Tag: Colleague

  • Department of Education Releases FAQ on February 14 “Dear Colleague” Letter

    Department of Education Releases FAQ on February 14 “Dear Colleague” Letter

    by CUPA-HR | March 3, 2025

    On March 1, the Department of Education’s Office for Civil Rights (OCR) released a Frequently Asked Questions  document providing further guidance on OCR’s February 14, 2025, “Dear Colleague” letter.

    The February 14 “Dear Colleague” Letter

    The “Dear Colleague” letter outlines OCR’s enforcement position with respect to the legal requirements “under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities,” in light of the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard (SFFA). The letter states SFFA “clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI.” OCR declares in the letter that, in accordance with SFFA, federal law “prohibits covered entities 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 letter states that OCR will “take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date,” which was February 28. OCR also notes in the letter that institutions that fail to comply “face potential loss of federal funding.”

    CUPA-HR joined the American Council on Education and dozens of other higher education associations in a February 25, 2025, letter to OCR noting  that the language in the “Dear Colleague” letter is ambiguous and, as a result, campuses are confused about their compliance responsibilities. CUPA-HR, ACE and the other associations requested in the letter that the department rescind the “Dear Colleague” letter and “engage with the higher education community to ensure a clear understanding of their legal obligations in this area.”

    The FAQ

    The March 1, 2025, FAQ provides details on how to file a discrimination complaint, the department’s view on what type of activity is unlawful and the department’s approach to enforcement.

    Enforcement

    With respect to the department’s approach to enforcement, the FAQ states that if OCR “determines that a school failed to comply with the civil rights laws that it enforces, [it] will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement.” The FAQ then states that “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.”

    Unlawful Activity

    OCR notes in the FAQ that OCR’s assessment of whether an institution’s policies and programs are lawful “depends on the facts and circumstances of each case,” but provides more details on specific activities that do or may violate the law. The FAQ notes that it regards the following activities as unlawful:

    • preferences and stereotypes as a factor in admissions, hiring, promotion, scholarship, prizes, administrative support, sanctions, discipline, and other programs and activities;
    • any programming, graduation ceremonies, housing, or any other aspect of school life that allows one race but not another or otherwise separates students, faculty, or staff based on race; and
    • policies that appear neutral on their face but are made with racially discriminatory purpose.

    With respect to the last bullet, OCR states in determining “whether a school acted with a racially discriminatory purpose, [it] may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent.” OCR provides the following “non-exhaustive list,” which may include:

    • whether members of a particular race were treated differently than similarly situated students of other races;
    • the historical background or administrative history of the policy or decision;
    • whether there was a departure from normal procedures in making the policy or decision;
    • whether there was a pattern regarding policies or decisions towards members of a particular race;
    • statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race;
    • whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race; and
    • the school’s history and stated policy of using racial classifications and race-based policies to further DEI objectives, “equity,” a racially oriented vision of social justice, or similar goals.

    The FAQ also describes activities that could be unlawful. Specifically, the FAQ notes that “extreme practices at a university — such as requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race — are all forms of school-on-student harassment that could create a hostile environment under Title VI.”

    DEI?

    The FAQ notes, “whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” but rather whether it discriminates “based on race, color, or national origin.” The FAQ notes that institutions “may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races,” or programming that “discourages members of all races from attending, either by excluding or discouraging students of a particular race or races.”

    The FAQ also notes, however, that “programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” OCR also states that “educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate or recognize historical events and contributions, and promote awareness,” are lawful “so long as they do not engage in racial exclusion or discrimination.”

    Next Steps

    CUPA-HR will continue to monitor and keep members apprised of any further developments.



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  • Dear Colleague letter is lawless attack on DEI (opinion)

    Dear Colleague letter is lawless attack on DEI (opinion)

    On Valentine’s Day, the Trump administration surprised schools and colleges with its newest attack on DEI and student body diversity. The U.S. Department of Education’s Office for Civil Rights released a Dear Colleague letter that warned schools and colleges that they may lose federal funding if they discriminate on the basis of race.

    This letter revealed novel, unsupported legal theories regarding the application of federal civil rights laws to schools and colleges. In fact, OCR’s letter sweeps so broadly that it claims to prohibit certain considerations of race that remain perfectly legal under well-established legal doctrine.

    While the threat of losing federal funding has been a facet of Title VI of the Civil Rights Act since its passage in 1964, the letter specifically takes aim at DEI programming as well as the use of “race as a factor in admissions, financial aid, hiring, training, and other institutional programming.”

    Although the letter includes some correct statements of nondiscrimination law, OCR makes assertions that are troubling and unsupported by sound legal reasoning. As part of the team that wrote OCR’s guidance on this very issue in the wake of the Supreme Court’s ruling in Students for Fair Admissions v. Harvard, I am disturbed by how politics is driving policy guidance that will hurt educational institutions and students from kindergarten through college.

