On February 14, 2025, the acting assistant secretary for the Office for Civil Rights (OCR) at the United States Department of Education, Craig Trainor, issued a Dear Colleague Letter (Letter) which, according to Trainor, aims to “clarify and reaffirm the nondiscrimination responsibilities of schools and other entities that receive federal financial assistance from the United States Department of Education.” More specifically, the Letter “explains and reiterates existing legal requirements under Title VI of the Civil Rights Act of 1964” (which applies to all educational institutions receiving federal financial assistance) and the Equal Protection Clause of the United States Constitution (which applies to all public educational institutions). As such, the Letter applies to all “preschool, elementary, secondary and postsecondary educational institutions, as well as state educational agencies, that receive [federal] financial assistance.”
In the Letter, Trainor states that the 2023 Supreme Court decision Students for Fair Admissions v. Harvard (SFFA),1 which addressed the use of race in college admissions, “sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI” in all aspects of the entities’ operations, and not just admissions. Trainor continued, stating, “[a]t its core,” the “test” set forth by the Supreme Court’s holding in SFFA is “simple”: “If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law.” Based on this statement, Trainor concluded that “[f]ederal law thus 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.”
With respect to admissions specifically, Trainor stated that schools may not make decisions based on “proxies for race” such as “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 with respect to other educational programs generally, Trainor stated that, “DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not.” According to Trainor, “[s]uch programs stigmatize students who belong to particular racial groups based on crude racial stereotypes,” and, [c]onsequently,” deny students the “ability to participate fully in the life of a school.”
Beginning on February 28, 2025, OCR will begin “tak[ing] appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied” in the Letter.
Based on this potential assessment by OCR, the Letter advises “[a]ll educational institutions” to: “(1) ensure that their policies and actions comply with existing civil rights laws; (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 circumnavigate prohibited uses of race.” Institutions that fail to comply “face potential loss of federal funding.”
Trainor stated that “[a]dditional legal guidance [from OCR] will follow in due course.” In one of the Letter’s footnotes, Trainor noted that guidance such as a Dear Colleague Letter “does not have the force and effect of law and does not bind the public or create new legal standards.” Instead, as stated by Trainor, the Letter “is designed to provide clarity to the public regarding” what he and OCR see as “existing legal requirements under Title VI, the Equal Protection Clause, and other federal civil rights and constitutional law principles.”
If you have any questions regarding the content of this alert, please contact Buster Melvin, Higher Education Team co-leader, at emelvin@barclaydamon.com; Chloe Shortz, associate, at cshortz@barclaydamon.com; or another member of the firm’s Higher Education Team.
1Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).