Tag: Letter

  • 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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  • Education Department Publishes Guidance Letter Deeming Race-Conscious Programs, Activities and Practices Illegal

    Education Department Publishes Guidance Letter Deeming Race-Conscious Programs, Activities and Practices Illegal

    by CUPA-HR | February 18, 2025

    On February 14, the Department of Education’s Office for Civil Rights (OCR) published a “Dear Colleague” letter “to clarify and reaffirm the nondiscrimination obligations of schools … that receive federal financial assistance” from the department. The letter specifically states that “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” (emphasis added).

    The department warns that “institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding,” and cites the government’s authority to do so under “Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution, and other relevant authorities.”

    The letter reiterates institutions’ existing legal requirements under federal antidiscrimination laws and is intended to provide clarity to institutions of their nondiscrimination obligations. However, in addition to pointing to existing federal antidiscrimination laws, OCR expands upon the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA) — which banned the use of race-conscious admissions practices at institutions of higher education — to apply more broadly to programs and practices at institutions. Specifically, OCR states that the court’s decision and applicable 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.”

    OCR provides a few examples of practices that would be illegal under federal antidiscrimination law. One example, which was prohibited in the text of the SFFA decision, is using “students’ personal essays, writing samples, participation in extracurriculars, or other cues” as a means to determine a student’s race to grant preferences to that individual. Additionally, the letter states that using proxies like the one just described is illegal on the systematic level, stating that it is unlawful for institutions to eliminate standardized testing to “achieve a desired racial balance or to increase racial diversity.” In both examples, OCR appears focused on the motive for the action rather than the action itself. Thus, an institution can choose to use or not use standardized tests or focus on certain criteria in applications as long it is not doing so for an impermissible reason.

    The letter also says that other programs violate antidiscrimination laws in less direct ways. Specifically, the letter states that “DEI programs … frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not” and that “such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes.” They assert that these programs ultimately deny students the ability to fully participate in “the life of a school.”

    The letter states that the Department of Education will begin to assess institutional compliance with antidiscrimination law and regulations no later than 14 days after of the date of publication of the letter. In the letter, OCR advises schools to:

    • Ensure that their policies and actions comply with existing civil rights law.
    • Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends.
    • 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.

    Possible Implications for Higher Education HR Professionals

    As noted above, the letter specifies using race in hiring, promotion and compensation decisions is prohibited under federal law, though the Department of Education does not provide examples of hiring and compensation practices that could be violations of such laws. While the primary federal laws prohibiting discrimination in employment are Title VII of the Civil Rights Act of 1964 and similar equal employment opportunity laws enforced by the Equal Employment Opportunity Commission (EEOC), Title VI can apply to employment decisions. It is unclear how the department intends to enforce this letter with respect to hiring, promotion and compensation practices and whether the Department of Labor or the EEOC will provide further guidance. CUPA-HR intends to seek clarification from the Education Department and the other agencies.

    CUPA-HR is assessing the impact that this enforcement letter will have on institutions and will keep members apprised of further developments related to the Trump administration’s DEI orders.



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  • CUPA-HR Submits Letter in Response to Paid Leave RFI – CUPA-HR

    CUPA-HR Submits Letter in Response to Paid Leave RFI – CUPA-HR

    by CUPA-HR | January 31, 2024

    On January 31, CUPA-HR submitted a letter in response to the Bipartisan, Bicameral Congressional Paid Leave Working Group’s Request for Information on federal paid leave policy. The letter responds to some of the 10 questions posed by the Working Group to inform them of the role the federal government can play in creating a national paid leave policy.

    CUPA-HR’s letter answers questions on the role of the federal government in incentivizing paid leave, the recommended framework for a federal policy, how to avoid unintended distortions resulting from a paid leave framework, and existing research on the impact of paid leave on job satisfaction and recruitment and retention efforts. In our response, CUPA-HR takes the position that the role of the federal government is to ensure that any federal law or program requires harmonization across federal, state, and local leave laws. The letter recommends a framework in which the federal government establishes national criteria for certain aspects of paid leave policies, including tracking and recordkeeping requirements, while granting states and localities leeway to go beyond the federal requirements for other aspects, such as the types of leave that qualify for wage replacement, the duration of such leave, and the wage replacement level.

