U.S. Department of Education’s ‘Dear Colleague’ Letter Prohibiting DEI and FAQs Document Challenged in Federal Court

Quick Hits

• On February 28, 2025, the U.S. Department of Education’s Office for Civil Rights issued FAQs articulating the “broad implications” of the Supreme Court’s 2023 SFFA decision, which held that certain race-conscious college admissions policies violated the Equal Protection Clause of the Fourteenth Amendment.
• The FAQs explain “how OCR will interpret the [SFFA] ruling in its enforcement of Title VI of the Civil Rights Act of 1964 and its implementing regulations.”
• Noting that the Education Department’s February 14, 2025, “Dear Colleague Letter” advised educational institutions to “ensure that their policies and actions compl[ied] with existing civil rights law” and to “cease all reliance on third-party contractors” and proxies to “circumvent prohibitions on the use of race,” the FAQs emphasize the broad scope of Title VI’s coverage, which applies to “any program or activity receiving Federal financial assistance from the Department of Education,” and that schools’ “responsibility not to discriminate against students applies to the conduct of everyone over whom the school exercises some control, whether through a contract or other arrangement.”
• A lawsuit seeking to enjoin and vacate the FAQs and DCL was filed on March 5, 2025, alleging that in issuing the DCL, the Department of Education exceeded its statutory authority under Title VI, the Department of Education Organization Act (DEOA), and the General Education Provisions Act (GEPA), penalized protected speech on issues of race and DEI, and violated the Administrative Procedure Act.

The lawsuit alleges that the DCL threatens schools with a loss of federal funding if they continue DEI programs, infringes on constitutional rights, lacks clarity, and disrupts educational practices aligned with civil rights laws. The lawsuit, National Education Association and National Education Association-New Hampshire v. U.S. Department of Education, seeks declaratory and injunctive relief, including preliminarily and permanently restraining and enjoining the Department of Education from enforcing the DCL and asking the court to declare unlawful, vacate, and set aside the DCL, the “End DEI” portal, and the FAQs.

The DCL and FAQs

The DCL warned that the Department of Education’s interpretation of laws prohibiting racial preferences must be followed or recipients would risk funding. The Department of Education indicated its intention to begin enforcing within two weeks of the date of the DCL its interpretation of legal requirements for institutions under SFFA, Title VI of the Civil Rights Act of 1964, and the Equal Protection Clause of the U.S. Constitution.

The DCL read: “At its core, the test is simple: 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. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

At the two-week mark, the Department of Education instead issued FAQs, stating it would investigate allegations of race discrimination in all aspects of university life, though the SFFA decision was limited to consideration of race in admissions policies only.

The FAQs provide answers to fifteen questions regarding the use of race in various aspects of education, including admissions, financial aid, scholarships, hiring, training, discipline, housing, graduation ceremonies, and curricula. They provide additional context, explaining in FAQ 6 that “when there is a limited number or finite amount of educational benefits or resources—such as, inter alia, admissions spots in an incoming class, financial aid, scholarships, prizes, administrative support, or job opportunities—a school may not legally take account of a student’s race in distributing those benefits or resources, even if race is only being considered as a positive or plus factor, because to advantage members of one race in a competitive or zero-sum process is necessarily to disadvantage those of a different race.”

With respect to the use of proxies, such as income or zip codes, the DCL also explains the Education Department’s current view that even the use of non-racial proxies, such as eliminating standardized testing, is “unlawful” if the purpose is “to achieve a desired racial balance or to increase racial diversity.” This is one of the views that is challenged in the lawsuit brought by the NEA.

The FAQs appear to curtail a widely discussed (and debated) area since the SFFA decision—whether admissions essays should provide students the opportunity to reveal their race. Writing for the majority in the SFFA decision, Chief Justice Roberts wrote, “[N]othing in this 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 … universities may not simply establish through application essays or other means the regime we hold unlawful today.” (Internal citations omitted.)

With respect to the use of admissions essays, the Department of Education’s FAQs caution (in FAQ 10), “Schools that craft essay prompts in a way that require[s] applicants to disclose their race are illegally attempting to do indirectly what cannot be done directly, as are admissions policies that hold brief interviews in order to visually assess an applicant’s race.”

On this note, the DCL, analyzing and interpreting the SFFA decision, stated, “[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.”

