Faculty and free speech advocates have panned the U.S. Department of Education’s new guidance that threatens to pull federal funding from colleges and K-12 schools that consider race in their programs and policies.
The Education Department’s Office for Civil Rights released guidance Friday saying colleges are prohibited from weighing race in any decision-making — including pertaining to scholarships, housing and graduation celebrations — citing the 2023 U.S. Supreme Court ruling against race-conscious admissions practices.
In a four-page letter, the department said it interprets the landmark court decision as applying to every aspect of education, not just admissions. Colleges have until the end of the month to comply or risk losing their federal funding, the letter said.
An expansive interpretation
Since the Supreme Court handed down its 2023 ruling, conservative policymakers and opponents of diversity efforts have sought to apply it to more than just admissions, with much of their attention focused on scholarships and grants that include race-based eligibility criteria.
The Education Department's guidance represents the most expansive interpretation of the ruling yet. In it, Craig Trainor, the department's acting assistant secretary for civil rights, decried DEI as a discriminatory practice aimed at "smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline."
"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," Trainor wrote.
The letter takes aim at information it says could serve as a potential proxy for race.
"Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law," the letter said. "It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity."
It is unclear if the department would investigate colleges that are test optional or elect to change their requirements in the future. The letter also did not say what metrics the department would apply to determine if colleges were using information as a proxy for race.
"The Department of Education will no longer allow education entities to discriminate on the basis of race," Trainor said Tuesday in response to requests for further details. He pointed to a "test" established in the letter — "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."
"This isn’t complicated," he said, adding that further guidance on implementation is forthcoming.
On social media Friday, the Elon Musk-run Department of Government Efficiency, or DOGE, interpreted the letter as giving each state's education department "14 days to remove all DEI programming in all public schools."
Faculty and free speech advocates react
Todd Wolfson, president of American Association of University Professors, called the department's letter a declaration of war on American civil rights.
"Because it goes far beyond what federal statute and Supreme Court case law mandate, the letter betrays the Trump administration’s goal of consolidating power and ruling by fiat, fear, and propaganda," Wolfson, president of AAUP, said in a statement.
Wolfson also took issue with Trainor's description of higher education.
"The version of university life depicted in the letter is a gross distortion intended to undermine the public’s faith and confidence in colleges and universities," he said. "In fact, education is not toxic indoctrination that smuggles illicit topics into the classroom. It is a process of inviting students to reflect on what we think we know."
PEN America, a free expression organization, called the letter an outrageous affront to freedom of speech in education and said it has no basis in law.
"It represents yet another twisting of civil rights law in an effort to demand ideological conformity by schools and universities and to do away with critical inquiry about race and identity," the group said in a Saturday statement. The organization said the letter's broad language means the agency could bar anything from "a panel on the Civil Rights Movement to a Lunar New Year celebration."
PEN America called for the department to retract the letter.
Erika Donalds of the America First Policy Institute, a conservative think tank, celebrated the letter on social media Saturday, using similar language to DOGE's post.
"Good to see American tax dollars refocused on meaningful instruction and not divisive ideology in our K-12 schools!" wrote Donalds.
What should colleges do now?
Jeffrey Weimer and Cori Mishkin, lawyers at the firm Reed Smith who specialize in higher education, reviewed the department's letter Monday and pointed out several questions it raised.
"Does the Department’s interpretation of Title VI apply to funding for student organizations or affinity groups?" they wrote. "If so, how will that impact student governance and an institution’s role in funding decisions typically delegated to students?"
The attorneys also questioned if the department's interpretation of Title VI of the Civil Rights Act — which bars discrimination based on race, color or national origin in federally funded programs — would ban the remaining diversity recruitment and retention strategies left permissible by the Supreme Court, such as consideration of student admissions essays that touch on race and ethnicity.
The Supreme Court said nothing in its opinion "should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise."
But the department's letter explicitly banned colleges from using "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."
Woods Rogers, a Virginia-based law firm, told colleges in a post Monday that the Education Department's letter does not "have the force and effect of law" and does not create a new legal standard, despite the sense of urgency it creates by setting a deadline.
"Nevertheless, the letter, along with the Trump administration’s other executive orders, makes it clear that OCR views a host of common institutional practices to constitute discrimination on the basis of race," the law firm said.
One “obvious point of contention,” Woods Rogers said, will be neutral practices that potentially increase racial diversity.
Prospective students, for example, can use an admissions essay to describe how they overcame discrimination, including racial prejudice. Colleges may use that information to find potential students “whose overall applications are more compelling than a set of test scores,” the post stated.
But the firm said it seems likely that the Education Department may consider this practice as “covert racial discrimination,” despite being explicitly permitted by the Supreme Court.
"Short of eliminating all programs that may have any impact on racial diversity and inclusion, the question becomes one of where to draw the line," the firm said.
Lawyers Weimer and Mishkin said the Education Department’s letter and its enforcement are likely to face lawsuits, citing the bevy of legal challenges filed in reaction to the other dramatic executive policy actions in recent weeks.
AAUP is already suing the Trump administration over executive orders aimed at barring diversity, equity and inclusion efforts in the public and private sectors.
