OCR's Valentine's Day Title VI Letter^[1]

The Office of Civil Rights issues anti-DEI Dear Colleague Letter seeking to end “advanced discriminatory policies and practices.”  

Introduction

While many Americans were sending Valentine’s kisses, chocolates, and roses, the Department of Education’s Office of Civil Rights (OCR) issued a February 14, 2025 Dear Colleague Letter (DCL). This one was to inform schools and universities that receive federal funding how the agency will interpret Title VI, which prohibits discrimination based on race, color, or national origin by recipients of federal funding. The full letter is available via this link.

Contents of the DCL

Prefatory Concerns

The recent letter begins with a heightened conspiratorial tone of concern with statements like the following:

• “In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students….”

• “In a shameful echo of a darker period in this country’s history, many American schools and universities even encourage segregation by race at graduation ceremonies and in dormitories and other facilities.”

• “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.”
  
• Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of “diversity, equity, and inclusion” (“DEI”), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”

Applying Supreme Court Ruling

The letter briefly reviews the 2023 Supreme Court case of Students for Fair Admissions, Inc. (“SFFA”)v. President & Fellows of Harvard Coll.^[2] In that case, the U.S. Supreme Court rejected direct racial preferences in university admissions under the 14th Amendment Equal Protection Clause.

Prohibited Practices

The Department will interpret the SFFA case broadly. This means, among other things, rejecting the following practices (as indicated by the accompanying DCL language):

Racial Balancing

Title IV does not support “[n]ebulous concepts like racial balancing and diversity are not compelling interests.

Racial Stereotyping

“As the Court explained in SFFA, ‘an individual’s race may never be used against him’ and ‘may not operate as a stereotype’ in governmental decision-making.”

Discriminatory “Proxies” and “Cues”

“A school may not use students’ 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.”

Other Circumventing Actions

Schools must “cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used … in an effort to circumvent prohibited uses of race.”

Follow-up and Enforcement

Near its conclusion, the DCL promises to offer “additional guidance … in due course,” to “vigorously enforce the law,” and “take appropriate measures to assess compliance” within 14 days.

Initial Commentary and Considerations

Although the letter has more direct implications for college and university admissions, K-12 public school officials still must consider its application to their schools.

The Department’s DCL is NOT THE LAW, but an interpretation.  Only Congress and the courts establish law and legal boundaries. Administrative and executive enforcement involves interpretations of that law. We will have to wait for a court with jurisdiction over North Carolina schools (e.g., the 4th Circuit Court of Appeals or U.S. Supreme Court) to know whether Title VI means what the DCL says.

Whether, how much, and how quickly must schools respond?  It is important to remember that OCR’s power to compel compliance is the “power of the purse” – the threat of losing federal funding. If school officials find administrative interpretations and guidelines troublesome, they must consider philosophical, moral, and practical questions and whether the money is worth it.

Theoretically, a board could “just say no.”  That is, it could decide it is worth the risk of losing funding down the road if it chooses not to apply the DCL in a way that violates higher principles. Remember that Title VI and all other antidiscrimination statutes attempt to promote justice and fairness – the spirit of the law. If your board believes following the letter’s interpretation violates the spirit of Title VI,  then the board must wrestle with the implications.  

Practical Consideration for Compliance with the Letter

Policy and Practice Review. The letter advises all institutions to “ensure that their policies and actions comply with existing civil rights law.” Schools should, in balance with other priorities and demands, perform such a review with legal assistance.

Questions to Apply. Questions to consider in any school policy review should include the following:

• Does it favor any particular racial category of persons? (Afro-American, Asian, Caucasian, etc.)
• Does it seek to promote diversity as a goal at the expense of any class of persons?
• Are there practices that the Department might consider racial “cues,” “proxies,” or “circumventions?”  

Specific Actions and Areas for Consideration.  General areas of school practice that may be especially susceptible to Department concerns include:

• Race-based admission practices or lottery weighting
• Employee recruiting, hiring, promotion, and dismissal
• Curricular emphases and materials
• Athletics and other extracurricular activities and options
• Staff training and handbook materials

Stay tuned for more information.

The Author is the Founder and Director of Lexis School Law Services, a North Carolina education law firm. He is also on faculty in the School Leadership Program at Appalachian State University.  For more information, questions, or legal consultation, he may be contacted at 919.442.8593 or  hos@Lex-is.com.    

Disclaimer: This article is for information purposes only and is not offered as legal advice.