With respect to DEI programs, the FAQs explain (in FAQ 8) that programs that are educational and open to all are lawful, whereas programs that segregate attendees by race or ethnicity are not:

“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. For example, schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” The FAQs caution that DEI programming may give rise to “hostile environments” and that such claims will be balanced against First Amendment rights. The FAQs further explain (in FAQ 9) that schools must respond to and investigate hostile environment complaints:

In determining whether a racially hostile environment exists, OCR will examine the facts and circumstances of each case, including the nature of the educational institution, the age of the students, and the relationships of the individuals involved. For example, an elementary school that sponsors programming that acts to shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors or relatives in other areas of the world could create a racially hostile environment. But similar themes in a class discussion at a university would be less likely to create a racially hostile environment. In all cases, the facts and circumstances of that discussion will dictate the answer to that inquiry.

FAQ 9 suggests that at the university level, “requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, … mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race—are all forms of school-on-student harassment that could create a hostile environment under Title VI.”

The implications of this interpretation of the SFFA decision are significant for educational institutions. According to the Department of Education, SFFA makes unlawful the use of racial preferences in admissions and other areas (such as campus life and student activities) under Title VI and the Equal Protection Clause. The department cautions that both public and private higher education institutions must ensure that their policies comply with the legal standards laid out by the department to avoid discrimination based on race, color, or national origin. The FAQs repeat OCR’s intention to enforce its interpretation of the SFFA ruling in its oversight of educational institutions that receive federal financial assistance.

On February 18, 2025, President Trump signed Executive Order (EO) 14215, stating that only the president and the attorney general can interpret the law for the executive branch. This suggests that institutions cannot rely upon judicial interpretations or the courts to correct the FAQs’ misinterpretations, if any, of the SFFA’s decision on racial preferences.

The Lawsuit

The lawsuit argues that the DCL “drastically disrupts Plaintiffs in their ability to provide education to students in accordance with professional requirements and best practices” because it “threaten[s] schools and colleges across the country with the loss of federal funding in a matter of days if they continue[] to pursue … ‘DEI programs.’” The plaintiffs argue that the DCL infringes on constitutional rights, lacks clarity, and disrupts educational practices aligned with civil rights laws. The plaintiffs state that the DCL threatens to cut federal funding for schools that continue DEI programs and argue that it is vague, infringes on constitutional rights such as academic freedom in higher education, freedom of speech, and freedom of association under the First Amendment, and disrupts educational practices.

The lawsuit also alleges multiple violations of the Administrative Procedure Act that, in some respects, mirror the procedural challenges lodged against the Biden administration’s 2024 Title IX final rule. These include allegations that the DCL is arbitrary and capricious, as it lacks a reasoned explanation, fails to consider important aspects of the problem, and disregards material facts and reliance interests; is an abuse of discretion; represents a dramatic shift from prior Education Department guidance without acknowledging or explaining the change; is not in accordance with current law because it conflicts with Title VI and its implementing regulations, and violates the DEOA and GEPA by exercising control over curriculum and instructional materials; and is impermissibly vague and violates Fifth Amendment rights to due process. As an example of the latter, the lawsuit reads:

[As] an example, although the Letter asserts that “DEI programs” unlawfully “discriminate,” it fails to define what constitutes a “DEI program,” explain how such programs “preference” certain racial groups, or provide criteria for determining the circumstances under which educational programs that in any way address race might violate federal antidiscrimination law. As illustrated by the difficulties facing NEA, NEA-NH, and their Members, … the letter fails to provide adequate notice about what speech and programming regarding race, diversity, equity, or inclusion is prohibited under federal law. The ambiguity permeating the Letter’s discussion of DEI programs also invites arbitrary and selective enforcement against educational programs that advocate views on race inconsistent with those espoused by [the U.S. Department of Education].

The lawsuit also asserts that the DCL constitutes a final agency action subject to judicial review because it “marks the ‘consummation’ of the agency’s decisionmaking process, sets forth the agency’s conclusions that schools are acting unlawfully, and proscribes new substantive obligations ‘from which legal consequences will flow.’” It argues that the “End DEI” portal and the FAQs “reflect and incorporate this final agency action.”

Key Takeaways

The Department of Education is doubling down on its interpretation of SFFA, and EO 14215 significantly limits the odds that these interpretations will be internally challenged or adjusted. A lawsuit has been filed, and it remains to be seen whether the plaintiffs’ request for injunctive relief will be granted. State attorneys general and state regulators are also issuing their own guidance to higher education institutions and K–12 schools.

For now, schools may want to take note of the Department of Education’s interpretations and warning that OCR will vigorously enforce the law and that noncompliance may result in an educational institution’s loss of federal funding.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Higher Education Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance and Higher Education blogs as additional information becomes available. This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts