Understanding Title VI Enforcement Amidst Columbia University Action
Last week, the Trump Administration announced the cancellation of $400 million in federal grants and contracts to Columbia University, citing alleged violations of Title VI of the Civil Rights Act of 1964 (“Title VI”) related to antisemitism on campus. This action represents a significant departure from the established regulatory enforcement processes used to assess institutional compliance with federal civil rights laws.
The Administration’s action against Columbia occurred against the backdrop of the February 14, 2025 Dear Colleague Letter (“DCL”) issued by the U.S. Department of Education’s Office for Civil Rights (“OCR”). While the DCL and its accompanying set of Frequently Asked Questions (“FAQ”) primarily focus on the use of race in educational programs and activities, rather than institutional obligations to address on-campus harassment, the guidance includes cautionary language about a potential loss of federal funding for institutions that fail to comply with the Administration’s interpretation of Title VI.[1]
Against this evolving enforcement landscape,[2] understanding the standard procedures through which OCR and other federal agencies enforce Title VI may prove to be invaluable to colleges, universities, and other educational entities. To assist institutions in anticipating potential next steps, this blog post provides a refresher on the traditional enforcement mechanisms available to the Administration for enforcing compliance with its interpretation of Title VI.
A. Office for Civil Rights
First, the Administration could invoke OCR’s administrative authority to take action against an institution that failed to comply with its directives concerning Title VI compliance. OCR is responsible for overseeing and enforcing Title VI’s prohibition against discrimination based on race, color, and national origin by entities receiving federal financial assistance from the Department.
1. OCR’s Investigatory Processes
OCR is authorized to carry out its enforcement obligations via the following three processes, which are described in detail in OCR’s Case Processing Manual (“CPM”):[3]
a) Complaint Investigations. Under Title VI, OCR has jurisdiction to investigate complaints filed by covered individuals (e.g., applicants for admission, students, or parents) alleging that an educational institution that receives federal funds discriminated against the complainant based on race, color, or national origin.[4] Before opening a complaint for investigation, OCR must verify that it has subject matter jurisdiction over the allegations, that it has personal jurisdiction over the entity alleged to have discriminated, that the complaint is timely,[5] and that the complaint is not otherwise subject to dismissal pursuant to Section 108 of the CPM.
b) Compliance Reviews. OCR is also authorized to initiate “periodic compliance reviews” to assess the practices of institutions receiving federal financial assistance to determine whether they comply with Title VI.[6] As the Title VI regulations do not impose specified requirements or procedures for compliance reviews, OCR has “broad discretion to determine the substantive issues for [review] and the number and frequency of [compliance reviews].”[7]
c) Directed Investigations. Finally, the Title VI regulations permit OCR to initiate its own investigation (called a “directed investigation”) when information indicates a possible failure to comply with Title VI, the matter warrants attention, and the compliance concern is not otherwise being addressed through OCR’s complaint, compliance review, or technical assistance activities.[8] Depending on the circumstances, a directed investigation may include offering technical assistance to the institution and/or conducting an expedited investigation that may result in a resolution agreement to ensure that the institution comes into compliance with the requirement(s) at issue. According to Department press releases, OCR has initiated at least seven (7) directed investigations against educational entities in the past five (5) weeks since President Trump’s inauguration.
