of prior Supreme Court decisions in this space, Justice Roberts, writing for the majority, ultimately held that “the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.” Id. at 230.
In the DCL, OCR states: “Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly.” As a literal matter, that is not correct. The issue before the Court was consideration of race in admissions, specifically at Harvard and UNC, and the holding is limited accordingly. By similarly evaluating other assertions in the DCL that are tied to SFFA, we can assess whether those assertions withstand a careful read.
WHAT’S NEXT
The DCL states that “additional legal guidance” will “follow in due course.” The Department also states that it intends to begin taking “appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter” no later than February 28, 2025, “including antidiscrimination requirements that are a condition of receiving federal funding.” There is a fair amount to unpack in that sentence.
First, the Department asserts in conclusory fashion that the “understanding embodied in this letter” is the proper measuring stick for assessing compliance with applicable statutes and regulations which is, of course, a matter of debate. Second, the Department does not explain what it considers to be “appropriate measures,” and it is worth noting that this target date is well in advance of the 90-day effective date of April 21, 2025 for Executive Order 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity – to the extent there is a link between the two. Third, while this language has been read to suggest that OCR will start launching investigations on February 27, 2025, that is not what the DCL actually says. Finally, the last sentence fragment – “including antidiscrimination requirements that are a condition of receiving federal funding” – is a bit hard to decipher.
The most logical reading seems to be that the Department “intends to take appropriate measures to assess compliance with … antidiscrimination requirements that are a condition of receiving federal funding.” Interpreted in this way, this phrase may be drawing a connection between this DCL and Section 3(b)(iv)(B) of Executive Order 14173, which will require a recipient of federal contract/grant funding to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” The Department might be suggesting that compliance with the very broad interpretation of Title VI and the Equal Protection Clause set forth in the DCL is required in order to fully certify compliance under Executive Order 14173.
The DCL encourages “anyone who believes that a covered entity has unlawfully discriminated” to file a complaint with OCR, and includes a link to the complaint form. Institutions therefore should be prepared for a possible rise in OCR investigations based on third-party complaints, but it is unclear what capacity OCR has to handle what could be a substantial increase in complaints. With the administration’s far-reaching efforts to shrink the size of the federal government, OCR staffing almost surely will be affected. Staffing shortages may limit the number of investigations and enforcement actions OCR is able to pursue.
Finally, the DCL instructs institutions to “[e]nsure their policies and actions comply with existing civil rights law.” But to be clear, the DCL clearly intends that institutions should ensure compliance with the DCL’s interpretation of civil rights laws—not the interpretation provided by prior administrations, agencies, or courts. While footnote 3 acknowledges that the DCL is not law, as discussed above, OCR clearly will be investigating and enforcing the DCL’s interpretation of law.
DEVELOPING YOUR TWO-WEEK ACTION PLAN
Here’s what we recommend institutions do in the next two weeks.
First, engage with campus decision-makers and staff about what the DCL does and does not mean. The press coverage of the DCL has been apocalyptic, but the reality, as usual, is much more nuanced.
Second, inventory programs that may be implicated by the DCL, with a focus on programs that are readily identifiable from your public-facing web pages, social media, and other materials. Consider also whether those public-facing resources should remain while you engage in your inventory and assessment (though understand that there are limitations on the benefits of taking pages down in light of internet archiving tools).
Third, classify your inventoried programs: do they present actual legal risk, and if so, to what degree? If not, do they present investigation risk? At the same time, to what degree does each program support the institution’s mission? Some high-risk programs may be mission-critical; those will present difficult decisions; some high-risk programs may be mission-adjacent, and decision-making regarding those may be simpler.
Fourth, have a discussion about risk tolerance with senior leadership and the Board. There are any number of permutations, but primary short-term options from a broad-brush perspective include:
COMMON INSTITUTIONAL APPROACHES TO THE DCL
- Stop any programs/scholarships that could in any way be seen to benefit students based on race, color, or national origin. Then, see how things develop in the Courts and through additional OCR action, and build things back up over time.
- Do not change anything until/unless mandated to, because the DCL is not the law, you think OCR has it wrong, you expect legal action to challenge this, and the imperative of your existing programs outweighs OCR risk.
- Somewhere in between – shut down those programs/policies that almost surely violate the DCL and are not mission-critical. Give a close look to those policies that almost surely violate the DCL but are mission critical, and so on.
ANTICIPATING CHALLENGES
What if you believe OCR has this wrong, and you are prepared to fight? Institutions that elect to take on significant investigation or legal risk may invite an investigation by OCR or the DOJ’s Civil Rights Division with respect to their compliance with Title VI (or the Equal Protection Clause). Those investigations can be incredibly disruptive, taking many staff members away from their already strained workloads and imposing significant financial costs. Institutions that risk such investigations may also face significant reputational risks in certain quarters. Some institutions may nevertheless determine that such risk is warranted and counterbalanced by mission.
On the other hand, such investigations also generally take a very long time to complete – so long that it is not unusual for such investigations to last from several to many years, spanning multiple presidential administrations.
In the worst-case scenario, OCR or DOJ may investigate, use the legal standards in the DCL as if they were all supported by law, and publish a letter of findings concluding that the institution is out of compliance with the law. See generally 34 C.F.R. 106.7. At the conclusion of that investigation, a recipient always has the option to come into voluntary compliance with the law (as the law is seen by OCR).
If an institution fails to come into voluntary compliance, the Department can seek to terminate federal financial assistance – all grants, loans, and other assistance received by the institution from the federal government. The regulation provides: “Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the. . . recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.”
Importantly, “no order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until” (1) the Department first permits voluntary compliance; (2) the institution has had the opportunity for a hearing before an administrative law judge, and at the hearing there is a finding of noncompliance; (3) the Department presents a written report to a Senate committee (and 30 days thereafter elapse). Even then, the decision to revoke funding may be challenged in federal court.
In other words, while certainly not to be taken lightly, it is a long road to the loss of federal funding, and in ordinary times, that road has many offramps. It is also worth observing that a supposition that all the rules of that road are being followed by the Department has been cast into some doubt by recent events.
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And by extension to a private institution like Harvard, under Title VI.
