Or subscribe now to read with unlimited access for less than $10/month.
A free account provides you access to a limited number of free articles each month, plus newsletters, job postings, salary data, and exclusive store discounts.
If you need assistance, please contact us at 202-466-1032 or help@chronicle.com.
As higher-education leaders across the country take in the department’s letter, they are right to pause to take account of the court’s ruling in SFFA and limit any action related to the letter and its guidance accordingly.
As a legal and education scholar over the last 15 years, I have played a leading role in litigation on race-conscious admissions as counsel of record in “friend of the court” briefs filed before the U.S. Supreme Court. And I have examined the role of past guidance from OCR, which has historically served as a valuable resource for researchers, educators, and advocates.
The current “Dear Colleague” letter deviates significantly from this tradition in several critical ways, which are important for higher-education leaders to understand. The letter is far-reaching in its enforcement and a widely expansive distortion of the court’s ruling.
Overreach in Defiance of the Court’s Ruling
First, the content of the current letter widely expands, without any legal authority, the parameters of the court’s decision in Students for Fair Admissions v. Harvard. The court was explicit in noting that the cases involved decisions about “whether a university may make admissions decisions that turn on an applicant’s race.”
Making funding contingent on an institution following a particular ideology strikes at the heart of academic freedom.
Instead, the letter attempts to broadly expand the reach of the decision to areas that are not expressly covered therein, such as “hiring, promotion, compensation, discipline, and housing,” to name a few. The court’s decision has nothing to do with these areas, many of which are governed by different legal standards.
OCR is effectively demanding new obligations of institutions without the proper legal authority to do so. In consultation with their legal counsel, institutions should remain focused on areas that the Supreme Court addressed in its majority opinion and not expand to those clearly outside its purview.
Contradiction of the Court’s Ruling
Second, the court’s ruling restricted, but did not altogether prohibit the consideration of race in admissions processes. The court explicitly allowed for individualized review of how race is related to an applicant’s lived experience when relevant to the institution’s or program’s mission. Specifically, the court noted that “nothing in [the] 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 current guidance, however, strays far from the court’s ruling. The letter goes as far as to say that even race-neutral processes are not permissible, which we know from the majority opinion and subsequent decisions to be a false assertion. The courts have already rejected such arguments in other cases, such as the Boston Parent Coalition for Academic Excellence v. School Committee of the City of Boston and Coalition for TJ v. Fairfax County School Board, which the U.S. Supreme Court let stand.
In those cases, lower courts held that policies designed to enhance diversity, such as changes to standardized-testing requirements, are not discriminatory when they do not employ racial classifications. Thus, policies designed to promote diversity that do not employ racial classifications are not only outside the purview of the court’s SFFA decision: They are constitutionally sound.
To be clear, the SFFA decision placed constraints on the means institutions can use to advance diversity. It did not place restrictions on the goals of diversity, equity, or inclusion, particularly when those goals are rooted in the mission of a university, college, department, or program. In fact, Chief Justice John G. Roberts Jr., who authored the SFFA decision, called the diversity interests of many institutions as “worthy” and “commendable.” Suggestions in the letter that those goals are not permissible is not an interpretation of the decision, it is a rewriting of the court’s ruling itself.
Unconstitutional Enforcement Threats
By rewriting the court’s ruling, OCR’s letter seeks to change the goals that institutions of higher education can pursue, or even think about, to advance their educational and academic missions. Instead of pursuing diversity goals, the letter would require institutions to be blind to any considerations of race even when those considerations do not involve explicit racial classifications. The letter represents the imposition of an ideology on educational policy that infringes on institutional autonomy and the purview of how an institution can define its mission.
The Department of Education is effectively demanding new obligations of institutions without the proper legal authority to do so.
Even as it concedes in a footnote that the letter “does not have the force and effect of law,” the document nonetheless threatens institutions with compliance reviews. It implies that if colleges continue to consider diversity goals, they will lose federal funding. The U.S. Constitution, however, protects against the imposition of ideological conformity, especially when tied to federal funding.
Making funding contingent on an institution following a particular ideology strikes at the heart of academic freedom and institutional autonomy. The OCR is overstepping its bounds and infringing on the constitutional rights of institutions under the First Amendment. This argument is one of many at the core of a recent lawsuit challenging the constitutionality of Trump’s executive order titled “Ending Radical Government DEI Programs and Preferencing.”
Moreover, as education civil-rights experts have noted, institutions have the right to due process before any action to strip federal funding can be taken. Thus, institutions have procedural rights to contest any enforcement action. Changing programs in response to a letter that widely deviates from the court’s ruling when these procedural protections are in place would unnecessarily undermine institutional autonomy.
Leaders of higher education should navigate these complex legal landscapes with diligence and integrity. Doing so requires understanding the unprecedented and unlawful nature of the February 14 letter. Under usual circumstances, OCR plays a role clarifying legal guidance. But we are not in usual times. Thus, it is important to ensure that educational policy is not changed based on a letter that oversteps legal boundaries. University administrators should protect themselves and their students from unlawful mandates and uphold the principles of institutional autonomy in pursuit of their missions.