    In describing the scope of SFFA, OCR’s latest guidance attempts to smuggle in a legal standard that appears nowhere in the court’s opinion. The letter states, “Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law … It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”

    Here, OCR baselessly claims that not only can colleges not consider race as a factor in admissions, they also cannot make race-neutral changes to admissions policies that help increase student body diversity—such as eliminating standardized testing. That claim falls firmly outside not only the bounds of SFFA but also the decades of Supreme Court case law that precede it.

    In Grutter (2003), Justice Sandra Day O’Connor considers whether the University of Michigan Law School could use a lottery system for admissions. In Fisher (2016), Justice Anthony Kennedy implicitly approves of the Texas top 10 percent plan, perhaps the most well-known race-neutral strategy to increase racial diversity. And in SFFA (2023), the plaintiff’s briefs themselves include endorsements of possible race-neutral alternatives Harvard could have legally pursued such as adopting socioeconomic preferences in admissions.

    Yet in its most recent letter, OCR attempts quite the head fake in its declaration that SFFA dictates that schools and colleges must abandon race-neutral strategies meant to increase student body diversity. While in reality SFFA says nothing about the permissibility of these race-neutral strategies, a separate line of cases tackles these legal questions head-on—and contradicts the Trump administration’s unfounded guidance.

    In Coalition for TJ, Boston Parent Coalition and other recent cases, groups similar to Students for Fair Admissions have challenged changes to admissions policies of prestigious, selective high schools that were adopted in part to increase student body diversity. In some cases, the schools reconfigured weighting for standardized tests; in others, schools guaranteed that each feeding middle school gets a certain number of seats. In all of the cases, the school districts won. The position now advanced by OCR in its recent letter has failed to find footing in two courts of appeal. And just last year, the Supreme Court declined to further review the decisions in TJ and Boston.

    What OCR attempts to do with its letter is extraordinary. It tries to advance a legal theory with support from a Supreme Court case that says nothing about the matter. At the same time, OCR ignores recent judicial opinions in cases that directly address this question.

    Regardless of how legally infirm OCR’s proclamations are, schools and colleges will likely feel forced to comply. This could mean that the threat alone will lead schools and colleges to cut efforts to legally pursue racially diverse student bodies and racially inclusive campus environments. As a result, our nation’s classrooms and campuses will unfortunately look less like the communities that they sit in and serve, all because of shoddy policymaking and legal sleight of hand.

    Ray Li is a civil rights attorney focusing on education policy. He recently left the Department of Education’s Office for Civil Rights after serving as a career attorney from 2021 to 2025. In that role, he worked on more than a dozen policy documents for OCR, including guidance issued after the Supreme Court’s decision in SFFA. He also served as OCR’s lead staff attorney on appellate and Supreme Court litigation matters, including for the SFFA, Coalition for TJ and Boston Parent Coalition cases. Prior to joining OCR, he advised schools, colleges and universities on legal regulatory issues, including civil rights issues, at Hogan Lovells’ education practice.

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  • A ‘Dear Colleague’ Letter in Defense of DEI, by Shaun Harper

    A ‘Dear Colleague’ Letter in Defense of DEI, by Shaun Harper

    Dear Colleague:

    The U.S. Department of Education’s Acting Assistant Secretary for Civil Rights issued a “Dear Colleague” letter last week that overflowed with misrepresentations of diversity, equity, and inclusion initiatives in our nation’s educational institutions. The threat of losing federal funding has understandably spooked many of you. It is clear to others and me that inciting such fear, as opposed to actually holding institutions accountable for doing right by students and employees whom racial discrimination most persistently harm, was the aim of the Department’s letter.

    I am writing to publicly furnish guidance that I have privately offered to principals, superintendents, college and university presidents, education governing board members, and journalists over the past seven days. But before doing so, I start with a question that I posed in this Forbes article more than a year ago: “What sense does it make to know something is a lie and to have examples of what’s actually true, yet deliberately hide those truths for fear of what liars might do?” Much of what was conveyed in the Department’s letter was largely untrue—at best based on anecdotes, not on credible evidence systematically collected from surveys of students and employees, or from rigorous analyses of discrimination reports disaggregated by race.

    To be sure, persons (no matter how small in number) who experience discrimination, harassment, abuse, and other forms of injustice deserve protections and remedies from their educational institutions and the federal government. But the Department’s letter insists that it is white and Asian students who are most on the receiving end of these experiences. A corpus of evidence published over five decades makes irrefutably clear that Asian American, Black, Indigenous, Latino, and multiracial students and employees most often experience racism on campuses. Paradoxically, the Department’s letter calls for the elimination of policies, offices, programs, and activities that aim to address those historical and contemporary norms. This is guaranteed to result in more discrimination, harassment and abuse. In addition, racialized opportunity and outcomes disparities that disadvantage people of color will widen and new racial inequities will emerge.

