On February 14, 2025, the Office for Civil Rights issued a Dear Colleague Letter (DCL) regarding the nondiscrimination obligations of schools receiving federal financial assistance from the U.S. Department of Education (ED)—and set a deadline of February 28, 2025 for schools to comply with OCR’s new interpretation of schools’ obligations under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The DCL came in the wake of the President’s January 20 and 21, 2025 Executive Orders, which declared “diversity, equity, and inclusion” initiatives to be a form of racial discrimination, and which called out higher education institutions for using “race and sex-based preferences under the guise of” DEI.  While a federal district court in Maryland recently paused three challenged provisions of the executive orders, the pause does not directly implicate the DCL. Accordingly, schools should take note of OCR’s interpretation as well as other legal authority impacting the implementation of DEI practices.

The January 21 executive order directed the Secretary of Education and Attorney General to issue guidance to state and local education agencies and higher education institutions that receive federal funds regarding compliance with Students for Fair Admissions v. Harvard (“SFFA”). The DCL represents one of the steps ED took to do just that. Recall that SFFA was decided by the Supreme Court in 2023 and addressed the relatively narrow question of racial preferences in college admissions.

According to OCR, the decision applies more broadly than just admissions but also impacts financial aid, hiring, training, discipline, housing, prizes, graduation activities, and other programming. The DCL also targets practices that are facially neutral but that are race-conscious or motivated by consideration of diversity and equity.  This includes using “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”—whether on an individual or systemic basis. Additionally, OCR advises that eliminating standardized testing to increase racial diversity and teaching students that certain racial groups bear unique burdens that others do not are examples of illegal discriminatory practices.

In preparation to begin enforcing the new interpretation as of February 28, 2025, OCR advised K-12 schools and institutions of higher education to:

1. ensure that their policies and actions comply with existing civil rights law (as interpreted by OCR);
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 Trump administration’s new interpretation conflicts with a number of court rulings that have addressed discrimination claims under Title VI and the Equal Protection Clause. As one example, the First and Fourth Circuit Courts recently held that race-neutral practices that further diversity goals are permissible in many contexts. While the DCL notifies schools of OCR’s enforcement plans, executive orders and DCLs do not change existing federal laws and are not binding on courts interpreting those laws.

Two lawsuits challenging the executive orders and DCL have been filed. As mentioned above, a Maryland district court temporarily paused three provisions of the executive orders on the grounds that these executive orders are unconstitutionally vague and constitute viewpoint discrimination. And another lawsuit has been filed, also in Maryland, challenging the DCL directly and arguing that it violates the first amendment, as well as due process and the Administrative Procedure Act.

In light of these developments, schools must carefully evaluate the law in their jurisdiction, including judicial decisions and state laws. Given potentially conflicting obligations, it is vital that schools consult legal counsel when evaluating whether and how to modify current policies and practices.

Under federal law, failure to comply with Title VI could result in loss of federal funds. An extensive administrative process is required before funds can be cut off. The school is entitled to an opportunity to be heard, and any ruling is subject to judicial review. T&H civil rights attorneys stand ready to assist schools in navigating the changing landscape of civil rights law.