On Feb. 14, 2025, the U.S. Department of Education’s Office for Civil Rights issued a Dear Colleague Letter to “clarify and reaffirm” the nondiscrimination obligations of schools that receive federal financial assistance, and to provide notice to educational institutions of the department’s “existing interpretation” of federal law on this topic, including of Title VI of the Civil Rights Act of 1964 (Title VI), particularly in light of the U.S. Supreme’s Court 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA). Of note, and notwithstanding its tone, the department acknowledged that the Dear Colleague Letter is “guidance” and “does not have the force and effect of law and does not bind the public or create new legal standards.”
Based on its interpretation of SFFA, the department advised that 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 federal law. To this end, the department stated that “educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.” The department reiterated that programs appearing neutral on their face may be unlawfully motivated by racial considerations, and that other programs, such as certain diversity, equity, and inclusion programs, could be discriminatory in “less direct, but equally insidious ways.” Emphasizing that “race-based decision-making, no matter the form” is impermissible, and that the department “will no longer tolerate the overt and covert racial discrimination that has become widespread,” the department advised that legal guidance would be forthcoming.
On Feb. 28, 2025, the department published a Frequently Asked Questions resource in an attempt to: (1) forecast and answer questions that may be raised by the Dear Colleague Letter; (2) “provide helpful information about how the decision in [SFFA] applies to racial classifications, racial preferences, and racial stereotypes”; and (3) to explain how the OCR will interpret SFFA in its enforcement of Title VI.
As it relates to DEI programs, the department clarified that whether a policy or program violates Title VI does not depend on how it is titled, but rather on whether the program treats students differently based on race, engages in racial stereotyping, or creates a hostile environment for students of particular races. In this regard, “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 permissible] so long as they do not engage in racial exclusion or discrimination” (emphasis added). Nonetheless, the department cautioned that schools need to be mindful of whether such programs discourage members of all races from attending, or create hostile environments based on race for those students who do not participate.
The department also explained how complaints of discrimination, including those concerning facially neutral policies, programs, or practices, will be reviewed and evaluated by the OCR. The full list of questions and answers can be found here.
On March 5, 2025, and in response to the executive orders signed by the president; the Feb. 14, 2025, Dear Colleague Letter; and the department’s Frequently Asked Questions, the attorneys general of several states, including New Jersey, issued Joint Guidance to address, among other things, “the legal landscape for … K-12 schools operating in our states as they work to advance educational goals and access to educational opportunities.” In their Joint Guidance, the attorneys general advised, in pertinent part, “[e]ducational institutions should continue to foster diversity, equity, inclusion and accessibility among their student bodies”; the Dear Colleague Letter and Frequently Asked Questions “misconstrue Supreme Court precedent, wrongly imply that it might be unlawful for schools to consider the impact of policies and practices on diversity, and create a misimpression of the impact of diversity, equity, inclusion, and accessibility programming and its legality”; and reiterated that “nothing in the [Dear Colleague Letter] or [Frequently Asked Questions] changes existing law and well-established legal principles that encourage — and even require — schools to promote educational opportunity for students of all backgrounds.”
Boards that may be considering changes to their curriculum, policies, and/or program offerings in light of the department’s Dear Colleague Letter or Frequently Asked Questions, are encouraged to speak with their board attorney for formal guidance and advice, including how the Joint Guidance may impact their decision-making.
For further information about these matters, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.