The CPM provides the framework for OCR complaint investigations, directed investigations, and compliance reviews. All three processes include initial written notice to the institution (and, in the case of a complaint investigation, the complainant) outlining the nature, scope, and legal basis for the investigation or compliance review. In certain circumstances, OCR has discretion to engage in an expedited case processing approach (called “Rapid Resolution”) to resolve cases in any of OCR’s statutory areas, either during the initial complaint evaluation stage or after issuance of the initial written notice to the institution.[9]
For matters that proceed to an investigation, the investigation typically entails information and record gathering by OCR, interviews with witnesses, and an opportunity for the institution to submit a written response to the allegations. In complaint investigations, the complaining party and institution may be given an opportunity to participate in mediation, either upon request or where OCR determines that the complaint could be appropriate for mediation.[10]
Following an investigation, compliance review, or directed investigation (and assuming that the matter is not resolved via Rapid Resolution or mediation), OCR makes a determination of whether a preponderance of the evidence supports a conclusion of non-compliance by the institution.[11] When OCR determines that the evidence supports a finding of non-compliance, OCR will negotiate a resolution agreement with the institution and issue a letter of finding(s). The resolution agreement must include action steps that, when implemented, will remedy both the individual discrimination at issue and any similar instances where future violative conduct may recur.
2. Enforcement Action
In cases where OCR is unable to negotiate a resolution agreement with the institution, OCR may pursue enforcement action, by either: (a) initiating administrative proceedings to suspend, terminate, or refuse to grant or continue and defer federal financial assistance; or (b) referring the case to the U.S. Department of Justice (“DOJ”) for judicial proceedings.
a. Administrative Enforcement
The Title VI regulations contain express requirements for OCR’s initiation of proceedings concerning the suspension, termination, or refusal to grant or continue federal financial assistance. Specifically, no order suspending, terminating or refusing to grant or continue federal financial assistance may become effective unless and until the following steps have occurred:
a) Notice and Opportunity to Voluntarily Comply. The Department must advise the institution of its failure to comply and determine that compliance cannot be secured by voluntary means.
b) Hearing. The institution must be afforded an opportunity for a hearing before a hearing examiner designated under the APA.
c) Express Finding of Noncompliance. Following the hearing, there must be an express finding on the record of a failure by the recipient to comply with a requirement imposed by Title VI.
d) Notification to Congressional Committees. At least 30 days before the suspension or termination becomes effective, a full written report of the circumstances and grounds for the suspension or termination must be filed with the relevant House and Senate committees having legislative jurisdiction over the program involved.
A non-compliance determination resulting from the hearing is considered final, unless the institution seeks review of the determination by the Secretary of Education. If the Secretary upholds the finding of non-compliance, the institution may seek judicial review in federal court pursuant to the APA.
b. DOJ Referral
As an alternative to initiating administrative enforcement proceedings, OCR may use “any other means authorized by law,” which the Title VI regulations describe as a “referral to the U.S. Department of Justice for judicial proceedings to enforce any rights of the United States under any law of the United States.” Under this option, DOJ may file a civil action seeking injunctive relief, specific performance, or other remedies.[12]
B. Office of Federal Student Aid
In lieu of, or in addition to, using the OCR process to enforce educational institutions’ compliance with the Administration’s interpretation of Title VI, the Administration could charge the Department’s Office of Federal Student Aid (“FSA”) with pursuing enforcement action, either through FSA’s program review process or through an investigation by FSA’s Enforcement Group.
1. FSA’s Authority to Evaluate Institutions’ Compliance with Federal Civil Rights Laws
Institutions that participate in federal student aid programs under Title IV of the Higher Education Act (“HEA”) must enter into a Program Participation Agreement (“PPA”) with the Department. PPAs require institutions to comply with all applicable federal laws and regulations, including Title VI. Because participation in Title IV programs is conditioned upon an institution’s compliance with Title VI, FSA could assert authority to examine an institution’s Title VI compliance as part of a program review or enforcement investigation. In the summer of 2024, OCR and FSA entered into an intra-agency agreement to support information sharing between the offices to facilitate joint enforcement.
2. Program Review Process
FSA is responsible for conducting program reviews of institutions participating in Title IV programs to assess their compliance with federal student aid laws and regulations. A program review may be initiated based on certain risk indicators, complaints, or referrals from other agencies or Department offices. The review process generally consists of:
a) The issuance of a notification letter to subject institution, outlining the scope of the review and initial document requests
b) An on-site or remote examination of policies and procedures, financial records, and other relevant documentation; and
c) Interviews with institutional officials.
