U.S. Department of Education Issues ‘Dear Colleague’ Letter That Reflects an Expansion of Title VI Under Students for Fair Admissions to Limit All Forms of Diversity, Equity and Inclusion Activities

At a Glance

• On February 14, 2025, the Office for Civil Rights (OCR) of the U.S. Department of Education (ED or the Department) issued a Dear Colleague Letter (DCL) regarding the nondiscrimination obligations of schools, colleges and universities, and other entities that receive federal education funds.
• The DCL, issued several weeks after President Trump’s January 21 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” executive order, represents a significant shift in the Department’s interpretation of antidiscrimination laws as they pertain to diversity, equity and inclusion (DEI) initiatives in education. We issued a previous update regarding the January 21 executive order earlier this month.
• The DCL reflects a sweeping position by ED that many DEI-related activities, well beyond admissions and hiring, may violate Title VI of the Civil Rights Act and the Equal Protection Clause. It therefore seeks to greatly expand the application of the Supreme Court’s 2023 decision in Students for Fair Admissions to other significant aspects of an educational institution’s operations. ED also indicated that DEI activities that purportedly violate these civil rights laws could lead to an investigation of the institution and could potentially impact continued receipt of such funds.

Overview of the Dear Colleague Letter

On February 14, 2025, the Office for Civil Rights (OCR) of the U.S. Department of Education (ED or the Department) issued a Dear Colleague Letter (DCL or the Letter) regarding the nondiscrimination obligations of schools, colleges and universities, and other entities that receive federal education funds. The DCL reflects a sweeping position by ED that many activities related to diversity, equity and inclusion (DEI), well beyond admissions and hiring, may violate Title VI of the Civil Rights Act and the Equal Protection Clause. It therefore seeks to greatly expand the application of the Supreme Court’s 2023 decision in Students for Fair Admissions (SFFA) to other significant aspects of an educational institution’s operations. The DCL asserts that Title VI as applied in the SFFA decision prohibits educational institutions from using 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.” The DCL further states that ED “intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter,” beginning just 14 days after its issuance (i.e., February 28).

The DCL comes after President Trump issued an executive order (EO) on January 21, 2025, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which held substantial implications for federal contractors and grant recipients — including colleges and universities. Although the EO was partially enjoined by the U.S. District Court for the District of Maryland on February 21, 2025, the portion of the EO that directs the U.S. Attorney General and the Secretary of Education to issue joint guidance regarding the measures and practices required to comply with SFFA was not directly addressed by the Court’s preliminary injunction.

The Department asserts in the DCL that DEI programs “frequently preference certain racial groups” and “stigmatize students who belong to particular racial groups,” suggesting that such programs engage in discrimination under federal antidiscrimination laws. The DCL also states that using certain “race neutral” information as a proxy for race could violate federal law, a position which goes well beyond the holding of both SFFA and subsequent caselaw. For instance, the DCL states that “it would be … unlawful for an educational institution to eliminate standardized testing to achieve a derived racial balance or increase racial diversity.”

Certain elements of the DCL are at best in tension with aspects of the SFFA decision. In SFFA, the Court specifically noted that “nothing in [its] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The DCL, however, states that an educational institution may not use students’ personal essays or other cues as a means of determining a student’s race and favoring or disfavoring such students. Even though ED is prohibited by statute from prescribing curricula or dictating specific teaching, the DCL nonetheless raises the prospect that certain types of instruction or schools of thought could trigger scrutiny by the Department. For example, the DCL specifically suggests that teaching “that certain racial groups bear unique moral burdens that others do not” may be impermissible.

The DCL states the Department’s intent to “vigorously enforce the law” as to all preschool, elementary, secondary and postsecondary educational institutions, as well as state educational agencies that receive federal financial assistance, including where antidiscrimination requirements are a condition of receiving federal education funding. The DCL further advises institutions to: “(1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.”

As guidance under the Office of Management and Budget’s “Final Bulletin for Agency Good Guidance Practices“ (72 Fed. Reg. 3432 (Jan. 25, 2007)), the DCL notes that it “does not have the force and effect of law and does not bind the public or create new legal standards.” However, as it “provides notice of the Department’s existing interpretation of federal law,” noncompliance could lead to investigations and the potential loss of federal funding, including under Title IV. It concludes with a reminder that anyone who believes that a recipient of federal financial assistance has unlawfully discriminated may file a complaint with OCR.

Implications for Educational Institutions

Aspects of the DCL appear to go well beyond the requirements of current law, and certainly beyond the focus on admissions in the SFFA decision. Nevertheless, the Department’s broad view of what constitutes an impermissible DEI activity unquestionably increases the risk of legal challenges and enforcement actions faced by educational institutions receiving federal education funds, including all forms of assistance under both the Higher Education Act (HEA) and the Elementary and Secondary Education Act. All educational institutions should examine how their practices align with existing federal, state and local laws, strategically considering how they may differ in their requirements and interpretations of DEI-related issues. Colleges and universities should review their recruiting, admissions and hiring practices, as well as their DEI initiatives, in light of the DCL and its significant deviation from the previous administration’s guidance on the SFFA ruling. To the extent that any institution offers — or contracts with third parties to offer — any scholarships, affinity groups or campus activities aimed explicitly at students bearing specific protected characteristics under Title VI, institutions should review those offerings for their potential incompatibility with the broad language of the DCL.

It is also important that educational institutions remain aware of ongoing lawsuits concerning executive actions by the Trump administration. As noted above, a February 21 preliminary injunction of the President’s January 21 EO specifically blocks federal agencies from requiring contractors and grantees to “certify that they do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” holding that the requirement likely violated the First Amendment by imposing content-based restrictions targeting protected speech regarding DEI. The preliminary injunction also prevents federal agencies from bringing any False Claims Act enforcement action premised on any certification made pursuant to the EO’s certification provision. However, the injunction did not address the section of the EO focused on SFFA compliance for institutions receiving federal education funds outside of contracts and grant agreements.

That leaves open the possibility that the Department could still investigate, for example, postsecondary institutions for what it views as practices violating SFFA and applicable civil rights laws, including Title VI of the Civil Rights Act, which are conditions of continued federal student financial aid participation under Title IV of the HEA.

What’s Next?

On February 26, the American Federation of Teachers and the American Sociological Association sued the Department over the DCL, seeking a preliminary injunction to halt the enforcement and implementation of the Letter. Specifically, the lawsuit argues that the Letter’s investigation and enforcement threats violate the plaintiffs’ First Amendment free speech and free association rights, and that the Letter’s vagueness regarding key words and concepts therein violates their Fifth Amendment due process rights. The lawsuit also argues that the Letter violates the Administrative Procedure Act as an arbitrary and capricious action and by exceeding the Department’s statutory authority to interpret Title VI of the Civil Rights Act. We expect an initial ruling on the case to be forthcoming.

Because the DCL signals a significant expansion of the activities that the Department deems a violation of applicable civil rights law, all schools, colleges, universities and other entities that receive federal education funds should stay apprised of further guidance from ED and the Attorney General regarding these matters. It is not yet clear whether certain expansive readings of current law, as reflected in the DCL, will ultimately be enforceable. Regardless, the DCL expresses a clear intent to broaden the applicability of the SFFA decision across other areas of campus life. Educational institutions should engage with legal counsel to evaluate their risk profiles, particularly where federal and state laws may differ from the DCL or where the DCL conflicts with their institutional mission. We are continuing to review the impact of additional executive orders, lawsuits, and agency directives, and are available to answer any questions that arise from them.