Dear Colleague: Watch Out

In a tersely worded “Dear Colleague” letter dated February 14, 2025 (pdf), the U.S. Department of Education’s Office of Civil Rights (OCR) signaled its intent to combat “pervasive and repugnant race-based preferences and other forms of racial discrimination” it claims have been embraced in by American educational institutions.

What is in the OCR’s letter?

Specifically identifying harm to “white and Asian students, many of whom come from disadvantaged backgrounds and low-income families,” OCR accuses institutions of using diversity, equity, and inclusion (DEI) as a justification for “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”

Citing the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA), the letter goes on to explain that OCR interprets SFFA to mean that even programs that are neutral on their face are unlawful when they are “motivated by racial considerations.”

It asserts that a school may not use students’ “personal essays” or other cues to determine or predict a student’s race and favor or disfavor such students. As a further example, OCR states that elimination of standardized testing “to achieve a desired racial balance or to increase racial diversity” is unlawful.

What is next for education institutions?

Additional legal guidance on these new positions was promised in “due course,” but the letter creates a sense of urgency by stating that it intends to take measures to assess compliance beginning no later than February 28, 2025.

Noting that institutions’ federal funding is at risk, OCR advises them to:

1. Ensure their policies 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
3. Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions to circumvent prohibited uses of race.

Significantly, the OCR Dear Colleague letter does not have the force and effect of law, and does not create any new legal standard. 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.

While the impact of the letter is ostensibly limited to practices that are already illegal under Title VI of the Civil Rights Act of 1964, educational institutions would be wise to consider how the interpretations in the letter would apply to their schools.

One obvious point of contention will be neutral practices that may have the effect of increasing racial diversity. Most schools would deny these practices are an effort to “circumvent” the prohibition on the use of race. For example, in the admissions context a personal essay that describes a student’s struggles to overcome an instance of discrimination may provide insight into that student’s qualities as an applicant. A school’s reliance on such an essay is not an attempt to find a proxy for race, but to identify candidates whose overall applications are more compelling than a set of test scores.

It seems likely, however, that OCR may identify this practice (which was specifically condoned in SFFA) as “covert racial discrimination.” Similarly, efforts to support students from diverse backgrounds have not traditionally been viewed as unlawful when they do not involve formal exclusion of others, but these practices are also likely to be under the microscope in the next four years.

How should educational institutions react?

Schools that receive federal funds must comply with Title VI and other federal anti-discrimination laws, and it is certainly an opportune time to identify any practices that may come under scrutiny. We expect many schools will approach this as a triage effort, with the following components:

1. Review and categorize current practices:

2. Take appropriate action to prepare for OCR scrutiny:

Category 1 practices may put the institution at risk of further scrutiny or loss of federal funding, regardless of OCR’s Dear Colleague letter, and should be rescinded or modified.

Category 3 practices may be disfavored by the current administration, but most institutions are not prepared to preemptively abandon lawful diversity and inclusion efforts such as these.

Category 2 practices are probably deserving of the greatest concern. The appropriate action may depend on the risk tolerance of the school. There are factual and legal defenses that such practices are not “proxies for discrimination” even if they result in increased racial diversity. Nevertheless, some institutions may choose to modify these practices, even if they are maintained, to see how the courts react to OCR’s interpretation of the law.

While educational institutions recognize they should play a role in remedying their own history of race discrimination, most would prefer not to be the “guinea pig” for litigating these issues against the federal government and certainly do not want to risk their federal funding.

That said, 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 SFFA decision may well have implications that go far beyond race-conscious admissions processes, but the OCR letter’s broad condemnation of American academic institutions as engaging in widespread unlawful discrimination is yet to be adopted by the courts. This counsels a cautious approach to ongoing policies relating to diversity and inclusion and, of course, appropriate consultation with legal counsel.

Woods Rogers attorneys are here to help you monitor and understand the rapid changes coming from the new presidential administration. If you have questions about OCR’s Dear Colleague letter or other DEI-related matters, please contact the authors of this alert, your Woods Rogers attorney, or any member of the Higher Education team.