    Here are 11 actions I recommend for higher education institutions that are truly committed to anti-discrimination and anti-racism:

    1. Maintain mission fidelity: Many college and university mission statements have long included language about fostering inclusive learning environments, preparing students for citizenship and work in a diverse democracy, and other values that qualify as DEI. If and when the Department probes an institution, you must be prepared to show how and why various DEI efforts are essential for mission actualization.
    2. Show your work: The Department’s letter will compel many of you to hide, rename, or altogether discontinue DEI initiatives. I insist on doing the opposite. Now is the time to showcase DEI activities to confirm that they are not the racist, divisive, discriminatory, and anti-American activities that obstructionists erroneously claim.
    3. Show your racial equity data: Transparency about racial disparities in student outcomes and various employee trends should be used to justify the existence of DEI policies and programs. Black undergraduate men, for instance, are often at the bottom of most statistical measures of educational progress and performance; my and other scholars’ research confirms that it is not because those students were undeserving of admission or are academically less capable. Data like these could help justify the need for Black male student success initiatives.
    4. Show racial discrimination data trends: Educational institutions are required to have reporting and investigation processes for claims of racial discrimination. As previously noted, the Department’s letter makes is seem as if white and Asian students are being most routinely discriminated against. It might just be that your campus data shows something different. It is important to present year-over-year trends, as opposed to a one-time snapshot. These data could be used to justify the existence of various DEI policies and programs.
    5. Assess the campus racial climate: The National Assessment of Collegiate Campus Climates (NACCC) is a suite of peer-reviewed, expert-validated quantitative surveys that are administered to every student or employee at a participating institution, including white people. Whether you use the NACCC or some other data tool, now is the time to formally assess the climate to determine if and how persons from different racial groups are experiencing the institution. The NACCC has been administered on hundreds of campuses over the past six years—very few white respondents have reported what the Department’s letter alleges. It is important for institutions to provide climate survey data about which groups most frequently encounter discrimination, harassment, abuse, and exclusion.
    6. Rely on evidence: A dozen highly respected researchers contributed to Truths About DEI on College Campuses: Evidence-Based Expert Responses to Politicized Misinformation, a report published last March. This document is just one of several hundred research-based resources (including peer-reviewed studies published in top academic journals) that confirm the educational and democratic value of DEI in higher education. You should use these evidence-based resources to justify the continuation of your institution’s policies and programs.
    7. Insist on evidence: DEI attackers make numerous untrue and exaggerated claims about what is occurring on campuses. Educational leaders have the right to insist that outside accusers furnish evidence of widespread discrimination, harassment, and abuse. Data sources must be rigorous, trustworthy, and verifiable. One-off examples and small numbers of anecdotes ought not be accepted as evidence of pervasive wrongdoing. Imagine if someone told lies about you as an individual person—you would demand proof. Institutions that have committed themselves to DEI deserve this, too.
    8. Articulate consequences: As the federal government, state legislators, and others scrutinize campus DEI efforts, it behooves leaders and employees not only to amplify the value of these policies and programs, but also to forecast what would occur in their absence. For example, how the discontinuation of a first-year transition program for Indigenous students would widen first-to-second-year persistence rate disparities between them and peers from other racial groups. Or how financially devastating lawsuits would be to institutions if less attention was paid to improving the workplace climate for the groups of employees whom years of investigations data confirms experience the highest levels of discrimination and harassment on campus.
    9. Ensure reporting equity: The Department’s letter includes a link to this webpage where “anyone who believes that a covered entity has unlawfully discriminated may file a complaint with OCR.” It is important for white and Asian American, as well as for Black, Indigenous, Latino, and multiracial people to know this reporting site exists. If it is distributed through only a limited number of cable news and social media channels, then there is a chance that those who experience discrimination most often will not be aware of its existence. It is similarly important to remind students and employees of how to access campus-level reporting resources.
    10. Humanize DEI professionals: As many DEI professionals were being fired from their federal jobs last month, I recognized their humanity in this TIME article. I specifically noted the following consequences for them: “Some of these workers now won’t be able to afford daycare for their kids or elder care for their aging parents. Others have children in college whose tuition payments are suddenly in limbo because of politics. Some will lose their healthcare benefits. Too many of these workers will struggle to find other jobs because of the false narratives that are being told about DEI.” Professionals who do DEI work everywhere, including in higher education, deserve greater protections from their employers. These innocent people deserve colleagues like you who use your platforms to communicate threats to their lives and careers.
    11. Form coalitions: The tone of the Department’s letter is serious. It has many people scrambling on their individual campuses. We need institutions to come together to collectively strategize, defend their DEI commitments, push back and sue. Attempting to do this in isolation will not yield the macro-level outcomes that our democracy and its educational institutions deserve. Last fall, I launched the National DEI Defense Coalition. So far, hundreds of scholars, leaders, and DEI professionals have contributed. In the next few weeks, I will publicly announce ways for others to participate. But meanwhile, please leverage existing networks (professional associations, athletic conference memberships, and so on).

    These are not the only ways institutions can defend DEI policies and programs, but my hope is that they provide some helpful guidance in response to the Department’s letter as well as to other politicized misinformation, disinformation and anecdotal exaggerations about who is being most frequently discriminated against on campuses.

    For Democracy,

    Shaun Harper

    Shaun Harper is university professor and provost professor of Education, Business and Public Policy at the University of Southern California, where he holds the Clifford and Betty Allen Chair in Urban Leadership.

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