    The Paid Leave Working Group issued the RFI in December 2023 and sought diverse stakeholder input on the issue of a federal paid leave policy. Comments were due on January 31, 2023. CUPA-HR will continue to monitor for any updates on paid leave as Congress continues to look for a bipartisan solution.



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  • DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    by CUPA-HR | February 21, 2023

    On February 9, the Department of Labor’s Wage and Hour Division (WHD) issued an opinion letter stating that employees with chronic serious health conditions may use Family and Medical Leave Act (FMLA) leave to reduce work hours indefinitely. The WHD opinion letters serve as a means by which the public can develop a clearer understanding of what FMLA compliance entails. This particular letter is the first issued by the Biden administration.

    The letter from the WHD and Acting Administrator Jessica Looman comes in response to an employer’s letter asking whether “an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a healthcare provider certifies that the employee has a medical need to limit their schedule.” The question only applies to employees who are regularly scheduled to work more than eight hours per day.

    The opinion letter specifies that if an employee is regularly scheduled to work more than eight hours per day but has an FMLA-qualifying condition that grants them to take FMLA leave, then the employee is entitled to use the 12 weeks of FMLA leave to reduce their work hours to eight hours per day. It adds that an employee may indefinitely reduce their work hours so long as they don’t surpass the 12 weeks of FMLA leave in a 12-month period that they are entitled to under the law.

    The letter also addresses concerns from the employer that the need for a work day limited to eight hours may be “better suited” as a reasonable accommodation granted under the Americans with Disabilities Act (ADA). The letter states that the requirements and protections of the FMLA and ADA are separate and distinct, and that employees may be entitled to use protections granted under both laws at the same time. It further states that an employee who has exhausted all of the afforded FMLA leave for a 12-month period may have additional rights granted under the ADA to continue to work at the reduced level, but it clarifies that the WHD does not “interpret or provide any advice for” the ADA and its requirements.

    Finally, the letter states that employees are entitled to the equivalent of 12 standard workweeks of FMLA leave, which may be more than 480 hours (equivalent to working 40 hours per week for 12 weeks) if the regular schedule of the employee is greater than 40 hours per week. The letter uses an example of an employee regularly working 50 hours per week, in which case the employee would be entitled to 600 hours of FMLA leave.

    It’s worth noting that the content of the letter is consistent with long-standing guidance and enforcement of the FMLA. The letter may draw increased attention to the issue, however, since the letter is the first provided by the Biden administration’s WHD.

    CUPA-HR will continue to monitor for any future WHD opinion letters and will keep members apprised of any significant updates in the future.



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  • CUPA-HR Sends Letter to Congress Asking for DACA Protections – CUPA-HR

    CUPA-HR Sends Letter to Congress Asking for DACA Protections – CUPA-HR

    by CUPA-HR | November 22, 2022

    On November 17, CUPA-HR joined the American Council on Education (ACE) and over 60 other higher education associations in sending a letter to House of Representatives and Senate leadership urging Congress to pass permanent protections for the Deferred Action for Childhood Arrivals (DACA) program after recent court decisions have left the status of the program in limbo.

    On October 5, the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a 2021 ruling by the lower Court in the Southern District of Texas that enjoined the DACA program and vacated the 2012 Department of Homeland Security (DHS) memorandum that originally established the program. The Fifth Circuit agreed with the lower court’s finding that the promulgation and enforcement of the DACA memorandum violated the Administrative Procedure Act but noted that the Biden administration had finalized a new DACA regulation in August, leading the Appeals Court to send the case back to the Texas District Court to consider the legality of the August rulemaking. On October 14, however, the Texas District Court ruled against the final rule, arguing that the existing injunction blocking the 2012 memorandum also covered the new final rule.

    As a result of these rulings, the DHS is blocked from accepting new applications for the DACA program, but the agency is permitted to continue renewing existing protections to current DACA beneficiaries. DHS Secretary Alejandro Mayorkas issued a statement in response to the Texas Court’s decision saying “It is clearer than ever that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients. I urge Congress to swiftly pass legislation to provide permanent protection to the hundreds of thousands of Dreamers who call the United States home.”

    ACE’s letter states the urgency with which Congress needs to act to ensure protections are granted to DACA recipients. The letter specifically asks Congress to pass legislation to provide DACA protections to current and future beneficiaries before the 117th Congress ends January 3, 2023.