At the conclusion of the review, FSA issues a preliminary report outlining any identified compliance issues and provides the institution with an opportunity to respond. After reviewing and considering the institution’s response, FSA issues its Final Program Review Determination (“FPRD”). Depending on the findings, the FPRD may order corrective action, impose fines, or refer the matter for further enforcement (see Section B.4 below).
While program reviews are typically focused on financial aid administration, given the interplay between civil rights compliance and Title IV program participation by virtue of PPAs, FSA could expand its review to assess whether an institution’s policies and practices align with the Administration’s interpretation of Title VI’s requirements, as described in the DCL and FAQ guidance documents.
3. Enforcement Group Investigation Process
During the Biden Administration, FSA established the Enforcement Group to conduct oversight of institutions that pose significant risk to students and taxpayers. Although the Enforcement Group’s focus has historically been on misrepresentation claims, the use of secret shoppers to evaluate enrollment practices and Title IV compliance, review of administrative capability through management systems and policies, and public reporting of suspensions and debarments, the Enforcement Group could broaden its focus to include institutional compliance with Title VI and other federal civil rights laws.[13]
Although the HEA regulations do not prescribe specific requirements or procedures for FSA enforcement investigations, FSA has established an internal procedure for initiating and carrying out such investigations. Pursuant to FSA’s procedure, investigations are opened based on “information that an institution, entity, or individual is potentially noncompliant with Title IV and its implementing regulations.” The Chief Enforcement Officer must approve the opening of any new investigation, and a recommendation to open an investigation should only be made when research conducted by Enforcement Group staff provides:
a) A plausible set of facts that, if proven, would amount to violation of one or more regulations or laws related to Title IV;
b) Reason to believe that one or more specific institutions, entities, or individuals are engaging in the conduct described in those facts;
c) Evidence of sufficient harm to recipients of Title IV funds or the Title IV program that justifies investment of the enforcement office resources; and
d) That there are sufficient enforcement office resources available to properly investigate the matter in a timely way.
Once an investigation is open, the Enforcement Group staff assigned to conduct the investigation may seek information from the institution and external third-parties via written requests for information, oral interviews, subpoenas, information-sharing with other law enforcement entities, and secret shopping findings, among other information.
If the investigative team determines, based on the investigation, that there is sufficient evidence to consider a referral for potential enforcement action, the Director of the Investigations Group is responsible for determining whether a letter should be sent to the recipient stating the investigation’s status and informing the recipient of its opportunity to respond (“Status Letter”). While the enforcement investigation procedures encourage the issuance of a Status Letter in most cases, the procedures note that “the Status letter is a discretionary process that may be bypassed if there is a valid reason to do so,” such as “potential destruction of records, dissipation of assets, or imminent harm to students in the Title IV program.”
The Chief Enforcement Officer, in consultation with Director of Investigations Group, makes the final determination about whether to approve a Status Letter. Where a Status Letter is sent, any response from the institution must be considered before a recommendation for potential enforcement action to the Chief Operating Officer of FSA is made.
The next step in the process involves the review of evidence by the Investigations Group Leadership and the Chief Enforcement Officer. The Chief Enforcement Officer decides whether to send a recommendation for referral to the Administrative Actions and Appeals Services Group (“AAASG”) for potential enforcement. In making this determination, Department staff must consult with AAASG and the Office of the General Counsel on: (a) whether the facts gathered in the investigation support a determination that a violation has occurred; (b) if so, whether the violation warrants administrative action; and (c) what administrative action(s) might be appropriate.
4. Administrative Action
Section 668.81 of the HEA regulations sets forth the procedures for administrative action based upon a finding of non-compliance with Title IV. Possible actions include the imposition of a fine[14] and/or the limitation, suspension,[15] or termination of the institution’s participation in a Title IV program.
