U.S. Department of Education Issues FAQ On Title VI Enforcement and Racial Preferences
The U.S. Department of Education (“Department”) has issued a set of frequently asked questions (“FAQs”) related to the Dear Colleague Letter (“DCL”) released by the Department’s Office for Civil Rights (“OCR”) on February 14, 2025. The February 14th DCL stated that federal antidiscrimination law broadly prohibits education institutions from the use of 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,” and advised education institutions to take specific actions to ensure compliance and prevent the potential loss of federal funding.
Similar to the February 14th DCL, the new FAQ guidance clarifies the Department’s position on the unlawful use of race in an education program or activity pursuant to Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution, and the U.S. Supreme Court decision Students for Fair Admissions. v. Harvard, 600 U.S. 181 (2023) (“SFFA”), among other relevant authorities. While non-exhaustive, important takeaways from the FAQ include:
- Are DEI programs or initiatives unlawful after the SFFA decision? The Department explains in the FAQ that an education institution’s uses of terminology such as diversity, equity, and inclusion for programs and initiatives are not categorical violations of Title VI, and notes that OCR conducts an individual assessment of the facts and circumstances in a given case to determine if students were treated differently based on race, subjected to racial stereotyping, or subjected to a racially hostile environment in violation of Title VI. The Department specifies that programs and initiatives focused on culture, heritage, and historical events that are open to all students would not violate Title VI, including celebrations of Black History Month, International Holocaust Remembrance Day, and other similar observances and educational programming.
- Does Title VI and the Department’s February 14th DCL prohibit schools from discussing race or related DEI topics? The Department emphasizes that schools must not restrict rights protected by the First Amendment of the U.S. Constitution when fulfilling their Title VI obligations. Relevant to higher education institutions, the Department identifies certain practices that may create a racially hostile environment: “requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, 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.”
- How will OCR investigate allegations of race-neutral institutional policies with a discriminatory purpose? The FAQ provides a non-exhaustive list of the different types of circumstantial evidence analyzed by the OCR when determining if an education institution acted with a racially discriminatory purpose. Namely, OCR will consider: “(1) whether members of a particular race were treated differently than similarly situated students of other races; (2) the historical background or administrative history of the policy or decision; (3) whether there was a departure from normal procedures in making the policy or decision; (4) whether there was a pattern regarding policies or decisions towards members of a particular race; (5) statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race; and (6) whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race.” The FAQ also provides an overview of the three-step test used by OCR to assess circumstantial evidence of discriminatory intent, which mirrors the McDonnell-Douglas framework from employment discrimination law. The Department identifies as particularly probative in the FAQ an education institution’s history and stated goals of furthering “DEI objectives,” “equity,” and “a racially-oriented vision of social justice” with racial classifications or race-based policies.
- How does Title VI apply to an education institution’s procurement of goods and services by third-parties? The Department makes clear in the FAQ that an education institution’s Title VI obligations extend to the conduct of third-party contractors and other entities “over whom the school exercises some control,” including the unlawful use of racial preferences on behalf of the education institution.
- What actions can OCR take against an education institution that fails to comply with Title VI? The FAQ outlines OCR’s process for negotiating a voluntary resolution agreement with a noncompliant institution and for monitoring implementation of the agreement terms, including any remedial actions a noncompliant institution must take to address specific areas of concern. In the event a voluntary resolution agreement is not reached, the Department may initiate administrative proceedings against the noncompliant institution or refer the matter to the U.S. Department of Justice.
A legal challenge to the Department’s policy positions, as stated in February 14th DCL, has been filed by the American Federation of Teachers and the request for declaratory judgement and injunctive relief is pending in federal court.
HMBR’s Higher Education Group will continue to monitor this issue. If you have questions about the impact of the Department’s February 14th DCL and new FAQ guidance on your institution’s specific programs and activities, or require assistance in conducting a risk assessment or developing response strategies, please contact us via email or by phone at 312-946-1800.
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