On April 3, 2025, the U.S. Department of Education (Department) issued a certification letter to state commissioners who oversee K-12 state educational agencies (SEAs), entitled “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” The Department is requiring SEAs and local educational agencies (LEAs) to certify compliance with civil rights laws and to acknowledge that compliance is a “material condition for the continued receipt of federal financial assistance.” The material certification is intended to subject the recipient to liability under the False Claims Act, which includes treble damages and statutory penalties on a per “claim” (e.g., invoice) basis.
SEAs are responsible for collecting certification responses from their LEAs. SEAs originally had 10 days to sign and return the certification, but on April 7, 2025, the Department extended the deadline to give school districts “ample time to review and certify their compliance.” SEAs now have until April 24, 2025, to sign and return the certification. The memorandum reiterates that compliance with civil rights laws is a condition for receipt of federal funds for several reasons.
First, federal funding contracts incorporate a requirement to comply with Title VI of the Civil Rights Act of 1964 as a specific condition for receipt of federal funds. As such, “[r]ecipients of Federal financial assistance are automatically subject to the nondiscrimination obligation imposed by the statute” and the “federal government extends assistance ‘in reliance on’ the assurance of compliance.” Schools that receive federal financial assistance already provide the U.S. Department of Education an assurance of compliance with federal civil rights laws, including Title VI of the Civil Rights Act of 1964.
Second, receipt of federal funds under Title I Part A of the Elementary and Secondary Education Act of 1965, as amended, is also conditioned on compliance with “all Federal statutes relating to nondiscrimination.”
Third, regulations require federal agencies and pass-through entities to manage and administer federal awards “in a manner so as to ensure that Federal funding is expended and associated programs are implemented” in compliance with statutes and regulations prohibiting discrimination.
Fourth, as part of applications under the Elementary and Secondary Education Act, each SEA is required to file a set of assurances with the Department, which include the SEA’s commitment “to comply with all Federal statutes regarding nondiscrimination, including, but not limited to, Title VI.”
Citing Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023), the memorandum echoes the Department’s recent statements on DEI in education and instructs that “race may never be used as a ‘negative’ and that it may not operate as a stereotype,” thus, “an individual’s race may never be used against him in the admissions process.” The memorandum states that the U.S. Supreme Court “has been clear that only two interests rise to the level of [a compelling state interest relative to racial classification]: (1) ‘remediating specific, identified instances of past discrimination that violated the Constitution or a statute;’ and (2) ‘avoiding imminent and serious risks to human safety in prisons, such as a race riot.’” Id. at 207. Thus, the memorandum concludes, it is impermissible to use “Diversity, Equity, & Inclusion (DEI) programs to advantage one’s race over another.”
The memorandum reminds schools that the application of impermissible DEI practices can lead to serious consequences, including:
- Elimination of federal funding for any SEA, LEA or educational institution that engages in the conduct;
- Potential initiation of litigation for breach of contract by the Department of Justice in connection with civil rights guarantees contained in federal contracts and grant awards seeking to recover previously received funds paid to them under these contracts and grants; and
- Liability under The False Claims Act, for acts that constitute “knowingly” submitting a “false” claim to the government, with liabilities that include “treble damages and civil penalties of thousands of dollars per violation.”
The Department’s request for certification comes at a time of increased scrutiny of federal funding recipients’ compliance with civil rights law. On Feb. 14, 2025, the Office for Civil Rights (OCR) issued a Dear Colleague Letter, notifying schools that they must cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, scholarship, prizes, administrative support, sanctions, discipline and other programs and activities. On Feb. 28, 2025, OCR issued FAQs to address its framework for evaluating discrimination under Title VI.
Before making any certifications, a school may wish to consult with legal counsel to determine whether its education programs and activities comply with Title VI and other federal civil rights laws. For questions or assistance in completing certification or reviewing policies and practices for compliance with civil rights law, contact a member of McGuireWoods’ education team.