AAASG is responsible for reviewing non-compliance determinations and making recommendations on what, if any, administrative actions to impose. An administrative action proceeding begins with the issuance of written notice to the institution, informing the institution of the intended enforcement action (including the amount of the proposed fine, if applicable), identifying the alleged violations constituting the basis for the action, and specifying the proposed effective date of the enforcement action. The notice must also inform the institution of its right to request a hearing to challenge the proposed action or to submit written material indicating why the proposed sanction should not be imposed.[16]
If the institution does not request a hearing but submits written material, AAASG must review and consider said material prior to issuing a final determination concerning the proposed action. If the institution requests a hearing within the designated timeframe, then AAASG must transmit the request for hearing and response to the Office of Hearings and Appeals, which then schedules the hearing for a date not less than 15 days after the designated Department official receives the hearing request.
The hearing is conducted by an official appointed by the Secretary of Education or their designee. The hearing official has the authority to direct the proceedings, rule on motions, and make factual and legal determinations. The hearing official may hold a pre-hearing conference with the parties to clarify issues and streamline the proceedings. During the hearing, both the Department and the institution are afforded an opportunity to present evidence, call witnesses, and make arguments. In any fine, suspension, limitation, or termination proceeding, the burden of persuasion is on the Department.
Following the hearing, the hearing official renders a decision, which becomes final unless an appeal to the Secretary of Education is filed by the institution or Department. An appeal must identify any errors of fact or law that warrant reversal or modification of the decision. Upon receipt of the appeal, the Secretary or their designee reviews the hearing record and may affirm, reverse, or modify the decision. The Secretary’s ruling serves as a final agency action under the APA.
If the institution or Department is dissatisfied with the decision of the Secretary, the aggrieved party may seek judicial review in federal court pursuant to the APA. The court reviews the administrative record to determine whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to the law. Unless the institution successfully obtains a stay of enforcement, any limitation, suspension, or termination imposed by the Department will go into effect and remain in effect while the litigation is pending.
C. Office of Inspector General
Finally, the Administration could invoke the Department’s Office of Inspector General (“OIG”) to enforce its Title VI compliance directive against educational institutions. OIG has broad authority under the Inspector General Act of 1978 to conduct audits and investigations into potential waste, fraud, and abuse in federal programs.[17]
OIG publishes an annual work plan outlining priority areas and activities. For FY 2025, OIG identified oversight and monitoring of federal student aid programs, oversight and monitoring of grantees, data quality and reporting, and information technology as significant challenges for the Department. In the higher education space, OIG’s work has focused on reviewing FSA’s plans for transitioning loan servicers, evaluating Partner Connect and the FAFSA form, FSA’s workforce planning, monitoring contractor performance, and Title IV program requirements, among others. While OIG does not customarily lead civil rights enforcement investigations, given OIG’s role in overseeing the proper use of federal funds, institutions alleged to be non-compliant with Title VI could be subject to OIG scrutiny insofar as such noncompliance constituted a misuse of federal financial assistance.
An OIG investigation may be prompted by a whistleblower complaint, a referral from another office (e.g., OCR or FSA), a routine audit, or a congressional inquiry. Investigations typically involve requests for information, interviews and site visits, document and data analysis, and/or coordination with other agencies. If an OIG investigation results in a finding of noncompliance, OIG may recommend administrative action[18] or refer the matter to DOJ for criminal prosecution.
D. Conclusion
As illustrated above, there are multiple avenues through which the Administration could enforce institutional compliance with its interpretation of Title VI. Given the breadth of enforcement mechanisms available, educational institutions should continue taking proactive steps to evaluate their existing programs and activities, assess potential compliance risks, and document all actions taken in response to the February 14th DCL to prepare for possible program reviews, investigations, or audits in the coming weeks and months.
If you have questions about your institution’s specific programs and activities or require assistance in conducting a risk assessment or developing response strategies, please contact any member of HMBR’s Education Group.
