Dive Brief:
- The U.S. Department of Education appeared to ease some of the strictest aspects of its February guidance that threatened to pull federal funding from colleges that consider race in their programs and policies.
- In a Q&A released Saturday, the department clarified that using terms like “diversity,” “equity,” and “inclusion” would not automatically amount to a violation of civil rights law. It also said the department does not have the authority to control classroom instruction or force colleges to restrict First Amendment rights.
- The department also said that programs “focused on interests in particular cultures, heritages, and areas of the world” would not violate civil rights laws if colleges make them open to all students.
Dive Insight:
On Feb. 14, the Education Department released a letter prohibiting colleges from weighing race in any of their decisions and set a Feb. 28 deadline for compliance.
The department's guidance was intended to explain colleges’ obligations under Title VI of the Civil Rights Act, which bars discrimination based on race, color or national origin in federally funded programs. It relied on the agency’s broad interpretation of the 2023 U.S. Supreme Court's decision banning race-conscious admissions practices.
The interpretation — one of the most expansive seen thus far — said the Supreme Court prohibition against considering race in admissions also extended to all other college policies, including hiring, financial aid, administrative support and housing.
The guidance also accused educational institutions of indoctrinating students with "the false premise that the United States is built upon 'systemic and structural racism' and advanced discriminatory policies and practices." The line stoked concerns among higher education experts that the department would seek to interfere with classroom instruction.
The American Federation of Teachers last week sued the department over the guidance, criticizing its broad language. The union said the guidance’s lack of details — including the omission of a definition of DEI — would effectively force colleges to chill free speech in the hopes of avoiding prosecution.
AFT said the guidance appeared to ban wide swaths of previously acceptable programming, including Black History Month events and history curriculum that teaches about structural racism.
In a statement announcing the Q&A, Craig Trainor, the department’s acting assistant secretary for civil rights, maintained that the agency's original guidance was clear. But the new document clarified that both of those examples in the lawsuit will continue to be acceptable.
Educational, cultural or historical observances — events like Black History Month or International Holocaust Remembrance Day — are permitted so long as "they do not engage in racial exclusion or discrimination," the agency said.
However, colleges must consider if their programming "discourages members of all races from attending, either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do participate,” the Q&A said.
The document also clarified its stance on DEI-related language.
"Whether a policy or program violates Title VI does not depend on the use of specific terminology such as 'diversity,' 'equity,' or 'inclusion," the Q&A said. “Schools 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 new Q&A strikes a tonal departure from the original guidance, in which Trainor called DEI a means of “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”
However, the department indicated it would investigate "policies that appear neutral on their face" but it believes were "made with a racially discriminatory purpose."
Once it opens an investigation, the department will consider a college's "history and stated policy of using racial classifications and race-based policies to further DEI objectives, 'equity,' a racially-oriented vision of social justice, or similar goals,” the Q&A said.
