On February 14, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) released a “Dear Colleague” Letter (DCL) and emailed it to K-12 and post-secondary educational institutions around the country. The DCL states that its purpose is to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the United States Department of Education” under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and “other relevant authorities.”

Title VI generally provides that no program or activity that receives federal financial assistance may discriminate against or deny benefits to any person because of race, color, or national origin, which courts have interpreted to include ethnicity.

A DCL does not have the force of law, but this one clearly presents the new administration’s position that Title VI’s prohibition of discrimination should be applied to restrict diversity, equity, and inclusion (DEI) programs at educational institutions receiving federal funds. The DCL follows President Trump’s Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, dated January 21, 2025, which directed the United States attorney general and the secretary of the U.S. Department of Education to issue guidance to all institutions that participate in federal student aid programs regarding compliance with the Supreme Court’s June 2023 decision in Students for Fair Admission v. Harvard (SFFA), which found race-conscious admissions policies unconstitutional.

The DCL asserts that the country’s educational institutions have discriminated against students on the basis of race, claiming educational institutions have “embrace[d] … pervasive and repugnant race-based preferences and other forms of racial discrimination” in “every facet” of their operations. Further, the DCL claims educational institutions have “toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices.” The DCL asserts that educational institutions engaging in these practices “have attempted to further justify them…particularly during the last four years,” under the banner of DEI, “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”

The DCL asserts that the Supreme Court’s prohibition of race-conscious admissions in SFFA should be extended to virtually all aspects of an institution’s educational operations, including “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 DCL further denounces the distribution of “benefits or burdens based on race.” The DCL also takes the position that even facially race-neutral programs constitute unlawful discrimination if such programs are motivated by “racial considerations,” such as using student essays, writing samples, or extracurricular activities as predictors of a student’s race for implementation of race-based preferences.

OCR says that additional legal guidance will be released “in due course,” and that the Department of Education will take “appropriate measures” by the end of February to assess compliance with Title VI and related legal standards based on the interpretive guidance in the DCL.

OCR closes the DCL by advising all 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 DCL asserts that institutions that fail to comply with Title VI face possible loss of federal funds “consistent with applicable law.” Currently Title VI and the Department of Education’s implementing regulations prioritize enforcement through voluntary compliance prior to any loss of federal funds.

The DCL and EO 14173 are already having significant impacts on higher education institutions. After years of expansion of DEI efforts in higher education, a number of institutions have announced major modifications or outright cancellation of their DEI programs. Since most higher education institutions rely heavily on federal financial aid funding and federal grants, it is not surprising that higher education institutions are responding to the announcements from the current administration.

For these reasons, we recommend educational institutions consider conducting a privileged review and audit of their remaining DEI programs to assess compliance risk relating to the DCL, EO 14173, Title VI, and other applicable laws and regulations.