Department of Education Instructs Institutions To Review Programs for Compliance With Federal Civil Rights Law by February 28th

On February 14th, 2025, the Department of Education (the “Department”) issued a Dear Colleague letter (the “Letter” or “DCL”) addressing what the Department thinks may constitute unlawful discrimination on the basis of race, color, or national origin under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other authorities. The Department also announced that it will begin “vigorously enforce[ing] the law” and assessing compliance no later than February 28th, and threatens that educational institutions that fail to comply with the Department’s new view of the federal nondiscrimination laws face investigation and loss of federal funding.

The Letter relies heavily on the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA), stating the test for impermissible racial discrimination as follows: “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.” The Letter states that the only permissible uses of race in education are those that satisfy strict scrutiny via narrow tailoring to achieve a compelling interest, and notes that only two interests have thus far been recognized as compelling under SFFA: “(1) ‘remediating specific, identified instances of past discrimination that violated the Constitution or a statute’; and (2) ‘avoiding imminent and serious risks to human safety in prisons.’” The DCL states that “[n]ebulous concepts like racial balancing and diversity” are not compelling interests.

Attempting to further define unlawful racial discrimination, the DCL states that federal law prohibits the use of race in “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 Letter provides specific examples of actions that may appear neutral, but are impermissibly “motivated by racial considerations,” in the Department’s view. These include the use of “students’ personal essays, writing samples, participation in extracurriculars, or other cues” to determine a student’s race and favor or disfavor them on that basis, and “eliminat[ing] standardized testing to achieve a desired racial balance or to increase racial diversity.” In this and other regards, the DCL arguably goes beyond the practices prohibited by SFFA. The DCL also criticizes “segregation by race at graduation ceremonies and in dormitories and other facilities,” calling into question whether race-based affinity groups, fraternities and sororities, and other supportive programs for minority students are now viewed as unlawful.

Consistent with language in recent Executive Orders, Diversity, Equity, and Inclusion (“DEI”) policies, programs, and practices are called out in the Letter as a means of “smuggling racial stereotypes and explicit race-consciousness into every training, programming, and discipline.” The Letter also critiques DEI programs that “teach students that certain racial groups bear unique moral burdens” and which thus “stigmatize students who belong to particular racial groups based on crude racial stereotypes.”

The Letter instructs all educational institutions to do three things by February 28th:

• “(1) ensure that their policies and actions comply with existing civil rights law;
• (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.”

As further evidence of the Department’s intent to “vigorously” enforce the law, the Letter also encourages anyone who suspects a covered entity of violating the law to file a complaint with the Office of Civil Rights in the U.S. Department of Education (known as “OCR”), providing a link to the Department’s online complaint form.

The DCL underscores the potential for near-term enforcement action against institutions believed to be impermissibly using race as a basis for programs, decisions, or other actions, and the need for educational institutions to consider how their policies and programs may be perceived. Colleges and universities should actively review their programs and policies to ensure they comply with non-discrimination laws, and identify areas where their view of what is lawful under those laws (including SFFA) may diverge from the Department’s view. Institutions also should be on the lookout for the “additional legal guidance” that the DCL states will follow.

Crowell’s Higher Education attorneys are ready to advise and assist educational institutions as they consider how to respond to the DCL and other Executive branch actions addressing the anti-discrimination laws, including potential enforcement actions.