By Liam Knox
Late Friday night, long after most people had settled in for a long Presidentsâ Day weekend, the Education Departmentâs Office for Civil Rights declared in a four-page letter that any race-based policies or programming in K-12 schools and colleges were unlawful. The letter targeted âevery facet of academia,â from scholarships and academic prizes to campus cultural centers and even graduation ceremonies. If institutions fail to comply in 14 days, they risk losing federal funding.
By the following morning, the letter had spread fear and indignation throughout the American education system.
If the OCRâs threats are carried outâwhich would be unprecedented for the officeâhigher ed institutions could lose out on billions in funding for research grants, student financial aid and institutional support, undermining decades of work to improve success and access for marginalized students. At the same time, itâs unclear if all or even most of the letterâs dictates will hold up in court. Brian Rosenberg, former president of Macalester College and a visiting professor of education at the Harvard Graduate School of Education, told Inside Higher Ed the letter was âtruly dystopian.â
College presidents now face a fraught task: deciding what to do next.
The letter sent Friday night includes interpretations of both the Supreme Courtâs affirmative action ruling in Students for Fair Admissions v. Harvard and federal nondiscrimination law that many scholars have long said amount to overreach. In particular, the department said that considering an applicantâs race as part of their experience as described in personal essaysâa gap in the ruling explicitly left open by Chief Justice John Robertsâwould be illegal, and that race-neutral recruitment and admissions policies like removing standardized test requirements could be investigated as proxies for racial consideration.
âWe donât agree with the conclusions theyâre drawing and weâre not sure a lot of courts will agree with the conclusions theyâre drawing,â said Jon Fansmith, senior vice president for government relations and national engagement at the American Council on Education. âThis idea that anything that speaks to diversity is somehow discriminatory is very, very far out of the norm and very much outside of the law.â
In recent weeks, several Trump administration orders and directives have been challenged in lawsuits, and some were frozen by federal judges. Art Coleman, founding partner at EdCounsel LLC, a firm specializing in higher education law, said he wouldnât be surprised to see challenges to this Dear Colleague letter.
While officials acknowledged in a footnote that the letter is merely âguidanceâ and âdoes not have the force and effect of law,â Coleman said the text of the letter itself sets out legal principles well beyond established legal precedent.
âA Dear Colleague letterâeven one written in very technical, well-settled legal parlanceâcannot change the law, cannot alter constitutional standards, cannot change the contours of what federal courts have said,â he said. âThe practical reality on the ground right now is, institutions around the country are looking at a body of law that has not changed ⊠What has changed is the threat of overreach and aggressive enforcement grounded in policy preferences, not legal standards.â
Coleman added that the exceedingly ambiguous language and questionable interpretations of legal precedent would make it hard to enforce.
â[The letter] says its intent is to âclarify and reaffirmâ the contours of federal nondiscrimination law. To the contrary, I think it confuses and obfuscates,â Coleman said. âTheyâre doing too much and too little at the same time ⊠itâs a veiled threat without the details needed for enforcement.â
Still, Coleman said he doesnât think the letter is all bluster, and that it would be âunwise not to take it seriously.â
âThe mission really seems to be to overwhelm the arena of education, to chill and paralyze, and I think if you put this together with [Trumpâs] executive orders [on DEI], the goal is to create so much consternation and confusion that you stop doing what you need to,â Coleman said.
Fansmith said that college leaders are concerned and the letter could have a chilling effect on whatâs left of DEI programs. In recent weeks institutions have already scrubbed DEI mentions from websites in order to comply with the presidentâs executive order banning diversity, equity and inclusion programs. And in states where attorneys general interpreted the SFFA ruling to extend to race-conscious scholarships, colleges have removed racial considerations in student aid entirely.
Fansmith said institutions will have to decide how much they want to fight the department and will likely weigh other risks in choosing whether to comply. He thinks college administratorsâ decisions will hinge in part on the departmentâs willingness to follow through on its threats and try to withhold federal funding, the final step in a lengthy investigative process. If they do, he said, that could change the risk calculation.
Coleman said that some of the letterâs targets, like race-based scholarships, could be subject to OCR investigations that might hold up in court depending on the details of a case. But he believes other targets, like cultural centers and DEI programming, are more securely protected by established precedent.
âThe threats to the remaining facets of DEI that this administration doesnât like, thatâs where I think weâve got a really strong guardrail,â he said. âBut a guardrail is only as good as the people willing to stand behind it and fight.â