[1] The DCL and FAQ set forth OCR’s position that, in all but very limited circumstances, Title VI prohibits the use of race in any education program or activity receiving federal financial assistance. The DCL directs institutions to take immediate steps to bring their programs and activities into compliance with Title VI based on the interpretation embodied in the DCL and advises that the Department “intends to take appropriate measures” to assess institutions’ compliance beginning no later than 14 days after issuance of the DCL, or February 28, 2025. Finally, the DCL cautions that institutions failing to comply with federal civil rights laws (as interpreted by the Administration) will face a “potential loss of federal funding.”
[2] On February 25, 2025, a group of plaintiffs led by the American Federation of Teachers filed a federal lawsuit challenging the February 14th DCL. The plaintiffs assert that the DCL violates both the Administrative Procedure Act (“APA”) and the plaintiffs’ First and Fifth Amendment rights under the U.S. Constitution. The plaintiffs have asked the Court to enter a preliminary injunction prohibiting the Department from enforcing or taking any steps to implement or apply the February 14th DCL. As of the date of this writing, the Court has not ruled on or scheduled a hearing to consider the plaintiffs’ preliminary injunction request, and the Trump Administration has signaled an intent to begin assessing institutions’ compliance within weeks.
[3] Question and Answer 14 of the FAQ guidance briefly discusses the enforcement actions OCR may pursue against an institution for Title VI noncompliance, stating: “If OCR determines that a school failed to comply with the civil rights laws that it enforces, OCR will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement. If the school agrees to resolve the complaint, OCR and the school will negotiate a written resolution agreement to be signed by the school that describes the specific remedial actions it will take to address the area(s) of noncompliance identified by OCR. OCR will monitor implementation of the resolution agreement’s terms. If a school is unwilling to negotiate a resolution agreement, OCR will inform the school 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.”
[4] OCR also has jurisdiction to investigate certain employment complaints based on race, color, or national origin. With respect to employment, OCR has jurisdiction if: (1) the alleged discrimination could adversely affect program beneficiaries on the basis of race, color, or national origin, or (2) a primary objective of the federal financial assistance is to provide employment.
[5] Except in limited circumstances, a complaint must be filed within 180 calendar days of the date of alleged discrimination to be considered timely.
[6] 34 C.F.R. § 100.7(a).
[7] CPM § 401.
[8] 34 C.F.R. § 100.7(c).
[9] CPM § 110.
[10] CPM Art. II.
[11] Notably, the March 1st FAQ explains OCR’s approach to assessing evidence to determine whether an institution’s race-neutral policy or action in fact has a racially discriminatory purpose in violation of Title VI. The FAQ lists examples of the types of circumstantial evidence that OCR may consider when making such a determination, which include: “(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.” As noted in the FAQ, particularly probative to OCR will be 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.
[12] 34 C.F.R. § 100.8(a), (d).
[13] Given that OCR process already exists for oversight of institutions’ compliance with federal civil rights laws, it is unlikely that the Enforcement Group will be the mechanism for enforcement of Title VI related directives against institutions. Moreover, if the Trump Administration’s efforts to reduce ED’s workforce are successful, there is speculation that the Enforcement Group will either be disbanded altogether or moved to an established office in “main” ED, such as the Office of General Counsel or the Office of Postsecondary Education. For now, however, the Enforcement Group remains at FSA.
[14] The current maximum fine amount is $71,545 per violation, as adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990. 34 C.F.R. § 668.84(a).
[15] Suspensions may not exceed 60 days unless the institution and Department agree to an extension or the Department begins a limitation or termination proceeding.
[16] While these general procedures apply in the majority cases where the Department seeks to take enforcement action, the HEA regulations authorize the Department, in limited circumstances, to immediately withhold funds on an interim emergency basis if the Department determines that the institution’s continued participation in Title IV programs poses a serious risk to students or federal interests.
[17] 5 U.S.C. App. 3.
[18] See 34 C.F.R. § 668.81.