Education Department Orders Schools To Stop All Racial Discrimination 

The letter mostly builds on existing civil rights law.

Last Friday, the Department of Education released a "Dear Colleague" letter directing educational institutions to stop all forms of racial discrimination in essentially all aspects of their operations, including "admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life." 

The letter, from Acting Assistant Secretary for Civil Rights Craig Trainor, mostly reiterates existing civil rights prohibitions on racial discrimination, as well as the 2023 Supreme Court decision in Students for Fair Admissions v. Harvard that barred race-based affirmative action in college admissions. 

"If an educational institution treats a person of one race differently than it treats another person because of that person's race, the educational institution violates the law," the letter reads. "The Department will no longer tolerate the overt and covert racial discrimination that has become widespread in this Nation's educational institutions. The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent."

While the letter primarily focuses on existing legal protections against race-based discrimination, it also singles out more nebulous forms of apparent discrimination in educational institutions. "Other programs discriminate in less direct, but equally insidious, ways," the letter reads. "[Diversity, equity, and inclusion] programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not."

Obviously, the Education Department is well within its rights to remind schools that they can't discriminate against students based on race. But the DEI-related provisions could also create confusion and possibly cause some colleges to suppress academic freedom in the name of eliminating DEI. After President Donald Trump signed several executive orders banning DEI programs in the federal government, West Point went so far as to disband several student cultural organizations. 

"I think, what the letter is mostly meant to signal is a change in enforcement priorities. Most of what it's saying here is not new at all. But I think what they're trying to communicate is that they're going to enforce these laws with a different emphasis," says Robert Shibley, special counsel for campus advocacy at the Foundation for Individual Rights and Expression (FIRE), a First Amendment organization. Shibley says the passage focused on DEI programs could lead to confusion and overreach, depending on how schools interpret it.

"The way 'teach' is going to be interpreted, is going to be very important when looking at this 'Dear Colleague' letter," Shibley says. " I do think there's legitimate concerns to be had there. And I think it's important that the department clarify that sooner rather than later."

Shibley also noted that universities shouldn't jump to overly broad interpretations of letters like this without further clarification. 

"I think it's also incumbent on universities to be responsible when they are figuring out how to apply these….Universities need to have a common sense approach to making a good faith effort to follow this kind of guidance. But that doesn't mean that they have to do things that are manifestly unjust at a moment's notice."

How schools will ultimately interpret the letter remains to be seen, but if what happened at West Point is any indication, some colleges may do far more than merely follow decades-old civil rights law.