As McGuireWoods shared on Jan. 22, 2025, the Ending Illegal Discrimination and Restoring Merit-Based Opportunity Executive Order (EO) takes aim at diversity, equity and inclusion (DEI) programs at institutions of higher education. The EO requires, among other things, that the U.S. Departments of Justice and Education issue joint guidance on compliance with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), by May 22, 2025. The joint guidance must advise institutions of higher education that receive federal grants or participate in federal programs under Title IV of the Higher Education Act of 1965, as amended, regarding the measures and practices required to comply with SFFA. On Feb. 14, 2025, the Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) that states how the Department of Education views compliance with SFFA.
The DCL opines that SFFA “sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI,” which prohibits discrimination on the basis of race, color or national origin. The DCL states that SFFA’s holding applies “more broadly” than to the admissions decisions at issue in that case. Specifically, the DCL states that:
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. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race. (emphasis added)
Accordingly, the position of the Department of Education is that practices unrelated to admissions — including race-based scholarships, housing and graduation ceremonies — run afoul of Title VI and presumably the U.S. Constitution.
The Department also points to practices that may appear neutral on their face, but are in fact impermissible proxies for racial considerations, including looking to a student’s personal essays for cues about their race and making decisions based on that race. For example, the Department asserts that it would “be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity,” a practice that is growing in prominence among schools.
The DCL also addresses DEI programs that “preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not.” These programs, according to the Department, create stigmas that deny students the ability to participate in the “life of a school.” The Department specifically criticizes indoctrinating “students with the false premise that the United States is built upon ‘systemic and structural racism’ ” through “everyday training, programming, and discipline.”
The Department will take “appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no less than 14 days” from Feb. 14, 2025, “including antidiscrimination requirements that are a condition of receiving federal funding.”
The Department advises educational institutions to: “(1) ensure that their policies and actions 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; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.”
The DCL stated that additional guidance is forthcoming, but in the meantime, the “law is clear.” “[T]reating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.”
Many schools resolve allegations of discrimination under Title VI or other nondiscrimination statutes through an informal resolution prior to the conclusion of OCR’s investigation when “OCR’s investigation has identified concerns that can be addressed through a resolution agreement.” The informal resolution agreement along with a resolution letter, outlining the allegations, relevant background information, and summarizing the investigation, including an analysis of the evidence obtained, are then posted on OCR’s website. Such informal resolutions, however, may now signal to the public that the school may have committed an arguably material violation and false claim under the False Claims Act as outlined under the EO. For example, colleges and universities certify compliance with Title VI through a Program Participation Agreement to receive federal financial student aid. Such certification combined with a resolution letter as well as the resolution agreement provide fodder for a potential lawsuit against the school under the False Claims Act. Entering into a resolution agreement may conclude OCR’s investigation, but such a resolution agreement does not shield schools from liability under the False Claims Act. Similarly, if OCR makes a finding against a school through a letter of findings and the school resolves the matter through a formal resolution agreement, those findings could become the subject of a lawsuit under the False Claims Act.
Please contact the authors of this article with questions about steps your institution should consider taking.