The Department of Education’s recent Dear Colleague letter calling for the elimination of all race-conscious initiatives in higher education leaves college leaders with the difficult decision to determine in just two weeks which diversity efforts on their campus could be deemed exclusionary.
Friday’s letter interprets the Supreme Court’s 2023 ruling prohibiting the consideration of race in admissions to include other initiatives, such as the use of race in hiring, student housing, scholarships, financial aid, graduation ceremonies, and student life. The Department of Education’s Office for Civil Rights said colleges must comply with these new rules by February 28, after which OCR will begin citing noncompliant colleges and rescind federal funding.
“Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations,” Craig Trainor, acting assistant secretary for civil rights, wrote in the letter. “And race-based decision-making, no matter the form, remains impermissible.”
Civil-rights advocates and higher-education organizations say the policy is strikingly broad, and goes beyond the Supreme Court’s ruling, which only restricts race-conscious considerations in college admissions.
“If there’s ambiguity, there’s a risk that colleges might over-comply to avoid penalties that could come from noncompliance,” said Philip Martin, director of higher education policy implementation at EdTrust, an organization that advocates for racial and economic equality.
Higher-education lawyers say that the letter is not a legal order and may face challenges in federal court. The OCR’s letter itself states that its guidance “does not have the force and effect of law and does not bind the public or create new legal standards.” But the letter also threatens imminent enforcement of the Trump administration’s broad interpretation of federal law.
The letter also lets colleges know how OCR will investigate civil-rights complaints on college campuses. Colleges shouldn’t ignore the department’s threat of pulling federal funding over race-conscious initiatives, lawyers said.
“We have always advised our clients to take action when a federal agency asks them to,” Cori Mishkin, a higher-education lawyer with Reed Smith LLP, said. “That’s part of the legal requirement of receiving federal funding.”
What Could Be Threatened
Since 2023, The Chronicle has tracked 250 college campuses that have made changes to DEI initiatives, a majority of which came in response to state legislation.
The OCR letter stated that any initiatives that “frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not” would be in violation of the law.
To Scott Schneider, a higher-education lawyer, that could put college presidents in a difficult dilemma: get rid of anything that hints at DEI and spare their federal funding, or align with their campus community that may want leaders to support initiatives they perceive as creating a healthy, inclusive environment.
“It’s an enormously complicated situation for presidents to navigate,” Schneider said.
For example, colleges may eliminate or revise DEI initiatives like diversity statements and diversity training if they could be perceived as a means to increase race-based hiring or advance discriminatory practices, lawyers said. But diversity statements and diversity training, some would argue, are efforts to make sure all college employees, no matter their race, are creating a nondiscriminatory working environment.
“I think diversity statements in theory could be fine,” Schneider said, “to the extent we can uncouple it strictly with diversity on the basis of race. That probably puts us in a stronger spot to continue to use them.”
Schneider said that under OCR’s guidelines colleges might also want to review their diversity offices, “to make sure that they’re offering [services] that no one is excluded from.”
The OCR letter did not clarify if specific student-service initiatives like cultural centers, identity-based student organizations such as a student chapter of a Black engineering society, or affinity groups would face similar federal probing.
“It’s not only the scope of what initiatives or programs [the letter] applies to, but also who runs those programs and how they’re tied to the federal government,” Mishkin said.
Possible Legal Challenges
The Trump administration’s crusade against DEI initiatives in higher education has already met legal challenges. Higher-education organizations filed a lawsuit earlier this month against President Trump’s two executive orders that take aim at the diversity, equity, and inclusion efforts of federal contractors. The lawsuit argued that the administration ordered an “unconstitutionally vague” definition of “illegal DEI” that could undo decades of civil-rights progress.
The lawsuit could result in national injunctions against the executive orders, lawyers said, temporarily blocking federal agencies from carrying out the president’s anti-DEI mandates.
In the Dear Colleague letter, Trump’s executive orders on DEI aren’t mentioned.
“I think it says a lot that they are having to rely on a very narrow Supreme Court holding to create this extrapolated precedent that seeks to create a colorblind educational environment,” Antonio L. Ingram II, a civil-rights lawyer with the Legal Defense Fund, said. “They’re not citing the executive orders which have already faced litigation.”
Absent a legal challenge, the looming deadline for OCR compliance has quickened the decisions college leaders will have to make over their race-conscious initiatives. Still, lawyers said, OCR enforcement likely won’t happen right away.
OCR investigations are typically generated through a complaint process and occasional compliance audits initiated by the department. If OCR finds a college violated the equal protection clause of the 14th Amendment, then federal funding could be threatened.
“You can’t just pull funds overnight,” Schneider said. “I mean, this isn’t DOGE. There is a pretty laborious process for that.”