    CUPA-HR will keep members apprised of any updates on the status of the DACA program.



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  • CUPA-HR Submits Letter to DOL Requesting Stakeholder Meetings Prior to Anticipated Overtime Proposed Rule – CUPA-HR

    CUPA-HR Submits Letter to DOL Requesting Stakeholder Meetings Prior to Anticipated Overtime Proposed Rule – CUPA-HR

    by CUPA-HR | February 8, 2022

    On February 8, CUPA-HR and 14 higher education organizations sent a letter to the Department of Labor (DOL) Wage and Hour Division (WHD)’s Acting Administrator Jessica Looman requesting that the agency engage in stakeholder meetings with the higher education community during the initial stages of the rulemaking process for the anticipated overtime rule.

    In December 2021, the DOL announced in its Fall Regulatory Agenda that it plans to issue a Notice of Proposed Rulemaking (NPRM) this April to update the salary level to qualify for the executive, administrative and professional employee exemptions (collectively known as “white collar” or “EAP” exemptions) to the Fair Labor Standard Act’s overtime pay requirements. In 2015, the Obama administration’s DOL proposed an increase to the threshold of over 100 percent from $23,660 to $50,440 per year. After the comment period ended, the DOL issued a final rule in 2016 that would have increased the level to $47,476. The rule was stayed and then overturned by a federal court in 2017; however the Trump administration DOL reevaluated the rule in light of the litigation and issued a new rule in 2019 that increased the salary threshold starting January 1, 2020, to $35,568 per year.

    While the DOL has not publicly stated the salary threshold increase it is considering for the April NPRM, members of Congress and advocates have recommended that the Biden administration DOL increase the threshold by over 100 percent to at least to $82,732 by 2026.

    Given the likelihood that the DOL is feeling significant pressure from certain stakeholders to pursue a robust increase, CUPA-HR drafted the letter highlighting higher education’s significant involvement with DOL’s prior rulemakings in 2016 and 2019 and the particular concerns institutions harbored with the 100 percent increase to the salary threshold in 2016. It further explains that due to the pandemic-related workforce changes across colleges and universities, the DOL must hold stakeholder meetings with our community before issuing the anticipated overtime NPRM — as was done in 2004, 2014 to 2015, and 2019.

    CUPA-HR will keep members apprised of any actions taken by the DOL as it moves forward with the overtime rule.



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  • CUPA-HR Leads Higher Ed Letter Asking for Further Extension of I-9 Flexibility Guidance – CUPA-HR

    CUPA-HR Leads Higher Ed Letter Asking for Further Extension of I-9 Flexibility Guidance – CUPA-HR

    by CUPA-HR | December 14, 2021

    On December 13, CUPA-HR and ten other higher education associations sent a letter to United States Citizenship and Immigration Services (USCIS) Director Ur Jaddou requesting the Department of Homeland Security (DHS) extend its previously announced flexibilities on Form I-9 compliance requirements through June 30, 2022. The guidance, which has been extended continuously since March 2020 and was amended on April 1, 2021, permits remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions.

    The guidance is currently slated to expire on December 31, 2021. As such, colleges that have used the remote I-9 accommodation will be required to physically inspect the documents of affected employees no later than three business days once normal operations resume — providing a very limited window in which to inspect the documents of potentially large numbers of employees.

    As the current expiration date is problematic, the CUPA-HR letter requests DHS to extend the I-9 flexibility guidance through the spring semester. The letter highlights two major reasons to extend the guidance past its current expiration date: the uncertainty posed by the Omicron variant and the current guidance’s expiration date falling between two major federal government holidays and in the middle of most college and university winter breaks. Given the need for predictability and the wind-down of university operations before the expiration date, the letter also encourages DHS to announce the requested extension on or before December 17, 2021.

    Please Submit Your Feedback On the I-9 Process

    On a related note, CUPA-HR is requesting your feedback to help our Government Relations team respond to DHS’s Request for Public Input on document examination practices for Form I-9 and the guidance for flexibility created in response to the COVID-19 pandemic. To ensure we can provide the most comprehensive feedback to DHS as possible, please make sure someone from your institution responds to CUPA-HR’s Survey by 11:00 p.m. ET on December 15. All responses will help us finalize the comments we submit to DHS.



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