On March 1, 2025, the United States Department of Education’s Office for Civil Rights (OCR) issued frequently asked questions (FAQs) regarding the Dear Colleague Letter (Letter) OCR issued on February 14, 2025.
In the FAQs, OCR provides additional information regarding its application of the US Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA)1 beyond college admissions decisions to all “racial classifications, racial preferences, and racial stereotypes” occurring in all elementary, secondary, and postsecondary educational institutions that receive federal financial assistance. In stating that SFFA has “broad implications for race-based policies in education generally,” OCR emphasized two general rules from SFFA regarding school programs or policies and race. First, schools must not use a student’s race as a “stereotype or negative,” which includes assuming an individual’s race implies something about their “background, experiences, or socioeconomic status.” Second, in applying Title VI and the Equal Protection Clause “coextensive[ly],” any distinctions made by schools based on students’ ancestry will be reviewed under the “strict scrutiny” standard of the Equal Protection Clause.
In answering its own question of whether “Diversity, Equity, and Inclusion (DEI) programs [are] unlawful,” OCR states that “[w]hether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” and that “[s]chools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.” The FAQs state that “schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI.” Examples include Black History Month, International Holocaust Remembrance Day, and similar events. According to OCR, these types of programs do not violate Title VI as long as they do not engage in racial exclusion or discrimination; Student programs that may violate Title VI, which OCR calls “the more extreme practices at a university,” include: “privilege walks, segregating [students] by race for presentations and discussions with guest speakers, pressuring [students] to participate in protests or take certain positions on racially charged issues, investigating or sanctioning [students] for dissenting on racially charged issues through DEI or similar university offices.” Additional examples include: “mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning [students] coursework that requires them to identify by race and then complete tasks differentiated by race.”
In following up on its statement in the Letter that some policies may appear neutral on their face but are made with a racially discriminatory purpose (what OCR refers to as “covert discrimination”), OCR states that it may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent. OCR states that a “non-exhaustive list” may include:
- whether members of a particular race were treated differently than similarly situated students of other races;
- the historical background or administrative history of the policy or decision;
- whether there was a departure from normal procedures in making the policy or decision;
- whether there was a pattern regarding policies or decisions towards members of a particular race;
- statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race; and
- whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race.
Finally, in answering its question of “How will OCR proceed with schools that it determines are out of compliance,” OCR states that if a school fails to comply with Title VI, OCR will contact the school and attempt to negotiate a voluntary resolution agreement, which will include remedial actions the school must take to address the area(s) of noncompliance. If a school is unwilling to negotiate a resolution agreement, OCR “will inform the school of the consequences, which may result in OCR initiating enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings.”
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).