Protected: Dear Colleague Letter

The Office for Civil Rights (OCR) indicates that it will begin enforcing the directives in this letter no later than March 1, 2025.  It also states that additional legal guidance will “follow in due course.”  Legal challenges to enforcement of the DCL are likely but institutions will need to weigh the risk of loss of federal funding before delaying compliance with the letter’s directives.

The guidance of the letter, like most of these documents, is broad and ambiguous.  It states:

The Department intends to 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, including antidiscrimination requirements that are a condition of receiving federal funding.

All educational institutions are advised to:

• ensure that their policies and actions comply with existing civil rights law;

Education for All: your institution is very likely in compliance with civil rights law and therefore take care not to cause panic or have a knee-jerk reaction to the letter.

• cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends;

Education for All: Most of the claims in the Dear Colleague letter are erroneous.  Complaints will be made no matter what.  However, be sure that a practitioner and legal counsel are reading the letter’s claims prior to making changes.

• 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.

Education for All: Without additional guidance from OCR, it is unclear what this directive means.  However, clarification will be needed to ensure that institutions are not ‘circumventing prohibited uses of race.’ It could easily be argued that institutions do not treat groups differently because of their race; and therefore, therefore institutions, broadly, are already in compliance.

Examples of explanatory language in the letter and how to think about it. 

“If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law.”

The cause and affect here is erroneous. Systems are not people—and we often do not treat all people within a single race monolithically.

“Federal law thus 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. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.”

Administrative support can be offered to people for reasons beyond race. Moreover, you may have programs focused on race but not exclusionary of individuals from other races.

“DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.”

This is an inaccurate and vastly oversimplified discussion of DEI programs, which have inclusion, not exclusion, as their purpose.

“The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.”

The link between the claims and guidance of this letter to the Supreme Court’s decision on race-based admissions is a far stretch.

“Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one. 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.”

The institution may make operational and programmatic decisions that meet the needs of the institution and its community. If a decision is made that may implicate issues of race, work with counsel to ensure the decision complies with the law.