On Valentine’s Day, the Trump administration surprised schools and universities with its latest attacks on DEI and students’ physical diversity. The U.S. Department of Education’s Civil Rights Office issued a dear colleague letter warning schools and universities that they could lose federal funds if they are based on racial discrimination.
The letter reveals unsupported legal theory about the application of federal civil rights law to schools and universities. In fact, the letter scans of OCR are so extensive that it claims to forbid racial considerations that remain completely legal under the establishment of good legal doctrines.
The threat of losing federal funds has been an aspect of the Civil Rights Act since its passage in 1964, but the letter specifically targets DEI programming and “race as factors for admission, financial aid, recruitment, training, training and other institutional programs.”
Although the letter includes some correct statements of non-discrimination laws, OCR makes assertions that are disturbing and do not support reasonable legal reasoning. As part of the team that guides this issue as the Supreme Court after the student ruling on Fair Admissions v. Harvard, I feel uneasy about how politics drives policy guidance, which will hurt educational institutions and educational institutions and students from kindergartens.
In describing the scope of SFFA, OCR’s latest guidance attempts to smuggle with legal standards of court opinion. The letter states: “Relying on non-racial information as agents of race and making decisions based on that information is a violation of the law… For example, it is illegal for educational institutions to eliminate standardized testing to achieve the required racial balance or increase racial diversity.”
Here, OCR claims without any basis that universities can not only view race as an admission factor, but also cannot make racially neutral changes to admission policies that help improve students’ physical diversity, such as eliminating standardized tests. This statement is not only firmly beyond the scope of SFFA, but also belongs to its Supreme Court case law decades before it.
In Grutter (2003), Judge Sandra Day O’Connor argued whether the University of Michigan Law School could use the lottery system for admission. In Fisher (2016), Judge Anthony Kennedy implicitly approved the top 10% plan in Texas, perhaps the most famous racial neutral strategy to improve racial diversity. In SFFA (2023), the plaintiff’s summary itself includes recognition of racially neutral alternatives that Harvard may pursue legally, such as adopting socio-economic preferences in admissions.
However, in recent letters, OCR had a fake disguise in announcing SFFA announcement that schools and universities must abandon racially neutral strategies designed to increase students’ physical diversity. Although the SFFA has not actually said the permissibility of these racially neutral strategies, separate cases directly address these legal issues, contradicting the Trump administration’s unfounded guidance.
In the TJ League, the Boston Parents League and other recent cases, groups similar to students challenge changes to the admissions policies of famous, selective high schools, which have been adopted in part because of increasing diversity within students. In some cases, the school has reconfigured the standardized tests; in other cases, the school guarantees a certain number of seats per feeding middle school. In all cases, the school district won. The position OCR has now made in its recent letter failed to find a foothold in both courts of appeal. Just last year, the Supreme Court refused to further review the decisions of TJ and Boston.
What OCR tried to do with its letters was extraordinary. It attempts to advance legal theory with the support of the Supreme Court case, which does not explain the matter. Meanwhile, OCR has ignored recent judicial opinions in the case of directly addressing this issue.
Regardless of the legal OCR declaration, schools and universities may be forced to comply. This could mean that threats alone would lead to efforts by schools and universities to cut down on student groups and racially inclusive campus environments that are legally pursuing racial diversity. As a result, unfortunately, classrooms and campuses in our country don’t look like the communities they sit there and serve, all due to shoddy policy making and legal pickiness.
