ED Releases More Guidance After DEI Dear Colleague Letter
By Maria Carrasco, NASFAA Staff Reporter
The Department of Education (ED) on Friday evening released a Frequently Asked Questions document on its recent Dear Colleague Letter guidance, which told institutions to cease using "racial preferences" in admissions, financial aid, hiring and other areas, or be at risk of losing federal funding.
In February, ED released a DCL over legal requirements for institutions under the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions (SFFA) v. Harvard, and Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Constitution. While the U.S. Supreme Court decision only touched on race in institutions’ admissions policies, the DCL stated that institutions must cease using race preferences as a factor in admissions, financial aid, hiring, training, and other institutional programming.
According to the DCL, institutions that fail to comply may be subject to an investigation, and could lose federal funding. ED said that it would begin assessing compliance 14 days from the letter’s publication date, which was February 14.
On February 28, ED released a FAQ walking back some of its original claims in the DCL. For example, in the original DCL, ED said institutions that fail to comply with federal civil rights law may face potential loss of federal funding. However, in the FAQ, one question answered is how will ED’s Office of Civil Rights (OCR) proceed with institutions that it determines are out of compliance with Title VI.
ED answered that if OCR determines an institution failed to comply with Title VI, OCR will contact the institution and “attempt to secure its willingness to negotiate a voluntary resolution agreement.” If the institution agrees to resolve the complaint, OCR and the institution will “negotiate” a written resolution agreement. If an institution is unwilling to negotiate, OCR will inform the institution of the consequences, which may result in OCR initiating enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings, according to the FAQ.
The FAQ also described the Trump administration’s interpretation of Title VI, the SFFA decision, and, more broadly, the topic of “diversity, equity, and inclusion” (DEI). Under the FAQ asking if DEI programs are unlawful, ED said institutions may not have “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.”
In the FAQ, ED claimed that some institutions have “advanced discriminatory policies and practices” under the banner of DEI initiatives. However, whether an institution violates Title VI does not depend on the use of specific terminology such as “diversity,” “equity,” or “inclusion,” ED wrote.
Specifically, ED wrote that institutions with programs focused on interests in particular cultures, heritages, and areas of the world are not “in and of themselves” violating Title VI, assuming they are open to all students regardless of race. Additionally, educational, cultural, or historical observances – such as Black History Month or International Holocaust Remembrance Day – are legal if they do not engage in “racial exclusion or discrimination.”
Furthermore, ED wrote institutions must consider whether any programming discourages members of all races from attending either by excluding or discouraging students of a particular race or races, or by creating “hostile environments” based on race for students who do participate.
When it comes to the SFFA decision, ED interpreted that ruling to mean that when there is “a limited number or finite amount” of educational benefits or resources – such as admissions spots in an incoming class, financial aid, scholarships, prizes, administrative support, or job opportunities – institutions may not legally take account of a student’s race in distributing those benefits or resources.
And even if race is only being considered as a “positive or plus factor,” it is illegal because to advantage members of one race “in a competitive or zero-sum process is necessarily to disadvantage those of a different race,” ED wrote.
According to ED, institutions may not administer or advertise scholarships, prizes, or other opportunities offered by third parties based on race.
NASFAA, along with over 60 other higher education organizations, recently sent a letter to ED’s Acting Assistant Secretary for OCR Craig Trainor, and argued ED should rescind the DCL and instead work with the higher education community to ensure a clear understanding of institutions’ legal obligations.
“In order to support students and combat discrimination, OCR ought to engage relevant stakeholders in a consultative manner to ensure that institutions of higher education are in compliance with their legal obligations under Title VI and federal nondiscrimination law,” the letter reads.
Publication Date: 3/4/2025
Sandra A | 3/4/2025 11:18:18 AM
"...institutions may not administer or advertise scholarships, prizes, or other opportunities offered by third parties based on race." So does this mean we can't even advertise outside scholarship opportunities like the Hispanic Scholarship Fund? Our job is to help students find affordable ways to fund their education. Why should we not be able to share these types of opportunities? Scholarships like these have help countless students be able to borrow less or not at all.
Kris H | 3/4/2025 9:16:40 AM
I unfortunately wonder if some of Florida's state financial aid programs will eventually be impacted by ED's sudden guidance, e.g.,
-Rosewood Family Scholarship
-Randolph Bracy Ocoee Scholarship
-Minority Teacher Education Scholars Program
-José Martí Scholarship Challenge Grant Fund
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