On February 14, 2025, the US Department of Education's Office for Civil Rights (OCR) published a Dear Colleague Letter (the "DCL") setting out its interpretation of the Supreme Court's ruling in Students for Fair Admissions, Inc. v. Harvard (2023) ("SFFA") and its application. The DCL emphasizes that discrimination based on race, color, or national origin is unlawful and sets forth the administration's plan to use the department to enforce federal anti-discrimination laws. Specifically, the DCL states that these enforcement efforts will be focused on dismantling diversity, equity, and inclusion (DEI) programs and related activities, described below, that the administration contends are drivers of discrimination in education and beyond. (The DCL's discussion of future departmental enforcement is at odds with proposals to eliminate this agency, and it remains to be seen if OCR and the department will handle enforcement.)
The DCL explains that the use of race as a factor in college admissions is an unlawful violation of Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities (together, "federal anti-discrimination law"), unless it passes "strict scrutiny." The DCL goes beyond the Supreme Court's ruling on admissions in SFFA; it states that the SFFA decision also prohibits the use of race in decisions of "all other aspects of student, academic, and campus life." Accordingly, OCR advises that institutions must not use race in decisions pertaining to "admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, [and] graduation ceremonies[.]" The DCL also states that institutions must "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 institutions are using in an effort to circumvent prohibited uses of race."
The department warns that by February 28, 2025 (14 days after the DCL's date), it "intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter." Under these enforcement efforts, institutions that are deemed non-compliant risk losing their federal funding. Importantly, the department previews its interpretation of the federal anti-discrimination laws, noting that diversity, racial balancing, social justice, and equity are "nebulous goals" that would fail as legal bases for race-based differential treatment. Moreover, it classifies education on the history of systemic and structural racism in the United States as "toxic indoctrination" and casts efforts designed to combat such discrimination as inherently discriminatory vestiges of the Biden administration.
The department's interpretation of anti-discrimination law in this DCL closely aligns with this administration's other recent guidance. Most notably, President Trump's January 21, 2025 Executive Order requires the elimination of federal DEI programs and requires federal contractors and grant recipients to certify that they do "not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws," subject to federal and qui tam actions for violations of the False Claims Act and potential federal compliance investigations. Together with this executive order, the DCL lays the groundwork for other federal agencies and individuals to use findings from the department's planned enforcement to support FCA claims against colleges and universities.
Relatedly, we can expect individuals and entities to use the DCL to support new lawsuits challenging institutional practices that they deem objectionable, similar to how private litigants used the SFFA decision to support new claims against institutions' admissions practices.
In response to the DCL, some institutions may choose to remove all acknowledgments of race, its existence, and its implications in order to avoid risk, but this may not be necessary to comply with federal law. For example, with respect to admissions, the Supreme Court in SFFA expressly noted that "nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university." Furthermore, as the DCL acknowledges, the consideration of race in admissions under SFFA is not inherently unlawful but may be permissible only if it satisfies strict scrutiny. Prior to the SFFA decision, nine states had already prohibited the consideration of race in admissions. Institutions in these states can likely serve as a model for complying with SFFA and the DCL without completely erasing all institutional references to race.
The DCL, its threats to funding, and its 14-day enforcement timeline are understandably concerning. Colleges and universities will take varying approaches to respond, depending on their missions, risk analyses, and other individual factors. Institutions may also struggle with how to communicate with students and stakeholders about the implications of the DCL and the institutions' commitment to diversity. We recommend that institutions consider the following steps as a starting point to assess and mitigate risk:
- Audit your institution's federal contracts and funding sources for compliance with federal anti-discrimination laws (many institutions may already be doing this given the recent funding freezes).
- Conduct a privileged review of your institution's programs, initiatives, and practices to determine where there is risk based on this new guidance. This review should include looking at each of the areas identified in the DCL, both as documented and in practice: "admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, [and] graduation ceremonies."
- Consult with legal counsel to determine how to mitigate risk and ensure that your institution's offerings are not impermissibly discriminatory and align with your institution's stated mission and strategic objectives (while recognizing that there may be conflict here).
- Ensure that your messaging is understood from the top down. Institutional leaders should lead this effort and remain available for guidance and consultation throughout the process.
- As needed, implement changes that you determine will mitigate risk. For example, some institutions should review criteria for scholarships, grants, or prizes to identify and potentially remove reference to race and instead focus on income, overcoming barriers, or other factors. (Note that endowed gifts may require obtaining permission from donors or taking other legal steps.)
Steptoe will be closely monitoring these developments and providing ongoing updates and is available to help with your institution's risk assessment and to provide compliance advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
